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.

Welcome to the Colorado

Trial Lawyer Connection,

where Colorado trial lawyers share

insights from their latest cases. Join me,

Keith Elli. As we uncover

the stories, strategies,

and lessons from recent Colorado trials

to help you and your clients achieve

justice in the courtroom. The

pursuit of justice starts now.

Welcome back everyone.

My name is Keith Fuselli and I am very

excited to host another episode of

the Colorado Trial Lawyer

Connection Podcast.

This episode is special really

for two reasons. First of all,

this is our 20th episode,

so that is an accomplishment

that I'm honestly pretty proud of

because I'm the one that gets to talk

to all these amazing lawyers and hear

these inspirational

cases and pick up tidbits

that honestly make me a

much better trial lawyer.

But this episode is also special

because I've got my very good friend,

Dan Lipman from the law firm of

Parker and Lipman on to talk to us

about sex assault cases and a sex

assault verdict that he recently

obtained in what I think is a

difficult jurisdiction sometimes in

Jefferson County. So without further ado,

Dan, thank you for coming on the show.

Well, thank you, Keith. I

really appreciate you having me.

It's really an honor to be asked

to come chat with you today,

and I know you and your partner, John Lee,

do amazing work and I appreciate

being included on your show.

Honestly,

the honor is all because you're so humble,

but you have a national

reputation of pursuing

these types of sex assault cases that I

believe started with cases against the

US Olympic team or committee.

Could you tell the listeners

a little bit about that case?

Sure.

I first got involved in this work

several years ago when I was approached

involving a case where

the men's head swim coach

was having sexual contact or

allegedly having sexual contact with

a world championship swimmer. And what

had happened in that particular case,

the first case I was involved with is

the head swim coach was removing the

16-year-old swim from the

premises every day at about six

30 in the morning and taking

her to his Orange County,

California town home,

which he said where they like to have

breakfast together five days a week.

Apparently this was so concerning to the

other swim coaches that the other swim

coaches, in fact,

people that he had coached with for

years and reported him to United States

swimming,

United States swimming was so wanting to

protect this coach because he's a

good swim coach, not a good person,

but a good swim coach that they

did an investigation and found no

cause to remove him to do anything,

which was the most ridiculous

investigation ever. In fact,

I'll skip through some of the details,

but I'll tell you that the

lead investigator on that

file within US swimming

was also at the same time sleeping

with the head men's swim coach.

So they kept this coach around and to no

surprise, the minor

child kept being abused.

She was convinced that when she

turned 18 they'd be married.

Of course that's not the case.

He was using her to satisfy

his own twisted sexual

desires, and there were several

cases spinning off this scenario.

One is that United States swimming

went so far to try to fire

one of the coaches who did the

reporting and turned him in,

which was a bad move.

So we helped handle that case in

conjunction with another lawyer,

and then we represented the

swimmer who was abused while

she was a minor in a case

against USA swimming.

So that's how we got started doing it,

and we've done several cases

against us swimming since then.

We've done a big case,

several big cases representing six

different plaintiffs against us.

TaeKwonDo done cases against

a variety of other entities

in the US Olympic Sports Movement.

All of those cases have helped teach us

how to go about doing these cases going

forward.

So forgive my ignorance,

I literally know next to nothing

about these types of cases,

how to pursue them,

how to collect on them.

Is there no type of federal

governmental immunity or are

you able to bring claims

directly against USA

Olympic swimming or

whatever the entity is?

Yeah, it's a good question is obviously

you got to look hard at who you're suing

because sometimes there are immunity

issues 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,

but don't enjoy the same immunity

as other creations of Congress.

One of the issues is Congress created

the United States Olympic Committee and

created some of these entities

and provided no realistic

oversight that they're

supposed to oversee themselves.

And that's an issue when

as time goes on profits

and sponsorships and TV time and

all that becomes more and more

paramount.

That was well on display in

our TaeKwonDo case where we

sued United States. TaeKwonDo

in a nutshell in that case,

it was a sad story in my view of

propping up really good TaeKwonDo

coaches who were good at getting medals

and good at getting money

for TaeKwonDo, no doubt,

and in our view that they were

also rapists. And there are

allegations that are outlined

in the complaint that we filed.

