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JACOB DOE v . HARTFORD ROMAN CATHOLIC DIOCESAN CORPORATION (SC 19131) (SC 19132) Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.
Argued September 22, 2014—officially released July 7, 2015 John W. Sitarz and Wesley W. Horton, with whom was Lorinda S . Coon , for the appellant (defendant).
Hugh D. Hughes , with whom were Thomas McNa- mara and, on the brief, William F. Gallagher , for the appellee (plaintiff).
Brenden P. Leydon filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
Opinion ROBINSON, J. A jury found that the defendant, the Hartford Roman Catholic Diocesan Corporation, acted negligently and recklessly when it assigned Father Ivan Ferguson, an alcoholic whose admitted acts of child molestation were understood to be linked to his drink- ing, to serve as the director of Saint Mary’s Elementary School in Derby (Saint Mary’s School), where he sexu- ally abused the plaintiff, Jacob Doe, [1] from 1981 through 1983. The defendant now appeals from the judgment of the trial court, rendered in accordance with the jury’s verdict, which awarded the plaintiff $1 million in dam- ages plus punitive damages in the form of attorney’s fees and costs. [2] On appeal, the defendant raises a plethora of claims challenging the judgment of the trial court, including that: (1) there was insufficient evidence to support the jury’s verdict that the defendant had acted negligently and recklessly from 1979 through 1983; (2) the trial court made numerous improper evidentiary rulings, particularly when it precluded expert testimony that would have provided a historical perspective about the public’s perception of pedophilia [3] from 1979 through 1983; (3) the trial court improperly struck the special defense of laches; and (4) the retroactive application of certain amendments to the applicable statute of limi- tations, General Statutes § 52-577d, [4] which had the effect of reviving the plaintiff’s otherwise time barred claims, violated the defendant’s substantive due pro- cess rights under article first, §§ 8 and 10, of the Con- necticut constitution. We disagree with all of these claims. Accordingly, we affirm the judgment of the trial court.
The record reveals the following facts, which the jury reаsonably could have found, and procedural history. In the early morning of March 7, 1979, Father Gene Gianelli, a priest who was serving as secretary to Arch- bishop John Whealon, received a telephone call from Ferguson, who at that time was a priest at Saint Ber- nard’s Parish in Tariffville and a teacher at Northwest Catholic High School in West Hartford (Northwest). Ferguson informed Gianelli that a woman had reported to Father Joseph Donahue, another priest at Saint Ber- nard’s Parish, that Ferguson had molested two boys in the parish, and that the accusation was in fact true. Ferguson also told Gianelli that he was experiencing an alcohol problem, and asked for help.
Later that day, Whealon met with Donahue and Fergu- son in Whealon’s office; Gianelli did not attend that meeting. Whealon, however, memorialized that meeting in a handwritten memorandum to Gianelli, stating that Ferguson had been struggling with his sexuality since childhood, and ‘‘[n]ow alcohol has entered the picture.’’ Whealon noted specifically that Ferguson had molested the two boys ‘‘in a way that showed his abject weak- ness,’’ but was now ‘‘totally contrite,’’ acknowledging *4 he needed help, and had claimed that he was not in ‘‘immediate danger of touching others . . . .’’ Whealon communicated the decisions made during the meeting, namely, that: (1) they would arrange for Ferguson to be treated at the House of Affirmation, an inpatient facility; (2) Donahue would inform the woman who had reported the molestation about their solution and ‘‘will ask them to tell no one’’; and (3) Ferguson would ‘‘tell no one’’ of what happened. Whealon noted his ‘‘hope [that Ferguson] can get help [and] control it perma- nently. Otherwise we have a real problem.’’ [6]
Subsequently, on March 16, 1979, Donahue reported to Gianelli that Ferguson had not gone to the House of Affirmation, and did not want to leave Saint Bernard’s Parish. Gianelli brought this to Whealon’s attention. After following up on this report, Whealon stated in a memorandum that there ‘‘is more at [Northwest] than we know of,’’ and that the mother of one of the boys who had been molested was seeing a counselor with him. Whealon observed further that the counselor was a mandated reporter under state law, and the ‘‘entire matter seems to be blowing up’’ as the ‘‘mother is not satisfied that anything is being done.’’ With respect to additional victims, Whealon noted specifically that ‘‘there were [four] older boys, last summer. These last [two] were in [November] 1978. Seemingly nothing has happened at [Northwest].’’ Whealon directed Gianelli to call Ferguson and tell him to leave Saint Bernard’s Parish, or else Whealon ‘‘who [is] liable,’’ would order him out personally.
Subsequently, Gianelli discussed Ferguson’s alcohol- ism and acts of child molestation with Father Michael Peterson, a priest and physician who was the director of the Saint Luke Institute in Holliston, Massachusetts. Gianelli then reported to Whealon that he had arranged for Ferguson to enter the inpatient program at the Saint Luke Institute on March 26, 1979, which would first ‘‘work with [his] chemical dependence’’ and then his ‘‘emotional and psychological problems’’ over a four to six month period. Gianelli did not know whether or how the Saint Luke Institute specifically would address Ferguson’s pedophilia. Gianelli further advised Whealon that he would inform Northwest, through the defendant’s superintendent of schools, that Ferguson would be leaving the teaching assignment to ‘‘get ‘some help’ ’’ because of ‘‘some pressures [Ferguson] is experi- encing,’’ in order to ‘‘keep this thing quiet and help [Ferguson]’’ who ‘‘agrees with this procedure. It can and will save him from [an] embarrassing situation.’’ Gianelli noted that it ‘‘will be recommended that [Fergu- son’s] next assignment be away from the area he is presently assigned to.’’ Gianelli then stated that he would direct Donahue to ‘‘inform the [woman] in Tar- iffville that [Ferguson] is away and being treated. I will not let this woman know where [Ferguson] is receiving treatment. She could become a pest if she knew.’’
Ferguson was treated as an inpatient at the Saint Luke Institute from March 26 through July 12, 1979. Whealon visited Ferguson at the Saint Luke Institute, and, after consultation with Peterson, arranged for Fer- guson to be reintegrated into the ministry by assigning him to serve, upon his discharge, as the chaplain of Lauralton Hall, an all girls school, and to reside in a nearby rectory. Whealon summarized the details of the transition plan in a handwritten memorandum to Gia- nelli dated June 17, 1979, stating ‘‘it is OK to say that [Ferguson] is an alcoholic and is now completing his rehabilitation in a new alcoholism program.’’ Whealon then directed Gianelli to arrange for: (1) Ferguson to reside in a ‘‘nearby rectory which has an open dialogu- ing, priestly spirit’’; (2) Peterson to brief the rectory priests and school administrators about Ferguson’s treatment for alcoholism; and (3) Father Leonard Kvedas, a local priest, to help Ferguson join a clergy oriented Alcoholics Anonymous group. [7] Peterson’s briefing was held on July 22, 1979. Ferguson’s sexual proclivities were not discussed at that meeting. On July 27, 1979, Whealon formally appointed Ferguson to serve part-time as chaplain at Lauralton Hall; in November, 1979, Ferguson began to serve part-time as assistant pastor of Saint Mary’s Parish in Derby, where he resided in the rectory.
On June 8, 1981, Ferguson was assigned to serve full- time as assistant pastor of Saint Mary’s Parish. Ferguson later requested a new teaching assignment, which Peterson had supported as clinically appropriate with respect to Ferguson’s ‘‘other issues . . . as long as the disease of alcoholism is in control.’’ [8] Father Richard Bollea, the pastor of Saint Mary’s Parish, then appointed Ferguson to serve as director of Saint Mary’s School, rather than grant Ferguson’s initial request to work at an all boys school. Gianelli testified that he did not know, however, whether Whealon had ever warned Bol- lea about Ferguson’s pedophilia, and Gianelli had not done so personally. Gianelli also did not know of any restrictions placed on Ferguson’s ability to be around minors following his release from the Saint Luke Insti- tute. Donna Dougherty, the plaintiff’s eighth grade teacher at Saint Mary’s School, testified that she had never been advised that Ferguson had been treated for the sexual abuse of young boys, or to keep an eye on him around students. [9]
The plaintiff and his best friend, R, attended Saint Mary’s School while Ferguson was the priest-director there. Ferguson had befriended R by taking him ‘‘under . . . his wing’’ after the death of his mother, and met the plaintiff, then a thirteen year old seventh grader, through R. At the time, both the plaintiff and R consid- ered Ferguson’s friendship to be a privilege because he was younger and more ‘‘hip’’ than the ‘‘stuffy’’ older priests; Ferguson was interested in the music that the *6 students liked, and he let them call him by his first name. Ferguson often pulled the boys from their classes for errands or to help him as altar servers at daily masses, and would then tаke them for a soda or a snack before they returned to class. The plaintiff described Ferguson as ‘‘the man’’ at Saint Mary’s School, and stated that, ‘‘if he liked you, you were held in high esteem . . . .’’
Ferguson then began to molest the plaintiff and R both on and off the grounds of Saint Mary’s School. Ferguson would step in for the female gym teacher to supervise the male students in the communal shower after physical education classes, where he would soap the boys’ backs and make comments about their geni- tals. Other molestations took place in the basement of Saint Mary’s School, where the plaintiff would be summoned from class to help Ferguson retrieve supplies.
Ferguson’s relationship with the plaintiff and R deep- ened as they entered eighth grade, and he often took them to restaurants and for sleepovers at the rectory. [11] Other students were frequently present during the sleepovers. Bollea, the pastor of the parish who also lived in the rectory, was downstairs in the building during these sleepovers; on one occasion he greeted R in the rectory’s kitchen when R went to get breakfast after a sleepover. [12] Frequent molestations occurred dur- ing these sleepovers. [13] Eventually, these events culmi- nated in an episode during which Ferguson sodomized the plaintiff in the basement of Saint Mary’s School. The plaintiff and R did not tell anyone about the moles- tations because, despite their feelings of shame, they enjoyed the social popularity that resulted from Fergu- son’s attention to them.
As they moved into high school, the plaintiff and R never discussed their molestations or told anyone else about them; as adults, they initially agreed not to say anything about them. The plaintiff kept the molestations a secret for more than twenty years [14] and moved on to marry, [15] have two sons, and work as a fire marshal and investigator. Thereafter, Thomas McNamara, the attorney who represented the plaintiff at trial in this case, contacted him as a potential witness in connection with a separate lawsuit that R had brought against the defendant. At that point, after receiving counseling to address anxiety and despair caused by the molestations and his secret becoming public, the plaintiff brought this action against the defendant.
In his two count complaint, the plaintiff claimed that the defendant’s actions with respect to its assignment and supervision of Ferguson were negligent and reck- less, and caused him serious and debilitating emo- tional injuries, and sought money damages, punitive damages, exemplary damages, and attorney’s fees and costs. In response, the defendant filed an answer and *7 pleaded numerous special defenses, including laches and the statute of limitations.
The trial court granted the plaintiff’s motion to strike the special defense of laches. The defendant later filed a motion for summary judgment on the ground that the action was time barred under § 52-577d, and that, under the due process clauses of the federal and state constitu- tions, the ‘‘cause of action cannot be revived by retroac- tive application of a lengthened limitation period enacted after the time allowed for bringing claims had already expired.’’ The trial court disagreed with these claims and denied the defendant’s motion for sum- mary judgment.
