November 26, 2024 • 51 mins
The jury in Dan Lipman’s civil case on behalf of a young sexual assault survivor awarded $2,020,000 in three categories of damages: economic, non-economic, and physical impairment. The last category was notable because few, if any, Colorado juries have awarded damages for physical impairment based on emotional trauma.
Now, one has.
“We can’t find another verdict where, in a civil case, a sexual assault victim proved physical impairment not from physical injury, like being beaten, but from the emotional aspect of it. And we think that this is a notable case that will help open the door to other survivors of sexual assault,” he explains to host Keith Fuicelli.
Tune in to hear Dan break down this strategy and other approaches in the Jefferson County case. For lawyers, Dan provides questions they should answer in screening sexual assault cases and, once they’re working with a client, tips for prioritizing empathy.
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Episode Snapshot
- Dan’s focus on sexual assault cases began with the case of a male swimming coach who was having sexual contact with a 16-year-old swimmer.
- The two questions Dan answers when he screens these types of cases.
- The complicated landscape of the statute of limitations for sex assault claims.
- Background of the Jefferson County case where Dan represented a girl who was sexually assaulted by her mother’s fiance.
- In asking for damages, Dan categorized his client’s emotional trauma as physical impairment, a technique that yielded a notable verdict.
- How Dan “ferociously” fought the defense argument that his client’s PTSD diagnosis was created by lawyers.
- If PTSD physically impairs the brain, why not get an MRI? “You want to be really careful to say that imaging can show these...
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
Welcome to the ColoradoTrial Lawyer Connection,
where Colorado trial lawyers shareinsights from their latest cases. Join me,
Keith Elli. As we uncoverthe stories, strategies,
and lessons from recent Colorado trialsto help you and your clients achieve
justice in the courtroom. Thepursuit of justice starts now.
(00:21):
Welcome back everyone.
My name is Keith Fuselli and I am veryexcited to host another episode of
the Colorado Trial LawyerConnection Podcast.
This episode is special reallyfor two reasons. First of all,
this is our 20th episode,
so that is an accomplishmentthat I'm honestly pretty proud of
(00:42):
because I'm the one that gets to talkto all these amazing lawyers and hear
these inspirationalcases and pick up tidbits
that honestly make me amuch better trial lawyer.
But this episode is also specialbecause I've got my very good friend,
Dan Lipman from the law firm ofParker and Lipman on to talk to us
(01:02):
about sex assault cases and a sexassault verdict that he recently
obtained in what I think is adifficult jurisdiction sometimes in
Jefferson County. So without further ado,Dan, thank you for coming on the show.
Well, thank you, Keith. Ireally appreciate you having me.
It's really an honor to be askedto come chat with you today,
(01:23):
and I know you and your partner, John Lee,
do amazing work and I appreciatebeing included on your show.
Honestly,
the honor is all because you're so humble,
but you have a nationalreputation of pursuing
these types of sex assault cases that Ibelieve started with cases against the
(01:46):
US Olympic team or committee.
Could you tell the listenersa little bit about that case?
Sure.
I first got involved in this workseveral years ago when I was approached
involving a case wherethe men's head swim coach
was having sexual contact orallegedly having sexual contact with
(02:08):
a world championship swimmer. And whathad happened in that particular case,
the first case I was involved with isthe head swim coach was removing the
16-year-old swim from thepremises every day at about six
30 in the morning and takingher to his Orange County,
California town home,
(02:28):
which he said where they like to havebreakfast together five days a week.
Apparently this was so concerning to theother swim coaches that the other swim
coaches, in fact,
people that he had coached with foryears and reported him to United States
swimming,
United States swimming was so wanting to
protect this coach because he's agood swim coach, not a good person,
(02:52):
but a good swim coach that theydid an investigation and found no
cause to remove him to do anything,
which was the most ridiculousinvestigation ever. In fact,
I'll skip through some of the details,
but I'll tell you that thelead investigator on that file within US swimming
was also at the same time sleepingwith the head men's swim coach.
(03:14):
So they kept this coach around and to no
surprise, the minorchild kept being abused.
She was convinced that when sheturned 18 they'd be married.
Of course that's not the case.
He was using her to satisfyhis own twisted sexual
desires, and there were severalcases spinning off this scenario.
(03:37):
One is that United States swimmingwent so far to try to fire
one of the coaches who did thereporting and turned him in,
which was a bad move.
So we helped handle that case inconjunction with another lawyer,
and then we represented theswimmer who was abused while
she was a minor in a caseagainst USA swimming.
(04:01):
So that's how we got started doing it,
and we've done several casesagainst us swimming since then.
We've done a big case,
several big cases representing sixdifferent plaintiffs against us.
TaeKwonDo done cases againsta variety of other entities
in the US Olympic Sports Movement.
All of those cases have helped teach ushow to go about doing these cases going
(04:24):
forward.
So forgive my ignorance,
I literally know next to nothingabout these types of cases,
how to pursue them,how to collect on them.
Is there no type of federalgovernmental immunity or are
you able to bring claimsdirectly against USA
Olympic swimming orwhatever the entity is?
(04:46):
Yeah, it's a good question is obviouslyyou got to look hard at who you're suing
because sometimes there are immunityissues when you're suing USA swimming or
an entity like that. They're called NGOs,
which are non-governmental organizations,
and they generally do not have immunity.They're a creation of Congress,
(05:06):
but don't enjoy the same immunityas other creations of Congress.
One of the issues is Congress createdthe United States Olympic Committee and
created some of these entitiesand provided no realistic oversight that they're
supposed to oversee themselves.
And that's an issue whenas time goes on profits
(05:27):
and sponsorships and TV time andall that becomes more and more
paramount.
That was well on display inour TaeKwonDo case where we
sued United States. TaeKwonDoin a nutshell in that case,
it was a sad story in my view of
propping up really good TaeKwonDocoaches who were good at getting medals
(05:51):
and good at getting moneyfor TaeKwonDo, no doubt,
and in our view that they werealso rapists. And there are
allegations that are outlinedin the complaint that we filed.
And throughout that lawsuitdemonstrate that the six really world
champion caliber athletes were madeto do certain sexual favors for these
(06:12):
people in order to stay onthe team. Just in brief,
TaeKwonDo is a martial art,
and so we know in almost any sportthat the coach has a certain level of
leadership, a certain position ofpower over the people in the program,
and that's even more paramountwhen two things occur.
(06:34):
So one,
when they start out as minor childrenthat disparity in power is even more
pronounced. And two,
when we're talking about at thislevel that this is not parents
driving their kids to practice.These athletes are so good,
and these athletes are so unique thatthey're moving away from home at a young
(06:54):
age to be involved in camps,
to be involved in tournaments. And theonly people they know their entire family
becomes the other TaeKwonDo people.
So if they're to report or to complain
about what happened to them,
they have no support structureoutside of this sport.
(07:15):
TaeKwonDo is even worse thanothers because it's a martial art.
You bow down to theperson that is the coach,
you revere them as more than acoach, you don't question them.
That is part of the martial art.And so when you have this situation,
it is ripe for abuse. And in that case,
(07:35):
there were no governmentalimmunity issues that they could
be sued on state law,
but they could also be sued onwhat's called A-T-V-P-A claim,
which is a federal statute,which is a sex trafficking claim.
And is.
That because they were going acrossstate lines or something to bring these
(07:56):
kids.
They're going over state lines for theirown economic benefit and transporting
the athletes over state.
Some of the things that happened onthe airplane going to, for example,
the Pan-American games were toogrotesque and explicit to explain on this
podcast,
but essentially quidpro quo sexual mandates,
(08:18):
if you don't do this, you'renot getting off the plane.
And so those were our allegations.
Those are all outlined in the complaintwas reported on by various news
entities.
So typically we don'trun into immunity issues
on the Olympic sport cases,
but in a lot of our othercases we definitely do.
(08:40):
And that becomes reallyan issue when you're suing
public entities like public schools,that can become a big problem.
There's charitable immunityissues in different jurisdictions.
There could be issues suing religiousorganizations and schools and churches.
They all have a variety ofdifferent immunities that they've enjoyed through the
(09:01):
years that my opinion they shouldn't,but that you have to look out for.
So it can get complex pretty fastdepending upon where the events happened.
And looking at the immunity stuff.
And it brings me to my next question,
which is how do you screen these cases?
What I'm imagining is we've gotlisteners that are Colorado trial
(09:23):
lawyers primarily, and somebodycalls up their office and says,
I was sexually assaulted.
What types of things are you looking atwhen you're deciding whether to embark
on such a civil case?
The two first things that we lookat is one, is there somebody to pay?
And if this is going to be a caseagainst an individual perpetrator,
(09:46):
do they reasonably have someassets to compensate the person?
Because it's a big lift to getsomebody through a sex assault
case. It can be re-traumatizing,and a lot of the time,
I'm tempted to say most of the time,
but a lot of the time they want to havethat experience because it's cathartic,
that it's therapeutic, that it givesthem some control over their abuser.
(10:11):
So I'm not suggesting that allvictims of abuse that this should
be avoided,
but certainly a topic of conversationabout are we going to go through this
process to get no money? Soone, is there somebody to pay?
Number two, what happened onthe criminal side of things?
Those are the two real paramount thingsthat if they never reported it to the
(10:33):
police, well why not?And there can be reasons that are valid,
but do they need to report it now becausethere's a lot of jury issues that come
up that this is importantenough to sue about,
but not important enoughto make a police report.
And so that's an issue.
And then if it were reportedto the police, what happened?
(10:55):
And so those are really thetwo paramount issues in that in
our third party cases.
And third party cases arewhere we're suing a school or
a camp, an athletic organization, alandlord. That's one we've seen a lot,
a landlord. We don't allege that thelandlord committed the sexual abuse.
(11:16):
We don't allege that the UnitedStates Olympic Committee,
the people on that committeecommitted the abuse.
What we allege is either premisesliability or negligence or another
tort that they knew or should have known,
but because usually of theirfinancial interests turned a blind eye
and didn't protect the peoplethat they had a duty to protect.
(11:39):
And so those are the two issues.And then the third issue, of course,
is no different than any other case. Thestatute of limitations is in Colorado.
