Dan Lipman - $2M Verdict Redefines Physical Impairment in Sexual Assault Cases
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 impacts. Imaging can show these impacts in some people, and it’s not known which people show these things or not,” Dan explains.
- Dan’s pointers for lawyers taking on sexual assault cases: First, make sure the client wants to go to trial.
The information contained in this podcast is not intended to be taken as legal advice. The information provided by Fuicelli & Lee is intended to provide general information regarding comprehensive injury and accident attorney services for clients in the state of Colorado.
Transcript
Welcome to the Colorado
Trial Lawyer Connection,
Speaker:where Colorado trial lawyers share
insights from their latest cases. Join me,
Speaker:Keith Elli. As we uncover
the stories, strategies,
Speaker:and lessons from recent Colorado trials
to help you and your clients achieve
Speaker:justice in the courtroom. The
pursuit of justice starts now.
Speaker:Welcome back everyone.
Speaker:My name is Keith Fuselli and I am very
excited to host another episode of
Speaker:the Colorado Trial Lawyer
Connection Podcast.
Speaker:This episode is special really
for two reasons. First of all,
Speaker:this is our 20th episode,
Speaker:so that is an accomplishment
that I'm honestly pretty proud of
Speaker:because I'm the one that gets to talk
to all these amazing lawyers and hear
Speaker:these inspirational
cases and pick up tidbits
Speaker:that honestly make me a
much better trial lawyer.
Speaker:But this episode is also special
because I've got my very good friend,
Speaker:Dan Lipman from the law firm of
Parker and Lipman on to talk to us
Speaker:about sex assault cases and a sex
assault verdict that he recently
Speaker:obtained in what I think is a
difficult jurisdiction sometimes in
Speaker:Jefferson County. So without further ado,
Dan, thank you for coming on the show.
Speaker:Well, thank you, Keith. I
really appreciate you having me.
Speaker:It's really an honor to be asked
to come chat with you today,
Speaker:and I know you and your partner, John Lee,
Speaker:do amazing work and I appreciate
being included on your show.
Speaker:Honestly,
Speaker:the honor is all because you're so humble,
Speaker:but you have a national
reputation of pursuing
Speaker:these types of sex assault cases that I
believe started with cases against the
Speaker:US Olympic team or committee.
Speaker:Could you tell the listeners
a little bit about that case?
Speaker:Sure.
Speaker:I first got involved in this work
several years ago when I was approached
Speaker:involving a case where
the men's head swim coach
Speaker:was having sexual contact or
allegedly having sexual contact with
Speaker:a world championship swimmer. And what
had happened in that particular case,
Speaker:the first case I was involved with is
the head swim coach was removing the
Speaker:16-year-old swim from the
premises every day at about six
Speaker:30 in the morning and taking
her to his Orange County,
Speaker:California town home,
Speaker:which he said where they like to have
breakfast together five days a week.
Speaker:Apparently this was so concerning to the
other swim coaches that the other swim
Speaker:coaches, in fact,
Speaker:people that he had coached with for
years and reported him to United States
Speaker:swimming,
Speaker:United States swimming was so wanting to
Speaker:protect this coach because he's a
good swim coach, not a good person,
Speaker:but a good swim coach that they
did an investigation and found no
Speaker:cause to remove him to do anything,
Speaker:which was the most ridiculous
investigation ever. In fact,
Speaker:I'll skip through some of the details,
Speaker:but I'll tell you that the
lead investigator on that
file within US swimming
Speaker:was also at the same time sleeping
with the head men's swim coach.
Speaker:So they kept this coach around and to no
Speaker:surprise, the minor
child kept being abused.
Speaker:She was convinced that when she
turned 18 they'd be married.
Speaker:Of course that's not the case.
Speaker:He was using her to satisfy
his own twisted sexual
Speaker:desires, and there were several
cases spinning off this scenario.
Speaker:One is that United States swimming
went so far to try to fire
Speaker:one of the coaches who did the
reporting and turned him in,
Speaker:which was a bad move.
Speaker:So we helped handle that case in
conjunction with another lawyer,
Speaker:and then we represented the
swimmer who was abused while
Speaker:she was a minor in a case
against USA swimming.
Speaker:So that's how we got started doing it,
Speaker:and we've done several cases
against us swimming since then.
Speaker:We've done a big case,
Speaker:several big cases representing six
different plaintiffs against us.
Speaker:TaeKwonDo done cases against
a variety of other entities
Speaker:in the US Olympic Sports Movement.
Speaker:All of those cases have helped teach us
how to go about doing these cases going
Speaker:forward.
Speaker:So forgive my ignorance,
Speaker:I literally know next to nothing
about these types of cases,
Speaker:how to pursue them,
how to collect on them.
Speaker:Is there no type of federal
governmental immunity or are
Speaker:you able to bring claims
directly against USA
Speaker:Olympic swimming or
whatever the entity is?
Speaker:Yeah, it's a good question is obviously
you got to look hard at who you're suing
Speaker:because sometimes there are immunity
issues when you're suing USA swimming or
Speaker:an entity like that. They're called NGOs,
Speaker:which are non-governmental organizations,
Speaker:and they generally do not have immunity.
They're a creation of Congress,
Speaker:but don't enjoy the same immunity
as other creations of Congress.
Speaker:One of the issues is Congress created
the United States Olympic Committee and
Speaker:created some of these entities
and provided no realistic
oversight that they're
Speaker:supposed to oversee themselves.
Speaker:And that's an issue when
as time goes on profits
Speaker:and sponsorships and TV time and
all that becomes more and more
Speaker:paramount.
Speaker:That was well on display in
our TaeKwonDo case where we
Speaker:sued United States. TaeKwonDo
in a nutshell in that case,
Speaker:it was a sad story in my view of
Speaker:propping up really good TaeKwonDo
coaches who were good at getting medals
Speaker:and good at getting money
for TaeKwonDo, no doubt,
Speaker:and in our view that they were
also rapists. And there are
Speaker:allegations that are outlined
in the complaint that we filed.
