Koe v. Mercer

• Decision Date: 31 October 2006
• Docket Number: No. 05-P-875.,05-P-875.
• Parties: Kevin KOE<SMALL><SUP>1</SUP></SMALL> v. Gordon J. MERCER.
• Court: Appeals Court of Massachusetts

855 N.E.2d 1145

67 Mass. App. Ct. 664

Kevin KOE¹ v. Gordon J. MERCER.

No. 05-P-875.

Appeals Court of Massachusetts, Suffolk.

Argued April 11, 2006.

Decided October 31, 2006.

Carmen L. Durso, Boston, for the plaintiff.

A. Neil Hartzell, Boston, for the defendant.

Present: BECK, GELINAS, & COWIN, JJ.

BECK, J.

In February, 2005, a Superior Court judge entered summary judgment for the defendant, Gordon J. Mercer, against the plaintiff, Kevin Koe, because the three-year statute of limitations governing Koe's negligence claim had expired. Koe appeals, arguing that there are genuine issues of material fact that preclude entry of summary judgment. We agree with Koe and reverse.

Facts. We recite the material facts in the light most favorable to the plaintiff. Koe was born on August 25, 1968. As a child, he and his parents attended the Parkway Christian Center (church) in Revere. In the summer of 1983, Koe attended a church picnic. The church's new pastor, Paul Braco, Sr., was also present. After the picnic, Koe told his parents that Braco had touched him in the genital area. At the time, the defendant, Gordon Mercer, was a member of the church's council of pastors and elders, the governing body of the church. Koe's parents met with Mercer and reported the incident to him. Braco himself subsequently explained to Koe's parents that the incident, if there was one, was inadvertent. Koe's parents did not pursue the matter. Nor did Mercer report the incident to anyone or undertake any further investigation. In his complaint, Koe claims that Mercer was negligent in failing to investigate the allegation and in failing to take any corrective action against Braco.

Koe continued to attend the church after the picnic incident. He testified in his deposition that he tried to hide from Braco and thought about killing him. Koe recounted two subsequent incidents in which Braco abused him that occurred when he was fourteen or fifteen years old, but he said that he did not tell anyone about these incidents at the time.

At one point Koe testified that he knew Braco's touching at the church picnic was wrong. However, later in his deposition he stated that he could not decide whether Braco's sexual contacts with him were wrong, because Braco was not punished after the picnic incident. Therefore, he felt Braco's acts may have been permissible.

Approximately one year after the last incident of abuse, Koe ran away from home because he felt abandoned by his parents and, in particular, unprotected by his father. He lived on the streets, began abusing drugs and alcohol, stole food and money, and eventually was placed in the custody of the Department of Social Services.

In December, 1998, Koe began therapy sessions to deal with his anger problems. He testified that he had no memory of Braco's abuse at that time. On February 8, 1999, Koe met with a psychiatrist, Dr. Rafael Ornstein, for a medication evaluation. Doctor Ornstein noted in Koe's medical record of that date that Koe "has had a history of sexual abuse by a pastor." Koe testified that "[b]y that point in time I understood [what Braco had done to me] as definitely wrong." Further, he stated in his deposition that by February 8, 1999, "I was able to remember and realize, which they were able to make the connection as to, [w]ell, have you ever thought about maybe the reason why is because of this, this and this. And only until that point was I able to think about that."

On February 22, 1999, Koe met again with Dr. Ornstein, who noted, "p[atient] describes sexual abuse by pastor." Koe testified that "[Dr. Ornstein] made a connection at that time for me, yes," and "it was brought to my attention that I guess I was in such denial that that could have been part of it. . . . So when the psychiatrist — When I finally was able to find that memory and bring it forward to [him], that's when the connection was made . . . ." Although his medical records indicate otherwise, Koe in his summary judgment papers stated that "[he] did not realize there was any connection between the feelings of rage he felt and the sexual abuse he experienced as a child until February 22, 1999." Doctor Ornstein stated in his deposition that by March 2, 1999, Koe was still not prepared to discuss the connection, and that such a reaction was consistent with posttraumatic stress disorder.

During the early months of 1999, Koe attended numerous counselling sessions with Linda Bell, a clinical social worker. Her notes of February 10, 1999, reveal that Koe "was able to make the connection of [grieving the loss of his wife and children] with the loss of his family of origin." On March 2, 1999, Bell wrote that "[Koe] is able to identify [his angry, dissociative] state as feeling like a boy about the age of his sexual abuse." On March 22, 1999, she wrote that "[h]e is not ready to make too many connections [to his childhood] yet."