The case was tried to a jury, which returned a verdict finding that the plaintiff had proven by a preponderance of the evidence that the defendant’s conduсt was a proximate cause of the plaintiff’s injuries insofar as it had negligently and recklessly failed to: (1) supervise Ferguson adequately in ‘‘his interaction and conduct toward minors with whom he would have contact’’; (2) ‘‘immediately remove . . . Ferguson from any position within the [defendant] when it knew or had reason to know that he was a danger to minors’’; and (3) ‘‘warn or advise its congregations, parishioners and employees, which would have included the plaintiff’s mother and father, of the threat which . . . Ferguson posed to minor children, including the plaintiff.’’ The jury awarded the plaintiff $1 million in compensatory dam- ages, and the trial court awarded punitive damages in the form of attorney’s fees and costs on the recklessness count. The trial court subsequently denied the defen- dant’s motion to set aside the verdict. This appeal followed. See footnote 2 of this opinion.
On appeal, the defendant challenges numerous aspects of the trial court proceedings, contending that: (1) the evidence was insufficient to support the jury’s negligence and recklessness verdicts; (2) the trial court made several improper evidentiary rulings; (3) the trial court improperly struck the defendant’s special defense of laches; and (4) the revival of the plaintiff’s time barred cause of action through the retroactive application of § 52-577d violated the defendant’s substantive due pro- cess rights under the Connecticut constitution. We address each claim in turn, and set forth additional relevant facts and procedural history where necessary.
I SUFFICIENCY OF THE EVIDENCE CLAIMS We begin with the defendant’s claims challenging the sufficiency of the evidence in this case, specifically that: (1) expert testimony was necessary to support the plaintiff’s claims by establishing what was commonly known about pedophilia during the late 1970s and early 1980s; (2) the jury could not reasonably have found that the defendant had failed to supervise Ferguson *8 adequately; and (3) the jury’s recklessness finding lacks support because there was no evidence that Whealon had consciously disregarded a known danger.
‘‘A party challenging the validity of the jury’s verdict
on grounds that there was insufficient evidence to sup-
port such a result carries a difficult burden. In reviewing
the soundness of a jury’s verdict, we construe the evi-
dence in the light most favorable to sustaining the ver-
dict. . . . Furthermore, it is not the function of this
court to sit as the seventh juror when we review the
sufficiency of the evidence . . . rather, we must deter-
mine . . . whether the totality of the evidence, includ-
ing reasonable inferences therefrom, supports the jury’s
verdict .
.
.
. [I]f the jury could reasonably have
reached its conclusion, the verdict must stand, even if
this court disagrees with it.’’ (Citation omitted; internal
quotation marks omitted.)
Broadnax New Haven
,
Moreover, with respect to the trial court’s refusal to
set aside the verdict, ‘‘we accord great deference to
the vantage of the trial judge, who possesses a unique
opportunity to evaluate the credibility of witnesses.
. . . The concurrence of the judgments of the [trial]
judge and the jury .
.
. is a powerful argument for
upholding the verdict.’’ (Citation omitted; internal quo-
tation marks omitted.)
Gaudio Griffin Health Ser-
vices Corp
.,
‘‘Two further fundamental points bear emphasis. First, the plaintiff in a civil matter is not required to prove his case beyond a reasonable doubt; a mere pre- ponderance of the evidence is sufficient. Second, the well established standards compelling great deference to the historical function of the jury find their roots in the constitutional right to a trial by jury.’’ (Footnote omitted.) Id., 534–35.
A
Whether Expert Testimony Was Necessary
The defendant first claims that, because of the age
of the allegations in the present case relative to the
time of trial, expert testimony was necessary to support
the jury’s finding of negligence. The defendant relies
heavily on this court’s decision in
LePage Horne
, 262
Conn. 116,
In response, the plaintiff contends that the trial court properly determined that expert testimony was not nec- essary because this was not a professional malpractice case centered on curing pedophilia, but rather, con- cerned the defendant’s failure to apply a ‘‘minimal level of care’’ insofar as Ferguson ‘‘should have been in jail, not director of Saint Mary’s School. If the defendant had shown a minimal level of concern for the obviously foreseeable future victims of a six time child molester and called the police, none of this would have hap- pened.’’ The plaintiff further argues that ‘‘[e]xpert testi- mony has never been required in Connecticut to prove a negligent supervision claim where there has been past intentional conduct of the same kind perpetrated in the pending case,’’ observing that the ‘‘gravity of the harm alone, child rape, indicates that the defendant’s plan for secrecy was a violation of its duty to supervise and inform parents and teachers of Ferguson’s history and obvious propensity to molest minor boys.’’ On the facts of this case, given the defendant’s actual knowledge that Ferguson had molested multiple children, along with that destructive behavior being closely linked to his alcoholism and risk of relapse, we agree with the plaintiff and conclude that expert testimony was not required to establish the lay standard of care.
‘‘As an initial matter, we note that the [trial] court’s
determination of whether expert testimony was needed
to support the plaintiff’s claim of negligence against the
defendant was a legal determination, and, thus, our
review is plenary.’’
Vanliner Ins. Co. Fay
, 98 Conn.
App. 125, 136–37,
‘‘We begin by setting forth the relevant parameters under our negligence jurisprudence. The essential ele- ments of a cause of action in negligence are well estab- lished: duty; breach of that duty; causation; and actual injury. . . . Contained within the first element, duty, there are two distinct considerations. . . . First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty. . . . The issue of whether a duty exists is a question of law . . . which is subject to plenary review. We sometimes refer to the scope of that duty as the requisite standard of care. . . .
‘‘[O]ur threshold inquiry has always been whether the
specific harm alleged by the plaintiff was foreseeable to
the defendant.
.
.
. By that is not meant that one
charged with negligence must be found actually to have
foreseen the probability of harm or that the particular
injury which resulted was foreseeable, but the test is,
would the ordinary [person] in the defendant’s position,
*10
knowing what he knew or should have known, antici-
pate that harm of the general nature of that suffered
was likely to result? . . . The idea of risk in this context
necessarily involves a recognizable danger, based upon
some knowledge of the existing facts, and some reason-
able belief that harm may possibly follow. . . . Accord-
ingly, the fact finder must consider whether the
defendant knew, or should have known, that the situa-
tion at hand would obviously and naturally, even though
not necessarily, expose [the plaintiff] to probable injury
unless preventive measures were taken.’’ (Citations
omitted; internal quotation marks omitted.)
LePage
v.
Horne
, supra,
‘‘[E]xpert testimony . . . serves to assist lay people,
such as members of the jury and the presiding judge,
to understand the applicable standard of care and to
evaluate the defendant’s actions in light of that stan-
dard. . . . Expert testimony is required when the ques-
tion involved goes beyond the field of the ordinary
knowledge and experience of judges or jurors.’’ (Cita-
tion omitted; emphasis omitted; internal quotation
marks omitted.) Id., 125. Typical cases where expert
testimony is required are those that ‘‘are akin to allega-
tions of professional negligence or malpractice.’’
Santo-
pietro New Haven
, supra,
Guided by the content of the parties’ summations, we agree with the plaintiff’s characterization of the central question submitted to the jury in the present case, namely, whether it was reasonable for the defen- dant to rely on Peterson’s opinion that Ferguson’s con- tinued sobriety was the key to maintaining the behavioral inhibitions that would keep him from molest- ing more boys. See footnote 8 of this opinion and accom- panying text. The plaintiff correctly observes that the jury was not required to determine as a scientific matter whether pedophilia was at some point in history ever considered curable, or whether Ferguson was treated properly by Peterson and the clinical staff at the Saint Luke Institute. Rather, the issue for the jury boiled down to whether, given the gravity of the harms caused by child molestation, it was reasonable to take a chance on Ferguson’s continued success in his alcoholism treatment. Accordingly, the question we must answer in this appeal is whether the possibility that an alcoholic might relapse is a subject within the ordinary juror’s common knowledge and experience. [20]
We conclude that the risk that a person under treat-
ment for addiction to alcohol could relapse into that
addiction is not, and historically has not been, a subject
outside the common knowledge and experience of an
ordinary juror. ‘‘Jurors are not expected to lay aside
matters of common knowledge or their own observa-
tion and experience of the affairs of life, but, on the
contrary, to apply them to the evidence or facts in hand,
to the end that their action may be intelligent and their
*11
conclusions correct.’’ (Internal quotation marks omit-
tеd.)
State
v.
Padua
,
Akin to the effects of alcohol, it has been held to be
‘‘a matter of common knowledge that addicts often
relapse, going back and forth between substance abuse
and sobriety.’’
Jones Valdez
, United States District
Court, Docket No. 1:09CV00132 (MHW) (D. Idaho March
23, 2012), aff’d sub nom.
Jones Ellis
, 586 Fed. Appx.
344 (9th Cir. 2014); accord
Zenor El Paso Healthcare
Systems, Ltd.
,
Contrary to the defendant’s claims, this case is not
analogous to the more subtle intersection of common
knowledge and medicine presented to the jury in
LePage
, which required us to consider whether an ordi-
nary person would be aware, given then recent
advances in research, that the risk of sudden infant
*12
death syndrome is not merely present, but ‘‘appreciably
greater’’ when an infant is left sleeping in a prone posi-
tion.
LePage Horne
, supra,
B
Negligent Supervision
The defendant next claims that there was insufficient
evidence that it did not adequately supervise Ferguson
because there was no evidence of how the defendant’s
personnel supervised him, insofar as the witnesses to
the relevant facts are either dead or very elderly. Relying
heavily on this court’s decision in
Paige
v
. St. Andrew’s
Roman Catholic Church Corp
.,
Specifically, we disagree with the defendant’s claim
that the jury’s conclusion that the defendant had not
provided adequate supervision of Ferguson, a priest
that it knew had molested children, was founded solely
on the kind of sympathy driven ‘‘creative guesswork’’
that led this court to overturn a jury’s verdict of negli-
gence in
Paige St. Andrew’s Roman Catholic Church
Corp
., supra,
To the extent the defendant urges us to conclude otherwise through its reliance on the monitoring of Ferguson’s sobriety, and occasional reports from the Saint Luke Institute to Whealon, it is asking us to sit as the ‘‘seventh juror’’ and retry the facts on appeal, which contravenes our long-standing reluctance ‘‘to dis- turb jury verdicts, and we accord great deference to the vantage of the trial judge, who possesses a unique opportunity to evaluate the credibility of witnesses.’’ Gaudio Griffin Health Services Corp ., supra, 249 Conn. 534. Accordingly, we decline to disturb the jury’s verdict finding that the defendant had negligently super- vised Ferguson.
C Recklessness The defendant next claims that there was no evidence from which the jury properly could have found that Whealon had consciously disregarded a known danger, thus, meaning that its recklessness finding is not sup- ported by sufficient evidence. The defendant argues that the evidence in this case, specifically, Whealon’s memorialized hope that Ferguson ‘‘ ‘can get help and control it permanently’ ’’ or ‘‘ ‘[o]therwise we have a real problem,’ ’’ ‘‘showed . . . the opposite of con- scious disregard,’’ namely, Whealon’s ‘‘desire and intent to do the right thing both for the people of the Archdio- cese [of Hartford] and for . . . Ferguson.’’ The defen- dant contends that its decision to send Ferguson for inpatient treatment and evaluation at the Saint Luke Institute, and to impose a slow, carefully monitored return to service, demonstrates that it proceeded cau- tiously in light of Whealon’s then reasonable ‘‘under- standing that Ferguson’s condition needed to be and could be permanently controlled.’’ (Emphasis omitted.)
