Doe v. RobinsonDoe v. Robinson
Mark A. Davis, for appellants.
John P. Donahue, for appellee Gerald Robinson.
Thоmas G. Pletz and Thomas P. Dillon, for appellees Catholic Diocese of Toledo, St. Adalbert Parish and School, and the Oblates of St. Francis de Sales, Inc.
HANDWORK, J.
{¶ 1} This appeal is from the January 20, 2010 judgment of the Lucas County Court of Common Pleas, which granted summary judgment in favor of appellees, Gerald
{¶ 2} “ASSIGNMENT OF ERROR NO. 1. The Trial Court Erred By Granting Summary Judgment Upon the Statute of Limitations Defense.
{¶ 3} “ASSIGNMENT OF ERROR NO. 2. The Trial Court Erred By Failing To Grаnt Summary Judgment To Appellant [sic].
{¶ 4} “ASSIGNMENT OF ERROR NO. 3. The Trial Court Erred By Entering A Protective Order Favoring Appellee and Prejudicing Appellant [sic].
{¶ 5} “ASSIGNMENT OF ERROR NO. 4. The Trial Court Erred By Striking Appellant‘s [sic] Independent Discovery.”
{¶ 6} On April 20, 2005, appellants filed a complaint against appellees, Gerald Robinson, Gerald Mazuchowski, the Catholic Diocese of Toledo (“Diocese“), St. Adalbert Parish and School, Oblates of St. Francis DeSales, Inc., John and Jane Does 1-15 (yet unknown individuals and/or unnamed defendants who participated, permitted, encouraged, fostered, approved, sanctified, condoned, engaged in, or ratified the actions of Robinson and Mazuchowski), and Catholic Entity Does 1-5 (additional institutions, organizations, parishes, schools, or other entities which participated, permitted,
{¶ 7} Appellees moved to dismiss appellants’ complaint, which was supplemented in 2006, pursuant to
{¶ 8} Appellants sought an appeal from that decision, which this court affirmed in part and reversed in part. Survivor Doe v. Robinson, L-07-1051, 2007-Ohio-5746 (“Survivor Doe I“). We held that appellants had alleged sufficient facts, for purposes of defeating a
{¶ 9} At the same time that appellees had been seeking to dismiss the complaint, the General Assembly was enacting through S.B. No. 17 the current versions of
{¶ 10} In 1994, the Ohio Supreme Court held that such claims fall under the one-year statute of limitations for assault and battery because the conduct involved is intentional and not accidental. Doe v. First United Methodist Church, supra. Therefore, victims had one year after they attained the age of majority to file suit. The derivative or vicarious liability of the abuser‘s employer was subject to the same statute of limitations for assault and battery. Id. at 536. As to the negligent liability of the parties who failed to protect the victim, the court held that the two-year statute of limitations for bodily injury applied. Id. But, recognizing the injustice of applying a statute of limitations that did not take into consideration the fact that the tortuous conduсt itself might cause the victim not to be aware of the tortuous conduct until many years later, the court also applied the discovery rule to toll the running of the statute of limitations. Ault v. Jasko (1994), 70 Ohio St.3d 114, syllabus. The court later explained its justification in applying the discovery rule was that the legislature had not yet enacted a statute of
{¶ 11} In Survivor Doe I, supra, we accepted the factual allegations that an extremely traumatized young victim of sexual battery by numerous persons over many years (who was unable to recognize or comprehend the extent of the abuse or even conceive of her church/school and its priests as parties to or perpetrators of her abuse) was sufficient to support an allegation that the discovery rule applied and defeat a
{¶ 12} In S.B. No. 17,
{¶ 13} “An action brought by a victim of childhood sexual abuse asserting any claim resulting from childhood sexual abuse, as defined in section
{¶ 14} This change resulted in the creation of a specific cause of action based upon childhood sexual assault (definеd by
{¶ 15} Furthermore, S.B. No. 17 amended
{¶ 16} “This section shall be considered to be purely remedial in operation and shall be applied in a remedial manner in any civil action commenced on or after April 7, 2005, in which this section is relevant, regardless of when the cause of action accrued and notwithstanding any other section of the Revised Code or prior rule of law of this state, but shall not be construed to apply to any civil action pending prior to April 7, 2005.” (Emphasis added.)