And throughout that lawsuit

demonstrate that the six really world

champion caliber athletes were made

to do certain sexual favors for these

people in order to stay on

the team. Just in brief,

TaeKwonDo is a martial art,

and so we know in almost any sport

that the coach has a certain level of

leadership, a certain position of

power over the people in the program,

and that's even more paramount

when two things occur.

So one,

when they start out as minor children

that disparity in power is even more

pronounced. And two,

when we're talking about at this

level that this is not parents

driving their kids to practice.

These athletes are so good,

and these athletes are so unique that

they're moving away from home at a young

age to be involved in camps,

to be involved in tournaments. And the

only 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 structure

outside of this sport.

TaeKwonDo is even worse than

others because it's a martial art.

You bow down to the

person that is the coach,

you revere them as more than a

coach, 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,

there were no governmental

immunity issues that they could

be sued on state law,

but they could also be sued on

what'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 across

state lines or something to bring these

kids.

They're going over state lines for their

own economic benefit and transporting

the athletes over state.

Some of the things that happened on

the airplane going to, for example,

the Pan-American games were too

grotesque and explicit to explain on this

podcast,

but essentially quid

pro quo sexual mandates,

if you don't do this, you're

not getting off the plane.

And so those were our allegations.

Those are all outlined in the complaint

was reported on by various news

entities.

So typically we don't

run into immunity issues

on the Olympic sport cases,

but in a lot of our other

cases we definitely do.

And that becomes really

an issue when you're suing

public entities like public schools,

that can become a big problem.

There's charitable immunity

issues in different jurisdictions.

There could be issues suing religious

organizations and schools and churches.

They all have a variety of

different immunities that

they've enjoyed through the

years that my opinion they shouldn't,

but that you have to look out for.

So it can get complex pretty fast

depending 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 got

listeners that are Colorado trial

lawyers primarily, and somebody

calls up their office and says,

I was sexually assaulted.

What types of things are you looking at

when you're deciding whether to embark

on such a civil case?

The two first things that we look

at is one, is there somebody to pay?

And if this is going to be a case

against an individual perpetrator,

do they reasonably have some

assets to compensate the person?

Because it's a big lift to get

somebody 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 have

that experience because it's cathartic,

that it's therapeutic, that it gives

them some control over their abuser.

So I'm not suggesting that all

victims of abuse that this should

be avoided,

but certainly a topic of conversation

about are we going to go through this

process to get no money? So

one, is there somebody to pay?

Number two, what happened on

the criminal side of things?

Those are the two real paramount things

that if they never reported it to the

police, well why not?

And there can be reasons that are valid,

but do they need to report it now because

there's a lot of jury issues that come

up that this is important

enough to sue about,

but not important enough

to make a police report.

And so that's an issue.

And then if it were reported

to the police, what happened?

And so those are really the

two paramount issues in that in

our third party cases.

And third party cases are

where we're suing a school or

a camp, an athletic organization, a

landlord. That's one we've seen a lot,

a landlord. We don't allege that the

landlord committed the sexual abuse.

We don't allege that the United

States Olympic Committee,

the people on that committee

committed the abuse.

What we allege is either premises

liability or negligence or another

tort that they knew or should have known,

but because usually of their

financial interests turned a blind eye

and didn't protect the people

that they had a duty to protect.

And so those are the two issues.

And then the third issue, of course,

is no different than any other case. The

statute of limitations is in Colorado.

We have a real bad problem with statute

of limitations that the legislature

fixed and then our Supreme Court

and their wisdom throughout.

Talk to us a little bit about that because

I imagine we've got Colorado lawyers

listening.

Walk us through the landmine of the

statute of limitations as it applies to

Colorado sex assault claims.

Sure. So traditionally

against a perpetrator,

that's not a third party claim.

That means the person who

did it or allegedly did it,

you would have six years and for a minor

you'd have till their 18th birthday

plus six, so till their 24th birthday.

That's the traditional setup.

And then the traditional setup against

third party claims was two years

because it's either going to be a

premises liability claim or it's going to

be a negligence claim, and

that would be two years.

So if it's a child that would

expire when they're 20 years old,

that's the traditional setup nationwide.