Speaker:And throughout that lawsuit
demonstrate that the six really world
Speaker:champion caliber athletes were made
to do certain sexual favors for these
Speaker:people in order to stay on
the team. Just in brief,
Speaker:TaeKwonDo is a martial art,
Speaker:and so we know in almost any sport
that the coach has a certain level of
Speaker:leadership, a certain position of
power over the people in the program,
Speaker:and that's even more paramount
when two things occur.
Speaker:So one,
Speaker:when they start out as minor children
that disparity in power is even more
Speaker:pronounced. And two,
Speaker:when we're talking about at this
level that this is not parents
Speaker:driving their kids to practice.
These athletes are so good,
Speaker:and these athletes are so unique that
they're moving away from home at a young
Speaker:age to be involved in camps,
Speaker:to be involved in tournaments. And the
only people they know their entire family
Speaker:becomes the other TaeKwonDo people.
Speaker:So if they're to report or to complain
Speaker:about what happened to them,
Speaker:they have no support structure
outside of this sport.
Speaker:TaeKwonDo is even worse than
others because it's a martial art.
Speaker:You bow down to the
person that is the coach,
Speaker:you revere them as more than a
coach, you don't question them.
Speaker:That is part of the martial art.
And so when you have this situation,
Speaker:it is ripe for abuse. And in that case,
Speaker:there were no governmental
immunity issues that they could
Speaker:be sued on state law,
Speaker:but they could also be sued on
what's called A-T-V-P-A claim,
Speaker:which is a federal statute,
which is a sex trafficking claim.
Speaker:And is.
Speaker:That because they were going across
state lines or something to bring these
Speaker:kids.
Speaker:They're going over state lines for their
own economic benefit and transporting
Speaker:the athletes over state.
Speaker:Some of the things that happened on
the airplane going to, for example,
Speaker:the Pan-American games were too
grotesque and explicit to explain on this
Speaker:podcast,
Speaker:but essentially quid
pro quo sexual mandates,
Speaker:if you don't do this, you're
not getting off the plane.
Speaker:And so those were our allegations.
Speaker:Those are all outlined in the complaint
was reported on by various news
Speaker:entities.
Speaker:So typically we don't
run into immunity issues
Speaker:on the Olympic sport cases,
Speaker:but in a lot of our other
cases we definitely do.
Speaker:And that becomes really
an issue when you're suing
Speaker:public entities like public schools,
that can become a big problem.
Speaker:There's charitable immunity
issues in different jurisdictions.
Speaker:There could be issues suing religious
organizations and schools and churches.
Speaker:They all have a variety of
different immunities that
they've enjoyed through the
Speaker:years that my opinion they shouldn't,
but that you have to look out for.
Speaker:So it can get complex pretty fast
depending upon where the events happened.
Speaker:And looking at the immunity stuff.
Speaker:And it brings me to my next question,
Speaker:which is how do you screen these cases?
Speaker:What I'm imagining is we've got
listeners that are Colorado trial
Speaker:lawyers primarily, and somebody
calls up their office and says,
Speaker:I was sexually assaulted.
Speaker:What types of things are you looking at
when you're deciding whether to embark
Speaker:on such a civil case?
Speaker:The two first things that we look
at is one, is there somebody to pay?
Speaker:And if this is going to be a case
against an individual perpetrator,
Speaker:do they reasonably have some
assets to compensate the person?
Speaker:Because it's a big lift to get
somebody through a sex assault
Speaker:case. It can be re-traumatizing,
and a lot of the time,
Speaker:I'm tempted to say most of the time,
Speaker:but a lot of the time they want to have
that experience because it's cathartic,
Speaker:that it's therapeutic, that it gives
them some control over their abuser.
Speaker:So I'm not suggesting that all
victims of abuse that this should
Speaker:be avoided,
Speaker:but certainly a topic of conversation
about are we going to go through this
Speaker:process to get no money? So
one, is there somebody to pay?
Speaker:Number two, what happened on
the criminal side of things?
Speaker:Those are the two real paramount things
that if they never reported it to the
Speaker:police, well why not?
And there can be reasons that are valid,
Speaker:but do they need to report it now because
there's a lot of jury issues that come
Speaker:up that this is important
enough to sue about,
Speaker:but not important enough
to make a police report.
Speaker:And so that's an issue.
Speaker:And then if it were reported
to the police, what happened?
Speaker:And so those are really the
two paramount issues in that in
Speaker:our third party cases.
Speaker:And third party cases are
where we're suing a school or
Speaker:a camp, an athletic organization, a
landlord. That's one we've seen a lot,
Speaker:a landlord. We don't allege that the
landlord committed the sexual abuse.
Speaker:We don't allege that the United
States Olympic Committee,
Speaker:the people on that committee
committed the abuse.
Speaker:What we allege is either premises
liability or negligence or another
Speaker:tort that they knew or should have known,
Speaker:but because usually of their
financial interests turned a blind eye
Speaker:and didn't protect the people
that they had a duty to protect.
Speaker:And so those are the two issues.
And then the third issue, of course,
Speaker:is no different than any other case. The
statute of limitations is in Colorado.
Speaker:We have a real bad problem with statute
of limitations that the legislature
Speaker:fixed and then our Supreme Court
and their wisdom throughout.
Speaker:Talk to us a little bit about that because
I imagine we've got Colorado lawyers
Speaker:listening.
Speaker:Walk us through the landmine of the
statute of limitations as it applies to
Speaker:Colorado sex assault claims.
Speaker:Sure. So traditionally
against a perpetrator,
Speaker:that's not a third party claim.
Speaker:That means the person who
did it or allegedly did it,
Speaker:you would have six years and for a minor
you'd have till their 18th birthday
Speaker:plus six, so till their 24th birthday.
That's the traditional setup.
Speaker:And then the traditional setup against
third party claims was two years
Speaker:because it's either going to be a
premises liability claim or it's going to
Speaker:be a negligence claim, and
that would be two years.
Speaker:So if it's a child that would
expire when they're 20 years old,
Speaker:that's the traditional setup nationwide.
