Thursday, December 16, 2010

Statute of limitations
Case could sink abuse suits
State Supreme Court to decide constitutionality of suspending statute of limitations
By SEAN O'SULLIVAN • The News Journal • December 16, 2010
DOVER -- The Delaware Supreme Court heard arguments Wednesday in a case that could undermine, if not cripple, all 150 pending priest sexual-abuse lawsuits in Delaware.
In the case of James Sheehan v. Oblates of St. Francis de Sales and Salesianum School, the religious order challenges the constitutionality of the Delaware Child Victims Act of 2007.
In court briefs and in court, attorneys for the Oblates argued that the Legislature did not have the authority to suspend the civil statute of limitations, which allowed the vast majority of the priest sexual-abuse lawsuits to be filed seeking damages for abuse that took place as long as 40 or 50 years ago.
The law suspended the statute of limitations -- which normally expires two years after the act or acts at issue -- for a two-year window that closed in 2009.
Attorneys for Sheehan argued that similar suspensions of civil statutes of limitations have taken place before in Delaware and elsewhere and have been upheld as legal and proper.
At least two victims who have filed suits under the law were in court to watch the arguments Wednesday. One, who is known in court papers as John Doe 3, said the fate of the act is "extremely" important to him and other survivors of childhood sexual abuse and he hopes it survives this challenge. "Justice is a process," he said.
Because of the number of lawsuits filed under the Child Victims Act -- and the potential damages faced by the Roman Catholic Diocese of Wilmington if all went to trial -- the diocese filed for bankruptcy protection in October 2009.
A federal bankruptcy court judge then put all but a handful of those priest sexual-abuse cases on hold until the bankruptcy was resolved. Two of those exceptions included the Sheehan case -- where no damages were awarded to the plaintiff -- and the case brought by John Vai against St. Elizabeth Parish.
A jury awarded Vai $60 million in damages earlier this month, with St. Elizabeth Parish responsible for $3 million of that total. The rest of the award was against the defrocked priest who admitted molesting Vai.
A jury denied damages to Sheehan in his suit alleging he was molested by the Rev. Francis Norris of Salesianum in 1962.

The Oblates' attorney Mark Chopko said should the Supreme Court rule the Child Victims Act unconstitutional, all cases brought only under that law would be dismissed.
A handful might survive such a ruling because they are based on other grounds, according to attorneys. The jury in the Vai case, for example, also found repressed memories were involved, so that case would survive if the Child Victims Act were overturned. But Chopko on Wednesday could not say exactly how many cases would survive. Attorneys for Sheehan, who also represent a number of other plaintiffs in priest abuse cases, declined to comment while the Supreme Court was considering the Sheehan case.
In court, Chopko argued it was fundamentally unfair to make the religious order fight "ancient" claims where few records exist and where many key players -- including, in some cases, the accused priest -- are now dead.
He also told the court that this was a "case of first impression," that had the potential of affecting future litigation and legislation because no one before has questioned in court the limits of the Legislature's power in such matters.
Chopko said by allowing so many old civil claims to be revived, the Legislature was violating the "vested rights" of the Oblates -- and similar defendants -- who had every reason to believe they no longer faced lawsuits.
The sexual abuse of children is "a heinous crime and a grievous sin" and those who committed such acts should be brought to justice, Chopko said. "But it must be done according to the rule of law."
Sheehan attorney Stephen J. Neuberger argued that it is settled law and well within the Legislature's authority to suspend the civil statute of limitations to allow victims of childhood sexual abuse to seek redress.
Neuberger said courts including the U.S. Supreme Court have recognized that a statute of limitations is a matter of procedure and not a right enjoyed by defendants in civil caNeuberger told the justices it was a clear policy decision of the Legislature "to give child victims a voice. I ask you to not take that voice away."
While the Oblates argued that Delaware law is different from federal law, Neuberger said 50 years of case law in the state disagreed.
Retired Widener Law School professor Tom Reed said he believes Sheehan's side has the stronger legal argument. Reed said if the Delaware Supreme Court tosses out the Child Victims Act on the theory that the Legislature could not retroactively suspend the statute of limitations in civil cases, "it would be new law."
And at Wednesday's oral arguments, the four justices, along with Vice Chancellor John Noble, seemed equally interested in arguments by Sheehan seeking a new trial as they were in arguments from the Oblates challenging the Child Victims Act.
Chief Justice Myron T. Steele pressed attorneys for the Oblates about an apparent contradiction between the jury instructions and the verdict form in the Sheehan case and how that may have confused the jury.
Oblates attorney Colleen Shields responded that there was no confusion and the jury verdict in favor of Salesianum and the Oblates should be affirmed.

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