AMNESIA Goes to Court

The woman’s insurance company respectfully informed me that I still owed $2,650 in damages. My head shattered the Nissan Pathfinder’s windshield, my bike scratched the body panels, and my torso tore off a side-view mirror. Somebody had to pay for this. “We are looking to you for full reimbursement of the Net Loss. Very truly yours, Greg McDonnell, Claims Representative.”

Their letterhead assured me of a commitment to excellence: “Insurance that starts with you.”

The letter came just a few weeks after I started eating again. My jawbone had healed. My short-term memory had improved so I could remember a little bit of what happened in the previous day. I was creating new memories and beginning to understand just how much I had forgotten from the last two years of high school; college classes were tough.

The letter went into the trash where their other claims had vanished.

Some people decry our overly litigious society. I’m one of them. I recently read about an accused murderer suing two of his former hostages after being shot when they escaped and informed police of his whereabouts. A lady sued Universal Studios after being too scared in their haunted house.

However, the lawsuit is a bulwark against corporate turpitude and lawbreaking by individuals, and many claims merit attention. For example, U.S. states won a multi-billion-dollar settlement from cigarette makers. Countless individuals have been favored over corporations and other individuals for illegal behavior. Going to court isn’t fun, but sometimes it’s the only gesture that will be understood and the only recourse in seeking justice.

Witnesses said the sound of impact was memorable.

A new letter said the insurance company would seek damages to its client’s automobile in court.

I didn’t know what to do. I went to the person I most trusted at the university, my professor of religious history who had taken me under his wing. Professor Stein welcomed me warmly to his office, sat down in an old, stuffed chair, and held the letter out to read. His great beard wobbled as his lips sped silently over the words. I gave him the police report too. While he read, I studied his observant Jewish attire, the tassels from the tzitzit worn under his black jacket, a black hat on the coat rack.

“This is absurd,” he said, waving the letter. “She hit you!”

“What should I do?”

“I will contact a friend about this. The best lawyer in Vermont. We’ll see what he says.”

Countersuit was what he said. We met in one of the tallest buildings in downtown Burlington, right next to the courthouse. James Rivlin reviewed the accident report and explained that I could sue the driver.

“What are your goals for this lawsuit?” he asked.

“I don’t want to pay for the damage to the car. And I suppose her insurance company should get the message that this is wrong. Originally I just wanted to move on with my life, to put the whole thing behind me. But now that they’ve dragged me back into this crap…”

“If you sue for the maximum liability coverage, only her insurance company will have to pay. The driver won’t have to pay anything. For her policy, that’s three hundred thousand dollars. It’s a good case, and Professor Stein is a friend. We can do the work pro bono.”

“Um. Okay.”

Once the process was set in motion, it gained its own momentum. I occasionally stopped by the Rivlin offices to work with an investigator, Brian Stone. He wrote everything down with a gold mechanical pencil. Everything. Whenever he made a mistake, he paused and erased and rewrote. Other than the occasional meeting, I didn’t have much to do. My lawyers collected documents from police. They scheduled and carried out depositions.

Yay for helmets.

Later, the insurance company’s lawyers deposed me in a long interview in a Boston high-rise, during which I mostly said, “I don’t remember,” or answered yes or no without embellishment. My lawyers patted me on the back when we left. “I wish every client gave such concise answers,” Brian said. But it was only the truth. I didn’t remember anything about the accident. All else was merely conjecture.

During a grueling two-day evaluation in Brookline, a psychiatrist ran me through a gauntlet of tests. Math problems, puzzles, reciting lists of words from memory. A computer screen threw colors at me, and I had to press the spacebar when it blinked green. I drew charts from memory.

Several weeks later, her ten-page report arrived.

“Daniel’s rate of processing visually-presented material is impaired… He scored below the 1st percentile in comparison to others of his age and education…  Daniel was also impaired in his performance of the ACT, an aurally-presented task that is quite sensitive to difficulties with working memory, divided attention, and speed of processing… His subjective complaints of ongoing memory problems are therefore borne out not only by his inability to recall specific information from events occurring before and after his accident, but also by scores on formal memory tests that reflect a level of performance that is inconsistent with, and significantly lower than, premorbid ability.”