Speaker:What was being seen and what is
still being seen is especially
Speaker:children cannot always
appreciate their injuries or
Speaker:need to sue. For example,
Speaker:let's assume a coach is having
Speaker:sexual contact with a minor
child when they're 16,
Speaker:when they're 17, when they turn 18,
Speaker:the statute will traditionally
start running when they're 20,
Speaker:when the statute runs,
Speaker:they may be still under the control of
that person where they practically can't
Speaker:speak up, where there'll be retribution,
Speaker:where there'll be consequences if they
speak up. So other states have gone on
Speaker:and gotten rid of statute of limitations
for minor children that were abused
Speaker:years ago.
Speaker:A lot of people we've heard from
a lot were abused at camps private
Speaker:for-profit camps when they were 10, 12,
Speaker:11 back in the nineties,
back in the late eighties.
Speaker:And other states have recognized
that it's not until you're an adult
Speaker:that many people realize how harmful
that is and reflect back and say,
Speaker:oh my God, this did happen to me.
Speaker:And I was given every tool by the
people who did it to explain it
Speaker:away, to rationalize it,
to say it's all right.
Speaker:And it's not until you're a parent
yourself that you understand that this
Speaker:happened to you and other states have
fixed that and allowed those people to sue
Speaker:Colorado fixed that and allowed
those people to sue too.
Speaker:Creating a look back of many, many years,
Speaker:I don't remember what
the lookback period was,
Speaker:but it was like 30 years or 25 years
or something like that. And the Supreme
Speaker:Court threw it out.
Speaker:They said it was unconstitutional
that essentially when
Speaker:the statute of limitations
expired on the rapist or the
Speaker:people empowering the rapist,
that that was a vested right.
Speaker:That was a vested right that they
enjoyed in not having that claim pending
Speaker:against them anymore. And that
under our Colorado constitution,
Speaker:it was their interpretation that
the statute had to be invalidated.
Speaker:So part of the statute
survived and the part of the
Speaker:statute that survived,
Speaker:although is still under attack
by the Chamber of Commerce,
Speaker:by the churches,
Speaker:I'll let you know that your
school districts that you
pay money for that you pay
Speaker:property tax to it's under
full attack by all those.
Speaker:They've hired private lawyers. They're
looking to get rid of these things,
Speaker:which raises a real question as
to whether you're okay with that,
Speaker:that you're paying property tax for
public schools to try to make them not
Speaker:subject to lawsuits when they allow
rapists to be teachers. But setting that
Speaker:aside, the rule now is
I believe it's a: Speaker:if the statute of limitations had not
expired on a sex assault claim either
Speaker:against the third party or against
the perpetrator as of: Speaker:and I don't know what date in 2022
because I have to check every time,
Speaker:then there is no statute of
limitations going forward.
Speaker:And the idea behind that is those
people didn't have a vested right in
Speaker:the statute of limitations having expired
against them because it hadn't expired
Speaker:yet as of the time of the
statute. So right now,
Speaker:this is a very long answer
to a very simple question.
Speaker:You asked what's the statute of
limitation is right now for cases that
Speaker:happened many, many years ago,
Speaker:those cases are probably gone
and nothing can be done for
Speaker:cases that happen in and around now,
Speaker:there likely is no statute of limitations
moving forward on sex assault claims.
Speaker:Okay. Well,
Speaker:what I like about that answer is I
understood it and feel like I have
Speaker:information moving forward.
Speaker:So let's talk about the
trial that you recently did
Speaker:in Jefferson County. Give the listeners,
Speaker:I guess what's the factual backdrop of
what happened? And if you don't mind,
Speaker:what was the verdict and then we can
get into some of the nitty gritty.
Speaker:Sure.
Speaker:The most recent case we tried was a
couple of weeks ago in Jefferson County,
Speaker:and we represented a child and her mom.
Speaker:I'll call the child Morgan.
Speaker:And Morgan's mom was divorced and
Speaker:a single parent and had met a
Speaker:man named Damien Kaya.
Speaker:Damien Kaya was a real
estate agent and real estate
Speaker:investor.
Speaker:They started dating and at some point they
Speaker:became serious.
Speaker:And after a period of years dating
Speaker:Morgan's mom and Morgan
moved in to Damien and
Speaker:Kaya's house. Shortly thereafter,
Speaker:Damien and Kaya proposed
to be married to the mom,
Speaker:and the relationship was such
that he invited Morgan to be
Speaker:present during the marriage
proposal. She was happy,
Speaker:thrilled to have him in the family,
viewed him as somebody that she loved.
Speaker:She had known him since
she was nine years old,
Speaker:proposed to be married
when she was 12 or 13.
Speaker:So for a 9-year-old, that's like
a long time, right? Unfortunately,
Speaker:he proposed in May of 2021
Speaker:and it didn't take him very long to
take advantage of that situation.
Speaker:How.
Speaker:So? While living under the same
roof as Morgan and his mom,
Speaker:Morgan and her mom were
watching a TV show together,
Speaker:which was an issue in the
case, and mom falls asleep.
Speaker:Mr. Kaya gets into bed. The three of
them are in bed. She's 13 years old,
Speaker:mom asleep, and he
sexually assaults Morgan.
Speaker:There was digital penetration
repeatedly. He touched her breasts,
Speaker:he touched her nipples,
he touched her genitals.
Speaker:She sort of pretended to be asleep. She
didn't know what to do. She was shocked.
Speaker:She then pretended to be asleep a
while longer after it had finished,
Speaker:she went back into her own
room, cried herself to sleep.
Speaker:She told herself every reason in the
world why this wouldn't happen again.
Speaker:She's 13 years old. She hoped
it wouldn't happen again.
Speaker:She didn't know why it had happened.
About a month and a half later,
Speaker:she and her mom again are in
bed watching television. Mr. K
Speaker:is not home. He's out with some friends.
Speaker:He comes home late
again, mom falls asleep.
Speaker:Same thing happens again,
except this time she testified.
Speaker:She could see his phone,
the flash on his phone,
Speaker:presumably taking images of the abuse.
Speaker:The next morning she gets up,
it's a Saturday, she tells her,
Speaker:mom, mom, we need to go
for a drive together alone.
Speaker:Mom's concerned when your 13-year-old
tells you you need to go for a ride
Speaker:together alone, you know there's a
problem. She couldn't make the words.