What was being seen and what is

still being seen is especially

children cannot always

appreciate their injuries or

need to sue. For example,

let's assume a coach is having

sexual contact with a minor

child when they're 16,

when they're 17, when they turn 18,

the statute will traditionally

start running when they're 20,

when the statute runs,

they may be still under the control of

that person where they practically can't

speak up, where there'll be retribution,

where there'll be consequences if they

speak up. So other states have gone on

and gotten rid of statute of limitations

for minor children that were abused

years ago.

A lot of people we've heard from

a 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 recognized

that it's not until you're an adult

that many people realize how harmful

that is and reflect back and say,

oh my God, this did happen to me.

And I was given every tool by the

people who did it to explain it

away, to rationalize it,

to say it's all right.

And it's not until you're a parent

yourself that you understand that this

happened to you and other states have

fixed that and allowed those people to sue

Colorado fixed that and allowed

those people to sue too.

Creating a look back of many, many years,

I don't remember what

the lookback period was,

but it was like 30 years or 25 years

or something like that. And the Supreme

Court threw it out.

They said it was unconstitutional

that essentially when

the statute of limitations

expired on the rapist or the

people empowering the rapist,

that that was a vested right.

That was a vested right that they

enjoyed in not having that claim pending

against them anymore. And that

under our Colorado constitution,

it was their interpretation that

the statute had to be invalidated.

So part of the statute

survived and the part of the

statute that survived,

although is still under attack

by the Chamber of Commerce,

by the churches,

I'll let you know that your

school districts that you

pay money for that you pay

property tax to it's under

full attack by all those.

They've hired private lawyers. They're

looking to get rid of these things,

which raises a real question as

to whether you're okay with that,

that you're paying property tax for

public schools to try to make them not

subject to lawsuits when they allow

rapists to be teachers. But setting that

aside, the rule now is

if the statute of limitations had not

expired on a sex assault claim either

against the third party or against

and I don't know what date in 2022

because I have to check every time,

then there is no statute of

limitations going forward.

And the idea behind that is those

people didn't have a vested right in

the statute of limitations having expired

against them because it hadn't expired

yet as of the time of the

statute. So right now,

this is a very long answer

to a very simple question.

You asked what's the statute of

limitation is right now for cases that

happened many, many years ago,

those cases are probably gone

and nothing can be done for

cases that happen in and around now,

there likely is no statute of limitations

moving forward on sex assault claims.

Okay. Well,

what I like about that answer is I

understood it and feel like I have

information moving forward.

So let's talk about the

trial that you recently did

in Jefferson County. Give the listeners,

I guess what's the factual backdrop of

what happened? And if you don't mind,

what was the verdict and then we can

get into some of the nitty gritty.

Sure.

The most recent case we tried was a

couple of weeks ago in Jefferson County,

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 real

estate agent and real estate

investor.

They started dating and at some point they

became serious.

And after a period of years dating

Morgan's mom and Morgan

moved in to Damien and

Kaya's house. Shortly thereafter,

Damien and Kaya proposed

to be married to the mom,

and the relationship was such

that he invited Morgan to be

present during the marriage

proposal. She was happy,

thrilled to have him in the family,

viewed him as somebody that she loved.

She had known him since

she was nine years old,

proposed to be married

when she was 12 or 13.

So for a 9-year-old, that's like

a long time, right? Unfortunately,

he proposed in May of 2021

and it didn't take him very long to

take advantage of that situation.

How.

So? While living under the same

roof as Morgan and his mom,

Morgan and her mom were

watching a TV show together,

which was an issue in the

case, and mom falls asleep.

Mr. Kaya gets into bed. The three of

them are in bed. She's 13 years old,

mom asleep, and he

sexually assaults Morgan.

There was digital penetration

repeatedly. He touched her breasts,

he touched her nipples,

he touched her genitals.

She sort of pretended to be asleep. She

didn't know what to do. She was shocked.

She then pretended to be asleep a

while longer after it had finished,

she went back into her own

room, cried herself to sleep.

She told herself every reason in the

world why this wouldn't happen again.

She's 13 years old. She hoped

it 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 in

bed watching television. Mr. K

is not home. He's out with some friends.

He comes home late

again, mom falls asleep.

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 go

for a drive together alone.

Mom's concerned when your 13-year-old

tells you you need to go for a ride

together alone, you know there's a

problem. She couldn't make the words.

She couldn't make herself say

that Damien sexually assaulted me.

It is too much.

