Thursday, November 7, 2013

Subtle Discoveries


Clarke v. Abate, 2013 VT 52.

In September 2000, today’s Plaintiff, a 16-year old high school athlete, developed a hip injury playing soccer that caused her groin pain.  For the purposes of today’s case, we’ll call our Plaintiff, Teenager, even though she is now in her late 20s.

Teenager sought the help of Defendant Doctor, an orthopedic surgeon at the University of Vermont’s medical school.  Teenager’s parents initially went with her to her visits with doctor, but after the first few visits, Doctor told Teenager that she didn’t need her parents there.  Teenager continued to see Doctor weekly, alone, and sometimes after hours.  Oddly, there are no records of some of these visits.  Over the course of these many visits, Doctor slowly managed to convince Teenager that he was the only one who could help her.

The relationship migrated into the nonprofessional zone in late 2001 when Teenager began babysitting Doctor’s children.  Doctor paid Teenager an unusually high rate for her services, gave her his personal contact information, let her drive his car, and allegedly made “inappropriate comments” to her about his family.


Things seem to have gotten even weirder around March 2001, when Teenager was scheduled for the first of two surgeries.  At one of her unaccompanied visits with Doctor before the surgery, Doctor allegedly inserted his ungloved fingers into patient’s vagina—supposedly to better examine her groin injury.  He allegedly did so again on two other occasions, the last before Teenager’s second surgery in July 2002.  According to Doctor, these examinations “led him to the brink of discovering the source of her groin pain.” 

In August 2002, after Teenager’s second surgery, Teenager stopped seeing Doctor. 

When Teenager later recounted these events, she remembered feeling very confused by Doctor’s actions.  She had a feeling that he was behaving inappropriately, and she suspected he might actually be sexually violating her, but she was young and naïve, and unable to discern the boundaries between treatment and perverted indulgence.  Teenager relayed these events to her mother and sister, and later her college friends, who according to Teenager did not react or indicate that they thought Doctor was behaving inappropriately, although her friends said it was “weird.”  Teenager apparently put her concerns aside and moved on with her life.

In 2007, Doctor was arrested and charged with sexual assault on another female patient.  Like with Teenager, Doctor convinced this other patient’s parents not to accompany her on office visits, saw the patient after hours, did not wear gloves during vaginal exams, and had the patient convinced that he was the only one who could help her.  When Teenager saw the media reports on this case, as you might imagine, her suspicions she had set aside years earlier were confirmed.  Teenager stepped forward and reported to police.

In June 2009, Teenager filed a lawsuit against Doctor alleging sexual assault and battery and intentional or reckless infliction of emotional distress.  If you do the math, this was a little over seven years after the last time doctor “examined” Teenager’s groin from the inside.  Doctor, like a good defendant faced with charges that could potentially ruin his life, moved for summary judgment claiming that the six-year statute of limitations for child sexual abuse barred the action.

Based on statements made by Teenager to police in 2007, after she came forward and reported Doctor’s behaviors, and during a 2011 deposition in the civil case, the trial court concluded that Teenager knew or should have known that Doctor’s conduct was wrong when she turned 18 in 2002.  Specifically, the trial court decided that Teenager should have known Doctor was potentially committing abuse on the basis of the odd nature of Doctor’s “examinations,” the inappropriate relationship that subsequently developed between them, and, “most importantly,” Teenager’s statements indicating she had an inkling Doctor was not supposed to have his ungloved fingers up there.  More than six years had passed since that should-have-occurred epiphany, and trial court granted Doctor’s motion.  Teenager appealed.

On appeal, Teenager makes two arguments.  The first, which takes up all but a few paragraphs of the opinion, is whether the trial court erred in granting summary judgment to Doctor.  You may recall that summary judgment requires the court to look at the facts in a light that is most favorable to the nonmoving party.  According to Teenager, the trial court not only construed the facts in a light that was most favorable to Doctor, but also usurped the jury’s role in doing so.

