Opinion
Civil Action No. 3:99-CV-1336-P.
August 24, 2000.
MEMORANDUM OPINION AND ORDER
Now before the Court for consideration are Defendant, Maurice Grossman's Motion for Summary Judgment filed May 17, 2000; Plaintiff's Brief in Support of Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Rule 56(f) Motion filed June 14, 2000; and Defendant's Reply filed June 22, 2000. After reviewing the briefing, the relevant law, and all of the available evidence, the Court hereby GRANTS Defendant's Motion for Summary Judgment and DENIES AS MOOT Plaintiff's 56(f) Motion for an extension of time for discovery.
I. Background
Plaintiff Jane Doe was born on October 24, 1965 to the defendant, Maurice Grossman, and Doe's mother, Grossman's wife at the time. At age three, plaintiff's parents separated. Eventually, plaintiff and her mother moved to Florida, and defendant moved to New York. Plaintiff continued to visit her father periodically after the separation. Plaintiff claims on December 24, 1996, she began to have spontaneous memories of sexual abuse at the hands of her father. On December 15, 1998, plaintiff filed this lawsuit, seeking to recover for the alleged abuse that occurred from 1965 until approximately 1979.
Defendant now seeks summary judgment on the basis of the claims being barred by the applicable statute of limitations. The parties agree on the applicable limitations period for sexual assault of a minor. Ordinarily, Texas applies a five-year limitations period for sexual assault claims. Tex. Civ. Prac. Rem. Code § 16.0045 (West Supp. 2000). However, the statute of limitations for a minor's claim tolls until the minor reaches eighteen years of age. Tex. Civ. Prac. Rem. Code § 16.001 (West Supp. 2000). In most cases of sexual assault of a minor, this would require the victim to file a claim no later than the victim's twenty-third birthday. Clearly, plaintiff in this case did not file her claims within that prescribed period. However, she claims that the discovery rule applies to her claims and tolls the statute of limitations period, rendering her claims timely. The applicability of the discovery rule is the only issue before the court today.
Generally, the statute of limitations in force at the time suit is filed provides the applicable limitations period. See Whittle v. Mcorp Properties, 17 S.W.3d 718 (Tex.App. — Amarillo 2000, n.w.h.). Therefore, the Court will apply the five year statute of limitations rather than the two year period in place at the time the abuse occurred.
II. Discovery Rule
Generally, a cause of action accrues when a wrongful act causes a legal injury, even if the fact of the injury is not discovered until later and even if all resulting damages have not yet occurred, See Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 262 (Tex. 1994). However, limited exceptions exist under Texas law for delaying the commencement of the limitations period. The discovery rule is one of those limited exceptions that delays the accrual of a specific type of action. See S.V. v. R.V., 933 S.W.2d 1, 4-6 (Tex. 1996) (discussing the difference between the discovery rule and other means of delaying accrual).
The discovery rule is a plea in confession and avoidance; thus the party seeking to assert it must affirmatively plead or otherwise raise the discovery rule. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517-78 (Tex. 1988). The discovery rule applies to those cases "in which the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable." S.V. v. R.V., 933 S.W.2d at 6 (internal quotations omitted). If the discovery rule applies, it delays accrual of a cause of action until the plaintiff discovers, or through the exercise of reasonable care and diligence should have discovered, the nature of the injury. See KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).
In the summary judgment context, the defendant bears the burden to conclusively establish the affirmative defense of limitations. See KPMG, 988 S.W.2d at 748. "Thus, the defendant must (1) conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been pleaded or otherwise raised, by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered the nature of its injury." Id.; see also Woods, 769 S.W.2d at 518 n. 2. Under the second prong of this burden, defendant must initially show either that the discovery rule does not apply or that plaintiff did not plead or otherwise raise the issue. See Tanglewood Terrace, Ltd. v. City of Texarkana, 996 S.W.2d 330, 336 (Tex.App.-Texarkana 1999, no writ).
