allows the hearing to be held in the presence of a jury, to mean that if a jury has already been empaneled for trial, they could be present for the statute of limitations hearing. See Lopez, 62 N.J. at 275 n.3. This would be logical where much of the evidence adduced at trial is relevant to the court's decision regarding the statute of limitations. See id.
The present motion is in limine; therefore, a jury has not yet been chosen. The Court does not believe the Legislature intended the Court to empanel a jury to simply sit idle while the judge determines the applicability of the discovery rule before trial. The waste of judicial time and resources resulting from such a procedure would be unspeakable and unjustifiable. Hence, the Court finds that the employment of the discovery rule set forth in the sexual abuse statute in the instant case is to be decided by the Court without a jury.
At the plenary hearing, the Court must determine whether plaintiff has fulfilled the burden of proving that he did not discover the causal relationship between the sexual abuse and his injuries until the Fall of 1992. The seminal case, which caused the Legislature to enact the sexual abuse statute was Jones v. Jones, 242 N.J. Super. 195, 576 A.2d 316 (App. Div.), cert. denied, 122 N.J. 418, 585 A.2d 412 (1990). Gallagher, supra, at 513. The New Jersey Appellate Division in Jones held that in a sexual abuse case the statute of limitations could be tolled by proof of either insanity or duress. Jones, 242 N.J. Super. at 207, 209. The decision in Jones highlighted the absence of a civil remedy for sexual abuse victims. Gallagher, supra at 519. In the aftermath, the Jones decision was often discussed for the unique manner in which the statute of limitations was tolled. Id. (citation omitted).
The court in Jones cautioned, however, that the statute of limitations should not be tolled "uncritically whenever a plaintiff claims that his or her failure to initiate suit in a timely fashion was caused by a defendant's wrongful acts." Jones, 242 N.J. Super. at 208. "No court has ever stated that the statute of limitations should be tolled merely because the plaintiff has claimed repression." Gallagher, supra, at 536. In accord, the New Jersey statute "merely provides an opportunity [for the plaintiff] to offer proofs to support a claim of repression." Id. at 537 (citation omitted). The statute merely provides a plaintiff with a chance to prove to the court that his awareness of the causal connection was repressed. Id.
False accusations of child sexual abuse are just as difficult to refute as claims of sexual abuse are to prove. Gallagher, supra, at 533. Therefore, some level of proof is required of a plaintiff to protect a defendant from frivolous claims. See Mary D. v. John D., 216 Cal. App. 3d 285, 264 Cal. Rptr. 633, 640 (Ct. App. 6th Dist. 1989) (stating that if plaintiff were entitled to a discovery rule hearing, he or she would have to present competent expert opinion testimony "as to the existence of specific psychological processes such as repression or disassociation"); Roe v. Doe, 28 F.3d 404, 407 (4th Cir.) (Hall, J., concurring) (propounding that "evidence that the plaintiff had actually repressed the memory  should be provided only by a psychiatrist or psychologist"); Lindabury v. Lindabury, 552 So. 2d 1117, 1118 (Jorgenson, J., dissenting) (positing that "plaintiff should have the opportunity to present to the trial court expert testimony on the issue of post traumatic stress syndrome").
The requirement of corroborating evidence is "an attempt to strike a balance between the legal and emotional needs of survivors of childhood sexual abuse and the public policy supporting statutes of limitations." Roe, 28 F.3d at 408 (Hall, J., concurring). In fact, the New Jersey statute itself contemplates that a plaintiff's bald assertions are not enough to toll the statute of limitations, and allows the court to request a psychiatrist's examination to help the court determine when the plaintiff discovered the causal connection. See N.J.S.A. 2A:61B-1(c).
In the case sub judice, plaintiff Dattoli will have to submit proof that his discovery of the causal relationship between the sexual abuse and his injuries did not occur until 1992. To date, the only evidence presented to the Court by plaintiff is his own affidavit and the unsworn statement of Horace Hunt. At oral argument on January 23, 1995, plaintiff admitted that Mr. Hunt's statement was not being submitted as an expert opinion. (Tr. 15, 16-19). Rather, Mr. Hunt's report was merely evidence that plaintiff was attending therapy during the relevant time period. (Tr. 15, 14-16). Again, at oral argument on November 16, 1995, plaintiff conceded that Mr. Hunt's statement was only being offered as corroboration that plaintiff believed that he did not make the causal connection until the Fall of 1992. On the other hand, the Court is in possession of Dr. Simring's report which specifically states that plaintiff was not "insane" and that "there is no psychiatric justification for tolling the statute of limitations . . . ." (Report of Dr. Simring dated Sept. 18, 1995 at p.7). More than this is necessary to invoke the discovery rule to toll the statue of limitations in a case of sexual abuse.
Principles of fundamental fairness allow plaintiff an opportunity to convince the Court that he discovered his cause of action after it would otherwise have been foreclosed by the statute of limitations. Plaintiff is not required to offer any proof to get to that stage of the proceeding. In contrast, to actually succeed in having the discovery rule toll the statute of limitations, plaintiff will have to submit proof, other than his own assertion, that he did not realize the connection between the alleged abuse and his injuries.
For the foregoing reasons, defendant's motion for summary judgment is DENIED and the Court will conduct a plenary hearing to determine the applicability of the discovery rule to plaintiff's Complaint.
An appropriate Order accompanies this Opinion.
NICHOLAS H. POLITAN
This matter having come before the Court on the summary judgment motion of defendant Thomas Yanelli to dismiss the final Count in the Complaint of plaintiff Perry Datolli, and the Court having heard oral argument on November 16, 1995, and having considered the submissions of the parties, and for the reasons more fully explained in the accompanying Letter Opinion, and for good cause having been shown,
IT IS on this 11th day of December 1995,
ORDERED that defendant's motion for summary judgment is DENIED, and the Court will conduct a plenary hearing to determine the applicability of the discovery rule to plaintiff's Complaint.
NICHOLAS H. POLITAN