*1 Before: GUY, MOORE, and CLAY, Circuit Judges.
_________________
COUNSEL ARGUED: Ilann M. Maazel, EMERY CELLI BRINCKERHOFF ABADY WARD & MAAZEL, New York, New York, for Appellants. Michael H. Carpenter, CARPENTER, LIPPS & LELAND, LLP, Columbus, Ohio, for Appellee. ON BRIEF: Ilann M. Maazel, Debra L. Greenberger, Marissa R. Benavides, EMERY CELLI BRINCKERHOFF ABADY WARD & MAAZEL, New York, New York, Adele P. Kimmel, Alexandra Z. Brodsky, PUBLIC JUSTICE, Washington, D.C., Scott Elliot Smith, SCOTT ELLIOT SMITH, LPA, Columbus, Ohio, for Appellants. Michael H. Carpenter, Timothy R. Bricker, David J. Barthel, CARPENTER, LIPPS & LELAND, LLP, Columbus, Ohio, for Appellee. David A. Lebowitz, KAUFMAN LIEB LEBOWITZ & FRICK LLP, New York, New York, Caroline Hickey Zalka, Alexandra Rose, Seth Massey, WEIL, GOTSHAL & MANGES LLP, New York, New York, Arianna Scavetti, WEIL, GOTSHAL & MANGES LLP, Washington, D.C., Roger A. Cooper, Mitchell A. Lowenthal, Charity E. Lee, Sarah B. Gutman, CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, Jim Davy, ALL RISE TRIAL & APPELLATE, Philadelphia, Pennsylvania, Tad Thomas, THOMAS LAW OFFICES, Cincinnati, Ohio, for Amici Curiae.
MOORE, J., delivered the opinion of the court in which CLAY, J., joined. GUY, J. (pp.
31–48), delivered a separate dissenting opinion.
_________________
OPINION
_________________ KAREN NELSON MOORE, Circuit Judge. In his role as university physician and athletic team doctor at the Ohio State University, Dr. Richard Strauss allegedly abused hundreds of young men under the guise of performing medical examinations. The abuse occurred between 1978 and 1998, but it did not become public until 2018. After the allegations became public, survivors of this abuse—including the plaintiffs in these cases—brought Title IX suits against Ohio State, alleging that Ohio State was deliberately indifferent to their heightened risk of abuse. The district court found that the plaintiffs’ claims were barred by the statute of limitations.
The district court erred. The plaintiffs adequately allege that they did not know and could not reasonably have known that Ohio State injured them until 2018. Thus, at the motion-to- dismiss stage, we cannot say that their claims accrued before then. We REVERSE and REMAND for further proceedings consistent with this opinion.
I. BACKGROUND
A. Factual Allegations [1]
1. Strauss’s Conduct
Richard Strauss served on the Ohio State faculty starting in 1978. [2] He soon became a team physician. In that capacity, he “had regular contact with male student-athletes” in at least seventeen different sports. [3] He also served as a physician at Ohio State’s Student Health Center. [4] Strauss served in these roles until 1996, when Ohio State placed him on administrative leave, investigated his conduct, and ultimately declined to renew his appointments with Student Health Services and terminated his employment agreement with the Athletics Department. [5] It did not publicly provide reasons for these decisions. Ohio State conducted a hearing but did not notify students or give them an opportunity to participate. [6]
Strauss remained a tenured faculty member. When he retired in 1998, Ohio State gave him emeritus status. [7] He opened a private men’s clinic near Ohio State to treat “common genital/urinary problems,” advertised the clinic in Ohio State’s student newspaper, and continued to see and treat Ohio State students. [8] The vice dean for the College of Medicine told Strauss that “there would be no problem” with this arrangement. [9]
In his roles at Ohio State, Strauss regularly abused male students during medical examinations, committing at least 1,429 sexual assaults, and 47 rapes. [10] He “groped and fondled students’ genitalia” [11] ; “performed unnecessary rectal examinations and digitally penetrated students’ anuses” [12] ; “pressed his erect penis against students’ bodies” [13] ; “drugged [14] and anally raped students” [15] ; “masturbated during or after the exams” [16] ; and engaged in other sexually abusive behavior. Snyder-Hill R. 123 (Second Am. Compl. (“SAC”) ¶¶ 135–46) (Page ID #2013–14); Moxley R. 6 (Am. Compl. ¶¶ 81–87) (Page ID #220). Each plaintiff alleges that Strauss abused him between 1979 and 2000; all but four were Ohio State students during this time. [17]
An independent investigation commissioned by Ohio State in 2018 and undertaken by the law firm Perkins Coie substantiates the plaintiffs’ allegations of abuse. See Caryn Trombino & Markus Funk, Perkins Coie LLP, Report of the Independent Investigation: Sexual Abuse Committed by Dr. Richard Strauss at The Ohio State University , (May 15, 2019) (hereinafter “Perkins Coie Report”). The Perkins Coie Report found that Strauss sexually abused at least 177 male student patients, the majority of whom were student athletes. [18] Perkins Coie Report at 1, 43.
2. Ohio State’s Conduct
The plaintiffs allege that Ohio State knew about, facilitated, and covered up Strauss’s sexual abuse. [19] Many students complained to Ohio State about Strauss’s abuse, [20] and more than 50 members of the Athletics Department Staff knew about Strauss’s inappropriate sexual conduct. [21] Staff at the Student Health Center were also aware of and received many complaints about Strauss’s examinations of male students. [22] For example, during Strauss’s first year working at Ohio State, a wrestler complained to staff at the Student Health Center “that Dr. Strauss had examined his genitals for 20 minutes and appeared to be trying to get him excited.” [23] In addition, Dr. Murphy, the head team physician had received at least five written reports about Strauss’s misconduct. [24]
The plaintiffs allege that, despite this knowledge, Ohio State took no action to prevent the abuse. [25] At times, Ohio State falsely told student athletes, as well as some staff members, that it had not received prior complaints about Strauss or that all complaints were maintained in an appropriate file. [26] At other times, Ohio State employees had limited conversations with Strauss about his behavior but failed to follow up, investigate, report, or meaningfully address the concerns. [27] Despite the complaints of abuse, Strauss’s supervisors rated Strauss’s performance as “exceptional” and “excellent” in his evaluations and had a policy of never mentioning allegations of sexual misconduct on evaluations. [28] All the while, Ohio State required students to be examined and treated by Strauss, often explicitly or implicitly making students feel that they risked their scholarships or athletic opportunities if they refused. [29]
The Perkins Coie Report substantiates the plaintiffs’ claims that Ohio State knew of and facilitated this abuse. The report found that although Ohio State received “persisten[t], serious[], and regular[]” complaints from students, it took “no meaningful action . . . to investigate or address the concerns until January 1996” when it quietly suspended Strauss. Perkins Coie Report at 3; see id. at 87–162.
Even after Ohio State completed its perfunctory investigation in 1996, at which time it ultimately suspended and terminated Strauss, it “hid the reason why it was investigating Strauss and placing him on leave”; “actively concealed Dr. Strauss’ abuse by not investigating or attempting to identify the students Dr. Strauss harmed”; “further concealed Dr. Strauss’ abuse by destroying medical records”; [30] and shredded files related to Strauss’s sexual abuse. [31]
3. What the Plaintiffs Knew
Because the central issue at this stage is when the plaintiffs’ claims accrued, the most relevant allegations relate to what the plaintiffs knew or had reason to know regarding Strauss’s and Ohio State’s conduct and when they knew or had reason to know it. These allegations vary among the different plaintiffs, but the plaintiffs all allege a significant gap between what they know now and what they knew before the allegations about Strauss’s conduct became public.
First, most plaintiffs allege that they did not know they were abused until 2018. [32] At the time of the abuse, they were teenagers and young adults and did not know what was medically appropriate. [33] Strauss gave pretextual and false medical explanations for the abuse. For example, he stated the abuse was necessary to perform a hernia check; [34] check for muscle and bone anomalies; [35] check for STIs; [36] perform a prostate exam; [37] perform a rectal exam; [38] monitor a patient’s testicles that were different sizes; [39] check a patient’s lymph nodes; [40] or treat a skin infection on a patient’s penis. [41]
Thus, the plaintiffs allege, even students who felt “very uncomfortable during Dr. Strauss’ examination[s]” often “did not understand or believe that Dr. Strauss had sexually abused [them].” [42] This was true even of many students who complained about Strauss’s conduct at the time. [43] Additionally, many students believed that because the conduct was so widely known and talked about, it could not have been abuse. [44] Similarly, many believed that Ohio State would not have made Strauss the athletic team doctor unless his examinations were legitimate, and thus, that the conduct was medically appropriate even if it was uncomfortable. [45]
The plaintiffs allege that Ohio State witnesses, including physicians, conceded in sworn testimony that the students could not have known Strauss abused them because “patients do not know what is a ‘normal exam’ because patients have a ‘lack of information’ about what is medically appropriate.” [46] Ohio State witnesses acknowledged that this is due in part to the fact that “it is normal for patients to be naked in front of doctors and for doctors to touch them, that ‘doctors are in a position of superior knowledge and authority’ to patients, and that patients, including OSU students, trusted their doctor to do what was medically appropriate.” [47]
The plaintiffs point to the Perkins Coie Report to support these allegations. Perkins Coie decided that “it was essential for the Investigative Team to consult with suitably qualified medical experts” “to discern whether, and to what extent, Strauss’ physical examinations of student-patients exceeded the boundaries of what was appropriate or medically necessary” because the abuse “occurred in the context of a student’s purported medical examination.” Perkins Coie Report at 12. [48] The Perkins Coie Report also noted that, in general, patients may have “confusion as to whether sexual abuse, in fact, occurred.” Perkins Coie Report at 11. [49]
Although most plaintiffs allege that they did not know that Strauss’s conduct was abuse, nine allege that they did. For example, plaintiffs Snyder-Hill and Reed quickly recognized Strauss’s conduct as abuse and promptly complained. [50] John Doe 9 learned the conduct was abusive when his primary care physician told him that Strauss’s actions “were inappropriate and not medically necessary.” [51] John Doe 19 realized that Strauss had abused him when he learned about proper physician-patient conduct while attending medical school. [52]
Although plaintiffs differ as to whether they knew at the time that Strauss abused them, all allege that they could not have known about Ohio State’s responsibility for the abuse. [53] They did not have reason to know that others had previously complained to Ohio State about Strauss’s conduct, let alone how Ohio State had responded to any previous complaints. [54] Two Ohio State employees—Dr. Ted Grace, who was the director of Ohio State’s Student Health Services, and Dr. Miller, who was Strauss’s direct supervisor—stated that they did not know of “any way” that “any Ohio State student” could have known that Ohio State knew about Strauss’s abuse and nonetheless failed to “get rid of” him. [55] Further, each plaintiff alleges that, even if he had investigated, further inquiry would have been futile because Ohio State controlled their access to information. [56] In short, although plaintiffs allege that Ohio State administrators knew of the abuse at the time, the plaintiffs allege that they did not know until 2018 that Ohio State administrators knew or that they enabled and perpetuated the abuse.
