ALBANY (NY)
Times Union [Albany NY]
August 22, 2022
By Brendan J. Lyons
A mediation plan is being negotiated by the church and attorneys for more than 440 alleged victims of abuse who have filed lawsuits
Dozens of personnel files for clergy and others associated with the Roman Catholic Diocese of Albany as of midday on Friday had not been turned over to the attorneys for hundreds of victims who allege they were sexually abused as children.
Despite court orders instructing the diocese to turn over the materials, and public proclamations by Bishop Edward B. Scharfenberger and other officials that the diocese is being transparent, the attorneys said more than half of the treatment and personnel files for roughly 60 accuses priests had not been disclosed before a Friday court conference.
The pre-trial discovery process is supposed to unfold as a slow-moving mediation plan is being negotiated by the church and attorneys for more than 440 alleged victims of abuse who have filed lawsuits against the diocese — or individual priests, parishes and schools — under New York’s Child Victims Act.
During the conference Friday before state Supreme Court Justice L. Michael Mackey, attorney Cynthia LaFave, who is part of a mediation liaison team for the plaintiffs, told the judge that it is critical for the attorneys to receive both the priests’ personnel files as well as detailed information on the diocese’s insurance policies and financial assets.
An attorney for the diocese and attorneys for the plaintiffs both submitted proposed orders to the court last week detailing the steps they contend were necessary to move forward. Time is imperative, both sides have said, because the diocese has warned that it would need to file for bankruptcy if any of the court cases reach trial. In June, the diocese agreed to pay $750,000 to settle a case that had been scheduled to go to trial in July.
“We need to have the information that’s requested in the order that we proposed, because that information is necessary for us to reach any kind of settlements with the diocese and other parties,” LaFave told the judge, adding that knowing the details of the diocese’s assets and liabilities as well as what it knew and how it “could have protected the survivors” from abuse are critical to their ability to sign off on any settlements.
Michael L. Costello, the longtime attorney for the diocese, cast the mediation progress in a different light, telling the judge the two court-authorized mediators have most of the information they need, including an “insurance matrix” and financial information.
“I want to reaffirm that the Diocese of Albany is committed to full and complete participation in this mediation process with the oversight of the court as necessary,” Costello told the judge.
In a separate statement to the Times Union on Friday, Costello said the diocese has adhered to its obligation to turn over the treatment records and personnel files of priests and others who have been accused of child sexual abuse and rape. He said the work is “exacting and involves careful review of substantial records ensuring compliance with the court’s protection of survivors.”
“We have engaged in a rolling production of the ordered priest personnel files,” he said. “We have produced several files and the next traunch of personnel files are prepared for dissemination to counsel (Friday) when I return to the office this afternoon … . The diocese has and continues to comply with all requests for records and information advanced by the designated mediators and the court.”
Later Friday evening, Costello confirmed that he had transmitted 20 personnel files to attorneys for the alleged victims.
The plaintiff’s attorneys said they need to review the details of the insurance policies, not just general information about the coverage. They said the records documenting the diocese’s handling of allegations against priests and others are also critical to review because in some cases the degree of negligence may have been higher. Some of the files already made public through court filings show that some victims were sexually abused by clergy members after those priests had been returned to ministry following “treatment” for earlier abuse allegations.
“What’s being said to the public isn’t being what’s being said in private, and we’re not allowed to talk about what’s being said in private because it’s part of a mediation,” LaFave said. “They’re objecting to things that we’re asking for that they would have to legitimately turn over in Bankruptcy Court or Supreme Court. … In this entire process, it’s more than them writing a check. We have to have the information that I asked for.”
In April, the diocese’s efforts to keep secret the psychological treatment records of suspected pedophile priests was rejected by a state appellate court in a ruling that was expected to affect thousands of Child Victims Act cases in New York.
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.
Additionally, the appellate court also upheld Mackey’s decision ordering the diocese to turn over the reports and other notes from investigators hired by the diocese — some of them retired FBI agents — who had investigated sexual abuse allegations against priests and other employees.
The ruling impacted the pre-trial discovery evidence in the hundreds of cases filed against the Albany diocese.
Mallory C. Allen, an attorney whose firm litigated the appellate case, said the diocese should have turned over the materials “years ago” and not fought their disclosure.
Mitchell Garabedian, a Massachusetts attorney who represents victims suing the Albany diocese and was involved with an $85 million sexual abuse settlement reached with the Boston diocese two decades ago, told the judge last month that the pre-trial discovery must go forward because many of the accused abusers — as well as victims and witnesses — are aged, sick or dying.
“Evidence is disappearing,” Garabedian told the judge in July. “We’re talking about irreparable harm here. We can’t get this back for the survivors.”
The mediation process initially is supposed to establish how much money would be available to compensate victims. That pool of money, which would likely be hundreds of millions of dollars, would be funded by the 14-county diocese, its parishes, schools and insurance carriers.
But attorneys for the plaintiffs on Friday said they had not yet been told whether parishes and schools would be included in funding the settlement account. Costello said those institutions are ready to participate, though it’s unclear how many will take part.
The diocese also provided its initial financial offer last week — proffering an amount of money it would put up to pay victims — but the details of that offer remain confidential.
For those who agree to take part in any mediation plan, arbitrators would review each case and decide — based on factors such as the level of sexual abuse and the physical and emotional damage it caused — how much individual victims should be paid. There would be a point system and limits set on the minimum and maximum compensation.
The next trial is scheduled for early September, but a settlement conference in that case was scheduled to take place late Friday.
At the end of Friday’s court proceeding, Mackey scheduled the next conference on the mediation negotiations for Sept. 9.
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 blyons@timesunion.com or 518-454-5547.