We have a real bad problem with statuteof limitations that the legislature
fixed and then our Supreme Courtand their wisdom throughout.
Talk to us a little bit about that becauseI imagine we've got Colorado lawyers
(12:02):
listening.
Walk us through the landmine of thestatute of limitations as it applies to
Colorado sex assault claims.
Sure. So traditionallyagainst a perpetrator,
that's not a third party claim.
That means the person whodid it or allegedly did it,
you would have six years and for a minoryou'd have till their 18th birthday
(12:25):
plus six, so till their 24th birthday.That's the traditional setup.
And then the traditional setup againstthird party claims was two years
because it's either going to be apremises liability claim or it's going to
be a negligence claim, andthat would be two years.
So if it's a child that wouldexpire when they're 20 years old,
(12:47):
that's the traditional setup nationwide.
What was being seen and what isstill being seen is especially
children cannot alwaysappreciate their injuries or
need to sue. For example,
let's assume a coach is having
sexual contact with a minorchild when they're 16,
(13:11):
when they're 17, when they turn 18,
the statute will traditionallystart running when they're 20,
when the statute runs,
they may be still under the control ofthat person where they practically can't
speak up, where there'll be retribution,
where there'll be consequences if theyspeak up. So other states have gone on
and gotten rid of statute of limitationsfor minor children that were abused
(13:35):
years ago.
A lot of people we've heard froma lot were abused at camps private
for-profit camps when they were 10, 12,
11 back in the nineties,back in the late eighties.
And other states have recognizedthat it's not until you're an adult
that many people realize how harmfulthat is and reflect back and say,
(13:57):
oh my God, this did happen to me.
And I was given every tool by thepeople who did it to explain it
away, to rationalize it,to say it's all right.
And it's not until you're a parentyourself that you understand that this
happened to you and other states havefixed that and allowed those people to sue
Colorado fixed that and allowedthose people to sue too.
(14:20):
Creating a look back of many, many years,
I don't remember whatthe lookback period was,
but it was like 30 years or 25 yearsor something like that. And the Supreme
Court threw it out.
They said it was unconstitutionalthat essentially when
the statute of limitationsexpired on the rapist or the
people empowering the rapist,that that was a vested right.
(14:44):
That was a vested right that theyenjoyed in not having that claim pending
against them anymore. And thatunder our Colorado constitution,
it was their interpretation thatthe statute had to be invalidated.
So part of the statutesurvived and the part of the
statute that survived,
(15:04):
although is still under attackby the Chamber of Commerce,
by the churches,
I'll let you know that yourschool districts that you pay money for that you pay
property tax to it's underfull attack by all those.
They've hired private lawyers. They'relooking to get rid of these things,
which raises a real question asto whether you're okay with that,
that you're paying property tax forpublic schools to try to make them not
(15:28):
subject to lawsuits when they allowrapists to be teachers. But setting that
aside, the rule now isI believe it's a 2022,
if the statute of limitations had notexpired on a sex assault claim either
against the third party or againstthe perpetrator as of 2022,
and I don't know what date in 2022because I have to check every time,
(15:52):
then there is no statute oflimitations going forward.
And the idea behind that is thosepeople didn't have a vested right in
the statute of limitations having expiredagainst them because it hadn't expired
yet as of the time of thestatute. So right now,
this is a very long answerto a very simple question.
You asked what's the statute oflimitation is right now for cases that
(16:16):
happened many, many years ago,
those cases are probably goneand nothing can be done for
cases that happen in and around now,
there likely is no statute of limitationsmoving forward on sex assault claims.
Okay. Well,
what I like about that answer is Iunderstood it and feel like I have
(16:36):
information moving forward.
So let's talk about thetrial that you recently did
in Jefferson County. Give the listeners,
I guess what's the factual backdrop ofwhat happened? And if you don't mind,
what was the verdict and then we canget into some of the nitty gritty.
Sure.
The most recent case we tried was acouple of weeks ago in Jefferson County,
(17:00):
and we represented a child and her mom.
I'll call the child Morgan.
And Morgan's mom was divorced and
a single parent and had met a
man named Damien Kaya.
Damien Kaya was a realestate agent and real estate
(17:24):
investor.
They started dating and at some point they
became serious.
And after a period of years dating
Morgan's mom and Morganmoved in to Damien and
Kaya's house. Shortly thereafter,
(17:45):
Damien and Kaya proposedto be married to the mom,
and the relationship was suchthat he invited Morgan to be
present during the marriageproposal. She was happy,
thrilled to have him in the family,viewed him as somebody that she loved.
She had known him sinceshe was nine years old,
(18:06):
proposed to be marriedwhen she was 12 or 13.
So for a 9-year-old, that's likea long time, right? Unfortunately,
he proposed in May of 2021
and it didn't take him very long totake advantage of that situation.
How.
So? While living under the sameroof as Morgan and his mom,
(18:29):
Morgan and her mom werewatching a TV show together,
which was an issue in thecase, and mom falls asleep.
Mr. Kaya gets into bed. The three ofthem are in bed. She's 13 years old,
mom asleep, and hesexually assaults Morgan.
There was digital penetrationrepeatedly. He touched her breasts,
(18:52):
he touched her nipples,he touched her genitals.
She sort of pretended to be asleep. Shedidn't know what to do. She was shocked.
She then pretended to be asleep awhile longer after it had finished,
she went back into her ownroom, cried herself to sleep.
She told herself every reason in theworld why this wouldn't happen again.
(19:13):
She's 13 years old. She hopedit wouldn't happen again.
She didn't know why it had happened.About a month and a half later,
she and her mom again are inbed watching television. Mr. K
is not home. He's out with some friends.
He comes home lateagain, mom falls asleep.
(19:35):
Same thing happens again,except this time she testified.
She could see his phone,the flash on his phone,
presumably taking images of the abuse.
The next morning she gets up,it's a Saturday, she tells her,
mom, mom, we need to gofor a drive together alone.
(19:55):
Mom's concerned when your 13-year-oldtells you you need to go for a ride
together alone, you know there's aproblem. She couldn't make the words.
She couldn't make herself saythat Damien sexually assaulted me.
It is too much.
And she knew that the secondshe reported this because she's
13, but she's not stupid thatthe second she reported this,
(20:18):
she would have to tell herdad, she would be embarrassed.
The love of her mom's lifewould be out of their life,
that they would have to move, thatthey would have nowhere to live.
She may have to change schools. Allthese things she knew would happen.
The second this was reported, she handedher mom a piece of paper that said,
Damien sexually assaulted me. She handsit to her mom while they're driving.
(20:42):
Mom pulls over and is in absolutetears, feels absolutely devastated.
I just can't imagine. You andI both have kids the same age.
Hearing that from your daughter,
it's just unbelievablewhat happened after that.
They report to the police.Morgan gets counseling.
She works on a book with her
(21:06):
therapist.
She prepares this storybecause she's exercising
avoidance with her therapist that she has
depression. She's beencutting herself after this.
She's been burning herself after this,which for those of you who don't know,
those are actually not suicide attempts.
Those are acts of self-harm from traumathat she says that the blood from the
(21:31):
cutting represent her tears.
But she has difficulty in hertherapist's words with the issue of
avoidance because they're unableto make real strides in therapy
that she's resorting to the cutting,
the burning and otherdestructive behaviors.
So she works with hertherapist to write a story
(21:53):
about what happened toher, but it not being her.
So she writes a storyabout a princess and a hero
and a monster,
and she writes this amazingstory that she's the princess,
her mom's the hero,
and Damien is the monster.And this story will
(22:16):
bring you to tears,
how Morgan thought thatthe monster would go away.
Morgan thought that themonster could be tamed.
Morgan thought that the monsterwould stop being a monster,
but the monster only got worse.Over time by ignoring the monster,
the monster became more aggressive,and by ignoring the monster,
(22:38):
the monster wanted more and more.
And the monster then made it worse andat this point took pictures of her and
the only thing she could do to get outof the situation was to kill the monster
by telling the hero.
And she read this story inthe criminal court to the
judge during the sentencing,and I'll tell you,
(22:59):
he pled down way down to a
crime that was not sexual assault tothe child by a person of a position in
trust.
And I'll tell you that it's apparentthat she was completely ignored by the
judge and everybody there.
Well,
and let me jump in on that becauseI was a crimes against children
prosecutor in Jefferson County, andthere is the victim's rights Act.
(23:23):
Did the family not feel likethe prosecutors listened to
what they wanted to seehappen on that case,
or was it they were okay with the pleabargain because they didn't want to go
through a criminal trial type situation?
They weren't okay with the pleabargain, and they made that known.
And although they were given input,
(23:43):
all of their input was ignored andhe plead down to a nothing charge.
Apparently what Morgan had tosay was not heard and by the
judge, and so they hiredus to sue him after that.
And the perpetrator, Mr. Kaya,
took the position that it never happened.
(24:04):
Yeah. I was going to ask you,I don't mean to interrupt,
but as part of the criminal sentencing,
did he accept any responsibility or wasthis a complete denial? In other words,
there weren't any statements made bythe defendant that you could utilize in
your case, or is that incorrect?
There were several statements made bythe defendant that we could use in our
case, but nevertheless, theydid not admit liability.
(24:27):
They contested liabilityuntil the whole time.
And so we sued him on thebasis of outrageous conduct,
assault and battery. We did a weeklong trial. We put mom on the stand,
dad, the divorced dad,
who was heroic in having this happened
(24:48):
over something that he had no controlover to the person he loves most in his
world.
We called the therapist who wasincredible and some other lay
witnesses, but we called our client,
we put on the defendant in our case inchief, which did not go well for him.
And the jury came back with a
$2,020,000 verdict foundfor us on all claims,
(25:11):
on all three. I'll tell you that theydid a statutory offer before trial of
$45,000,
which they increased to $50,000.And then they kept sending us every
few weeks a new statutoryoffer for $50,000,
which I can't understanddoing that, but they did.
So the most they ever offered was50,000. They took the position,
(25:32):
the defense took the positionat trial as to award no money,
or in the alternative that her therapy,
I can't remember if theysaid they did a breakdown.
I think it might've been 12 or $18,000,
but that's what they wanted and that'swhat they thought they were going to get
too.