Speaker:She couldn't make herself say
that Damien sexually assaulted me.
Speaker:It is too much.
Speaker:And she knew that the second
she reported this because she's
Speaker:13, but she's not stupid that
the second she reported this,
Speaker:she would have to tell her
dad, she would be embarrassed.
Speaker:The love of her mom's life
would be out of their life,
Speaker:that they would have to move, that
they would have nowhere to live.
Speaker:She may have to change schools. All
these things she knew would happen.
Speaker:The second this was reported, she handed
her mom a piece of paper that said,
Speaker:Damien sexually assaulted me. She hands
it to her mom while they're driving.
Speaker:Mom pulls over and is in absolute
tears, feels absolutely devastated.
Speaker:I just can't imagine. You and
I both have kids the same age.
Speaker:Hearing that from your daughter,
Speaker:it's just unbelievable
what happened after that.
Speaker:They report to the police.
Morgan gets counseling.
Speaker:She works on a book with her
Speaker:therapist.
Speaker:She prepares this story
because she's exercising
Speaker:avoidance with her therapist that she has
Speaker:depression. She's been
cutting herself after this.
Speaker:She's been burning herself after this,
which for those of you who don't know,
Speaker:those are actually not suicide attempts.
Speaker:Those are acts of self-harm from trauma
that she says that the blood from the
Speaker:cutting represent her tears.
Speaker:But she has difficulty in her
therapist's words with the issue of
Speaker:avoidance because they're unable
to make real strides in therapy
Speaker:that she's resorting to the cutting,
Speaker:the burning and other
destructive behaviors.
Speaker:So she works with her
therapist to write a story
Speaker:about what happened to
her, but it not being her.
Speaker:So she writes a story
about a princess and a hero
Speaker:and a monster,
Speaker:and she writes this amazing
story that she's the princess,
Speaker:her mom's the hero,
Speaker:and Damien is the monster.
And this story will
Speaker:bring you to tears,
Speaker:how Morgan thought that
the monster would go away.
Speaker:Morgan thought that the
monster could be tamed.
Speaker:Morgan thought that the monster
would stop being a monster,
Speaker:but the monster only got worse.
Over time by ignoring the monster,
Speaker:the monster became more aggressive,
and by ignoring the monster,
Speaker:the monster wanted more and more.
Speaker:And the monster then made it worse and
at this point took pictures of her and
Speaker:the only thing she could do to get out
of the situation was to kill the monster
Speaker:by telling the hero.
Speaker:And she read this story in
the criminal court to the
Speaker:judge during the sentencing,
and I'll tell you,
Speaker:he pled down way down to a
Speaker:crime that was not sexual assault to
the child by a person of a position in
Speaker:trust.
Speaker:And I'll tell you that it's apparent
that she was completely ignored by the
Speaker:judge and everybody there.
Speaker:Well,
Speaker:and let me jump in on that because
I was a crimes against children
Speaker:prosecutor in Jefferson County, and
there is the victim's rights Act.
Speaker:Did the family not feel like
the prosecutors listened to
Speaker:what they wanted to see
happen on that case,
Speaker:or was it they were okay with the plea
bargain because they didn't want to go
Speaker:through a criminal trial type situation?
Speaker:They weren't okay with the plea
bargain, and they made that known.
Speaker:And although they were given input,
Speaker:all of their input was ignored and
he plead down to a nothing charge.
Speaker:Apparently what Morgan had to
say was not heard and by the
Speaker:judge, and so they hired
us to sue him after that.
Speaker:And the perpetrator, Mr. Kaya,
Speaker:took the position that it never happened.
Speaker:Yeah. I was going to ask you,
I don't mean to interrupt,
Speaker:but as part of the criminal sentencing,
Speaker:did he accept any responsibility or was
this a complete denial? In other words,
Speaker:there weren't any statements made by
the defendant that you could utilize in
Speaker:your case, or is that incorrect?
Speaker:There were several statements made by
the defendant that we could use in our
Speaker:case, but nevertheless, they
did not admit liability.
Speaker:They contested liability
until the whole time.
Speaker:And so we sued him on the
basis of outrageous conduct,
Speaker:assault and battery. We did a week
long trial. We put mom on the stand,
Speaker:dad, the divorced dad,
Speaker:who was heroic in having this happened
Speaker:over something that he had no control
over to the person he loves most in his
Speaker:world.
Speaker:We called the therapist who was
incredible and some other lay
Speaker:witnesses, but we called our client,
Speaker:we put on the defendant in our case in
chief, which did not go well for him.
Speaker:And the jury came back with a
Speaker:$2,020,000 verdict found
for us on all claims,
Speaker:on all three. I'll tell you that they
did a statutory offer before trial of
Speaker:$45,000,
Speaker:which they increased to $50,000.
And then they kept sending us every
Speaker:few weeks a new statutory
offer for $50,000,
Speaker:which I can't understand
doing that, but they did.
Speaker:So the most they ever offered was
50,000. They took the position,
Speaker:the defense took the position
at trial as to award no money,
Speaker:or in the alternative that her therapy,
Speaker:I can't remember if they
said they did a breakdown.
Speaker:I think it might've been 12 or $18,000,
Speaker:but that's what they wanted and that's
what they thought they were going to get
Speaker:too.
Speaker:We had some jury questions that came
out that I didn't really view as
Speaker:positive or negative for us,
Speaker:but the defense clearly viewed as positive
for them given their reaction to it.
Speaker:They thought they were
going to win the trial.
Speaker:So the jury came back after a five day
trial and our clients are very pleased.
Speaker:Well,
Speaker:what did you ask for in damages
and how do you go about formulating
Speaker:a damage model on a sex assault case?
Speaker:That's a really good question. We
talked a lot about how we would do this,
Speaker:and for those of you who know me,
Speaker:my experience is largely in medical
malpractice cases and proving damages.
Speaker:In those cases, it's
a lot easier, frankly,
Speaker:because you have a life care plan
and you usually have big medical
Speaker:bills,
Speaker:and so sometimes you have a million
dollars of past medical bills and those
Speaker:aren't hard to prove.
Those are easy to get in.
