The Trial, Part II

The Mercedes driver, we had by now discovered, was a real estate agent with a career on the rise in 2006, at the time of the accident. Still suffering from the pain that his three surgeries had failed to relieve and from the depression that his life had fallen into, he decided to sue the driver of the Honda Accord that rear-ended him on that day in October, 2006. Enter the plaintiff’s law firm and attorney, who sent his new client to a local Antelope Valley neurosurgeon (who happens to be a close friend of the attorney—a fact not concealed from the jury.) It was by this time January, 2009, nearly two and a half years since the accident. There ensued more tests, more disagreements between medical specialists, more explanations and recommendations, all of which now became meat for the lawsuit.

The trial began, as we know, in May, 2009. The jury selection process eliminated a handful of potential jurors on grounds that remained, in some cases, mysterious. There were a few, clearly, who did not wish to serve and had devised strategies to ensure their exclusion. One, I recall in particular, was a young man who insisted angrily that he was so biased against frivolous lawsuits—and outrageous attorney’s fees—that he could not render a fair verdict. Another, a woman with an unshakable interest in her own story which emerged, with heavy tears, in response to every question. As I have written earlier, I was distressed to have been included, at first, as an alternate; and delighted to have been elevated to full juror status before the start of the trial. It took almost a full day, as I recall, for the attorneys to pronounce themselves satisfied by our assurances that we would be able to listen fairly to the evidence presented, and make a decision based on the facts of the case.

After opening statements from each side, then, the plaintiff’s attorney led off with his first witness, a dapper biomechanical engineer who testified first to his own impressive credentials as an expert in the structures of both the human body and the automobile, and how the two interact in unfortunate ways when they come together in a crash. His major premise was that, while the impact was not apparently a serious one in this case, the upward thrust created by the front end of the Honda ramming down under the higher rear end of the SUV was responsible for the plaintiff’s injury. That force was complicated and rendered devastating, he testified, because the Mercedes driver, at the moment of impact, was seated in a position twisted forward and sideways to improve his vision of the traffic, to the left, and the pedestrians, to the right. It was that torque of the body, the witness explained with numerous charts and illustrations, which caused the L5-S1 disk at the lower extremity of the spine to be herniated, causing compression of the nerve root as it exited the spinal column on its way down the right leg.

A couple of observations came to mind as I tried to listen to this witness with as much objectivity as I could muster. The first—and this was to be repeated frequently in the course of testimony on this side—was the surfeit of information, the overly detailed and repetitive use of charts and models. The points could have been made far more effectively, in my judgment, had they been made more concisely. The irritation I felt at being hammered with unneeded repetition was reinforced by the presentation: the three huge, unmanageable black briefcases with which the witness arrived, as if to reinforce the importance of his expertise, the skeleton and spine that he (and subsequent witnesses) dragged around the courtroom, so anxious were they all to be sure that we, the jury, understood the intricacies of the human anatomy. The questioning attorney and his witness seemed completely unwilling to understand that we got it, already. We didn’t need to be told everything five times, in frequently incomprehensible medical and biomechanical jargon. I was relieved, frankly, when it was the defendant’s attorney turn to cross-examine. He spoke plain English.

Okay, impartiality. Deep breath. I tried to keep reminding myself to come back to that. It’s not about the presentation, it’s about the evidence. The facts. AND that, behind it all, there’s a truly suffering human being.

The next witness called by the plaintiff was an orthopedic surgeon, a weighty presence. (Again, I’ll confess that my judgmental eye picked up on something that should, perhaps, have been irrelevant: even I, with my late life spread around the middle, am aware of the extra stress that frontal weight puts on the spine. How could a man who specializes in back problems allow himself to become so seriously overweight? My judgment, yes. Irrelevant, yes. Rude, too. Overlook…) The doctor testified, again with many charts and models, as to how the herniated disk was caused, in his opinion, by the collision, and went on to explain the options with which the plaintiff was faced to relieve the pain: medications, including the epidural injection, which was believed to be uncertain and risky (then why, I wondered, do thousands of women use it every day to mitigate the pains of childbirth? This was to become an issue later in the trial) and of short duration in its effects; or surgery, thought to have an 80-90 percent success rate.

During this orthopedic surgeon’s testimony, another issue was raised that was to become a recurrent minor theme as the trial progressed. A couple of months before the car crash, the plaintiff had slipped and fallen on the hard wooden floor in one of the properties in his portfolio, and had been examined for, initially, a bad back and shoulder. He returned for medical help a month later, still complaining of shoulder pain—but not mentioning the back; and again, another month later, to be pronounced “100 percent” improved. Even though, as it turned out under cross-examination, the witness had only learned about the “slip-and-fall,” as it came to be known, the very morning of his testimony, he dismissed is as “not a factor” in the patient’s condition…

At which point, this being a Friday afternoon, we recessed for the weekend… And this being, as I write, Wednesday afternoon, I take my own recess. Believe it or not, I have a dreadfully painful back!