September 30, 2011
H.C. AND F.F., PLAINTIFFS-APPELLANTS,
SISTERS OF THE CATHOLIC APOSTOLATE, PALLOTTINE SISTERS, DEFENDANTS-RESPONDENTS, AND SACRED HEART ORPHANAGE, ARCHDIOCESE OF NEWARK, SISTER M. REGINA, SISTER FORTUNATA, SISTER ANASTASIA, SISTER AURELLA, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7753-05.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2011
Before Judges Payne, Reisner, and Simonelli.
Plaintiffs H.C. and F.F. appeal from an October 4, 2010 order dismissing on statute of limitations grounds their complaint against defendants Sisters of the Catholic Apostolate and Pallottine Sisters.*fn1 Plaintiffs, two men now in their eighties, alleged that while they were living in a Catholic orphanage from 1937 to 1943, several of the nuns who worked at the orphanage sexually molested them.*fn2
Plaintiffs did not file suit until 2005. After a Lopez*fn3 hearing, the trial judge concluded that plaintiffs' causes of action accrued years before they filed their complaint and they failed to produce credible evidence justifying the application of equitable tolling principles. Having reviewed the entire record, we find no basis to disturb the trial judge's credibility determinations and other factual findings. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Therefore, we affirm.
I Before beginning our discussion of the evidence in this case, we briefly review the legal standards plaintiffs needed to satisfy in order to maintain a cause of action based on events alleged to have occurred more than sixty years earlier.
The Child Sexual Abuse Act (Act), N.J.S.A. 2A:61B-1, was enacted in 1992. The Act defines the accrual date of a cause of action for child sexual abuse as well as the standard for tolling the statute of limitations:
b. In any civil action for injury or illness based on sexual abuse, the cause of action shall accrue at the time of reasonable discovery of the injury and its causal relationship to the act of sexual abuse. Any such action shall be brought within two years after reasonable discovery.
c. Nothing in this act is intended to preclude the court from finding that the statute of limitations was tolled in a case because of the plaintiff's mental state, duress by the defendant, or any other equitable grounds. Such a finding shall be made after a plenary hearing. At the plenary hearing the court shall hear all credible evidence and the Rules of Evidence shall not apply, except for Rule 403 or a valid claim of privilege. The court may order an independent psychiatric evaluation of the plaintiff in order to assist in the determination as to whether the statute of limitations was tolled. [N.J.S.A. 2A:61B-1(b), (c).]
As the Supreme Court acknowledged in R.L. v. Voytac, 199 N.J. 285 (2009), the Act is remedial legislation, which recognizes that child sexual abuse may cause psychological injury that the victim does not connect to the abuse until years after it occurs. Therefore, the Act incorporates the discovery rule in defining the accrual of the cause of action:
The plain words of the Act identify two events that must occur before a cause of action may accrue: the "reasonable discovery" of both (1) the existence of the injury and (2) the causal relationship of that injury to the acts of sexual abuse.
This two-pronged approach was established "[b]ecause of the unique nature of sexual abuse, which may only be discovered by an adult victim after years of repression."
Senate Judiciary Committee, Statement to S.B. 257, February 24, 1992, at 1, reprinted in N.J.S.A. 2A:61B-1. [Id. at 299.]
The Court held that the Act requires a two-step approach, giving a plaintiff essentially two opportunities to file what would otherwise be considered a very untimely complaint. First, to establish when the cause of action accrued, under section 61B-1b, a plaintiff must meet an objective reasonableness standard:
Because the cause of action is meant solely for victims of child sexual abuse, we believe the Legislature intended for the objective standard of reasonableness upon discovering the connection between the abuse and his or her injuries to refer to a reasonable person who has been subjected to sexual abuse as a child. Thus, we hold that a trial court must determine, based on the totality of the circumstances, when the injured party in fact discovered, or when a reasonable person subjected to child sexual abuse should have discovered, that the claimed injury was causally related to the asserted child abuse by the defendant. The trial court should then use the earlier of those two dates as the date the cause of action accrued under the Act. [Id. at 300.]
If, using that standard, the court determines that the plaintiff failed to file the complaint within two years after accrual, the plaintiff may nonetheless be entitled to a tolling of the statute of limitations under subsection 61B-1c. The tolling test is subjective, based on proof of "plaintiff's mental state, duress by the defendant, or any other equitable grounds." Id. at 301. For example, a plaintiff may prove that although he realized that the sexual abuse caused him to suffer a psychological injury, due to the severity of that injury he was incapable of filing the complaint within two years after the discovery of the connection between the abuse and the injury. Id. at 305.