In addition to the general allegations related to Ohio State’s conduct—such as hiding what it knew, falsifying evaluations, and destroying records—some plaintiffs offer further specific allegations of concealment. For example, after Snyder-Hill demanded a meeting to address Strauss’s conduct, Grace sent him a letter falsely stating that Ohio State had never before received a complaint about Strauss. [57] It had, in fact, received multiple complaints, including one just three days earlier. [58] Grace also falsely told Snyder-Hill that all complaints would be kept in Strauss’s personnel file. [59] In reality, Strauss’s personnel file had no record of Snyder-Hill’s or any other complaint. [60] And, although Grace agreed to inform Snyder-Hill about any future complaints, Grace never did, even in 1996 when the Ohio State investigator determined that Strauss had been “performing inappropriate genital exams on male students” “for years.” [61]
Although the plaintiffs allege that they had no reason to know that Ohio State knew of Strauss’s abuse, they allege varying degrees of knowledge about whether others knew of Strauss’s conduct. Some had never heard others discuss Strauss’s conduct and did not know that Strauss had behaved similarly toward other students. [62] Others allege that Strauss’s conduct was common knowledge among student athletes, who joked about it and discussed it amongst themselves. [63] Some discussed Strauss’s conduct only with other student athletes and were not aware whether their coaches knew about this conduct. [64]
Others allege that they knew that coaches or other staff were aware of Strauss’s conduct. Tennis coach John Daly “regularly joked about Dr. Strauss’ examinations of male athletes,” and “threatened student-athletes that they would have to see Dr. Strauss, if they did not do what the coach asked.” [65] Members of other teams likewise joked and complained about Strauss’s examinations in front of coaches and trainers, who treated Strauss’s methods as “normal.” [66]
Although most of Strauss’s abuse took place in private exam rooms, Strauss abused some athletes in full view of various adults and student bystanders. For example, one plaintiff alleges that, in full view of trainers and bystanders, Strauss instructed a player—who came to Strauss for a toe infection—to drop his pants, and then Strauss started groping the player’s penis and testicles. [67] Another plaintiff alleges that “[o]n occasion” training staff saw Strauss perform unwarranted “testicular exams” on him that would last around 15–20 minutes. [68] Other plaintiffs allege that various trainers and staff witnessed Strauss’s examinations, including those in which he touched the plaintiffs’ genitals. [69] Coaches and trainers also regularly witnessed Strauss showering with athletes or sitting in lockers staring at the athletes as they showered or changed. [70]
When student athletes complained, coaches typically dismissed their complaints. For example, one swimmer alleges that when he told his coach that Strauss made him uncomfortable, the coach told him to “[s]hut the fuck up and get in the water.” [71] The same coach told another student “that Dr. Strauss’ examinations were appropriate and there was no reason to complain.” [72] Various coaches “laughed off” student complaints, [73] made excuses, [74] or ignored or brushed aside student complaints. [75]
The plaintiffs who observed Ohio State’s coaches’ and staff’s widespread acceptance of Strauss’s conduct allege that their coaches’ normalization of Strauss’s conduct led them to reasonably believe that it was not abuse. [76] For example, one plaintiff “stopped questioning the need for the genital examinations because Dr. Strauss always said they were necessary, and coaching staff showed no concern despite the athletes’ frequent comments about the genital exams.” [77]
Many likewise allege that the widespread acceptance of the abuse meant that they had no reason to know that other athletes had complained to Ohio State about the abuse or that Ohio State had covered up any abuse or student complaints. [78] They further allege that this widespread acceptance of Strauss’s conduct led them to believe that there was no reason to investigate further: their coaches’ reactions “reinforce[d] [their] reasonable belief that pursuing the matter would not be productive.” [79]
B. Procedural History
In the years after Strauss’s rampant abuse was publicly exposed, many survivors filed suit against Ohio State. This appeal involves two of these lawsuits: Snyder-Hill v. Ohio State University , No. 2:18-cv-736 (S.D. Ohio), and Moxley v. Ohio State University , No. 2:21-cv-3838 (S.D. Ohio). The Snyder-Hill plaintiffs filed their complaint on July 26, 2018. Snyder-Hill R. 1. The district court designated the case as related to Garrett v. Ohio State University , No. 2:18-cv- 692 (S.D. Ohio), a case that had been filed ten days earlier. Snyder-Hill R. 3 (Related Case Mem.) (Page ID #57–58). Ohio State moved to dismiss, Snyder-Hill R. 19 (Mot. to Dismiss) (Page ID #140–58), and the district court referred the case to mediation, Snyder-Hill R. 42 (Order) (Page ID #695). After mediation was unsuccessful, the Snyder-Hill plaintiffs filed an amended complaint. Snyder-Hill R. 123 (SAC) (Page ID #1988–2358). Ohio State again moved to dismiss. Snyder-Hill R. 128 (Mot. to Dismiss) (Page ID #2377–99).
While the motions to dismiss in Snyder-Hill and the related cases were pending, the Moxley plaintiffs filed a separate case on June 28, 2021, and amended their complaint on August 12, 2021. Moxley R. 1; Moxley R. 16. They designated the Moxley case as related to the Snyder- Hill case. Moxley R. 1-1 (Civil Cover Sheet) (Page ID #145). The district court consolidated Moxley with both and Garrett . Moxley R. 10 (Related Case Mem.) (Page ID #172– 73).
The district court granted Ohio State’s motions to dismiss in each of the consolidated
cases.
See Garrett v. Ohio State Univ
.,
II. ANALYSIS
A. Standard of Review
“We review de novo the district court’s order dismissing plaintiffs’ complaint pursuant to Rule 12(b)(6).” Lutz v. Chesapeake Appalachia, L.L.C. , 717 F.3d 459, 464 (6th Cir. 2013). “[W]e construe the complaint in a light most favorable to plaintiffs, accept all plausible well-pled factual allegations as true, and draw all reasonable inferences in plaintiffs’ favor.” Id.
Because at the motion-to-dismiss stage, we may consider only the allegations in the
complaint, a 12(b)(6) motion is generally “an ‘inappropriate vehicle’ for dismissing a claim
based upon a statute of limitations.”
Id.
(quoting
Cataldo v. U.S. Steel Corp.
,
B. Accrual Date in Title IX Claims
“Title IX does not contain its own statute of limitations.”
Lillard v. Shelby Cnty. Bd. of
Educ.
,
1. Whether the Discovery Rule Applies
“The general federal rule is that ‘the statute of limitations begins to run when the
reasonable person knows, or in the exercise of due diligence should have known, both his injury
and the cause of that injury.’”
Bishop
,
In line with the general principle articulated in Bishop and elsewhere, we have long held that the discovery rule applies in the § 1983 context. See, e.g. , id. at 536–37; Roberson v. Tennessee , 399 F.3d 792, 794 (6th Cir. 2005); Hughes v. Vanderbilt Univ. , 215 F.3d 543, 548 (6th Cir. 2000); Sevier v. Turner , 742 F.2d 262, 273 (6th Cir. 1984). Our application of the discovery rule in the § 1983 context guides our analysis here because “[t]he analysis concerning when the statute of limitations [for a Title IX claim] began to run is the same as [for a § 1983 claim].” Haley v. Clarksville-Montgomery Cnty. Sch. Sys. , 353 F. Supp. 3d 724, 734 (M.D. Tenn. 2018); see King-White v. Humble Indep. Sch. Dist. , 803 F.3d 754, 759 (5th Cir. 2015) (“Title IX should be treated like § 1983 for limitations purposes.” (collecting cases)).
Applying the discovery rule in Title IX cases accords with the discovery rule’s purposes.
The discovery rule seeks to protect plaintiffs who, through no fault of their own, lacked the
information to bring a claim. We have explained that “the discovery rule is applied . . . if the
cause of an injury is not apparent.”
Fonesca v. Consol. Rail Corp.
,
The discovery rule recognizes that, without certain information, a plaintiff has no viable
claim. “That he has been injured in fact may be unknown or unknowable until the injury
manifests itself; and the facts about causation may be in the control of the putative defendant,
unavailable to the plaintiff or at least very difficult to obtain.”
United States v. Kubrick
, 444 U.S.
111, 122 (1979). This lack of knowable information leaves the plaintiff “at the mercy of” the
defendant and unable to file suit.
Id
. “To say to one who has been wronged, ‘You had a remedy,
but before the wrong was ascertainable to you, the law stripped you of your remedy,’ makes a
mockery of the law.”
City of Aurora v. Bechtel Corp.
,
Applying the discovery rule in the Title IX context is also consistent with the remedial
purposes of Title IX. Title IX “provides relief broadly to those who face discrimination on the
basis of sex in the American education system.”
Doe v. Univ. of Ky.
,
Finally, we observe that other circuits that have reached this issue have applied the
discovery rule in Title IX cases.
See, e.g.
,
King-White
,
Ohio State’s arguments urging us to reject the discovery rule are not persuasive. Ohio State primarily points to the Supreme Court’s decision in Rotkiske v. Klemm , 140 S. Ct. 355 (2019), a case that addressed the accrual of Fair Debt Collection Practices Act (FDCPA) claims. Unlike Title IX, the FDCPA’s text contains a statute of limitations: FDCPA actions must be brought “within one year from the date on which the violation occurs.” Id. at 358 (quoting 15 U.S.C. § 1692k(d)). The Supreme Court held that the discovery rule did not apply to FDCPA suits. at 360–61.
Rotkiske
is inapposite. In
Rotkiske
, the Court’s analysis both started and ended with the
text of the FDCPA, which expressly states that the statute of limitations starts on “the date on
which the violation occurs.”
Id.
at 358 (quoting 15 U.S.C. § 1692k(d)). The Court therefore
concluded that importing the discovery rule would amount to “[a]textual judicial
supplementation.” at 361;
see also id.
at 360 (“We must presume that Congress ‘says in a
statute what it means and means in a statute what it says there.’” (quoting
Conn. Nat’l Bank v.
Germain
,
Thus,
Rotkiske
has no bearing on a case about the accrual of Title IX claims because Title
IX’s text contains no statute of limitations at all.
See Lillard
,
True, we have previously speculated, in dicta, that
Rotkiske
might prompt reconsideration
of the discovery rule.
See Dibrell v. City of Knoxville
,
Nor do
Wallace v. Kato
,
Likewise, three of our unpublished decisions—
Guy v. Lexington-Fayette Urban County
Government
, 488 F. App’x 9 (6th Cir. 2012),
Gilley v. Dunaway
, 572 F. App’x 303 (6th Cir.
