By Michael Tarrant
Eaton v. Prior, 2012 VT 54
Today’s case began rather innocuously as an action against Plaintiff’s former employer and supervisor for sexual assault and ended up as an argument about polygraphs and statutes of limitation. As is so often true in life—what starts out simply ends up a convoluted, complicated mess.
Back in July 2004, Plaintiff filed a lawsuit against her former employer and supervisor, alleging that she had been sexually assaulted on the job. The parties agreed: that both Plaintiff and her former supervisor would submit to a polygraph in order to determine the credibility of Plaintiff’s claim; that a certain polygraph examiner (Polygrapher) would be employed to perform the test; and that the results would be admissible at trial. The decision to employ Polygrapher would ultimately prove to be the proverbial flap of the butterfly wing that would change the course of Plaintiff’s lawsuit forever.
In October 2004, Polygrapher administered the test to Plaintiff. His report concluded that Plaintiff was not truthful in her allegation of sexual assault. The test, however, did not “seem right” to Plaintiff, and three weeks after the test, Plaintiff’s attorney wrote a letter to Plaintiff’s former employer and supervisor asserting that the test was “highly questionable, if not invalid,” citing Polygrapher’s failure to adhere to certain American Polygraph Association (APA) standards. Particularly, Plaintiff’s attorney cited Polygrapher’s failure to: consider Plaintiff’s mental state at the time of the test, to review the questions with Plaintiff prior to the test, and to record the entire test. Plaintiff’s attorney also alleged that Polygrapher exhibited signs of bias and negativity toward Plaintiff during the administration of the test.
In January 2005, Plaintiff submitted to another test by a different polygraph examiner. The results of this test were much more favorable to Plaintiff’s claim of sexual assault. Later that year, however, Plaintiff’s attorney was allowed to withdraw, and the trial court granted Plaintiff 60 days to either locate new counsel or enter her pro se appearance. Apparently Plaintiff did neither, and in March 2006 the Defendants moved to dismiss the complaint. Later that month, noting that Plaintiff had neither complied with its prior order nor responded to defendants’ motion, granted defendants’ motion to dismiss.
End of story? No, it gets more complicated.
Notwithstanding Plaintiff’s failure to respond to the issues surrounding her sexual assault lawsuit, Plaintiff was not idle. In March 2006, while Defendants were busy getting her lawsuit dismissed, Plaintiff filed a complaint with the APA, alleging that Polygrapher had failed to adhere to several APA standards of practice in administering the October 2004 test. Plaintiff repeated her complaints from her previous letter, and also alleged that Polygrapher had breached confidentiality by releasing the results of the test to the Vermont State Police (VSP). The APA responded in August 2006 that its investigation had revealed no violations of the APA’s by-laws and that the VSP had denied its request for Polygrapher’s licensing records.
In September 2006, Plaintiff subpoenaed all Polygrapher’s records relating to the October 2004 test. They asked the polygraph examiner who performed the January 2005 test to review the records, and he reported in November 2006 that the records left him “confused” as to what exactly happened. The examiner explained that because the records lacked “GSR tracing” (GSR stands for “galvanic skin response,” a.k.a. “sweating”) and did not include a video tape of the test, he could not analyze the test results properly.
Almost three years later, Plaintiff, now joined by her father, filed this pro se complaint against Polygrapher and the VSP. Here, Plaintiffs alleged that Polygrapher negligently administered the October 2004 test and that Polygrapher intentionally harassed Plaintiff causing her emotional distress which resulted in her failing the test and that Polygrapher breached confidentiality in disclosing the results to the VSP. Plaintiffs also alleged that Polygrapher and the VSP conspired to cover up Polygrapher’s misconduct and to improperly disclose the test results. Plaintiffs alleged resulting injuries of the lost ability to seek recovery for damages in the now dismissed July 2004 lawsuit, defamation of character, slander, emotional pain, anguish, emotional distress, loss of enjoyment of life, lost income, and medical expenses.
Polygrapher and the VSP moved separately for summary judgment, asserting that Plaintiffs’ claims were time barred under 12 VSA § 512(4), which requires claims for “injuries to the person” be brought within three years of the date of the discovery of the injury. Plaintiffs opposed this motion, arguing that they did not have sufficient knowledge of potential claims until they received the November 2006 report from the subsequent polygraph examiner, and therefore their complaint—filed in October 2009—was timely.
