Florida State Student who alleged rape by Heisman Trophy-winning football player hires Federal Title IX experts to explore lawsuit

By Keven Vaughan, FOX Sports. February 14, 2014

Two Colorado attorneys who have handled ground-breaking federal lawsuits in sexual assault cases involving athletes have been retained by the woman who alleged she was raped by Florida State's Heisman Trophy-winning quarterback, Jameis Winston, FOX Sports has learned.

Attorney John Clune confirmed to FOX Sports that he and one of his law partners, Baine Kerr, have agreed to work with Patricia Carroll, a Florida lawyer representing the woman who accused Winston of raping her at an off-campus apartment in December 2012.

Their work, Clune said, will be wide-ranging "to evaluate the conduct of a number of individuals and entities in this matter and assess their civil and criminal liability."

The criminal investigation of the alleged sexual assault was put on hold for nine months by Tallahassee police before it was revived in November by State Attorney Willie Meggs. Ultimately, Meggs decided there was not enough evidence to file criminal charges against Winston, the redshirt freshman who burst onto the national scene last fall and led the Seminoles to the national championship.

Winston's attorney said the encounter between the player and the young woman was consensual. The work of Kerr and Clune is expected to include an examination of the conduct of Florida State officials and the potential of a federal lawsuit under Title IX, the gender-equity law that has become a powerful tool in sexual assault cases involving students.

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University of Denver professor files gender-based wage-bias case against law school

By Colleen O'Connor. The Denver Post. July 9, 2013

University of Denver professor Lucy Marsh on Tuesday filed a charge of discrimination with the Equal Employment Opportunity Commission alleging that Sturm College of Law violated federal law by paying her less than a man in a similar job and failed to correct the inequity when it had the chance. …

"What I hope comes out of this is not just fair compensation to professor Marsh and to fix the system, but hopefully there will be lessons learned that other universities, law schools and employers can look at and say, 'This is something that we can look at, to make sure the women are not paid less for equal work,' " said Jennifer Reisch, one of Marsh's lawyers and legal director of Equal Rights Advocates, a national civil rights organization.


"We are skeptical that there are actual justifications," said Baine Kerr, one of Marsh's attorneys. … "If there were actual justifications, we would have heard about them."


According to the Tuesday filing, the charge of discrimination arises from the "stark inequality between the salaries of male and female full professors" at Sturm College of Law. According to the filing, Marsh is the lowest paid professor, earning $109,000 per year, compared with the median full-professor salary of $149,000. ...

Baine Kerr, a Boulder lawyer who also represents Marsh, said that they tried to remedy the wage equity issue before filing the discrimination charge but received no response from DU.

"We are skeptical that there are actual justifications," he said, "both because of the apparently systemic ... character of the discrepancies and because if there were actual justifications, we would have heard about them."

Read the entire story.

Law professor files discrimination complaint against law school

9NEWS Denver. July 9, 2013

DENVER - A University of Denver law professor has filed a federal complaint against her employer, alleging she has been underpaid in violation of the Equal Pay Act.

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Professor Lucy Marsh has taught at DU's Sturm College of Law for 40 years. Despite her tenure, awards, and publishing, Prof. Marsh now believes her $109,000 yearly salary makes her the lowest paid full professor at the law school.

Marsh says she learned about the pay inequality from a salary memo sent by the law school's dean in December. The memo discusses new merit raises for some professors and offers salary comparisons between male and female faculty. It indicated female full professors at the school make, on average, $16,000 less a year than their male counterparts. …

Boulder attorney Baine Kerr is a former student of Prof. Marsh, and he is representing her in the pay dispute against DU.

"They are scholars. They interpret the Equal Pay Act," Kerr said. "And they are saying, 'The laws don't apply to us. And we admit it.'"

Watch the interview with Baine Kerr.

James Hibbard: Did ex-coroner destroy evidence -- a piece of a dead man's aorta?

