Can Sandusky’s Sexual Abuse Victims Sue Penn State?
[UPDATE, July 12, 2012: The independent report by Louis Freeh's law firm has been released. It is damning, to say the least, concluding there was a "total and consistent disregard by the most senior leaders at Penn State for the safety and welfare of Sandusky's child victims." Blame is rightfully heaped upon Paterno, Spanier, Curley, and Schultz.]
[UPDATE, June 22, 2012: Jerry Sandusky was convicted on almost all counts. Reuters quoted me talking about the effect of the prosecution and conviction on the civil lawsuits pre-verdict here and post-verdict here. Short version: Penn State, as I had hoped, is signaling their willingness to settle the cases. As a legal matter, the Sandusky conviction acts as collateral estoppel on the victims' claims that they were abused — establishing that fact conclusively in later proceedings — but that doesn't mean Penn State is automatically liable. Also, as a practical matter, the Sandusky prosecution didn't reveal as much about Penn States actions (or inactions) as the Schultz and Curley trials will.]
[UPDATE, March 2, 2012: The Bill of Particulars has been filed against Jerry Sandusky. A copy is available here. As The Daily Collegian reports, "eight of the 10 men connected to Sandusky’s charges were sexually abused on Penn State’s campus — in the Lasch Football Building, the East Area Locker Rooms and an outdoor pool." That increases Penn State's liability: in addition to claims that PSU failed to act on the reports it had, those eight men can all allege that PSU failed to maintain a safe campus by permitting Sandusky access to those facilities and allowing him to bring children onto the premises.]
[UPDATE, November 30, 2011: A previously unknown victim has filed a civil lawsuit against Sandusky, Penn State, and the Second Mile. A copy of the complaint is available here; it alleges the theories I described below, plus claims of negligent and intentional misrepresentation. There's nothing wrong with those claims, but I don't think they add much value. Intriguingly, the Complaint says the victim was 10 years old in 1992 — which means the statute of limitations turns on his birthday. If he turned 18 before August 27, 2000, he can't use the 2002 amendments to preserve his claim, and will instead have to use other theories to maintain his claim, theories Pennsylvania courts have rejected in clergy abuse cases. That strikes me as profoundly unjust, and I reiterate my hope that Penn State and the Second Mile establish a compensation fund and try to work through this process amicably.]
Note: this post is long because it’s comprehensive, addressing:
- the types of claims survivors can bring in a civil lawsuit,
- the role of the statute of limitations, and whose claims are still within it,
- whether or not Penn State is immune from liability under the ‘sovereign immunity’ doctrine,
- the compensation that may be available (through settlement or jury verdict), and
- the reality of sexual abuse litigation.
I’ve also written a couple follow-up posts under the Penn State Liability tag.
Pennsylvania and the nation has been shocked by Saturday’s grand jury presentation (essentially an indictment) of Jerry Sandusky, a former defensive coordinator for Penn State’s football team, for sexually abusing eight children that he “groomed” through a charity for troubled young boys he founded, The Second Mile. Also indicted were athletic director Tim Curley and a Penn State Senior VP, Gary Schultz, for perjury and failure to report the abuse to authorities. NPR has a breakdown of key figures and the timeline. The Pennsylvania State University Board of Trustees has fired Joe Paterno and President Graham Spanier over the scandal.
Lawyers writing about criminal indictments feel an obligation to remind everyone who might come across their articles that our legal system presumes everyone is innocent of the allegations made against them by prosecutors until they are proven guilty in court. Everyone — even apparent child molesters — is entitled to their day in court, so I’ll reiterate that here. My analysis of the civil claims below, though, presumes the accusations made by grand jury’s presentation are largely true.
It’s bad enough that two separate Penn State officials apparently tried so hard to cover up the sexual abuse that they got themselves indicted, but perhaps even more disturbing is how preventable most of the abuse was:
HARRISBURG, Pa. – Penn State officials had three opportunities to stop Jerry Sandusky from preying on young boys but failed to take action, state police Commissioner Frank Noonan said Monday at a news conference with Attorney General Linda Kelly.
“This is not a case about football, it’s not a case about universities_it’s about children who have their innocence taken from them and a culture that did not nothing to stop it or prevent it from happening to others,” Noonan said.
