Taylor v. Litteer CV-94-78-SD 05/16/96 P UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Christopher Taylor

v. Civil No. 94-78-SD

Robert Litteer; Bov Scouts of America; Daniel Webster Council, Inc.; First Free Will Baptist Church, d/b/a Gilford Community Church

O R D E R

In this diversity action, plaintiff Christopher Taylor

asserts varied tort claims against defendants Robert Litteer, Boy

Scouts of America (BSA), Daniel Webster Council, Inc., of the

BSA, and the First Free Will Baptist Church, d/b/a Gilford

Community Church (GCC or the Church). Said tort claims arise out

of the alleged sexual assault of Taylor by Litteer in 1984 when

Litteer was Taylor's Boy Scout troop leader.

Presently before the court are defendant G C C 's motion to

dismiss,1 a motion by defendants BSA and Daniel Webster Council

1G C C 's motion to dismiss is herewith converted to a motion for summary judgment as provided for by Rule 1 2 (b), Fed. R. Civ. P. In light of the court's similar conversion of Litteer's motion (document 33), the numerous deposition excerpts appended to the Church's motion, and plaintiff's explicit consent to such to join in the Church's motion, and defendant Litteer's similar

motion to join in the Church's motion. Plaintiff has objected to

the motion to dismiss and to each of the motions to join. Both

the Church and Litteer have filed reply memoranda to plaintiff's

objection directed at G C C 's motion to dismiss.

Background

Reserving further elaboration for the Discussion section,

infra, the underlying facts of this matter are briefly summarized

as follows. Taylor asserts that he, at the age of 11, was

sexually abused by defendant Litteer in August 1984. Since that

time, plaintiff has described himself as a "depressed person,"

but never cognitively knew why he was severely down and depressed

until a December 1993 counseling session with his therapist. Dr.

Joel Freid. It was soon after December 1993 that Taylor, with

the assistance of Dr. Freid, made a causal connection between his

years of depression and the August 1984 episode of sexual abuse.

Plaintiff filed his complaint in this court on February 26, 1994.

procedure, see Plaintiff's Objection 5 3, the court will consider the arguments herein made through the prism of summary judgment. Accord Puerto Rican-American Ins. Co. v. Beniamin Shipping Co. ,

(1st Cir. 1987) (where there is "no unfair surprise and plaintiffs had ample opportunity to provide the court with any relevant information outside the pleadings, and in fact, did so," court may convert motion to dismiss to summary judgment motion without prior notice to parties).

2 Discussion

1. Summary Judgment Standard

The entry of summary judgment is appropriate when the

"pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law."

Rule 56(c), Fed. R. Civ. P. Thus, the role of summary judgment

among the array of pretrial devices is to "pierce the boilerplate

of the pleadings and assay the parties' proof in order to

determine whether trial is actually reguired." Wynne v. Tufts

Univ. Sch. of Med.,

(1st Cir. 1992), cert.

denied,

(1993).

Among the guidelines to be followed by the court in assaying

the summary judgment record is "to interpret the record in the

light most hospitable to the nonmoving party, reconciling all

competing inferences in that party's favor." McIntosh v.

Antonino,

(1st Cir. 1995) (citation omitted).

"Nonetheless, a party contesting summary judgment must offer the

court more than posturing and conclusory rhetoric."

(citations omitted).

The First Circuit has further recognized that "[g]uestions

anent the applicability and effect of the passage of time on

3 particular sets of facts often are grist for the summary judgment

mill." I d . (citing, inter alia, Rivera-Muriente v. Agosto-

Alicea,

(1st Cir. 1992)). As such, "when a

defendant moves for summary judgment based on a plausible claim

that the suit is time barred, the onus of identifying a

trialworthy issue customarily falls on the plaintiff."

(citing Morris v. Government Dev. Bank,

(1st

Cir. 1994) ) .

2. Statute of Limitations and the Discovery Rule

Defendant GCC moves to dismiss the instant action on the

ground that plaintiff is barred from bringing same due to the

limitations period set forth in New Hampshire Revised Statutes

Annotated (RSA) 508:4, I, and 508:8 (1983 and Supp. 1994).

