The Newport Daily News [Newport RI]
August 23, 2021
By Laura Damon and Sean Flynn
A judge ruled a lawsuit levied by a 24-year-old New Mexico woman against Portsmouth Abbey School and a former teacher there may continue, despite a motion by the defendants last week to have the case dismissed.
The woman, identified in the lawsuit as “Jane Doe,” was a 15-year-old student at the Abbey in 2012 when Michael Bowen Smith, a humanities instructor then in his 40s, began a sexual relationship with her, according to the complaint. She said the school was negligent in failing to protect her “from the known or suspected abuse” by Bowen Smith.
U.S. District Court Judge William Smith on Aug. 18 rejected the Abbey’s statute of limitations defense as a grounds for dismissal.
On Aug. 11, Attorney Steven Richard of Providence, representing the Order of St. Benedict that owns and operates Portsmouth Abbey, said the plaintiff turned 18 in October 2014, after she had graduated from the Abbey and was attending college on the East Coast.
Under Rhode Island statute of limitations law at the time, he argued she had three years to file a complaint against Portsmouth Abbey. Instead, she filed her complaint on Dec. 1, 2020, six years and one month too late, according to Richard.
The General Assembly amended that law, effective July 1, 2019, to expand the statute of limitations against non-perpetrator institutions who are defendants to 35 years after the alleged wrongful sexual abuse, or seven years after the “victim’s reasonable discovery of the injury,” according to Richard.
That amendment was too late for the former student who had until October 2017 to file her complaint, he said.
Attorney David Ring, of Manhattan Beach, California, representing the woman, argued that “exceptional circumstances” in this case caused the statute of limitations to be put on hold, “estopped” or “tolled” in legal terms.
“Plaintiff points to the following facts,” Smith wrote in his Aug. 18 decision. “(W)hen Plaintiff reached out to Portsmouth Abbey in February 2017, the school knew that Plaintiff had a claim against it, and that the statute of limitations had not yet expired. Mindful of that, Portsmouth Abbey led Plaintiff to attorneys at Lewis Roca, a defense firm with a history of representing the Catholic Church, who ‘slow walked’ her case until the statute of limitations expired, closing her file one month later. Plaintiff theorizes that Portsmouth Abbey, (Kathleen) McChesney, and Lewis Roca together conspired to run out the clock.”
Ring said previously that after the Abbey allowed Bowen Smith “to quietly resign,” he went on to teach at another Catholic School in upstate New York, but from 2015 through 2017, Bowen Smith repeatedly tracked the woman down and cyberstalked her.
“Terrified of (Bowen) Smith, Plaintiff reached out to Portsmouth Abbey for help in February 2017,” Ring wrote in his response to the motion to dismiss. “She was only 20 years old at the time,” and the statute of limitations had not expired yet.
Portsmouth Abbey hired McChesney of Kinsale Management Consulting, who had long worked for the Catholic Church, to “help” the woman prepare a letter to Bowen Smith, essentially saying “leave me alone,” which McChesney and her agents would deliver to Bowen Smith, according to Ring.
McChesney then referred the woman to a New Mexico law firm, Lewis Roca Rothgerber Christie, he said.
Whether the plaintiff’s theory that “Portsmouth Abbey, McChesney, and Lewis Roca together conspired to run out the clock … is a question for another day,” Smith said in his written decision. “The only question now is whether the facts as alleged could justify its application, and the Court determines that they could. Portsmouth Abbey’s motion is therefore denied in this respect.”
The Abbey’s motion to dismiss was granted in part, though, “to prevent Plaintiff from pursuing a theory that Portsmouth Abbey owed her a duty for (Bowen) Smith’s harassment post-resignation,” Smith wrote.
The Abbey had argued that, contrary to Jane Doe’s allegations, “it owed her no duty to stop (Bowen) Smith’s harassment post-resignation,” Smith wrote. “Plaintiff neither articulates nor defends the source of this post-resignation duty, and the Court therefore dismisses this theory. The consequence of this dismissal is that Plaintiff may not pursue her negligence claim through this theory; it has no effect, however, on her intentional infliction of emotional distress claim.”