2014), and
Giffin v. Case Western Reserve University
,
Ultimately, we conclude that applying the discovery rule aligns with precedent, the rule’s purpose, and Title IX’s broad remedial purpose. We therefore agree with every other circuit to decide the issue and hold that the discovery rule determines the accrual of Title IX claims.
2. The Scope of the Discovery Rule
Having concluded that the discovery rule applies, we next examine the precise scope of the discovery rule. In line with our earlier cases, we hold that, when the discovery rule applies, a claim accrues when a plaintiff knows or has reason to know that the defendant injured them: in other words, they must discover both their injury and its cause.
We have previously explained that, under the discovery rule, a claim accrues “when the
reasonable person knows, or in the exercise of due diligence should have known, both his injury
and the cause of that injury.”
Bishop
, 618 F.3d at 536 (quoting
Campbell
, 238 F. 3d at 775);
accord Amburgey v. United States
,
This approach follows the Supreme Court’s lead in
Kubrick
,
Ignoring
Kubrick
, Ohio State zooms in on a single sentence in
Rotella v. Wood
, in which
the Supreme Court stated that it has “been at pains to explain that discovery of the injury, not
discovery of the other elements of a claim, is what starts the clock.”
Our precedent supports this understanding of
Rotella
and
Kubrick
. Although we have
been clear that discovery refers to both injury and cause, we have also stated that the clock starts
“when the plaintiff knows or has reason to know of the injury which is the basis of his action.”
Hughes
,
In deciding when a plaintiff discovers the injury that is the basis of their action, “courts
look ‘to what event should have alerted the typical lay person to protect his or her rights.’”
Johnson
,
Moreover, our requirement that a plaintiff discover “the injury which is the basis of
[their] action,”
Hughes
,
The First Circuit applied similar logic in
Ouellette
. There, the plaintiff alleged that a
police officer sexually abused him decades earlier when the plaintiff was a teenager. The
plaintiff did not know at the time that the police department had received prior complaints that
the officer had abused other teenagers. 977 F.3d at 132. The plaintiff’s knowledge that the
officer abused him and that his abuser was employed by the police department did not trigger
accrual because, as is also true in the Title IX context, “[a] constitutional tortfeasor’s
employment with a municipality or supervision by a superior state officer does not, on its own,
give rise to a ‘complete and present’ § 1983 cause of action.”
Id.
at 140. Because there is no
respondeat superior liability, “[a]ny knowledgeable attorney that Ouellette consulted around the
time of his alleged abuse” would have told him not to file a lawsuit against the city “in the
absence of additional information suggesting that they were also a cause of his injury.”
Id.
Thus, his claim had not accrued at that time.
Id.
;
see also Barrett v. United States
,
We are persuaded by
Ouellette
’s reasoning and adopt it fully. We are also persuaded by
two sets of well-reasoned district court opinions that adopt similar logic in the Title IX context.
In
Karasek v. Regents of University of California
, the court reasoned that the “‘touchstone’ of
accrual is notice of the ‘injury which is the basis of [the plaintiff’s] action,’” and that, unlike in
cases with direct respondeat superior liability in which a defendant’s liability is easily
discernable, an assault does not give a plaintiff knowledge of an
institution’s
conduct. 500 F.
Supp. 3d 967, 979 (N.D. Cal. 2020) (quoting
Stanley
, 433 F.3d at 1136). Thus, the court
ultimately “conclude[d] that a plaintiff’s Title IX pre-assault claim accrues when the plaintiff
knows or has reason to know of the school’s policy of deliberate indifference that created a
heightened risk of harassment.” at 978. Similarly, in a series of cases arising from a sex-
abuse scandal at Baylor University, the district court reasoned that the plaintiffs’ knowledge that
their assailants had previously assaulted other women was “insufficient to demonstrate that
[they] would have been put on notice to look into
Baylor’s
knowledge of [the assailant]’s history
or
Baylor’s
conduct in administering its football program prior to [the] assault[s].”
Hernandez v.
Baylor Univ.
, 274 F. Supp. 3d 602, 616–17 (W.D. Tex. 2017) (emphasis added);
see Doe 1 v.
Baylor Univ.
,
These cases illustrate that a pre-assault heightened-risk claim may not accrue until well after a post-assault Title IX claim. A plaintiff will typically know or have reason to know that a school mishandles their own report of an assault close to the time of the school’s inadequate response. But that same plaintiff may have no reason to know of a school’s deliberate indifference that gave rise to their heightened-risk claim. It would be “unreasonable to conclude . . . that a plaintiff’s knowledge that [their] individual complaint was mishandled would reveal that the University has a broad de facto policy of deliberate indifference generally.” Karasek , 500 F. Supp. 3d at 981. This difference distinguishes the plaintiffs’ claims from King-White , 803 F.3d at 763, in which the Fifth Circuit held that the plaintiffs’ post- assault claims accrued when their complaints to the school administrations went “unheeded.” In short, even if a plaintiff has reason to know that a school responded improperly to their complaint, they may still lack reason to know that others had complained before them or that the school was deliberately indifferent to any prior complaints.
To summarize, we agree with seven of our sibling circuits, and we expressly hold that, pursuant to the discovery rule, a claim accrues when a plaintiff knows or has reason to know that they were injured and that the defendant caused their injury. In the Title IX context, this means that the claim does not accrue until the plaintiff knows or has reason to know that the defendant institution injured them.
C. Accrual of the Plaintiffs’ Claims
We next must decide whether the plaintiffs adequately allege that their claims did not accrue until 2018. We hold that the plaintiffs’ allegations are plausible. Thus, the district court erred in dismissing their cases.
Although the plaintiffs need not have known or had reason to know of the legal elements of their claims, they must have known or had reason to know of the facts underpinning their claims before the statute of limitations begins to run. Kubrick , 444 U.S. at 122. Thus, the plaintiffs’ claims accrued when they knew or had reason to know that Ohio State was “deliberately indifferent to sexual harassment, of which [Ohio State had] actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Davis , 526 U.S. at 650.
The plaintiffs’ allegations that they lacked reason to know that Ohio State injured them are plausible. It would be difficult for “typical lay person” in the plaintiffs’ position to know the underlying facts about Ohio State’s alleged deliberate indifference. The plaintiffs allege that none of them knew or had reason to know that Ohio State administrators were on notice of Strauss’s abuse. [82] And how could they know? Both Dr. Grace, who was the director of Ohio State’s Student Health Services, and Dr. Miller, who was Strauss’s direct supervisor, stated that they did not know of “any way” that “any [Ohio State] student” could have known that Ohio State knew about Strauss’s abuse and nonetheless failed to get rid of him. [83] And when Ohio State hired Perkins Coie in 2018 to investigate both the allegations of abuse and “whether [Ohio State] had knowledge of such allegations against Strauss,” it took $6.2 million and 12 months for Perkins Coie to issue its final conclusions. [84] Ohio State is a vast institution, and the plaintiffs’ allegations underscore how difficult it is for a student to know what appropriate persons within the Ohio State administration knew.
A plaintiff’s knowledge that he was abused is not enough to start the clock.
See
Ouellette
, 977 F.3d at 140 (knowledge of abuse is not the same as knowledge of institutional
conduct). Knowledge that Ohio State employed Strauss is not enough.
See Gebser v. Lago Vista
Indep. Sch. Dist.
,
Should the plaintiffs’ snippets of knowledge “have alerted the typical lay person to
protect his or her rights” by investigating further?
Johnson
,
But the answer to this question may not ultimately matter because the plaintiffs adequately allege that if they had investigated the abuse, they would not have discovered that Ohio State injured them. A plaintiff’s duty to investigate does not trigger accrual. Instead, “the limitations period does not begin to run until the plaintiff thereafter discovers or a reasonably diligent plaintiff would have discovered ‘the facts constituting the violation.’” Merck & Co. v. Reynolds , 559 U.S. 633, 653 (2010). In other words, even if the plaintiffs should have investigated, the clock does not start if the plaintiffs would not have learned that Ohio State injured them. The plaintiffs allege that Ohio State concealed Strauss’s abuse and Ohio State’s knowledge of it, destroyed records, gave Strauss false performance reviews, and actively misled students by, for example, telling complainants that no one had ever previously complained about Strauss. See Section I.A.2, supra . The plaintiffs plausibly allege a decades-long cover up. Given these plausible allegations, the plaintiffs adequately allege that they could not have reasonably discovered Ohio State’s conduct. This alone provides sufficient grounds to delay the accrual of their Title IX claims.
The above reasons apply to all plaintiffs, and these reasons alone warrant reversal. But the Moxley plaintiffs and all but nine of the plaintiffs adequately allege an additional ground that provides a separate and independent basis for our holding: they did not know they were abused. The district court felt that these allegations were implausible, pointing to other allegations “that Plaintiffs were concerned by Strauss’s abuse and felt violated by it, discussed the abuse with teammates, classmates, or family members, reported the abuse themselves, or that the abuse caused them immediate mental and emotional distress.” Garrett , 561 F. Supp. 3d at 759 n.7. In the district court’s view, the plaintiffs’ distress belies their claims that they did not know Strauss’s conduct was abuse.
At this early stage, the district court was incorrect to dismiss the plaintiffs’ allegations by holding that they were implausible as a matter of law. The plaintiffs plausibly allege that experiencing distress—even extreme distress—does not mean that they knew or should have known that they were abused. Strauss gave pretextual medical explanations for his abuse, such as conducting a hernia check or doing an evaluation for sexually transmitted infections. See Section I.A.1, supra . The plaintiffs further allege that physician-patient abuse is particularly difficult to identify because physicians, unlike other professionals, are expected to touch a person’s sexual organs, and laypeople lack the training to know whether an examination is medically appropriate. On top of that, the plaintiffs were young, untrained, and inexperienced, Ohio State gave Strauss its stamp of approval, and trusted adult professionals routinely told the plaintiffs that Strauss’s conduct was normal. Id.
Amici shed light on the plausibility of the plaintiffs’ claims. A significant body of literature shows that (1) many people do not recognize that they have been sexually abused, particularly if they were abused by someone on whom they depend; and (2) people suffer serious harms resulting from their abuse, even if they do not recognize it as abuse. See Psychology & Psychiatry Scholars Br. at 10–26. Example after example highlights the unique difficulties of recognizing whether a physician’s conduct is abusive. See National Center for Victims of Crime Br. at 4–18. And recognizing abuse—especially physician-patient abuse—can be even harder in the context of college athletics because of the insular nature of teams, the immense trust and authority placed in coaches, and the culture of college athletics, including the role of coaches and trainers in setting norms. See National Women’s Law Center Br. at 9–23.