By Alan Prendergast. Denver Westword. June 20, 2013

Can an elected coroner be held liable for the destruction of key evidence -- a piece of a dead man's aorta -- needed in a medical malpractice lawsuit? That's the six-figure question at the heart of a federal claim against Adams County and James Hibbard, its former coroner. …

The current court wrangle has to do with missing heart tissue from a dentist named Michael Lynn Harner, who went to Boulder Community Hospital in 2007 complaining of chest pain. He was given a routine angiogram, during which a doctor allegedly perforated his aorta with the cardiac catheterization equipment, causing a slow bleed. Harner died a few hours later; Arnall conducted the autopsy and concluded that the perforation of his aorta was the cause of death. …


How crucial was the missing piece of heart? "It was the smoking gun," says Harner attorney Baine Kerr.


Harner's widow lost her case against the doctor. How crucial was the missing piece of heart? Harner attorney Baine Kerr says the defense attorneys told him they would have settled the case before trial if it could have been produced. "That would have been the end of the case," he says. "It was the smoking gun."

After Hibbard left office, Kerr asked his successor, Broncucia-Jordan, for permission to examine the computer records regarding the specimen. The records indicated it had been destroyed on November 29, 2010, five days after Hibbard assured Kerr that it didn't exist. "It's clear to me that Hibbard didn't tell the truth -- and then ordered his staff to destroy it," Kerr says.

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Adoptive parents get $6.75 million for abused children in suit against Adams County

By Karen Augé. The Denver Post. April 4, 2013

In a case with potentially wide-ranging impact, Adams County has agreed to pay the largest settlement of its kind ever in Colorado — $6.75 million — to a family who adopted three severely abused children from foster care and were not told that the profoundly traumatized children would need extensive treatment.

The family also charged that county workers ignored evidence that the children were sexually abused in the foster home where they placed them.


The largest payment of its kind in the country will go into trusts for each child.


The money will go into three trusts, one for each child, to be administered by a court-appointed conservator.

"Certainly, it's the largest (payment) in this kind of case in Colorado. And as far as we can tell, it's the largest of its kind for three children abused in foster care in the country," said Baine Kerr, attorney for the children and their adoptive parents.

Read the entire story.

Judge: Pick prosecutor in high school rape case
Arapahoe's district attorney is denied a motion to delay naming a lawyer to file charges.

By Felisa Cardona. The Denver Post. July 14, 2009

The Arapahoe County district attorney has until 5 p.m. today to select a special prosecutor to file charges against two men accused of raping Julie Stene in 2000.

On Monday, District Court Judge Carlos Samour Jr. denied Carol Chambers' motion to postpone the appointment of a special prosecutor until her appeal is heard.

"The court finds that Ms. Chambers has failed to meet her burden of showing that a stay pending appeal is warranted," Samour wrote in his order.

Chambers declined to comment on the ruling.

"We are assuming that there will be compliance with the order and that we will have a special prosecutor named by 5 p.m. and that the file will be passed over and get a prosecutor underway, which is very pleasing to Julie," said Stene's attorney, Baine Kerr.

Stene, 27, says she was raped after passing out at a high school graduation party nine years ago. The Denver Post is publishing Stene's name with her consent.

Read the entire story.

University of Colorado in Court
Back on the case of the football sex-recruiting scandal

By Alan Prendergast. Denver Westword. Dec. 18, 2008

Eight years after she first reported a sexual assault to police and four years after prosecutors told her they were dropping the case, a young woman has won an unusual court ruling that orders prosecution of her alleged assailant, a former University of Colorado football player who was also implicated in the school's infamous recruiting-party scandal.

On Monday, December 15, after hearing an Aurora police detective testify that a veteran prosecutor had declined to pursue the case rather rather than "jump on the CU bandwagon" of rape allegations, Arapahoe County District Judge Carlos Samour granted the woman's petition to compel prosecution of Clyde Surrell, a former defensive end for the Buffs. The case is being removed from the office of Eighteenth Judicial District Attorney Carol Chambers and will be assigned to a special prosecutor.


