Lovelace v. Keohane

HODGES, Vice Chief Justice,

with whom ALMA WILSON and KAUGER, JJ. join, dissenting.

Today, the majority of this Court has held that a sexual abuse victim’s multiple personality disorder (MPD) had no effect on her ability to bring a clergy malpractice action within the two-year limitation period. Thus, the majority refuses to apply the discovery rule. I must dissent.

I.

The issue of when Lovelace discovered or should have discovered her injury and its cause presents a question for the trier of fact. “[T]he question of whether an action is barred by the statute of limitations in any particular case is one of fact where the facts are in dispute.” Barrington v. Hembree, 193 Okla. 340, 341, 143 P.2d 614, 616 (1943). The fact question disputed in this matter is when Lovelace acquired “sufficient information which, if pursued, would lead to the true condition of things ... to start the running of the statute of limitations.” Daugherty v. Farmers Coop. Ass’n, 689 P.2d 947 (Okla.1984).

The majority holds that Lovelace was “chargeable with the knowledge of the fact she was in some way injured” when she was diagnosed with “depression” in 1969. It reasons that the deciding factor is that MPD was not “inherently unknowable” at that time. However, the proper focus should have been on whether Lovelace knew, or should have known under the circumstances, of her injury and its cause. She alleges that it took years of psychotherapy combined with the priest’s confession to bring the memories of sexual abuse to her conscious mind.

This case is not unlike a medical malpractice action in which a piece of surgical equipment was negligently left in a patient. In such a case, this Court has applied the discovery rule despite the fact that the means to discover the misplaced item were readily at hand and despite the fact that the patient experienced painful symptoms long before the item was discovered. See Seitz v. Jones, 370 P.2d 300 (Okla.1961). In the present case, Lovelace should not be charged with knowledge of her injury and its cause merely because MPD may have been discoverable in the late 1960’s.

This case was before a federal district court on a motion to dismiss for failure to state a claim upon which relief could be granted. For purposes of such a motion, all facts stated in the complaint must be accepted as true and a plaintiff receives the benefit of all inferences from those facts. Shaw v. Valdez, 819 F.2d 965, 968 (10th *633Cir.1987). The case should be dismissed only if a plaintiff can prove no set of facts which would provide relief. Id.

Lovelace set out sufficient facts to state a cause of action. She should have been allowed to present evidence to the trier of fact concerning when she knew or should have known of the priest’s sexual abuse and its injurious effect.

II.

The majority’s holding is inconsistent with the policy considerations behind application of the discovery rule. The majority notes the Washington Supreme Court’s conclusion that the “discovery rule should be adopted only when the risk of stale claims is outweighed by the unfairness of precluding justified causes of action.” Tyson v. Tyson, 107 Wash.2d 72, 727 P.2d 226, 228 (1986). However, it fails to realize that the policy considerations articulated in Tyson weigh in favor'of applying the discovery rule to this case.

In Tyson, the plaintiff alleged that her father had sexually assaulted her from the time she was three years old until age eleven. She further alleged that the sexual assaults caused her to repress any memory of the acts until she entered psychotherapy fifteen years later. Through therapy, she claimed to remember the alleged acts and filed her complaint within one year.

The Tyson court noted that the purpose of statutes of limitation are to avoid the evidentiary problems inherent in stale claims. Id. 727 P.2d at 227. It reviewed cases in which it had applied the discovery rule and observed:

Because of the availability and trustworthiness of objective, verifiable evidence in the above cases, the claims were neither speculative nor incapable of proof. Since the evidentiary problems which the statute of limitations is designed to prevent did not exist or were reduced, it was reasonable to extend the period for bringing the actions.

Id. at 228.

The proposed evidence in Tyson, however, consisted solely of testimony from the plaintiff, family and friends, school teachers, and treating psychologists. After describing psychology as an imprecise discipline, the court reasoned:

It is proper to apply the discovery rule in cases where the objective nature of the evidence makes it substantially certain that the facts can be fairly determined even though considerable time has passed since the alleged events occurred. Such circumstances simply do not exist where a plaintiff brings an action based solely on an alleged recollection of events which were repressed from her consciousness and there is no means of independently verifying her allegations in whole or in part.

