Oregon, my law firm’s location, has been at the center of the explosion of child sex abuse claims nationally for decades. For 26 years, I have defended child sex abuse lawsuits in Oregon and nationwide, including some of the biggest in the country. This includes a recent child abuse lawsuit against a private school involving over 70 plaintiffs.
I practiced for 16 years at a large insurance defense firm where I defended dozens of child sex abuse cases. I have defended many more at my boutique firm for the last decade. I took a child sex abuse case to trial in 2012. It favorably settled after two weeks of trial when the plaintiff refused to testify in front of the jury. I raised fair concerns about his credibility.
Based on my extensive experience defending child sex abuse lawsuits against corporations and individuals, in trial and appellate courts, this article summarizes the best strategies for defending—and sometimes even winning—these volatile, high exposure cases
.These lawsuits show no sign of stopping and are often based on allegations of sex abuse occurring many decades ago, which can make them hard to defend. These cases can be successfully defended, however. Here, I present 12 effective strategies I use.
FIRST, determine if you have insurance that may cover any damages awarded, a settlement, and/or your attorney fees. When you receive notice of a child sex abuse lawsuit against you or your business, immediately tender your defense in writing to your insurer(s) at the time of the alleged abuse. An attorney can then be selected and paid to defend you if you have insurance coverage. However, insurance often does not cover child sex abuse claims. This is another reason to fight back hard and early against these claims.
SECOND, if there are multiple defendants, and one or more appear to be more responsible for the claimed abuse than your entity, tender your defense to those co-defendants and ask that they assume the expense and risk of your defense. This is appropriate, even absent a contractual agreement, if a co-defendant appears to be“actively and primarily” at fault for what occurred, and any fault of your entity is only “passive and secondary.” So, a tender of your defense should be considered when a co-defendant is the “target.”
THIRD, don’t automatically accept that the claimed abuse occurred based on a fear that you will offend the alleged victim. Rather, politely “dig in the weeds” to see if the claim can be disproven. Of course, and unfortunately, there are many valid child sex abuse claims. But there are also many “victims” making false claims of child sex abuse that supposedly occurred many decades ago. So, vigorously defend these claims on the merits whenever possible, and early. A real-life example: Last year, I successfully used this approach in a multi-million dollar child sex abuse lawsuit against a church. My private investigator contacted the plaintiff’s brothers, who served as altar boys with him and the falsely accused priest. They said that no abuse occurred, and plaintiff was making up his claim because he had serious financial problems. I presented the plaintiff’s attorney with this evidence, and he dropped the lawsuit for nothing. The case is Smithv. Holy Rosary Church, MultnomahCounty (Oregon) Circuit Court case number 16CV05662.
FOURTH, consider a venue change motion. Many child sex abuse plaintiffs “forum shop” by suing in the most pro-plaintiff county in a state or a pro-plaintiff federal court. If venue is not legally proper where the lawsuit was filed, and/or the convenience of the parties and witnesses would be promoted by changing venue to a place that is (a) proper and (b) more defense-friendly, move to change venue there. Some jurisdictions require that this motion be your first appearance filed with the court or itis waived, so be careful. Venue is very important because the type of judge and jury you have can radically change the outcome of a child sex abuse case. This includes your odds of getting a pretrial motion to dismiss granted by a judge, as well as the type of jury you will have at a trial. This includes the difference between rural, generally pro-defense juries and urban, generally pro-plaintiff juries.
FIFTH, determine if you have a statute of limitations defense. Many child sex abuse lawsuits involve alleged “repressed memories” of claimed abuse decades ago that only recently “resurfaced.”Many states, including Oregon, have an extended statute of limitations allowing claims based on child sex abuse to be brought even when the plaintiff is well into their30s or 40s, and sometimes even later. Try to obtain testimony and documents, including medical and social media records, showing that the plaintiff was (a) consciously aware of the abuse and (b) that it was harmful at the time it occurred. That makes their claim “accrue”—thedeadline to sue starts running—at the time of the abuse. This is why I have my paralegals comb the plaintiffs medical and social media records for any mention of the claimed abuse. This tactic can defeat reliance on “repressed memories” of the abuse—and the assertion that plaintiff did not make the “causal connection” between the abuse and their claimed injuries until recently—to avoid the statute of limitations.
Through this approach, I have won several child sex abuse cases in Oregon’s trial and appellate courts through pretrial summary judgment motions.
Examples of my real life victories using this approach: Based on the statute of limitations, the Oregon Court of Appeals affirmed the summary judgment I obtained for my client in the trial court in J.S. v.Franciscan Friars of Oregon, 215 OrApp 500 (2007). That case involved the alleged sexual abuse of a child by a Catholic priest.
