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XCERPT:
The archdiocese's main bankruptcy lawyer, Thomas Stilley, argued that
claimants need only know that they had been sexually touched, not
necessarily that they were injured as a result. He said that would be
similar to women who knew they had breast implants, but not
necessarily whether they had been injured as a result.
David Slader, who represents sex-abuse claimants, disputed that
argument, saying that a breast implant does not disable a person in
the way that sexual abuse can impair a victim's judgment.
http://www.oregonlive.com/news/oregonian/index.ssf?/base/news/1100955448155871.xml
Judge allows new class of clergy abuse cases
A ruling calls for mediation and lets those yet to realize the effect
of alleged attacks to file claims against the Portland Archdiocese
Saturday, November 20, 2004
STEVE WOODWARD
U.S. Bankruptcy Judge Elizabeth Perris opened the door Friday to a
potentially large number of future claims in the 4-month-old
bankruptcy of the Archdiocese of Portland.
Over the arguments of the archdiocese, she named a new class of clergy
sex abuse claimants: people who know they were molested as children
but haven't yet associated that abuse with later problems in life,
such as alcoholism. The class also includes minors, as well as adults
with repressed memory syndrome, a controversial condition in which a
person supposedly blocks out the memory of a traumatic event.
At the same time, Perris moved the bankruptcy forward by directing
lawyers for the archdiocese and about 60 clergy sex abuse plaintiffs
to try to settle about $530 million in claims through mandatory
mediation.
Perris agreed with the archdiocese to set an April 29 deadline for
claims to be filed. But that deadline wouldn't apply to the future
claimants, the adults and minors who aren't aware of their injuries.
The ruling is a blow for the archdiocese. One of the church's major
goals in declaring bankruptcy was to resolve liability for past abuse.
The archdiocese had wanted to restrict future claimants to minors and
those who had no memory of the alleged abuse.
"It's a radical departure if you extend it to those who know the
conduct occurred," said Debra Dandeneau, a lawyer for General
Insurance Co., which is in a related dispute with the archdiocese over
whether it should pay for settlements.
The archdiocese's main bankruptcy lawyer, Thomas Stilley, argued that
claimants need only know that they had been sexually touched, not
necessarily that they were injured as a result. He said that would be
similar to women who knew they had breast implants, but not
necessarily whether they had been injured as a result.
David Slader, who represents sex-abuse claimants, disputed that
argument, saying that a breast implant does not disable a person in
the way that sexual abuse can impair a victim's judgment.
Michael Morey, another plaintiff's lawyer, said Perris' ruling was
consistent with statutes in Oregon and 31 other jurisdictions that
recognize the rights of those "who don't realize they were abused or
that what was done to them was wrong."
The next step is for the archdiocese to develop a media campaign to
let claimants know that the April 29 deadline is approaching.
Perris chose to go with the archdiocese's traditional approach to
giving claimants notice: legal notices that will run in regional and
West Coast newspapers, The Wall Street Journal and USA Today, church
publications and Web sites, as well as in a mass mailing to 80,000
households in the archdiocese's 124 parishes in Western Oregon. The
total cost is estimated at less than $300,000.
The committee that represents sex abuse plaintiffs had argued for a
more personal approach. Using TV, print advertising, the Internet and
direct mail, the campaign would have tried to encourage possible
victims to overcome the shame, denial and other psychological barriers
they may face in acknowledging they were abused. A proposed
advertising campaign, estimated at between $4 million and $34 million,
would have displayed photos of alleged pedophile priests, along with
headlines such as "It's their shame. Not yours."
Mandatory mediation, which was supported by both sides, covers all
personal-injury claims frozen by the church's bankruptcy filing on
July 6, the day it was scheduled to begin a jury trial on a $135
million lawsuit. It also would cover claims filed by the April 29
deadline.
In a hearing room packed with dozens of lawyers, Perris ordered
opposing attorneys to report back to her in mid-January on a mediation
schedule and a choice for a mediator.
Perris won't decide on the size of the archdiocese's holdings --
estimated at $19 million by the church and at $500 million by
sexual-abuse plaintiffs -- until early next year.
During Friday's hearing, Perris also addressed the issue of "pattern
and practice" discovery, which is the gathering of evidence to prove
that an organization operated in a certain predictable way. In the
case of the Archdiocese of Portland, plaintiffs want to prove that
past archbishops and other high officials engaged in a negligent
pattern of transferring known pedophile priests to unsuspecting
parishes.
A finding of negligence could open up the archdiocese to punitive
damages, possibly in the millions of dollars.
The archdiocese argued that each case should stand on its own.
Archdiocese attorney Thomas Finn told Perris that the way a priest was
supervised decades ago should not have a bearing on the way another
priest was supervised later.
Pursuing the pattern-and-practice path, plaintiffs' attorney Slader
last month asked the archdiocese for the complete personnel records,
including any secret files, of every priest since 1950 known to have
sexually abused any child, been accused of such abuse or rumored to
have committed abuse. The archdiocese protested, saying that the
request was burdensome and that most of those files had already been
turned over to various plaintiffs' attorneys.
On Friday, Perris compromised on the pattern-and-practice issue. She
ordered the archdiocese to produce the personnel and investigative
files of only the 37 priests it has publicly said are the subjects of
sex abuse claims. Also, she allowed Slader to take depositions, or
out-of-court testimony, from as many as four people of his choosing.
If punitive damages are awarded, plaintiffs' attorney Michael Morey
suggested they be distributed among all claimants, not on a
case-by-case basis.
"That way," he said, "one plaintiff is not going to get all the
damages."
If mediation fails in any given case, the next step would be either
arbitration or a civil jury trial. Perris said arbitration would be
able to proceed only if the parties agree to take that route. The
arbitration could take several forms, with an arbitrator, for example,
simply deciding on a fair settlement amount or choosing one of the
amounts proposed by the parties.
The archdiocese originally proposed that anyone who agreed to
mediation also had to agree to binding arbitration, forfeiting rights
to a jury trial and punitive damages. In subsequent proposals, the
archdiocese agreed to give plaintiffs the option of arbitration or
trial.
Perris said Friday that she expects lawyers to agree on compensatory
damages in the vast majority of cases. She pointed out that not all
ca
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