Two Penn State administrators are charged with lying to the grand jury and failing to report an abuse allegation. Kelly said Monday that Coach Joe Paterno was a witness for the grand jury and faces no charges.
In 1998, there was a police investigation in which [Sandusky] “made admissions about inappropriate contact in a shower room.” Nothing happened.
In 2000, janitors saw him performing oral sex on a child in the shower room, but they discussed it only amongst themselves. Nothing happened.
In 2002, a graduate student (and now an assistant coach there) reported to Paterno “fondling or something sexual,” which Paterno apparently passed on to school administrations. Nothing happened.
We like to think that a sexual predator could only molest multiple children over the course of years through methodical concealment of their crimes and intimidation of witnesses, but that simply wasn’t the case. This also wasn’t a failure of one or two people in a moment of weakness, doubt or cowardice. The whole system abused these children by enabling their abuser.
Consider this part of the grand jury presentment:
Schultz testified that he knew about an investigation of Sandusky that occurred in 1998, that the “child protection agency” had done, and he testified that he believed this same agency was investigating the 2002 report by the graduate assistant. Schultz acknowledged that there were similarities between the 1998 and 2002 allegations, both of which involved minor boys in the football showers with Sandusky behaving in a sexually inappropriate manner. Schultz testified that the 1998 incident was reviewed by the University Police and “the child protection agency” with the blessing of then-University counsel Wendell Courtney. Courtney was then and remains counsel for The Second Mile. Schultz confirmed that University President Graham Spanier was apprised in 2002 that a report of an incident involving Sandusky and a child in the showers on campus had been reported by an employee. Schultz testified that Spanier approved the decision to ban Sandusky from bringing children into the football locker room and the decision to advise The Second Mile of the 2002 incident.
Although Schultz oversaw the University Police as part of his position, he never reported the 2002 incident to the University Police or other police agency, never sought or reviewed a police report on the 1998 incident and never attempted to learn the identity of the child in the shower in 2002. No one from the University did so. Schultz did not ask the graduate assistant for specifics. No one ever did. Schultz expressed surprise upon learning that the 1998 investigation by University Police produced a lengthy police report. Schultz said there was never any discussion between himself and Curley about turning the 2002 incident over to any police agency. Schultz retired in June 2009 but currently holds the same position as a senior vice president with Penn State, on an interim basis.
Lest there be any confusion that Penn State had simply failed to grasp the severity of an ambiguous situation, the graduate student reported that he “saw a naked boy, Victim 2, whose age he estimated to be ten years old” being raped by Sandusky. That’s what the leadership at Penn State, apparently up to the University President, thought wasn’t worth bringing to the attention of the police, not even the campus police.
It’s hard to come up with the right words. Appalling. Inexcusable. As a trial lawyer, the word “reckless” jumps out at me.
The Legal Claims That Sexual Abuse Survivors Can Bring In A Lawsuit Against Penn State, The Second Mile and The Employees Involved In The Cover Up
Under Pennsylvania law:
The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
That’s from the Pennsylvania Supreme Court opinion Hutchison ex rel. Hutchison v. Luddy, 870 A. 2d 766 (Pa. 2005)(quoting Restatement (Second) of Torts § 500), a clergy abuse which evaluated a jury verdict which included a one-million-dollar punitive damages award against the Diocese of Altoona-Johnstown after the jury found:
that the Diocesan Parties had knowledge that Luddy was molesting children; that they were negligent in their retention and supervision of Luddy; that they engaged in a pattern and practice of ignoring allegations of pedophilic behavior among priests; and that their negligence was a substantial factor in bringing about harm to [the plaintiff].
Unsurprisingly, numerous comparisons have been made between the the Catholic church’s handling of repeated child molestation by clergy and Penn State’s handling of Sandusky. (One terrible similarly is that the Diocese of Altoona-Johnstown is the diocese for Centre County, where State College is located.) In terms of a civil lawsuit by the victims against Penn State, like with the Annie Le wrongful death case against Yale, in every state I know of employers may be directly liable for the negligent hiring, retention or supervision of an employee who, through a tortious or criminal act, injures a third party. In these cases, victims’ lawyers tend to raise three separate claims:
- negligence (for failing to protect the children; it’s more analogous to an inadequate security claim than an employment-related claim),
- negligent supervision (for failing to oversee the abusive priests), and
- negligent retention (for failing to fire the priests after the first incident).