After getting fixed, this bike went on to carry me around Burlington and Yosemite National Park. Then my best friend Jed bought it from me. After a couple years of use, he passed it on to my brother, who owns it to this day.

And in the conclusion, she wrote: “The pattern of results suggests that Daniel may have sustained a blow to the left fronto-temporal region, affecting his working memory for verbally-presented material, followed by a more posterior blow to his right temporo-occipital-parietal area, affecting visual information processing and encoding. Reduced finger tapping with the right dominant hand also raises the likelihood of involvement of the right motor cortex.”

     Lower than expected.

     Deficits.

     Diminished. 

      <1st percentile.

      Poor performance. 

     More errors than expected.

     Impaired. 

     Impaired. 

     Impaired.

What price tag can be put on the inner workings of the mind? What value do our memories have? Would $300,000 make things better? Would I recoup full function even if I won a million dollars in court?

Of course, the answer was no.

The final line of the report wasn’t cheerful. “Since these deficits are still apparent over a year post-injury and given the severity of the injury initially, prognosis for a full recovery to premorbid levels of functioning is guarded.”

The court date drew near. I borrowed a sport coat and tie from my father. My mother bought me two pairs of pants and two shirts. I borrowed my stepfather’s shoes, which were a little tight but polished to a sheen. So familiar were they with my running clothes and beat up college wardrobe, Brian and James breathed real sighs of relief when I arrived at the courtroom in a mélange of borrowed attire.

“Dan is entirely realistic in his expectations. I have never had the impression that a large financial recovery is of great importance to him.”
–James Rivlin, Esq.

The defendant hadn’t shown up for the jury selection, but the insurance company’s lawyers were there.

Potential jury members filed in, a gloomy group of individuals who cast me sidelong, unfriendly looks. Who could blame them? They were torn out of their regular lives to judge a case that existed only because of an insurance company’s greed. After some preliminaries, the judge asked to talk with us in her chambers.

Thus began the arbitration. “Surely you can come to a settlement without going to trial,” she said. Judge Carter was a stately, gray-haired woman with a no-nonsense, penetrating gaze. She told us the insurance company was prepared to pay fifty thousand dollars to settle. My lawyers said no. Judge Carter went away to talk with the defendant’s attorneys in another room. I sat uncomfortably at the conference table, waiting in silence for their counter offer. Brian looked through some documentation. James gazed off to some other time and place. He said, “You’ll get a third of whatever they offer. One third will go to your health insurance company, and a third will cover our fee.”

The judge came back. “Sixty thousand.”

James looked at me. He looked at the judge. She looked at me. I shrugged.

“I think we can get more,” James said. He talked with the judge about our case. I spoke up a little, but I mostly let the attorneys do the spinning.

“You look healthy. You sound healthy,” the judge said to me.

“As Mr. Rivlin mentioned, I have memory problems.”

“A panoramic radiograph showed a horizontal, minimally displaced though well positioned, compound fracture at the inferior aspect of the vertical ramus.”
–Oral surgeon

“Okay.”

“And I had my jaw wired shut for five weeks. I couldn’t eat for more than a month.”

“There! See his pain and suffering! We should be going for more money!” James cried, as if my broken jaw were the real tragedy.

The judge went away.

She came back. “Ninety thousand. It’s their final offer.”

“A moment with our client please.” When Judge Carter was gone, Mr. Rivlin said, “What do you think, Daniel? Ninety thousand. We could get nothing if we go to court.”

“Or we could get more,” Brian pointed out.

“Let’s be done with it,” I said.

A month later a check arrived for $28,865.97. I’d never seen so much money in one note. I bought a used car. I spent thousands on travel and adventure and climbing equipment, determined to use the insurance company’s money to build up a new reservoir of memories. For three months I traveled across the country with my wife-to-be. We went to New Zealand and Thailand and Laos. Three years later, I backpacked across Europe with the last of my funds, and when they were gone, I kept going, never the same again.

But when are we ever the same?

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