"It's astounding that a case as strong as this one would have to face this kind of prosecutorial timidity. This is a great day for rape victims." -- Baine Kerr


"It's almost unheard of for a judge to intervene in the decision-making of a district attorney's office and take the case away from them," says Baine Kerr, the woman's attorney. "It's astounding that a case as strong as this one would have to face this kind of prosecutorial timidity. This is a great day for rape victims."

Read the entire story.

$2.5 million University of Colorado settlement in football recruiting rape case

Rocky Mountain News. December 5, 2007

The University of Colorado will pay Lisa Simpson $2.5 million to settle her lawsuit against the school.

Simpson sued the school after a December 2001 off-campus party attended by CU football players and recruits, where Simpson and another woman said they were sexually assaulted. …

The school also will add a Title IX adviser and a half-time position in the Office of Victim Assistance as part of the settlement, university spokesman Ken McConnellogue said.

"Even more important than the dollar amount of the settlement is the agreement by CU to enact historic changes agreed to as part of the resolution of this case," said Simpson's attorney, Baine Kerr.

A Historic, Precedent-Setting Agreement

Baine Kerr  being honored at the annual meeting of San Francisco's Equal Rights Advocates.

Baine Kerr  being honored at the annual meeting of San Francisco's Equal Rights Advocates.

He said CU's agreement to establish a Title IX adviser is unique and precedent-setting.

"No other university has ever done anything remotely like this," he said. "This is quite historic."

Kerr said the adviser will monitor issues of sexual harassment, assault, gender discrimination and violations of Title IX at CU.

The adviser will review all university actions on these issues and make recommendations directly to the chancellor and president on individual cases of student abuse, he said.

The additional half-time counselor position also was important to Simpson, Kerr said.

"The office was of tremendous help to Lisa in the aftermath of her rape, and she wanted to make sure other people also would be helped," he said. "This is one way to accomplish that."

Read the entire story.

$2.8 million deal in University of Colorado sexual assault case

By Howard Pankratz. The Denver Post. Dec. 5, 2007

The University of Colorado said today that a settlement has been reached in a Title IX lawsuit that was filed after allegations of rape at a party attended by CU football players.

Lisa Simpson will receive $2.5 million and a second woman will receive $350,000 under the agreement signed last night by CU president Hank Brown. …

Simpson and another woman say that on the night of Dec. 7, 2001, they were sexually assaulted by football players and recruits while the recruits were visiting Boulder.

The gist of their complaint was that CU sanctioned, supported and even funded a program showing recruits a "good time" that, without proper control, would encourage young men to engage in "opprobrious acts."

On Sept. 6, a three-judge panel of the U.S. 10th Circuit Court of Appeals reinstated Simpson's lawsuit, saying that the key question was whether the risk of such an assault during recruiting visits was obvious.

 


a finding based on widespread reporting of sexual misconduct in college-football programs, including repeated concerns about CU's program


The appellate judges — Harris Hartz, Monroe McKay and Neil Gorsuch — said evidence could support such a finding based on widespread reporting of sexual misconduct in college-football programs, including repeated concerns about CU's program.

Here, the judges said, red flags about alleged misconduct by some CU players and recruits had been raised for years.

On Nov. 9, the entire 10th Circuit refused to reverse the decision by Hartz, McKay and Gorsuch. The court also refused CU's request that the entire appellate court decide the issue.

Simpson's lawyer, Baine Kerr, said the Nov. 9 ruling cleared the way for a federal jury to hear allegations that CU ignored repeated warnings that some of its football players and recruits engaged in sexual assaults, including rape.

Read the entire story.

Court revives University of Colorado football recruiting rape lawsuit

By Jennifer Brown and Howard Pankratz. The Denver Post. Sept. 7, 2007

A lawsuit from two women who say they were raped at a University of Colorado party for football recruits was reinstated Thursday as judges pointed toward sufficient evidence that the school failed to supervise visiting high school football stars.