In response, the plaintiff contends that the defen- dant’s recklessness is demonstrated by its ‘‘total lack of concern for the victims and their families,’’ as evinced by Whealon’s commitment to secrecy in furtherance of the ‘‘defendant’s sole concern [being] to protect itself, its reputation, and its priests.’’ Noting Whealon’s knowl- edge of six prior molestations by Ferguson, the plaintiff emphasizes that, ‘‘[e]ven if [Whealon] believed, in defi- ance of common sense which existed in 1981 as it does today, that alcoholism was the cause of sexual molesta- tion, it remained reckless to toss the wolf into the sheep pen and not warn a soul. ’’ (Emphasis in original.) We *14 agree with the plaintiff, and conclude that the jury rea- sonably could have found that the defendant’s actions rose to the level of recklessness.
‘‘Recklessness requires a conscious choice of a
course of action either with knowledge of the serious
danger to others involved in it or with knowledge of
facts which would disclose this danger to any reason-
able man, and the actor must recognize that his conduct
involves a risk substantially greater .
.
. than that
which is necessary to make his conduct negligent. . . .
More recently, we have described recklessness as a
state of consciousness with reference to the conse-
quences of one’s acts. . . . It is more than negligence,
more than gross negligence. . . . The state of mind
amounting to recklessness may be inferred from con-
duct. But, in order to infer it, there must be something
more than a failure to exercise a reasonable degree
of watchfulness to avoid danger to others or to take
reasonable precautions to avoid injury to them. . . .
Wanton misconduct is reckless misconduct. . . . It is
such conduct as indicates a reckless disregard of the
just rights or safety of others or of the consequences
of the action.’’ (Citations omitted; internal quotation
marks omitted.)
Matthiessen Vanech
,
We agree with the plaintiff that, given the vulnerabil-
ity of the children attending the defendant’s churches
and schools, the jury reasonably could have viewed
Whealon’s commitment to secrecy with respect to Fer-
guson’s treatment and reassignment as indicative of the
defendant’s recklessness. This was particularly so given
that Whealon held in great confidence the fact that
Ferguson had molested six other boys before being sent
for alcohol treatment. Whealon’s consciousness of the
risk is further demonstrated by his statement that Fer-
guson needed to ‘‘get help and control it permanently.
Otherwise we have a real problem.’’ Accordingly, we
view the defendant’s arguments to the contrary, includ-
ing its emphasis on Whealon’s ‘‘reasonable, good faith
reliance on the professional advice’’ of Petеrson, as
nothing more than attempts to retry this case. See,
e.g.,
Gaudio Griffin Health Services Corp
., supra,
II CHALLENGES TO EVIDENTIARY RULINGS *15 We next address the defendant’s challenges to several of the trial court’s evidentiary rulings, specifically those: (1) precluding the expert testimony of John Philip Jen- kins, a social historian; and (2) relating to Ferguson’s treatment at the Saint Luke Institute, including the admission of Ferguson’s 1997 deposition testimony and the preclusion of Gianelli’s testimony about Peterson’s statements to him.
A Jenkins’ Expert Testimony The defendant claims that the trial court improperly precluded the expert testimony from Jenkins, who would have testified that: (1) in the 1970s, child molesta- tion was commonly believed to be incidental to causes such as alcoholism or senility, rather than an indepen- dently compulsive or persistent behavior; and (2) the defendant’s response to what it learned about Ferguson was consistent with the practices considered appro- priate in that period. The defendant argues that Jenkins’ testimony would have provided the jury with a helpful ‘‘temporal context that would have reduced the problem of hindsight reasoning,’’ given that this case concerned the lay standard of reasonable care from 1979 through 1983, rather than 2012 when this case was tried. In response, the plaintiff contends that the trial court did not abuse its discretion in excluding Jenkins’ testimony because it was irrelevant to the issues in the case, and, further, as a historian and not a mental health profes- sional, Jenkins was not qualified to testify about mental health practices in the 1970s. We agree with the plaintiff, and conclude that the trial court did not abuse its discre- tion by precluding Jenkins’ expert testimony.
We note that the record reveals the following relevant facts and procedural history. The defendant disclosed that it intended to call Jenkins, who at the time of trial was a distinguished professor of history at Baylor University and professor emeritus at Pennsylvania State University, to testify as an expert witness about ‘‘the historical context of the issue of sexual abuse at the time that the offenses allegedly occurred in this case,’’ including with regard to the Roman Catholic Church. Consistent with the defendant’s expert disclosure under Practice Book § 13-4, Jenkins testified during voir dire that his extensive scholarship concerns the history of social problems such as crime, including child molesta- tion, and his studies attempt to document changing attitudes about these issues during different periods in history, by surveying opinion polls, newspaper articles and opinion pieces, and scholarly journal articles. Jen- kins has written a book about a ‘‘cultural intellectual revolution’’ with respect to child sexual abuse that took place ‘‘suddenly’’ during the 1980s regarding the proper way to respond to incidents of the sexual abuse of minors, in both religious and secular organizations. He *16 testified that one of the ‘‘sharpest differences’’ between the 1970s and today was the perceived harmfulness of abuse to children and young people, along with a belief that such abuse was far less common than is perceived today. Jenkins further noted that, at that time, the vast majority of religious and secular institutions lacked for- mal policies for addressing instances of child sexual abuse. Jenkins also testified that there was an ‘‘extraor- dinarily limited’’ amount of literature on the crime of child sexual abuse available to nonexpert audiences prior to the 1980s, consistent with the viеw that it was not considered to be a ‘‘widespread threat.’’
Jenkins then testified that, in responding to incidents of sexual abuse, the consensus recommendation of the pre-1980s professional literature, consisting of psychiat- ric, psychological, and criminological journals and texts, was that ‘‘harm chiefly results from what is seen as a heavy-handed medical or official response,’’ with many recommending against outreach to victims or offering them counseling. He stated that attitudes in the 1970s were ‘‘radically different to those prevailing today,’’ insofar as the common perception was that the ‘‘offender was much less likely to be a compulsive individual and was much more likely to be a . . . casual or incidental offender who committed perhaps one act in particular circumstances, but in such a way that did not necessarily mark him as being . . . a life- long or career or persistent offender.’’ Jenkins also testi- fied that, in the 1960s and 1970s, experts attributed sexually abusive behavior as secondary to personal immaturity, senility, or alcoholism, and the professional literature of the time ‘‘veer[ed] very strongly . . . towards therapy and treatment as opposed to punish- ment as a solution for molesters,’’ and was ‘‘extremely optimistic about the potential of cure and prevention of reoccurrence, especially where the victim of the offense is a teenager as opposed to a prepubescent child.’’ Jenkins found, however, that the changes in this field were occurring ‘‘rapidly and swiftly’’ by the mid-1980s.
The plaintiff filed a motion in limine to preclude, on relevance grounds, Jenkins’ testimony ‘‘that public awareness of sexual abuse in society was not known to the public as it is now and that the defendant’s conduct regarding . . . Ferguson should be viewed in light of the same.’’ The trial court granted this motion and dis- agreed with the defendant’s arguments in support of the admission of Jenkins’ testimony, stating that although Jenkins ‘‘is an expert historian with an emphasis on church history,’’ virtually none of his authored peer reviewed articles related to child sexual abuse and ‘‘less than [10] percent of his published books touch on any- thing that could possibly be related to his testimony in court today.’’ The trial court also observed that the substance of Jenkins’ proffered testimony that related to whether the defendant had or should have had notice *17 was rendered irrelevant because ‘‘notice is no longer an issue in this case,’’ given the stipulations and the evidence. The trial court further concluded that Jenkins’ testimony was inadmissible insofar as it related to the ‘‘reasonableness of [the defendant’s] response’’ because it was ‘‘impermissible opinion evidence’’ given the lay standard of care applicable in this case. Thus, the trial court concluded that Jenkins’ expert testimony would not be helpful to the jury.
‘‘[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Even if a court has acted improperly in connection with the introduction of evidence, reversal of a judg- ment is not necessarily mandated because there must not only be an evidentiary [improрriety], there also must be harm. . . .
‘‘This court recently articulated the test for the admis- sion of expert testimony, which is deeply rooted in common law. Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . In other words, [i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion. . . .
‘‘It is well settled that [t]he true test of the admissibil-
ity of [expert] testimony is not whether the subject
matter is common or uncommon, or whether many
persons or few have some knowledge of the matter;
but it is whether the witnesses offered as experts have
any peculiar knowledge or experience, not common to
the world, which renders their opinions founded on
such knowledge or experience any aid to the court or
the jury in determining the questions at issue.
.
.
.
Implicit in this standard is the requirement . . . that
the expert’s knowledge or experience must be directly
applicable to the matter specifically in issue.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.)
Sullivan Metro-North Commuter Railroad
Co.
,
We conclude that the trial court did not abuse its discretion in precluding Jenkins’ testimony. Once the discrete factual issue of whether the defendant had, or should have had, notice of the fact that Ferguson was a child molester was eliminated by stipulation, the trial court reasonably determined that Jenkins’ testimony became irrelevant and would have confused the jury *18 in determining whether the defendant’s actions in response to that knowledge constituted negligence. [27] Further, with the propriety of the defendant’s actions in this case being decided under a lay standard of care, the trial court properly determined that Jenkins’ opinion approached impermissible ultimate issue testimony. [28] See, e.g., Conn. Code Evid. § 7-3 (a) (‘‘[t]estimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that . . . an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue’’). Thus, we disagree with the defendant’s claim that the trial court abused its discretion by precluding Jenkins’ tes- timony.
B Hearsay Issues The defendant’s next two evidentiary claims, namely, that the trial court improperly: (1) admitted the deposi- tion testimony of Ferguson; and (2) sustained the plain- tiff’s objection to Gianelli’s testimony about whether Peterson had informed him that Ferguson was treated for sexual problems at the Saint Luke Institute, impli- cate the residual exception to the hearsay rule.
By way of background, we note that ‘‘[o]ut-of-court
statements offered to establish the truth of the matter
asserted are hearsay. Such statements generally are
inadmissible unless they fall within an exception to the
hearsay rule. A hearsay statement that does not fall
within one of the traditional exceptions to the hearsay
rule nevertheless may be admissible under the residual
exception to the hearsay rule provided that [1] the pro-
ponent’s use of the statement is reasonably necessary
and [2] the statement itself is supported by equivalent
guarantees of trustworthiness and reliability that are
essential to other evidence admitted under traditional
exceptions to the hearsay rule.’’ (Internal quotation
marks omitted.)
In re Tayler F.
,
‘‘We previously have identified several factors that
bear upon the trustworthiness and reliability of an out-
of-court statement, including: (1) whether the circum-
stances are such that a sincere and accurate statement
would naturally be uttered, and no plan of falsification
[could] be formed . . . (2) the closeness of the rela-
tionship between the declarant and recipient . . . (3)
whether the statement was made spontaneously and
in confidence or obtained in response to government
questioning conducted in anticipation of litigation . . .
(4) the temporal proximity between the alleged state-
ment and the events to which the statement refers . . .
and (5) whether the declarant testifies at trial and is
subject to cross-examination.’’ (Citations omitted; inter-
nal quotation marks omitted.)