In Voytac, where the victim claimed he was molested by his mother's boyfriend, the Court cited the following examples of evidence that might support tolling:
Under the Act, the tolling analysis is subjective and includes a review of plaintiff's individual characteristics that made him uniquely vulnerable: his sexual naivete at the time of the abuse, his deeply ambivalent feelings about the abuse that made him feel special, and his desire to engage in additional sexual encounters with defendant. Although the experts may have differed in their ultimate conclusions, each expert recognized that plaintiff suffered from depression. It is for the trial court to determine whether the totality of plaintiff's evidence supports his position that his mental state was such that the statute of limitations should be tolled. [Ibid.]
We next summarize the most pertinent evidence from the Lopez hearing. H.C. testified that he lived at the Sacred Heart Orphanage from the time he was eight years old until he was almost fifteen. He testified that soon after he entered the orphanage, Sister Fortunata took him into a closet on several occasions and tried to force his head into her crotch. When he repeatedly fell to the floor in a fetal position, she "gave up on that." Two years later, when he was in the fifth and sixth grades, the same nun used to punch him in the face.
H.C. testified that when he was twelve years old, in the seventh grade, a twenty-three year old nun named Sister Regina began teaching at the orphanage. He testified that for two years she would encourage him to put his hands on her breasts and "dry hump" her. This would happen about three times a week. When he was in the eighth grade, and was almost fourteen, he and Sister Regina had sexual intercourse several times while he was attending a summer camp. H.C. insisted that he never told anyone about these events, and after he left the orphanage he had no "conscious recollection" of the sexual abuse until 2004.
H.C. testified that twenty-five years after he left the orphanage, his brother told him that he had encountered Sister Regina at a Catholic school in Union. The brother said that Sister Regina had apologized for physically abusing him at the orphanage and wanted to also apologize to H.C. According to H.C., he then brought his wife and daughters to visit Sister Regina, who by that time was stricken with leukemia. During that visit, in 1965, she apologized to H.C. for what happened at the orphanage. However, H.C. insisted that he believed she was only referring to physical abuse and she did not mention sexual abuse. Some time later, when H.C.'s daughter became a nun, she took the name Regina, after the Sister.
According to H.C., in October 2004, when he was seventy-five years old, he saw a television program on CNN reporting that the Newark Archdiocese was paying money to child victims of sexual abuse without admitting liability. That was the Archdiocese in which the orphanage was located. H.C. testified that he suddenly remembered that he had been sexually abused and was outraged that the Archdiocese was not admitting culpability. After seeing the television program, H.C. contacted his brother-in-law, F.F., who had also been in the orphanage, and told F.F. that he was going to file a claim with the Archdiocese. He explained to F.F. that a claim had to be based on sexual abuse. Two weeks later, F.F. called H.C. back and told H.C. to "put [him] on the list" of people filing claims, because "he's telling me [he] was abused by nuns."
On cross-examination, H.C. admitted that the 2004 CNN program was not the first time he had heard about the sexual abuse scandal within the Catholic Church. Asked whether he had, in fact, heard that information many times before, H.C. responded: "The whole world knew it, I knew it. You saw it every day. You couldn't go through a day without seeing it." Pressed to explain why he only remembered his sexual experiences when he heard that the Archdiocese was paying money to alleged victims, H.C. said "I had a conversation and I believe God obliterated my mind, blocked me out so that I could be a survivor."
H.C. admitted that he always remembered the physical abuse he experienced in the orphanage, but insisted that God allowed him to forget the sexual abuse. He admitted that none of the nuns put any pressure on him not to file a lawsuit about the abuse.
H.C. testified that the Archdiocese paid for him to received counseling and that, at the time of the Lopez hearing, he was still taking medication for depression. But later in his testimony, he admitted that his depression stemmed from his wife's illness. When asked, on cross-examination, what damage he had suffered as a result of the sexual abuse, H.C. testified that he believed his first wife was not satisfied with his sexual performance, and that might have been due to his early sexual experiences. However, his first wife also was bipolar and suffered from cancer. As a result of his wife's illness, he went to a psychiatrist in the mid-1990s. He did not tell this doctor about his history of sexual abuse. H.C. testified that the psychiatrist prescribed medication for the depression associated with his wife's cancer, and that he still took that medication. He also admitted that many other stressful things had happened in his life, including having his life threatened when he was a union president associating with Jimmy Hoffa.