Medical procedures, including necessary ones such as colonoscopies, are often uncomfortable. That does not mean that they are abusive. As a result, discomfort does not mean that plaintiffs should know that they are being abused. See Doe v. Pasadena Hosp. Ass’n , No. 2:18-cv-08710, 2020 WL 1244357, at *6 (C.D. Cal. Mar. 16, 2020) (plaintiffs’ failure to discover physician’s abuse was reasonable when physician “touch[ed] their legs in a sexual manner, conduct[ed] unexpected vaginal exams, and unnecessary breast exams” because physician misrepresented “that his ‘acts were for a legitimate medical purpose’”). Instead, even if a patient is uncomfortable, whether they knew or should have known that they were abused is an issue of fact for the jury.
Ultimately, we hold that the plaintiffs’ claims survive Ohio State’s motion to dismiss for three independent reasons. First, the plaintiffs plausibly allege that they did not know and lacked reason to know that Ohio State caused their injury. Second, they plausibly allege that even if they had investigated further, they could not have learned of Ohio State’s conduct. Third, most plaintiffs plausibly allege that they did not know that they were abused. Alone, each of these grounds is sufficient to delay accrual.
D. Non-Student Plaintiffs
Finally, Ohio State argues that four non-student plaintiffs in the Snyder-Hill case cannot bring a Title IX claim. John Doe 30 and John Doe 42 were contract referees; John Doe 47 was a fifteen-year-old high-school student visiting Ohio State’s campus; and John Doe 49 was a fourteen- or fifteen-year-old high-school student who attended an Ohio State wrestling camp.
Title IX provides that “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a) (emphasis added). “Congress easily could have substituted ‘student’ or ‘beneficiary’ for the word ‘person’ if it had wished to restrict the scope of [Title IX].” North Haven Bd. of Educ. v. Bell , 456 U.S. 512, 521 (1982). It did not limit the statute in this way and thus, Title IX’s plain language sweeps more broadly.
Contrary to Ohio State’s assertions, we have never limited the availability of Title IX claims to employees or students. The two cases on which Ohio State relies prove this point. In Doe v. University of Kentucky , 971 F.3d at 558, the court held that “although Doe[] was not enrolled as a student at the University, she has shown that . . . there remain genuine disputes as to whether she was denied the benefits of an ‘education program or activity’ furnished by the University.” The court pointed to the fact that she paid the University directly for housing in its residence halls, paid for a dining hall and student fees, and alleged that she hoped to enroll at the University after beginning her education at the Community college. Id. Although we explained that Doe’s relationship with the school was akin to a student, this analysis was relevant only because Doe brought a claim for student-on- student sexual harassment. Id. at 557–58. The inquiry was not relevant to whether individuals can bring Title IX claims more generally.
In
Arocho v. Ohio University
, No. 20-4239,
Because none of these four plaintiffs was a student or regular employee of Ohio State, we must decide whether they were discriminated against under an education program or activity. We have no binding authority that establishes a framework for this analysis.
Doe v. Brown University
,
At the same time, the First Circuit recognized that “members of the public” can bring a
Title IX claim if they are “avail[ing] themselves of the services provided by educational
institutions receiving federal funding,” for example by “access[ing] university libraries,
computer labs, and vocational resources,” or “attend[ing] campus tours, public lectures, sporting
events, and other activities at covered institutions.”
Id.
at 132 n.6. Similarly, both the Second
and Third Circuits have held that something can be considered “an ‘
education
program or
activity’ under § 1681(a) if it has ‘features such that one could reasonably consider its mission to
be, at least in part, educational.”
Doe v. Mercy Cath. Med. Ctr.
, 850 F.3d 545, 555 (3d Cir.
2017) (quoting
O’Connor v. Davis
,
We adopt the reasoning of the First Circuit and hold that a non-student and non-employee
can bring a Title IX claim if they were subject to discrimination “while participating, or at least
attempting to participate, in the funding recipient’s education program or activity.”
Doe v.
Brown
,
Under this framework, John Doe 49’s claim clearly survives the motion to dismiss. John Doe 49 alleges that he “was at OSU for OSU’s summer wrestling camp,” which was “an education program or activity offered to young athletes not yet old enough to attend OSU, which was staffed by OSU employees and student-athletes.” [86] This camp was an educational program that provided training for young wrestlers. John Doe 49 was participating in it and was denied its benefits when Strauss abused him.
John Does 30 and 42 likewise state Title IX claims. They were contract referees when
Strauss abused them.
[87]
Thus, they were “attending” or participating in “sporting events.”
Doe v.
Brown
, 896 F.3d at 132 n.6. And Strauss “gave John Doe 47 a long tour of the athletics
facilities,” and assaulted him “under the guise that he would show John Doe 47 the types of
medical exams athletes had to get to be cleared to play for OSU.” Even if this was not a bona
fide education activity because it was merely a guise for Strauss’s abuse, John Doe 47 was
“
attempting
to participate in an education program” because he believed that he was receiving a
bona fide tour of Ohio State’s facilities, offered by an Ohio State employee.
Doe v. Brown
,
III. CONCLUSION
We REVERSE the district court’s orders granting Ohio State’s motions to dismiss, and we REMAND for further proceedings consistent with this opinion.
_________________
DISSENT
_________________
RALPH B. GUY, JR., Circuit Judge, dissenting. Today’s decision effectively nullifies
any statute of limitations for Title IX claims based on sexual harassment. In these two appeals,
110 male plaintiffs (84 plaintiffs in and 33 plaintiffs in
Moxley
) assert Title IX
claims against The Ohio State University.
[1]
In the
Snyder-Hill
plaintiffs’ 371-page complaint and
the
Moxley
plaintiffs’ 159-page complaint, each plaintiff describes the obscene details of how
Dr. Richard Strauss sexually abused them in the school’s locker room or showers, at Strauss’s
home, or during physical examinations. All agree that the alleged sexual abuse occurred
between 1978 and 1998. (Maj. Op. 1). And all agree that plaintiffs’ Title IX claims are subject
to Ohio’s
two-year
statute of limitations for general personal injury claims.
See, e.g.
,
Lillard v.
Shelby Cnty. Bd. of Educ.
,
These two lawsuits were filed in July 2018 and June 2021—more than 20 to 40 years after the alleged sexual abuse occurred (1978 to 1998), more than 20 years after Strauss stopped working at the university (1998), and more than 13 years after Strauss committed suicide (2005). [2] As Judge Watson correctly concluded, plaintiffs’ Title IX claims accrued, and the statute of limitations expired, long ago.
In reversing, the majority opinion does not rely on a tolling doctrine to revive plaintiffs’ claims. It accepts plaintiffs’ allegations that their Title IX claims did not accrue , and thus the two-year limitations period did not start running, until sometime after April 2018—when the university announced it had hired the law firm Perkins Coie to conduct an internal “investigation into student athletes’ allegations of sexual misconduct by Dr. Strauss dating back to the late- 1970s.” [3]
“Statutes of limitations are not simply technicalities.”
Bd. of Regents v. Tomanio
,
Statutes of limitations are intended to “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Railroad Telegraphers v. Railway Express Agency, Inc. , 321 U.S. 342, 348-49 (1944). They provide “security and stability to human affairs.” Wood v. Carpenter , 101 U.S. 135, 139 (1879). We have deemed them “vital to the welfare of society,” ibid. , and concluded that “even wrongdoers are entitled to assume that their sins may be forgotten,” Wilson v. Garcia ,471 U.S. 261 , 271 (1985).
Gabelli v. SEC
,
I.
Start with the full picture of what plaintiffs allege. Plaintiffs recount in graphic detail that Strauss’s abuse included: “fondling their testicles and penises,” “often without gloves” for a “prolonged” or “extended period of time”; [4] “masturbating [them] to erection [5] and ejaculation”; [6] masturbating himself “during or after the exams”; [7] “drugging [8] and anally raping them”; [9] “unnecessar[ily]” “penetrating their rectums” with his fingers, often for a “prolonged” time and without gloves; [10] and “rubbing his testicles on” or “press[ing] his erect penis against [plaintiffs’] bodies”; [11] “touching their bodies in other inappropriate ways, making inappropriate comments about their bodies, and asking improper, sexualized questions.” Snyder-Hill (R. 123, ¶¶ 3, 138- 46, 2561); Moxley (R. 16, ¶¶ 3, 79-87, 908). In many cases, plaintiffs experienced a combination of these acts on one or more occasions. But the majority opinion does not mention some of the most obscene sexual conduct that plaintiffs allege occurred.
Nor is the alleged sexual abuse confined to the context of a medical exam (as the majority opinion suggests). The abuse also occurred in the university’s locker room, in the showers, or at Strauss’s home. For example, the complaints allege: Strauss came into the locker room wearing only a towel and masturbated John Doe 9 ( Snyder-Hill R. 123, ¶¶ 949-51); Strauss showered with John Doe 17, John Doe 42, and John Doe 98, and masturbated while staring at each plaintiff ( id. , ¶¶ 1815, 1240; Moxley R. 16, ¶ 754); Strauss masturbated while he watched John Doe 8 shower ( Snyder-Hill R. 123, ¶¶ 907, 910); Strauss entered the sauna nude and masturbated, sometimes while sitting behind John Doe 98 ( Moxley R. 16, ¶ 756); Strauss gave John Doe 19 a ride home and attempted to kiss him and repeatedly tried to fondle his genitals, took nude photographs of plaintiff at Strauss’s home, followed plaintiff into the locker room, began massaging him, and then “kissing John Doe 19’s neck and back” ( Snyder-Hill R. 123, ¶ 1307- 10); at Strauss’s home, Strauss gave John Doe 70 a massage, penetrated plaintiff’s anus with his finger, and then straddled plaintiff’s lower back, masturbated, and ejaculated onto plaintiff’s back. ( , ¶¶ 2392-95). This is just a sampling.
[6] Snyder-Hill (R. 123, ¶¶ 1301, 1492, 1667, 1727, 1730, 1855-56, 2164, 2368, 2386, 2408, 2410, 2414, 2436); Moxley (R. 16, ¶¶ 3, 908; id. , ¶¶ 298, 396-97, 696).
[7] Snyder-Hill (R. 123, ¶¶ 1492, 2395).
[8] Snyder-Hill (R. 123, ¶¶ 937, 1751).
[9] (R. 123, ¶¶ 1946-48, 1959, 1122). Snyder-Hill (R. 123, ¶¶ 309, 609, 710, 752, 770, 1516, 1599-1600, 1681, 1890-91, 2061, 2117, 2213,
2394, 2501); Moxley (R. 16, ¶¶ 616, 249-50, 253, 296, 359, 455, 583, 666, 713-14, 753, 776). Snyder-Hill (R. 123, ¶¶ 311, 1076-76, 1492, 2384, 2523, 2360).
II.