At base, this appeal turns around the question of when Teenager “discovered” that Doctor sexually assaulted her.  This is because the applicable statute of limitations rule sets the bar at six years from the assault, or in the alternative from when the victim realized (discovered) she had been assaulted.  The idea is if a person doesn’t realize someone was being a pervert, or couldn’t reasonably expected to know with certainty, then the statute of limitations “tolls” until she knows or should have known enough to do something about it.

As you might imagine, whether a plaintiff knew or should have known that she was violated depends on the specific facts of a case.  This type of question is, as the SCOV notes up front, traditionally a question that should be answered by the jury, and not decided “as a matter of law” by the judge unless it appears that no reasonable jury could differ on the question.  The SCOV’s analysis looks at the trial court’s bases for its decision to determine whether the trial court should have let the jury decide whether Teenager knew or should have known Doctor’s conduct was inappropriate.

The trial court’s primary basis for granting Doctor summary judgment were the two statements teenager made to police in 2007 and then during her 2011 deposition.  The SCOV sets out several pages of excerpts from the transcripts of these statements. 

Teenager described during the interview, and the deposition, how Doctor’s facial expressions, sweatiness, and direct eye contact during these examinations made her feel guarded and like he was taking pleasure in her vaginal examination.  When Teenager relayed these events to her mother, sister, and friends, to see what they would say, they thought it was odd but “didn’t really respond in any alerting way, so I guess that’s normal.”  Teenager did note, however, that her friends thought it was a bit weird and “not appropriate.”

Teenager explained that, after developing this relationship with doctor during the course of him treating her injury, she “believed that he was the only one that would . . . research it” and help her recover.  She “always knew it was wrong in [her] heart,” but, being young, naïve, and sheltered, and absent justification from others, she had doubts about whether she was truly violated.  Teenager further described how, when she was done treating for her injury, she stopped seeing Doctor and babysitting for his family so that she didn’t have to feel controlled anymore.

The SCOV sets out these statements, and notes that a reasonable juror could find that Teenager knew by the time she finished treating with doctor that his vaginal examinations were a perverted excuse.  But, the SCOV says, given the uncertainty Teenager expressed during these interviews, a reasonable juror could also find that Teenager was a young girl who was on her guard and uncertain how to interpret a trusted Doctor’s sudden invasion into her private parts.  She had a “definite feeling” he was satisfying his own sexual desires, but her friends and family didn’t confirm them, and despite her misgivings, she “believed” doctor was merely trying to help her.

Interpreting these confusing and contradictory statements, and deciding whether Teenager knew or should have known Doctor was sexually assaulting her, was a question that the jury should have answered, says the SCOV.  Even if Teenager knew in her heart what Doctor was doing was wrong, taken as a whole Teenager’s statements are ambiguous and leave room for interpretation.  A jury could have gone either way given Doctor’s “position of trust and authority,” the location of Teenager’s injury, and the lack of a response from Teenager’s family to “affirm[] her vacillating concerns” about Doctor’s examinations.  The trial court got it wrong, says the SCOV, and should not have granted Doctor’s summary judgment motion based on teenager’s statements.

The SCOV likewise rejects the trial court’s other bases for concluding Teenager should have known she was violated: the “troubling” nature of Doctor’s ungloved examinations and the inappropriate and unprofessional relationship that developed between teenager and doctor.  Teenager did not dispute the facts Doctor set out in support of summary judgment, but, the SCOV says, the inferences to be drawn from those facts are anything but clear, and the trial court should have construed those facts in favor of Teenager, the nonmoving party.  In addition, the SCOV says, where there are conflicting inferences, the jury really should decide who gets the benefit of the doubt.

Given these facts, the SCOV finds that “reasonable minds could differ” on whether Doctor’s examinations, and the relationship that developed between Doctor and Teenager, should have alerted Teenager that Doctor was behaving inappropriately.  The same reasoning applies here as it did to Teenager’s statements.  Reasonable jurors could disagree on whether the unusual, invasive, and intimate nature of doctor’s examinations should have tipped teenager off to his wrongful behavior.  Reasonable jurors could also disagree on whether the close relationship between them, which had teenager dependent on doctor for treatment, and extended to include babysitting and use of Doctor’s car, “established a level of trust” that prevented teenager from making a definite conclusion about her suspicions.