We had some jury questions that cameout that I didn't really view as
(25:54):
positive or negative for us,
but the defense clearly viewed as positivefor them given their reaction to it.
They thought they weregoing to win the trial.
So the jury came back after a five daytrial and our clients are very pleased.
Well,
what did you ask for in damagesand how do you go about formulating
a damage model on a sex assault case?
That's a really good question. Wetalked a lot about how we would do this,
(26:17):
and for those of you who know me,
my experience is largely in medicalmalpractice cases and proving damages.
In those cases, it'sa lot easier, frankly,
because you have a life care planand you usually have big medical
bills,
and so sometimes you have a milliondollars of past medical bills and those
aren't hard to prove.Those are easy to get in.
(26:38):
Then you have a life care plan of usuallycan be several millions of dollars
depending on the case, and you can getthose things through a life care planner,
use an economist for your wage loss.
So this is different and we'vehad to learn how to do this,
but the way we did it, in this case,we do it differently in everyone.
The way we did it in thiscase is in the cmo we put in
(26:59):
that we were going toclaim past meds by way of
pediatrician visits andantidepressants and therapy.
The problem is that adds up to nothing.I think it's like five or $7,000.
And we viewed that as asignificant anchor in the case.
And then we had an expert witness whois going to testify among other things,
(27:21):
a clinical psychologistthat she would need $45,000
of care in the future, which I didn'treally think was that persuasive.
It's just not enough money.
So we came up with a different planand the plan that we came up with was
to ask every therapist who testifiedhow much they charge their clients
(27:43):
and how much they'recharging to be at trial,
which is invariably more thanthey charge their clients.
So we did that and at the end of the case,
we knew that there were three categoriesof damages that we had to hit on
economic non-economic andphysical impairment. Now,
the physical impairment battle isthe biggest one in these cases.
(28:05):
That's what I was just thinkingis again, forgive my ignorance,
but how do you explain to a judgethat physical trauma from a sex
assault is impairment?
So that's why I think this case is notablebecause I don't think there are many
cases in Colorado where a jury has found
(28:27):
physical impairment as aresult of emotional trauma.
This is what we did, and this is ourplan from day one as to that category,
we had the treatingtherapist who was a rock star
and our retained forensic psychologist
endorsed to testify that theliterature shows that trauma
(28:49):
of this magnitude, and it's five things,
sexual assault that is severe,
that's penetration of hergenitals by a person of a position
of trust in her own homewhile she is a child.
That is repeated those fiveaggravating factors amount to
(29:09):
such sufficient trauma that itphysically impairs the brain.
And you can say it one of two ways,and they're probably both right,
that this magnitude of trauma physicallyimpairs the brain and changes the
way the brain works,
it changes the way the person nowreacts to trauma, reacts to stress,
reacts to depression, all those things.
(29:31):
And the data and thescience supports us on that.
Or you can explain it differentlythat this abuse causes
PTSD and PSD is a physicalimpairment of the brain.
That's what PTSD is. If you have PTSD,
you have physical impairment ofthe brain. They're both right.
Did you have an actual diagnosis ofpost-traumatic stress disorder by a
(29:55):
psychiatrist on your case?
Yes. Not by a psychiatrist,by a psychologist.
Now there was a huge dispute about that.
The defense position was this wascreated by the lawyers that nobody
diagnosed her with PTSD until wegot involved. That wasn't true.
What was true is in theweeks after the assault,
(30:17):
the treating therapistdiagnosed her with PTSD.
The issue there is that youdon't give psychotherapy clients,
especially minor child, their own file.
You don't give them records.
So they're saying there's nocontemporaneous notation or finding of
PTSD, which they're right,but under Colorado law,
(30:40):
there never will be because you onlyget a summary from under Colorado law.
You only get a summary from the therapist,
and that's usually when the lawyer asks.
So there was a big dispute aboutwhether she had PTSD or whether that's
something that we created as her lawyers.
And the reason that wasfought so ferociously on both sides is we knew we needed
(31:01):
the diagnosis of PTSD in order toprove physical impairment of the brain.
The jury ultimately agreed that therewas physical impairment of the brain and
put about almost half a milliondollars on physical impairment.
And we think that's really notablebecause we can't find another
verdict. There may be one,
but we can't find anotherverdict where in a civil case,
(31:24):
a sexual assault victimproved physical impairment not
from physical injury like being beaten,
but from the emotional aspect of it.
And we think that this is anotable case that will help
open the door to other survivorsof sexual assault where in
(31:44):
mediation or whatever, trying toget cases settled to say, well,
where are you talking about?
You're not going to be ableto prove physical impairment,
but we now have a verdictform finding that.
Walk me through that a littlebit more if you don't mind,
because I have not litigated that issue.
But I was aware that PTSD cancause changes in the brain
(32:04):
and that there's certainly an argumentfor physical impairment damages
arising from PTSD and usually I seemto see this in brain injury cases and
things along those lines.
So what kind of resistance from thedefense did you face and were these
retained experts you used to testifyabout that or were these treating
(32:25):
doctors or some combination of the two?
Sure.
So the way we had it setup before the trial is that
two treating therapists wouldcome testify that she in
fact has PTSD,
that they diagnosed herwith PTSD on their own,
that they diagnosed her with PTSDbefore I ever spoke with them,
(32:49):
that the reason that it wasn'tknown to the child or the family is
Colorado Law and Privacy and thatthey could have revealed to the
child that she has PTSD,
but what's the purpose thatshe had PTSD and that PTSD
is a physical impairment of the brain.
And they had books and literaturealong with their own training
(33:12):
that they were endorsed to testify to.
Alright, let me stop you real quick.
I want to give kind of a practice pointeron this issue because it seems like we
always end up with non retainedtreating physicians in which we
can say in the 26 a two disclosure whattheir opinions are and what they rely
upon. And then you have retainedexperts. So in my hearing,
(33:33):
you say you had non retained treatingmedical providers that were going to give
you PTSD,
and then you met with them and discussedvarious literature that supports that
that is a permanentimpairment of the brain.
And then in your disclosures you disclosedthat they would be talking about that
support. Did I get that right?
Alright. That's exactly right.You call them and say, listen,
(33:56):
I know you've been seeing Morgan,
would you be comfortablewriting a summary of your care?
I'll tell you what the lawsuit'sabout and this is what it's about.
We need to know what she'sbeen struggling with.
And they'll usually tell you on the phonewhat they intend to put in the summary
and we would typically raise. Do you feel,
is it your opinion that PTSDor the trauma that causes PTSD,
(34:20):
it's really a distinction without adifference causes a physical impairment of
the brain and every good well-trained
therapist is going to tellyou? Absolutely. That is our training. Absolutely.
That is what my experience is infollowing patients that is apparent
and that especially the peoplethat have been trained in more
(34:43):
recent years are morecomfortable with that concept.
People trained 30 years ago are lesscomfortable with that concept. And this is
not something that we ask them to do.
This is something that they wanted toinclude that they feel very strongly about
because in their field,in their experience,
this is not that controversialthat when somebody has such trauma
(35:07):
that causes major depressivedisorder or PTSD or both,
can you just choose not to be depressed?
Can you just choose notto have racing thoughts?
Can you just choose to not think aboutit? Can you choose not to cut yourself?
Can you choose not to harm yourself?
Can you choose not to have suicidalideation? The answer is no,
because everybody wouldchoose not to if they could,
(35:29):
that the brain is notprocessing information like it did before this trauma.
Can the Vietnam veteransthat went through a living,
hell just pretend like it didn't happen.
Can the people in Afghanistan thatsaw their friends get blown away? Just
pretend like it didn't happen.
Can people sexually assaulted bytheir stepfather just wish it away,
just ignore it. Like the book of Mormonsthat just wish the gay away, right?
(35:54):
That's not the reality.
They were very comfortable in doingtheir endorsement in that way.
And then on top of that, we useda retained expert who really,
who was like a researcher.
She really explained moreof the literature and the progression of literature
over time and how theyhave found these things.
And I don't think our treaters couldtell you that there's these areas of the
(36:17):
brain. It's the amygdala, which itis the hippocampus, which it is.
And they didn't really know thatto them, that's not that important.
But our retained expert could tell usthat those are the areas of the brain that
had been found to be impaired. Wedidn't call our retained expert.
She had some scheduling issues andwe decided not to accommodate those
scheduling issues to lengthen the trial.
(36:40):
So when we ran into some schedulingissues, we just thought, you know what?
We don't want the juryto come back on Monday.
And I'm not even sure the judgewould let them come back on Monday.
So we went without her.
And just for educationalpurposes, for our listeners,
did I hear that PTSD can actually,
is it a shrinking with a NeuroQuantanalysis that parts of the
(37:01):
brain,
they can actually visualizethe atrophy that occurs to
sections in the brain or anything aboutthat that you can help educate myself
and our listeners?
Yeah,
you have to be really careful becauseyou don't want to plead yourself into a
situation where they say, if this true,why didn't you get an MRI of the brain?
And then we just see, andbecause as we all know,
(37:25):
that all impairments of the braincan't be seen on imaging, imaging,
it's only as good as the camera thattakes the imaging, which is an MRI or ct.
If you could see allinjuries to the brain,
they would just put one onthe NFL sidelined and every time somebody got their
bell rung, just put 'em inthe machine and say yes or no.
But that's not the way. We'renot at that point in science yet.
(37:46):
So you want to be really carefulto say that imaging can show
these impacts. Imaging can showthese impacts in some people,
and it's not known which people showthese things or not. The problem is as a
practice pointer is if youget too much into that,
these problems can be seen onimaging. It begs the question,
(38:06):
did your client then have imaging?And the answer is going to be no.
And then if they did haveimaging, did it show any problems?
The answer is going to be probably not.The gold standard here is not imaging.
The gold standard here is function.
If you meet the DSMfive criteria for PTSD,
the type of which is very specificand almost universally followed,
(38:29):
if not universally,
certainly the standard of careto follow the DSM five criteria.
If you have that metric trauma,
then it is presumed that there's beena physical impairment of the brain.
That's why your body's acting that way.
So I would be very cautioustalking about the imaging.
You can certainly talk about thearticles that then reference the imaging,
(38:52):
but the person needs to be preppedto say, listen to some people.
