United States District Court, D. Idaho
MEMORANDUM DECISION & ORDER
Lynn Winmill, United States District Judge.
Court has before it plaintiffs' motion to add a claim for
punitive damages, and defendants' motion to exclude
evidence of negligence and fraud. The Court heard oral
argument on the motion to add a punitive damage claim on
March 22, 2019, and both motions are now fully briefed and at
issue. For the reasons explained below, the Court will (1)
grant the motion to add a punitive damage claim as to
defendant Boy Scouts of America (BSA) but reserve ruling as
to the defendant LDS Church; and (2) grant in part and deny
in part the motion to exclude evidence of negligence and
TO ADD A PUNITIVE DAMAGE CLAIM
Standards - Punitive Damages
law states that “[t]he court shall allow the motion to
amend the pleadings if, after weighing the evidence
presented, the court concludes that, the moving party has
established at such hearing a reasonable likelihood of
proving facts at trial sufficient to support an award of
punitive damages.” See I.C. § 6-1604(2). At trial,
plaintiffs “must prove, by clear and convincing
evidence, oppressive, fraudulent, malicious or outrageous
conduct by the party against whom the claim for punitive
damages is asserted. See I.C. § 6-1604(1). The Idaho
courts have put a gloss on the statutory definition,
requiring that plaintiffs must establish by clear and
convincing evidence, “an intersection of two factors: a
bad act and a bad state of mind.” Hall v. Farmers
Alliance Mut. Ins. Co., 179 P.3d 276, 282
(Id.Sup.Ct. 2008). Specifically, a plaintiff must
prove that (1) the defendant acted in a manner that is an
"extreme deviation from reasonable standards of
conduct" with an understanding of - or disregard for -
its likely consequences; and (2) that defendant acted with an
"extremely harmful state of mind," described by
statute as "oppressive, fraudulent, malicious, or
outrageous." Kuhn v. Coldwell Banker Landmark,
Inc., 245 P.3d 992, 1006 (Id.Sup.Ct. 2010).
Punitive damages are not allowed for gross negligence,
deliberate, or willful conduct. Cummings v.
Stephens, 336 P.3d 281, 296 at n. 5 (Id.Sup.Ct.
Idaho courts have identified five factors to consider in
determining whether a defendant's conduct is an extreme
deviation from reasonable standards of conduct: (1) Did
defendants' unreasonable conduct actually caused harm to
the Plaintiffs? (2) Have plaintiffs presented expert
testimony? (3) Is there a special relationship of trust and
confidence between the parties? (4) Is there evidence of a
continuing course of oppressive conduct? and (5) Have
plaintiffs offered proof of defendants' knowledge of the
likely consequences of their conduct. Thurston
Enterprises, Inc. v. Safeguard Business Systems, Inc.,
2019 WL 667966 at *12 - 13. (Id.Sup.Ct. 2019).
of Motion to Add Punitive Damages as to BSA
Court, in its earlier decision denying summary judgment,
discussed at length the IV files, and the notice they
provided to the BSA about sexual predators in their adult
leadership ranks. See Memorandum Decision (Dkt. No.
336) at pp. 10-12. Plaintiffs' expert Bill Dworin
reviewed 1, 350 IV files and concluded that “BSA was
aware years before 1963 that sexual predators would seek out
positions with the Boy Scouts to get close to and target boys
for abuse.” See Memorandum Decision (Dkt. No.
347) at p. 2. Based on this, he concludes that BSA falsely
represented to its members that scouting was a “safe
and wholesome organization.” Id.
Plaintiffs' other expert, Gary Schoener, comes to the
same conclusions. See Memorandum Decision (Dkt. No.
349). One example is Schoener's opinion that based on his
review of the IV Files, BSA knew “that scouting posed
an identifiable hazard that scout leaders and volunteer
participants have and may sexually abuse scouts through their
access to youth free of parental supervision.”
Id. At p. 4. He will also testify that the BSA
represented to parents and their boys that scouting was safe
and that its leaders were trustworthy, all of which was false
given the BSA's knowledge of the IV Files. Id.
defendants attempted to exclude this expert testimony, but
the Court denied those motions in large part, excluding only
a portion of each expert's testimony (and excluding none
of the testimony discussed above). This expert testimony
covers several of the Thurston factors and weighs in
favor of a finding that it is “reasonably likely”
that plaintiffs can satisfy the clear and convincing standard
required at trial.
Thurston factor examines whether there was a special
relationship of trust and confidence between the parties. The
Court has previously held that there is “sufficient
evidence in the record from which a jury could reasonably
find that BSA occupied a superior position of influence and
authority over plaintiffs Doe IV, Doe XVIII, and Doe XII, and
[that], in turn, those plaintiffs reposed trust and
confidence in BSA.” See Memorandum Decision
(Dkt. No. 336) at p. 30. This Thurston factor also
weighs in favor of allowing a punitive damage claim.
is also evidence in the IV files that BSA was covering up the
extent of the predator abuse problem. As just one example of
others in the record, the IV file for Clyde Brock contains
evidence from a Scout Executive that Brock was taking
pictures of nude Scouts and having inappropriate
relationships with at least two Scouts - yet the same Scout
Executive then tells the local troop leader that “the
less it is discussed among adults and boys I am sure the
better it will be.” See Memorandum Decision
(Dkt. No. 455) at p. 3.
there is no evidence that BSA ever shared any of the contents
of the IV files with chartering organizations, parents, or
the Scouts. Paul Ernst, the BSA Executive responsible for
maintaining the IV files for many years, testified in 1988
that BSA “ha[d] never divulged the contents of our
files to Boy Scouts or the public at any time.” See
Ersnt Deposition (Dkt. No. 384-1) at p.
He further testified that, through 1985, BSA had never told
Boy Scouts, parents, law enforcement, or local council Scout
Executives the approximate No. of Scout leaders who had been
accused of sexually abusing Scouts. Id. at pp.
record shows that plaintiffs have a reasonable likelihood of
proving facts at trial, by clear and convincing evidence,
sufficient to support an award of punitive damages against
the BSA. For that reason, plaintiffs' motion to add a
claim for punitive damages against BSA is granted.
to Add Punitive Damages Against the LDS Church
the Court has bifurcated trial in this matter, the Court will
reserve ruling on the punitive damage motion as ...