New statute proves timely in child sex abuse lawsuit

 Two adult sisters sued their father alleging sexual assault and battery

By Brandon Gee
The Daily Record Newswire

BOSTON — Two adult sisters who claimed years of sexual abuse by their father relied on a new law in Massachusetts to help them obtain a recent $10 million award, believed to be one of the largest jury verdicts to come out of Plymouth Superior Court.

Lawyers say the sizeable sum is noteworthy for an additional reason: It could prove useful to future plaintiffs who avail themselves of another measure approved this year, but not yet in effect, that allows parties to suggest at trial a specific monetary amount for damages.

The plaintiffs in Kelley v. Kelley, now in their late 20s, filed suit against their father in 2010 alleging sexual assault and battery and intentional infliction of emotional distress. The sisters claimed the defendant would secretly fondle their breasts and buttocks in bed at night and say and do other sexually explicit things, beginning when they were 12 and continuing over the course of seven years for one of the siblings and 11 years for the other.

The Sexual Abuse of Minors Statute previously stated that cases must be filed within three years of when the abuse caused an injury and the victim linked the injury to the abuse.

The defendant in Kelley had moved for summary judgment on the grounds that the plaintiffs’ claims were time-barred. But Judge Angel K. Brown denied the motion in January.

“The fact that the plaintiffs were consciously aware of the inappropriate sexual contact with their father, does not equate to the young plaintiffs having actual knowledge of the psychological harm they were suffering as a result of being sexually abused for years,” Brown wrote.

The sisters were represented by Kristin M. Knuuttila and Adam R. Doherty of Boston’s Prince, Lobel, Tye.

Despite the summary judgment victory, the plaintiffs’ lawyers still faced a statute of limitations argument at trial and were preparing to have their expert, Dr. Thomas Gutheil, testify not only on the depression, anxiety, flashbacks, suicidal thoughts and other injuries alleged by the plaintiffs, but also when they connected those harms to the abuse.

But the father’s planned defense was gutted earlier this year when Gov. Deval L. Patrick signed House Bill 4126, giving victims of child sexual abuse until age 53 to file civil lawsuits.

“The law went into effect immediately and was applied to pending cases and cases that were brought after,” Knuuttila said. “Had the law not changed, we would have had to put on evidence that the girls hadn’t made the causal link. … It made our job much easier.”

Boston attorney Carmen L. Durso, a primary advocate in the effort to extend the statute of limitations, said the would-be hurdle was one the plaintiffs never should have faced to begin with since it often takes victims of childhood sexual abuse years to recognize the mistreatment and its effects.

“When you’re that age and you’re being sexually abused, you’re being conditioned; you’re being taught that what is happening is natural and normal,” Durso said. “That [new law] opened the doors of the courthouse for all kinds of people who just otherwise would have been excluded.”

Open question

The defendant was represented by Michael J. Sacchitella of Tufankjian, McDonald, Welch & Sacchitella in Brockton.

Sacchitella said the case was “an assessment of damages” but declined to comment further due to post-trial motions that are pending in the matter.

As of press time, a notice of intent to file a motion for new trial or order of remittitur had been filed, but the motion itself was not yet available.

Several other Massachusetts lawyers who have represented defendants in civil sex abuse lawsuits did not respond to interview requests or declined to comment on Kelley.

While the enactment of House Bill 4126 removed a significant obstacle for the plaintiffs, the statute of limitations issue was not entirely disposed of, at least initially.

“[T]he plaintiffs each allege they were also abused as adults,” Sacchitella wrote in an August filing. “Those claims and any damages that flowed therefrom would be subject to the three year statute of limitations defense both as to actual knowledge of harm and reasonable discovery thereof.”

The argument was later abandoned, with the defendant admitting liability on the first day of trial and the defense focusing on the theory that the plaintiffs had not suffered injury or damages as a result of the abuse.

The plaintiffs’ team noted that an open question remains with respect to how courts will apply the new statute of limitations to abuse that began before a victim turned 18 and continues thereafter.