Defendants Litteer, BSA, and Daniel Webster Council move to join

in such motion, see documents 71, 73, and such permission is

herewith granted.

In counterargument, Taylor maintains, consistent with the

position taken in his opposition to the defendants' prior motions

on this issue, that the pertinent statute of limitations was

tolled in this case under the discovery rule.

4 a. Law of the Case

Plaintiff essentially argues that the instant motion to

dismiss should be denied in order to harmonize the disposition of

same with the court's prior rulings of October 24, 1994, and

December 20, 1994. Plaintiff's Objection 5 6. "[J]udges in

ongoing proceedings[, however,] normally have some latitude to

revisit their own earlier rulings." United States v. Lachman,

(1st Cir. 1995); see also Commercial Union Ins. Co.

v. Walbrook Ins. Co.,

(1st Cir. 1994) ("the law

of the case is a prudential doctrine and does not serve as a

absolute bar to . . . reconsideration of an issue") (citation

omitted).

"Thus, the court may reconsider previously decided guestions

in cases in which there has been an intervening change of

controlling authority . . . ." Leslie Salt Co. v. United States,

(9th Cir.), cert, denied sub nom., Cargill,

Inc. v. United States, ___ U.S. ___ , 116 S. C t . 407 (1995); see

also N.L.R.B. v. Coca-Cola Bottling Co.,

(2d Cir.

1995) (same). Recent decisions from the New Hampshire Supreme

Court have altered the focus of inguiry in "discovery rule" cases

such that the court is compelled to reconsider the issue as it

applies to the instant set of facts.

5 b. Ascertaining the Limitations Period

Whereas " [a] cause of action . . . arises once all of the

necessary elements are present," Conrad v. Hazen,

,

(1995), a "'cause of action does not

accrue until the plaintiff discovers, or in the exercise of

reasonable diligence should have discovered, both the fact of

[an] injury and the cause thereof," i d . at 251,

(quoting McCollum v. D'Arcv,

,

(1994) ) .2

In 1986, the legislature amended the statute of limitations for personal actions.3 The new statute codified the discovery rule but reduced the limitations period to within three years "of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of." RSA 508:4, I (Supp. 1994) (post-1986 statute). The amended statute applies "to all causes of action arising on or after July 1, 1986." Laws 1986, 227:22, II.

I d . at 251,

; see also McLean, supra note 3, 769

F. Supp. at 30-31 (noting legislative revisions).

2This definition of accrual is generally referred to as the "common-law discovery rule." See

,

.

3Prior to the legislative recasting in 1986, the statute of limitations only spoke in terms of a span of years and the discovery rule existed as an animal born of the common law. See McLean v. Gaudet,

, 30 n.2 (D.N.H. 1990).

6 Accordingly, "a plaintiff who alleges an injury based on a

defendant's conduct that occurred prior to July 1, 1986, but

where either the injury or its cause was not discovered until

sometime after that date, would have the benefit of the six-year

statute of limitations and the common law discovery rule." Id.

at 252,

. In so holding, the court thus de-linked

the determination of the appropriate limitations standard from

the (more complex) determination of accrual date, focusing

instead on "the time when the act occurred . . . ."

Insofar as defendant's conduct allegedly took place in 1984,

the court finds and rules that, without the aid of the discovery

rule, the six-year limitations period here controls. However,

given Taylor's disability of infancy at the time of the alleged

incident, and again without the benefit of some tolling

mechanism, the limitations period for the instant cause of action

would have expired on February 18, 1993, two years after

plaintiff's eighteenth birthday. See RSA 508:8.

b. Invocation of the Discovery Rule

New Hampshire "first developed the discovery rule as a

method of tolling the statute of limitations 'to facilitate the

vindication of tort victims' rights.'"