Speaker:Then you have a life care plan of usually
can be several millions of dollars
Speaker:depending on the case, and you can get
those things through a life care planner,
Speaker:use an economist for your wage loss.
Speaker:So this is different and we've
had to learn how to do this,
Speaker:but the way we did it, in this case,
we do it differently in everyone.
Speaker:The way we did it in this
case is in the cmo we put in
Speaker:that we were going to
claim past meds by way of
Speaker:pediatrician visits and
antidepressants and therapy.
Speaker:The problem is that adds up to nothing.
I think it's like five or $7,000.
Speaker:And we viewed that as a
significant anchor in the case.
Speaker:And then we had an expert witness who
is going to testify among other things,
Speaker:a clinical psychologist
that she would need $45,000
Speaker:of care in the future, which I didn't
really think was that persuasive.
Speaker:It's just not enough money.
Speaker:So we came up with a different plan
and the plan that we came up with was
Speaker:to ask every therapist who testified
how much they charge their clients
Speaker:and how much they're
charging to be at trial,
Speaker:which is invariably more than
they charge their clients.
Speaker:So we did that and at the end of the case,
Speaker:we knew that there were three categories
of damages that we had to hit on
Speaker:economic non-economic and
physical impairment. Now,
Speaker:the physical impairment battle is
the biggest one in these cases.
Speaker:That's what I was just thinking
is again, forgive my ignorance,
Speaker:but how do you explain to a judge
that physical trauma from a sex
Speaker:assault is impairment?
Speaker:So that's why I think this case is notable
because I don't think there are many
Speaker:cases in Colorado where a jury has found
Speaker:physical impairment as a
result of emotional trauma.
Speaker:This is what we did, and this is our
plan from day one as to that category,
Speaker:we had the treating
therapist who was a rock star
Speaker:and our retained forensic psychologist
Speaker:endorsed to testify that the
literature shows that trauma
Speaker:of this magnitude, and it's five things,
Speaker:sexual assault that is severe,
Speaker:that's penetration of her
genitals by a person of a position
Speaker:of trust in her own home
while she is a child.
Speaker:That is repeated those five
aggravating factors amount to
Speaker:such sufficient trauma that it
physically impairs the brain.
Speaker:And you can say it one of two ways,
and they're probably both right,
Speaker:that this magnitude of trauma physically
impairs the brain and changes the
Speaker:way the brain works,
Speaker:it changes the way the person now
reacts to trauma, reacts to stress,
Speaker:reacts to depression, all those things.
Speaker:And the data and the
science supports us on that.
Speaker:Or you can explain it differently
that this abuse causes
Speaker:PTSD and PSD is a physical
impairment of the brain.
Speaker:That's what PTSD is. If you have PTSD,
Speaker:you have physical impairment of
the brain. They're both right.
Speaker:Did you have an actual diagnosis of
post-traumatic stress disorder by a
Speaker:psychiatrist on your case?
Speaker:Yes. Not by a psychiatrist,
by a psychologist.
Speaker:Now there was a huge dispute about that.
Speaker:The defense position was this was
created by the lawyers that nobody
Speaker:diagnosed her with PTSD until we
got involved. That wasn't true.
Speaker:What was true is in the
weeks after the assault,
Speaker:the treating therapist
diagnosed her with PTSD.
Speaker:The issue there is that you
don't give psychotherapy clients,
Speaker:especially minor child, their own file.
Speaker:You don't give them records.
Speaker:So they're saying there's no
contemporaneous notation or finding of
Speaker:PTSD, which they're right,
but under Colorado law,
Speaker:there never will be because you only
get a summary from under Colorado law.
Speaker:You only get a summary from the therapist,
Speaker:and that's usually when the lawyer asks.
Speaker:So there was a big dispute about
whether she had PTSD or whether that's
Speaker:something that we created as her lawyers.
Speaker:And the reason that was
fought so ferociously on both
sides is we knew we needed
Speaker:the diagnosis of PTSD in order to
prove physical impairment of the brain.
Speaker:The jury ultimately agreed that there
was physical impairment of the brain and
Speaker:put about almost half a million
dollars on physical impairment.
Speaker:And we think that's really notable
because we can't find another
Speaker:verdict. There may be one,
Speaker:but we can't find another
verdict where in a civil case,
Speaker:a sexual assault victim
proved physical impairment not
Speaker:from physical injury like being beaten,
Speaker:but from the emotional aspect of it.
Speaker:And we think that this is a
notable case that will help
Speaker:open the door to other survivors
of sexual assault where in
Speaker:mediation or whatever, trying to
get cases settled to say, well,
Speaker:where are you talking about?
Speaker:You're not going to be able
to prove physical impairment,
Speaker:but we now have a verdict
form finding that.
Speaker:Walk me through that a little
bit more if you don't mind,
Speaker:because I have not litigated that issue.
Speaker:But I was aware that PTSD can
cause changes in the brain
Speaker:and that there's certainly an argument
for physical impairment damages
Speaker:arising from PTSD and usually I seem
to see this in brain injury cases and
Speaker:things along those lines.
Speaker:So what kind of resistance from the
defense did you face and were these
Speaker:retained experts you used to testify
about that or were these treating
Speaker:doctors or some combination of the two?
Speaker:Sure.
Speaker:So the way we had it set
up before the trial is that
Speaker:two treating therapists would
come testify that she in
Speaker:fact has PTSD,
Speaker:that they diagnosed her
with PTSD on their own,
Speaker:that they diagnosed her with PTSD
before I ever spoke with them,
Speaker:that the reason that it wasn't
known to the child or the family is
Speaker:Colorado Law and Privacy and that
they could have revealed to the
Speaker:child that she has PTSD,
Speaker:but what's the purpose that
she had PTSD and that PTSD
Speaker:is a physical impairment of the brain.
Speaker:And they had books and literature
along with their own training
Speaker:that they were endorsed to testify to.
Speaker:Alright, let me stop you real quick.
Speaker:I want to give kind of a practice pointer
on this issue because it seems like we
Speaker:always end up with non retained
treating physicians in which we
Speaker:can say in the 26 a two disclosure what
their opinions are and what they rely
Speaker:upon. And then you have retained
experts. So in my hearing,
Speaker:you say you had non retained treating
medical providers that were going to give
Speaker:you PTSD,
Speaker:and then you met with them and discussed
various literature that supports that
Speaker:that is a permanent
impairment of the brain.