It's been seen on imaging,
but imaging doesn't show everythingat this stage of science.
Maybe in 10 years it will, maybe in 30years it will, but right now it doesn't.
And I expect that most people that havePTSD, whether it's from Afghanistan,
whether it's from Vietnam,whether it's from sexual assault,
(39:13):
that they will probably have perfectlynormal MRIs or else you're going to plead
yourself into a real predicament.
I learned that lesson the hard way.
And I'm reminded of something I'vebeen listening to on other podcasts,
which is be careful what you setout to prove because we had a brain
injury case and we weretalking about DTIs and oh,
(39:34):
look at this DTI and lookat this brain imaging.
And the whole case became about that.
And when that expert didn't really standup so well and that piece kind of fell
apart,
I felt like our entire brain injury pieceof that case kind of fell apart where
we didn't really need it because wehad great before and after witnesses
contemporaneous complaintsand things along those lines.
(39:55):
So it's really landingon me strongly about be
careful what you take out to prove.
Sounds like you threaded thatneedle perfectly in your case.
I think to some extent trialsbecome about what you talk
about and that the more you talk aboutgetting a fight over the imaging,
the more the jury is going to thinkthat must be a dispositive issue if you
(40:17):
don't even bring it up.
The other side brought it up on crosswith our therapist and she disposed of it.
I thought she was brilliant. They said,
it's true that you don't have anyimaging showing this. And she said,
and I wouldn't expect there tobe that most people with PTSD one
never get imaging. And two,the imaging wouldn't show this.
It's a clinical diagnosis and I thinkyou use the DSM five in conjunction with
(40:41):
that, which has very specific criteria.
And this isn't somethingthat we just imagined.
This isn't a diagnosis of exclusion.
This isn't something thatwe just feel that you have.
You must meet each of these criteria andnot until you do that will we give the
diagnosis. And I think that wasvery persuasive to the jury.
Question for you is for peoplethat are listening to this,
(41:06):
and obviously these are extremelyrighteous cases to bring and
they're interested in tryingto get involved in these cases.
Number one,
do you have any sort of trial pointerson the best way to present these cases to
a jury? And then numbertwo, even bigger picture,
what do you tell some young lawyerwho's listening that thinks,
(41:27):
I would really love to pursue justicein the civil arena for victims of sex
assault cases?
Yeah, I think the trial pointers are, one,
talk to your client often abouttheir desire to go to trial. Do you.
Empower them?
Is that like make it, no. Ithink that may be empowering,
(41:48):
but they have to want to have a trial.
I think if their reactionis, I do not want this,
I cannot have this,
that you need to respectthat in a car crash case.
Not to diminish car crash casesbecause you have terrible injuries,
but a lot of people aren'twondering why this happened to them.
(42:08):
If you get rear-ended the ideathat this might be their fault.
The idea that they may have invited this,
the idea that they didn't see it coming,
all those issues aren't usuallyinvolved in a rear end car crash
case where they are ina sexual assault case,
almost everybody wonders why didthis happen? How did this happen?
(42:29):
Did I not see the signs? Howcould I have prevented this?
Am I somehow at fault for this?
Did I do something that invited this?And we as lawyers say,
that's not true. You shouldn'tfeel that way. They feel that way.
And so I would say talk toyour client often about whether
they feel a trial will behelpful to their mental health,
(42:52):
something that they want todo or something that they feel will cause them to
have a complete breakdown andtake that into consideration.
So that's a trial point.
The next trial pointerthat I have is that all
the jury attribution issuesthat we talk about. For example,
in our case,
(43:12):
Morgan had gone to 37 therapysessions and then had done
another seven with somebody else, thenI think another five with somebody else.
So they had done like 50therapy sessions for a kid,
for a kid between 13 and1650 therapy sessions.
It gained traction amongst some, not all.
(43:33):
Some of the jurors that there were gapsin treatment that the jury was saying,
here are the therapists said to do grouptherapy. You never did group therapy.
Who's going to do group therapy?
You're going to bring a 13-year-oldwith a group of other people and say,
talk about your stepfather sexuallyassaulting you. Of course not.
But it was recommended and becauseit was recommended they didn't do it.
(43:55):
One of the defense jurors reallyglommed onto that and said,
they're not doing the things thatthey should be doing to get better.
And you asked for the trial pointsthat I thought were important. One,
talk to your client about going to trial.
The next is even on issues thatyou don't think are serious,
like not getting treatment,
make sure you preempt those things ortalk about 'em in vo dire if you can.
(44:18):
I'm not saying not to take the case,
but the things that I thoughtweren't terribly persuasive,
at least one juror thought was persuasive.
And then the next question I think youhad is what are the points to a young
lawyer considering taking these cases?I think the biggest point I
have is that you probably needa man and woman on your team.
(44:40):
Number one, you don't know who they'regoing to connect with the best.
And we have a male and a femaleon every one of these cases.
Sometimes it's with me,they connect the most.
Sometimes it's with a womanthat they connect the most.
They should have that opportunity.And two, be trauma informed.
And what that means is if somebodycalls you with a sex assault
(45:00):
case, we usually say, not always,
but usually say, listen, this ishorrible. I'm going to tell you right now,
we are not going to go throughwhat happened with the assault.
We're not going to gothrough the assault today.
We're not going to talk about it.We're not going to talk about,
we're going to talk about other things.
We're going to talk about how you'redoing. We're going to talk about how work
(45:23):
is. We're going to talk aboutwhether these are criminal case.
We're going to talk about irrespectiveof what happened when it happened to make
sure we have the statute of limitationsdone. And you wouldn't believe that.
I would say eight times outof 10 they say, oh, thank God.
I called the lawyer and I was allprepared to talk about these things that I
really am so glad we don't haveto today and read the room too.
(45:47):
We met with somebody the otherday, which is a 16-year-old who,
the potential case they were molestedand their mom's sitting next to 'em.
You think they want to gothrough with that with you,
with their mom sittingnext to them. So don't ask,
do it another time or do it another way.
There may be a time when you have to ask,
but it's not the first meeting.It's not the first couple of meetings.
(46:09):
People don't tell secrets tostrangers and at that point you're a
stranger and don't putthem in that position.
For people that have really serious abuseor things that they're going to have
difficulty talking about.
We never ask and we just send them toa forensic psychologist and we let the
forensic psychologist whose entire jobit is to get this information and who is
(46:31):
a woman, get that information fromthem. We may have to follow up.
Let her get that information, not you,and certainly don't ask, by the way,
we've had other cases where there's beenalleged sexual assault and they come
with their boyfriend or their girlfriend.
You'll not get the truthas to what happened.
And I understand that you can't expectthem to tell the truth with their
(46:54):
boyfriend or girlfriendsitting right next to them.
There may be a lot of history there thatyou don't understand and people are not
living in a vacuum with a perfect lifeup until that moment that they get
sexually abused.
It's not worth asking in the presence ofothers because you're going to get some
version of the story that you're goingto take is true. That's not true.
(47:16):
Thank you so much for sharingyour wisdom with us and this
most righteous cause that youfind yourself engaging in.
If people want to get ahold of youwant to pick your about a case,
what's the best way forpeople to get ahold of you?
Call the firm at Parker Lipman
7 2 0 6 3 8 9 4 2 4 or my email
(47:40):
dan@parkerlipman.com.One of the things, Keith,
you asked how we described thedamages. I didn't want to ignore that.
We did ask for non-economicdamages in that case.
I just didn't want to leavethat hanging out there,
but given the caps we wanted tofunnel as much as we could into
physical impairment.
So you got almost a milliondollars in non-economic damages.
(48:04):
We got 1.2 in non economics,
which we think will work fine because wethink the judge is going to double the
cap if he doesn't double it here.When are you going to double it?
Right? And I guessoftentimes on these cases,
because a lot of the cases you'reinvolved in occurred some time ago,
we're talking significantpre-judgment interest on these cases.
Am I right about that?
(48:26):
Yeah. We should get a lot ofpre-judgment interest and plus costs.
The way we argue the damages.
I would encourage people to really thinkabout whether you're going to have an
economist or a life care planner.
I don't think it's going to come outin these cases like you think it is.
The way I argued it is I said, listen,
you heard that the therapistgets paid $150 an hour.
(48:46):
She gets paid $150 an hour to dealwith this problem that Morgan has.
You also heard from the judge instructedyou that Morgan's going to live another
60 whatever, 65 years,whatever it was. Now,
we all know that if thetherapy rate is $150 today,
it's not going to be that in 20, 30, 40years it's going to be a lot. But okay,
(49:07):
let's just take $150.
There will be some days thatMorgan deals with this all day
and all night.There will be some days,
maybe even weeks when shedoesn't deal with this at all.
There'll be some days whenshe deals with it a minute,
there'll be some days when she deals withit every minute, sometimes all night,
not during the day, sometimesall day, not during the night.
(49:28):
It's going to go like that for the restof her life. Every time she's depressed,
she's going to wonder,
am I depressed because I was sexuallyassaulted multiple times by my
stepdad? Is it normal to be depressed?
She now has to ask herself that questionevery time she's sad, upset, whatever.
So if it costs $150 to paysomebody else to deal with this
(49:48):
for one hour, don't tell herher time's worth any less.
If we just assume she has to deal withthis for one hour a day for the rest of
her life, that's $150 a day times 365
days times 60 years,
that's $3.3 million.And you don't get a bulk discount in
(50:09):
Colorado for sexual assaults becausethat's what she'd need if it happened one
time. So you have to doubleit. It happened twice.
Unless you want to tell this defendantthat it's okay to do this more than one
time, you got to double it.And I'll tell you, Keith,
that we were one juroraway from them doing so.
The one juror who thought it wasinfluential that she didn't go to as much
(50:32):
therapy was a real anchor in ourcase and a real problem for us.
This goes to what we've been learningover the last maybe three years or
whatever since Covid that to shootfor the stars and maybe you'll
get what you want if you do that.
Well, it's still a phenomenal result.
So one juror away from atruly extraordinary result.
(50:56):
But holy cow, amazing resultand justice for your client,
your client's mom, getdivorced from this man.
Actually, I said it was a stepfather.
They actually never went through withthe wedding once they found out about
this.