Unlike with the Annie Le case, though, both the Catholic Church (sometimes including the Holy See, sometimes on the Archdiocese level) and Penn State didn’t have to predict that abuse might happen, they knew it was happening, did nothing to stop it, and took measures to cover it up. Thus, the priest abuse cases — and likely the Penn State cases —also allege:
- vicarious liability (alleging the Church’s failure to report the priest to the authorities essentially ratified that he had been acting within in the course and scope of his job) and
- civil conspiracy (for working amongst themselves and with the priest to cover up the abuse).
The latter two are unusual for your typical “employee who committed a crime,” but in the clergy cases, and potentially in the Penn State case, they’ll fit. That’s what Penn State gets for permitting the abuse to continue.
Here, there’s another claim, too, which might be the easiest to prove: negligence per se, in which a plaintiff alleges that the defendant violated a particular statute or regulation that was intended to protect like the plaintiff. That particular statute here would be Pennsylvania’s failure-to-report law, 23 Pa.C.S. Section 6311, which requires:
A person who, in the course of employment, occupation or practice of a profession, comes into contact with children shall report or cause a report to be made in accordance with section 6313 (relating to reporting procedure) when the person has reasonable cause to suspect, on the basis of medical, professional or other training and experience, that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse, including child abuse by an individual who is not a perpetrator.
That’s the same law Curley and Schultz have been criminally charged with violating. There aren’t too many court opinions on the use of negligence per se claims against individuals and entities that failed to report abuse, but the two federal court opinions on the subject both permitted the claim in similar sexual abuse cases. Valesky v. Roman Archdiocese of Greensburg, 2010 U.S. Dist. LEXIS 43857 (W.D. Pa. 2010)(citing Doe v. Liberatore, 478 F. Supp. 2d 742 (M.D. Pa. 2007)).
If Curley and Schultz are found guilty of violating the mandatory reporter law — which isn’t a sure bet, but which seems plausible — that will deal a heavy blow to Penn State’s best defenses, because there’s no doubt Curley and Schultz were acting in the course and scope of their employment when they failed to follow up on and report the abuse, and so Penn State is vicariously liable for their conduct.
Even if Curley and Schultz are found not guilty of violating the reporting law, and even if it appears that Penn State — apart from Sandusky — complied with all criminal laws, that does not insulate them from potential liability for punitive damages. The Pennsylvania Supreme Court has already ruled that even compliance with detailed governmental safety standards ”does not, standing alone, automatically insulate a defendant from punitive damages.” Phillips v. Cricket Lighters, 584 Pa. 179, 191, 883 A.2d 439, 447 (2005).
Penn State Is Not A State University, But Instead A “State-Related” University, And So Is Almost Certainly Not Immune From Liability Under The Doctrine of Sovereign Immunity
Some lawyers have presumed that Pennsylvania State University, as a public university, is immune from tort liability as an instrumentality of the Commonwealth under 42 Pa.C.S. § 8521. That’s not necessarily the case, however. Temple University, for example, is also a public university and is also part of Pennsylvania’s Commonwealth System of Higher Education, but the Commonwealth Court held that Temple was not immune from tort lawsuits because it remains independent in its operation and is not classified by statute as an “agency” or as exercising “public powers.” Doughty v. City of Philadelphia, 141 Pa.Commonwealth Ct. 659, 596 A.2d 1187 (Pa. Commw. Ct. 1991). That’s in contrast to the universities in the Pennsylvania State System of Higher Education (PASSHE), which are immune. Poliskiewicz v. East Stroudsburg University, 113 Pa.Cmwlth. 13, 536 A.2d 472, 474 (1988).
