80 A.3d 578
Vt.2013Background
- Plaintiff became defendant’s orthopedic patient as a teenager (age ~16) for hip/groin pain and saw him repeatedly, including after-hours visits; defendant developed a close personal relationship with plaintiff (she babysat, he gave favors).
- Defendant allegedly performed multiple ungloved digital vaginal penetrations during treatment visits (including before two surgeries); defendant contended these were legitimate medical exams.
- Plaintiff stopped treatment in August 2002; she later learned in 2007 of defendant’s criminal arrest for assaulting other patients and thereafter spoke to police.
- Plaintiff filed suit June 4, 2009 alleging childhood sexual abuse and related torts; defendant moved for summary judgment arguing claims were time-barred under 12 V.S.A. § 522(a) (six-year rule with discovery rule).
- Trial court granted summary judgment, concluding as a matter of law plaintiff knew or should have known of the wrongful nature of the examinations at the time they occurred, relying largely on plaintiff’s 2007 police interview and 2011 deposition statements.
- Vermont Supreme Court reversed, holding the accrual/discovery question was factbound and for the jury given plaintiff’s equivocal statements and the trust relationship with her doctor; remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff’s claims were barred by § 522(a) because the statute began to run when she reached majority/when assaults occurred | Clarke argued discovery did not occur until 2007 (news/criminal charges) and thus suit (2009) was timely | Abate argued Clarke knew or should have known earlier (by majority) based on her statements and the circumstances | Reversed: accrual is a factual question for the jury here; summary judgment improper because reasonable minds could differ |
| Whether plaintiff’s own police/deposition statements established discovery as a matter of law | Clarke argued her statements were ambiguous and equivocal, supporting submission to jury | Abate argued the statements show she “always knew in her heart” it was wrong, triggering the statute | Held Clarke’s statements were equivocal; inferences must be drawn by jury, not court on summary judgment |
| Whether the doctor–patient/close personal relationship tolled discovery or justified delayed accrual | Clarke argued the fiduciary/trust relationship and defendant’s conduct could have concealed the legal injury, delaying discovery | Abate argued the relationship and facts actually put Clarke on inquiry notice earlier | Held relationship and circumstances support possible delayed discovery; jury must decide whether plaintiff reasonably discovered the injury earlier |
| Whether plaintiff may pursue fraudulent concealment to toll limitations | Clarke invoked fraudulent concealment theory in opposition to summary judgment (but did not plead intentional fraud in later complaint) | Abate argued tolling is unavailable because plaintiff knew or should have known and because fraud was not pleaded | Held tolling/fraudulent-concealment is subsumed in the jury’s accrual inquiry; intentional-fraud claim is foreclosed to extent it was not pleaded |
Key Cases Cited
- Earle v. State, 743 A.2d 1101 (Vt. 1999) (adoption of discovery rule for childhood sexual abuse accrual)
- Lillicrap v. Martin, 591 A.2d 41 (Vt. 1991) (accrual requires discovery of injury and causal connection; accrual is usually a jury question)
- Turner v. Roman Catholic Diocese of Burlington, 987 A.2d 960 (Vt. 2009) (statute-of-limitations accrual is generally for the trier of fact)
- Rodrigue v. Valco Enters., Inc., 726 A.2d 61 (Vt. 1999) (example where accrual decided as matter of law due to undisputed inquiry notice)
- Riley v. Presnell, 565 N.E.2d 780 (Mass. 1991) (disputes over when plaintiff knew or should have known properly for jury)
- Doe v. Creighton, 786 N.E.2d 1211 (Mass. 2003) (contrast where plaintiff’s evidence failed to show concealment or disguise of abuse)
- Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000) (on summary judgment, courts should not resolve inferences where record permits a favorable inference for nonmoving party)
- Milton Educ. & Support Ass’n v. Milton Bd. of Sch. Trs., 759 A.2d 479 (Vt. 2000) (failure to oppose summary judgment does not justify judgment where facts are insufficient as a matter of law)