If Congress does not provide a statute of limitations for a federal cause of action, we look
to “state law for tolling rules, just as we [do] for the length of statutes of limitations”—but the
“accrual date” of the cause of action “is a question of federal law that is
not
resolved by
reference to state law.”
Wallace v. Kato
,
1.
The injury occurrence rule “presumptively” applies.
McDonough v. Smith
, 139 S. Ct.
2149, 2155 (2019) (§ 1983 claim);
see also, e.g.
,
Gabelli
,
Time and again, the Supreme Court has explained that the “time at which a [federal]
claim accrues . . . ‘conform[s] in general to common-law tort principles.’”
McDonough
, 139 S.
Ct. at 2155 (quoting
Wallace
,
By that measure, plaintiffs’ claims are untimely. To be sure, the most analogous
common-law tort is battery, and a “battery is complete upon physical contact, even though there
is no observable damage at the point of contact.” Restatement (Second) of Torts § 899,
comment. c (Am. L. Inst. 1979);
accord Varnell v. Dora Consol. Sch. Dist.
, 756 F.3d 1208,
1215-16 (10th Cir. 2014) (Title IX)
.
Despite what this court’s opinion says,
Varnell
applied the
injury occurrence rule, and thus there is at present a “circuit split
.
” (Maj. Op. 19, 22). Under the
injury occurrence rule, each plaintiff’s Title IX claim “accrued no later than the last sexual abuse
by” Strauss (1978 to 1998).
Varnell
,
But even taking the elements of a Title IX claim at face value, the result is the same.
After all, the cognizable
injury
or
damages
is “sexual harassment . . . that is so severe, pervasive,
and objectively offensive, and that so undermines and detracts from the victims’ educational
experience, that the victim-students [were] effectively denied equal access to an institution’s
resources and opportunities.”
Davis v. Monroe Cnty. Bd. of Educ.
, 526 U.S. 629, 651 (1999).
That is, the “Injury” element under Title IX is “the deprivation of ‘access to the educational
opportunities or benefits provided by the school.’”
Kollaritsch v. Mich. State Univ. Bd. of Trs.
,
944 F.3d 613, 622 (6th Cir. 2019) (quoting
Davis
, 526 U.S. at 650);
see also Foster v. Bd. of
Regents
,
Accordingly, under the injury occurrence rule, plaintiffs’ Title IX claims are time-barred because their claims accrued no later than the last occasion that they were harmed by Strauss (1978 to 1998). See Varnell , 756 F.3d at 1216-17. To conclude otherwise, would put “the supposed statute of repose in the sole hands of the party seeking relief.” Wallace , 549 U.S. at 391.
2.
The injury discovery rule applies only in a few well-defined situations. This case is not
one of them. The so-called injury discovery rule “arose in fraud cases as
an exception to the
general limitations rule
,” and the Supreme Court has held that it applies “where a plaintiff has
been
injured by fraud
and remains in ignorance of it without any fault or want of diligence or
care on his part,”
Merck & Co. v. Reynolds
, 559 U.S. 633, 644-45 (2010) (citations omitted;
emphasis added);
see also Rotkiske v. Klemm
,
The discovery rule also applies when “Congress has enacted statutes that expressly
include the language . . . setting limitations periods to run from the date on which the violation
occurs
or the date of discovery of such violation.
”
Rotkiske
,
Congress omitted any statute of limitations in Title IX. Thus, it did not silently intend to adopt a discovery rule—“a question that, on everyone’s account, [Congress] never faced.” Henson v. Santander Consumer USA Inc. , 137 S. Ct. 1718, 1725 (2017). The Court has reiterated that adopting a discovery rule is “particularly inappropriate” because “Congress has shown that it knows how to adopt the omitted language or provision .” Rotkiske , 140 S. Ct. at 361 (emphasis added). “[R]eading in a provision stating that [a] limitations period begins to run on the date an alleged [federal law] violation is discovered,” id. , is an “expansive approach to the discovery rule [and] is a ‘bad wine of recent vintage.’” Id. (quoting TRW Inc. v. Andrews , 534 U.S. 19, 37 (2001) (Scalia, J., concurring in the judgment)).
It is thus improper to implant a discovery rule into Title IX merely “because Title IX’s text contains no statute of limitations at all.” (Maj. Op. 20). This is “[a]textual judicial supplementation” all the same. See Rotkiske , 140 S. Ct. at 361. If anything, it is more problematic given that we are dealing with a “judicially implied” cause of action. Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 284-85 (1998). Title IX is not a blank page for politically unaccountable judges to write in whatever rule seems to further “the remedial purposes of Title IX.” (Maj. Op. 19). “Indeed, it is quite mistaken to assume . . . that ‘whatever’ might appear to ‘further the statute’s primary objective must be the law.’” Henson , 137 S. Ct. at 1725 (cleaned up). “Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage, and no statute yet known ‘pursues its stated purpose at all costs.’” Id. (cleaned up).
No less than twice the Supreme Court has told courts what to do when there is no federal
statute of limitations at all.
Wallace
, 549 U.S. at 388-91 (false arrest claim under § 1983);
McDonough
, 139 S. Ct. at 2155-56 (malicious prosecution claim under § 1983 based on
fabricated evidence). The majority opinion admits that in both
Wallace
and
McDonough
“the
Supreme Court applied the occurrence rule to § 1983 claims.” (Maj. Op. 21-22). In both cases,
the Court explained in detail how the occurrence rule applied and the reasons why.
Cf. Ramos v.
Louisiana
,
To the extent this court has applied the injury discovery rule to § 1983 claims,
Sevier v.
Turner
, 742 F.2d 262, 273 (6th Cir. 1984), this court recently questioned whether “our cases
imbibing this ‘bad wine’ warrant reconsideration in light of the Supreme Court’s recent
teachings,”
Dibrell v. City of Knoxville
,
Other than “the historical exception for suits based on fraud,” the Court has “deviated
from the traditional rule and imputed an injury-discovery rule to Congress on only one
occasion.”
TRW
, 534 U.S. at 37
(Scalia, J., concurring
in
the
judgment)
(citing
Urie v. Thompson
,
Yet the court’s opinion here relies on FTCA and FELA cases to justify adopting a
discovery rule. (Maj. Op. 18, 23). This case is not like one of the “medical-malpractice cases
[under the FTCA] in which the plaintiff has little reason to suspect anything other than natural
causes for his injury.”
Amburgey v. United States
,
The court’s opinion here, however, makes the leap in logic that a Title IX claim is like a “latent injury” claim, asserting that “[j]ust as an employee needs to know that their employer exposed them to toxic materials before they can bring suit, a student must know that their school exposed them to a heightened risk of harassment before they have a viable claim.” (Maj. Op. 25). But a Title IX injury is not the result of “the accumulated effects of [a] deleterious substance” that only becomes “manifest” decades later. Urie , 337 U.S. at 169-70 (citation omitted).
Given there is no textual or historical reason to graft a discovery rule onto the implied right of action under Title IX, I would decline to do so.
3.
Even assuming the “injury discovery rule” applies, plaintiffs’ claims are untimely. Under
the injury “discovery rule,” the statute of limitations will begin to run “only when the
injury
is or
reasonably could have been discovered.”
Gabelli
, 568 U.S. at 451 (emphasis added);
accord
Johnson v. Memphis Light Gas & Water Div.
,
By that standard, plaintiffs’ claims accrued when plaintiffs admittedly knew Strauss
injured
them between 1978 and 1998. How can it be otherwise? Plaintiffs claim that a
cognizable Title IX “injury” occurred by virtue of being subjected to “sexual harassment . . . that
is so severe, pervasive, and objectively offensive, and that so undermine[d] and detract[ed] from
the [their] educational experience, that the [plaintiffs were] effectively denied equal access to
[the university]’s resources and opportunities” between 1978 and 1998.
Davis
,
Lest there is any doubt, plaintiffs allege they were subjected to obscene sexual abuse in the school’s locker room or showers, at Strauss’s home, or during physical exams. Supra Section I. At least 28 plaintiffs fled from the situation and/or later refused to be examined by Strauss or be anywhere near Strauss. [15] At least 25 plaintiffs allege that they complained to university administration, coaches, trainers, health center staff, and/or other physicians about Strauss’s conduct. [16] Of the 2 plaintiffs who complained to physicians, one physician replied, “That seems really odd . . . It’s not normal.” Snyder-Hill (R. 123, ¶¶ 382-83). The other physician responded, “Dr. Strauss’ actions were inappropriate and not medically necessary,” and the physician wrote a note “to excuse John Doe 9 from further physicals by Dr. Strauss.” ( Id. , ¶¶ 939-40).
Remarkably, 104 plaintiffs claim Strauss’s abuse has caused decades of suffering and many other tragedies in life (e.g., drugs, alcohol abuse, emotional disorders, relationship problems, intimacy issues, divorce, and attempted suicide). [17] And they seek damages for these harms.
It is beyond debate that plaintiffs knew of their “injury” between 1978 and 1998.
Gabelli
, 568 U.S. at 451;
Johnson
, 777 F.3d at 843. Because the facts on the face of the
complaint show that plaintiffs’ claims are untimely, “dismissing the claim[s] under Rule 12(b)(6)
is appropriate.’”
Stein v. Regions Morgan Keegan Select High Income Fund, Inc.
,
Yet the court’s opinion concludes that all 110 plaintiffs’ Title IX claims are not time- barred for “three independent reasons.” (Maj. Op. 34).
First , the majority is willing to say that only 9 Snyder-Hill plaintiffs “allege that they did know that Strauss’s conduct was abuse,” (Maj. Op. 9-10, 32), but that is only because these 9 plaintiffs concede in their brief that they “knew Strauss abused them.” Snyder-Hill (Appellant Br. 28 n.15). The opinion otherwise accepts the bald allegation of the other 75 Snyder-Hill plaintiffs and all 34 Moxley plaintiffs that, because they “were not trained in medicine and did not know what was medically appropriate,” they “did not understand or believe that Dr. Strauss had sexually abused ” them until sometime after the university publicized its investigation in April 2018. (Emphasis added); see (Maj. Op. 32-34 (“[P]eople suffer serious harms resulting from their abuse, even if they do not recognize it as abuse.”)). As stated, nowhere do plaintiffs allege they did not know they were “injured,” nor could they.
This conflates “injury” with what qualifies as “sexual abuse.” Under the discovery rule,
it is irrelevant whether plaintiffs labeled Strauss’s conduct as “sexual abuse.” It is “discovery of
the
injury
” alone that “starts the clock.”
Rotella
, 528 U.S. at 555 (emphasis added). For
example, “identifying professional negligence may also be a matter of real complexity, and its
discovery is not required before the statute starts running” for a medical malpractice claim.