I obtained the pretrial dismissal of a multi-million dollar child sex abuse lawsuit filed in Oregon against a major international church and one of its pastors. The trial court ruled that the statute of limitations barred the case. It is JMS v. Roberts, Multnomah County Circuit Court case number 0705-05015 (2007). The Oregon Court of Appeals affirmed the summary judgment I obtained for a defendant based on the statute of limitations in a child sex abuse case entitled Schmidt v.Mt. Angel Abbey, 218 Or App 661(2008).
If there is no evidence that the plaintiff told anyone about being abused at or near the time of the alleged abuse, and did not seek any treatment for it in the many years before the lawsuit was filed, you still gain from this effort. Why?Because the lack of such evidence contradicts the claim of significant, lifelong damages. In other words, respectfully, how bad could it be—and did it really happen—when the plaintiff did not seek any treatment for it and never told anyone about it before suing? This common sense point should not be overlooked, especially in settlement negotiations. Also, in Oregon, for example, a plaintiff cannot rely on the extended child abuse statute of limitations—which allows plaintiffs to sue at least until age 40—as to a negligence claim unless a corporate defendant had “actual knowledge” that their employee or other agent was abusing the plaintiff while the abuse was occurring. Oregon’s appellate courts hold that constructive(vicarious) knowledge of the abuse is not enough. Child sex abuse plaintiffs typically cannot prove the required “actual knowledge.”Indeed, very few people would actually know child sex abuse was occurring on their watch and not stop it. This is important because negligence claims are often alleged against the corporate employer of the claimed abuser, which usually has “deeper pockets” than the alleged perpetrator, and to invoke insurance coverage for a negligence claim.
Therefore, negligence claims against an employer based on alleged child sex abuse can often be dismissed through the statute of limitations.
SIXTH, concerning a negligence claim in a child sex abuse case, make sure to also assert the “statute of ultimate repose” as a defense. This is often overlooked. For example, Oregon Revised Statutes 12.115(1)provides: “In no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act or omission complained of.” Thus, regardless of allegations or testimony about “repressed memories” of the claimed abuse, or a delay in making the “causal connection” between the abuse and the claimed injuries, a negligence claim in Oregon based on child sex abuse cannot be brought more than10 years after the claimed abuse—period. Many states have similar statutes of ultimate repose that also should be considered.
SEVENTH, determine if you have a defense to the effort to hold your entity vicariously liable for the claimed sex abuse. Many states do not allow for vicarious liability for intentional torts like child sex abuse. Also, even in states that do (like Oregon), it is limited to the conduct of paid employees. In Oregon, for example, the employer of a“nonemployee agent”—essentially avolunteer—is not vicariously liable for their conduct unless it controlled or had the right to control “the specific injury-causing conduct in particular.”It is difficult, if not impossible, to show any such right of control over the sexual abuse of a child. So, the practical effect of this legal rule is that corporate entities should not be vicariously liable for child sex abuse committed by a volunteer.
Also, vicarious liability for sexual abuse even by a paid employee can be defeated if the alleged abuse occurred abruptly and without the plaintiff being “groomed” for abuse over a long period of time.
Real life examples: I have had several child sex abuse case dismissed through pretrial summary judgment motions against the vicarious liability claim, involving both volunteers and paid employees. Oregon Court of Appeals affirmed the summary judgment I obtained for my clients in the trial court in J.S.v. Franciscan Friars of Oregon, 215Or App 500 (2007), a case involving the alleged sexual abuse of a child by a Catholic priest.
The Oregon Court of Appeals also affirmed the summary judgment I obtained for a defendant based on the lack of vicarious liability in a childsex abuse case entitled Schmidt v.Mt. Angel Abbey, 218 Or App 661(2008).
EIGHTH, consider a state constitutional challenge to the extended child abuse statute of limitations. Complete defenses to lawsuits contained in state constitutions are often overlooked. For example, the Oregon Constitution provides that “justice shall be administered without delay.”Many other states, including New York, Pennsylvania, and Washington, have similar constitutional clauses. Oregon and Washington appellate cases hold that even a six-year delay in filing a civil lawsuit after the tort occurred is too long, which bars such a lawsuit.
This is a dispositive but—oddly—usually overlooked defense that can get a child sex abuse case brought decades after the claimed abuse dismissed. The valid argument is that, regardless of what an extended child abuse statute of limitations says, when a plaintiff sues decades after the alleged abuse, (a) memories have faded; (b) sometimes the alleged abuser died and thus cannot defend himself; and/or (c) other key witnesses and documents are lost. That is unfair because it prohibits a complete defense of the case on the merits. Any trial of such a case would be based solely on the plaintiff’s assertions about what supposedly occurred many years ago. Preventing this unfairness arising from a long delay in suing is the point of state constitution “justice without delay” clauses.
I also cite the U.S. Supreme Court’s 1959 statement in Allegheny County v. Frank Mashuda Co.that “promptness of decision” in“all judicial actions is one of the elements of justice.”
Moreover, filing a motion to dismiss based on this defense can “spook” a plaintiff and their lawyer into settling early on terms favorable to you. This is because they don’t want to get nothing and possibly “make bad law.”