Koe filed the complaint in this case on February 27, 2002. On July 8, 2004, Allen J. Brown, a psychologist, examined Koe and subsequently stated in an affidavit that Koe failed to make and accept the connection between Braco's abuse and his symptoms prior to sometime in late 1999 or early 2000.

Statute of limitations. "General Laws c. 260, § 4C, requires that a civil suit alleging sexual abuse of a minor be commenced within three years of the alleged abusive act, `or within three years of the time the victim discovered or reasonably should have discovered that an emotional or psychological injury or condition was caused by said act.'" Doe v. Creighton, 439 Mass. 281, 283, 786 N.E.2d 1211 (2003). The statute also "provides that this three-year statute of limitations is automatically tolled until the victim reaches eighteen years of age." Id. at 283, 786 N.E.2d 1211 n. 3.

The discovery rule in G.L. c. 260, § 4C, provides that the three-year limitation period does not begin to run until a plaintiff has both (1) an awareness of his injuries, and (2) an awareness that the defendant caused his injuries. Id. at 283, 786 N.E.2d 1211. "A plaintiff who invokes the discovery rule by claiming that [his] delay in filing suit stems from a failure to recognize the cause of [his] injuries bears the burden of proving both an actual lack of causal knowledge and the objective reasonableness of that lack of knowledge." Ibid. In order "to survive the defendant's motion for summary judgment, the plaintiff must demonstrate a reasonable expectation of proving that [his] suit was timely filed." Id. at 284, 786 N.E.2d 1211.

Actual lack of causal knowledge. Koe argues that he did not make the causal connection between Braco's abuse and Koe's injuries until late 1999 or early 2000, and therefore his complaint against Mercer was timely. After a thorough review of the record, we conclude that Koe has demonstrated a reasonable expectation of proving that his suit was timely filed. Therefore summary judgment in favor of Mercer on this ground was inappropriate.

We acknowledge that Koe admitted in his deposition that, on February 22, 1999, Dr. Ornstein made a connection between Koe's depression, anger, and irritability and Braco's sexual abuse.² Furthermore, Koe stated in his summary judgment papers that it was a material fact that "[he] did not realize there was any connection between the feelings of rage he felt and the sexual abuse he experienced as a child until February 22, 1999." Koe's purported realization of a connection between Braco's abusive conduct and his own symptoms in many cases would constitute an actual awareness of causal knowledge, and impose on plaintiffs like him a "`duty to discover from the legal, scientific, and medical communities' whether [he] ha[d] a cognizable legal claim." Doe v. Harbor Schs., Inc., 446 Mass. 245, 256, 843 N.E.2d 1058 n. 13 (2006), quoting from Malapanis v. Shirazi, 21 Mass.App.Ct. 378, 384, 487 N.E.2d 533 (1986). Contrast Palermo v. Brennan, 41 Mass.App.Ct. 503, 509, 672 N.E.2d 540 (1996) (plaintiff's deposition testimony admitting knowledge of harm caused by affair with therapist did not prove that plaintiff made causal connection between defendant's improper therapeutic tactics and resulting harm).

However, this case is distinguishable from Doe v. Harbor Schs., Inc., supra, in two material aspects. First, unlike Doe's deposition testimony, Koe's deposition is not "replete with specific evidence" that he knew he was harmed before the outermost date for the timing of his complaint. See id. at 260-261, 843 N.E.2d 1058. Although he admitted that Dr. Ornstein made a connection for him on February 22, 1999, he did not acknowledge that he made any connections himself. Moreover, while Doe testified that people close to her told her that her abuser was "trouble" and her relationship was "unhealthy," id. at 261, 843 N.E.2d 1058, Koe's deposition testimony indicates that he received no such warnings. His parents did not pursue the matter after Braco called the abuse an accident, and Koe believed that "it was all me. I'm bad, I'm bad, I'm bad."

Second, and perhaps more important, Koe's medical records buttress his assertion that he had not made the connection until sometime after February 28, 1999. Doctor Ornstein's progress notes indicate that the doctor knew of Koe's sex abuse on February 8, 1999, and it was noted again in Koe's medical records on February 22, 1999. However, the notes do not mention that Koe himself was able to make any connection between the abuse and his psychological symptoms. Not until March 22, 1999, do Linda Bell's notes suggest for the first time that Koe was able to make at least one connection between the abuse and symptoms when she noted that "[h]e is not ready to make too many connections yet."

It is also telling that Bell's notes specifically discuss the precise moments when Koe made other connections relevant to his psychological treatment. In her notes dated February 10, 1999, Bell wrote that "[o]ne theme is grieving the loss of his wife and...