Rotella
,
Just as the individual “suffering from inadequate treatment is thus
responsible for
determining within the limitations period then running whether the inadequacy was
malpractice
,” here the limitations period started running decades ago and plaintiffs had two years
to determine whether Strauss’s conduct was sexual abuse and whether the university was
deliberately indifferent.
Rotella
,
The majority then points to the statement that “[g]enerally, a motion under Rule 12(b)(6)
. . . is an ‘inappropriate vehicle’ for dismissing a claim based upon a statute of limitations.”
Lutz
v. Chesapeake Appalachia, L.L.C.
,
That conclusion is also erroneous for another reason, even assuming plaintiffs must
recognize the misconduct as “sexual abuse.” Plaintiffs detailed and obscene allegations belie
their assertion that they did not know Strauss’s misconduct was sexual abuse. Only “factual
allegations in the complaint” are taken as true; “conclusory statements” and “legal conclusions,”
even if “couched as a factual allegation,” are “not entitled to be assumed true.”
Ashcroft v. Iqbal
,
Second , the court’s opinion stitches out a new injury-and-deliberate-indifference discovery rule: “[T]he clock starts only once the plaintiff knows or should have known that Ohio State administrators ‘with authority to take corrective action’ knew of Strauss’s conduct and failed to respond appropriately.” (Maj. Op. 31-32) (emphasis added). Recall that the institution must somehow make this showing to invoke the statute of limitations defense. How exactly is that possible at any stage in litigation, especially decades after the critical events? And even if a plaintiff will “know or have reason to know that a school mishandle[d] their own report of an assault,” that will not be enough to trigger accrual for a “heightened-risk claim,” so long as the plaintiff claims that they did not “know that others had complained before them or that the school was deliberately indifferent to any prior complaints.” (Maj. Op. 28-29).
Third , and relatedly, the opinion adds that even if a plaintiff was alerted to investigate further, that will “not ultimately matter,” so long as the plaintiff claims “that if they had investigated the abuse, they would not have discovered” the institution’s deliberate indifference. (Maj. Op. 31-32). But when will that not be the case? With that, the opinion concludes that all 110 plaintiffs plausibly allege that they did not “know the underlying facts about Ohio State’s alleged deliberate indifference.” Id. at 30, 34.
But the Supreme Court was emphatically clear: “[I]n applying a discovery accrual rule, we have been at pains to explain that discovery of the injury , not discovery of the other elements of a claim, is what starts the clock.” Rotella , 528 U.S. at 555 (emphasis added). Rotella reminds us yet again that even in the context of “medical malpractice, where the cry for a discovery rule is loudest,” the “discovery rule does not extend beyond the injury.” Id. At issue in Rotella was the accrual of civil claims under the Racketeer Influenced and Corrupt Organizations Act (RICO). Id. at 551. The Court rejected plaintiff’s (and this circuit’s then- prevailing) “injury and pattern discovery rule,” “under which a civil RICO claim accrues only when the claimant discovers, or should discover, both an injury and a pattern of RICO activity.” Id. at 551, 553 (collecting cases).
Civil “RICO has a unique pattern requirement” to state a claim.
Rotella
, 528 U.S. at
556. And “a pattern of predicate acts may well be complex, concealed, or fraudulent,” “and
involve harm to parties wholly unrelated to an injured plaintiff.”
Rotella
,
Rotella
’s rationale governs here (assuming the discovery rule applies). An institution’s
deliberate indifference is one of “the other elements” of a Title IX claim, not the “injury”
element that “starts the clock.”
Rotella
,
It makes no difference that an institution’s policy or practice of deliberate indifference to prior acts of sexual harassment “might well be complex, concealed, or fraudulent, and involve harm to parties wholly unrelated to an injured plaintiff.” See Rotella , 528 U.S. at 559. Of course, the “difficulty in identifying” such conduct is “inherent” in deliberate indifference claims. See id . These matters often (if not always) involve secret conduct, private disciplinary meetings, inaccessible personnel files, and conduct that may not be recorded at all. But that “only reinforces” the reasons for refusing to inject the “complexity” of deliberate indifference into the injury discovery rule. See id. To hold otherwise, “would bar repose, prove a godsend to stale claims, and doom any hope of certainty in identifying potential liability.” Id.
On that score, plaintiffs’ Title IX claims accrued between 1978 and 1998 when each plaintiff possessed the “critical facts that he has been hurt and who has inflicted the injury.” Twersky v. Yeshiva Univ. , 579 F. App’x 7, 9-10 (2d Cir. 2014) (quoting Kubrick , 444 U.S. at 122). Namely, “they were unquestionably aware of (1) their injuries, (2) their [abuser’s] identit[y], and (3) their [abuser’s] prior and continued employment at [the university].”
Rotella
also put to rest plaintiffs’ objection that without evidence of the university’s
deliberate indifference, plaintiffs could not file suit at the time of the abuse because they “could
not overcome Rule 11, let alone Rule 12(b)(6).” The Court acknowledged that RICO claims
often involve fraud and therefore must be pleaded with “particularity” under Rule 9(b)—unlike
plaintiffs’ Title IX claims—and yet the Court saw no reason to expand the injury discovery rule.
Rotella
,
In fact, plaintiffs took advantage of Rule 11 in filing suit here. The university announced its investigation in April 2018. At that time, plaintiffs knew nothing more about the university’s deliberate indifference than they allegedly did for the past several decades. And yet the Snyder- Hill plaintiffs managed to file suit in July 2018. Under the majority’s reasoning, however, plaintiffs’ claims still had yet to accrue. After all, it was not until 12 months later, in May 2019, that the Perkins Coie report publicly aired the university’s dirty laundry.
If there were any lingering doubt that Title IX and § 1983 deliberate indifference claims will never accrue until the plaintiff says so decades later, the majority opinion justifies its rule because the First Circuit did just that with a § 1983 claim against a city in Ouellette v. Beaupre , 977 F.3d 127, 130, 139-40 (1st Cir. 2020). (Maj. Op. 27 (“We are persuaded by Ouelette ’s reasoning and adopt it fully.”)).
But contrary to the majority opinion’s suggestion, “seven of our sibling circuits” have not
adopted an injury-and-deliberate-indifference discovery rule. (Maj. Op. 23, 29).
Ouellette
stands alone—the other six cases cited do not even discuss the accrual of deliberate indifference
claims. Nor does the opinion mention the circuits that have refused “to adopt a ‘delayed accrual’
rule” for Title IX and § 1983 claims against an institution, even though “the claims against [the
institution] are necessarily based on official ‘policies or customs’” or deliberate indifference to
prior misconduct “that could not have been known at the time of [plaintiff’s] abuse.”
King-White
v. Humble Indep. Sch. Dist.
, 803 F.3d 754, 763 (5th Cir. 2015) (Title IX and § 1983);
see
Twersky
, 579 F. App’x at 9-10 (Title IX);
Lawson v. Rochester City Sch. Dist.
, 446 F. App’x
327, 329 (2d Cir. 2011) (§ 1983);
see also Tengood v. City of Philadelphia
,
III.
The court’s opinion then goes on to expand the scope of Title IX. Although the university argues that four plaintiffs—John Doe 30, John Doe 42, John Doe 47, and John Doe 49—fail to state a Title IX claim because they were “neither students nor employees” of the university, and they were not denied the benefits of any “education program or activity” of the university, Snyder-Hill (Appellant Br. 51), today’s decision rejects that argument.
This court has explicitly held that the right to bring suit under Title IX is limited to “those
circumstances where a plaintiff is so closely tied to a university that the individual is essentially a
student of that university.”
Doe v. Univ. of Ky.
,
Satisfied that it is freed from the bonds of precedent, the majority opinion concludes that
“‘members of the public’ can bring a Title IX claim” if they are subject to discrimination when
they are, “for example, accessing university libraries or other resources, or attending campus
tours, sporting events or other activities.” (Maj. Op. 37). That conclusion rests on dictum from a
footnote in
Doe v. Brown University
,
Here, John Doe 30 and John Doe 42 were contract referees paid by the university, and they experienced a single instance of sexual harassment before or after they had refereed a wrestling match. Snyder-Hill (R. 123, ¶¶ 75, 87, 1612-13, 1812). John Doe 49 was a high school student attending a summer wrestling camp at the university. ( , ¶¶ 94, 1940). John Doe 47 was a high school student and “was on [the university]’s campus visiting his aunt, a university employee.” ( Id. , ¶ 1903). “ While hanging around the athletics department by himself , John Doe 47 was approached by Dr. Strauss,” who “gave John Doe 47 a long tour of the athletics facilities and subjected him twice during that day to sexually abusive ‘medical exams.’” ( , ¶¶ 1904-06) (emphasis added).
Even if any of these four plaintiffs were sufficiently tied to the university, none of them
alleges that they were “den[ied] . . . equal access to an educational program or activity.”
Davis
,
526 U.S. at 652;
see also Meriwether v. Hartop
, 992 F.3d 492, 511 (6th Cir. 2021). That is,
plaintiffs do not allege that they quit refereeing, quit the wrestling camp or intended to attend
again but did not do so, or had planned to attend the university and decided not to do so.
Arocho
v. Ohio University
,
“Emotional harm standing alone is not a redressable Title IX injury.”
Kollartisch
, 944
F.3d at 622;
see also Cummings v. Premier Rehab Keller, P.L.L.C.
,
* * *
In the end, this court’s opinion grants the plaintiffs what the democratic process has effectively denied them. In 2019, Ohio legislation was proposed to grant the right to “bring a civil action against a land grant university to recover damages for any injury . . . proximately caused by sexual misconduct against the victim that was committed between January 1, 1978, and December 31, 2000, by a physician who was an employee of the university during that period of time.” H.B. 249, 133rd Gen. Assemb., Reg. Sess. (Ohio. 2019). The proposal specifically provided that “there is no period of limitations for a civil action brought by [such] a victim.” Id . But H.B. 249 failed to pass the introduction stage. Michigan, under similar circumstances, has enacted more measured legislation, and additional legislation is being considered.
I respectfully dissent.
Notes
[1]
At the motion-to-dismiss stage, we “accept all plausible well-pled factual allegations as true.”
Lutz v.
Chesapeake Appalachia, L.L.C.
,
[2] Snyder-Hill R. 123 (Second Am. Compl. (“SAC”) ¶¶ 126–27) (Page ID #2012); Moxley R. 16 (Am. Compl. ¶¶ 67–68) (Page ID #217–18).
[3] Snyder-Hill R. 123 (SAC ¶ 131) (Page ID #2012–13); Moxley R. 16 (Am. Compl. ¶ 72) (Page ID #218).
[4] Snyder-Hill R. 123 (SAC ¶ 132) (Page ID #2013); Moxley R. 16 (Am. Compl. ¶ 73) (Page ID #218–19).
