Abuse Suit Continues without Kinney

By David Unze
St. Cloud Times
March 11, 2005

A Stearns County judge has dismissed Bishop John Kinney from a lawsuit accusing a former St. Cloud Diocese priest of sexual abuse.

The ruling this week by Stearns County District Court Judge Elizabeth Hayden means the diocese and James Thoennes remain defendants in the lawsuit filed by Wayne Eller.

Eller's attorney and the diocese previously agreed to two settlement options. Hayden's ruling triggers the higher of the two monetary settlements from the diocese, said Jeff Anderson, the attorney representing Eller.

Roger Schmitt, an attorney representing the diocese, said the diocese was reviewing Hayden's ruling and said it was too early to know whether it would appeal. He wouldn't disclose the settlement amount.

"This is a very important determination by the court for this survivor to put an end to this painful chapter of horror," Anderson said.

Eller sued Thoennes, St. Anthony's Church and the Diocese of St. Cloud. Kinney later was added as a defendant.

Eller accused Thoennes of molesting him in the mid-1960s at a Sauk Centre home where Thoennes' parents lived.

Hayden's order dismissing Kinney from the lawsuit said there was no evidence Kinney knew or should reasonably have been expected to know Thoennes was potentially dangerous.

It was the second lawsuit accusing Thoennes of sexually abusing a student. The other was filed in the 1990s and was settled before trial.

In that lawsuit, Thoennes gave a deposition in which he admitted molesting at least four young people in three parishes from the 1960s to 1980s.

Eller's lawsuit accused the diocese of either negligently not knowing about Thoennes' abuse or of knowing about it but doing nothing to protect him.

Defense attorneys argued that Eller waited too long to file the claims. The statute of limitations provides a time frame in which to file sexual abuse lawsuits.

Anderson acknowledged that his client's claims are well outside the statute of limitations. But he argued that because Eller repressed the memory of the abuse for years, the clock didn't start to run until recently.

Eller argued that trauma from being slapped by his grandmother after telling her of the abuse caused him to repress memories of the abuse.

The memories began to resurface in 1996 when Eller was being treated for depression and suicidal thoughts, Eller argued.

The diocese said Eller knew of the abuse as early as 1970 when he was in the Red Wing reformatory and Thoennes came to visit him.

Eller told reformatory personnel that he would kill Thoennes if the priest was allowed to visit him there.

That statement is reflected in notes taken by former Vicar General Daniel Taufen when he met with Eller after April 2002.

But Eller has no recollection of making such a statement in his meeting with Taufen and challenged the validity of Taufen's notes.

Eller knew about the abuse in 1990 and 1992, the diocese argued, pointing to notes and a discharge summary from a doctor who evaluated Eller and recommended counseling for "sexual concerns" and stated the Eller was working on "issues of past abuse."

But those notes don't specifically mention clergy sex abuse, abuse by Thoennes, or sexual abuse, Hayden wrote.

Hayden said it would be up to a jury to determine whether Eller's claims were timely filed.

"This court cannot conclusively determine when (Eller) knew or should have known of the sexual abuse," Hayden wrote.


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