By Steve Weishampel
Source: Courthouse News Service

BRIGHTON, Colo. (CN) – A mother claims in court that a Wal-Mart optometrist masked her eyes during an eye exam and then sexually assaulted her 4-year-old daughter.

The parents of M.G. sued Wal-Mart and affiliates and Diego Posada, formerly a licensed optometrist who worked out of a Wal-Mart Supercenter.Posada was sentenced this week to a year in prison for misdemeanor child assault.

M.G., now 6, was 4 when she accompanied her mother to an eye exam, according to the family’s complaint in Adams County Court.

After the exam, the complaint states, “M.G. informed her mother that Diego Posada had taken her pants down approximately to her thigh, while (the mother’s) eyes were covered. M.G. further informed her mother that defendant Diego Posada licked his fingers and touched M.G.’s vagina and anus.”

The little girl’s accusations kicked off a criminal investigation, during which Commerce City police found traces of semen in at least eight areas in Posada’s office in the Wal-Mart, the parents say.
“Using an alternate light source (ALS), several areas of defendant Diego Posada’s examination room were tested for the presence of human semen by the Commerce City Police Department,” the complaint states.

It adds: “During the ALS testing, several areas tested presumptively positive for human semen both in the vision examination room portion and in defendant Diego Posada’s office portion of the Commerce City SuperCenter.

Specific areas which tested presumptively positive for human semen in defendant Diego Posada’s office portion of the of the Commerce City SuperCenter were (1) the front of the refrigerator, (2) the east wall, (3) the fax machine, (4) the office chair, (5) desk drawers, (6), the edge of the counter above the drawers, (7) a blanket under the sink, (8) a Christmas stocking on the back of the door handle.
“Specific areas which tested presumptively positive for human semen in the vision examination portion of the Commerce City Wal-Mart SuperCenter were (1) a large area on the south wall, (2) an area near the floor behind the examination chair, (3) on the back of the examination chair, (4) on the arms of the examination chair, (5) on the seat of a child’s booster chair.”

tate investigators then concluded that the areas above “were each 100 percent positive for human semen,” the complaint states.

Police then executed a search warrant on Posada’s home and found “a computer with child pornography,” that had a history of Internet searches for “sex crimes,” “Commerce City Police Department” and “how is salvia

[sic] recorded on or collected at crime scenes,” the complaint states.

Posada pleaded guilty in June to misdemeanor child assault and was sentenced this week to a year in jail, according to Colorado media reports.

The plaintiffs’ attorney Laura Alms told Courthouse News that her clients were happy Posada received the maximum penalty under his plea deal. According to the complaint, this was not the first accusation against Posada.

In 2006, a parent/patient complained that “Posada forced his penis into (her daughter’s) hand” and “touched E.D.’s body, both over and under clothing,” while the mother’s eyes were covered during a free exam, according to the complaint.

hat child’s parents “reported the Oct. 23, 2006 incident between (the girl) and Diego Posada to employees of defendants Wal-Mart Corporate Office, or the Commerce City Wal-Mart SuperCenter or Wal-Mart Stores East,” all of which are defendants in the new case, according to the complaint.

hat followed, Alms said in an interview, was not much of an investigation.

As I alleged, they did have a duty to report and even where there is a possibility of a duty to report, you go ahead and report it,” Alms said. “It never did go outside of Wal-Mart whatsoever. The other thing is that, to the extent they used the word ‘investigation,’ they didn’t seem to do anything other than ‘We investigated the matter and determined it closed.’ We don’t have any information as to what actions they took.”

Wal-Mart called the first little girl’s allegations “unsupported,” according to the complaint, which claims that the defendants “took no steps to implement any investigative, preventive or corrective action to prevent harm to its customers in the wake of the future.”

Alms said in the interview that an internal investigation obviously was not enough.

They’re possibly biased because they have a mutual employer and then – and I was reluctant to include this allegation in the complaint – but they didn’t provide any information that any policies changed with respect to doors being open or cameras being there or client satisfaction surveys,” Alms said.

You want the investigation to prevent subsequent occurrences. Not only did their investigation determine there was no need to do anything more, but their investigation didn’t encourage them to change their policies.”

The family seeks damages for negligence, emotional distress and deceptive trade, from Wal-Mart, and assert assault, battery and false imprisonment from Posada.

Alms is an attorney with Hale Westfall, of Denver.