[5] Snyder-Hill R. 123 (SAC ¶¶ 133–34) (Page ID #2013); Moxley R. 16 (Am. Compl. ¶¶ 74–75) (Page ID #219).
[6] Snyder-Hill R. 123 (SAC ¶¶ 133) (Page ID #2013); Moxley R. 16 (Am. Compl. ¶ 74) (Page ID #219).
[7] R. 123 (SAC ¶ 134, 252–56) (Page ID #2013, 2033–34); Moxley R. 16 (Am. Compl. ¶¶ 75, 194–98) (Page ID #219, 240–41).
[8] Snyder-Hill R. 123 (SAC ¶¶ 262–63) (Page ID #2034–35); Moxley R. 16 (Am. Compl. ¶¶ 202–05) (Page ID #241–42).
[9] Snyder-Hill R. 123 (SAC ¶ 261) (Page ID #2034); Moxley R. 16 (Am. Compl. ¶ 203) (Page ID #241).
[10] Snyder-Hill R. 123 (SAC ¶¶ 1, 3) (Page ID #1988–89); Moxley R. 16 (Am. Compl. ¶¶ 1, 3) (Page ID #205).
[11] See, e.g. , Snyder-Hill R. 123 (SAC ¶¶ 309, 345, 374, 405, 435, 468–71, 496–97, 528–30, 554, 651, 669, 706, 749–752, 767–72, 930–31, 982–84, 1026, 1081–84, 1147) (Page ID #2043, 2050, 2054, 2058, 2061, 2065, 2068, 2071, 2074, 2085, 2087, 2092, 2098, 2100–01, 2121, 2128, 2133, 2139, 2147); Moxley R. 16 (Am. Compl. ¶¶ 246, 248–50, 253, 268, 271, 298, 336–38, 439) (Page ID #249–251, 254, 258, 263, 279).
[12] See, e.g. , Snyder-Hill R. 123 (SAC ¶¶ 308–09, 710, 733, 748–52, 770, 1516, 1681, 1890–91, 2061, 2117, 2501) (Page ID #2042–43, 2092, 2096–98, 2101, 2194, 2218, 2247–48, 2276, 2285, 2339); Moxley R. 16 (Am. Compl. ¶¶ 296–97, 359, 455, 583, 666) (Page ID #258, 266, 281, 300, 313). At least two plaintiffs allege that Strauss performed this conduct while the plaintiff was unconscious. See Snyder-Hill R. 123 (SAC ¶ 1122, 1947) (Page ID #2144, 2256–57).
[13] See, e.g. , Snyder-Hill R. 123 (SAC ¶¶ 311, 1492, 2384, 2523) (Page ID #2043, 2191, 2322–23, 2342); see also id. ¶¶ 1076–78 (Page ID #2139) (Strauss rubbed his testicles against patient’s thigh).
[14] See, e.g. , R. 123 (SAC ¶¶ 937, 1751) (Page ID #2122, 2227).
[15] See, e.g. , id. ¶ 1947 (Page ID #2256–57).
[16] See, e.g. , id. ¶¶ 1492, 2395 (Page ID #2191, 2324).
[17] Id. ¶¶ 30–122 (Page ID #1996–2011); Moxley R. 16 (Am. Compl. ¶¶ 30–63) (Page ID #212–17).
[18] This number is lower than the number of alleged instances of sexual abuse in the complaint. The difference is explained by (1) allegations that Strauss abused some athletes more than once; and (2) certain limitations of the report, which noted: “it is impossible for us to determine with any certainty the total number of students that Strauss sexually abused” but “that Strauss abused additional students whose accounts are not captured here.” Perkins Coie Report at 39.
[19] R. 123 (SAC ¶¶ 161–264, 278–79) (Page ID #2017–35, 2037–38); Moxley R. 16 (Am. Compl. ¶¶ 5–11) (Page ID #205–07).
[20] See, e.g. , Snyder-Hill R. 123 (SAC ¶¶ 162–64, 168, 172, 198, 209, 217) (Page ID #2017–19, 2025, 2027); Moxley R. 16 (Am. Compl. ¶¶ 11, 13, 103–09) (Page ID #207–08, 224–25).
[21] See, e.g. , Snyder-Hill R. 123 (SAC ¶¶ 167, 172) (Page ID #2018–19); Moxley R. 16 (Am. Compl. ¶¶ 6, 113) (Page ID #206, 225).
[22] See, e.g. , Snyder-Hill R. 123 (SAC ¶ 174–176, 183–84, 186) (Page ID #2019–23); Moxley R. 16 (Am. Compl. ¶ 115) (Page ID #226).
[23] Moxley R. 16 (Am. Compl. ¶ 88) (Page ID #220).
[24] ¶ 117 (Page ID #226–27).
[25] See, e.g. , Snyder-Hill R. 123 (SAC ¶¶ 164–66, 173, 177, 184, 187, 210, 216–17, 222) (Page ID #2018– 23, 2027–28); Moxley R. 16 (Am. Compl. ¶¶ 118, 163) (Page ID #227, 235).
[26] See, e.g. , Snyder-Hill R. 123 (SAC ¶¶ 162, 221, 230, 319–25) (Page ID #2017–18, 2028, 2030, 2045– 46); Moxley R. 16 (Am. Compl. ¶¶ 103, 162) (Page ID #224, 234).
[27] See, e.g. , Snyder-Hill R. 123 (SAC ¶¶ 181–83, 188–91, 193) (Page ID #2021, 2023–25).
[28] See, e.g. , id. ¶¶ 226–29, 231 (Page ID #2029–30); Moxley R. 16 (Am. Compl. ¶¶ 167–70) (Page ID #236).
[29] See, e.g. , R. 123 (SAC ¶¶ 199–201, 352–53, 429–30, 476) (Page ID #2025, 2051, 2061, 2065); Moxley R. 16 (Am. Compl. ¶¶ 141–42, 633, 720) (Page ID #232, 308, 323).
[30] Snyder-Hill R. 123 (SAC ¶¶ 244, 247–48) (Page ID #2032); Moxley R. 16 (Am. Compl. ¶¶ 186, 189–90) (Page ID #238–39). Ohio State’s policy was to destroy medical records that were more than seven years old unless there was a reason to maintain them. Snyder-Hill R. 123 (SAC ¶ 248) (Page ID #2032). Although complaints of abuse should have given Ohio State a reason to keep the records, Ohio State nonetheless destroyed them.
[31] Snyder-Hill R. 123 (SAC ¶ 2571) (Page ID #2350); Moxley R. 16 (Am. Compl. ¶ 918) (Page ID #355).
[32] See Snyder-Hill R. 123 (SAC ¶¶ 153–60) (Page ID #2016–17); Moxley R. 16 (Am. Compl. ¶¶ 94–101) (Page ID #222–23).
[33] See Snyder-Hill R. 123 (SAC ¶¶ 153–60) (Page ID #2016–17); Moxley R. 16 (Am. Compl. ¶¶ 97) (Page ID #222–23).
[34] See, e.g. , Snyder-Hill R. 123 (SAC ¶¶ 554–55, 897, 993, 1368, 1463–64, 1522, 1569, 2215) (Page ID #2074–75, 2117, 2129, 2175, 2187, 2195, 2201, 2298); Moxley R. 16 (Am. Compl. ¶¶ 248–49, 337–38, 374, 488, 616, 666, 832) (Page ID #250–51, 263, 268–69, 285, 305, 313, 341).
[35] See, e.g. , Snyder-Hill R. 123 (SAC ¶¶ 554–55) (Page ID #2074–75).
[36] See, e.g. , id. ¶¶ 1300, 1552 (Page ID #2166, 2199); Moxley R. 16 (Am. Compl. ¶ 537) (Page ID #291– 92).
[37] See, e.g. , Snyder-Hill R. 123 (SAC ¶¶ 2211–12) (Page ID #2298); Moxley R. 16 (Am. Compl. ¶ 583) (Page ID #300).
[38] See, e.g. , R. 123 (SAC ¶ 2061) (Page ID #2276); Moxley R. 16 (Am. Compl. ¶ 616) (Page ID #305).
[39] See, e.g. , Snyder-Hill R. 123 (SAC ¶¶ 1222, 1224, 2183) (Page ID #2156, 2294).
[40] See, e.g. , id. ¶ 1428 (Page ID #2182); Moxley R. 16 (Am. Compl. ¶ 752) (Page ID #328–29).
[41] See, e.g. , Moxley R. 16 (Am. Compl. ¶ 279) (Page ID #255).
[42] Snyder-Hill R. 123 (SAC ¶ 391) (Page ID #2056); see also id. ¶¶ 444, 477, 542 (Page ID #2062, 2065, 2072); Moxley R. 16 (Am. Compl. ¶ 256) (Page ID #252).
[43] See, e.g. , R. 123 (SAC ¶ 391) (Page ID #2056).
[44] Id. ¶¶ 451–52 (Page ID #2063).
[45] Id. ¶¶ 450, 480–81 (Page ID #2063, 2066).
[46] Id. ¶ 156 (Page ID #2016).
[47]
[48] See Snyder-Hill R. 123 (SAC ¶ 157) (Page ID #2017); Moxley R. 16 (Am. Compl. ¶ 98) (Page ID #223).
[49] See Snyder-Hill R. 123 (SAC ¶ 155) (Page ID #2016).
[50] Id. ¶¶ 313–14, 407–12 (Page ID #2043–44, 2058–59).
[51] Id. ¶¶ 939–40 (Page ID #2122).
[52] ¶ 1318 (Page ID #2168).
[53] See, e.g. , id. ¶¶ 265–69, 272, 329 (Page ID #2035–37, 2047); Moxley R. 16 (Am. Compl. ¶¶ 258, 260, 285, 304, 323) (Page ID #252, 256–57, 259, 261).
[54] See, e.g. , Snyder-Hill R. 123 (SAC ¶¶ 364, 420, 451, 482, 516, 544, 637) (Page ID #2052, 2060, 2063, 2066, 2070, 2073, 2083); see also id. ¶¶ 320–21, 323 (Page ID #2045–46) (Ohio State falsely informed complainant that it had not received any previous complaints about Strauss).
[55] R. 123 (SAC ¶¶ 265–66) (Page ID #2035); Moxley R. 16 (Am. Compl. ¶¶ 207–08) (Page ID #242).
[56] See, e.g. , Snyder-Hill R. 123 (SAC ¶¶ 335, 367, 482, 678, 740, 854, 1066) (Page ID #2048, 2053, 2066, 2088, 2096–97, 2112, 2137); Moxley R. 16 (Am. Compl. ¶¶ 324, 350, 366, 388, 405, 426) (Page ID #261, 265, 267, 271, 274, 277); see also Snyder-Hill R. 123 (SAC ¶¶ 243–48) (Page ID #2031–32) (Ohio State actively concealed information).