F.F. testified that he lived at the orphanage from the time he was eight or nine years old until he ran away in 1943, when he was fifteen. H.C. was there at the same time. F.F. experienced years of physical abuse, and the nuns required him to work instead of attend school. As a result, he remained illiterate. F.F. testified that Sister Regina used to tickle and kiss him while he was cleaning the stairs at school. He also described an incident in which he had sexual intercourse with Sister Gertrude. F.F. testified that "it was beautiful to me . . . I loved [it] and I went for it . . . I call her my first love . . . ."
According to F.F., Sister Gertrude's sexual conduct was not a secret in the school; the boys gossiped among themselves that she "got caught in the supply room with two [other] boys." F.F. testified that when he was "fourteen or fifteen" he had sex with Sister Regina at the school camp. After that, F.F. felt that he was "in the in crowd" as he sat with Sister Regina on the bus back to the orphanage.
After F.F. and H.C. left the orphanage, they re-connected and remained friends throughout their lives. In 2004, when they were both living in Florida, H.C. called F.F. and expressed outrage about a CNN program describing monetary settlements by the Archdiocese of Newark. Later, H.C. told F.F. that F.F. could not file a claim with the Archdiocese because he "didn't have sexual relations with nuns." F.F.'s reaction was: "I don't understand what he's talking about. I wasn't worried about the sex with the nuns. That was pleasurable. I was worried about [the fact] that the state stole my life away . . . that I never go to school . . . and my whole life was all labor jobs."
H.C. told F.F. that the beatings and educational abuse were covered by the "statute of limitations or something" and the only claim that could be pursued was sexual abuse. Therefore, F.F. gave H.C. permission to make a complaint on his behalf based on his prior sexual acts with the nuns. At some point, after the lawsuit was filed, H.C. and F.F. decided that one of H.C.'s daughters, a nurse who worked with sexual trauma victims, would help F.F. fill out the interrogatories, which F.F. described as "teach[ing] me to do the sexual part of my papers." According to F.F., while the daughter was helping him fill out the interrogatories, he began to believe that he suffered from sexual addiction and was a "sick man."
On cross-examination, F.F. admitted that when he and H.C. filed the lawsuit in 2005, he believed it was only for physical abuse. In his interrogatory answers completed in September of 2008, he denied that he was making any claim for "sexual dysfunction or other sexual problem," although he "reserve[d] the right to amend this answer should any claim for sexual dysfunction or other sexual problem arise." He admitted that he started seeing a therapist thereafter, "when [H.C.'s daughter] couldn't fill out the papers."
H.C.'s daughter, P.C., testified that when she was growing up, her father and F.F., whom she called Uncle F., frequently told stories about physical abuse in the orphanage. They treated their experiences as funny, although she did not think they were amusing. H.C. did not tell her until 2005 that he had been sexually abused. During the litigation, she suggested to F.F. that he might have a sexual addiction and that he should see a therapist.
P.C. also testified that in the years 2000 and 2001, when "the media reported allegations of sexual abuse by clergy," she sensed that her father was more sad and serious in tone when he described his experiences with physical abuse in the orphanage. She thought his depression was related to the news reports about sex abuse in the church. However, when she observed to her father that he sounded sad and depressed, he told her that it was because her mother was dying of cancer and her sister was having personal problems.
Plaintiffs also presented Dr. Richard Gartner, a psychologist who specialized in treating male victims of childhood sexual abuse. Dr. Gartner explained the theory of repressed memory and opined that H.C. had repressed his memories of sexual abuse. He opined that, when H.C. remembered the abuse, he began having flashbacks, anxiety and depression, all of which were symptoms of post-traumatic stress disorder. On cross-examination, Dr. Gartner admitted that his diagnosis of H.C. was based almost entirely on what H.C. told him. He agreed that "[a] person who has recovered memory may construct convincing pseudo-memories for events that never happened," and that there was no "diagnostic tool" to differentiate accurate recovered memories from false ones. He also acknowledged that H.C. had experienced other significantly stressful events that could lead to depression, including losing both parents in childhood, the deaths of two wives, and having prostate cancer.
