Sample Closing
Ms. Jones does not have “cane pain”, meaning it’s not the kind of injury that requires her to use a cane or hobble around. She has what is often referred to as “pilot light pain”. Most people have seen a gas stove or hot water heater that had a pilot light. The flame is always there flickering. Sometimes it will flare up, but it will settle back down to the baseline. This kind of injury, this kind of pain is like that, always there flickering in the background. If she does certain things it will flare up and blaze, then it goes back down to the constant low-level, it doesn’t go out.
She lives her life now walking a line between pilot light pain and flare-ups. She lives her life making little choices that add up to a lot, choices to do something or not do it. If she hoists her child up and swings him to make him laugh, there will be a price to pay. Some days she does it and lives with the flare-up, others she stoops down and tickles him instead. Some days she takes it easy on her walks to keep the discomfort down to a flicker, somedays she pushes to get a better workout, knowing what is coming. Somedays she cleans house slowly, taking breaks to avoid flare-ups; other days she just gets it done, then lays on the heating pad. Her new baseline is to make choices like these. It has become such a part of her routine, she hardly thinks about it. It has become her new normal. It wasn’t that way before. It will never go back to the way it was before. It’s not something you can see from the outside, because she still does most of the things she did before. It’s not that she doesn’t do, it’s that she makes subtle adjustments to keep her pain maintained, or makes no adjustment and deals with the pain level increasing.
It’s not the kind of injury that interferes so much with the doing as it does with the experience of doing. Someone with pilot light pain can still go to a movie and enjoy the show, but the experience is different, fidgeting, the discomfort distracting like annoying background noise. Someone with this kind of pain can still drive a car, but the experience is different. Changing lanes and checking for blinds spots means rotating carefully, not snapping one’s head around, or it may trigger a flare-up. Someone can still go to a religious service and be moved by the message, but the experience is different. The person is anxious to be able to get up and move around so they can get some relief. Someone with this kind of injury can still do physical activities, even participate in sports, but the experience is different. In the back of their mind is the need to take it easy or else there will be a price to pay.
That impact on the experience of routine things takes a big toll on the overall enjoyment of life. People treasure the pleasures of life. Life is not all pleasure, it can be hard, so we treasure the pleasure part of life. The enjoyment of life is so important that the law specifically recognizes it as one of the categories you are to consider in assessing the impact of Ms. Jones’ injuries. The judge instructed that you shall consider the impact on enjoyment life when determining the fair amount for damages suffered by Ms. Jones.
It’s like a guy wakes up in the morning with a crick in his neck and his wife asks what’s wrong; he says, “I slept wrong and my neck hurts”. He goes to work and deals with it all day. Little things trigger discomfort, such as: picking up a briefcase, turning his head to change lanes while driving, sitting for any length of time, standing for any length of time. The unnatural pain in his neck is there with everything he does. The ride home and activities at home are more of the same. Even sleep is disrupted, as he tries to get and stay comfortable, flip-flopping all night.
The next morning, he wakes up and says in frustration, “You’ve got to be kidding me!” His wife asks, what’s wrong? He responds, “I hoped this crick in my neck would be gone by now.” She says, “Maybe you should go to the doctor”. He replies, “It’s okay, it’ll be gone soon”. Day two is a repeat of the last one, filled with nagging discomfort, intruding, distracting, annoying, starting to take a toll, putting him in a bad mood. What doesn’t he do? He doesn’t call in sick. It’s not that kind of pain. What else doesn’t he do? He doesn’t walk around the office holding his neck whining and saying “ouch”. People would think he was a big baby. People around him have no idea what’s going on inside, other than his wife who he shares private things with. He comes home on day two cranky and is short with the kids. His wife asks, “What’s wrong with you?” He says, “I’m sorry, my neck is driving me crazy “. She replies, “Maybe you better go to the doctor!” This time the suggestion is more about not wanting a grouch in the house than pure empathy. The next morning, day three, he wakes up. His wife is in brushing her teeth. He lets out a grateful, “hallelujah!” His wife asks, “What? He says, “It’s gone!” That is the same kind of pain Ms. Jones now lives with, except there is no “Hallelujah” – EVER!
It’s important not to forget Ms. Jones’ pain didn’t come from sleeping wrong, or from sickness, or from participating in sports when she was younger. This pain was thrust into her life unnaturally, by someone who wasn’t doing their job on the road that day, endangering the motoring public. She didn’t have it before. Now it will never go away, it will be with her forever!
Keep in mind, this is as good as it’s going to get. As the aging process overlays on top of those damaged links in her spine, it’s only going to get worse. At some point, the injury will start interfering more with the actual doing, in addition to the experience of doing. The spine is almost always in use, it doesn’t get a day off. A person is constantly looking up or down, left or right, stooping, sitting or standing. Those torn up disks will continue to be under stress, day after day, year after year, which is part of your assessment, because your verdict is for all time.