[57] R. 123 (SAC ¶¶ 320–21, 323) (Page ID #2045–46).
[58] Id.
[59] Id. ¶ 323, 334 (Page ID #2046, 2048).
[60] Id. ¶ 327 (Page ID #2047).
[61] ¶¶ 319, 328 (Page ID #2045, 2047).
[62] See, e.g. , id. ¶ 674 (Page ID #2088).
[63] See, e.g. , id. ¶¶ 170–71, 194, 442, 474, 552, 784, 836, 901, 926, 986–87, 1173, 1483 (Page ID #2019, 2025, 2062, 2065, 2074, 2103, 2110, 2118, 2120–21, 2128, 2150, 2190); Moxley R. 16 (Am. Compl. ¶¶ 473, 636, 673–74, 719, 736) (Page ID #283, 308, 314, 323, 326).
[64] See, e.g. , Snyder-Hill R. 123 (SAC ¶ 389) (Page ID #2056).
[65] Id. ¶ 197 (Page ID #2025); see id. ¶¶ 876–77 (Page ID #2115); Moxley R. 16 (Am. Compl. ¶ 138) (Page ID #231).
[66] See, e.g. , id. ¶¶ 501–03, 661, 1297 (Page ID #2068, 2086, 2165) (swim team); id. ¶¶ 552, 572–77, 589, 712 (Page ID #2074, 2076–77, 2093) (track and field team); id. ¶ 690, 694–95 (Page ID #2090) (hockey team); id. ¶ 1005 (Page ID #2130) (fencing team); id. ¶¶ 1028, 1423 (Page ID #2133, 2181–82) (wrestling team); id. ¶ 1129 (Page ID #2145) (soccer team); id. ¶¶ 1226–30, 1340–41) (Page ID #2156–57, 2171) (gymnastics team); id. ¶¶ 167, 2581 (Page ID #2018, 2354) (general allegations); see also Moxley R. 16 (Am. Compl. ¶¶ 254, 559, 586, 618 (Page ID #251–52, 295, 300, 3055).
[67] R. 123 (SAC ¶ 688) (Page ID #2089).
[68] ¶ 789 (Page ID #2104).
[69] See, e.g. , id. ¶¶ 557–58 (Page ID #2075).
[70] See, e.g. , Moxley R. 16 (Am. Compl. ¶¶ 540–42) (Page ID #292–93).
[71] Snyder-Hill R. 123 (SAC ¶ 1299) (Page ID #2166); see also Moxley R. 16 (Am. Compl. ¶ 419) (Page ID #276) (trainers were present during examination in which Strauss repeatedly stroked patient’s nipples).
[72] Snyder-Hill R. 123 (SAC ¶ 511) (Page ID #2069).
[73] ¶¶ 411, 690, 1227–29, 1753 (Page ID #2058, 2090, 2156–57, 2228); Moxley R. 16 (Am. Compl. ¶¶ 872, 874) (Page ID #347–48).
[74] See, e.g. , Snyder-Hill R. 123 (SAC ¶ 501) (Page ID #2068) (trainer told athlete “That’s just what Dr. Strauss does”); id. ¶ 2085 (Page ID #2280) (trainer told athlete that “some doctors are just really into the human body”).
[75] See, e.g. , id. ¶¶ 272, 1894, 1951, 2141, 2281, 2524 (Page ID #2036–37, 2248, 2257–58, 2288, 2308, 2342); Moxley R. 16 (Am. Compl. ¶¶ 273, 282–83, 579–80, 618, 637, 759) (Page ID #254–56, 299, 305, 308, 330).
[76] See, e.g., Snyder-Hill R. 123 (SAC ¶¶ 695, 716–17, 795–96, 821–22, 882–83, 1014–15, 1230, 1341–42, 1758, 2090–91) (Page ID #2090–91, 2093, 2104, 2108, 2115–16, 2132, 2157, 2171–72, 2228, 2281); Moxley R. 16 (Am. Compl. ¶¶ 283, 348, 586–87, 761, 876) (Page ID #256, 264, 300, 330, 348).
[77] R. 123 (SAC ¶ 1429) (Page ID #2183).
[78] See, e.g. , id. ¶¶ 1040–41, 1135–36, 1252–53, 1352–54) (Page ID #2134–35, 2146, 2159, 2173).
[79] Id. ¶¶ 823, 884, 1899 (Page ID #2108–09, 2116, 2249); see also id. ¶ 1441 (Page ID #2184).
[80]
To be clear, any discussion of the discovery rule in
Dibrell
is dicta because
Dibrell
stated that it “need
not resolve this tension [between the discovery rule and the occurrence rule] now because Dibrell’s claims would be
untimely either way.”
[81] Thus, in the context of the discovery rule, “injury” means something more than “harm.” Although injury and harm may sometimes be synonymous, that’s not always the case. Here, “injury” means “[t]he violation of another’s legal right” or “[a]nything said or done in breach of a duty not to do it, if harm results.” Injury , Black’s Law Dictionary (11th ed. 2019).
[82] Snyder-Hill R. 123 (SAC ¶ 267) (Page ID #2035–36); Moxley R. 16 (Am. Compl. ¶ 209) (Page ID #242– 43).
[83] Snyder-Hill R. 123 (SAC ¶¶ 265–66) (Page ID #2035); Moxley R. 16 (Am. Compl. ¶¶ 207–08) (Page ID #242).
[84] R. 123 (SAC ¶¶ 273–75) (Page ID #2037); Moxley R. 16 (Am. Compl. ¶¶ 215–18) (Page ID #244).
[85] R. 123 (SAC ¶¶ 1613, 1812, 1903, 1940) (Page ID #2208, 2236, 2250, 2255).
[86] R. 123 (SAC ¶ 1940) (Page ID #2255).
[87] ¶¶ 1613, 1812 (Page ID #2208, 2236).
[88] Id. ¶¶ 1906–11 (Page ID #2251).
[1] After oral argument, some plaintiffs voluntarily dismissed their appeal.
[2] Snyder-Hill (R. 123, ¶¶ 2, 268); Moxley (R. 16, ¶¶ 2, 210).
[3] See, e.g. , Snyder-Hill (R. 123, ¶¶ 153, 270; Appellant Br. 10, 19, 28); Moxley (R. 16, ¶¶ 94, 212; Appellant Br. 11, 18, 26 & n.19).
[4] Snyder-Hill (R. 123, ¶¶ 309, 647, 651, 733, 787, 1026, 1030, 1392, 1462-65, 1595, 1696, 1875, 1981, 2004, 2082, 2118, 2210, 2337, 2460, 2500, 2516, 2519, 2521); Moxley (R. 16, ¶¶ 246, 248, 253, 268, 271, 275, 279, 317, 338, 357, 439, 454, 470-71, 488-89, 504, 520, 535, 537, 613-14, 616, 630-31, 651, 666, 668-69, 687, 691, 694, 697, 713-14, 718, 733, 780, 795, 831, 847, 869).
[5] (R. 123, ¶¶ 528, 751, 767–72, 951, 1294, 1428, 1571, 1663, 1769, 1926-28, 2138, 2260, 2316, 2356, 2500, 2522, 2540-41); Moxley (R. 16, ¶¶ 336, 374-75, 396-97, 415, 558, 575-78, 598, 733-34, 750, 752, 775, 781, 815, 887).
[12] Snyder-Hill (R. 123, PgID 2357); Moxley (R. 16, PgID 361).
[13]
This court stated the injury-
and-cause
discovery rule in
Bishop v. Children’s Center for Developmental
Enrichment
,
[14] Snyder-Hill (R. 123, ¶¶ 2576, 2588); Moxley (R. 16, ¶¶ 923, 935).
[15] (R. 123, ¶¶ 562-63, 810, 1003, 1152, 1579, 1713, 2217, 2296-97, 2329, 2358); Moxley (R. 16, ¶¶ 253, 273-80, 318-19, 340, 361, 377, 398, 430, 538, 541, 552, 598, 616-17, 634, 682, 781, 789, 805, 816, 833, 882).
[16] Snyder-Hill (R. 123, ¶¶ 314-20, 347-51, 360-62, 382-86, 409-11, 414-16, 501-03, 572-73, 589-90, 690, 792, 814-17, 822-23, 883-84, 1086, 1095, 1226-30, 1311-12, 1429, 1832-33, 1894, 1949-51, 2085-86, 2472); Moxley (R. 16, ¶¶ 273, 361, 579, 618, 715, 872).
[17] Snyder-Hill (R. 123, ¶¶ 339, 369, 396, 425, 456, 486, 548, 630, 641, 664, 680, 698, 723, 743, 763, 782, 800, 843, 969-72, 1044-45, 1069, 1107, 1140, 1167, 1199, 1257, 1283, 1325, 1358, 1382, 1407, 1452, 1478, 1504, 1540, 1591, 1611, 1626, 1658, 1675, 1691, 1708, 1721, 1739, 1762, 1780, 1794, 1811, 1825, 1868, 1885, 1902, 1939, 1959, 1995, 2041, 2057, 2076, 2095, 2112, 2131, 2153, 2177, 2231, 2254, 2276, 2291, 2330, 2347, 2379, 2402, 2423, 2446, 2468, 2510, 2534); Moxley (R.16, ¶¶ 262, 289, 308, 327, 353, 369, 391, 408-09, 430-32, 482, 499, 552, 569, 592, 607, 626, 645, 661, 682, 707, 727, 744, 789-90, 805, 826, 841, 863, 882).
[18] See, e.g. , (R. 123, ¶¶ 153-60, 267, 270-72, 390, 448, 454, 480, 484, 514, 518, 542, 546, 588, 591; Appellant Br. 10, 19, 28); Moxley (R. 16, ¶¶ 94-101, 209, 212-14, 256, 260; Appellant Br. 11, 18, 26 & n.19).
[19]
To state a civil RICO claim, a plaintiff must allege “(1) conduct (2) of an enterprise (3) through a pattern
(4) of racketeering activity.”
Sedima, S.P.R.L. v. Imrex Co.
,
[20] (Appellant Br. 49); Moxley (Appellant Br. 44).
[21] See, e.g. , Snyder-Hill (R. 123, ¶¶ 271-75; id. , ¶ 25 n.10 (citing Michael V. Drake, A Message from President Drake: Strauss Investigation Report , The Ohio State University (May 17, 2019), https://president.osu.edu/ presidents/drake/news-andnotes/2019/strauss-investigation-report-campus-wide-email html)).
[22] See 2018 Mich. Pub. Act No. 183, §§ 5805(2)-(6), 5851b(1)-(3) (codified as amended at Mich. Comp. Laws §§ 600.5805, 600.5851b); see also H.B. 5962, 101st Leg., Reg. Sess. (Mich. 2022); H.B. 4306, 101st Leg., Reg. Sess. (Mich. 2021).