Dr. Gartner also evaluated F.F., but he testified that F.F. had no repressed memory. Rather, F.F. "remembered the sexual conduct his whole life" and thought of it as pleasurable. However, Dr. Gartner opined that F.F. developed a "compulsive sexuality" as a result of the abuse, which prevented him from developing permanent relationships with women.
At the conclusion of plaintiffs' proofs, defense counsel made a motion to dismiss the complaint on statute of limitations grounds. Plaintiffs' counsel asserted that the court should view the proofs from the Lopez hearing in the light most favorable to plaintiffs. However, defense counsel made clear in his remarks that the Lopez hearing was over at that point and defendants were asking the judge to make factual findings based on the Lopez evidence. As counsel stated: "I think [plaintiffs' counsel's] got the wrong motion in mind. . . . I don't have to bring a motion to dismiss when [plaintiffs' counsel] suggests it. We had the plenary hearing." [Emphasis added.]
The judge placed an oral opinion on the record on September 15, 2010, which he later supplemented with a written opinion issued with the order on October 4, 2010. In both opinions, the judge's most significant finding was that plaintiffs and their expert witnesses were not credible. In particular, he did not believe that H.C. repressed his memory of the sexual abuse and suddenly recovered his memories after watching the CNN news report in 2004. Instead, he found that, at that point, H.C. became particularly angry at the Catholic Church and "[t]he silence of the priests became a moral issue and a crusade for him" because the Church was paying money to the victims without admitting culpability.
The judge did not believe H.C.'s testimony that he thought Sister Regina's apology in 1965 only concerned physical abuse. He also did not believe plaintiffs' testimony that in all the years they were friends and shared memories of life in the orphanage, they never discussed their sexual activities with the nuns. He further found that a reasonable person in plaintiffs' situation "would have discovered the claimed injury and its relationship to sexual abuse during the 1990s and certainly no later than 2001 when the entire world by that time had become aware of claims of sexual abuse of children."
He found F.F.'s claim particularly weak, because F.F. admitted that he had fond memories of the sexual activities throughout his lifetime and claimed that he did not "discover" that they caused him an emotional injury until three years after he filed his complaint. As the judge put it:
Further, he [F.F.] only "discovered" his abuse after his complaint was already filed and after being assisted in answering interrogatories by Plaintiff [H.C.'s] daughter, a counselor, who thought he should have "better" answers to the questions posed by Defendants.
After considering the testimony of plaintiffs' expert and the written report of H.C.'s treating therapist, who did not testify, the judge did not credit their opinions that either plaintiff suffered "from any psychological or emotional disorder because of the abuse." He also found that neither plaintiff was threatened into silence. Finally, the judge found that defendants would be prejudiced in presenting a defense to the charges, due to the sixty-five year delay between the happening of the abuse and the filing of the complaint. Based on these findings, he concluded that plaintiffs had not established equitable grounds to toll the running of the statute of limitations.
In reviewing the judge's decision on the Lopez hearing, we are not writing on a clean slate. Rather, we are bound by the judge's factual findings, so long as they are supported by substantial credible evidence in the record. See Rova Farms, supra, 65 N.J. at 474, 483-84. We owe particular deference to the judge's credibility determinations, because he saw and heard the witnesses testify. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). See also Lopez, supra, 62 N.J. at 275 (recognizing that the resolution of discovery rule issues may rest on witness credibility); J.L. v. J.F., 317 N.J. Super. 418, 435 (App. Div.), certif. denied, 158 N.J. 685 (1999). On the other hand, we are not bound by the judge's legal interpretations. Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
In challenging the judge's decision, plaintiffs raise twelve points of argument, many of which are overlapping or repetitive. Plaintiffs contend that the judge's decision was against the weight of the evidence or otherwise not supported by the record. They also argue that the judge applied incorrect legal standards in considering the evidence; that F.F. is entitled to recover damages from defendants even if he suffered no psychological injury; and that defendants' counsel improperly cited an unpublished opinion. With one exception, these arguments are completely without merit and, except as discussed below, they do not warrant discussion in a written opinion.
Briefly, we agree with plaintiffs that defendants did not present legally competent evidence that the delay in filing the complaints prejudiced their defense. At the beginning of the Lopez hearing, defense counsel represented that the order's current "provincial leader," Sister Olivia, was present in court and would testify that the accused nuns were deceased, the orphanage was long-since closed, and the supervisors who worked there in the 1930s and 40s were gone. But when defendants eschewed putting on their case and instead asked the judge to decide the Lopez issue based solely on plaintiffs' presentation, they effectively abandoned their equitable defense that the delay caused them prejudice. Despite the judge's mistake on that point, in light of the entire record we find the error is harmless, that is, it makes no difference to the result.