[Addendum: In the comments to a followup post I wrote about law professors wrongly asserting Penn State was immune from liability, a smart "Guest" notes that Doughty was fact-specific to Temple University, and that the same analysis might not apply to Penn State. The commentator is right — Doughty is specific to Temple University — but there's reason to believe Pennsylvania courts would not recognize Penn State as having sovereign immunity. In 1999, for example, the Pennsylvania Supreme Court firmly held "PSU is not an agency of the Commonwealth" for purposes of exemptions from real-estate taxation. Pa. State Univ. v. Derry Twp. Sch. Dist., 557 Pa. 91, 94, 731 A.2d 1272, 1273 (1999). I've cut and pasted the pertinent part of their reasoning to the end of that post. There's every reason to believe the Pennsylvania Supreme Court would apply the exact same reasoning for tort liability.]
Further, as Jeff Anderson argues, if the Penn State coaches and administrators try to go down the sovereign immunity route by claiming they’re state employees and thus immune from state tort claims like negligence, winning that argument — i.e., the argument that they are state actors — can expose them to liability for federal civil rights claims. Civil rights claims are harder to prove at trial than negligence claims (here’s one of my posts discussing the difficulties of winning even an obvious civil rights case), but, on these facts, Penn State is going to have a hard time arguing they and their employees were not “deliberately indifference” to the rights of those children. They knew. They did nothing.
The State Of Limitations Might Have Run For Some Victims, But Not All, Due To Changes In Pennsylvania’s Childhood Sexual Abuse Statute In 2002
There’s a problem with some of the civil cases that might be filed: the statute of limitations.
It’s not a problem for the criminal cases, which are well within the criminal statute of limitations for child abuse, even prior to the 2002 and 2007 amendments to 42 Pa.C.S.A. 5552(c)(3).
But some of the civil cases might run into problems. In Pennsylvania, like many states, any lawsuit filed ”to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct” must be filed within two years of the alleged conduct. 42 Pa.C.S. § 5524. If the plaintiff was a minor at the time of the injury, then their two years doesn’t start running until they reach the age of 18. 42 Pa.C.S. § 5533(b).
There’s a problem with that rule: it’s hopelessly unfair to sexual abuse victims who often repressed their memories, lived in fear of their attackers, or labored for years to come to terms with what happened to them. Recall Hutchinson’s abuse by clergy at the Catholic Diocese of Altoona-Johnstown:
The people of the community around State College, the Catholic Diocese of Altoona-Johnstown, Pa., had at least two dozen priests credibly accused of sexually abusing minors, according to BishopAccountability.org.
Allegations piled up within the diocese for years but a letter from the diocesan bishop, James Hogan, to one of several accused priests in 1994, shows how Hogan dealt with it. He wrote:
“Painful as the situation is, we must safeguard your own good name, protect the priestly reputation and prevent scandal from touching the church — even if unjust.”
That letter came to light in the horrific case of Michael Hutchinson, vs. the Rev Francis Luddy — a case that stretched from 1987 to 2007. …
[Hutchinson's attorney] Serbin says he dealt with 50 victims in Altoona-Johnstown and saw more than 100 young people learn they had no legal case because of the statute of limitations.
Pennsylvania courts, like many courts across the country (here’s a New York case collected a couple court opinions across the country dismissing clergy abuse cases) were ruthless in dismissing these clergy abuse claims as untimely. EJM v. Archdiocese of Philadelphia, 622 A. 2d 1388 (Pa. Super. Ct. 1993)(“appellant need not have known that what was happening to him was ‘abuse,’ i.e. was wrongful, or precisely what type of psychological or emotional harm he would suffer as a result. Once he knew what was happening and who was doing it, he had the duty to investigate these questions and to institute suit within the limitations period.”); Meehan v. Archdiocese of Philadelphia, 870 A. 2d 912 (Pa. Super. Ct. 2005)(“The plaintiffs do not allege that the defendants’ silence misled them into believing that the alleged sexual abuse did not occur, that it had not been committed by the priests or nun, or that it had not resulted in injury to appellants. The defendants never concealed from any of the plaintiffs the fact of the injury itself. Nor do the plaintiffs allege that they were lied to by the Archdiocese with regard to the identity of their abusers or their abusers’ place within the Archdiocese, which if relied upon, would have caused them to suspend pursuit of their claims.”).
Every theory that clergy abuse lawyers tried and succeeded with in some other courts — fraudulent concealment, repressed memories (here’s an example of that working in Minnesota), breach of fiduciary duty, discovery rule, discovery of the Church’s involvement (here’s an example of that working in Vermont) — failed in Pennsylvania.
