9th Circuit Affirms Dismissal of Late Abuse Claim against Oregon Archdiocese

Thomson Reuters News & Insight
March 19, 2012

http://newsandinsight.thomsonreuters.com/Bankruptcy/Insight/2012/03_-_March/9th_Circuit_affirms_dismissal_of_late_abuse_claim_against_Oregon_archdiocese/

March 19 (Westlaw Journals) – An alleged victim of priest sexual abuse in the 1950s has failed to convince a federal appeals court that he did not wait too long to make a claim for money damages against the bankruptcy estate of the archdiocese of Portland in Oregon.

Doe 150 v. Archdiocese of Portland in Oregon et al., No. 10-36126, 2012 WL 662207 (9th Cir. Mar. 1, 2012).

John Doe 150, as he is identified in court papers, had asked the 9th U.S. Circuit Court of Appeals to reverse a federal judge’s ruling that his lawsuit is time-barred.

But the appeals panel agreed with the judge that the plaintiff either knew or should have known of his abuse prior to a Bankruptcy Court-imposed deadline for filing claims in the archdiocese’s Chapter 11 case.

BANKRUPTCY FILING

In 2004 the archdiocese became the nation’s first Roman Catholic organization to file for bankruptcy protection in the wake of growing financial pressure from numerous sex abuse lawsuits.

The U.S. Bankruptcy Court for the District of Oregon imposed a claims-bar date of Aug. 29, 2005, but carved out an exception for “future claimants” who either had not yet discovered or through the exercise of reasonable care could not have discovered an injury from child abuse by clergy.

The archdiocese said in court papers that it sent notice of the claims-bar date to 80,000 Catholic households and received hundreds of timely tort claims in response.

DOE'S CLAIM

Doe allegedly suffered sexual abuse as a child by a priest in the 1950s. Even though he admitted he received and read the bar-date notice in January 2005, he did not timely file a claim in the Bankruptcy Court, court records say.

Rather, he filed suit more than three years later in U.S. District Court for the District of Oregon's after claiming to have had an “epiphany” in 2007 about the abuse.

The archdiocese won summary judgment after citing evidence that the plaintiff has always remembered the alleged abuse and began to feel anxiety, guilt and shame by at least 2000. The archdiocese said Doe also knew his brother had “won” a sexual abuse lawsuit against the same priest in 2001 and that his brother had asked him around that same time if he planned to file a lawsuit of his own.

U.S. District Judge Paul J. Papak concluded the plaintiff did not meet the Bankruptcy Court’s definition of a “future claimant” because a reasonable person in his position would have known he was harmed by the priest's alleged conduct prior to the bar date.

9th CIRCUIT APPEAL

Doe turned to the 9th Circuit, saying he should be exempted from the bar date because at the time he received the notice, he had not yet concluded he had been harmed. He cited his expert witness’s opinion that he was not psychologically prepared to think about the sexual abuse at the time he received the notice.

The archdiocese countered in its brief that “discomfort … does not rise to the level of incapacity for which the Bankruptcy Court established the future-claimants class.”

The 9th Circuit ruled that the facts before the District Court support the entry of judgment in favor of the archdiocese.

“The record is replete with facts that would have … caused a reasonable person … to investigate further,” the panel said. It added that such an investigation “would have caused Doe, if he would have inquired to any degree, to discover that he did in fact have a claim against the archdiocese.”

The appeals court held, therefore, that the plaintiff had failed to demonstrate a triable question of fact on the timeliness of his claim.

Attorneys:

Plaintiff: Kelly Clark, Gilion C. Dumas and Kristian S. Roggendorf, O’Donnell Clark & Crew, Portland

Defendants: Thomas V. Dulcich, Sara Kobak and Andrew Lee, Schwabe Williamson & Wyatt, Portland