Times Union [Albany NY]
July 9, 2022
By Brendan J. Lyons
Proposal would stop ongoing pre-trial discovery; diocese would not be compelled to continue producing information about its knowledge and handling of alleged crimes
A mediation plan proposed by the Roman Catholic Diocese of Albany to settle hundreds of sexual abuse claims would shut down the litigation that is continuing to reveal details of decades of child exploitation, and leave the victims without a voice or any significant control over the process, according to attorneys who represent dozens of plaintiffs in the cases.
The diocese released the details of its proposed “Path Forward Plan” on Thursday evening. The proposal included an open apology “to the victims/survivors and their families for the inexcusable harm that was done to them by those in positions of trust.”
The diocese, which has indicated it would file for bankruptcy if the cases go to trial, said the proposal was the result of a roughly year-long effort to develop a plan to “avoid the expenses and delays associated with piecemeal litigation … providing victims/survivors with a greater recovery in a shorter period of time.”
It would also create a trust fund that would be funded by the diocese and its insurers, and require the victims to sign a release agreeing to have their claims handled by an administrator who would follow the protocols that have been established by the diocese under court supervision.
Dozens of attorneys for the plaintiffs in the cases are scheduled to meet with state Supreme Court Justice L. Michael Mackey next week to discuss the proposal. Mackey is one of multiple judges across the state who have been assigned to handle cases filed under New York’s Child Victims Act, which in 2019 enacted what would become a two-year suspension of the statute of limitations to allow alleged sexual abuse victims to file claims against their abusers or the institutions that harbored them.
Attorneys who filed the lawsuits against the diocese said the proposal would stop the ongoing pre-trial discovery, and the diocese would not be compelled to continue producing information about its knowledge and handling of abuse allegations.
It would also require all of the roughly 440 plaintiffs to agree to drop their lawsuits and give up any future claims against the diocese, its parishes or affiliated entities. The victims would need to turn over all their information and documentation outlining their claims of sexual abuse; that information would be subject to a confidentiality agreement prohibiting public disclosure.
Jeffrey R. Anderson, whose law firm represents hundreds of alleged child sexual abuse victims in New York, said he and his colleagues “rigorously oppose” what he called Albany Bishop Edward Scharfenberger’s “alternate plan.” He noted it would stop the litigation that has been holding the diocese accountable and take control away from the victims and their legal counsel.
“This plan as proposed looks more like public relations and using the threat of Chapter 11 to bludgeon the survivors into some kind of (settlement),” Anderson said. “This effort made by them is to stop those cases from getting to any full measure of accountability; devised by the bishop and his allies to avoid the system that allows for jury trials and at the same time a system that allows for dispute resolution through mediation.”
Anderson said the diocese’s insurance carriers, which have been used by other Catholic dioceses across New York and New Jersey, have sought to minimize their coverage responsibilities to the survivors of child sexual abuse.
“The diocese should be fighting to get the best outcome for the survivors, not colluding with the insurers to propose a process designed to let the insurers off the hook,” Anderson said. “This plan asks the survivors to take the diocese at its word, but we know that Roman Catholic dioceses simply do not come clean about their assets until they are subjected to judicial oversight and scrupulous survivor inquiry.”
Cynthia S. LaFave, a Guilderland attorney whose firm is also handling dozens of cases for sexual abuse victims, said the diocese is seeking to create a “path forward with the least resistance.”
“Right now, the diocese is under pressure,” LaFave said. “For the first time they’re being held accountable for their actions, their inaction and the greed that has fueled both. This plan is nothing more than a means to defuse that pressure and to self-exonerate.”
LaFave said the plan would require the survivors to put their trust in a single mediator who would decide any settlements without any further public disclosure of the diocese’s records documenting what unfolded.
Indeed, pre-trial depositions and court filings in recent months have brought to light “secret” files documenting the diocese’s handing of child sexual abuse, confirming that many accused sexual abusers were sent for “treatment” rather than being subject to prosecution — and that many of those who were returned to ministry continued to prey on children. Parishioners, including the parents of alleged victims, were often not informed of the accusations.
Although the Albany diocese has publicly supported the Child Victims Act — after years of the Catholic church lobbying against its passage — its legal team has also waged a fierce battle in court to prevent the release of many of the records that documented the abuse and their internal handling of it.
Several months ago, Mackey also ordered the release of a lengthy deposition of former Albany Bishop Howard J. Hubbard that took place a year ago. Hubbard testified under oath that he and the diocese had systematically concealed incidents of child sexual abuse and did not alert law enforcement agencies when they discovered it, saying their actions were, in part, intended to avoid scandal and preserve “respect for the priesthood.”
The diocese last month issued a statement saying its proposal for mediation would “avoid the costly expenses and prolonged delays that would otherwise be associated with continued litigation with plaintiffs and their counsel and insurers and their counsel or a Chapter 11 bankruptcy reorganization case.”
Scharfenberger, who succeeded Hubbard as leader of the 14-county Albany diocese in 2014, said in a statement last month that “two divergent courses of action are shaping up in the diocese of Albany. One is the path of litigation; the other is to file for bankruptcy. … In either scenario, the amount of funds available to be disbursed to survivors is the same.”
Scharfenberger said the mediation plan would ensure that “the greatest portion of the funds will go to survivors, and less for legal and court fees.” He added that it would also prevent those “who sued first depleting them, leaving less or no funds for those who sued later.”
But Anderson, when asked if believed the diocese would still seek bankruptcy protection, said: “I think this is a pretext for filing. I think they’ve already made the decision they’re going to and they’re using this thing as some kind of public relations effort.”
Settled before trial
Last month, the diocese settled the first Child Victims Act case that had been scheduled for trial for $750,000. The settlement followed negotiations in which the diocese’s attorney, Michael L. Costello, had warned the alleged victim, Stephen J. Mittler, that if his case remained on track for its July 25 trial date the diocese would file for bankruptcy before a jury was picked, according to Matthew J. Kelly, Mittler’s attorney.
Mittler’s lawsuit was filed against the diocese and 73-year-old Mark A. Haight, of Schenectady, a former priest who was ordained in 1976 and stands accused of sexually abusing boys for more than a decade. Haight, who will pay an additional $2,000 to Mittler under the settlement, was shuffled through parishes and schools before his final post at Glens Falls Hospital. Hubbard had twice sent Haight for treatment at facilities in New Mexico and California, but he allegedly sexually abused Mittler and others after those inpatient stays.
An appellate court recently rejected the diocese’s efforts to keep secret the psychological treatment records of suspected pedophile priests.
The appellate panel also upheld Mackey’s decision ordering the diocese to turn over the personnel records of at least 48 priests whom the church determined had been credibly accused of child sexual abuse over a period stretching from 1946 to 1999.
There’s no indication that ruling was connected to the mediation proposal, but it potentially impacted the pre-trial discovery process in the hundreds of cases filed against the Albany diocese. It was also significant because there was little legal precedent in child abuse litigation prior to the enactment of the Child Victims Act.
The diocese had argued that the psychological treatment records of the priests were subject to patient-physician privileges, but Mackey had ruled that privilege was waived when the priests’ medical records were shared with Hubbard.
Brendan J. Lyons is a managing editor for the Times Union overseeing the Capitol Bureau and investigations. Lyons joined the Times Union in 1998 as a crime reporter before being assigned to the investigations team. He became editor of the investigations team in 2013 and began overseeing the Capitol Bureau in 2017. You can reach him at email@example.com or 518-454-5547.