On June 20, 2000, this Court entered an order granting defendant's unopposed motion to abate discovery pending the Court's ruling on whether plaintiff's claims were inherently undiscoverable. Plaintiff requested, and defendant seems to not oppose, more time for discovery as to the issue of objective verifiability. Therefore, the only issues before the Court is whether Plaintiff's claims were inherently undiscoverable and whether there is a genuine issue of material fact as to when the plaintiff, exercising reasonable diligence, should have discovered the nature of her injuries. In analyzing the discovery rule, the Court first must determine whether the alleged sexual abuse is the kind of injury that plaintiff did not discover or a reasonable person would not discover during the applicable statute of limitations. If the claims fall within the category of "inherently undiscoverable," then the Court must look to the evidence to determine when plaintiff became aware of the abuse or should have exercised reasonable diligence in investigating her injuries. The first question goes to the applicability of the discovery rule while the second question determines the end of the tolling period.
III. Inherently Undiscoverable
The Texas Supreme Court has addressed the issue of inherently undiscoverable claims in a variety of contexts. "The common thread in these cases is that when the wrong and injury were unknown to the plaintiff because of their very nature and not because of any fault of the plaintiff, accrual of the cause of action was delayed." S.V. v. R.V., 933 S.W.2d at 7. To be inherently undiscoverable, the injury need not be impossible to discover. Rather, "[a]n injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence." Id.
Very few cases in Texas have attempted to answer the question of whether childhood sexual abuse is an inherently undiscoverable injury. The Texas Supreme Court has addressed the issue only once, and held that the discovery rule may apply in cases involving allegations of childhood sexual abuses, but that such a determination must be made on a case by case basis. See S.V. v. R.V., 933 S.W.2d at 8 (assuming without deciding that plaintiff could satisfy the inherent undiscoverability of alleged childhood sexual abuse). In S.V. v. R.V., the plaintiff claimed that her father sexually abused her, but that she unconsciously repressed all memory of the abuse for years. Immediately following her twentieth birthday, plaintiff began seeing images of her father abusing her. Eventually, she remembered several instances of abuse. Filing the suit four months beyond the obvious statute of limitations, plaintiff claimed that the discovery rule applied to toll the limitations period to the day she began to suspect and remember the childhood abuse. Id. at 3. In addressing the applicability of the discovery rule to the plaintiff's claims, the Texas Supreme court assumed without deciding that allegations of childhood sexual abuse are inherently undiscoverable. Id. at 8. However, in that particular case, the court refused to apply the discovery rule because there was no objectively verifiable evidence of the abuse. Id. at 18, 20 (refusing to allow recovered memory or expert opinion to serve as objectively verifiable evidence within the discovery rule).
Three lower courts in Texas have also addressed the issue. In L.C. v. A.D., 971 S.W.2d 512 (Tex.App.-Dallas 1997, writ denied), a court of appeals assumed without deciding that the discovery rule applied to another instance of childhood sexual abuse. The plaintiff denied having any memories of the abuse until February 1, 1990; however, during the course of treatment she had several different therapists attribute her physical and emotional problems to incest. Id. at 515. She admits that she was on notice of possible sexual abuse in her background as early as July 1989. Id. In light of her admission and the opinions of the several professionals who treated plaintiff, the court held that the statute of limitations period began to run of July 31, 1989, the latest day by which plaintiff had knowledge of facts which would cause a reasonable person to diligently make an inquiry to determine his or her legal rights. Id. at 516. The court then granted summary judgment because plaintiff did not file her claim until December 24, 1991, which was more than two years past the discovery date. Once again, the court did not address whether plaintiff's claims were inherently undiscoverable.
At the time of her complaint, plaintiff's claims were subject to a two-year statute of limitations period governing personal injury. The current five-year limitations period did not become effective until June 15, 1995. Tex. Civ. Prac. Rem. Code § 16.0045 (West Supp. 2000).