{¶ 17} We interpret this change as providing that all bodily injury actions based upon childhood sexual abuse filed on or after April 7, 2005, would be subject to the new statute classifying all such actions as childhоod sexual assault or battery.
{¶ 18} In the amended
{¶ 19}
{¶ 20} “An action for assault or battery brought by a victim of childhood sexual abuse based on childhood sexual abuse, or an action brought by a victim of childhood sexual abuse asserting any claim resulting from childhood sexual abuse, shall be brought
{¶ 21} The enacted, uncodified language contained in Sec. 3(B) of S.B. No. 17 provides as follows:
{¶ 22} “The amendments to section
{¶ 23} On remand, appellees filed motions for summary judgment in June 2009 arguing that summary judgment should be granted in their favor as a matter of law on the ground that appellants’ claims are time-barred pursuant to
{¶ 24} Appellees also argued that even under the prior law, appellants’ claims were time-barred. Under prior law, appellant had two years after the age of majority to file her suit unless she proved either that she did not know the abuse occurred or that she did not know the identity of the perpetrator despite due diligence to discover his identity. Here, appellant acknowledged memories of the abuse in the mid-1990s. Furthermore, appellant testified that she did not know Robinson‘s name until 2003, but she knew the names of at least five of her abusers and yet did nothing to determine the identity of the others from 1994 or 1995 until 2005.
{¶ 25} Appellants opposed appellees’ motions for summary judgment and they also filed for summary judgment. They argued that this appellate court obviously knew of the revised
{¶ 26} On January 20, 2010, the trial court granted appellees’ motion for summary judgment. The trial court first considered Pratte v. Stewart, 2d Dist. No. 08-CA-95, 2009-Ohio-1768, which was later affirmed at 125 Ohio St.3d 473, 2010-Ohio-1860. In the Pratte case, a claim was filed on April 14, 2008, based upon childhood sexual abuse, after the victim‘s repressed memories were recovered in April 20, 2007. The action was found to have been barred by the statute of limitations of
{¶ 27} The trial court in the present case held that
{¶ 28} The appellate court reviews the grant of summary judgment under a de novo standard of review. Advanced Analytics Labs., Inc. v. Kegler, Brown, Hill & Ritter, 148 Ohio App.3d 440, 2002-Ohio-3328, ¶ 33, and Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, reconsideration denied (1996), 77 Ohio St.3d 1501. Applying the requirements of
{¶ 29} We must begin by addressing the issue of the statute of limitations applicable to this case. We did not, as appellants’ suggest, determine in Survivor Doe I, supra, that the newly-enacted
{¶ 30} Upon a review of the statutes at issue, we interpret the retroactivity language of
{¶ 31} In this case, appellants filed their action for assault and battery before August 3, 2006. Therefore, we find that the trial court correctly applied former
{¶ 32} “The one-year statute of limitations period for sexual abuse in Ohio begins to run when the victim recalls or otherwise discovers that he or she was sexually abused, or when, through the exercise of reasonable diligence, the victim should have discovered the sexual abuse.” Ault v. Jasko, supra, paragraph two of the syllabus. Therefore, the cognizable event is the occurrence of facts and circumstances which lead, or should reasonably lead, the plaintiff to understand that a sexual abuse occurred when he was a child and to identify the abuser. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, ¶ 34, reconsideration denied (2006), 110 Ohio St.3d 1444. The
{¶ 33} As we have already discussed in Survivor Doe I, supra, due diligence is “‘[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.’ Black‘s Law Dictionary (8 Ed.Rev.2004) 488. The existence of due diligence is a factual finding by the trial court that must be supported by the record. In the context of the discovery rule, the due diligence requirement ensures that the ‘plaintiff bear[s] some meaningful, affirmative responsibility to determine facts that would form the basis for his or her cause of action.’ Collins v. Sotka (1998), 81 Ohio St.3d 506, 512, (Moyer, J. dissenting).” Id. at ¶ 41. What constitutes due diligence in any given case will depend upon the facts of that case. Sizemore v. Smith (1983), 6 Ohio St.3d 330, 332. Therefore, in this case, after reviewing the facts in a light most favorable to appellants, we must determine whethеr there is a question of fact as to appellants’ due diligence or whether reasonable minds could find only that appellants had not used due diligence.