Alright, well, Dan, ithas been a true pleasure.
Thank you so much for taking time to speakwith us today and until the next one.
(51:18):
Thank you listeners for listening andwe'll see you next time on the Colorado
Trial Lawyer Connection podcast.Thanks, Dan. Thanks Keith.
Thank you for joining us.
We hope you've gained valuable insightsand inspiration from today's courtroom
warriors, and thank youfor being in the arena.
Make sure to subscribe and join us nexttime as we continue to dissect real
(51:38):
cases and learn fromColorado's top trial lawyers.
Our mission is to empowerour legal community,
helping us to become better trial lawyersto effectively represent our clients.
Keep your connection toColorado's best trial lawyers
alive@www.thectc.com.
Welcome to the ColoradoTrial Lawyer Connection,
where Colorado trial lawyers shareinsights from their latest cases. Join me,
Keith Elli. As we uncoverthe stories, strategies,
and lessons from recent Colorado trialsto help you and your clients achieve
justice in the courtroom. Thepursuit of justice starts now.
(00:21):
Welcome back everyone.
My name is Keith Fuselli and I am veryexcited to host another episode of
the Colorado Trial LawyerConnection Podcast.
This episode is special reallyfor two reasons. First of all,
this is our 20th episode,
so that is an accomplishmentthat I'm honestly pretty proud of
(00:42):
because I'm the one that gets to talkto all these amazing lawyers and hear
these inspirationalcases and pick up tidbits
that honestly make me amuch better trial lawyer.
But this episode is also specialbecause I've got my very good friend,
Dan Lipman from the law firm ofParker and Lipman on to talk to us
(01:02):
about sex assault cases and a sexassault verdict that he recently
obtained in what I think is adifficult jurisdiction sometimes in
Jefferson County. So without further ado,Dan, thank you for coming on the show.
Well, thank you, Keith. Ireally appreciate you having me.
It's really an honor to be askedto come chat with you today,
(01:23):
and I know you and your partner, John Lee,
do amazing work and I appreciatebeing included on your show.
Honestly,
the honor is all because you're so humble,
but you have a nationalreputation of pursuing
these types of sex assault cases that Ibelieve started with cases against the
(01:46):
US Olympic team or committee.
Could you tell the listenersa little bit about that case?
Sure.
I first got involved in this workseveral years ago when I was approached
involving a case wherethe men's head swim coach
was having sexual contact orallegedly having sexual contact with
(02:08):
a world championship swimmer. And whathad happened in that particular case,
the first case I was involved with isthe head swim coach was removing the
16-year-old swim from thepremises every day at about six
30 in the morning and takingher to his Orange County,
California town home,
(02:28):
which he said where they like to havebreakfast together five days a week.
Apparently this was so concerning to theother swim coaches that the other swim
coaches, in fact,
people that he had coached with foryears and reported him to United States
swimming,
United States swimming was so wanting to
protect this coach because he's agood swim coach, not a good person,
(02:52):
but a good swim coach that theydid an investigation and found no
cause to remove him to do anything,
which was the most ridiculousinvestigation ever. In fact,
I'll skip through some of the details,
but I'll tell you that thelead investigator on that file within US swimming
was also at the same time sleepingwith the head men's swim coach.
(03:14):
So they kept this coach around and to no
surprise, the minorchild kept being abused.
She was convinced that when sheturned 18 they'd be married.
Of course that's not the case.
He was using her to satisfyhis own twisted sexual
desires, and there were severalcases spinning off this scenario.
(03:37):
One is that United States swimmingwent so far to try to fire
one of the coaches who did thereporting and turned him in,
which was a bad move.
So we helped handle that case inconjunction with another lawyer,
and then we represented theswimmer who was abused while
she was a minor in a caseagainst USA swimming.
(04:01):
So that's how we got started doing it,
and we've done several casesagainst us swimming since then.
We've done a big case,
several big cases representing sixdifferent plaintiffs against us.
TaeKwonDo done cases againsta variety of other entities
in the US Olympic Sports Movement.
All of those cases have helped teach ushow to go about doing these cases going
(04:24):
forward.
So forgive my ignorance,
I literally know next to nothingabout these types of cases,
how to pursue them,how to collect on them.
Is there no type of federalgovernmental immunity or are
you able to bring claimsdirectly against USA
Olympic swimming orwhatever the entity is?
(04:46):
Yeah, it's a good question is obviouslyyou got to look hard at who you're suing
because sometimes there are immunityissues when you're suing USA swimming or
an entity like that. They're called NGOs,
which are non-governmental organizations,
and they generally do not have immunity.They're a creation of Congress,
(05:06):
but don't enjoy the same immunityas other creations of Congress.
One of the issues is Congress createdthe United States Olympic Committee and
created some of these entitiesand provided no realistic oversight that they're
supposed to oversee themselves.
And that's an issue whenas time goes on profits
(05:27):
and sponsorships and TV time andall that becomes more and more
paramount.
That was well on display inour TaeKwonDo case where we
sued United States. TaeKwonDoin a nutshell in that case,
it was a sad story in my view of
propping up really good TaeKwonDocoaches who were good at getting medals
(05:51):
and good at getting moneyfor TaeKwonDo, no doubt,
and in our view that they werealso rapists. And there are
allegations that are outlinedin the complaint that we filed.
And throughout that lawsuitdemonstrate that the six really world
champion caliber athletes were madeto do certain sexual favors for these
(06:12):
people in order to stay onthe team. Just in brief,
TaeKwonDo is a martial art,
and so we know in almost any sportthat the coach has a certain level of
leadership, a certain position ofpower over the people in the program,
and that's even more paramountwhen two things occur.
(06:34):
So one,
when they start out as minor childrenthat disparity in power is even more
pronounced. And two,
when we're talking about at thislevel that this is not parents
driving their kids to practice.These athletes are so good,
and these athletes are so unique thatthey're moving away from home at a young
(06:54):
age to be involved in camps,
to be involved in tournaments. And theonly people they know their entire family
becomes the other TaeKwonDo people.
So if they're to report or to complain
about what happened to them,
they have no support structureoutside of this sport.
(07:15):
TaeKwonDo is even worse thanothers because it's a martial art.
You bow down to theperson that is the coach,
you revere them as more than acoach, you don't question them.
That is part of the martial art.And so when you have this situation,
it is ripe for abuse. And in that case,
(07:35):
there were no governmentalimmunity issues that they could
be sued on state law,
but they could also be sued onwhat's called A-T-V-P-A claim,
which is a federal statute,which is a sex trafficking claim.
And is.
That because they were going acrossstate lines or something to bring these
(07:56):
kids.
They're going over state lines for theirown economic benefit and transporting
the athletes over state.
Some of the things that happened onthe airplane going to, for example,
the Pan-American games were toogrotesque and explicit to explain on this
podcast,
but essentially quidpro quo sexual mandates,
(08:18):
if you don't do this, you'renot getting off the plane.
And so those were our allegations.
Those are all outlined in the complaintwas reported on by various news
entities.
So typically we don'trun into immunity issues
on the Olympic sport cases,
but in a lot of our othercases we definitely do.
(08:40):
And that becomes reallyan issue when you're suing
public entities like public schools,that can become a big problem.
There's charitable immunityissues in different jurisdictions.
There could be issues suing religiousorganizations and schools and churches.
They all have a variety ofdifferent immunities that they've enjoyed through the
(09:01):
years that my opinion they shouldn't,but that you have to look out for.
So it can get complex pretty fastdepending upon where the events happened.
And looking at the immunity stuff.
And it brings me to my next question,
which is how do you screen these cases?
What I'm imagining is we've gotlisteners that are Colorado trial
(09:23):
lawyers primarily, and somebodycalls up their office and says,
I was sexually assaulted.
What types of things are you looking atwhen you're deciding whether to embark
on such a civil case?
The two first things that we lookat is one, is there somebody to pay?
And if this is going to be a caseagainst an individual perpetrator,
(09:46):
do they reasonably have someassets to compensate the person?
Because it's a big lift to getsomebody through a sex assault
case. It can be re-traumatizing,and a lot of the time,
I'm tempted to say most of the time,
but a lot of the time they want to havethat experience because it's cathartic,
that it's therapeutic, that it givesthem some control over their abuser.
(10:11):
So I'm not suggesting that allvictims of abuse that this should
be avoided,
but certainly a topic of conversationabout are we going to go through this
process to get no money? Soone, is there somebody to pay?
Number two, what happened onthe criminal side of things?
Those are the two real paramount thingsthat if they never reported it to the
(10:33):
police, well why not?And there can be reasons that are valid,
but do they need to report it now becausethere's a lot of jury issues that come
up that this is importantenough to sue about,
but not important enoughto make a police report.
And so that's an issue.
And then if it were reportedto the police, what happened?
(10:55):
And so those are really thetwo paramount issues in that in
our third party cases.
And third party cases arewhere we're suing a school or
a camp, an athletic organization, alandlord. That's one we've seen a lot,
a landlord. We don't allege that thelandlord committed the sexual abuse.
(11:16):
We don't allege that the UnitedStates Olympic Committee,
the people on that committeecommitted the abuse.
What we allege is either premisesliability or negligence or another
tort that they knew or should have known,
but because usually of theirfinancial interests turned a blind eye
and didn't protect the peoplethat they had a duty to protect.
(11:39):
And so those are the two issues.And then the third issue, of course,
is no different than any other case. Thestatute of limitations is in Colorado.
We have a real bad problem with statuteof limitations that the legislature
fixed and then our Supreme Courtand their wisdom throughout.
Talk to us a little bit about that becauseI imagine we've got Colorado lawyers
(12:02):
listening.
Walk us through the landmine of thestatute of limitations as it applies to
Colorado sex assault claims.
Sure. So traditionallyagainst a perpetrator,
that's not a third party claim.
That means the person whodid it or allegedly did it,
you would have six years and for a minoryou'd have till their 18th birthday
(12:25):
plus six, so till their 24th birthday.That's the traditional setup.
And then the traditional setup againstthird party claims was two years
because it's either going to be apremises liability claim or it's going to
be a negligence claim, andthat would be two years.
So if it's a child that wouldexpire when they're 20 years old,
(12:47):
that's the traditional setup nationwide.