The only two Texas cases to address the issue head on seem to be Sanchez v. Archdiocese of San Antonio, 873 S.W.2d 87 (Tex.App.-San Antonio 1994, writ denied); and Marshall v. First Baptist Church of Houston, 949 S.W.2d 504 (Tex.App. — Houston (14th Dist.) 1997, no writ). In Sanchez, the fifty-seven year old plaintiff alleged to have suffered sexual abuse while attending the Immaculate Heart of Mary School in San Antonio as a child. Id. at 88. She claimed that a teacher at the school molested her, and that she reported this abuse to two priests who were affiliated with the school. Id. Because she suppressed her memories of the abuse, plaintiff claimed benefit of the discovery rule to toll the statute of limitations for the forty-five year lapse between the injury and her legal action. Id. at 89. The court found that plaintiff's reports to the priests indicate she knew the wrongful nature of the sexual abuse at the time it occurred. Id. at 90. Therefore, the injury was not inherently undiscoverable, and the discovery rule could not be applied to toll the applicable limitations. Id. at 91.
The court in Marshall reached the same result for the same reasons. 949 S.W.2d 504. In Marshall, a young man alleged to have been molested by the director of children's music in 1984, when he was twelve years old. Initially, he did not report the abuse to anyone. Then, in 1987, 1988, and 1989, plaintiff reported the abuse to various ministers at the church who made no response to plaintiff's complaints. Id. at 506. As in Sanchez, the Marshall court refused to apply the discovery rule to toll the statute of limitations because the plaintiff's reports of the abuse indicated his awareness of the wrongful nature of the actions. Because plaintiff was aware of the wrongful nature of the sexual abuse, his claims were not inherently undiscoverable. The Marshall court did, however, recognize that S.V. v. R.V. would allow a court to find that "some traumas are by nature impossible to recall for a time." Id. at 507.
In determining whether Plaintiff's claims are inherently undiscoverable, this Court will follow the lead of the Texas court's and assume that childhood sexual abuse is the type of injury that may be inherently undiscoverable. However, the Court must go further and determine whether the particular set of facts as alleged by Plaintiff, either she did not discover the injury during the proscribed statutory period or a reasonable person would not have discovered the abuse during that period. As stated before, the natural statute of limitations in this action expired on Plaintiff's twenty-third birthday. If Plaintiff became aware of the abuse prior to her twenty-third birthday, then her injuries are not inherently undiscoverable for the purposes of the discovery rule.
During Plaintiff's interview with Dr. Barry Mills, she reported that her childhood therapist, Dr. Epstein, suggested abuse during her sessions with him, but that she denied it. (Forensic Psychiatric Evaluation of Plaintiff by Barry Mills, M.D., Del's App. Exh B at 6). Defendant argues that under L.C. v. A.D., Dr. Mills' report indicates that Dr. Epstein put plaintiff on notice of the abuse which required her to use reasonable diligence to uncover the source of her injury. The situation bears little, if any, resemblance to that presented in L.C. v. A.D. The adult plaintiff in that case had been told by several different doctors and therapists of the possibility of incest in her past. See L.C. v. A.D., 571 S.W.2d at 515. Here, the fourteen-year-old patient was asked a question by her family's therapist about contemporaneous sexual abuse by a parent. The Court cannot find as a matter of law that the single question by a therapist would put a fourteen-year-old on notice to use reasonable diligence in uncovering the harmful nature of sexual abuse by a parent.
In a recent affidavit, Plaintiff denies that Dr. Epstein ever confronted her with the subject of sexual abuse. ( See Pl's Aff. ¶ 6). However, a non-moving party cannot use a self-serving affidavit to create a fact issue for the purpose of avoiding summary judgment. See Radobenko v. Automated Equipment Corp., 520 F.2d 540, 544 (5th Cir. 1975) (holding that allowing the non-movant to create a genuine issue of material fact based upon self-serving, contradictory depositions and affidavits undermines the "utility of summary judgment as a procedure for screening out sham issues of fact"). The statement to Dr. Mills has substantial indicia of reliability. The Court assumes Dr. Epstein broached the subject of abuse with Plaintiff during at least one session.
