Courts - Minnesota State Supreme Court to consider case of recovered memory Defense opposes retroactive extension of the statute of limitations

By Barbara L. Jones

The Daily Record Newswire

MINNEAPOLIS, MN -- The Minnesota Supreme Court is currently considering whether a woman who claims she was sexually abused by her brother between 1974 and 1977, but did not recall it until 2005, may proceed with her lawsuit.

Repressed memory cases present courts with a difficult conundrum implicating competing policies. On the one hand, abusers should not be allowed to benefit from the fact that they traumatized a victim so much that it takes the victim years to recover the memory. On the other hand, a person accused of such conduct may not be able to effectively defend themselves decades after the alleged acts.

The matter of Lickteig v. Kolar came to the state high court in an unusual way. After a U.S. District Court judge dismissed the claim as untimely, the plaintiff sought review from the 8th U.S. Circuit Court of Appeals. In response, the federal appellate court sent the following certified questions to the Minnesota Supreme Court:

* Does Minnesota recognize a cause of action by one sibling against another sibling for sexual abuse that allegedly occurred when both were children and, if so, what are the elements of the cause of action?

* Does interfamilial immunity apply between siblings for such a tort committed when both were unemancipated minors where the lawsuit is brought when both were adults living in separate households?

* Does the statute of limitations in Minn. Stat. sec. 541.073 apply retroactively to the plaintiff's action, where she alleges she was abused between 1974 and 1977 but did not remember it until 2005?

The issues were originally raised by U.S. District Court Judge Paul Magnuson sua sponte during summary judgment proceedings in federal court, but it was the last question that most concerned the Supreme Court during oral arguments on Feb. 4 at the State Capitol Building.

The Minnesota court and the parties seemed to dispose of the first two issues by viewing the claim as one for battery and agreeing that there is no case law that creates immunity between siblings. Indeed, the court seemed a little perplexed about why the first question was even certified, given that the situation is covered by a cause of action for battery.

"The 8th Circuit doesn't want to make bad law if there is a case where consent really is an issue," attorney John Mack, representing the defendant, told the justices during oral arguments.

In his appellate brief, Mack stated, "Rather clearly, the District Court did not want to try this case (and the Eighth Circuit was notably hostile to it) and for good reason. The cause of action is 29 years old. Mr. Kolar has built a business, raised a family, and built a life for himself upon which others depend."

The Supreme Court focused on the vexing problem of the statute of limitations when the plaintiff claims he or she did not remember the abuse or did not know he or she was injured. The statute now in effect limits a claim to six years from when the plaintiff knew or should have known of the injury. That statute was passed in 1989.

The plaintiff argues that under the plain language of the statute -- which clearly establishes a discovery rule for tort cases -- her claim is timely, since she didn't remember the abuse until 2005 and commenced her case in 2007.

The plaintiff points to a 1990 Court of Appeals case, K.E. v. Hoffman, in support of the proposition that the 1989 statutory language is retroactive to conduct that occurred prior the statute's enactment.

The state Supreme Court has never ruled on the retroactivity of this particular statute.

A matter of intent

St. Paul attorney Jeffrey Anderson, who has carved a practice niche representing plaintiffs in sexual abuse cases, said he was involved in writing the statute and that it was absolutely intended to be retroactive.

"In plain English, unambiguous, it was intended to be retroactive," he said. "It's never been anything other than a clear expression of retroactivity. Plaintiff wins."

But the defense argues that the plaintiff's claim was already dead when the new limitations language was added in 1989, and the statute doesn't revive a claim that was untimely when the statute was enacted.

A second "extender" statute that allowed certain claims expired in 1992. The expiration of these "extenders" trumps the "had reason to know" language of the 1989 changes, the defendant says.

"The problem is that the 'knew or had reason to know' language is the only basis upon which the recovered memory doctrine may be applicable, and the 'knew or had reason to know' language dates from 1989, well after Ms. Lickteig reached the age of majority," the defense brief states.

The defense argues that the retroactive extension of the statute of limitations could in some circumstances be "legally tolerable," but the creation of a new "extender," i.e., recovered memory syndrome, which was not in existence at the time of the previous limitations statutes, is not.

Minneapolis attorney Gus Nicklow, who represents plaintiffs, said that the defense's argument does not work if the plaintiff did not remember the abuse and have the ability to connect the abuse to the injury. The statute does not refer to the date of the abuse, it refers to the date of the injury, he emphasized.

The statute begins to run when the plaintiff is able to make the connection between the abuse and the injury, Nicklow said. In this case, the claim expired before 1989 if there was no repressed memory, but not if there wasn't, he added.

Anderson said that the state Supreme Court considered, and rejected, a similar argument made against retroactivity in a 2002 case, Gomon v. Northland Family Physicians, Ltd. The Gomon case involved Minn. Stat. sec. 541.076, a four-year med-mal statute of limitations for cases commencing on or after Aug. 1, 1999. The court allowed the four-year statute of limitations to apply to a cause of action that accrued in 1996, even though the two-year statute of limitations previously in effect had already run.

"We decline respondents' request to graft a limitation -- exclusion of expired claims -- on section 541.076 because such a limitation is not expressed in the plain language. Although the legislature could have treated an expired claim such as the Gomons' differently than a claim that was not yet time-barred, nothing in the language of the statute or its effective date provision suggests the legislature intended such a result," the Gomon court said.

Noting that the 8th Circuit certified Lickteig even in the face of Gomon, Anderson said, "Courts torture [the statute] because they can't believe it can be true, or they don't like it."

And, many defense attorneys believe it is unfair to make any statute of limitations retroactive. "The statute of limitations can create a harsh outcome to an injured claimant, but it does serve to bring finality which is important to potential defendants and to the judicial system as a whole," said Minneapolis attorney Patrick Sauter.

"Everyone is naturally sympathetic to the injured claimant (and in particular to the victim of sexual abuse), especially when there is clear liability and clear injury. But when liability or damage is doubtful the retroactive application of the statute of limitations now creates new harm to what may be an innocent party (the alleged defendant)," Sauter said.

There are still limits

Nicklow said that language of the 1989 statute does not mean that there is effectively no statute of limitations because a plaintiff claims memory loss.

The parties will be able to introduce evidence to determine if the "recovered memory" is authentic or if the memory loss is feigned, he pointed out.

"Lawyers are going to be able to ask the questions that get to the heart of it," he said.

Published: Wed, Feb 17, 2010