State Skakel
, 276 Conn.
*19
633, 728–29,
1 Ferguson’s Deposition Testimony The defendant claims that the trial court improperly admitted the deposition testimony of Ferguson, which was taken in 1997 during the litigation of another case, in which Ferguson testified that he was treated only for alcohol abuse at the Saint Luke Institute, and noth- ing else. The defendant argues that the trial court improperly determined that the deposition testimony was ‘‘supported by equivalent guarantees of trustwor- thiness and reliability’’ because the factual issues in the 1997 case were distinct from those presented here, and it also was ‘‘riddled with self-serving omissions, half- truths, and falsehoods,’’ along with Ferguson’s repeated invocations of his privilege against self-incrimination under the fifth amendment to the United States constitu- tion. [29] In response, the plaintiff contends that the trial court did not abuse its discretion because Ferguson’s statement that he was treated only for alcohol abuse was ‘‘reliable’’ and ‘‘accords with every other admissible piece of documentary and testimonial evidence,’’ including marketing materials from the Saint Luke Insti- tute, letters from Peterson to Whealon, and the treat- ment plan that the Saint Luke Institute devised for Ferguson. The plaintiff also argues that this testimony is consistent with Peterson’s theory that controlling Ferguson’s alcoholism would control his pedophilia. [30] We agree with the plaintiff, and conclude that the trial court did not abuse its discretion by admitting Fergu- son’s 1997 deposition testimony into evidence under the residual exception.
The record reveals the following additional relevant facts and procedural history. The plaintiff offered a transcript of Ferguson’s 1997 deposition testimony to prove that Ferguson was ‘‘never treated for sexual abuse; that he was only treated for alcohol . . . .’’ The defendant objected to the admission of the 1997 deposi- tion as hearsay not subject to any exception. In response, the plaintiff contended that the deposition testimony was appropriately obtained and used under Practice Book § 13-3 because Ferguson was dead, it was relevant to rebut the defendant’s claim that Fergu- son had been treated for pedophilia, and that it was subject to the former testimony and residual exceptions to the hearsay rule. In particular, the plaintiff contended that the residual exception applied because there was ‘‘absolute necessity’’ and it was ‘‘trustworthy because it was under oath and it is consistent.’’ The plaintiff emphasized the reliability of the deposition testimony *20 and the fact that not all questions of a sexual nature were met with an invocation of the fifth amendment privilege. Ultimately, the trial court admitted the 1997 deposition transcript as ‘‘clearly’’ within the residual hearsay exception.
Numerous portions of the 1997 deposition transcript were then read into evidence. That deposition testi- mony indicated that Ferguson had received treatment only for alcoholism at the Saint Luke Institute, and had not been treated for his sexual attraction to minors. [32] Ferguson then invoked his fifth amendment right against self-incrimination when questioned about his sexual attraction to minor males generally, and specifi- cally about his relationship with an underage male, K.
The defendant does not dispute that Ferguson’s death
rendered the use of the hearsay statement reasonably
necessary, and confines its arguments to whether the
statement had the requisite guarantees of trustworthi-
ness and reliability. We conclude that the trial court did
not abuse its discretion in concluding that Ferguson’s
statements had equivalent guarantees of trustworthi-
ness and reliability, notwithstanding the fact that the
legal issues in the 1997 civil action were not congruent
with those in the present case, insofar as that case
concerned whether the defendant had notice of Fergu-
son’s propensities during an earlier time period. First,
the deposition was taken under oath, which is ‘‘a critical
component of the trustworthiness and reliability calcu-
lus.’’
State Faison
,
Second, as the plaintiff points out, Ferguson’s testi-
mony that he was not treated for any sexual disorders
is consistent with the marketing materials provided by
the Saint Luke Institute, which do not mention that the
availability of such therapy, and the correspondence
between Whealon and Peterson, which addresses Fer-
guson’s alcohol treatment in detail, and is silent about
the provision of treatment for any sexual disorder. This
corroboration provides further support for the reliabil-
ity of Ferguson’s deposition testimony. See
State
v.
Mourning
,
2 Peterson’s Statements to Gianelli The defendant’s final evidentiary claim is that the trial court improperly sustained the plaintiff’s hearsay objection to Gianelli’s testimony with respect to Peterson’s statements to him about the nature of Fergu- son’s treatment at the Saint Luke Institute. The defen- dant contends that this testimony was admissible under the residual exception because it was necessary, given that Peterson is dead, and his statements were suffi- ciently trustworthy and reliable since they were made in the context of Ferguson’s medical treatment. The defendant also contends that this statement was not hearsay because it was not admitted for the truth of the matter asserted, namely, that Ferguson had in fact been treated for his sexual problems, but rather, to support the defendant’s reasonable belief that he had received such treatment. In response, the plaintiff con- tends that the trial court did not abuse its discretion in sustaining his objection, and further, that any error in the exclusion of this testimony was harmless. We agree with the plaintiff and conclude that, even if we assume without deciding that this testimony was not hearsay, its exclusion nevertheless was harmless error not requiring reversal.
The record reveals the following additional relevant facts and procedural history. While cross-examining Gianelli, the defendant informed the court of its desire to inquire about whether Peterson had informed him that Ferguson had been treated for sexual disorders at the Saint Luke Institute. The plaintiff objected on the ground that the proffered testimony was hearsay that ‘‘is offered . . . to prove that . . . Ferguson was indeed treated for sexual problems.’’ The defendant argued that it was admissible under the residual excep- tion to the hearsay rule and, alternatively, as nonhearsay ‘‘evidence of what . . . Gianelli was told. And whether . . . it was true or not true, it’s still what he was told by . . . Peterson.’’ The trial court then questioned Gia- nelli about whether, if ‘‘Peterson told you that . . . [Ferguson] received treatment for his sexual problems, as well as alcoholism while he was at [the Saint Luke Institute], did you share that information with anyone?’’ Gianelli responded that ‘‘I think I used a different term, but . . . I think it’s in one of these memos. But I don’t remember that. I wouldn’t want to answer that either way.’’ The plaintiff observed that Gianelli had said no when questioned similarly on direct, and Gianelli stated, *22 ‘‘I’m not sure what I said, to be—it’s a vague thing for me.’’ The trial court then sustained the plaintiff’s objection without further elaboration.
Even if we assume, without deciding, that this testi-
mony was not hearsay because it was not offered to
prove the truth of the matter asserted, namely, that
Ferguson had in fact been treated for his sexual disorder
at the Saint Luke Institute; see, e.g.,
State Saucier
,
III
LACHES
We next address the defendant’s claim that the trial
court improperly granted the plaintiff’s motion to strike
its special defense of laches. The defendant contends
that the Appellate Court’s decision in
Giordano Gior-
dano
,
‘‘Because a motion to strike challenges the legal suffi-
ciency of a pleading and, consequently, requires no
factual findings by the trial court, our review of the
court’s ruling on [a motion to strike] is plenary. . . .
A party wanting to contest the legal sufficiency of a
special defense may do so by filing a motion to strike.
The purpose of a special defense is to plead facts that
are consistent with the allegations of the complaint
but demonstrate, nonetheless, that the plaintiff has no
cause of action. . . . In ruling on a motion to strike,
the court must accept as true the facts alleged in the
special defenses and construe them in the manner most
favorable to sustaining their legal sufficiency.’’ (Internal
quotation marks omitted.)
TD Bank, N.A.
v.
M.J. Hold-
ings, LLC
,
‘‘Laches consists of an inexcusable delay which preju-
dices the defendant. . . . We have said on other occa-
sions that [t]he defense of laches does not apply unless
there is an unreasonable, inexcusable, and prejudicial
delay in bringing suit. . . . Delay alone is not sufficient
to bar a right; the delay in bringing suit must be unduly
prejudicial.’’ (Citations omitted;
internal quotation
marks omitted.)
Cummings
v.
Tripp
,
The Appellate Court’s decision in
Giordano Gior-
dano
, supra,
Agreeing with the defendant’s argument that
Gior-
dano
was wrongly decided would require us to overrule
the well established principle that laches ‘‘is purely an
equitable doctrine, is largely governed by the circum-
stances, and is not to be imputed to one who has brought
an action at law within the statutory period.’’
A. Sangi-
vanni & Sons
v.
F. M. Floryan & Co
., supra, 158 Conn.
474. This would require us to jettison a lengthy body
of precedent that is consistent with the ‘‘overwhelming
majority’’ of jurisdictions that have considered this
issue. See
Naccache Taylor
,
‘‘To import laches as a defense to actions at law
would pit the legislative value judgment embodied in
a statute of limitations . . . against the equitable deter-
minations of individual judges. Judges could disallow
claims that the legislature had already determined were
timely brought. Yet [m]odern statutes of limitations
.
.
. embody the notion that fixing the periods for
bringing damages actions is a legislative function. . . .
Thus, to import laches as a defense to actions of law
would alter the balance of power between legislatures
and courts regarding the timeliness of claims.’’ (Cita-
tions omitted; emphasis omitted; footnotes omitted;
internal quotation marks omitted.)
Naccache Taylor
,
supra,
IV
STATE CONSTITUTIONAL CLAIM
Finally, we turn to the defendant’s claim that the
retroactive application of the extended sexual abuse
statute of limitations, § 52-577d, to revive the plaintiff’s
time barred action violated its substantive due process
rights under article first, §§ 8 and 10, of the Connecticut
constitution because the defendant had a vested right
to a defense under the laрsed statute of limitations.
[37]
Acknowledging that such revival is permissible under
the due process clause of the fourteenth amendment
to the United States constitution; see, e.g.,
Chase Secu-
rities Corp
. v.
Donaldson
,
In response, the plaintiff contends that there is no
constitutional defect because under
Roberts Caton
,
*26
Determining the ‘‘constitutionality of a statute pre-
sents a question of law over which our review is plenary.
. . . It [also] is well established that a validly enacted
statute carries with it a strong presumption of constitu-
tionality, [and that] those who challenge its constitu-
tionality must sustain the heavy burden of proving its
unconstitutionality beyond a reasonable doubt.
.
.
.
The court will indulge in every presumption in favor of
the statute’s constitutionality . . . . Therefore, [w]hen
a question of constitutionality is raised, courts must
approach it with caution, examine it with care, and
sustain the legislation unless its invalidity is clear.’’
(Internal quotation marks omitted.)
Kerrigan Com-
missioner of Public Health
,
In examining the constitutionality of § 52-577d under
our state constitution, we recognize that, ‘‘[a]lthough
earlier case law indicated that the due process provi-
sions of both constitutions have the same meaning and
the same limitations . . . more recent case law has
suggested that our state constitution
may
, in certain
instances, afford greater substantive due process rights
*27
than the federal constitution. For example, in
Fair
Cadillac-Oldsmobile Isuzu Partnership Bailey
, [229
Conn. 312, 316,
It is ‘‘axiomatic’’ that article first, § 10, of the Connect- icut constitution ‘‘not only guarantees fair procedures in any governmental deprivation of life, liberty, or prop- erty, but also encompasses a substantive sphere . . . barring certain government actions regardless of the fairness of the procedures used to implement them . . . . This basic protection embodies the democratic principle that the good sense of mankind has at last settled down to this: that [due process was] intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the estab- lished principles of private right and distributive jus- tice. . . .