And she knew that the second

she reported this because she's

13, but she's not stupid that

the second she reported this,

she would have to tell her

dad, she would be embarrassed.

The love of her mom's life

would be out of their life,

that they would have to move, that

they would have nowhere to live.

She may have to change schools. All

these things she knew would happen.

The second this was reported, she handed

her mom a piece of paper that said,

Damien sexually assaulted me. She hands

it to her mom while they're driving.

Mom pulls over and is in absolute

tears, feels absolutely devastated.

I just can't imagine. You and

I both have kids the same age.

Hearing that from your daughter,

it's just unbelievable

what happened after that.

They report to the police.

Morgan gets counseling.

She works on a book with her

therapist.

She prepares this story

because she's exercising

avoidance with her therapist that she has

depression. She's been

cutting 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 trauma

that she says that the blood from the

cutting represent her tears.

But she has difficulty in her

therapist's words with the issue of

avoidance because they're unable

to make real strides in therapy

that she's resorting to the cutting,

the burning and other

destructive behaviors.

So she works with her

therapist to write a story

about what happened to

her, but it not being her.

So she writes a story

about a princess and a hero

and a monster,

and she writes this amazing

story that she's the princess,

her mom's the hero,

and Damien is the monster.

And this story will

bring you to tears,

how Morgan thought that

the monster would go away.

Morgan thought that the

monster could be tamed.

Morgan thought that the monster

would 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,

the monster wanted more and more.

And the monster then made it worse and

at this point took pictures of her and

the only thing she could do to get out

of the situation was to kill the monster

by telling the hero.

And she read this story in

the criminal court to the

judge during the sentencing,

and I'll tell you,

he pled down way down to a

crime that was not sexual assault to

the child by a person of a position in

trust.

And I'll tell you that it's apparent

that she was completely ignored by the

judge and everybody there.

Well,

and let me jump in on that because

I was a crimes against children

prosecutor in Jefferson County, and

there is the victim's rights Act.

Did the family not feel like

the prosecutors listened to

what they wanted to see

happen on that case,

or was it they were okay with the plea

bargain because they didn't want to go

through a criminal trial type situation?

They weren't okay with the plea

bargain, and they made that known.

And although they were given input,

all of their input was ignored and

he plead down to a nothing charge.

Apparently what Morgan had to

say was not heard and by the

judge, and so they hired

us to sue him after that.

And the perpetrator, Mr. Kaya,

took the position that it never happened.

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 was

this a complete denial? In other words,

there weren't any statements made by

the defendant that you could utilize in

your case, or is that incorrect?

There were several statements made by

the defendant that we could use in our

case, but nevertheless, they

did not admit liability.

They contested liability

until the whole time.

And so we sued him on the

basis of outrageous conduct,

assault and battery. We did a week

long trial. We put mom on the stand,

dad, the divorced dad,

who was heroic in having this happened

over something that he had no control

over to the person he loves most in his

world.

We called the therapist who was

incredible and some other lay

witnesses, but we called our client,

we put on the defendant in our case in

chief, which did not go well for him.

And the jury came back with a

$2,020,000 verdict found

for us on all claims,

on all three. I'll tell you that they

did 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 statutory

offer for $50,000,

which I can't understand

doing that, but they did.

So the most they ever offered was

50,000. They took the position,

the defense took the position

at trial as to award no money,

or in the alternative that her therapy,

I can't remember if they

said they did a breakdown.

I think it might've been 12 or $18,000,

but that's what they wanted and that's

what they thought they were going to get

too.

We had some jury questions that came

out that I didn't really view as

positive or negative for us,

but the defense clearly viewed as positive

for them given their reaction to it.

They thought they were

going to win the trial.

So the jury came back after a five day

trial and our clients are very pleased.

Well,

what did you ask for in damages

and how do you go about formulating

a damage model on a sex assault case?

That's a really good question. We

talked a lot about how we would do this,

and for those of you who know me,

my experience is largely in medical

malpractice cases and proving damages.

In those cases, it's

a lot easier, frankly,

because you have a life care plan

and you usually have big medical

bills,

and so sometimes you have a million

dollars of past medical bills and those

aren't hard to prove.

Those are easy to get in.

Then you have a life care plan of usually

can be several millions of dollars

depending on the case, and you can get

those things through a life care planner,

use an economist for your wage loss.