Defendant included as summary judgment evidence pages of Plaintiff's December 1996 diary. One of the diary entries states, "[a]bout [15/17] years ago our family therapist, Michael Epstein, in Miami, Fl. told my mom he wouldn't be surprised if Maurice molested me." (Del's App., Exh. A) (emphasis added). This conversation would have taken place some time between 1981 and 1983, when Plaintiff was between the ages of 16 and 18. According to the diary entry, her mother told her about Dr. Epstein's suspicions, but Plaintiff could neither confirm nor dispel the suspicions. (See Def's App., Exh. A). Plaintiff's diary also states that "4-5 years later I felt maybe [Dr. Epstein] was right, just something inside me. I asked my mom, she'd been divorced from him since I was 6, separated since, 3. Her response was, "NO!" No discussion, nothing — Just "He loved you and took care of you often. "I don't want to discuss this with you." she replied. We didn't discuss it again. But when I was 22-23, I asked her do you think Maurice molested me? "NO!" she said never skipping a beat, or taking a breath. That was the last time we discussed it." (Del's App., Exh. A).
These two diary entries demonstrate that prior to the expiration of the natural statute of limitations, Plaintiff knew or began to suspect her injuries so as to render those injuries inherently discoverable. Even if Plaintiff did not recall any specific instances of abuse at that time, she did suspect the abuse in her past. The discovery rule will not delay accrual of a cause of action where the plaintiff merely lacks the details of the injury. See L.C. v. A.D., 971 S.W.2d at 515 ("A party need not know the details of the evidence by which to establish the cause of action. It is enough that the party knows a cause of action exists in his or her favor." (internal citations omitted)). Accordingly, the Court finds Plaintiff's injuries were not inherently undiscoverable because she suspected the abuse prior to the expiration of the prescribed statute of limitations.
IV. Plaintiff's Discovery
In her diary, Plaintiff stated that she was twenty-two or twenty-three when she began to suspect Dr. Epstein was correct in suspecting sexual abuse in her past. It may be that she was twenty-three when this first happened, meaning that she was not aware of the injury within the prescribed limitations period. This might lead to a finding that her injuries were inherently undiscoverable. However, even if the injuries were inherently undiscoverable, Defendant may still obtain summary judgment by demonstrating Plaintiff waited more than five years from the time she "discovered" her cause of action to bring her claim. For purposes of the discovery rule, discovery "occurs when a plaintiff had knowledge of such facts as would cause a reasonably prudent person to make an inquiry that would lead to discovery of the cause of action." L.C. v. A.D., 971 S.W.2d at 514 (quoting Hoover v. Gregory, 835 S.W.2d 668, 671 (Tex.App.-Dallas 1992, writ denied)).
At the latest, Plaintiff began to suspect her father abused her when she was twenty-three years old. This information should have caused a reasonably prudent person to make inquiries that would lead to the discovery of the abuse. The only action Plaintiff took to discover the abuse was to initiate a single conversation with her mother. Plaintiff has received counseling for years and seems to be very comfortable with the idea of therapy. She reported to Dr. Mills that she received treatment from five different therapists over the course of the many years. She even stated in her diary entry that in December 1996, after she began to remember specific instances of abuse, she contacted Dr. Epstein and spoke with him for an hour about coping with these issues. (Del's App., Exh. A at 3). Rather than contact a therapist and seek professional help in discovering her injuries, Plaintiff waited over a decade to tile this action.
Childhood abuse is an incredibly devastating experience, especially when a parent inflicts sexual abuse upon a child at such a young age. However, if the statute of limitations is to serve any purpose, then victims must attempt to assuage or confirm suspicions of abuse within a reasonable time after those suspicions arise. No matter how understandable it may be that Plaintiff chose not to investigate her abuse, the law does not allow victims of sexual abuse to wait indefinitely to bring claims for their injuries.
V. Plaintiff's Rule 56(f) Motion
Plaintiff requests more time for discovery in order to find objectively verifiable evidence of her allegations. In light of the Court's ruling, this Motion is MOOT.
CONCLUSION
Defendant presented sufficient evidence for the Court to determine that Plaintiff discovered the alleged sexual abuse by her father no later than 1988. Plaintiff failed to file her claims within the prescribed five year statute of limitations period. Accordingly, defendant's motion for summary judgment is GRANTED. The Court DENIES AS MOOT plaintiff's motion for additional time for discovery.