‘‘Despite the important role of substantive due pro- cess in securing our fundamental liberties, that guaran- tee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm. . . . Rather, substantive due process has been held to protect against only the most arbitrary and conscience shocking governmental intrusions into the personal realm . . . .’’ (Internal quotation marks omitted.) Id., 835–36.
‘‘[O]ur jurisprudence has identified a starting point for discovering fundamental rights guaranteed protec- tion under our state constitution from arbitrary and conscience shocking governmental intrusions into the personal realm . . . .’’ (Internal quotation marks omit- ted.) Id., 838. ‘‘In determining the scope of our state constitution’s due process clauses, we have taken as a point of departure those constitutional or quasi-consti- tutional rights that were recognized at common law in this state prior to 1818.’’ (Internal quotation marks omitted.) Id.
‘‘The analytical framework by which we determine
whether, in any given instance, our state constitution
affords broader protection to our citizens than the fed-
eral constitutional minimum is well settled. In
State
v.
Geisler
, [supra,
‘‘The
Geisler
factors serve a dual purpose: they
encourage the raising of state constitutional issues in
a manner to which the opposing party—the state or the
defendant—can respond; and they encourage a princi-
pled development of our state constitutional jurispru-
dence. Although in
Geisler
we compartmentalized the
factors that should be considered in order to stress that
a systematic analysis is required, we recognize that they
may be inextricably interwoven.
.
.
. [N]ot every
Geisler
factor is relevant in all cases. . . . Moreover,
a proper
Geisler
analysis does not require us simply to
tally and follow the decisions favoring one party’s state
constitutional claim; a deeper review of those decisions’
underpinnings is required because we follow only per-
suasive decisions.’’ (Citations omitted; internal quota-
tion marks omitted.)
State Jenkins
,
Finally, our determination of whether the state con-
stitution affords greater protection than does the fed-
eral constitution will dictate the level of judicial review
that we ultimately apply to § 52-577d. See, e.g.,
Contrac-
tor’s Supply of Waterbury, LLC Commissioner of
Environmental Protection
,
A Constitutional Language We begin with the relevant constitutional language. Article first, § 8, of the Connecticut constitution pro- vides in relevant part: ‘‘No person shall . . . be deprived of life, liberty or property without due process of law . . . .’’ Its civil counterpart, which is set forth *29 in article first, § 10, of the Connecticut constitution provides: ‘‘All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.’’ [39] This Geisler factor does not favor either party, as this generally phrased constitutional language is at best ambiguous with respect to the constitutional issue presented in this appeal.
Although, the language in article first, § 10, of the Connecticut constitution that addresses the right to the administration of justice ‘‘without . . . delay’’ reason- ably could be read as supporting the defendant’s argu- ment that an extended limitations period reviving a decades old cause of action runs afoul of that constitu- tional guarantee, [40] that is not the only plausible reading of the provision. Other language in the section assures a ‘‘remedy by due course of law,’’ which implicitly sup- ports the constitutionality of revisiоns to statutes of limitations providing parties with more time to seek damages in cases wherein their injuries either were not readily apparent when suffered, or other factors, such as psychological trauma, kept them from coming for- ward with their claims. See part IV F of this opinion. Accordingly, we conclude that the constitutional lan- guage factor is neutral.
B
Constitutional History
As the parties acknowledge, there is no constitutional
history on point from the proceedings of the 1818 or
1965 constitutional conventions. Nevertheless, we con-
clude that our state’s constitutional history provides
support for the plaintiff, given ‘‘the historical record of
the period before and at the time of the adoption of
the provision[s]’’ at issue.
State Ayala
,
It is significant then, that in the years leading to the
adoption of our first constitution in 1818, that the legis-
lature had acted to revive time barred actions in a way
that affected vested rights, in particular by adopting a
1795 resolution that set aside a 1793 probate court
decree, which otherwise could not be appealed because
*30
the eighteen month statute of limitations had lapsed.
See
Calder Bull
,
C
Federal Case Law
The relevant federal case law strongly favors the
plaintiff, and virtually begs the state constitutional ques-
tion presented in the present appeal. Specifically, the
two leading decisions from the United States Supreme
Court,
Campbell Holt
, supra,
Campbell
, the leading federal case in this area, was
a contracts case from the reconstruction era in which
the United States Supreme Court rejected a due process
challenge to a provision of the Texas state constitution
that had been interpreted to revive actions that had
become time barred between the end of the Civil War
and the reinstatement of Texas to the union by the
Congress of the United States.
Campbell Holt
, supra,
The United States Supreme Court unanimously reaf-
firmed the holding of
Campbell
in
Chase Securities
Corp. Donaldson
, supra,
The rule of
Campbell
and
Chase Securities Corp.
,
namely, that there is no absolute vested right in a statute
of limitations defense absent entry of a final judgment,
remains controlling as a matter of federal due process.
[44]
See, e.g.,
Plaut Spendthrift Farm, Inc
.,
D Connecticut Case Law We conclude that Connecticut case law supports the plaintiff, both with respect to cases concerning § 52- 577d and other statutes of limitations specifically, and also as to the constitutionality of retroactive legislation affecting existing legal rights as a more general matter.
1
Section 52-577d and Other Statutes of Limitations
With respect to § 52-577d itself, we deem particularly
instructive this court’s construction of that statute in
Roberts
v.
Caton
, supra,
This court then rejected, inter alia, the defendant’s
argument that ‘‘§ 52-577d as amended altered [his] sub-
stantive rights by expanding the period of liability by
fifteen years,’’ and disagreed with his ‘‘suggest[ion] that
a new liability is imposed by the mere fact that a preex-
isting liability is no longer barred by the passage of
time.’’ Id., 492. Observing that ‘‘[s]ubstantive rights are
those that can be identified as existing between the
parties at the time the cause of action accrued’’; id.,
490; this court rejected the defendant’s argument that
‘‘§ 52-577d as amended imposed new liabilities’’; id.;
emphasizing that it ‘‘
has never recognized a vested right
in the lapsing of a statute of limitations
. Although
changes in the statute of limitations may not retroac-
tively bar actions already pending . . . they do govern
actions brought subsequent to the effective date of the
amended statute. . . . We have consistently interpre-
ted the limitations period to be part of the remedy alone,
unless the statute in which the period of limitations is
found itself creates the right.
.
.
. Therefore, the
expansion or reduction alone of the period of limita-
tions, if the statute in which the limitations period is
fixed does not also create the right of action, does
not by itself alter a substantive right. We conclude,
therefore, that § 52-577d as amended did not create a
substantive change in the law that would preclude its
retroactive application.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Id., 492;
accord
Gilbert Selleck
,
Further, and of additional import under the
Geisler
factor addressing public policy considerations; see part
IV F of this opinion; the court in
Roberts
rejected the
defendant’s claim that, ‘‘even if we find that § 52-577d as
amended is procedural, it should not apply retroactively
because considerations of good sense and justice dic-
tate otherwise.’’
Roberts
v.
Caton
, supra,
In its reply brief and at oral argument before this
court, the defendant relied heavily on our recent deci-
sion in
Investment Associates Summit Associates,
Inc
.,
Although we declined to consider this argument in
Investment Associates
because it was not properly pre-
served; see id.; the defendant argues that what we did
say about the merits in
Investment Associates
is ‘‘sug-
gestive,’’ and that there is, therefore, some significance
in the plaintiff’s failure to address
Skakel
in his brief.
We disagree. The constitutional considerations
informing the statutory construction analysis in
Skakel
and
Crowell
are unique to the criminal context, wherein
‘‘a law enacted after expiration of a previously applica-
ble limitations period violates the [e]x [p]ost [f]acto
[c]lause [of the federal constitution] when it is applied
to revive a previously time barred prosecution .
.
.
because it deprives the defendant of a fully vested
defense to prosecution, the constitution does not pre-
vent the [s]tate from extending time limits .
.
. for
prosecutions not yet time barred.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
State
v.
Skakel
, supra,
Nevertheless, we remain cognizant that statutes of
limitations ‘‘represent a legislative judgment about the
balance of equities in a situation involving the tardy
assertion of otherwise valid rights: [t]he theory is that
even if one has a just claim it is unjust not to put
the adversary on notice to defend within the period of
limitation and that the right to be free of stale claims
in time comes to prevail over the right to prosecute
them.’’ (Footnote added; internal quotation marks omit-
ted.) Id. ‘‘The purpose of a statute of limitations is to
prevent stale claims and unnecessary delays in the pre-
sentation of issues. . . . A plaintiff’s timely filed action
provides notice to the defendant and ensures that the
defendant does not find itself in a situation where,
because of the lapse of time, [the defendant] is unable
*36
to gather facts, evidence, and witnesses necessary to
afford . . . a fair defense. . . . Statutes of limitations
also allow persons, after the lapse of a reasonable time,
to plan their affairs with a reasonable degree of cer-
tainty, free from the disruptivе burden of protracted and
unknown potential liability . . . .’’ (Citations omitted;
internal quotation marks omitted.)
Electrical Contrac-
tors, Inc. Ins. Co. of the State of Pennsylvania
, 314
Conn. 749, 768–69,
2
Connecticut Constitutional Case Law concerning
Retroactive Legislation
This court’s construction of § 52-577d in
Roberts
v.
Caton
, supra,
Applying this standard, this court held that the 1820 legislation, ‘‘thus far directly operating on vested rights , is admitted to be unquestionably valid, because it is manifestly just .’’ (Emphasis added.) Id., 222. Observing that Connecticut’s constitution, unlike that of other states, lacks an express prohibition of retroactive legis- lation; id., 223; Chief Justice Hosmer emphasized his disagreement with ‘‘those, who deny the power of the legislature to make laws, in any case, which, with entire justice, operate on antecedent legal rights. A retrospec- tive law may be just and reasonable; and the right of *37 the legislature to enact one of this description, I am not speculatist enough to question.’’ Id., 226. Ultimately, the court upheld the 1820 legislation because it ‘‘was intended to quiet controversy, and promote the public tranquility.’’ Id., 226; accord Welch v. Wadsworth , 30 Conn. 149, 155 (1861) (following Goshen and emphasiz- ing that constitution lacks provision ‘‘restrain[ing] the legislature from passing retrospective laws,’’ and there- fore legislature may do so unless ‘‘particular retrospec- tive act . . . is shown to the court, with entire clearness and certainty, to be so unreasonable and unjust in its operation upon antecedent legal rights , that the action of the legislature can not be vindicated by any reasonable intendment or allowable presumption’’ [emphasis added]); Mechanics’ & Working-Men’s Mutual Savings Bank & Building Assn. Allen , 28 Conn. 97, 102 (1859) (following Goshen and rejecting ‘‘the broad ground that a retroactive law is of course and under all circumstances to be treated as a nullity . . . for healing enactments are found absolutely neces- sary, continually, and under all governments, to remedy the evils arising from human imperfections’’).
As the defendant argues,
Goshen
and its progeny
embody principles of substantive due process review
as applied prior to the enactment of the fоurteenth
amendment to the United States constitution, particu-
larly given
Goshen
’s reference to the ‘‘ ‘social com-
pact.’ ’’
Washington Glucksberg
,
Thus, we conclude that the Connecticut case law
*38
factor, which significantly informs our state constitu-
tional analysis, favors the position of the plaintiff.
Although our state’s case law recognizes the defen-
dant’s interest in the protection against stale claims
afforded by statutes of limitations; see, e.g.,
State
v.
