Allan Appel Photo
I wasn’t buying this story about pain and suffering. But I had five other peers who felt differently.
Donna was trying to figure out if you can get stenosis, whatever that is, from arthritis or from just getting older.
Jose tried to make the case that your rear bumper, even on an on-ramp and from a stationary position, doesn’t have to be hit very hard for your neck to jerk forward. Then you most definitely feel anxiety about driving for years to come.
Reg — let’s call him the accountant in our group — was trying to calculate how much an hour of anxiety once a day totals up to, in dollars, for a year times the actuarial longevity of the plaintiff.
Mary was taking it all in and mentioned her own relatives who have had neck pain.
And Shi, a young woman who lives on the Shoreline, was, I believe, struggling a little to keep up with all our English patter as we pored over medical and physical therapy bills in a huge binder lying on the table before us.
So how do I know all this?
Because I was sixth member of a little jury on the sixth floor of Superior Court Wednesday morning. We were in the heart of the details of a personal injury lawsuit that had been given us to decide.
The plaintiff — a 68-year-old woman; let’s call her Julia — had injured her neck in a rear-ender on a highway on-ramp back in 2014. Now she was suing the man — let’s call him Fred —who had hit her.
Fred, who was not in the courtroom, admitted his car hit Julia’s.
Now he was being sued for his negligence resulting in injuries to Julia and subsequent medical and physical therapy bills up through 2109, five years later. Julia was asking him to pay not only economic compensation but pain and suffering for those five years and for the balance of her lifetime to come.
Frankly, I was really shocked at the request. Yet I tried to keep that at bay because I had sworn on becoming a juror to listen objectively and to try to set prejudices aside.
My Idea Of Fun
I love jury duty. If there were such a position as Professional Juror, please sign me up. I love how the process brings together strangers on a common quest for fairness. I love how it forces you really to listen to people. I love how carefully we were instructed in our duty to look, in this, a civil case, for who’s side has tipped the scale of the evidence, the preponderance, toward reasonable believeability.
And I love how lawyers and all present stand for us and smile hopefully as we enter and leave the box or the deliberation room, because in this system we are really it.
Jury membership is democratic royalty.
But this case — the third or so I’ve sat on in my life — challenged my enthusiasm.
Because, mea culpa, as we took the binders of evidence into the deliberation room, I was already thinking the whole process was a giant Pain In The Neck.
Personal injury issues were not bringing out the best in people. I thought as I listened to what I thought were unjustified and outrageous demands: Julia’s lawyer was asking in total for Fred to pony up as much as $200,000.
In the jury room, I tried to make my case to my more generous and empathetic jury mates. My own neck was beginning to hurt in more places, I was sure, than Julia’s did.
Julia’s “Case”
Julia’s young lawyer had presented the evidence in court. The defense counsel, Fred’s lawyer, seemed even younger and eager to get the proceedings done with. We later learned this may have been even a first case or close to it for one of them. Their presentation was not only uninspiring; it was short on crucial details of events and on medical accuracy.
Julia claimed her neck began to hurt 48 hours after her car was hit from behind, although no airbag deployed and she drove away from the accident.
She had a passenger, but neither plaintiff nor defendant attorney asked if that person experienced any discomfort or injury.
Julia began at that point to go to a series of doctors, second-opinion docs, and physical therapy clinics for the next four years or so. Some of the time her presenting issue was neck pain.
Yet if you looked at the doctors’ write-ups, as we began to do, one bill at a time, she also had pain in the lumbar region. In some of the records, doctors noted that Julia had had cervical issues predating the accident, degenerative spinal conditions, and maybe even hip pain starting 30 years ago following her last pregnancy.
We had to figure out the medical terminology on our own as best we could, because the only witness in the day’s offering of evidence was Julia herself. There was not a doctor in sight. The lawyers weren’t asking medical questions or offering guidance.
Did the rear-ending exacerbate a pre-existing condition in the neck, or cause something new, a stenosis? Our librarian Donna knew what stenosis is, for she suffers from it herself: a narrowing of the space between vertebrae at the base of the neck.
But how in the world would we assess and quantify if the accident contributed or caused this?
Either way, the judge’s charge on the law, said she was entitled to compensation, but less, of course, if the accident was an exacerbating as opposed to a causal factor.
Got that?