Speaker:And then in your disclosures you disclosed
that they would be talking about that
Speaker:support. Did I get that right?
Speaker:Alright. That's exactly right.
You call them and say, listen,
Speaker:I know you've been seeing Morgan,
Speaker:would you be comfortable
writing a summary of your care?
Speaker:I'll tell you what the lawsuit's
about and this is what it's about.
Speaker:We need to know what she's
been struggling with.
Speaker:And they'll usually tell you on the phone
what they intend to put in the summary
Speaker:and we would typically raise. Do you feel,
Speaker:is it your opinion that PTSD
or the trauma that causes PTSD,
Speaker:it's really a distinction without a
difference causes a physical impairment of
Speaker:the brain and every good well-trained
Speaker:therapist is going to tell
you? Absolutely. That is
our training. Absolutely.
Speaker:That is what my experience is in
following patients that is apparent
Speaker:and that especially the people
that have been trained in more
Speaker:recent years are more
comfortable with that concept.
Speaker:People trained 30 years ago are less
comfortable with that concept. And this is
Speaker:not something that we ask them to do.
Speaker:This is something that they wanted to
include that they feel very strongly about
Speaker:because in their field,
in their experience,
Speaker:this is not that controversial
that when somebody has such trauma
Speaker:that causes major depressive
disorder or PTSD or both,
Speaker:can you just choose not to be depressed?
Speaker:Can you just choose not
to have racing thoughts?
Speaker:Can you just choose to not think about
it? Can you choose not to cut yourself?
Speaker:Can you choose not to harm yourself?
Speaker:Can you choose not to have suicidal
ideation? The answer is no,
Speaker:because everybody would
choose not to if they could,
Speaker:that the brain is not
processing information like
it did before this trauma.
Speaker:Can the Vietnam veterans
that went through a living,
Speaker:hell just pretend like it didn't happen.
Speaker:Can the people in Afghanistan that
saw their friends get blown away? Just
Speaker:pretend like it didn't happen.
Speaker:Can people sexually assaulted by
their stepfather just wish it away,
Speaker:just ignore it. Like the book of Mormons
that just wish the gay away, right?
Speaker:That's not the reality.
Speaker:They were very comfortable in doing
their endorsement in that way.
Speaker:And then on top of that, we used
a retained expert who really,
Speaker:who was like a researcher.
Speaker:She really explained more
of the literature and the
progression of literature
Speaker:over time and how they
have found these things.
Speaker:And I don't think our treaters could
tell you that there's these areas of the
Speaker:brain. It's the amygdala, which it
is the hippocampus, which it is.
Speaker:And they didn't really know that
to them, that's not that important.
Speaker:But our retained expert could tell us
that those are the areas of the brain that
Speaker:had been found to be impaired. We
didn't call our retained expert.
Speaker:She had some scheduling issues and
we decided not to accommodate those
Speaker:scheduling issues to lengthen the trial.
Speaker:So when we ran into some scheduling
issues, we just thought, you know what?
Speaker:We don't want the jury
to come back on Monday.
Speaker:And I'm not even sure the judge
would let them come back on Monday.
Speaker:So we went without her.
Speaker:And just for educational
purposes, for our listeners,
Speaker:did I hear that PTSD can actually,
Speaker:is it a shrinking with a NeuroQuant
analysis that parts of the
Speaker:brain,
Speaker:they can actually visualize
the atrophy that occurs to
Speaker:sections in the brain or anything about
that that you can help educate myself
Speaker:and our listeners?
Speaker:Yeah,
Speaker:you have to be really careful because
you don't want to plead yourself into a
Speaker:situation where they say, if this true,
why didn't you get an MRI of the brain?
Speaker:And then we just see, and
because as we all know,
Speaker:that all impairments of the brain
can't be seen on imaging, imaging,
Speaker:it's only as good as the camera that
takes the imaging, which is an MRI or ct.
Speaker:If you could see all
injuries to the brain,
Speaker:they would just put one on
the NFL sidelined and every
time somebody got their
Speaker:bell rung, just put 'em in
the machine and say yes or no.
Speaker:But that's not the way. We're
not at that point in science yet.
Speaker:So you want to be really careful
to say that imaging can show
Speaker:these impacts. Imaging can show
these impacts in some people,
Speaker:and it's not known which people show
these things or not. The problem is as a
Speaker:practice pointer is if you
get too much into that,
Speaker:these problems can be seen on
imaging. It begs the question,
Speaker:did your client then have imaging?
And the answer is going to be no.
Speaker:And then if they did have
imaging, did it show any problems?
Speaker:The answer is going to be probably not.
The gold standard here is not imaging.
Speaker:The gold standard here is function.
Speaker:If you meet the DSM
five criteria for PTSD,
Speaker:the type of which is very specific
and almost universally followed,
Speaker:if not universally,
Speaker:certainly the standard of care
to follow the DSM five criteria.
Speaker:If you have that metric trauma,
Speaker:then it is presumed that there's been
a physical impairment of the brain.
Speaker:That's why your body's acting that way.
Speaker:So I would be very cautious
talking about the imaging.
Speaker:You can certainly talk about the
articles that then reference the imaging,
Speaker:but the person needs to be prepped
to say, listen to some people.
Speaker:It's been seen on imaging,
Speaker:but imaging doesn't show everything
at this stage of science.
Speaker:Maybe in 10 years it will, maybe in 30
years it will, but right now it doesn't.
Speaker:And I expect that most people that have
PTSD, whether it's from Afghanistan,
Speaker:whether it's from Vietnam,
whether it's from sexual assault,
Speaker:that they will probably have perfectly
normal MRIs or else you're going to plead
Speaker:yourself into a real predicament.
Speaker:I learned that lesson the hard way.
Speaker:And I'm reminded of something I've
been listening to on other podcasts,
Speaker:which is be careful what you set
out to prove because we had a brain
Speaker:injury case and we were
talking about DTIs and oh,
Speaker:look at this DTI and look
at this brain imaging.