,

(guoting Heath v. Sears, Roebuck & Co. ,

7

,

(1983)). The discovery rule

requires "'that the interests of the opposing parties be

identified, evaluated and weighed in arriving at a proper

application of the statute [of limitations].'" Rowe v. John

Deere,

,

(1987) (quoting

Shilladv v. Elliot Community Hosp.,

,

(1974)). Thus, bound up within the discovery rule is an

inherent policy consideration "concerned with 'the unfairness

which would result to a plaintiff blamelessly ignorant of [his]

injury whose action would be cut off before [he] was aware of its

existence.'" I d . at 22-23,

(quoting Shilladv,

supra,

,

).

Taylor argues that

[t]his is clearly not a case where the statute of limitations begins to run simply because of the fact that the abuse occurred in 1984 and Chris has always had some memory of it. Rather, this is a case which requires the court to apply the discovery rule and determine when Chris should have or did in fact make the connection between the abuse which took place in 1984 and his injuries thereafter.

Plaintiff's Memorandum of Law at 8-9. In plaintiff's view,

because he "did not know or understand that there was any

connection between being assaulted as a minor by Robert Litteer

in 1984 and his feelings of low self-esteem and depression during his late teenage years," i d . at 9, the discovery rule should

apply to toll the statute of limitations.

c. Application of Recent Precedent

The foregoing analysis merely serves as a prelude to the

precise issue before the court: Is an individual in plaintiff's

position entitled to invoke the discovery rule under the

circumstances alleged?

The New Hampshire Supreme Court recently considered the

guestion of the discovery rule's applicability in situations

similar to the one presently at bar in the consolidated appeal of

Grover v. Roman Catholic Bishop of Manchester and Carnevale v.

MacRae, No. 94-550 (N.H. Sept. 28, 1995).4 Relying on its

holdings in Conrad and Rowe, the court held that plaintiffs who

are "fully aware of alleged sexual abuse sufficient to apprise

them that their rights had been violated" may not invoke the

discovery rule. Grover, supra, slip op. at 1.

Thus, in the context of suits based on unrepressed memories

4This court of the United States solemnly acknowledges that " [a] federal court sitting in diversity jurisdiction and called upon in that role to apply state law is absolutely bound by a current interpretation of that law formulated by the state's highest tribunal." Daigle v. Maine Medical Ctr., Inc.,

(1st Cir. 1994) (citing Commissioner v. Estate of Bosch,

(1967)). of sexual abuse,5 the application of the discovery rule depends

not so much on plaintiff's cognizance of a causal connection

between the abuse and any resultant psychological or emotional

harms, but rather upon the seriousness of the harms experienced

at or near the time of the abuse. Compare Black Bear Lodge v.

Trillium Corp.,

,

(1993)

(assuming reasonable diligence in discovery of connection,

limitations period for defective construction claim "begins to

run only after a plaintiff has discovered the causal connection

between . . . injury and . . . act . . . ."), with

,

(if original injury of

sufficiently serious character, common law discovery rule

inapplicable), and Rowe, supra,

,

7-7 8 (same).

5Despite plaintiff's arguments otherwise, the court finds and rules that Taylor's memories of the abuse had been, at best, suppressed rather than repressed. See Plaintiff's Memorandum of Law at 9-10 ("Chris does not deny having knowledge since 1984 that he was abused by Robert Litteer, however, he forced those thoughts into the back of his mind and worked so hard at forgetting about those thoughts that he was unable to bring them back and use those memories as a tool to make a connection between his ongoing problems with depression and what occurred in 1984 until he began treatment with Dr. Freid in 1992.") (emphasis added). This case thus appears to be more akin to the facts presented in Sinclair v. Brill,

(D.N.H. 1994), than to those of McCollum, supra,

,

97. Neither case, however, lends much aid to the present inguiry, since McCollum involved memory repression, and fraudulent concealment was at the heart of Sinclair.

10 (1) The "Awareness" in Grover

In Grover, "both [plaintiffs] admit that they remember the

alleged sexual abuse and only claim unawareness of the

psychological damage resulting therefrom." Grover v. Roman

Catholic Bishop of Manchester, No. C-93-1330, slip op. at 5

(Hillsborough County, N. Dist., June 21, 1994) (Conboy, J.).