The women presented enough evidence to warrant a trial on whether CU had "an official policy" of showing recruits a "good time" and whether the assaults were the result of a failure to supervise football players paired with high school visitors, according to the 10th U.S. Circuit Court of Appeals.

The lawsuit, ongoing for more than four years, was tossed back to district court for trial.


"A historic decision that's going to change the way athletic departments are run."

-- Baine Kerr


Thursday's opinion overturned a ruling by U.S. District Judge Robert Blackburn, who decided in April 2005 that the two women had not proved the university was "deliberately indifferent" to the risk that players and recruits would assault them.

"This is going to go down as a historic decision that's going to change the way athletic departments are run," said Baine Kerr, the women's attorney. "They will no longer be able to turn a blind eye to what's going on in their athletic departments."

Read the entire story.

Malpractice Makes Perfect

by Gayle Worland. Denver Westword. Oct. 14, 1999

Dr. Karl Shipman's stumble off a ladder in September 1997 set off a perilous chain of events that led to -- but did not end with -- his sudden death at age 64. The hardy, athletic internist and former chief of medicine at Presbyterian Hospital had simply broken his wrist that autumn day. But infection set in after surgery, and a series of misdiagnoses eventually led to what Shipman's family characterizes as a hellish night of unskilled care in the intensive-care unit at Presbyterian/St. Luke's Hospital ("Doctor's Orders," March 25).

Debra Malone of Vail, Shipman's second-oldest daughter and an intensive-care nurse herself, claims that things would have turned out differently if her father had received better initial care from his own colleagues at P/SL. On the critical night of October 21, 1997, his condition had been monitored primarily by a medical intern just out of medical school and a part-time "floater" nurse who had been pulled from another floor. Shipman's condition rapidly declined; nineteen days later he was dead. ...

Now Shipman's family is taking yet another step: They will sue. Initially discouraged by their previous attorney, the Shipmans recently stumbled onto renowned lawyer Jack Olsen, who jumped at the case -- as long as he could bring along a friend for the ride. That friend is well-seasoned malpractice attorney and Boulder novelist Baine Kerr, who represented Louise Simonton in her ill-fated 1998 lawsuit against Denver neurosurgeon Dr. Karl Stecher Jr. ("Under the Knife," January 21). The somewhat flamboyant Olsen and the soft-spoken Kerr have been pals for years; in fact, Olsen, a former Denver Post and Rocky Mountain News reporter, legendary storyteller, Vietnam vet and former press secretary for Governor Dick Lamm, served in part as the model for the character of Peter Moss in Harmful Intent, Kerr's medical thriller published last April.

Read the entire story.

Eternally Yours

By Juliet Wittman. Denver Westword. Feb. 11, 1999

For Gloria Lamar to have the remotest chance of recovery, she needed far more intensive therapy than Medicaid could provide. Hoh hired Baine Kerr, a Boulder attorney, to explore the possibility of filing a civil suit against Bauman.

Kerr's investigation turned up some surprising information. Despite Bauman's statements to his probation officer--the pre-sentencing report lists "source of income" as "none" and says Bauman's "ability to pay fees" is "dependent upon family and work"--it seemed he was hardly without assets. Bauman had suffered some oxygen deprivation at birth, and a medical malpractice suit, settled in his favor, had guaranteed him a lifetime income. On his eighteenth birthday, in January 1994--less than three months before the collision--he had received settlement and interest payments of over $130,000; monthly payments of $4,166 also began. (After that, he'd purchased the Jeep Cherokee for $28,000 in cash.) The settlement was structured so that payments would increase annually. By the time he was fifty years old, Bauman could expect $322,670 a year; his old age would be sweetened by an annual income of slightly more than a million dollars. In the course of his lifetime, he could expect to receive $24 million.


In a deposition, Kerr asked Bauman why he had lied about his finances. "Because I wanted to protect my money," he responded.


In a deposition, Kerr asked Bauman why he had lied about his finances. "Because I wanted to protect my money," he responded.