Stenosis Diagnosis
Why, all of us were wondering, was it left to us to decode doctors’ records and, as it turned out, to go through individual bills, one at a time? For the compensation sought was for neck pain and not other pains in other body parts, and doctors’ visit notes often included lots of pains in lots of different places..
“Stenosis pain is different from other pain,” said Donna. It could not be pain rising up from other regions, say, of the back, as I had thrown out there as a skeptical possibility.
I struggled to be charitable. But I pointed out how vague Julia was in answering the questions about what kind of pain she experienced, and where.
“She is vague,” Donna agreed.
Donna also agreed that when the accident happened, Julia was 64. She’s now 68. Lots of pain happens, naturally, in the aging process. Anyone over 50 knows when you get up in the morning, your knee can hurt, but the pain might have begun a long way away. How were we, lay people, supposed to track and then give a dollar value to each and every pain?
Help! My neck really was hurting.
Reg went through some of the medical bills. We noted that Julila is taking a lot of medication, which might account for the vagueness in reply. You shouldn’t interpret vagueness for suffering, I said. Vagueness and the list of medications and the going to one doctor after another could also be an indication of — I was feeling guilty again — a hypochondriac.
And should we even find for the plaintiff at all in such a case? Maybe we should find for Fred, I suggested, even though his attorney — presumably his insurance company’s attorney — was happy enough in her closing statement to tell us the company would happily pay, up to $20,000.
I flashed on the Perry Mason programs of my youth — when I definitely was having no neck pain — and wondered: What kind of defense lawyering is this!
Uncle
As for the compensation for pain and suffering, the non-economic amounts we were charged to come up with, I didn’t think Julia deserved much at all.
We had to achieve consensus, My colleagues gently talked about their relatives and their own experiences with accidents. Reg’s wife had whiplash once; the effects were slow onset but there for many months.
Jose, our taxi driver juror, had never been hit from behind. But he knew of driving anxiety and other kinds from accidents he’d had. Fortunately, he said, he has a wife who never worries, because he is a person who worries all the time.
“You chose well. You are a very lucky man,” I offered.
He went on to say eventually he was unable to get behind the wheel for many months. He had therapy, and he recovered, but the anxiety is always there, he said, movingly. Always. What I saw as hypochondria that Julia shouldn’t be compensated for, he saw as something very real.
In the interest of reaching a unanimous verdict, I gave in. I acknowledged that Julia could have had real injury, but I, along with Reg, had brought my colleagues along a bit to be skeptical about reimbursement, to focus on the neck, and to be more skeptical as the years wore on.
Donna, whom we had elected our foreperson, read off the dates of the bills. Reg, I, Deb, Mary, and Shi pored over the documentation. If the bills were neck-heavy, we put a little check on the legal sheet: Let Julia be compensated.
We had no choice to give a partial compensation. If a bill was for $419, Donna had to check the “All” box or the “None” box.
An expensive $5,000 MRI stopped us. It was in late 2018, nearly four years after the accident.
“She is still having pain, symptoms,” said Jose.
“It could be related to hip stuff, lumbar stuff, her degenerative spinal condition from before the accident,” I offered. Those possibilities were all in the reports of some of the docs.
“Or it could be just getting old,” said Donna.
Shi looked at one bill in the binder. She noted the date, 2019, and rolled her eyes. We disallowed that one because it was both late and was not neck-specific enough.
“We’re guessing a lot of this stuff,” said Mary.
“That’s because the lawyers didn’t provide medical, technical info,” I said.
How Much Advil?
For some reason I was obsessed with the Advil that Julia had testified that she began to take in the days after the accident.
Maybe because I’m a bit of an Advil addict. If you take, say, 600 milligrams every four hours, as I do around root canals, that indicates to me you are in some serious pain.
My jury mates indulged me as I insisted we send a note to the judge to ask if we could learn the frequency and the dosage. We also wanted to know if Julia’s passenger had had any injury. I think we also asked for a definition of stenosis.
Moments after Donna handed the note to the clerk, there was a knock on the door. The clerk said the judge wanted to see us.
I think we all felt we were being called into the principal’s office. The lawyers and Julia all stood. Then the judge declared that, alas, no info could be provided beyond what we had heard presented as evidence in court. We had even been admonished not to look up stenosis or other technical words that had arisen. If we learned something from Wikipedia, that might adversely affect our deliberations!
So back we went, as ignorant as before, going through the bills and the arcane terminologies, and trying to decipher doctors’ scrawls.