Doherty said it would make little sense to apply two separate statutes of limitations in such situations and that a victim “doesn’t magically turn into an adult who can stop the abuse.”

Such an approach also would likely confuse and frustrate a jury, Knuuttila said.

“If the new statute doesn’t apply, the jury has to decide which damages happened when,” she said. “I think it would be incredibly difficult, if not impossible, for a jury to distinguish between damages after the 18th birthday and before.”

Durso agreed, saying that child sex abuse “affects you for the rest of your life in ways you can’t imagine,” and what happens after a victim turns 18 is just a continuation of that.

“The fact some acts occur after 18 is meaningless in determining what the damages are,” he said. “There’s a simple legal answer, too: This is what is known as a continuing tort.”

Thousands of instances

Knuuttila and Doherty were unable to take advantage of another tort reform law passed this year that allows plaintiffs to argue for a specific amount of damages. The measure was part of the same bill calling for attorney-conducted voir dire in Massachusetts and has not yet taken effect.

Nonetheless, the jury coincidentally calculated the damages at the same amount Knuuttila had requested on her civil action cover sheet four year ago: $10 million. The jury of nine women and five men deliberated for about three hours before awarding each plaintiff $1.5 million in damages for assault and battery and $3.5 million for intentional infliction of emotional distress.

While she was unable to cite monetary values, Knuuttila presented the jury with other calculations in her closing argument and — based on the number of times per week the sisters said they had been abused over the years — tallied up thousands of instances of sexual assault.

The verdict is collectable, according to Knuuttila, who said the plaintiffs entered into a stipulation regarding pre-judgment security a year into the suit and are securing as many assets as possible.

Durso believes the verdict is the largest rendered by a Massachusetts jury in a sexual abuse case.

“The awards that I’ve had have all been by judges, and they’ve all been in the low seven figures, between $1 [million] and $3 million,” said Durso, calling the verdict in Kelley “remarkable” as Plymouth County is not known to be particularly plaintiff-friendly.

Prior to Kelley, the largest sex abuse jury verdict in Massachusetts was a $500,000 award, according to Durso. The federal case, brought by a daughter against her father, involved allegations of rape.

Durso said society has learned a lot about the harm caused by sexual abuse since that 1993 verdict.

“What a jury thinks about one victim versus another is hard to predict,” he said. “But it’s nice to have [Kelley] to get an idea of what juries think of harm. … It’s not like workers’ compensation where you can see how much a broken arm is worth.”

Plaintiffs’ lawyers can use Kelley as a starting point in developing a specific damages pitch to juries, Durso added.

Streamlined case

Had the ability to argue specific damages been available, Knuuttila and Doherty said they may not have availed themselves of it.

“While we had therapy bills and therapy records, those were not going to tell the story of how these girls were damaged. We didn’t even use them,” Knuuttila said. “We allowed the expert witness to testify about his opinion based on the therapy records.”

Primarily, though, Knuuttila and Doherty relied on the testimony of their clients, who had been waiting years to tell their story after first reporting the abuse to police in 2009.

The defendant, William R. Kelley Jr., pleaded guilty in 2012 to 12 counts of indecent assault and battery. He served 10 months of a two-year sentence before being released as a Level 3 sex offender. Despite the criminal conviction, mediation failed and the parties were unable to settle before trial, Knuuttila said.

The case ultimately came down to the plaintiffs’ courage, she said.

“For us, the hardest part of the trial was conveying what abuse does to a daughter when the perpetrator is her father,” Knuuttila said. “Their testimony was so incredibly powerful and so incredibly raw. … They conveyed through tears [and] sobs just what their father did to them. In a case like this, you need this level of detail because not everyone has experienced it and not everyone understands it. Our clients did an amazing job communicating that to the jury. All I did in opening and closing was say it again.”

With the exception of the expert’s testimony, Knuuttila said, the decision was made not to put on additional witnesses, such as the husband of one of the clients.

“This was not a case that needed to be over-tried. We made a decision to streamline the case, and I think we made the right choice,” she said.

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