Skakel
, supra,
E Sister State Case Law The courts of the forty-four states that have consid- ered the issue presented in this appeal take divergent approaches to whether an extended statute of limita- tions may constitutionally be applied retroactively to revive otherwise time barred claims. [48] Because of the sheer volume of case law addressing this issue, this Geisler factor in particular calls for a more rigorous analysis than simply tallying holdings, but rather, requires us to determine which sister state courts’ approaches provide a genuinely persuasive framework for resolving this state constitutional question. See, e.g., Kerrigan v. Commissioner of Public Health , supra, 289 Conn. 240–41; see also id., 246 (‘‘[a]lthough the decision of the California Supreme Court and the dissenting opin- ion of Chief Judge Kaye reflect the minority position, we believe that they nevertheless represent the most persuasive sister state precedent’’). Although both par- ties can claim support from the sister state factor, we conclude that the more persuasive cases ultimately favor the position of the plaintiff.
The courts of eighteen states follow the federal
approach embodied in
Campbell Holt
, supra, 115 U.S.
620, and
Chase Securities Corp. Donaldson
, supra,
In contrast, the courts of twenty-four states support
the position that legislation that retroactively amends
a statute of limitations in a way that revives time barred
claims is per se invalid. Of those states, seven, namely,
Alabama, Colorado, Missouri, New Hampshire, Okla-
homa, Tennessee, and Texas, ground their holdings in
independent state constitutional provisions prohibiting
retroactive legislation.
[53]
One, Vermont, grounds that
holding in a state statute prohibiting retroactive legisla-
tion.
[54]
Five, namely, Indiana, Kentucky, Maine, Oregon,
and Pennsylvania, do not cite a source for the vested
right or otherwise perform a constitutional analysis in
support of this holding.
[55]
This leaves eleven states,
Arkansas, Florida, Illinois, Louisiana, Nebraska, North
Carolina, Rhode Island, South Carolina, South Dakota,
Utah, and Virginia, which have rejected the United
States Supreme Court’s approach to this issue in
Camp-
bell
v.
Holt
, supra,
Finally, the courts of Wisconsin and New York navi-
gate between the poles of the broadly permissive federal
approach embodied in
Campbell
v.
Holt
, supra, 115 U.S.
620, and
Chase Securities Corp.
v.
Donaldson
, supra,
Although both parties can claim some support from
the sister state case law factor, we conclude that, on
balance, it ultimately favors the position of the plaintiff.
The decisions that follow the federal approach embod-
ied in
Campbell Holt
, supra,
F
Contemporary Economic and Sociological
Public Policies
Although both parties’ public policy arguments are
well taken, this factor favors the plaintiff because of
the actions of our legislature, which has the primary
responsibility for formulating the public policy of our
*41
state. The defendant points out, however, in arguing
that ‘‘[a]llowing a cause that expired in 1988 to be
brought in 2008 does enormous economic and sociologi-
cal harm,’’ that it is well settled that statutes of limita-
tions ‘‘prevent stale claims and unnecessary delays in
the presentation of issues,’’ and serve the salutary pur-
pose of ‘‘allow[ing] persons, after the lapse of a reason-
able time, to plan their affairs with a reasonable degree
of certainty, free from the disruptive burden of pro-
tracted and unknown potential liability . . . .’’ (Inter-
nal quotation marks omitted.)
Electrical Contractors,
Inc. Ins. Co. of the State of Pennsylvania
, supra, 314
Conn. 768–69. Put differently, statutes of limitations
‘‘prevent the unexpected enforcement of stale claims
concerning which the persons interested have been
thrown off their guard by want of prosecution.’’ (Inter-
nal quotation marks omitted.)
Daily New Britain
Machine Co
.,
On the other hand, the plaintiff emphasizes the ‘‘legiti-
mate legislative purpose’’ of § 52-577d, as explained in
Roberts Caton
, supra,
The public policy objective argued by the plaintiff finds support from numerous commentators. In one significant example, Professor Marci Hamilton observes that ‘‘[l]egislation that eliminates the civil [statute of limitations] or includes a discovery rule is supported by various studies on the long-term effects of child molestation and the likely delay in disclosure. Researchers in various studies have found—specifically in men who were sexually abused as children—that long-term adaptation will often include sexual prob- lems, dysfunctions or compulsions, confusion and struggles over gender and sexual identity, homophobia and confusion about sexual orientation, problems with intimacy, shame, guilt and self-blame, low self-esteem, negative self-images, increased anger, and conflicts with authority figures. There is also an increased rate of substance abuse, a tendency to deny and delegitimize the traumatic experience, symptoms of [p]ost [t]rau- matic [s]tress [d]isorder, and increased probability of *42 fear and depression for all victims. Often, it is not until years after the sexual abuse that victims experience these negative outcomes. As clinician Mic Hunter has observed: ‘Some of the effects of sexual abuse do not become apparent until the victim is an adult аnd a major life event, such as marriage or birth of a child, takes place. Therefore, a child who seemed unharmed by childhood abuse can develop crippling symptoms years later . . . .’ ’’ (Footnotes omitted.) M. Hamilton, ‘‘The Time Has Come for a Restatement of Child Sex Abuse,’’ 79 Brook. L. Rev. 397, 404–405 (2014). Another salutary effect of revival statutes like § 52-577d is that ‘‘lawsuits filed under window legislation have led to the public identification of previously unknown child predators, which reduces the odds that children will be abused in the future.’’ [61] Id., 405.
In our view, the public policy
Geisler
factor favors
the plaintiff. Given the reasonable policy concerns that
support the parties’ respective state constitutional argu-
ments, in interpreting our state’s constitution, we must
defer to the legislature’s ‘‘primary responsibility’’ in pro-
nouncing the public policy of our state.
Thibodeau
v.
Design Group One Architects, LLC
,
G
Conclusion
Having reviewed the wealth of persuasive and rele-
vant materials revealed by our
Geisler
analysis, we con-
clude that the retroactive application of § 52-577d to
revive the plaintiff’s otherwise time barred claims does
not violate the defendant’s substantive due process
rights under our state constitution. Consistent with our
observation in
Roberts Caton
, supra,
Thus, because our
Geisler
analysis indicates that the
state constitution does not provide greater protection
to the defendant’s interest in the lapse of the statute
of limitations than is afforded under the federal consti-
tution, we analyze the defendant’s substantive due pro-
cess challenge to the constitutionality of § 52-577d
under the ‘‘rules that normally govern constitutional
challenges of economic or social welfare legislation,’’
which require us to employ a rational basis test to
‘‘[ascertain] whether the legislature has acted arbitrarily
or irrationally.’’ (Internal quotation marks omitted.)
Fair Cadillac-Oldsmobile Isuzu Partnership
v.
Bailey
,
supra,
This court previously has determined that ‘‘considera-
tions of good sense and justice’’ support the retroactive
application of the extended statute of limitations of
§ 52-577d as a matter of statutory construction.
Roberts
Caton
, supra,
The judgment is affirmed. In this opinion ROGERS, C. J., and PALMER, EVE- LEIGH and McDONALD, Js., concurred.
[1] On June 23, 2008, the trial court,
Tyma, J.
, granted the plaintiff permission
may help to identify at least one other victim of Ferguson’s sexual abuse.
a victim of sexual abuse to use his given name, doing so in the present case
Consistent with our policy of protecting the privacy interests of the victims
of sexual abuse and the crime of risk of injury to a child; see General
would also wish to be identified, we decline to identify the plaintiff or other
Statutes § 54-86e; in the absence of evidence indicating that the other victim
individuals through whom that victim may be identified.
court,
Dubay, J.
, vacated that order with the consent of the parties. At oral
argument before this court, the plaintiff’s counsel indicated that the plaintiff
did not wish to remain anonymous, and referred to the plaintiff by his given
name. Although, in a civil case, we ordinarily would respect the wishes of
to proceed under the pseudonym Jacob Doe. On February 9, 2012, the trial
[2]
The defendant filed two appeals from the judgment of the trial court to
jury’s verdict, and the other following the trial court’s award of punitive
damages. See
Hylton
,
Gianelli testified that Whealon never discussed with him any plan to get help for the boys who Ferguson had molested, and he did not know whether Whealon or anyone else affiliated with the defendant had ever reached out to the mother who made the report. Gianelli also testified that he never personally reported the allegations of molestation to state authorities, and he did not know whether anyone else affiliated with the defendant had so reported.
Kvedas testified that he was aware of Ferguson’s alcohol problems, but was never told that Ferguson had molested boys.
On June 22, 1981, Peterson sent Whealon a letter supporting Ferguson’s request for ‘‘a more exciting teaching assignment,’’ noting that he ‘‘has made a great deal of progress over the two-year period of sobriety.’’ Peterson stated that it was his ‘‘professional opinion that the other issues that brought . . . Ferguson to us for treatment will be in control as long as the disease of alcoholism is in control,’’ thus indicating his ‘‘support for any change that would include a change in teaching assignment, as well as his continued participation in parochial ministry.’’
Thеreafter, on August 26, 1981, Peterson and a therapist from the Saint Luke Institute issued a report to Whealon indicating that Ferguson: (1) had been alcohol and drug free for the preceding two years, and had been attending weekly Alcoholics Anonymous meetings; (2) was successfully working as a grade school principal, despite the fact that he had not received his preferred assignment of working in an all boys school; and (3) had mild neuropsychological impairments that ‘‘may be the residual effect from a more severe previous brain involvement.’’ To aid Ferguson in maintaining his ‘‘sustained sobriety and improved ministry and life,’’ they recommended continued after care, monthly telephone contact with the Saint Luke Insti- tute, and regular participation in Alcoholics Anonymous.
Dougherty did not know whether anyone else at Saint Mary’s School or Saint Mary’s Parish was ever informed about Ferguson being a danger to young boys. She never, however, personally witnessed Ferguson doing anything improper or heard of any complaints to that effect.
The plaintiff’s family members were observant Catholics who partici- pated in a variety of church activities. His father was a deacon and the plaintiff served as an altar boy at the Good Shepherd Parish in Seymour, where they lived. The plaintiff’s parents, who had befriended numerous priests in Saint Mary’s Parish, taught him to give priests a high level of respect.
Unaware of any inappropriate activity, the plaintiff’s parents gave per- mission for at least one of these sleepovers to occur, and did not recall whether they had given permission for the others.
The plaintiff, however, testified that he did not know whether Bollea had ever seen him at the rectory during the sleepovers.
These molestations included voyeurism, oral sex, and fondling. Other molestations took place during sleepovers at the home of Ferguson’s friend, Michael Hunter, who was a music teacher at an all boys school; at those sleepovers, Ferguson and Hunter gave the plaintiff and R wine before inviting them to watch pornographic movies and molesting them.
At one point, prompted by news coverage of other incidents involving Ferguson, the plaintiff’s parents asked him as an adult whether he had ever been molested by Ferguson. At that time, the plaintiff denied any molestation.
The plaintiff testified that he and his wife divorced in 2011, largely because of stress occasioned by the present action.