{¶ 34} The following are the undisputed facts in this case. Survivor Doe‘s therapist testified in her deposition that Survivor Doe had been under treatment for psychological injury due to sexual abuse from 1994 until the present time. Early on, Survivor Doe was diagnosed with Post Traumatic Stress Syndrome due to the sexual,
{¶ 35} The therapist testified that Survivor Doe first recalled the satanic ritual abuse in 1994. From that time until after 2004, Survivor Doe regained additional memories of horrendous abuse that occurred when she was a child. The process of recalling these memories involved independent journaling, which she claimed not to have ever read because of the physical pain the memories caused. She could authenticate her hаndwriting, but could not even remember making some of the journal entries. She also talked to her family, talked to other survivors, read books and articles to help her regain her memory, and participated in therapy sessions. The memories were not retrieved in a logical, historical manner but in bits and pieces. Even at the time of her deposition, Survivor Doe did not desire to remember all of the details of the abuse because it was too physically painful. She still could not remember the location of the crimes other than some memories of a lake in the woods and the basement of the church.
{¶ 36} Nonetheless, Survivor Doe had remembered enough of her childhood memories prior to 2004 to understand that she had been a child victim of sexual abuse by various members of her family аnd people who knew her family and that she had also been a victim of satanic ritual abuse. She recalled the identities of some of the people who were involved in the satanic ritual abuse prior to 2004, but she never identified Robinson until 2004 when she saw his eyes on television. After that date, she recalled more of the details of her abuse. She testified that this was the final piece that pulled all of her memories together.
{¶ 37} Survivor Doe knew that many others were involved in these rites, but she still cannot identify all of them. She recalled three of the abusers were men in black hooded robes who directed the activities. Survivor Doe claimed that she never associated appellees Robinson and Mazuchowski with the black hooded robes and the abuse until she saw Robinson‘s eyеs on television in 2004. Later, after seeing his picture in the newspaper, she began to remember Mazuchowski being involved as well.
{¶ 38} Survivor Doe acknowledged confronting her family prior to 2004 despite their adversarial relationships, but they denied knowledge of everything. Her sister could only remember that Survivor Doe bore the brunt of the beatings. She also confronted the brother of one of her mother‘s ex-husbands, but he told her not to look into the past. She never confronted any of the other individual abusers that she had known because she had not yet recalled all of her memories, she did not know their whereabouts, and she was afraid of them because they are dangerous people and had continually threatened to harm
{¶ 39} Appellants consulted with an attorney in approximately 1994 about suing Survivor Doe‘s uncle for the sexual abuse he inflicted upon her. She also met with the attorney once at her therapist‘s office about getting permission to release information to the attorney. The therapist testified that she counseled against litigation because she believed that it would impede Survivor Doe‘s recovery. Appellants decided not to pursue the suit for that reason. Survivor Doe tеstified that she did not understand at that time about the statute of limitations and the loss of her claim by not filing. Appellants later went to see another attorney, but Survivor Doe testified that she left when he told her that he protected people who have been abused as a child and that she should burn her journals.
{¶ 40} Based upon this evidence, the trial court determined that the cognizable event under the undisputed facts of this case is the moment that Survivor Doe remembered in 1994 that she had been abused in satanic cult rituals as a child, she knew that this conduct was wrongful, that a hooded man with evil eyes and a hooded fat man participated in the abuse, and that her brother and his friends also participated in the abuse. From that date onward, Survivor Doe recalled additional facts, which would have
{¶ 41} In their first assignment of error, appellants argue that the trial court erred when it granted summary judgment to appellees because it erroneously determined that the cognizable event occurred in the 1990s even when Survivor Doe indicated in her December 1994 diary entry that she was struggling with understanding and believing the memories she was having about satanic ritual abuse. Appellants contend that the cognizable event actually occurred in 2004 when appellant recognized Robinson‘s image on the television at the time of his arrest and then recalled the memories of satanic ritual abuse and the connection with the Catholic Church and school.