Moreover, "both plaintiffs allege that non-discovery of the

causal connection between the alleged physical acts and the

alleged psychological harm was attributable to the alleged

physical acts." I d . at 7. Thus, the superior court concluded,

"These cases must be reviewed in the context of a plaintiff who

is aware of the alleged physical actions, and the wronqfulness

thereof, but alleges delayed awareness of the connection between

the alleged physical actions and the asserted psychological

harm." I d . at 5 (emphasis added).

In a subseguent order in the Grover case. Justice Conboy

stated that "there is no guestion that the Plaintiffs [herein]

allegedly suffered more than 'nominal' injuries . . . ."

Interlocutory Appeal from Ruling at 4.6 Despite having denied

6Indeed, both the state and federal courts of this district have recognized that sexual assault is "inherently injurious in the most obvious sense that [it] could not be performed . . . without appalling effects on [the] mind as well as forbidden contacts with [the] body." Vermont M u t . Ins. Co. v. Malcolm,

,

(1986); see also Pennsylvania Millers Mut. Ins. Co. v. Doe,

(D.N.H. 1994)

11 defendants' motion to dismiss on limitations grounds. Justice

Conboy allowed the interlocutory appeal, noting that "[t]he

Supreme Court should be given the opportunity to determine

whether the holding in Rowe is determinative in 'disassociation'

cases where plaintiffs allegedly do not realize the causal

connection to their injuries but nonetheless were on notice of

violations of their rights when the acts complained of occurred.

A determination of this issue at this stage of the proceedings

will either terminate the litigation or substantially focus the

remaining issues." I d . at 5.

(2) The "Injuries" in Conrad

The plaintiff in Conrad admitted that her alleged sexual

assault "experience was 'devastating and extremely painful' and

that following the assault '[s]he felt dirty, sick and scared.'"

,

(alteration in

Conrad) . Such injuries, the court opined, "would appear to be

'sufficiently serious to apprise [plaintiff] that a possible

violation of [her] rights had taken place . . . .'" I d . (second

alteration in Conrad) . However, "that determination is a

guestion of fact that should be decided by the trial court in the

first instance."

.

(same), aff'd without opinion,

(1st Cir. 1995).

12 (3) Plaintiff's Recollections

The factual parallels between the state cases and the case

at bar are remarkable for their similarity. Given the New

Hampshire Supreme Court's aseptic treatment of the questions

transferred in Grover, see Grover, supra, slip op. at 1 , in

conjunction with its rulings in Conrad, see

,

, and in recognition of this

court's absolute deference to such high court pronouncements on

matters of state law, see

,

,

the court herewith finds and rules that whether plaintiff will be

permitted to avail himself of the salutary effects of the

discovery rule turns upon the fact-driven inquiry regarding

whether plaintiff's "injuries would appear to be 'sufficiently

serious to apprise [him] that a possible violation of [his]

rights had taken place . . . Conrad, supra,

,

(quoting

,

) .

Appended to the Church's motion are the deposition

transcripts of Mark H. Wright, a psychologist who spoke with

plaintiff shortly after the alleged incident; Carole A. Taylor,

plaintiff's mother; and the plaintiff. For the purposes of

determining whether there exists a genuine issue of material fact

regarding the seriousness of plaintiff's injuries such that the

13 discovery rule here becomes applicable, the court focuses upon

plaintiff's own testimony regarding the underlying facts.

Although plaintiff testified that he did not become

"severely depressed until 1991," Deposition of Christopher N.

Taylor at 27, immediately after the assault he did exhibit the

emotions of feeling afraid, frightened, ashamed, sad, "depressed

in some measure," i d ., and a lowering of his self-esteem, i d . at

29. Taylor began to experience difficulties in trusting

individuals who were in a position of authority, including but

not limited to defendant Litteer, his teachers, and his parents.

I d . at 2 8.

Upon inguiry from counsel for the BSA, Attorney Robert

McDaniel, plaintiff testified that no event in his childhood up

through the age of eighteen troubled him as much as the alleged

assault by defendant Litteer. I d . at 36.