We find no merit in plaintiffs' contention that the judge misapplied the Voytac standard in deciding when their cause of action accrued. In his written opinion, the judge, citing Voytac, correctly recognized that he must determine "based on the totality of the circumstances, when the injured parties in fact discovered, or when a reasonable person subjected to child sexual abuse should have discovered, that the claimed injury was causally related to the asserted child abuse by the defendants. This is an objective standard of reasonableness." See Voytac, supra, 199 N.J. at 300. He then correctly articulated the subjective test for tolling under the Act. We infer that he applied those standards to the evidence.
Likewise, we cannot agree with plaintiffs' argument that the judge applied the wrong standard in evaluating their proofs. This is how the issue arose. Throughout the Lopez hearing, defense counsel indicated he was unsure whether he was actually going to call defense witnesses. After plaintiffs presented their proofs and rested, defense counsel moved to dismiss the complaint. In arguing that motion, plaintiffs' counsel contended that since this was a "motion to dismiss," the judge must consider the Lopez evidence in the light most favorable to plaintiffs. That is the standard employed during a trial when a defendant moves to dismiss at the close of a plaintiff's case. See R. 4:37-2(b); Dolson v. Anastasia, 55 N.J. 2, 4-6 (1969). Defense counsel disagreed, arguing that the case had not yet gone to trial, and the judge's role at that point was to consider only the Lopez issue, as to which plaintiffs had the burden of proof. Defense counsel did not state that he intended to present Lopez evidence if the judge denied his motion. See Cook v. Wilentz, 261 N.J. Super. 391, 397 (App Div. 1992).
The trial judge did not directly address those procedural arguments. However, in deciding the Lopez hearing, he apparently determined that defendants had decided not to put on any evidence and were asking him to finally decide the merits of the statute of limitations issue. That was a reasonable interpretation. In moving "to dismiss the complaint," defense counsel was not making a preliminary motion to dismiss the Lopez hearing. Rather, he had decided not to put on any evidence and instead asked for a decision of the Lopez issue based solely on plaintiffs' evidence. Accordingly, his argument was that since plaintiffs had not carried their burden of proof at the Lopez hearing, the complaint should be dismissed on statute of limitations grounds. The judge therefore correctly made credibility determinations and findings of fact based on the evidence.
But even if the judge applied the wrong standard of proof in deciding the defense motion, on this record it would have made no difference to the outcome. The only defense witness available to be called was Sister Olivia, whom counsel represented would testify that the accused nuns were dead, the orphanage was closed, and the supervisors "from 1937 to '43 are no longer with us." That testimony would not have changed the judge's evaluation of plaintiffs' credibility.
Based on our own review of the record, we find no basis to disturb the judge's credibility determinations and factual findings. Even on a cold record, plaintiffs' testimony left the distinct impression that they badly wanted the Church to pay for its sins and were, consciously or unconsciously, tailoring their recollections to fit legal and medical theories explained to them by their attorneys or by H.C.'s daughter. We will not second-guess the judge's decision not to credit their testimony.
Plaintiffs challenge the judge's factual finding that they should have known at least as early as 2001 about the Church sex abuse scandal. They claim there is no record support for that finding. They are incorrect. The judge's factual finding was a fair inference drawn from: (a) the testimony of H.C.'s daughter that the sex scandal was widely reported beginning in 2000 or 2001, and that she believed her father's depression around that time was attributable to feelings of disillusionment over that scandal; and (b) H.C.'s admission on cross-examination that he, and the rest of the world, knew about sexual abuse within the Church long before he saw the 2004 CNN report.
Like the trial judge, we do not in any way condone the abuse and exploitation plaintiffs described in their testimony. We understand H.C.'s outrage at the decades-long concealment of sex abuse within the Church, and F.F.'s anger at suffering physical abuse and losing the opportunity for an education. And we recognize that their motives in filing this lawsuit may be largely idealistic rather than mercenary. However, it was their burden to convince the trial judge of the facts they asserted to satisfy the statute of limitations or to justify tolling that time limit. We find no basis to overturn the judge's conclusion that they did not produce credible evidence to satisfy their burden of proof. Therefore, we are constrained to affirm his order dismissing their complaint.