Specifically, the plaintiff claimed that the defendant: (1) knew or should have known of Ferguson’s proclivities to sexually abuse minors; (2) failed to supervise him adequately; (3) failed to report Ferguson’s conduct to authorities; (4) retained him, despite the fact that it should have known that he was a danger to young boys; (5) failed to remove him from any position despite knowing or having reason to know that he was a danger to minors; (6) failed to conduct an adequate investigation of Ferguson and other priests; (7) failed to establish and maintain a sexual abuse reporting policy; (8) failed to take remedial actions to protect minors; (9) failed to warn its congregations, parishioners, and employees of the threat Ferguson posed; and (10) failed to promulgate policies against having children in private quarters or taking them on unchaperoned trips.
In a subsequent amended complaint, the plaintiff, inter alia, reliеd specifi- *46 cally on Bollea’s failures to prevent Ferguson from being alone with the plaintiff and R behind closed doors at the rectory, and to alert Whealon or other officials of these events. The plaintiff also contended that the fact that Whealon and other officials affiliated with the defendant knew in March, 1979, that at least four boys had been sexually abused by Ferguson, ‘‘should have given [the defendant] a reasonable basis to believe that . . . Fergu- son’s sexual attraction to young boys and his acting upon such attraction was of such a serious and dangerous psychological problem to compel [Whealon’s] forbidding of . . . Ferguson to have contact with minor children.’’
[17] Previously, the defendant had filed a motion for a directed verdict challenging the action as time barred and lacking sufficient evidence of negligence and recklessness, upon which the trial court had reserved judgment.
[18] The defendant questions how ‘‘jurors in 2012, applying only their com- mon knowledge and experience, [could] fairly conclude that a reasonable person in 1981 should have realized that a priest who had a drinking problem and who had engaged in sexual misconduct with adolescent males could not safely be returned to parish service even though he had received evalua- tion and treatment at a mental health facility, had stopped drinking, and his psychiatrist and other therapists supported his return and assured the [arch]bishop that the priest could safely be placed in a parish ministry.’’ (Emphasis in original.)
[19] The plaintiff posits that Ferguson’s ‘‘alleged medical condition’’ and the curability of pedophilia is ‘‘irrelevant to the reasonable steps necessary to protect others,’’ observing colorfully that ‘‘[n]o matter how ‘medical’ the cause of an alcoholic [axe] murderer’s actions in murdering six victims, no reasonable person obtains a favorable psychiatric report, hands the man an [axe], hides his prior conduct from the weakest, most vulnerable members of the defendant’s community, and says, ‘don’t drink!’ ’’
[20] Thus, we disagree with the defendant’s characterization in its reply brief of the plaintiff’s argument as resting on ‘‘nothing more than assumption, that Ferguson’s relapse was ‘obviously foreseeable’ and that ‘everybody’ knows pedophilia [cannot] be cured. While some courts might agree with that proposition today, how can it be assumed that it was common knowledge in 1979–1983 that a person with those tendencies could not be cured or con- trolled by psychological/psychiatric treatment?’’ (Footnote omitted.) The defendant posits that it was the plaintiff’s ‘‘obligation . . . to provide the jury with some evidence upon which they could properly conclude that reasonable people in 1979–1983, knowing what . . . Whealon knew, includ- ing the advice [from] Peterson, would have realized that Ferguson had not been rehabilitated but was likely to reoffend.’’ As the parties’ summations indicate, this case boiled down to the reasonableness of assuming that Ferguson would not relapse, given Whealon’s understanding that alcohol triggered Ferguson’s pedophilic behaviors—not that those behaviors had in fact been ‘‘cured.’’
[21] That relapse is a matter of common knowledge is embodied in the usage of the idiom, for more than one century, characterizing one’s recovery status as being ‘‘on’’ or ‘‘off the wagon.’’ See Urbаn Dictionary, ‘‘Fell Off the Wagon,’’ available at http://www.urbandictionary.com/define.php?term= fell+off+the+wagon (last visited June 22, 2014) (defining ‘‘fell off the wagon’’ as ‘‘[w]hen one resumes an addictive/compulsive behavior that they are trying to control’’ and stating that phrase ‘‘[o]riginally referred . . . to drink- ing’’); see also E. Partridge, A Dictionary of Slang and Unconventional English (4th Ed. 1951) p. 941 (noting that ‘‘on the water-waggon’’ means ‘‘tee-total for the time-being,’’ and has been used in United States since 1904); H. Wentworth & S. Flexner, Dictionary of American Slang (1960) p. 566 (defining ‘‘on the wagon’’ as ‘‘[n]ot drinking alcoholic beverages, either for a short or long period’’ and noting that wagon idioms have been ‘‘univer- sally popular’’ since 1905). This case is distinguishable from the Florida and Illinois cases on which
the defendant relies, wherein historical testimony about prevailing under-
standings was admitted to show that the defendant should have been aware
of certain risks. Those cases are not persuasive because they merely mention
the fact that expert testimony from historians was admitted; they did not
hold that expert testimony was
required
to establish the standard of care,
or even discuss its admissibility more generally. See
Philip Morris USA,
Inc. Kayton
,
[23] The plaintiff also relies on
Paiva Vanech Heights Construction Co
.,
[24] Thus, we disagree with the defendant’s reliance on
Paige St. Andrew’s
Roman Catholic Church Corp
., supra,
delivery of the verdict [that] suggests that the jury may not have given the
question of reckless misconduct proper consideration,’’ namely, that the
jury had failed to complete the interrogatory form when it first delivered
its verdict, and then took only five minutes to complete the form upon being
sent back to deliberate. Given that there is no challenge to the trial court’s
jury instructions, and ‘‘[o]ur jurisprudence is clear . . . that unless there
is a clear indication to the contrary, a jury is presumed to follow the court’s
instructions’’;
PSE Consulting, Inc. Frank Mercede & Sons, Inc
., 267
Conn. 279, 335,
[26] Section 7-2 of the Connecticut Code of Evidence provides: ‘‘A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.’’
[27] The defendant cites four cases in support of its contention that, in
‘‘unusual cases where a fact finder must put itself back in time to properly
review and evaluate evidence, courts permit the type of expert evidence
. . . Jenkins was offering.’’ See
Walden
v.
Chicago
,
[28] We acknowledge the plaintiff’s argument, also made before the trial
court, that Jenkins’ testimony was ‘‘demonstrably false,’’ insofar as ‘‘[p]eople
at the time were well aware that sexual molesters could be repeat offenders
and that it resulted in permanent harm,’’ as shown by the fact that, in 1981,
child molestation was a felony under Connecticut law and also was the
subject of mandatory reporting laws. We conclude that these points do not
affect the admissibility of Jenkins’ testimony, given his reasonable qualifica-
tions as a historian, but rather, go to its weight. See, e.g.,
Weaver McKnight
,
[29] The defendant makes a similar argument in contending that the deposi- tion testimony was similarly inadmissible under the former testimony excep- tion to the hearsay rule. See Conn. Code Evid. § 8-6 (1). Because of our conclusion with respect to the residual exception, we need not address the defendant’s former testimony arguments.
[30] The plaintiff further contends that any error in admitting this evidence was harmless because whether Ferguson was actually treated for pedophilia is not dispositive in this case, insofar as a ‘‘reasonable jury could have found that Ferguson had received state of the art ‘treatment’ for pedophilia and still reached the same result.’’
[31] Practice Book § 13-3 provides in relevant part: ‘‘(a) Subject to the provi- sions of Section 13-4, a party may obtain discovery of documents and tangible things otherwise discoverable under Section 13-2 and prepared in anticipa- tion of litigation or for trial by or for another party or by or for that other party’s representative only upon a showing that the party seeking discovery has substantial need of the materials in the рreparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. . . .’’ We note that the relevant deposition begins with Ferguson recounting
a conversation that he had with Whealon upon the 1979 decision to remove Ferguson from teaching at Northwest; Ferguson stated that the ‘‘substance [of that conversation] was that we will send you to treatment for alcoholism.’’ *49 The questioning continued:
‘‘Q. Besides alcoholism, was there anything else discussed regarding treat- ment, besides treatment for alcoholism . . . was there treatment for any- thing else discussed in that conversation.
‘‘A. No.
‘‘Q. And what arrangements were made, do you recall?
‘‘A. Arrangements were made for me to enter [the Saint Luke Institute] in Holliston, Massachusetts, for treatment.
‘‘Q. And what kind of institute is [the Saint Luke Institute]?
‘‘A. [The Saint Luke Institute] is a treatment facility for priests, nuns, and brothers who are in trouble with alcohol or drugs. . . .
‘‘Q. And does the name Michael Peterson ring a bell?
‘‘A. Yes.
‘‘Q. Who is he?
‘‘A. He was the director.
‘‘Q. Did you get any treatment for sexual disorders there?
‘‘A. No.
‘‘Q. Did [Whealon] order you to leave Northwest . . . ?
‘‘A. Well, no, he told me that I needed treatment for alcoholism and that the [defendant] would provide that.’’
The deposition continued:
‘‘Q. Did you ever have support group meetings at [the Saint Luke Institute]? ‘‘A. Oh, yes.
‘‘Q. Was sexual attraction to minors ever discussed in [these] meetings by anybody?
‘‘A. No.’’ [33] In its sixth special defense, the defendant asserted that the ‘‘court should exercise its power in equity to bar [the] plaintiff’s claim on the basis of laches in that the plaintiff failed to exercise due diligence and inexcusably delayed bringing his lawsuit to the great prejudice of the defendant in that many important and material witnesses have passed away, most notably . . . Whealon and . . . Ferguson.’’
[34] The Appellate Court also discussed this court’s decision in
Dunham
v.
Dunham
,
in the case law of this state. Compare
DaimlerChrysler Ins. Co., LLC
v.
Pambianchi
,
[36] Accordingly, we decline the defendant’s invitation to follow the reason-
ing of cases such as
Teamsters & Employers Welfare Trust of Illinois
v.
Gorman Bros. Ready Mix
, supra,
[37] By way of background, we note the legislative genealogy of § 52-577d, which the defendant concedes, as a matter of statutory interpretation, revives the plaintiff’s time-lapsed claims against it. Section 52-577d, was first enacted by the legislature in 1986. See Public Acts 1986, No. 86-401, § 6; see also Public Acts 1986, No. 86-403, § 104. That statute, as set forth in the 1987 revision of the General Statutes, provides: ‘‘Notwithstanding the provisions of section 52-577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than two years from the date such person attains the age of majority, except that no such action may be brought more than seven years from the date of the act complained of.’’ General Statutes (Rev. to 1987) § 52-557d.
In 1991, the legislature passed an amendment to § 52-577d that extended
the two year limitations period to seventeen years and struck the seven
year repose period. See Public Acts 1991, No. 91-240. In
Roberts
v.
Caton
,
Subsequently, in 2002, the legislature amended § 52-577d to the seventeen year limitations period to thirty years. Public Acts 2002, No. 02-138, § 2. The legislature explicitly stated that the 2002 amendment was ‘‘[e]ffective from passage and applicable to any cause of action arising from an incident committed prior to, on or after said date . . . .’’ See Public Acts 2002, No. 02-138, § 2. For the text of the current revision of § 52-577d, see footnote 4 of this opinion.
[38] ‘‘Furthermore, we are mindful that state [c]onstitutional provisions must be interpreted within the context of the times. . . . We must interpret the constitution in accordance with the demands of modern society or it will be in constant danger of becoming atrophied and, in fact, may even lose its original meaning. . . . [A] constitution is, in [former United States Supreme Court] Chief Justice John Marshall’s words, intended to endure for ages to come . . . and, consequently, to be adapted to the various crises of human affairs. . . . In short, the [state] constitution was not intended to be a static document incapable of coping with changing times. It was meant to be, and is, a living document with current effectiveness. . . . The Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens.’’ (Citation omitted; emphasis omitted; internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health , supra, 289 Conn. 156–57.