{¶ 42} Appellants also argue that the trial court erred in assuming that because appellant Doe could recall some of the abuse by others, she should have inquired further to determine who else might have been involved. Appellants assert that this would have been impossible because appellant Doe had not yet even remembered that she had been abused by Robinson.
{¶ 43} Finally, appellants argue that they did exercise due diligence to understand the events of Survivor Doe‘s childhoоd satanic ritual abuse. She sought 11 years of
{¶ 44} Much of appellants’ argument centers on the truth of the abuse Survivor Doe suffered. In connection with the issue of the statute of limitations, we need not address this issue and may presume that the allegations of abuse are true. Instead, we address only the issue of whether the discovery rule tolled the running of the statute of limitations.
{¶ 45} On appeal, appellants argue that the cognizable event was not until the day Survivor Doe saw Robinson on television in 2004 and knew him to be her abuser. We disagree. While it is undisputed in the evidence that Survivor Doe never associated Robinson with the abuse until after seeing his face on television in 2004, we find that she did have sufficient facts to have gone forward to the authorities with these allegations of satanic ritual abuse or to initiate a lawsuit against some of the identified individuals in order to determine who the unknown participants could have been. While these efforts may have been dangerous or ineffective, the аct of doing so would have demonstrated due diligence on appellants’ part to discover the identity of the principal abusers.
{¶ 46} We recognize that under the unique facts of this case, the undisputed facts show that Survivor Doe was impaired by the trauma of the abuse, felt compelled to follow her therapists’ advice to focus on her journey to health first, and was still terribly afraid of the abusers. We also recognize that she did in fact contact members of her family, continue therapy, and endure great pain in order to uncover the rest of her memory and identity of her abusers on her own. But, we conclude, as a matter of law, that a reasonable person exercising due diligence would have sought the outside help of law enforcement or have sued some of thе individuals involved in order to seek additional information through the discovery process of litigation despite the threat of harm and how it impacted her recovery. Appellants eventually filed suit while still protecting Survivor Doe‘s identity. We find that she could have done the same at an earlier time.
{¶ 47} Appellants argue that they did attempt to go to the police about the memory of a child murdered during the satanic rituals, but were informed that there were not enough facts to justify an investigation. We find this action distinguishable because appellants sought to have the police investigate the murder of an unidentified child, they did not seek to have the police investigate the crimes against Survivor Doe.
{¶ 48} Alternatively, appellants argue that her lack of due diligence is mitigated by the active fraud, concealment, and intimidation of the truth by appellees. We do not find merit in this argument. Criminals often conceal their identity and intimidate their victims
{¶ 49} Therefore, we find appellants’ first assignment of error not well-taken.
{¶ 50} In their second assignment of error, appellants argue that the trial court erred by failing to grant summary judgment in their favor. We need not reach the merits of this assignment of error having found that the trial court properly concluded that the statute of limitations in this case had expired prior to appellants filing their claims because the discovery rule was not applicable. We find appellants’ second assignment of error moot.
{¶ 51} In their third assignment of error, appellants argue that the trial court erred by entering a protective order against appellants conducting discovery based upon judicial economy. Appellants assert that this order prejudiced their case and constituted an abuse of discretion.
{¶ 52} In September 2008, appellees moved for a protective order and for an order focusing discovery to the issue of whether the discovery rule applied because this issue might resolve the entire case. Appellees sought to limit discovery to only the facts surrounding Survivor Doe‘s discovery of the satanic ritual abuse and the identity of the perpetrator and the perpetrator‘s employer. Appellеes argued that none of the facts relating to these issues are within appellees’ possession. The court granted the motion holding that appellants were to disclose all of Survivor Doe‘s medical, psychiatric, counseling, and therapy records and the identity of appellants’ witnesses, Does 1-4.
{¶ 53} We find that none of the facts appellants claim to have not been able to discover were relevant to the issue of whether the statute of limitations had run before appellants filed suit. We agree with the trial court that the primary facts relevant to that issue were within the knowledge of appellants. Therefore, we find that the trial court did not err by limiting discovery because the court believed that the issue of the statute of limitations could resolve the entire case. Appellants’ third assignment of error is not well-taken.