What was being seen and what isstill being seen is especially
children cannot alwaysappreciate their injuries or
need to sue. For example,
let's assume a coach is having
sexual contact with a minorchild when they're 16,
(13:11):
when they're 17, when they turn 18,
the statute will traditionallystart running when they're 20,
when the statute runs,
they may be still under the control ofthat person where they practically can't
speak up, where there'll be retribution,
where there'll be consequences if theyspeak up. So other states have gone on
and gotten rid of statute of limitationsfor minor children that were abused
(13:35):
years ago.
A lot of people we've heard froma lot were abused at camps private
for-profit camps when they were 10, 12,
11 back in the nineties,back in the late eighties.
And other states have recognizedthat it's not until you're an adult
that many people realize how harmfulthat is and reflect back and say,
(13:57):
oh my God, this did happen to me.
And I was given every tool by thepeople who did it to explain it
away, to rationalize it,to say it's all right.
And it's not until you're a parentyourself that you understand that this
happened to you and other states havefixed that and allowed those people to sue
Colorado fixed that and allowedthose people to sue too.
(14:20):
Creating a look back of many, many years,
I don't remember whatthe lookback period was,
but it was like 30 years or 25 yearsor something like that. And the Supreme
Court threw it out.
They said it was unconstitutionalthat essentially when
the statute of limitationsexpired on the rapist or the
people empowering the rapist,that that was a vested right.
(14:44):
That was a vested right that theyenjoyed in not having that claim pending
against them anymore. And thatunder our Colorado constitution,
it was their interpretation thatthe statute had to be invalidated.
So part of the statutesurvived and the part of the
statute that survived,
(15:04):
although is still under attackby the Chamber of Commerce,
by the churches,
I'll let you know that yourschool districts that you pay money for that you pay
property tax to it's underfull attack by all those.
They've hired private lawyers. They'relooking to get rid of these things,
which raises a real question asto whether you're okay with that,
that you're paying property tax forpublic schools to try to make them not
(15:28):
subject to lawsuits when they allowrapists to be teachers. But setting that
aside, the rule now isI believe it's a 2022,
if the statute of limitations had notexpired on a sex assault claim either
against the third party or againstthe perpetrator as of 2022,
and I don't know what date in 2022because I have to check every time,
(15:52):
then there is no statute oflimitations going forward.
And the idea behind that is thosepeople didn't have a vested right in
the statute of limitations having expiredagainst them because it hadn't expired
yet as of the time of thestatute. So right now,
this is a very long answerto a very simple question.
You asked what's the statute oflimitation is right now for cases that
(16:16):
happened many, many years ago,
those cases are probably goneand nothing can be done for
cases that happen in and around now,
there likely is no statute of limitationsmoving forward on sex assault claims.
Okay. Well,
what I like about that answer is Iunderstood it and feel like I have
(16:36):
information moving forward.
So let's talk about thetrial that you recently did
in Jefferson County. Give the listeners,
I guess what's the factual backdrop ofwhat happened? And if you don't mind,
what was the verdict and then we canget into some of the nitty gritty.
Sure.
The most recent case we tried was acouple of weeks ago in Jefferson County,
(17:00):
and we represented a child and her mom.
I'll call the child Morgan.
And Morgan's mom was divorced and
a single parent and had met a
man named Damien Kaya.
Damien Kaya was a realestate agent and real estate
(17:24):
investor.
They started dating and at some point they
became serious.
And after a period of years dating
Morgan's mom and Morganmoved in to Damien and
Kaya's house. Shortly thereafter,
(17:45):
Damien and Kaya proposedto be married to the mom,
and the relationship was suchthat he invited Morgan to be
present during the marriageproposal. She was happy,
thrilled to have him in the family,viewed him as somebody that she loved.
She had known him sinceshe was nine years old,
(18:06):
proposed to be marriedwhen she was 12 or 13.
So for a 9-year-old, that's likea long time, right? Unfortunately,
he proposed in May of 2021
and it didn't take him very long totake advantage of that situation.
How.
So? While living under the sameroof as Morgan and his mom,
(18:29):
Morgan and her mom werewatching a TV show together,
which was an issue in thecase, and mom falls asleep.
Mr. Kaya gets into bed. The three ofthem are in bed. She's 13 years old,
mom asleep, and hesexually assaults Morgan.
There was digital penetrationrepeatedly. He touched her breasts,
(18:52):
he touched her nipples,he touched her genitals.
She sort of pretended to be asleep. Shedidn't know what to do. She was shocked.
She then pretended to be asleep awhile longer after it had finished,
she went back into her ownroom, cried herself to sleep.
She told herself every reason in theworld why this wouldn't happen again.
(19:13):
She's 13 years old. She hopedit wouldn't happen again.
She didn't know why it had happened.About a month and a half later,
she and her mom again are inbed watching television. Mr. K
is not home. He's out with some friends.
He comes home lateagain, mom falls asleep.
(19:35):
Same thing happens again,except this time she testified.
She could see his phone,the flash on his phone,
presumably taking images of the abuse.
The next morning she gets up,it's a Saturday, she tells her,
mom, mom, we need to gofor a drive together alone.
(19:55):
Mom's concerned when your 13-year-oldtells you you need to go for a ride
together alone, you know there's aproblem. She couldn't make the words.
She couldn't make herself saythat Damien sexually assaulted me.
It is too much.
And she knew that the secondshe reported this because she's
13, but she's not stupid thatthe second she reported this,
(20:18):
she would have to tell herdad, she would be embarrassed.
The love of her mom's lifewould be out of their life,
that they would have to move, thatthey would have nowhere to live.
She may have to change schools. Allthese things she knew would happen.
The second this was reported, she handedher mom a piece of paper that said,
Damien sexually assaulted me. She handsit to her mom while they're driving.
(20:42):
Mom pulls over and is in absolutetears, feels absolutely devastated.
I just can't imagine. You andI both have kids the same age.
Hearing that from your daughter,
it's just unbelievablewhat happened after that.
They report to the police.Morgan gets counseling.
She works on a book with her
(21:06):
therapist.
She prepares this storybecause she's exercising
avoidance with her therapist that she has
depression. She's beencutting herself after this.
She's been burning herself after this,which for those of you who don't know,
those are actually not suicide attempts.
Those are acts of self-harm from traumathat she says that the blood from the
(21:31):
cutting represent her tears.
But she has difficulty in hertherapist's words with the issue of
avoidance because they're unableto make real strides in therapy
that she's resorting to the cutting,
the burning and otherdestructive behaviors.
So she works with hertherapist to write a story
(21:53):
about what happened toher, but it not being her.
So she writes a storyabout a princess and a hero
and a monster,
and she writes this amazingstory that she's the princess,
her mom's the hero,
and Damien is the monster.And this story will
(22:16):
bring you to tears,
how Morgan thought thatthe monster would go away.
Morgan thought that themonster could be tamed.
Morgan thought that the monsterwould stop being a monster,
but the monster only got worse.Over time by ignoring the monster,
the monster became more aggressive,and by ignoring the monster,
(22:38):
the monster wanted more and more.
And the monster then made it worse andat this point took pictures of her and
the only thing she could do to get outof the situation was to kill the monster
by telling the hero.
And she read this story inthe criminal court to the
judge during the sentencing,and I'll tell you,
(22:59):
he pled down way down to a
crime that was not sexual assault tothe child by a person of a position in
trust.
And I'll tell you that it's apparentthat she was completely ignored by the
judge and everybody there.
Well,
and let me jump in on that becauseI was a crimes against children
prosecutor in Jefferson County, andthere is the victim's rights Act.
(23:23):
Did the family not feel likethe prosecutors listened to
what they wanted to seehappen on that case,
or was it they were okay with the pleabargain because they didn't want to go
through a criminal trial type situation?
They weren't okay with the pleabargain, and they made that known.
And although they were given input,
(23:43):
all of their input was ignored andhe plead down to a nothing charge.
Apparently what Morgan had tosay was not heard and by the
judge, and so they hiredus to sue him after that.
And the perpetrator, Mr. Kaya,
took the position that it never happened.
(24:04):
Yeah. I was going to ask you,I don't mean to interrupt,
but as part of the criminal sentencing,
did he accept any responsibility or wasthis a complete denial? In other words,
there weren't any statements made bythe defendant that you could utilize in
your case, or is that incorrect?
There were several statements made bythe defendant that we could use in our
case, but nevertheless, theydid not admit liability.
(24:27):
They contested liabilityuntil the whole time.
And so we sued him on thebasis of outrageous conduct,
assault and battery. We did a weeklong trial. We put mom on the stand,
dad, the divorced dad,
who was heroic in having this happened
(24:48):
over something that he had no controlover to the person he loves most in his
world.
We called the therapist who wasincredible and some other lay
witnesses, but we called our client,
we put on the defendant in our case inchief, which did not go well for him.
And the jury came back with a
$2,020,000 verdict foundfor us on all claims,
(25:11):
on all three. I'll tell you that theydid a statutory offer before trial of
$45,000,
which they increased to $50,000.And then they kept sending us every
few weeks a new statutoryoffer for $50,000,
which I can't understanddoing that, but they did.
So the most they ever offered was50,000. They took the position,
(25:32):
the defense took the positionat trial as to award no money,
or in the alternative that her therapy,
I can't remember if theysaid they did a breakdown.
I think it might've been 12 or $18,000,
but that's what they wanted and that'swhat they thought they were going to get
too.
We had some jury questions that cameout that I didn't really view as
(25:54):
positive or negative for us,
but the defense clearly viewed as positivefor them given their reaction to it.
They thought they weregoing to win the trial.
So the jury came back after a five daytrial and our clients are very pleased.
Well,
what did you ask for in damagesand how do you go about formulating
a damage model on a sex assault case?
That's a really good question. Wetalked a lot about how we would do this,
(26:17):
and for those of you who know me,
my experience is largely in medicalmalpractice cases and proving damages.
In those cases, it'sa lot easier, frankly,
because you have a life care planand you usually have big medical
bills,
and so sometimes you have a milliondollars of past medical bills and those
aren't hard to prove.Those are easy to get in.
