Statute of Limitations

Read more about sexual abuse lawsuits.

My children are young enough that Elmo’s voice still carries considerable weight in our home, and so I was disheartened to hear last week’s allegations that Kevin Clash, Elmo’s creator and voice, had a sexual relationship with a teenager. The alleged victim recanted — perhaps in exchange for a settlement, the reports I’ve seen have been unclear — but the issue resurfaced yesterday with the filing of a lawsuit against Kevin Clash in New York by a second alleged victim. The New York Times has a copy of the complaint; the new alleged victim, now 24 years old, claims Clash trolled sex chat lines for teenagers, found the victim, and then engaged in a sexual relationship with him while he was only 15 years old.

I, of course, don’t know if the allegations are true or not, but I do know that the case has a big problem in terms of whether it’s likely to succeed: the statute of limitations in New York has already expired for all of the usual claims alleged in sexual abuse cases. Apparently in recognition of that, his lawyers have not raised any of the typical state tort law sexual abuse claims — for example, assault and intentional infliction of emotional distress — but have instead filed for damages under a federal criminal statute most commonly used for child pornography victims. More on that in a moment.

As I discussed back when Jerry Sandusky was indicted, it is common — and understandable — for childhood sexual abuse victims to only be able to come forward many years after the abuse occurred, and thus often after the statute of limitations has run. In most states, including New York, the statute of limitations for tort claims is “tolled” (i.e., the clock doesn’t start running) until the victim turns 18 years old, but thereafter the victim only has a few years in which to file their civil claim. Few people turn 18 and suddenly come to terms with a traumatic event — the first few years in adulthood often isn’t enough time for a victim to process what has happened, and many victims repress memories about the assaults until their 30s, sometimes even later — and thus many victims never really have a chance to prove their case in court.

New York’s general statute of limitations for personal injury cases is three years, and New York law has not been kind to sexual abuse victims who failed to file a lawsuit within three years of their 18th birthday. In Zumpano v. Quinn, 6 N.Y.3d 666 (2006), former parishioners of two Catholic dioceses claimed they were sexually abused by priests but didn’t file a lawsuit until more than 20 years after they reached adulthood. The New York Court of Appeals ruled that the abuse was sufficient to trigger the statute of limitations for claims against both the priests and the dioceses that employed them, and so the statute ran three years after they turned 18 years old.

That’s the rule in the majority of states: the statute of limitations for childhood sexual abuse cases begins running right when the victim turns 18 years old. There are some exceptions — like the discovery rule, or tolling for fraudulent concealment — but they’re usually quite limited, and they’re often only applicable to the claims against the abuser’s employer. Earlier this year, for example, in the Poly Prep School Abuse case, a federal judge in New York allowed plaintiffs to move forward on their negligence and other claims related to abuse, on the theory that the school had allegedly “fraudulently concealed” their awareness of the abuser’s danger to the children. (Here’s the court order, which is a must-read for anyone interested in statute of limitations issues in sexual abuse cases, and here’s a New York Times story on the order.)

But I don’t see how Clash’s alleged victim could apply any of that court’s reasoning, which rests on the theory that the victim may not have had access to evidence showing the liability of the abuser’s employer, to his case; indeed, it seems his lawyers already concluded that his state tort claims were long gone, and so didn’t even attempt to allege any of the normal claims relating to sexual abuse. Instead, the alleged victim raises one and only one claim: “coercion and enticement to sexual activity in violation of 18 U.S.C. § 2422.”
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Last week, our firm blog posted a short note about how Actos patients with bladder cancer in Kentucky, Louisiana, and Tennessee should move quickly to file because those states have a one-year statute of limitations for personal injury actions. We (and a whole bunch of other lawyers) assume that Takeda Pharmaceuticals will argue that the statute of limitations began to run on June 15, 2011, when the FDA issued an updated warning that one year of Actos use increases the risk of bladder cancer by more than 40%.

As if on cue, the next day Pfizer moved for summary judgment on a whole swatch of consolidated Chantix neuropsychiatric lawsuits (not to be confused with the SSRI birth defect lawsuits), arguing that the statute of limitations for those claims began to run on July 1, 2009, when the FDA mandated the box for the medication warn that the medicine was associated with “serious neuropsychiatric events, including, but not limited to depression, suicidal ideation, suicide attempt and completed suicide …”  On that day, Pfizer also sent out a “Dear Healthcare Provider Letter” notifying prescribing physicians about the change, and there was also some media coverage. 
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Some of the largest drug companies in the United States are based in, of have their U.S. headquarters in, New Jersey — e.g., Johnson & Johnson is in New Brunswick, Merck is in Whitehouse Station, Roche is in Nutley, Barr (now owned by Teva) is in Montvale, Sanofi is in Bridgewater — and so New Jersey state courts are home to a huge volume of pharmaceutical injury litigation.

There’s so many Accutane (Roche) and Fosamax (Merck) cases they’re deemed a mass tort, and there’s a good chance that Propecia (Merck) might end up as one, too. Same goes with a large number of the vaginal mesh erosion cases, because Ethicon / Gynecare are made by Johnson & Johnson, and C.R. Bard is in Murray Hill. (But not the two new huge drug cases: Boehringer Ingelheim, maker of Pradaxa, is in Connecticut, while Takeda, maker of Actos, is in Illinois.)

All of which to say is: when the New Jersey Supreme Court releases a new drug or medical device opinion, it’s a big deal. A thousands-of-cases big deal.