When Bauman's lie was brought to the court's attention, he was sentenced to ten days in jail. Kerr also requested that the amount Bauman had been ordered to pay in restitution--$1,000--be modified in light of his wealth and Lamar's huge and terrible needs. The district attorney's office opposed Kerr's request. Then-deputy district attorney Louth gives two reasons for the DA's position: that the civil suit Kerr had filed against Bauman would resolve the issue of restitution, and that "it was not until sentencing was over and the Defendant's Fifth Amendment rights were no longer intact, that the People learned the exact extent of the Defendant's financial resources...At that time the People did not think it was legally appropriate to try and undo the plea agreement based on information obtained after the Defendant's Fifth Amendment rights had vanished."

But Fifth Amendment protection did not apply here, Kerr says. "Self-incrimination and financial disclosure are unrelated issues totally. Your financial condition is not something you can incriminate yourself by disclosing." He adds, "Bauman committed fraud when he told his probation officer he had no assets. That was the basis for a restitution award. Fraud. It just doesn't make any sense."

As preparation for the civil suit went forward, Kerr's investigators learned a great deal more about Donald Bauman.

Read the entire story.

Under the Knife
No matter who wins a medical malpractice case, the verdict cuts both ways

By Gayle Worland. Denver Westword. Jan. 21, 1999

Malpractice cases, Moss explained to his client, settle late or never and can cost a fortune. You'll be personally, perhaps viciously, attacked. You'll contend with tough, even brutal adversaries, special rules that treat medical negligence far more leniently than any other kind, and blind biases in favor of the defendant... Suing is major brain damage.

--From Harmful Intent, by Baine Kerr

Five years ago on I-25 near Parker, a semi plowed into Louise Simonton's brown Chevy Astro van and sent her life hurtling out of control. Last month, her past and future collided in a courtroom.

"I knew it was going to be nasty," Simonton says. "I guess I just didn't realize the depth of how personal it would be."

Just before Christmas, Simonton lost her medical malpractice lawsuit--and lost big. The drama that played out in an Arapahoe County courtroom for three weeks in December was graphic and sometimes gripping, pitting the former cleaning woman against a well-known brain surgeon who refused to settle out of court. Going to trial created colossal risk--financial, professional and personal--for them both.

Perhaps no area of civil law is more intimate--or more misunderstood--than medical malpractice. Only one in eight victims of "medical error" even consults a lawyer, and just a tiny fraction of those will see their cases tried in court before a jury. Most will lose.

Simonton had accused her neurosurgeon of performing two unnecessary surgeries and botching one of them, damaging the nerves that lead to the muscles governing the bladder and bowel. That day in the operating room changed her life, Simonton claimed, rendering her housebound for part of each day, restricting her job options and leaving her with a humiliating choice: the constant fear of fecal incontinence or the embarrassing swish-swish of adult diapers.


in Louise Simonton,  Kerr saw a highly sympathetic plaintiff: Pink-collar worker with a high-school education. Divorced mom raising two kids. Victim of a freak car accident and then a surgery gone bad.


Simonton had gone to Dr. Karl Stecher Jr. when she started experiencing headaches after the February 1994 auto accident. In court years later, several expert witnesses testified that Simonton had suffered a soft-tissue injury that required physical therapy and healing time, not surgery. At the time that Stecher sliced into Simonton's neck to fuse two vertebrae and remove a disk from her lower spine, an unconventional double-surgery costing $13,575, the doctor was under pressure to pay the Internal Revenue Service and the State of Colorado tens of thousands of dollars for back taxes.

Simonton's lawyer thought her malpractice case was a good bet. A colleague across town had already sued Stecher twice and won once. And in Louise Simonton, Boulder lawyer Baine Kerr saw a highly sympathetic plaintiff: Pink-collar worker with a high-school education. Divorced mom raising two kids. Victim first of a freak car accident and then, perhaps, of a surgery gone bad. A cheerful, 44-year-old chatterbox whose life had taken a horrific turn.

Read the entire story.