[39] As the defendant notes, in civil cases, this court has treated our state
constitution’s due process clauses coextensively; see
Giaimo New Haven
,
[40] Our previous cases contemplate article first, § 10, of the Connecticut
constitution as establishing the Judicial Branch’s governmental obligation
to provide expedient and fair justice in cases that have been brought to the
courts for resolution. See, e.g.,
Pellegrino O’Neill
,
1 (1975), which the defendant relies upon, does not dictate a contrary result. In Gentile , this court held that the 1818 adoption of article first, § 10, of the *51 Connecticut constitution ‘‘recognized all existing rights and removed from the power of the legislature the authority to abolish those rights in their entirety. Rather, the legislature retains the power to provide reasonable alternatives to the enforcement of such rights. Where such reasonable alter- natives are created, the legislature may then restrict or abolish the incorpo- rated common-law or statutory rights.’’ Id., 286. The defendant contends that Gentile must be read to apply to defendants as well as plaintiffs, meaning that the ‘‘courts must also be open to defenses that existed in 1818 absent a reasonable alternative, and one of those defenses is the statute of limita- tions, as the historical prong [of Geisler ] will show.’’ See part IV B of this opinion. We agree with the plaintiff, however, that an assumption that Gentile applies to defenses as well as causes of action simply begs the question of whether the expanded statute of limitations for sexual abuse injuries in § 52-577d is a ‘‘reasonable alternative’’ to shorter statutes of limitations.
[42] Justice Bradley dissented in
Campbell
, concluding that, ‘‘when the stat-
ute of limitations gives a man a defense to an action, and that [defense] has
absolutely accrued, he has a right which is protected by the [f]ourteenth
[a]mendment of the [c]onstitution from legislative aggression.’’
Campbell
v.
Holt
, supra,
[43] The United States Supreme Court may well, however, have left the door open for future due process challenges to specific revivals, insofar as it observed that the defendant had not ‘‘pointed out special hardships or oppressive effects which result from lifting the bar in this class of cases with retrospective force.’’ Chase Securities Corp . v. Donaldson , supra, 325 U.S. 316. The court emphasized that the case was not one ‘‘where [the] appellant’s conduct would have been different if the present rule had been known and the change foreseen.’’ Id.; see also id. (noting that defendant ‘‘does not say, and could hardly say, that it sold unregistered stock depending on a statute of limitation for shelter from liability’’).
[44] When, however, the limitations period is part of the cause of action
itself, and thus qualifies the plaintiff’s right to avail himself of the action,
‘‘a retroactive extension of the period after its expiration amounted to a
taking of property without due process of law.’’
Chase Securities Corp.
v.
Donaldson
, supra,
Finally, in
Moore
, this court held that the 1985 amendment to the limita-
tions period on paternity actions, which expanded it from three years to
eighteen years, applied retroactively against the defendant, relying on the
unrebutted presumption that procedural statutes apply retroactively and
that it did not ‘‘appear that retroactive application of the new statute of
limitations would work an injustice on the defendant.’’
Moore
v.
McNamara
,
supra,
[46] As the amicus curiae notes, this court has shown deference to the
legislature’s judgment in rejecting a state constitutional challenge to the
products liability statute of repose in General Statutes § 52-577a.
Daily
v.
New Britain Machine Co
.,
[47] The court first considered resolving the case as a matter of statutory
interpretation, but concluded that the presumption that statutes affecting
substantive rights apply prospectively was inapplicable because the legisla-
ture had used ‘‘inconvertibly clear and definite’’ language of retroactivity.
Goshen
v.
Stonington
, supra,
We note that this principle of statutory construction has been codified
in General Statutes § 55-3, which we ‘‘have uniformly interpreted . . . as
a rule of presumed legislative intent that statutes affecting substantive rights
shall apply prospectively only,’’ while ‘‘procedural or remedial statutes are
intended to apply retroactively absent a clear expression of legislative intent
to the contrary . . . .’’ (Internal quotation marks omitted.)
Investment Asso-
ciates Summit Associates, Inc
., supra,
on point case law from the courts of Alaska, Maryland, Nevada, Ohio, and
Mississippi. See, e.g.,
Catholic Bishop of North Alaska Does
,
We note in particular our disagreement with both parties’ reliance on
Pratte
v.
Stewart
,
Finally, although there is no decision squarely on point in Maryland, that
state’s existing case law appears to favor the defendant’s position. Compare
Doe
v.
Roe
,
[49] See
Schulte
v.
Wageman
,
[50] The Georgia Supreme Court has followed
Campbell
v.
Holt
, supra, 115
U.S. 620, and
Chase Securities Corp.
v.
Donaldson
, supra,
[51] We note the somewhat nuanced nature of the Kansas Supreme Court’s
decision in
Harding
, namely, that under the Kansas [c]onstitution, ‘‘[t]he
legislature has the power to revive actions barred by a statute of limitations
if it specifically expresses its intent to do so through retroactive application
of a new law. The legislature cannot revive a cause of action barred by a
statute of repose, as such action would constitute the taking of property
without due process.’’ (Emphasis omitted.)
Harding K.C. Wall Products,
Inc
., supra,
tency. Specifically, in
State by Parsons Standard Oil Co
.,
Numerous New Jersey lower court decisions establish that
Panzino
lim-
ited
Standard Oil Co.
to contracts, insofar as they have rejected state and
federal due process challenges to the legislative revival of a variety of lapsed
tort actions. See, e.g.,
Short
v.
Short
,
[53] See
Johnson
v.
Garlock, Inc.
,
We observe, however, that notwithstanding
Ford Motor Co.
v.
Moulton
,
supra,
[54] See
Murray
v.
Luzenac Corp
.,
[55] See
Green
v.
Karol
,
[56] The case law of our neighbor to the east on this issue bears special
mention, given the parties’ apparently divergent understanding of it. In
Twomey Carlton House of Providence, Inc.
,
Thereafter, the Virginia constitution was amended to overrule
Starnes
specifically, with a provision that: ‘‘ ‘The General Assembly’s power to define
the accrual date for a civil action based on an intentional tort committed
by a natural person against a person who, at the time of the intentional tort,
was a minor shall include the power to provide for the retroactive application
of a change in the accrual date.
No natural person shall have a constitution-
ally protected property right to bar a cause of action based on intentional
torts as described herein on the ground that a change in the accrual date
for the action has been applied retroactively or that a statute of limitations
or statute of repose has expired
.’ ’’ (Emphasis added.)
Kopalchick
v.
Catholic
Diocese of Richmond
,
[58] The New York Court of Appeals has stated that, unlike a final judgment,
‘‘the running of a [s]tatute of [l]imitations creates no . . . vested or property
right. To the contrary, although it bars a remedy on the claim so long as it
remains effective, it does not destroy the right or foreclose a change in
the legislative policy which resulted in imposition of the bar.’’
Thomas
v.
Bethlehem Steel Corp
.,
[60] Along these lines, the defendant posits that ‘‘[l]aw-abiding people and organizations need to know when they can safely dispose of mountains of records, and insurance companies need to know how long claims can be asserted when they are setting premiums. On the latter point, reviving an expired claim gives insurance companies no opportunity to recoup the expenses of such a claim through premiums. . . . In any event, all of us at some point need to know when we can and should move on.’’ (Cita- tion omitted.)
The defendant argues that these concerns are of particular significance in child sexual abuse cases, given the already lengthy statute of limitations and the fact that ‘‘the potential defense witnesses typically are much older. By 2008, [Ferguson] was dead, his supervising priest was dead, [Whealon] was dead, and the psychiatrist to whom [Whealon] sent [Ferguson] was dead. Medical records from 1979 through 1983 were routinely destroyed in 1996. Societal standards about dealing with sex offenders have certainly changed dramatically over the past [thirty] years. Much earlier disclosure of the misconduct surely would have served societal interests better.’’
[61] Thus, such commentators endorse revival statutes as part of the solution to this problem, and argue in support of their constitutionality, even under heightened scrutiny. See M. Hamilton, supra, 79 Brook. L. Rev. 404; see also E. Khorram, ‘‘Crossing the Limit Line: Sexual Abuse and Whether Retroactive Application of Civil Statutes of Limitation arе Legal,’’ 16 U.C. Davis J. Juv. L. & Policy 391, 425 (2012) (arguing that ‘‘immunity from civil suit is a vested property right, and a deprivation of such is a violation of the [f]ourteenth [a]mendment without a compelling state interest,’’ but contending that ‘‘[p]rotecting children through granting legal access is a compelling state interest that should be trumpeted as such’’); W. Gray, ‘‘A Proposal for Change in Statutes of Limitations in Childhood Sexual Abuse Cases,’’ 43 Brandeis L.J. 493, 509 (2004–2005) (noting that ‘‘revival statutes . . . help in cases where the applicable statute of limitations has already passed,’’ and urging states to ‘‘endeavor to permanently solve the problem of statutes of limita- tions in childhood sexual abuse cases by drafting forward-thinking legisla- tion designed to confront the myriad facets of the childhood sexual abuse problem’’); J. Miller, ‘‘The Constitutionality of and Need for Retroactive Civil Legislation Relating to Child Sexual Abuse,’’ 17 Cardozo J.L. & Gender 599, 624 (2010–2011) (‘‘state courts that interpret their state constitutions as protecting an individual’s reliance on statutes of limitations should either alter this interpretation or consider amending their state constitution for the sake of child sexual abuse victims’’).
[62] The concurring opinion criticizes our analysis of the public policy
Geisler
factor as ‘‘internally inconsistent,’’ contending that we ‘‘[purport] to under-
take an independent review of the sociological and economic considerations
at stake, in accordance with
Geisler
, but then [fail] to do so’’ by ‘‘defer[ring]
to the legislature’s primary responsibility in pronouncing the public policy
of our state.’’ (Internal quotation marks omitted.) The concurrence further
states, that if ‘‘we were to defer to the legislature when considering the
sociological and economic implications of a statute under
Geisler
. . . then
that factor
always
would support the constitutionality of a statute.’’ (Empha-
sis added.) We respectfully disagree with the concurrence’s view of our
approach to the public policy factor in
Geisler
. Beyond the deference inher-
ent in the use of the reasonable doubt burden that a party seeking to strike
a statute must carry; see, e.g.,
Kerrigan Commissioner of Public Health
,
supra,
whether the purpose of the legislation is a legitimate one and whether the
particular enactment is designed to accomplish that purpose in a fair and
reasonable way. If an enactment meets this test, it satisfies the constitutional
requirements of due process . . . . In determining whether the challenged
*57
classification is rationally related to a legitimate public interest, we are
mindful that [t]he test . . . is whether this court can conceive of a rational
basis for sustaining the legislation; we need not have evidence that the
legislature actually acted upon that basis. . . . Rational basis review is
satisfied so long as there is a plausible policy reason for the classification
. . . . [I]t is irrelevant whether the conceivable basis for the challenged
distinction actually motivated the legislature. . . . To succeed, the party
challenging the legislation must negative every conceivable basis which
might support it . . . .’’ (Citations omitted; internal quotation marks omit-
ted.)
Dutkiewicz Dutkiewicz
,