So this is different and we've

had 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 this

case is in the cmo we put in

that we were going to

claim past meds by way of

pediatrician visits and

antidepressants and therapy.

The problem is that adds up to nothing.

I think it's like five or $7,000.

And we viewed that as a

significant anchor in the case.

And then we had an expert witness who

is going to testify among other things,

a clinical psychologist

that she would need $45,000

of care in the future, which I didn't

really think was that persuasive.

It's just not enough money.

So we came up with a different plan

and the plan that we came up with was

to ask every therapist who testified

how much they charge their clients

and how much they're

charging to be at trial,

which is invariably more than

they charge their clients.

So we did that and at the end of the case,

we knew that there were three categories

of damages that we had to hit on

economic non-economic and

physical impairment. Now,

the physical impairment battle is

the biggest one in these cases.

That's what I was just thinking

is again, forgive my ignorance,

but how do you explain to a judge

that physical trauma from a sex

assault is impairment?

So that's why I think this case is notable

because I don't think there are many

cases in Colorado where a jury has found

physical impairment as a

result of emotional trauma.

This is what we did, and this is our

plan from day one as to that category,

we had the treating

therapist who was a rock star

and our retained forensic psychologist

endorsed to testify that the

literature shows that trauma

of this magnitude, and it's five things,

sexual assault that is severe,

that's penetration of her

genitals by a person of a position

of trust in her own home

while she is a child.

That is repeated those five

aggravating factors amount to

such sufficient trauma that it

physically impairs the brain.

And you can say it one of two ways,

and they're probably both right,

that this magnitude of trauma physically

impairs the brain and changes the

way the brain works,

it changes the way the person now

reacts to trauma, reacts to stress,

reacts to depression, all those things.

And the data and the

science supports us on that.

Or you can explain it differently

that this abuse causes

PTSD and PSD is a physical

impairment of the brain.

That's what PTSD is. If you have PTSD,

you have physical impairment of

the brain. They're both right.

Did you have an actual diagnosis of

post-traumatic stress disorder by a

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 was

created by the lawyers that nobody

diagnosed her with PTSD until we

got involved. That wasn't true.

What was true is in the

weeks after the assault,

the treating therapist

diagnosed her with PTSD.

The issue there is that you

don't give psychotherapy clients,

especially minor child, their own file.

You don't give them records.

So they're saying there's no

contemporaneous notation or finding of

PTSD, which they're right,

but under Colorado law,

there never will be because you only

get 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 about

whether she had PTSD or whether that's

something that we created as her lawyers.

And the reason that was

fought so ferociously on both

sides is we knew we needed

the diagnosis of PTSD in order to

prove physical impairment of the brain.

The jury ultimately agreed that there

was physical impairment of the brain and

put about almost half a million

dollars on physical impairment.

And we think that's really notable

because we can't find another

verdict. There may be one,

but 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 where in

mediation or whatever, trying to

get cases settled to say, well,

where are you talking about?

You're not going to be able

to prove physical impairment,

but we now have a verdict

form finding that.

Walk me through that a little

bit more if you don't mind,

because I have not litigated that issue.

But I was aware that PTSD can

cause changes in the brain

and that there's certainly an argument

for physical impairment damages

arising from PTSD and usually I seem

to see this in brain injury cases and

things along those lines.

So what kind of resistance from the

defense did you face and were these

retained experts you used to testify

about that or were these treating

doctors or some combination of the two?

Sure.

So the way we had it set

up before the trial is that

two treating therapists would

come testify that she in

fact has PTSD,

that they diagnosed her

with PTSD on their own,

that they diagnosed her with PTSD

before I ever spoke with them,

that the reason that it wasn't

known to the child or the family is

Colorado Law and Privacy and that

they could have revealed to the

child that she has PTSD,

but what's the purpose that

she had PTSD and that PTSD

is a physical impairment of the brain.

And they had books and literature

along with their own training

that they were endorsed to testify to.

Alright, let me stop you real quick.

I want to give kind of a practice pointer

on this issue because it seems like we

always end up with non retained

treating physicians in which we

can say in the 26 a two disclosure what

their opinions are and what they rely

upon. And then you have retained

experts. So in my hearing,

you say you had non retained treating

medical providers that were going to give

you PTSD,

and then you met with them and discussed

various literature that supports that

that is a permanent

impairment of the brain.