You do not have to ask the court to strike down the child abuse statute of limitations as unconstitutional as to all claimants, a request that is not likely to be granted. Rather, you can make a limited argument that the statute is unconstitutional “as applied” to your case only. That defense has a much better chance of being accepted by a court.
NINTH, on a related issue, some jurisdictions, including Oregon, hold that when the prior tort statute of limitations expired for the plaintiffs claim before the extended child abuse statute of limitations was enacted, a defendant has a “vested right” in the claim being forever barred. That right thus cannot be later taken away by a new and extended child abuse statute of limitations. When a child sex abuse claim is brought many decades after the alleged abuse, this can also be asserted as a legal reason to dismiss the case, along with a state constitution “justice without delay” challenge.
TENTH, determine if your jurisdiction has a statutory cap on emotional distress “noneconomic” damages. For example, Oregon has a $500,000 cap on these damages. So, demands for noneconomic damages exceeding this amount can often be largely ignored in child sex abuse cases, at least for settlement negotiation purposes.
Oregon’s statutory damages cap has been challenged as being unconstitutional because it supposedly denies a plaintiff a substantial remedy for their claimed injury. Oregon’s Constitution requires that everyone have a “remedy” for“injury” done to them.
But that constitutional challenge to Oregon’s cap has only been successful in cases where the plaintiff was (a)“grievously injured” (b) physically. This includes an amputated leg; being rendered a paraplegic; and one plaintiff being nearly cut in half by a bailing machine. So, the point is that child sex abuse, as awful as it is, is not that type of “grievous” physical injury. Therefore, a child sex abuse plaintiff getting $500,000 in emotional distress damages after the cap is applied is a “substantial” remedy that satisfies Oregon’s Constitution. So, the $500,000 cap should apply to most, if not all, child sex abuse cases in Oregon.
ELEVENTH, consider a legal challenge to any request for punitive damages. They are designed to punish and deter a defendant (and others like them) for “wanton and malicious” conduct. They can be awarded in addition to or in place of economic damages (like medical bills and lost earnings) and noneconomic damages.
Many plaintiffs, in an effort to “plead into” insurance coverage so they have another bucket of money to pursue, allege that a corporate defendant was negligent in allowing the child sex abuse to occur. This often includes asserting that the corporation did not properly supervise the employee or volunteer who allegedly abused the plaintiff, or failed to terminate them after learning of an allegation that they sexually abused another child. However, such allegations can also bar liability for punitive damages. This is because many jurisdictions, including Oregon, hold that punitive damages are not recoverable for mere negligence, even if a plaintiff was sexually abused. So, a plaintiff cannot“have it both ways.” This is important because, if a child sex abuse case goes to trial, punitive damages are often a major focus, and they can be very unpredictable. Indeed, in 2010, an Oregon jury awarded nearly $20 million in punitive damages against the Boy Scouts of America in a child sex abuse case.
Punitive damages not being available for mere negligence also strengthens your pretrial settlement negotiating position.
On this issue, also fight back against untimely motions to amend the plaintiff’s Complaint to assert a large request for punitive damages. That is unfairly prejudicial.
In order to help defendants facing possible liability for punitive damages in Oregon, I drafted and helped enact an amendment to Oregon Revised Statutes 31.725, which addresses claims for punitive damages. My amendment states that when a plaintiff moves to amend their complaint to assert a claim for punitive damages, “the court shall deny” the motion “if the party opposing the motion establishes that the timing of the motion to amend prejudices the party’s ability to defend against the claim for punitive damages.” My amendment also states that “if the court grants the motion, the court may continue the action to allow such discovery as the defendant may require to defend against the claim for punitive damages.”
So, don’t allow your corporation to be sandbagged with a late, unfairly prejudicial claim for punitive damages.
TWELFTH, and finally, always assume that more lawsuits involving the same alleged abuser will be filed against your entity after the first lawsuit is resolved. This is a common technique used by attorneys representing alleged child sex abuse victims. They often use their first lawsuit and first client as a device to learn the names of more alleged victims of the same perpetrator. So, keep in mind that whatever you might pay to settle the first lawsuit will “set a floor” for the often inevitable next round of lawsuits. The same point applies to how actively or passively your lawyer defends the first case. Do not allow the plaintiff’s attorney to view your entity as a “soft target.”
A real life example: Last year, I represented one defendant in a three-defendant child sex abuse lawsuit. The accused men went to jail based on the same allegations. The case settled with my client paying only a small portion of the settlement. A few months after that case settled, the same lawyer brought a second lawsuit against the same defendants for nine new plaintiffs, who collectively seek about $60 million in alleged damages based on claims they were sexually abused by the same people. The “die is cast” that the other defendants, not my client, should have to pay nearly all of any settlement.
I hope this article is helpful to you and your business. Please contact me about any questions you have about defending a child sex abuse lawsuit.