There’s thus been a lot of anticipation surrounding the Court’s opinion in Kamie S. Kendall v. Hoffman-LaRoche, Inc., et al., which was decided Monday. The opinion is here. Some reporting has already come out at Pharmalot, and there’s commentary from the mass torts defense firms Ballard Spahr and Dechert (I’ll get that in a moment).

Kendall is an Accutane case, in which the plaintiff developed inflammatory bowel disease (apparently both ulcerative colitis and Crohn’s Disease; her symptoms were so severe she had her colon removed) as the result of Accutane. A jury awarded her $10.5 million back in 2008, then the case then went into a complicated appellate posture. Roche argued (1) that the case should have been barred by the statute of limitations and (2) that its defense was unfairly prejudiced by the trial court’s restriction on the way the parties could present the number of adverse case reports as evidence that Roche acted too slowly in responding to reports that Accutane caused IBD. The New Jersey Appellate Division held the case was filed within the statute of limitations, but nonetheless ordered a new trial on the adverse case reports issue.

The New Jersey Supreme Court then granted an appeal on only the statute of limitations issue. It was a bit of a “head’s you lose, tails I win” situation for the plaintiffs: if they lost in front of the New Jersey Supreme Court, they lost for good, whereas if they won they still had to go through a retrial to fix the adverse events issue. I don’t fault the New Jersey Supreme Court for that — it’s appropriate for Supreme Courts to cherry-pick issues from cases — but I mention it to further dispel tort reform myths that these types of cases are easy money for injured patients and trial lawyers. Kendall’s lawsuit was filed in December 2005, and now, seven years later, neither she nor her lawyers have been paid a dime, and they still have to go through another trial where they could lose.

So let’s move to the big issue in the Kendall case. New Jersey, like every state, has a statute of limitations for negligence and product liability lawsuits, and also has an exception called the “discovery rule” for cases where the plaintiff didn’t learn until later that their injury could have been the result of negligence. The rule is:

Those considerations [of fairness] comprise the so-called “discovery rule,” the goal of which is to avoid [the] harsh results that otherwise would flow from mechanical application of a statute of limitations. Accordingly, the doctrine postpones the accrual of a cause of action so long as a party reasonably is unaware either that he has been injured, or that the injury is due to the fault or neglect of an identifiable individual or entity. Once a person knows or has reason to know of this information, his or her claim has accrued since, at that point, he or she is actually or constructively aware of that state of facts which may equate in law with a cause of action.

Caravaggio v. D’Agostini, 166 N.J. 237, 245 (2001). 
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Read more about our law firm’s Catholic Priest Abuse practice.

As I’ve mentioned before, I think the motivations that compel lawyers to deny reality while defending some clients are varied and complex, but it cannot be denied that, in many cases, the defense is premised not on providing explanations or raising genuine doubts, but on burying the truth.

Lest we forget what brought us to the ongoing criminal trial of Monsignor William Lynn, here is how the grand jury report against him begins:

In September 2003, a grand jury of local citizens released a report detailing a sad history of sexual abuse by priests of the Archdiocese of Philadelphia. That abuse was known, tolerated, and hidden by high church officials, up to and including the Cardinal himself. The previous grand jury was frustrated that it could not charge either the abusers or their protectors in the church, because the successful cover-up of the abuse resulted in the expiration of the statute of limitations. Now, measures taken in response to the previous report have led to new information about more recent abuse, which this grand jury was empaneled to investigate. The fact that we received that information, and from the church itself, is some sign of progress; and this time there will be charges.

The present grand jury, however, is frustrated to report that much has not changed. The rapist priests we accuse were well known to the Secretary of Clergy, but he cloaked their conduct and put them in place to do it again. The procedures implemented by the Archdiocese to help victims are in fact designed to help the abusers, and the Archdiocese itself. Worst of all, apparent abusers – dozens of them, we believe – remain on duty in the Archdiocese, today, with open access to new young prey.

And so we come to the latest, but not the last, controversy in the criminal case, this time over the remarks made by presiding Common Pleas Court Judge M. Teresa Sarmina. A week ago, before the trial began, the lawyers for the Catholic Church wanted to ask potential jurors, “Do you believe child sexual abuse is a widespread problem in the Catholic Church?” Judge Sarmina struck the question, answering “Anybody that doesn’t think there is widespread sexual abuse within the Catholic Church is living on another planet.”


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My post on the potential civil lawsuits arising from the Jerry Sandusky molestation scandal at PSU still generates a fair amount of traffic, mostly from people looking for updates on the latest legal developments. If the internet asks, it shall receive.

There have been four major developments relating to the case:

  1. A preliminary hearing for the criminal charges against Tim Curley and Gary Schultz;
  2. The filing of another civil lawsuit against Sandusky, Penn State, and The Second Mile;
  3. The filing of a declaratory judgment action by Federal Insurance Company of New Jersey, the insurance company for The Second Mile, to obtain a court order relieving it of any duty to defend or to indemnify Sandusky for the sexual abuse claims against him; and,
  4. The disclosure of multiple allegations of child molestation against longtime Philadelphia Daily News sportswriter Bill Conlin, allegations involving conduct from decades ago, apparently spurned in part by the Sandusky indictment. (This development is legally connected to the Sandusky indictment because of the statute of limitations, as explained below).

Let’s consider them bit by bit.


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Read more about our sexual abuse lawsuit practice.

[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.


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