Speaker:And the whole case became about that.
Speaker:And when that expert didn't really stand
up so well and that piece kind of fell
Speaker:apart,
Speaker:I felt like our entire brain injury piece
of that case kind of fell apart where
Speaker:we didn't really need it because we
had great before and after witnesses
Speaker:contemporaneous complaints
and things along those lines.
Speaker:So it's really landing
on me strongly about be
Speaker:careful what you take out to prove.
Speaker:Sounds like you threaded that
needle perfectly in your case.
Speaker:I think to some extent trials
become about what you talk
Speaker:about and that the more you talk about
getting a fight over the imaging,
Speaker:the more the jury is going to think
that must be a dispositive issue if you
Speaker:don't even bring it up.
Speaker:The other side brought it up on cross
with our therapist and she disposed of it.
Speaker:I thought she was brilliant. They said,
Speaker:it's true that you don't have any
imaging showing this. And she said,
Speaker:and I wouldn't expect there to
be that most people with PTSD one
Speaker:never get imaging. And two,
the imaging wouldn't show this.
Speaker:It's a clinical diagnosis and I think
you use the DSM five in conjunction with
Speaker:that, which has very specific criteria.
Speaker:And this isn't something
that we just imagined.
Speaker:This isn't a diagnosis of exclusion.
Speaker:This isn't something that
we just feel that you have.
Speaker:You must meet each of these criteria and
not until you do that will we give the
Speaker:diagnosis. And I think that was
very persuasive to the jury.
Speaker:Question for you is for people
that are listening to this,
Speaker:and obviously these are extremely
righteous cases to bring and
Speaker:they're interested in trying
to get involved in these cases.
Speaker:Number one,
Speaker:do you have any sort of trial pointers
on the best way to present these cases to
Speaker:a jury? And then number
two, even bigger picture,
Speaker:what do you tell some young lawyer
who's listening that thinks,
Speaker:I would really love to pursue justice
in the civil arena for victims of sex
Speaker:assault cases?
Speaker:Yeah, I think the trial pointers are, one,
Speaker:talk to your client often about
their desire to go to trial. Do you.
Speaker:Empower them?
Speaker:Is that like make it, no. I
think that may be empowering,
Speaker:but they have to want to have a trial.
Speaker:I think if their reaction
is, I do not want this,
Speaker:I cannot have this,
Speaker:that you need to respect
that in a car crash case.
Speaker:Not to diminish car crash cases
because you have terrible injuries,
Speaker:but a lot of people aren't
wondering why this happened to them.
Speaker:If you get rear-ended the idea
that this might be their fault.
Speaker:The idea that they may have invited this,
Speaker:the idea that they didn't see it coming,
Speaker:all those issues aren't usually
involved in a rear end car crash
Speaker:case where they are in
a sexual assault case,
Speaker:almost everybody wonders why did
this happen? How did this happen?
Speaker:Did I not see the signs? How
could I have prevented this?
Speaker:Am I somehow at fault for this?
Speaker:Did I do something that invited this?
And we as lawyers say,
Speaker:that's not true. You shouldn't
feel that way. They feel that way.
Speaker:And so I would say talk to
your client often about whether
Speaker:they feel a trial will be
helpful to their mental health,
Speaker:something that they want to
do or something that they
feel will cause them to
Speaker:have a complete breakdown and
take that into consideration.
Speaker:So that's a trial point.
Speaker:The next trial pointer
that I have is that all
Speaker:the jury attribution issues
that we talk about. For example,
Speaker:in our case,
Speaker:Morgan had gone to 37 therapy
sessions and then had done
Speaker:another seven with somebody else, then
I think another five with somebody else.
Speaker:So they had done like 50
therapy sessions for a kid,
Speaker:for a kid between 13 and
: Speaker:It gained traction amongst some, not all.
Speaker:Some of the jurors that there were gaps
in treatment that the jury was saying,
Speaker:here are the therapists said to do group
therapy. You never did group therapy.
Speaker:Who's going to do group therapy?
Speaker:You're going to bring a 13-year-old
with a group of other people and say,
Speaker:talk about your stepfather sexually
assaulting you. Of course not.
Speaker:But it was recommended and because
it was recommended they didn't do it.
Speaker:One of the defense jurors really
glommed onto that and said,
Speaker:they're not doing the things that
they should be doing to get better.
Speaker:And you asked for the trial points
that I thought were important. One,
Speaker:talk to your client about going to trial.
Speaker:The next is even on issues that
you don't think are serious,
Speaker:like not getting treatment,
Speaker:make sure you preempt those things or
talk about 'em in vo dire if you can.
Speaker:I'm not saying not to take the case,
Speaker:but the things that I thought
weren't terribly persuasive,
Speaker:at least one juror thought was persuasive.
Speaker:And then the next question I think you
had is what are the points to a young
Speaker:lawyer considering taking these cases?
I think the biggest point I
Speaker:have is that you probably need
a man and woman on your team.
Speaker:Number one, you don't know who they're
going to connect with the best.
Speaker:And we have a male and a female
on every one of these cases.
Speaker:Sometimes it's with me,
they connect the most.
Speaker:Sometimes it's with a woman
that they connect the most.
Speaker:They should have that opportunity.
And two, be trauma informed.
Speaker:And what that means is if somebody
calls you with a sex assault
Speaker:case, we usually say, not always,
Speaker:but usually say, listen, this is
horrible. I'm going to tell you right now,
Speaker:we are not going to go through
what happened with the assault.
Speaker:We're not going to go
through the assault today.
Speaker:We're not going to talk about it.
We're not going to talk about,
Speaker:we're going to talk about other things.
Speaker:We're going to talk about how you're
doing. We're going to talk about how work
Speaker:is. We're going to talk about
whether these are criminal case.
Speaker:We're going to talk about irrespective
of what happened when it happened to make
Speaker:sure we have the statute of limitations
done. And you wouldn't believe that.
Speaker:I would say eight times out
of 10 they say, oh, thank God.
Speaker:I called the lawyer and I was all
prepared to talk about these things that I
Speaker:really am so glad we don't have
to today and read the room too.