As to Polygrapher, the trial court rejected this argument, finding that Plaintiffs were aware of their grievances with him no later than March 2006—when Plaintiff filed her complaint with the APA alleging essentially the same complaints as in the current lawsuit. The trial court also found that Plaintiffs were aware of their grievances with the VSP no later than August 2006, when they received the APA’s letter indicating that the VSP was withholding information. Finally, the trial court rejected Plaintiffs’ arguments that the limitations period was tolled from 2004 to 2008 due to Plaintiff’s mental disability and that Plaintiffs’ claims were governed by a separate limitations statute applicable to actions “for recovery of damages for injury suffered as a result of childhood sexual abuse.”
On appeal, Plaintiffs make three arguments. First, while accepting that § 512(4)’s three-year limitations period governs their claim for emotional distress, they contend that the trial court erred in concluding that their action against Polygrapher arose as early as March 2006. Second, Plaintiffs argue that even if their claims arose by March 2006, that the limitations period was tolled due to Plaintiff’s inability to manage her affairs from mid-2004 to January 2008. Third, and finally, Plaintiffs argue that the trial court erred in barring their claims for economic damages resulting from the original 2004 lawsuit’s dismissal.
The SCOV rejects Plaintiffs’ first argument. Citing to the venerable Lillicrap v. Martin, the SCOV reminds us that an action accrues—and thus triggers the applicable statute of limitations—“when a plaintiff discovers or reasonably should discover the injury, its cause, and the existence of a cause of action.” Plaintiffs argue that notwithstanding their knowledge of the harm and its cause, they were not aware of a cause of action against Polygrapher until they received the subsequent polygraph examiner’s November 2006 report, and therefore their complaint, filed in October 2009, was timely.
Like McKayla Maroney, the SCOV is unimpressed. Both Plaintiff’s attorney’s letter at the end of 2004 and Plaintiff’s complaint to the APA in March 2006 contain essentially the same claims as the current suit, the only new information from the November 2006 report being the absence of the GSR tracing. This knowledge was sufficient to put the Plaintiffs on notice before the receipt of the November 2006 report.
Plaintiffs’ second argument is founded on 12 VSA § 551, which provides that the time a person is “insane” shall not be counted part of the limitations period. The SCOV has previously held that “insane” means that the “person’s mental state makes him unable to manage his business affairs or estate, or to comprehend his legal rights and liabilities.” In support, Plaintiffs rely on several letters written by Plaintiff’s psychotherapist. The most important letter indicates that the psychotherapist treated Plaintiff from 2004 to 2008, and during that period Plaintiff met the diagnostic criteria for post-traumatic stress disorder, that she needed help in functioning, and that her ability to manage her daily affairs was greatly impacted.
The trial court was not persuaded, however, noting that although the letters might show Plaintiff suffered trauma, they were insufficient to raise a genuine factual dispute regarding her capacity to pursue her legal rights due to the overwhelming evidence that Plaintiff actively sought to protect her legal rights during the relevant period. The SCOV finds no reason to disagree, and thus finds no error here either.
Plaintiffs finally find some limited traction with their third and final argument. Here, Plaintiffs assert that their claims for economic damages resulting from the dismissal of Plaintiff’s original 2004 lawsuit are separately governed by 12 VSA § 511, which provides a general six-year limitations period for civil actions. Although Plaintiffs raised this argument to the trial court, the trial court failed to rule on it.
The SCOV reminds us that “it is the nature of the harm done, rather than the plaintiff’s characterization of the cause of action, that determines which statute of limitations governs,” and that where the harm falls into more than one category, some claims may be barred while others are not. Here, because the trial court failed to rule on this argument, the SCOV remands for the trial court to consider whether the claims for economic harm are sufficiently distinct from the claims for emotional distress to be governed by the longer six-year limitations period.
Although not a huge win for Plaintiffs, they will at least get one more bite at the apple—curiously, that bite will be arguing for the survival of their claim for damages caused by the dismissal of the original lawsuit. And so we come full circle.