In 2002, the Pennsylvania General Assembly amended 42 Pa.C.S. § 5533 to create an exception for childhood sexual abuse:
i) If an individual entitled to bring a civil action arising from childhood sexual abuse is under 18 years of age at the time the cause of action accrues, the individual shall have a period of 12 years after attaining 18 years of age in which to commence an action for damages regardless of whether the individual files a criminal complaint regarding the childhood sexual abuse.
(ii) For the purposes of this paragraph, the term “childhood sexual abuse” shall include, but not be limited to, the following sexual activities between a minor and an adult, provided that the individual bringing the civil action engaged in such activities as a result of forcible compulsion or by threat of forcible compulsion which would prevent resistance by a person of reasonable resolution:
(A) sexual intercourse, which includes penetration, however slight, of any body part or object into the sex organ of another;
(B) deviate sexual intercourse, which includes sexual intercourse per os or per anus; and
(C) indecent contact, which includes any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire in either person.
(iii) For purposes of this paragraph, “forcible compulsion” shall have the meaning given to it in 18 Pa.C.S. § 3101 (relating to definitions).
(I will leave to another day the fact that the law requires “forcible compulsion.” Survivor advocates have been lobbying for years to remove that language from the legal definition of rape. Thankfully, most courts have been reasonable in their interpretation, and leave it to the jury to determine if “Plaintiff was ‘compelled,’ by virtue of intellectual, moral, emotional, or psychological force, to submit to the sexual relationship.” See Chancellor v. Pottsgrove School Dist., 501 F. Supp. 2d 695 (E.D.Pa. 2007).
In short, childhood sexual abuse victims can file their lawsuit up until they turn 30 years old. None of the Penn State victims described so far are that old, so they would appear to be covered by the extended statute of limitations.
But there was a catch: Section 3 of the actual Act, Act 2002-86, provided that “[t]he amendment of 42 Pa.C.S. § 5533(b) shall not be applied to revive an action which has been barred by an existing statute of limitations on the effective date of this act.” Act 2002-86 became effective August 27, 2002. I know of only one case directly interpreting the statute and it indeed found that claims had to be within the statute of limitations as of the effective date to benefit from the extension of their claims to age 30. Harris v. Diocese of Scranton, 79 Pa. D. & C.4th 464 (Lackawanna County 2006), affirmed without opinion by 932 A.2d 268 (Pa. Super. Ct. 2007).
Thus, the question is if the Penn State victims had claims that had not expired under the old statute of limitations — which happens two years after their 18th birthday — when the extended statute became effective on August 27, 2002.
- Victim 1 was “11 or 12″ in “2005 or 2006″ and so is still a minor.
- Victim 2 was “estimated” by the graduate student to be “ten years old” in March 2002. Assuming that’s correct, Victim 2 turned 18 at some point in March 2010.
- Victim 3 is now 24 years old and alleged indecent contact in 2000.
- Victim 4 was abused 1996 or 1997 and is now 27 years old.
- Victim 5 was abused in 1996-1998 and is now 22 years old.
- Victim 6 was abused in 1998 and is now 24 years old.
- Victim 7 was abused in 1994 and is now 26 years old.
- Victim 8 “between 11 and 13″ in 2000 and so today would be at most 24 years old.
All of those victims seem to have made it — but one just barely. Consider Victim 4: he’s 27 now, and so turned 18 in 2002, potentially before the extended statute became effective. The only reason his claim was extended was because he was in the two-year window of filing.
There are already rumors of other victims, and the Pennsylvania Attorney General is reaching out to identify other potential victims. What happens to the other victims who are a little older? They’re certainly contemporaries of many of the other victims, but they may be denied their day in court just because they turned 18 before August 27, 2000, and thus either their two years ran out before the statute of limitations was extended or they have turned 30 years old.
Is that at all fair? I don’t think so. They’re all contemporaries, and all abused within a few years of each other, so the normal arguments for shortening the discovery rule — like the fading of memories and the loss of evidence — apply just the same to all. Yet, through a quirk of politics designed to protect the Archdioceses from responsibility for clergy abuse cases, some can seek civil justice while others cannot.