In the end, we toted up bills amounting to about $13,000 in economic compensation.
The Price Of Bag-Carrying
Now we had to come up with two numbers for pain and compensation for two periods: the immediate accident up to 2019, and then for the rest of Julia’s life.
Trying to decode medical lingo and the etiology of pain through Julia’s body was challenging enough. This next phase — especially dealing with future suffering — felt like pure guesswork.
We went back to her testimony abut her discomfort, about which only two facts had been elicited. Julia now required her son to bring in the bags of groceries from the car. She wakes up at night with neck pain, has to rearrange her head on the pillow in a different position, but then she goes back to sleep. What’s bag carrying worth?
Oh, and tellingly, all the time from before, during, and after the accident, Julia has worked as a nanny. Her current charge is a little baby. She said it hurts when she shifts the little tot from side to side on her shoulder, which of course is close to the neck. But it’s not the neck itself.
Importantly also, neither a plaintiff’s nor a defendant’s lawyer indicated Julia has stopped working throughout the years of doc visits and physical therapy.
“Couldn’t her neck issues — even before the accident and certainly after— also have come from the heavy lifting nanny work?” I again skeptically asked.
I was feeling like a real hard-ass, and a little guilty for it. That was one reason why, incidentally, I had said I was not in the running to be foreperson of the jury and was glad Donna had stepped up.
Am I a not nice person?
Decades ago, I sat on a Manhattan jury for a criminal petit larceny case. Back then, the case turned on the value of a coin. If it were above $300, it was one level of larceny, if below, another less serious crime. How’d you find out? You consulted coin catalogs. Did you believe the catalog? What was the date of publication? Was the valuation still accurate?
This personal injury stuff that we were dealing with was pure guesswork by comparison. Yet, by god, we had looked at each bill and were giving Julia her day in court.
I felt pleased that I was being countered by the other points of view around the table. They had heard me. I heard them> And we still needed to come up with numbers for pain and suffering.
How much anxiety had been caused by the accident and how much by just … well, aging? How can you make such crazy calculations?
In the end, with the clock ticking down on the day’s deliberations, we decided that we would each write down a number for pain and suffering between the accident and the last bill’s date; and another number for the pain and suffering Julia will experience and is therefore to be compensated for the rest of her life.
I wrote down a thousand bucks for pain and suffering for the first, and zero for the balance of Julia’s life. The others’ numbers were all over the place, some offering $10,000, another $30,000. Jose, who movingly talked about how debilitating anxiety can be, came up with $50,000. We then divided each number by six and added them, for a grand total of $27,000 for pain and suffering, for both periods.
That number plus the $13,000 or so for economic compensation meant Julia walks out with about $40,000.
Our work was done. I enjoyed collaborating with my fellow jurors. But I found the system’s set-up — poor legal presentation, denial of our requests for more medical information — disappointing.
The judge came in afterwards and thanked us for our service. He meant it.
We told him our concerns about the lawyers’ inexperience and inadequate information. The defense hadn’t offered much of a defense, we figured, because Julia faced an insurance company that was willing to pay a modest amount to get the business out of the way.
Our foreperson said she saw Julia giving her the evil eye right before we were discharged and left the courtroom.
Still I have no doubt that Julia had her day in court and she did well by us. Had she had me alone judging her, she would not have done nearly as well.
And that’s the point. As I walked away from the courthouse, I saw Donna checking out her phone and waiting on the court’s steps above Wall Street for her husband to pick her up.
“Well done, foreperson,” I called, and walked on home.
The names and details have been changed in this story, except in the case of the author.
Never having served on a jury myself, I found Allan's experience fascinating.
First thing I did was look up "stenosis". Here's the link to the Mayo Clinic's exposition: <br />https://www.mayoclinic.org/diseases-conditions/spinal-stenosis/symptoms-causes/syc-20352961.
The role of a skeptic is a valuable one, so I hope Allan is not suffering from any post juror trauma. The fact is, some injuries are hard to prove because they are not visible like, for example, a broken bone. But pain and suffering is real, just hard to demonstrate sometimes.<br /> Whether discomfort from the initial injury is related more to aging or the injury is again hard to ascertain, but any injury to an older person is likely to have more serious consequences.<br /> This claimant got a modest recovery and will not be investing in Bitcoins or waterfront real estate.<br /> She got her hearing and the jury gave it the appropriate time and consideration.<br /> Thank you for your service.