Doctor points out a few facts that, in his opinion, support the trial court’s conclusion in his favor: Teenager stopped seeing Doctor about a month after the last of these “suspect examinations,” and her friends confirmed that his conduct was “really weird” and “not appropriate.”  But, the SCOV notes, Doctor last performed a vaginal examination on Teenager before her final surgery, after which Teenager’s treatment was complete.  Even though she said she didn’t want to feel controlled anymore, that doesn’t mean that she knew for sure he was behaving inappropriately.  In addition, Teenager’s friends’ statements, in light of the rest of the facts, don’t by themselves indicate that, as a matter of law, Teenager knew or should have known Doctor assaulted her.

There was a serious imbalance in the roles between Teenager and Doctor here, the SCOV says.  The rules tolling the statute of limitations based on discovery are based in equity, and apply where the plaintiff would have difficulty immediately understanding whether conduct was wrongful.  The nature of the relationship between the parties is an important factor in making this determination.  That is why the discovery rules generally apply where there is a “confidential or fiduciary” relationship, as this case perfectly exemplifies according to the SCOV. 

In short, the SCOV concludes, despite the facts Doctor points out, given the nature of the relationship between Teenager and Doctor, the trial court should not have dismissed Teenager’s case, it should have allowed the jury to weigh the facts to determine when Teenager should have known something was wrong.

The SCOV isn’t persuaded by Doctor’s other arguments in support of the trial court’s decision either.  Doctor claims that Teenager didn’t dispute the facts he set out in his summary judgment motion, and that these facts, including his statement that Teenager was “immediately aware” of Doctor’s wrongful conduct, support the trial court’s conclusion.  But, the SCOV points out, Doctor’s facts also indicate to the SCOV that the jury, not the trial court, should have decided whether Teenager knew or should have known that these wrongful acts constituted an assault claim. 

Doctor also claims that Teenager’s attorney conceded at the hearing on the summary judgment motion that Teenager was on “inquiry notice” of Doctor’s assault when she brought her suspicions to her family, and that she should have known that her suspicions meant he was doing something wrong.  But all Teenager’s attorney conceded, says the SCOV, was that Teenager questioned the appropriateness of doctor’s examinations early on.  This was not a concession sufficient to trigger the statute of limitations, says the SCOV.  Doctor loses.

Finally, the SCOV addresses the secondary, and minor, argument Teenager raises.  Teenager “mentioned” in her first complaint that Doctor fraudulently concealed the inappropriateness of his behavior, preventing her from realizing he was sexually assaulting her. Teenager apparently thought better of this angle later on, and didn’t mention fraudulent concealment in her second amended complaint.  Teenager then argued in summary judgment that Doctor’s actions in establishing a trusting relationship with Teenager, and insisting that he was the only one who could treat her injury, indicated that he fraudulently concealed the inappropriateness of his behavior.  The trial court rejected this argument because Doctor raised a valid defense (that Teenager knew or should have known she could sue him for sexual assault).

Doctor’s response to Teenager’s arguments about fraudulent concealment is to point out his knowledge defense, and to note that Teenager failed to plead fraudulent concealment.  The SCOV dismisses this secondary, and much less central, argument of Teenager’s as moot in light of its earlier decision on the main question.  The SCOV will remand to let the jury decide whether Teenager can proceed with her lawsuit, regardless of her fraud claim.  Teenager can argue fraud to the jury if she wants, but she didn’t plead it, and she can’t pursue it.

In the world of plaintiff’s attorneys, it is always wise to be cognizant of when your client’s case might have expired.  Fortunately for Teenager, the SCOV is giving her another chance to argue, to a jury, that her chance has not yet passed.


The heart of the SCOV’s decision lies in the difficult nature of the facts of the case.  From the parties’ pleadings, it is clear that Teenager knew early on that something was not right with Doctor and his unorthodox techniques, but the SCOV recognizes that knowing something is not right is potentially different than understanding that the law has been broken or that negligence has occurred.  Teenager will have to persuade a jury on remand just how different her perceptions were during this time.  Expect Doctor’s counsel to be aggressively skeptical that such hairs can be split. 

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