And then in your disclosures you disclosed

that they would be talking about that

support. Did I get that right?

Alright. That's exactly right.

You call them and say, listen,

I know you've been seeing Morgan,

would you be comfortable

writing a summary of your care?

I'll tell you what the lawsuit's

about and this is what it's about.

We need to know what she's

been struggling with.

And they'll usually tell you on the phone

what they intend to put in the summary

and we would typically raise. Do you feel,

is it your opinion that PTSD

or the trauma that causes PTSD,

it's really a distinction without a

difference causes a physical impairment of

the brain and every good well-trained

therapist is going to tell

you? Absolutely. That is

our training. Absolutely.

That is what my experience is in

following patients that is apparent

and that especially the people

that have been trained in more

recent years are more

comfortable with that concept.

People trained 30 years ago are less

comfortable with that concept. And this is

not something that we ask them to do.

This is something that they wanted to

include that they feel very strongly about

because in their field,

in their experience,

this is not that controversial

that when somebody has such trauma

that causes major depressive

disorder or PTSD or both,

can you just choose not to be depressed?

Can you just choose not

to have racing thoughts?

Can you just choose to not think about

it? Can you choose not to cut yourself?

Can you choose not to harm yourself?

Can you choose not to have suicidal

ideation? The answer is no,

because everybody would

choose not to if they could,

that the brain is not

processing information like

it did before this trauma.

Can the Vietnam veterans

that went through a living,

hell just pretend like it didn't happen.

Can the people in Afghanistan that

saw their friends get blown away? Just

pretend like it didn't happen.

Can people sexually assaulted by

their stepfather just wish it away,

just ignore it. Like the book of Mormons

that just wish the gay away, right?

That's not the reality.

They were very comfortable in doing

their endorsement in that way.

And then on top of that, we used

a retained expert who really,

who was like a researcher.

She really explained more

of the literature and the

progression of literature

over time and how they

have found these things.

And I don't think our treaters could

tell you that there's these areas of the

brain. It's the amygdala, which it

is the hippocampus, which it is.

And they didn't really know that

to them, that's not that important.

But our retained expert could tell us

that those are the areas of the brain that

had been found to be impaired. We

didn't call our retained expert.

She had some scheduling issues and

we decided not to accommodate those

scheduling issues to lengthen the trial.

So when we ran into some scheduling

issues, we just thought, you know what?

We don't want the jury

to come back on Monday.

And I'm not even sure the judge

would let them come back on Monday.

So we went without her.

And just for educational

purposes, for our listeners,

did I hear that PTSD can actually,

is it a shrinking with a NeuroQuant

analysis that parts of the

brain,

they can actually visualize

the atrophy that occurs to

sections in the brain or anything about

that that you can help educate myself

and our listeners?

Yeah,

you have to be really careful because

you 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, and

because as we all know,

that all impairments of the brain

can't be seen on imaging, imaging,

it's only as good as the camera that

takes the imaging, which is an MRI or ct.

If you could see all

injuries to the brain,

they would just put one on

the NFL sidelined and every

time somebody got their

bell rung, just put 'em in

the machine and say yes or no.

But that's not the way. We're

not at that point in science yet.

So 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. The problem is as a

practice pointer is if you

get too much into that,

these problems can be seen on

imaging. It begs the question,

did your client then have imaging?

And the answer is going to be no.

And then if they did have

imaging, 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 DSM

five criteria for PTSD,

the type of which is very specific

and almost universally followed,

if not universally,

certainly the standard of care

to follow the DSM five criteria.

If you have that metric trauma,

then it is presumed that there's been

a physical impairment of the brain.

That's why your body's acting that way.

So I would be very cautious

talking about the imaging.

You can certainly talk about the

articles that then reference the imaging,

but the person needs to be prepped

to say, listen to some people.

It's been seen on imaging,

but imaging doesn't show everything

at this stage of science.

Maybe in 10 years it will, maybe in 30

years it will, but right now it doesn't.

And I expect that most people that have

PTSD, whether it's from Afghanistan,

whether it's from Vietnam,

whether it's from sexual assault,

that they will probably have perfectly

normal 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've

been listening to on other podcasts,

which is be careful what you set

out to prove because we had a brain

injury case and we were

talking about DTIs and oh,

look at this DTI and look

at this brain imaging.