(26:38):
Then you have a life care plan of usuallycan be several millions of dollars
depending on the case, and you can getthose things through a life care planner,
use an economist for your wage loss.
So this is different and we'vehad to learn how to do this,
but the way we did it, in this case,we do it differently in everyone.
The way we did it in thiscase is in the cmo we put in
(26:59):
that we were going toclaim past meds by way of
pediatrician visits andantidepressants and therapy.
The problem is that adds up to nothing.I think it's like five or $7,000.
And we viewed that as asignificant anchor in the case.
And then we had an expert witness whois going to testify among other things,
(27:21):
a clinical psychologistthat she would need $45,000
of care in the future, which I didn'treally think was that persuasive.
It's just not enough money.
So we came up with a different planand the plan that we came up with was
to ask every therapist who testifiedhow much they charge their clients
(27:43):
and how much they'recharging to be at trial,
which is invariably more thanthey charge their clients.
So we did that and at the end of the case,
we knew that there were three categoriesof damages that we had to hit on
economic non-economic andphysical impairment. Now,
the physical impairment battle isthe biggest one in these cases.
(28:05):
That's what I was just thinkingis again, forgive my ignorance,
but how do you explain to a judgethat physical trauma from a sex
assault is impairment?
So that's why I think this case is notablebecause I don't think there are many
cases in Colorado where a jury has found
(28:27):
physical impairment as aresult of emotional trauma.
This is what we did, and this is ourplan from day one as to that category,
we had the treatingtherapist who was a rock star
and our retained forensic psychologist
endorsed to testify that theliterature shows that trauma
(28:49):
of this magnitude, and it's five things,
sexual assault that is severe,
that's penetration of hergenitals by a person of a position
of trust in her own homewhile she is a child.
That is repeated those fiveaggravating factors amount to
(29:09):
such sufficient trauma that itphysically impairs the brain.
And you can say it one of two ways,and they're probably both right,
that this magnitude of trauma physicallyimpairs the brain and changes the
way the brain works,
it changes the way the person nowreacts to trauma, reacts to stress,
reacts to depression, all those things.
(29:31):
And the data and thescience supports us on that.
Or you can explain it differentlythat this abuse causes
PTSD and PSD is a physicalimpairment of the brain.
That's what PTSD is. If you have PTSD,
you have physical impairment ofthe brain. They're both right.
Did you have an actual diagnosis ofpost-traumatic stress disorder by a
(29:55):
psychiatrist on your case?
Yes. Not by a psychiatrist,by a psychologist.
Now there was a huge dispute about that.
The defense position was this wascreated by the lawyers that nobody
diagnosed her with PTSD until wegot involved. That wasn't true.
What was true is in theweeks after the assault,
(30:17):
the treating therapistdiagnosed her with PTSD.
The issue there is that youdon't give psychotherapy clients,
especially minor child, their own file.
You don't give them records.
So they're saying there's nocontemporaneous notation or finding of
PTSD, which they're right,but under Colorado law,
(30:40):
there never will be because you onlyget a summary from under Colorado law.
You only get a summary from the therapist,
and that's usually when the lawyer asks.
So there was a big dispute aboutwhether she had PTSD or whether that's
something that we created as her lawyers.
And the reason that wasfought so ferociously on both sides is we knew we needed
(31:01):
the diagnosis of PTSD in order toprove physical impairment of the brain.
The jury ultimately agreed that therewas physical impairment of the brain and
put about almost half a milliondollars on physical impairment.
And we think that's really notablebecause we can't find another
verdict. There may be one,
but we can't find anotherverdict where in a civil case,
(31:24):
a sexual assault victimproved physical impairment not
from physical injury like being beaten,
but from the emotional aspect of it.
And we think that this is anotable case that will help
open the door to other survivorsof sexual assault where in
(31:44):
mediation or whatever, trying toget cases settled to say, well,
where are you talking about?
You're not going to be ableto prove physical impairment,
but we now have a verdictform finding that.
Walk me through that a littlebit more if you don't mind,
because I have not litigated that issue.
But I was aware that PTSD cancause changes in the brain
(32:04):
and that there's certainly an argumentfor physical impairment damages
arising from PTSD and usually I seemto see this in brain injury cases and
things along those lines.
So what kind of resistance from thedefense did you face and were these
retained experts you used to testifyabout that or were these treating
(32:25):
doctors or some combination of the two?
Sure.
So the way we had it setup before the trial is that
two treating therapists wouldcome testify that she in
fact has PTSD,
that they diagnosed herwith PTSD on their own,
that they diagnosed her with PTSDbefore I ever spoke with them,
(32:49):
that the reason that it wasn'tknown to the child or the family is
Colorado Law and Privacy and thatthey could have revealed to the
child that she has PTSD,
but what's the purpose thatshe had PTSD and that PTSD
is a physical impairment of the brain.
And they had books and literaturealong with their own training
(33:12):
that they were endorsed to testify to.
Alright, let me stop you real quick.
I want to give kind of a practice pointeron this issue because it seems like we
always end up with non retainedtreating physicians in which we
can say in the 26 a two disclosure whattheir opinions are and what they rely
upon. And then you have retainedexperts. So in my hearing,
(33:33):
you say you had non retained treatingmedical providers that were going to give
you PTSD,
and then you met with them and discussedvarious literature that supports that
that is a permanentimpairment of the brain.
And then in your disclosures you disclosedthat they would be talking about that
support. Did I get that right?
Alright. That's exactly right.You call them and say, listen,
(33:56):
I know you've been seeing Morgan,
would you be comfortablewriting a summary of your care?
I'll tell you what the lawsuit'sabout and this is what it's about.
We need to know what she'sbeen struggling with.
And they'll usually tell you on the phonewhat they intend to put in the summary
and we would typically raise. Do you feel,
is it your opinion that PTSDor the trauma that causes PTSD,
(34:20):
it's really a distinction without adifference causes a physical impairment of
the brain and every good well-trained
therapist is going to tellyou? Absolutely. That is our training. Absolutely.
That is what my experience is infollowing patients that is apparent
and that especially the peoplethat have been trained in more
(34:43):
recent years are morecomfortable with that concept.
People trained 30 years ago are lesscomfortable with that concept. And this is
not something that we ask them to do.
This is something that they wanted toinclude that they feel very strongly about
because in their field,in their experience,
this is not that controversialthat when somebody has such trauma
(35:07):
that causes major depressivedisorder or PTSD or both,
can you just choose not to be depressed?
Can you just choose notto have racing thoughts?
Can you just choose to not think aboutit? Can you choose not to cut yourself?
Can you choose not to harm yourself?
Can you choose not to have suicidalideation? The answer is no,
because everybody wouldchoose not to if they could,
(35:29):
that the brain is notprocessing information like it did before this trauma.
Can the Vietnam veteransthat went through a living,
hell just pretend like it didn't happen.
Can the people in Afghanistan thatsaw their friends get blown away? Just
pretend like it didn't happen.
Can people sexually assaulted bytheir stepfather just wish it away,
just ignore it. Like the book of Mormonsthat just wish the gay away, right?
(35:54):
That's not the reality.
They were very comfortable in doingtheir endorsement in that way.
And then on top of that, we useda retained expert who really,
who was like a researcher.
She really explained moreof the literature and the progression of literature
over time and how theyhave found these things.
And I don't think our treaters couldtell you that there's these areas of the
(36:17):
brain. It's the amygdala, which itis the hippocampus, which it is.
And they didn't really know thatto them, that's not that important.
But our retained expert could tell usthat those are the areas of the brain that
had been found to be impaired. Wedidn't call our retained expert.
She had some scheduling issues andwe decided not to accommodate those
scheduling issues to lengthen the trial.
(36:40):
So when we ran into some schedulingissues, we just thought, you know what?
We don't want the juryto come back on Monday.
And I'm not even sure the judgewould let them come back on Monday.
So we went without her.
And just for educationalpurposes, for our listeners,
did I hear that PTSD can actually,
is it a shrinking with a NeuroQuantanalysis that parts of the
(37:01):
brain,
they can actually visualizethe atrophy that occurs to
sections in the brain or anything aboutthat that you can help educate myself
and our listeners?
Yeah,
you have to be really careful becauseyou don't want to plead yourself into a
situation where they say, if this true,why didn't you get an MRI of the brain?
And then we just see, andbecause as we all know,
(37:25):
that all impairments of the braincan't be seen on imaging, imaging,
it's only as good as the camera thattakes the imaging, which is an MRI or ct.
If you could see allinjuries to the brain,
they would just put one onthe NFL sidelined and every time somebody got their
bell rung, just put 'em inthe machine and say yes or no.
But that's not the way. We'renot at that point in science yet.
(37:46):
So you want to be really carefulto say that imaging can show
these impacts. Imaging can showthese impacts in some people,
and it's not known which people showthese things or not. The problem is as a
practice pointer is if youget too much into that,
these problems can be seen onimaging. It begs the question,
(38:06):
did your client then have imaging?And the answer is going to be no.
And then if they did haveimaging, did it show any problems?
The answer is going to be probably not.The gold standard here is not imaging.
The gold standard here is function.
If you meet the DSMfive criteria for PTSD,
the type of which is very specificand almost universally followed,
(38:29):
if not universally,
certainly the standard of careto follow the DSM five criteria.
If you have that metric trauma,
then it is presumed that there's beena physical impairment of the brain.
That's why your body's acting that way.
So I would be very cautioustalking about the imaging.
You can certainly talk about thearticles that then reference the imaging,
(38:52):
but the person needs to be preppedto say, listen to some people.
It's been seen on imaging,
but imaging doesn't show everythingat this stage of science.
Maybe in 10 years it will, maybe in 30years it will, but right now it doesn't.
And I expect that most people that havePTSD, whether it's from Afghanistan,
whether it's from Vietnam,whether it's from sexual assault,
(39:13):
that they will probably have perfectlynormal MRIs or else you're going to plead
yourself into a real predicament.
I learned that lesson the hard way.
And I'm reminded of something I'vebeen listening to on other podcasts,
which is be careful what you setout to prove because we had a brain
injury case and we weretalking about DTIs and oh,
(39:34):
look at this DTI and lookat this brain imaging.
And the whole case became about that.