Q. After the assault occurred, the morning after it occurred, when you woke up, was it one of the first things you thought of? A. Yes. Q. Did you think of it the next day? A. Yes. Q. How many days was it before it wasn't the first thing that you thought of in the morning? A. Quite a while. Two orthree weeks. Q. And then was there a longer period before you had a day where you didn't think of it at all? A. Yes. Q. Have you ever had a day that you didn't think of it on some level? A. Yes. Q. You have.

14 A. Is when I started blocking it out. Q. Okay. When was the first day that you didn't think of Mr. Litteer's assault? A. Somewhere around two months after the assault.

I d . at 36-37.

However, plaintiff's ability to suppress his memory of the

event was not without its limitation.

Q. And would you find growing up that from time to time an event or a sound or seeing his house or an aroma would bring that memory back in and you couldn't keep it out? A. It would bring it out -- in, but it would only last a couple seconds, because I had gotten so used to the fact of blocking it out. Q. Okay. So from time to time through your adolescence, it would haunt you, wouldn't it? A. Yes. Q. Would it be fair to say that this sexual assault has basically haunted your entire young adulthood? A. Yes.

I d . at 37-38.

One or two years after the alleged incident involving

Taylor, Litteer was convicted in state court of sexual assault

upon young boys other than plaintiff. Prior to the state

criminal trial, plaintiff had been guestioned by the Gilford

police at his parents' home. I d . at 46. At one point during the

interview, plaintiff began to cry, brought on by his "being

scared, the still being frightened from the incident, not knowing

if anything was going to happen to me . . . ." I d . at 47-48.

Q. When you learned about these criminal cases

15 brought against Mr. Litteer at age 12, were you aware that sexual assault on young boys was a crime? A. I don't think I was aware until the conviction of those cases. Q. Did you understand that by sexually assaulting other Boy Scouts, that Mr. Litteer had done something very, very bad indeed? A. Yes. Q. And similarly, is it fair to say that you understood that by sexually assaulting you, he had done something bad? A. Yes.

I d . at 44-45.

As a result of this reaction during the police guestioning,

plaintiff's parents decided to have Taylor speak with Mark

Wright, a therapist, "[b]ecause crying was out of [my] character

. . . ." I d . at 67.

Q. Did they ever ask you whether Litteer had touched you or been inappropriate? A. Yes, they have. Q. Pardon? A. Yes, they have. Q. Your parents did? A. Yes. Q. Did the police ask you? A. Yes. Q. You knew the answer to that guestion when they asked you, then, right? A. Yes. Q. But you didn't tell them that he had sexually molested you, did you? A. Correct. I told them no.7

7Whether plaintiff told his parents about the incident with Litteer is a matter upon which the evidence is in dispute. Compare Deposition of Mark H. Wright at 43-44 ("Carole said 'Mark, would you see Chris?' I said, 'Sure. What's up?' She said, 'Chris has reported to me that he has been sexually

16 Q. Why did you do that? A. I was scared, frightened, didn't know if anything would happen to me if I told, I didn't know if anything would happen to me from anyone else if I told, and just being afraid at that time, at such a young age.

I d . at 67-68. Mr. Wright's testimony corroborates this last

sentiment, wherein he stated that "[i]t was apparent to me that

[Taylor] knew that this was something he was feeling ashamed of,

embarrassed by. Mostly embarrassed by." Wright Deposition at

53.

However, Mr. Wright also testified that during the

counseling session with plaintiff,

A. . . . I had said to him, 'Do you know why mom asked you to be here?' And he said yes. And I said, 'Can you tell me what happened with Mr. Litteer?' Because she already told me that. And he said, 'I don't want to talk about it.' So he knew we were talking about Bob Litteer.

I d . at 56. Perhaps more significantly, Mr. Wright further

testified that he told Taylor,

abused.' I said, 'Abused? Oh, shoot.' You know, something to that effect. 'By whom?' She said, 'Bob Litteer from the Scouts.' I said, 'Oh, great.' So she said, 'Would you see him? He's' -- 'I want him to talk to you about all this.' And Isaid sure. So I set up an appointment. I believe I saw him the very next day.") with Deposition of Carole A. Taylor at 17 (whenever she or "anyone asked him if anything had happened to him with Mr. Litteer, he would start to cry and then say no " ) . However, because such conflict in the evidence, while ostensibly genuine, is not material to the discovery rule issue--which focuses the inguiry upon plaintiff's awareness--it simply plays no role in the summary judgment calculus.