And the whole case became about that.

And when that expert didn't really stand

up so well and that piece kind of fell

apart,

I felt like our entire brain injury piece

of that case kind of fell apart where

we didn't really need it because we

had great before and after witnesses

contemporaneous complaints

and things along those lines.

So it's really landing

on me strongly about be

careful what you take out to prove.

Sounds like you threaded that

needle perfectly in your case.

I think to some extent trials

become about what you talk

about and that the more you talk about

getting a fight over the imaging,

the more the jury is going to think

that must be a dispositive issue if you

don't even bring it up.

The other side brought it up on cross

with our therapist and she disposed of it.

I thought she was brilliant. They said,

it's true that you don't have any

imaging showing this. And she said,

and I wouldn't expect there to

be that most people with PTSD one

never get imaging. And two,

the imaging wouldn't show this.

It's a clinical diagnosis and I think

you use the DSM five in conjunction with

that, which has very specific criteria.

And this isn't something

that we just imagined.

This isn't a diagnosis of exclusion.

This isn't something that

we just feel that you have.

You must meet each of these criteria and

not until you do that will we give the

diagnosis. And I think that was

very persuasive to the jury.

Question for you is for people

that are listening to this,

and obviously these are extremely

righteous cases to bring and

they're interested in trying

to get involved in these cases.

Number one,

do you have any sort of trial pointers

on the best way to present these cases to

a jury? And then number

two, even bigger picture,

what do you tell some young lawyer

who's listening that thinks,

I would really love to pursue justice

in the civil arena for victims of sex

assault cases?

Yeah, I think the trial pointers are, one,

talk to your client often about

their desire to go to trial. Do you.

Empower them?

Is that like make it, no. I

think that may be empowering,

but they have to want to have a trial.

I think if their reaction

is, I do not want this,

I cannot have this,

that you need to respect

that in a car crash case.

Not to diminish car crash cases

because you have terrible injuries,

but a lot of people aren't

wondering why this happened to them.

If you get rear-ended the idea

that 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 usually

involved in a rear end car crash

case where they are in

a sexual assault case,

almost everybody wonders why did

this happen? How did this happen?

Did I not see the signs? How

could 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't

feel that way. They feel that way.

And so I would say talk to

your client often about whether

they feel a trial will be

helpful to their mental health,

something that they want to

do or something that they

feel will cause them to

have a complete breakdown and

take that into consideration.

So that's a trial point.

The next trial pointer

that I have is that all

the jury attribution issues

that we talk about. For example,

in our case,

Morgan had gone to 37 therapy

sessions and then had done

another seven with somebody else, then

I think another five with somebody else.

So they had done like 50

therapy sessions for a kid,

for a kid between 13 and

It gained traction amongst some, not all.

Some of the jurors that there were gaps

in treatment that the jury was saying,

here are the therapists said to do group

therapy. You never did group therapy.

Who's going to do group therapy?

You're going to bring a 13-year-old

with a group of other people and say,

talk about your stepfather sexually

assaulting you. Of course not.

But it was recommended and because

it was recommended they didn't do it.

One of the defense jurors really

glommed onto that and said,

they're not doing the things that

they should be doing to get better.

And you asked for the trial points

that I thought were important. One,

talk to your client about going to trial.

The next is even on issues that

you don't think are serious,

like not getting treatment,

make sure you preempt those things or

talk about 'em in vo dire if you can.

I'm not saying not to take the case,

but the things that I thought

weren't terribly persuasive,

at least one juror thought was persuasive.

And then the next question I think you

had is what are the points to a young

lawyer considering taking these cases?

I think the biggest point I

have is that you probably need

a man and woman on your team.

Number one, you don't know who they're

going to connect with the best.

And we have a male and a female

on every one of these cases.

Sometimes it's with me,

they connect the most.

Sometimes it's with a woman

that they connect the most.

They should have that opportunity.

And two, be trauma informed.

And what that means is if somebody

calls you with a sex assault

case, we usually say, not always,

but usually say, listen, this is

horrible. I'm going to tell you right now,

we are not going to go through

what happened with the assault.

We're not going to go

through 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're

doing. We're going to talk about how work

is. We're going to talk about

whether these are criminal case.