And when that expert didn't really standup so well and that piece kind of fell
apart,
I felt like our entire brain injury pieceof that case kind of fell apart where
we didn't really need it because wehad great before and after witnesses
contemporaneous complaintsand things along those lines.
(39:55):
So it's really landingon me strongly about be
careful what you take out to prove.
Sounds like you threaded thatneedle perfectly in your case.
I think to some extent trialsbecome about what you talk
about and that the more you talk aboutgetting a fight over the imaging,
the more the jury is going to thinkthat must be a dispositive issue if you
(40:17):
don't even bring it up.
The other side brought it up on crosswith our therapist and she disposed of it.
I thought she was brilliant. They said,
it's true that you don't have anyimaging showing this. And she said,
and I wouldn't expect there tobe that most people with PTSD one
never get imaging. And two,the imaging wouldn't show this.
It's a clinical diagnosis and I thinkyou use the DSM five in conjunction with
(40:41):
that, which has very specific criteria.
And this isn't somethingthat we just imagined.
This isn't a diagnosis of exclusion.
This isn't something thatwe just feel that you have.
You must meet each of these criteria andnot until you do that will we give the
diagnosis. And I think that wasvery persuasive to the jury.
Question for you is for peoplethat are listening to this,
(41:06):
and obviously these are extremelyrighteous cases to bring and
they're interested in tryingto get involved in these cases.
Number one,
do you have any sort of trial pointerson the best way to present these cases to
a jury? And then numbertwo, even bigger picture,
what do you tell some young lawyerwho's listening that thinks,
(41:27):
I would really love to pursue justicein the civil arena for victims of sex
assault cases?
Yeah, I think the trial pointers are, one,
talk to your client often abouttheir desire to go to trial. Do you.
Empower them?
Is that like make it, no. Ithink that may be empowering,
(41:48):
but they have to want to have a trial.
I think if their reactionis, I do not want this,
I cannot have this,
that you need to respectthat in a car crash case.
Not to diminish car crash casesbecause you have terrible injuries,
but a lot of people aren'twondering why this happened to them.
(42:08):
If you get rear-ended the ideathat this might be their fault.
The idea that they may have invited this,
the idea that they didn't see it coming,
all those issues aren't usuallyinvolved in a rear end car crash
case where they are ina sexual assault case,
almost everybody wonders why didthis happen? How did this happen?
(42:29):
Did I not see the signs? Howcould I have prevented this?
Am I somehow at fault for this?
Did I do something that invited this?And we as lawyers say,
that's not true. You shouldn'tfeel that way. They feel that way.
And so I would say talk toyour client often about whether
they feel a trial will behelpful to their mental health,
(42:52):
something that they want todo or something that they feel will cause them to
have a complete breakdown andtake that into consideration.
So that's a trial point.
The next trial pointerthat I have is that all
the jury attribution issuesthat we talk about. For example,
in our case,
(43:12):
Morgan had gone to 37 therapysessions and then had done
another seven with somebody else, thenI think another five with somebody else.
So they had done like 50therapy sessions for a kid,
for a kid between 13 and1650 therapy sessions.
It gained traction amongst some, not all.
(43:33):
Some of the jurors that there were gapsin treatment that the jury was saying,
here are the therapists said to do grouptherapy. You never did group therapy.
Who's going to do group therapy?
You're going to bring a 13-year-oldwith a group of other people and say,
talk about your stepfather sexuallyassaulting you. Of course not.
But it was recommended and becauseit was recommended they didn't do it.
(43:55):
One of the defense jurors reallyglommed onto that and said,
they're not doing the things thatthey should be doing to get better.
And you asked for the trial pointsthat I thought were important. One,
talk to your client about going to trial.
The next is even on issues thatyou don't think are serious,
like not getting treatment,
make sure you preempt those things ortalk about 'em in vo dire if you can.
(44:18):
I'm not saying not to take the case,
but the things that I thoughtweren't terribly persuasive,
at least one juror thought was persuasive.
And then the next question I think youhad is what are the points to a young
lawyer considering taking these cases?I think the biggest point I
have is that you probably needa man and woman on your team.
(44:40):
Number one, you don't know who they'regoing to connect with the best.
And we have a male and a femaleon every one of these cases.
Sometimes it's with me,they connect the most.
Sometimes it's with a womanthat they connect the most.
They should have that opportunity.And two, be trauma informed.
And what that means is if somebodycalls you with a sex assault
(45:00):
case, we usually say, not always,
but usually say, listen, this ishorrible. I'm going to tell you right now,
we are not going to go throughwhat happened with the assault.
We're not going to gothrough the assault today.
We're not going to talk about it.We're not going to talk about,
we're going to talk about other things.
We're going to talk about how you'redoing. We're going to talk about how work
(45:23):
is. We're going to talk aboutwhether these are criminal case.
We're going to talk about irrespectiveof what happened when it happened to make
sure we have the statute of limitationsdone. And you wouldn't believe that.
I would say eight times outof 10 they say, oh, thank God.
I called the lawyer and I was allprepared to talk about these things that I
really am so glad we don't haveto today and read the room too.
(45:47):
We met with somebody the otherday, which is a 16-year-old who,
the potential case they were molestedand their mom's sitting next to 'em.
You think they want to gothrough with that with you,
with their mom sittingnext to them. So don't ask,
do it another time or do it another way.
There may be a time when you have to ask,
but it's not the first meeting.It's not the first couple of meetings.
(46:09):
People don't tell secrets tostrangers and at that point you're a
stranger and don't putthem in that position.
For people that have really serious abuseor things that they're going to have
difficulty talking about.
We never ask and we just send them toa forensic psychologist and we let the
forensic psychologist whose entire jobit is to get this information and who is
(46:31):
a woman, get that information fromthem. We may have to follow up.
Let her get that information, not you,and certainly don't ask, by the way,
we've had other cases where there's beenalleged sexual assault and they come
with their boyfriend or their girlfriend.
You'll not get the truthas to what happened.
And I understand that you can't expectthem to tell the truth with their
(46:54):
boyfriend or girlfriendsitting right next to them.
There may be a lot of history there thatyou don't understand and people are not
living in a vacuum with a perfect lifeup until that moment that they get
sexually abused.
It's not worth asking in the presence ofothers because you're going to get some
version of the story that you're goingto take is true. That's not true.
(47:16):
Thank you so much for sharingyour wisdom with us and this
most righteous cause that youfind yourself engaging in.
If people want to get ahold of youwant to pick your about a case,
what's the best way forpeople to get ahold of you?
Call the firm at Parker Lipman
7 2 0 6 3 8 9 4 2 4 or my email
(47:40):
dan@parkerlipman.com.One of the things, Keith,
you asked how we described thedamages. I didn't want to ignore that.
We did ask for non-economicdamages in that case.
I just didn't want to leavethat hanging out there,
but given the caps we wanted tofunnel as much as we could into
physical impairment.
So you got almost a milliondollars in non-economic damages.
(48:04):
We got 1.2 in non economics,
which we think will work fine because wethink the judge is going to double the
cap if he doesn't double it here.When are you going to double it?
Right? And I guessoftentimes on these cases,
because a lot of the cases you'reinvolved in occurred some time ago,
we're talking significantpre-judgment interest on these cases.
Am I right about that?
(48:26):
Yeah. We should get a lot ofpre-judgment interest and plus costs.
The way we argue the damages.
I would encourage people to really thinkabout whether you're going to have an
economist or a life care planner.
I don't think it's going to come outin these cases like you think it is.
The way I argued it is I said, listen,
you heard that the therapistgets paid $150 an hour.
(48:46):
She gets paid $150 an hour to dealwith this problem that Morgan has.
You also heard from the judge instructedyou that Morgan's going to live another
60 whatever, 65 years,whatever it was. Now,
we all know that if thetherapy rate is $150 today,
it's not going to be that in 20, 30, 40years it's going to be a lot. But okay,
(49:07):
let's just take $150.
There will be some days thatMorgan deals with this all day
and all night.There will be some days,
maybe even weeks when shedoesn't deal with this at all.
There'll be some days whenshe deals with it a minute,
there'll be some days when she deals withit every minute, sometimes all night,
not during the day, sometimesall day, not during the night.
(49:28):
It's going to go like that for the restof her life. Every time she's depressed,
she's going to wonder,
am I depressed because I was sexuallyassaulted multiple times by my
stepdad? Is it normal to be depressed?
She now has to ask herself that questionevery time she's sad, upset, whatever.
So if it costs $150 to paysomebody else to deal with this
(49:48):
for one hour, don't tell herher time's worth any less.
If we just assume she has to deal withthis for one hour a day for the rest of
her life, that's $150 a day times 365
days times 60 years,
that's $3.3 million.And you don't get a bulk discount in
(50:09):
Colorado for sexual assaults becausethat's what she'd need if it happened one
time. So you have to doubleit. It happened twice.
Unless you want to tell this defendantthat it's okay to do this more than one
time, you got to double it.And I'll tell you, Keith,
that we were one juroraway from them doing so.
The one juror who thought it wasinfluential that she didn't go to as much
(50:32):
therapy was a real anchor in ourcase and a real problem for us.
This goes to what we've been learningover the last maybe three years or
whatever since Covid that to shootfor the stars and maybe you'll
get what you want if you do that.
Well, it's still a phenomenal result.
So one juror away from atruly extraordinary result.
(50:56):
But holy cow, amazing resultand justice for your client,
your client's mom, getdivorced from this man.
Actually, I said it was a stepfather.
They actually never went through withthe wedding once they found out about
this.
Alright, well, Dan, ithas been a true pleasure.
Thank you so much for taking time to speakwith us today and until the next one.
(51:18):
Thank you listeners for listening andwe'll see you next time on the Colorado
Trial Lawyer Connection podcast.Thanks, Dan. Thanks Keith.
Thank you for joining us.
We hope you've gained valuable insightsand inspiration from today's courtroom
warriors, and thank youfor being in the arena.
Make sure to subscribe and join us nexttime as we continue to dissect real
(51:38):
cases and learn fromColorado's top trial lawyers.
Our mission is to empowerour legal community,
helping us to become better trial lawyersto effectively represent our clients.
Keep your connection toColorado's best trial lawyers
alive@www.thectc.com.
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