17 A. . . . i t ' s really important that you understand that there are laws to help kids through this. I'm there. His parents are there. And that i t 's important that he be able to speak and say what happened to him and that he's not alone. Other things have happened to other kids. It's really important for him not to hold on to the secret because it's not good for him. Q. Okay. Did you think he understood you about that? A. Yes. Q. All right. So you advised Chris that he wasn't alone, that he had the support of his parents. A. Yes. Q. That he had the support of you, certainly, who he'd known for years? A. Yep. Q. As well as the opportunity to go to civil and law enforcement authorities to get help? A. Yes.

I d . at 52.

In light of the overwhelming evidence before the court on

the summary judgment record, and in view of the particularized

focus newly enunciated by this state's highest court when a

plaintiff argues to toll the statute of limitations, the court

finds and rules that plaintiff's invocation of the discovery rule

must be disallowed. The allegations herein made, if true, are

both grave and significant, but this court of the United States

is bound to act as dictated by law, not emotion. Plaintiff may

well have a right of action against the named defendants in this

litigation; however his remedy is precluded due to the interplay

between his own inaction and the seamless running of the

18 limitations period once his cause of action had arisen.

It is the opinion of the court that when the evidence before

it is viewed in toto--and in light of the parties' respective

summary judgment burdens--it is apparent that plaintiff's

injuries were sufficiently serious to apprise him that a

violation of his rights had taken place. Plaintiff's age at the

time of the alleged incident may have extended the applicable

limitations period from six to eight years,8 but by bringing suit

nearly nine and one-half years after the alleged event,

plaintiff's remedy is forestalled by the statute of limitations

bar. C f . Flanagan v. Grant,

(1st Cir. 1996)

(summary judgment appropriate "absent plaintiffs' showing of a

triable issue as to whether they or a reasonable person in their

position would have lacked sufficient notice of the cause of

their harm within the applicable time period") (citing Phinney v.

Morgan,

(Mass. A p p . C t .), review denied,

(1995)); Nuccio v. Nuccio,

, ___ (Me.

8Plaintiff's citation to Gould v. Concord Hosp.,

,

(1985), is inapposite to the limitations issue before the court for two reasons. First, Gould concerned a prior version of RSA 556:11, which limited tort actions by or against a deceased party to being brought within two years after the party's death, rather than RSA 508:8. Second, application of RSA 508:8 actually extends the period of time in which an action will be considered timely beyond the customary three--or in this action six--years in which a plaintiff is otherwise reguired to bring a personal injury action.

19 1996), answering question certified from ,

(1st

Cir. 1995) (even when childhood sexual abuse victim alleges

repressed memory of event, "the victim's claims accrue at the

time of the alleged abuse or when the victim reaches the age of

majority") (citing McAfee v. Cole,

(Me. 1994)).

Accordingly, G C C 's motion to dismiss must be and is herewith

granted. By virtue of the other defendants' joinder in the

Church's motion, such ruling extends to the claims brought

against them as well. This action was thus brought out of time

against all defendants and, as such, is herewith dismissed in its

entirety.9

Conclusion

For the reasons set forth herein, defendant Gilford

Community Church's motion to dismiss (document 70) is granted.

The motions to join in the Church's motion to dismiss filed on

behalf of Robert Litteer (document 71) and the Boy Scouts of

America and the Daniel Webster Council (document 73) are each

granted. Plaintiff's motion to compel signature for medical

authorizations (document 87) is denied as moot.

9In conseguence thereof, plaintiff's motion to compel signature for medical authorizations (document 87) is denied as moot.

20 The clerk of court is directed to enter judgment in

accordance with the provisions of this order.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

May 16, 1996

cc: Charles G. Douglas III, Esg. Edward D. Philpot, Jr., Esg. Robert E. McDaniel, Esg. David Woodbury, Esg.

21