We're going to talk about irrespective

of what happened when it happened to make

sure we have the statute of limitations

done. And you wouldn't believe that.

I would say eight times out

of 10 they say, oh, thank God.

I called the lawyer and I was all

prepared to talk about these things that I

really am so glad we don't have

to today and read the room too.

We met with somebody the other

day, which is a 16-year-old who,

the potential case they were molested

and their mom's sitting next to 'em.

You think they want to go

through with that with you,

with their mom sitting

next 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.

People don't tell secrets to

strangers and at that point you're a

stranger and don't put

them in that position.

For people that have really serious abuse

or things that they're going to have

difficulty talking about.

We never ask and we just send them to

a forensic psychologist and we let the

forensic psychologist whose entire job

it is to get this information and who is

a woman, get that information from

them. 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 been

alleged sexual assault and they come

with their boyfriend or their girlfriend.

You'll not get the truth

as to what happened.

And I understand that you can't expect

them to tell the truth with their

boyfriend or girlfriend

sitting right next to them.

There may be a lot of history there that

you don't understand and people are not

living in a vacuum with a perfect life

up until that moment that they get

sexually abused.

It's not worth asking in the presence of

others because you're going to get some

version of the story that you're going

to take is true. That's not true.

Thank you so much for sharing

your wisdom with us and this

most righteous cause that you

find yourself engaging in.

If people want to get ahold of you

want to pick your about a case,

what's the best way for

people to get ahold of you?

Call the firm at Parker Lipman

7 2 0 6 3 8 9 4 2 4 or my email

dan@parkerlipman.com.

One of the things, Keith,

you asked how we described the

damages. I didn't want to ignore that.

We did ask for non-economic

damages in that case.

I just didn't want to leave

that hanging out there,

but given the caps we wanted to

funnel as much as we could into

physical impairment.

So you got almost a million

dollars in non-economic damages.

We got 1.2 in non economics,

which we think will work fine because we

think 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 guess

oftentimes on these cases,

because a lot of the cases you're

involved in occurred some time ago,

we're talking significant

pre-judgment interest on these cases.

Am I right about that?

Yeah. We should get a lot of

pre-judgment interest and plus costs.

The way we argue the damages.

I would encourage people to really think

about whether you're going to have an

economist or a life care planner.

I don't think it's going to come out

in these cases like you think it is.

The way I argued it is I said, listen,

you heard that the therapist

gets paid $150 an hour.

She gets paid $150 an hour to deal

with this problem that Morgan has.

You also heard from the judge instructed

you that Morgan's going to live another

60 whatever, 65 years,

whatever it was. Now,

we all know that if the

therapy rate is $150 today,

it's not going to be that in 20, 30, 40

years it's going to be a lot. But okay,

let's just take $150.

There will be some days that

Morgan deals with this all day

and all night.

There will be some days,

maybe even weeks when she

doesn't deal with this at all.

There'll be some days when

she deals with it a minute,

there'll be some days when she deals with

it every minute, sometimes all night,

not during the day, sometimes

all day, not during the night.

It's going to go like that for the rest

of her life. Every time she's depressed,

she's going to wonder,

am I depressed because I was sexually

assaulted multiple times by my

stepdad? Is it normal to be depressed?

She now has to ask herself that question

every time she's sad, upset, whatever.

So if it costs $150 to pay

somebody else to deal with this

for one hour, don't tell her

her time's worth any less.

If we just assume she has to deal with

this 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

Colorado for sexual assaults because

that's what she'd need if it happened one

time. So you have to double

it. It happened twice.

Unless you want to tell this defendant

that 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 juror

away from them doing so.

The one juror who thought it was

influential that she didn't go to as much

therapy was a real anchor in our

case and a real problem for us.

This goes to what we've been learning

over the last maybe three years or

whatever since Covid that to shoot

for 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 a

truly extraordinary result.

But holy cow, amazing result

and justice for your client,

your client's mom, get

divorced from this man.

Actually, I said it was a stepfather.

They actually never went through with

the wedding once they found out about

this.

Alright, well, Dan, it

has been a true pleasure.

Thank you so much for taking time to speak

with us today and until the next one.

Thank you listeners for listening and

we'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 insights

and inspiration from today's courtroom

warriors, and thank you

for being in the arena.

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time as we continue to dissect real

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