{¶ 54} In their fourth assignment of error, appellants argue that the trial court erred by striking appellants’ independent discovery of: 1) paragraphs six and seven of a detective‘s affidavit, 2) a nun‘s affidavit, 3) the transcript of Mazuсhowski‘s taped interview, and 4) an expert‘s affidavit.
{¶ 55} The trial court‘s determination of the admissibility or exclusion of evidence is generally a matter of discretion that will not be overturned on appeal absent a showing that the trial court abused its discretion. Peters v. Ohio State Lottery Comm. (1992), 63 Ohio St.3d 296, 299, certiorari denied (1992) 506 U.S. 871. An abuse of discretion is
{¶ 56} The trial court struck paragraphs 6 and 7 of the affidavit of a Toledo police detective on the grounds that it contains inadmissible hearsay and opinion regarding the credibility of the witnesses. We find that the trial court did not err in excluding portions of the affidavit.
{¶ 57} The officer attested that she investigated allegations relating to ritual abuse, sexual abuse, and satanic rituals involving appellee Robinson. During her investigation, she intеrviewed four or five witnesses in accordance with standard interview procedures. Without relating the details of their statements, the officer attested that their stories corroborated each other and indicated satanic and sexual abuse. In paragraphs 6 and 7 of the affidavit, the officer attested that: “6. The witnesses described severe sexual assault, satanic abuse, ritual abuse and other horrific acts performed by groups of men and or priests. 7. Upon a preponderance of the evidence, meaning more likely than not, it is my personal and expert opinion that ritual abuse did take place in some type of cult-like environment.”
{¶ 58} “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
{¶ 59} As to paragraph 7, the trial court found that the officer‘s opinion was based upon hearsay. “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by the expert or admitted in evidence at the hearing.”
{¶ 60} The trial court alternatively found that the detective‘s opinion was an inadmissible opinion regarding the credibility of the witnesses. “A witness may testify as an expert if * * * [t]he witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons * * *.”
{¶ 61} In this instance, the detective is opining that all of the witnesses are credible because their accounts corroborate each other. We believe that this conclusion is not something unique to a police detective‘s ability to comprehend the facts and therefore
{¶ 62} Next, appellants argue that the trial court erred in excluding a nun‘s affidavit because it was not authenticated. The evidence consisted of the affidavit of appellants’ counsel that he received a copy of a statement made by a nun, which was allegedly made to the Toledo Diocese about sexual abuse perpetrated upon her and others by appellees. Appellants cite to this evidence to establish that this type of abuse occurred by a satanic cult. Therefore, it is clearly being offered for the truth of the matter asserted therein.
{¶ 63} The authenticity of a document is what makes it relevant.
{¶ 64} Next, appellants argue that the trial court erred finding that the transcript of Mazuchowski‘s taped interview was inadmissible.
{¶ 65} Under
{¶ 66} Although Mazuchowski admitted in his answers to appellants’ interrogatories that he did not lie during his taped interview with appellants’ attorney, he was not sworn prior to the conversation and did not authenticate the transcribed interview. Appellants argue that the court reporter‘s certification would be sufficient to authenticate the transcript. We disagree. This was not a deposition taken pursuant to
{¶ 67} Finally, appellants argue that the trial court erred in excluding the affidavit of an expert, Randall Noblitt, PhD. In his affidavit, the expert based his opinions upon
{¶ 68} Therefore, we find appellants’ fourth assignment of error well-taken as to one statement by Dr. Noblitt. In all other respects, we find that the trial court did not err in excluding the challenged evidеnce. However, because we have found that the trial court properly dismissed this case on statute of limitations grounds, the exclusion of this evidence was not prejudicial to appellants.
{¶ 69} Having found that the trial court did not commit error prejudicial to appellants and that substantial justice has been done, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellants are hereby ordered to pay the costs of this appeal pursuant to App.R. 24.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
Mark L. Pietrykowski, J.
Keila D. Cosme, J.
CONCUR.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.