It bears mentioning here that there’s legislative movement in Pennsylvania to fix that injustice for all victims, regardless of age:
Two pieces of legislation introduced last month have been submitted to the House Judiciary Committee. Their prospects are unclear.
House Bill 878, introduced by Rep. Louise Williams Bishop, D-Philadelphia, would eliminate the statute of limitation in sexual abuse cases involving minors.
House Bill 832, introduced by Rep. Michael P. McGeehan, D-Philadelphia, calls for a suspension of the statute of limitation for two years, allowing victims to file civil charges regardless of when the abuse happened.
As one childhood abuse survivor said: “‘I had two years to come forward,’ said Rozzi, who allegedly was abused in the Roman Catholic Diocese of Allentown in 1984. ‘That’s a joke. I couldn’t come out and tell my story until I was 39.’” That’s common in sexual abuse cases. No one turns 18 and suddenly realizes they’re entirely at terms with the abuse and prepared to seek justice in a lawsuit. They often feel tremendous guilt and trauma about what happened. It’s a difficult, lengthy process.
The Compensation Available And The Reality of Sexual Abuse Litigation
One other point bears mentioning here, from that article about the Hutchinson case above:
Atoona-Johnstown spent millions of dollars and two decades fighting Hutchinson’s claim in the courts before finally losing decisively and paying the scarred young man a $1.5 million settlement plus $700,000 in interest, according to Hutchinson’s attorney, Richard Serbin.
That added to nearly $8 million already paid to dozens of other victims in Atoona-Johnstown, according to USA TODAY research in 2004.
The Hutchinson case took twenty years and multiple appeals to reach its conclusion. I hope Penn State lives up to their moral and ethical responsibility to try to repair the damage they caused, instead of adopting the slash-and-burn litigation tactics of the Catholic Church.
A number of readers read that last sentence and then remarked (often on forums discussing this post) something similar to: “I agree Penn State should compensate the victims, but how much is ‘enough’”? Of course, nothing is enough. We can’t take them back in time and protect them. We can’t give these kids different lives. They are where they are.
The civil justice system can in most cases do only one thing: move money from one person or corporate entity to another. It is a crude tool that is, in a moral sense, barely worthy of characterization as “rough justice,” but it is all we have, and so we must use it. The alternative is to let culpable people and entities walk away with nothing but a scolding and a hope they feel remorse.
The civil justice system has long struggled to come up with any sort of metrics to value compensation for victims. Some metrics are relatively simple — we can add up the cost of likely future psychological treatment and an estimate of whatever lost wages a victim had because of emotional scars that held them back from reaching their career potential, and say those are the economic damages — but others defy computation. Kenneth Feinberg, who oversaw distribution of the 9/11 Compensation Fund (and now oversees the BP Oil Spill Fund), wrote a book and established an institute to study how to value the intangible essentials like having a parent in your life or growing old with your siblings. What’s it worth to be raped by a supposed mentor when you’re 10 years old? There’s of course no answer, but we must find some number to write down.
The most obvious metric is to look what others have been awarded in the past. BishopAccountability.org maintains a detailed listing of sexual abuse settlements and monetary awards in civil lawsuits that reaches some surprising conclusions: the amount per victim ranges from over $5 million per victim (the Maiello verdict in New York) to under $50,000 per victim (the Cincinnati settlements), for an average of roughly $450,000 per victim.
Is that the right number? Sounds low to me. More can be done to try to put these victims in a place as close as we can back to where they should have been in life.
Intriguingly, after Feinberg’s experience with the 9/11 Fund — in which he eventually decided to award an arbitrary number of non-economic damages for each decedent ($250,000 per person plus $100,000 per dependent child), followed by standard economic damages based on lost wages — he changed his mind and now recommends that “all life should be treated the same,” regardless of differing economic damages. I don’t think that approach necessarily makes sense in the context of living abuse survivors, whose damages are more tangible and accessible than the great unknown of death, but it may help provide a framework going forward.
The question is if Penn State wants to take the necessary steps towards establishing some framework for accountability and remediation or if it wants to force the victims use the courts to force them into that framework. The Trustees seem to be pointed in the right direction, but they haven’t yet started walking down that path. As their public statements have claimed, the damage is still “alleged.”