Id. at 229. Thus, the “subjectivity” of Tyson’s claim persuaded five of the nine justices to refuse to apply the discovery rule. In response, the Washington Legislature amended its statute of limitations to provide a person in Tyson’s situation the benefit of the rule.

Lovelace, however, is not relying solely on her recollection of previously repressed events. She claims to have a taped admission from the priest in which he relates the sexual abuse. Yet, the majority refuses to apply the discovery rule despite the presence of objective verifiable evidence that minimizes the risk that her claim is stale. The trier of fact should be allowed to hear evidence of her claim along with evidence concerning her knowledge of the injury and its cause.

The set of facts Lovelace alleges would clearly satisfy the Tyson court’s “objective verifiable evidence” test. These facts would also satisfy the two-prong test developed in Meiers-Post v. Schafer, 170 Mich.App. 174, 427 N.W.2d 606 (1988). The Schafer court held that a sexual abuse victim could bring an action after the time allowed by the statute of limitations if she could prove to the trier of fact that: (1) she had psychologically repressed the memory of the facts upon which the claim was predicated; and (2) there was corroborating evidence that the sexual abuse actually occurred. Id. 427 N.W.2d at 610. This test seems to strike a fair balance between the *634risk of stale claims and the unfairness of precluding justifiable causes of action.

When asked, most courts have allowed victims of sexual abuse the benefit of the discovery rule if they have repressed the memory of the traumatic events. Nicolette v. Carey, 751 F.Supp. 695 (W.D.Mich.1990) (applying Michigan law); Johnson v. Johnson, 701 F.Supp. 1363 (N.D.Ill.1988) (applying Illinois law); Evans v. Eckelman, 216 Cal.App.3d 1609, 265 Cal.Rptr. 605 (1990); Mary D. v. John D., 216 Cal.App.3d 285, 264 Cal.Rptr. 633 (1989); Snyder v. Boy Scouts of America, Inc., 205 Cal.App.3d 1318, 253 Cal.Rptr. 156 (1988); DeRose v. Carswell, 196 Cal.App.3d 1011, 242 Cal.Rptr. 368 (1987); Callahan v. State, 464 N.W.2d 268 (Iowa 1990); Schafer, 427 N.W.2d 606; E.W. v. D.C.H., 231 Mont. 481, 754 P.2d 817 (1988); Osland v. Osland, 442 N.W.2d 907 (N.D.1989); Tyson v. Tyson, 107 Wash.2d 72, 727 P.2d 226 (1986) (rule applies when “objective verifiable evidence” is present); Kaiser v. Milliman, 50 Wash.App. 235, 747 P.2d 1130 (1987); Hammer v. Hammer, 142 Wis.2d 257, 418 N.W.2d 23 (App.1987). But see Baily v. Lewis, 763 F.Supp. 802 (E.D.Pa.1991) (applying Pennsylvania law); Lindabury v. Lindabury, 552 So.2d 1117 (Fla.Dist.Ct.App.1989); Whatcott v. Whatcott, 790 P.2d 578 (Utah App.1990). See also Petersen v. Bruen, 106 Nev. 271, 792 P.2d 18 (1990) (plaintiffs claim is not barred if there is clear and convincing evidence of sexual abuse by named defendant). The policy considerations underlying the discovery rule should compel the same result for Lovelace.

Perhaps what is most disturbing about today’s majority pronouncement is its apparent refusal to recognize MPD and other conditions involving repression of the memory of severely traumatic events. If the facts are as Lovelace alleges, this case is one of the strongest imaginable in terms of documentation of the abuse that occurred. By refusing to apply the discovery rule to such a compelling set of facts, the majority forecloses the opportunity for most victims of sexual abuse to pursue a legal remedy if they have repressed the memory of the traumatic events. Lovelace should have been allowed to present her evidence to the trier of fact.