Would You Know This Man If You Saw Him?

You may not know Massachusetts Bar Association member Kenneth I. Kolpan, but odds are, you've seen his ads. For years, they've appeared in Massachusetts legal publications. The ads feature the dapper William Powell-lookalike (in your movie encyclopedia, see "Loy, Myrna") posing the aforementioned question.

"We're working on a case together now and there are five or six attorneys on the other side," says attorney Car-men L. Durso, who shares office space with Kolpan on the top floor at 100 Summer St., Boston. "We had them all here for a deposition a couple of days ago, and they were kidding Ken about the fact that his picture is always in the paper.

"That advertising has given him very high visibility ... Ken gets a great deal of work from referrals.

In fact, Kolpan estimates that more than half his work comes from other attorneys, who pass on a case to him, or hire him as co-counsel. Those attorneys often have learned about him through his advertising, and through his speeches, articles, Web site (www.kolpan.com) and other presentations on closed-head injuries, a specialty that has helped him develop a national reputation in a field that's grown significantly since he began practicing it as a specialty back in 1981.

"He's one of the most highly recognized specialists in head injury work," says attorney Mark Furcolo, a colleague at Curley & Curley, who has worked on the opposite side from Kolpan. "He's an awfully nice guy, and an honorable guy, too."

"As far as I'm concerned, we're very far down the road to the kind of specialization or compartmentalization found in the medical profession," adds Durso, a specialist in premises liability, sexual assault and incest cases. "Ken gets a lot of cases from lawyers who don't know what to do in a case, or have an idea of what to do but are nervous because of the substantial issue involved, or think the defense attorney won't respect their knowledge, or don't want to become involved because there is so much to get into. People like Ken fit that niche."

Closed-head injury cases can be very tricky, and lawyers on both Sides rely heavily on medical experts, and on educating juries. Victims of closed head injuries often appear to function normally, and have normal findings in many tests, such as an MRI, CT scan, or EEG. Attorneys for defendants often try to paint victims as malingerers. But people with closed-head injuries suffer from cognitive and memory deficits, and function far less efficiently than before the injury. Tests such as MRIs may only be "snapshots in time," Kolpan notes, and the damage may already have been done.

"Traditional diagnostic tests often come up negative," Kolpan says. "Yet, if you examined the CT scan or MRI of some of the most severely brain injured people, they too would have normal CT scans or MRIs. What caused the damage to their brain has heated."

The damage is also usually permanent.

The plaintiffs' attorney relies on the testimony or friends and family members who note the changes in the victim - who may be pouring orange juice into a coffee Mug, Or becoming increasingly irritable as a result of frustration and the expert testimony of neurologists, who administer tests to measure their client's cognitive function and ability to think, to determine what Kolpan calls "the islands of deficits" they have.

Kolpan has always had a professional interest in both law (Boston College School of Law, 1972) and medicine (University of Rochester, bachelor of arts degree in psychology, 1968). He spent the early years of his professional career providing legal services to inmates in the state correctional system, advised forensic psychologists and psychiatrists as part of the staff at McLean Hospital in Belmont, and served as corporate counsel to the New England Medical Center. There, he would give seminars to physicians, rehabilitation specialists, consumers (patients) about the rights of persons with disabilities.

His career path veered when he was asked to speak on that topic to a meeting of the National Head Injury Association (now the international Brain Injury Association), where he met people such as founder Marilyn Price Spivac, whose daughter suffered severe injuries in a motor vehicle accident, and could not get services.

Kolpan saw a need, intellectual challenge, and opportunity.

"By being in the medical community you absorb through osmosis some information and knowledge about medical practice, the way physician's think and how hospitals work," says Kolpan, who got involved with the organization and in 1999 served as program co-chairman at its conference of attorneys in Arizona. "I was able to utilize this background to represent people who'd suffered traumatic brain injuries. It was very fascinating, and very challenging."

It has been rewarding in multiple ways, particularly as the field has mushroomed in the past 15 years. The verdicts and settlements in these cases Often get into the millions of dollars.

One particularly significant Kolpan case was settled in 1986. It was a case in which a 30-year-old Framingham woman won a $2 million damage suit after an employee at a local K Mart closed a 400pound mechanical garage door, striking her on the head. The woman, who had a master's degree in community mental health, was working as a teacher's assistant in special education and working toward full certification as a special education teacher. An economist estimated that the amount of future lost income and benefits would total $1 million. The victim testified to lack of memory, lack of concentration, disorientation, constant nightmares, fear and recurring headaches.

.I thought then, and still do, that was a watershed case," Kolpan says. "The jury had caught up with the medical understanding of the injury. They understood that despite the woman's ability to walk into the courtroom, and talk, she's suffered permanent brain injury that would not allow her to work (in her field) the rest of her life. It demonstrated that with appropriate experts and lay witnesses, the jury would appreciate the nature of the injury, despite seeing this person appearing normal."

Among the objects in Kolpan's office is a football helmet, a memento from a client whose case Kolpan didn't take.

The young man was a high school football player who suffered a head injury in a football game. Kolpan had borrowed the helmet to examine and see if it had a structural defect, but before he proceeded too far with the case, he learned that the head injury was actually the boy's second concussion within just a few weeks time. The first came during a tag football game with friends.

When a second concussion occurs within a short period of the first, it has the potential to be particularly damaging.

With what is known now about head injury, if he was approached with that case now Kolpan would have investigated to see what the school's knowledge was of the first injury, and whether the coaches and trainers had acted appropriately in letting the boy suit up for the varsity. As it was, Kolpan couldn't take the case.

He keeps the helmet, he says, "as a sobering reminder of what I do."

"Hopefully, through my efforts, and people like me, people's lives are better."


This article originally appeared in the October 1999 issue of Lawyers Journal Newspaper.