Speaker:We met with somebody the other
day, which is a 16-year-old who,
Speaker:the potential case they were molested
and their mom's sitting next to 'em.
Speaker:You think they want to go
through with that with you,
Speaker:with their mom sitting
next to them. So don't ask,
Speaker:do it another time or do it another way.
Speaker:There may be a time when you have to ask,
Speaker:but it's not the first meeting.
It's not the first couple of meetings.
Speaker:People don't tell secrets to
strangers and at that point you're a
Speaker:stranger and don't put
them in that position.
Speaker:For people that have really serious abuse
or things that they're going to have
Speaker:difficulty talking about.
Speaker:We never ask and we just send them to
a forensic psychologist and we let the
Speaker:forensic psychologist whose entire job
it is to get this information and who is
Speaker:a woman, get that information from
them. We may have to follow up.
Speaker:Let her get that information, not you,
and certainly don't ask, by the way,
Speaker:we've had other cases where there's been
alleged sexual assault and they come
Speaker:with their boyfriend or their girlfriend.
Speaker:You'll not get the truth
as to what happened.
Speaker:And I understand that you can't expect
them to tell the truth with their
Speaker:boyfriend or girlfriend
sitting right next to them.
Speaker:There may be a lot of history there that
you don't understand and people are not
Speaker:living in a vacuum with a perfect life
up until that moment that they get
Speaker:sexually abused.
Speaker:It's not worth asking in the presence of
others because you're going to get some
Speaker:version of the story that you're going
to take is true. That's not true.
Speaker:Thank you so much for sharing
your wisdom with us and this
Speaker:most righteous cause that you
find yourself engaging in.
Speaker:If people want to get ahold of you
want to pick your about a case,
Speaker:what's the best way for
people to get ahold of you?
Speaker:Call the firm at Parker Lipman
Speaker:7 2 0 6 3 8 9 4 2 4 or my email
Speaker:dan@parkerlipman.com.
One of the things, Keith,
Speaker:you asked how we described the
damages. I didn't want to ignore that.
Speaker:We did ask for non-economic
damages in that case.
Speaker:I just didn't want to leave
that hanging out there,
Speaker:but given the caps we wanted to
funnel as much as we could into
Speaker:physical impairment.
Speaker:So you got almost a million
dollars in non-economic damages.
Speaker:We got 1.2 in non economics,
Speaker:which we think will work fine because we
think the judge is going to double the
Speaker:cap if he doesn't double it here.
When are you going to double it?
Speaker:Right? And I guess
oftentimes on these cases,
Speaker:because a lot of the cases you're
involved in occurred some time ago,
Speaker:we're talking significant
pre-judgment interest on these cases.
Speaker:Am I right about that?
Speaker:Yeah. We should get a lot of
pre-judgment interest and plus costs.
Speaker:The way we argue the damages.
Speaker:I would encourage people to really think
about whether you're going to have an
Speaker:economist or a life care planner.
Speaker:I don't think it's going to come out
in these cases like you think it is.
Speaker:The way I argued it is I said, listen,
Speaker:you heard that the therapist
gets paid $150 an hour.
Speaker:She gets paid $150 an hour to deal
with this problem that Morgan has.
Speaker:You also heard from the judge instructed
you that Morgan's going to live another
Speaker:60 whatever, 65 years,
whatever it was. Now,
Speaker:we all know that if the
therapy rate is $150 today,
Speaker:it's not going to be that in 20, 30, 40
years it's going to be a lot. But okay,
Speaker:let's just take $150.
Speaker:There will be some days that
Morgan deals with this all day
Speaker:and all night.
There will be some days,
Speaker:maybe even weeks when she
doesn't deal with this at all.
Speaker:There'll be some days when
she deals with it a minute,
Speaker:there'll be some days when she deals with
it every minute, sometimes all night,
Speaker:not during the day, sometimes
all day, not during the night.
Speaker:It's going to go like that for the rest
of her life. Every time she's depressed,
Speaker:she's going to wonder,
Speaker:am I depressed because I was sexually
assaulted multiple times by my
Speaker:stepdad? Is it normal to be depressed?
Speaker:She now has to ask herself that question
every time she's sad, upset, whatever.
Speaker:So if it costs $150 to pay
somebody else to deal with this
Speaker:for one hour, don't tell her
her time's worth any less.
Speaker:If we just assume she has to deal with
this for one hour a day for the rest of
Speaker:her life, that's $150 a day times 365
Speaker:days times 60 years,
Speaker:that's $3.3 million.
And you don't get a bulk discount in
Speaker:Colorado for sexual assaults because
that's what she'd need if it happened one
Speaker:time. So you have to double
it. It happened twice.
Speaker:Unless you want to tell this defendant
that it's okay to do this more than one
Speaker:time, you got to double it.
And I'll tell you, Keith,
Speaker:that we were one juror
away from them doing so.
Speaker:The one juror who thought it was
influential that she didn't go to as much
Speaker:therapy was a real anchor in our
case and a real problem for us.
Speaker:This goes to what we've been learning
over the last maybe three years or
Speaker:whatever since Covid that to shoot
for the stars and maybe you'll
Speaker:get what you want if you do that.
Speaker:Well, it's still a phenomenal result.
Speaker:So one juror away from a
truly extraordinary result.
Speaker:But holy cow, amazing result
and justice for your client,
Speaker:your client's mom, get
divorced from this man.
Speaker:Actually, I said it was a stepfather.
Speaker:They actually never went through with
the wedding once they found out about
Speaker:this.
Speaker:Alright, well, Dan, it
has been a true pleasure.
Speaker:Thank you so much for taking time to speak
with us today and until the next one.
Speaker:Thank you listeners for listening and
we'll see you next time on the Colorado
Speaker:Trial Lawyer Connection podcast.
Thanks, Dan. Thanks Keith.
Speaker:Thank you for joining us.
Speaker:We hope you've gained valuable insights
and inspiration from today's courtroom
Speaker:warriors, and thank you
for being in the arena.
Speaker:Make sure to subscribe and join us next
time as we continue to dissect real
Speaker:cases and learn from
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Speaker:helping us to become better trial lawyers
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