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Doe v. Boy Scouts of America

United States District Court, D. Idaho

June 27, 2019

JOHN DOES I-XIX, and JOHN ELLIOTT, Plaintiffs,
v.
BOY SCOUTS OF AMERICA, a congressionally chartered corporation authorized to do business in Idaho; CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a foreign corporation sole registered to do business in Idaho; and CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS AND SUCCESSORS, a foreign corporation registered to do business in Idaho, Defendants.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL U.S. DISTRICT COURT JUDGE

         INTRODUCTION

         The Court has before it motions filed by the remaining plaintiff Doe XII to (1) exclude defense experts' testimony, and (2) exclude evidence based on the Court's summary judgment ruling. The motions are fully briefed and at issue. For the reasons expressed below, the Court will (1) deny the motion to exclude based on the Court's summary judgment ruling, and (2) grant in part and deny in part the motion to exclude the defense experts' testimony.

         ANALYSIS

         Plaintiff's Motion to Exclude Testimony of Defense Experts

         Doe XII seeks to exclude any testimony from defense experts explaining the history of society's attitudes about child abuse - and the approaches to prevention - after the last date of abuse in this case in 1974. Doe XII has no objection to the defense experts testifying about these matters so long as they do not testify to anything occurring after 1974.

         For example, Doe XII has no objection to the opinion of defense expert John Pearson describing the evolution of society's attitudes about child abuse through 1974:

Youth protection strategies for youth-serving organizations have been and continue to evolve. . . . . The first half of the 20th century was focused on familial abuse intervention. This included all forms of abuse including incest. . . . The modern awareness of the issues associated with abuse - and more specifically sexual abuse of boys and girls - in youth-serving organizations is a relatively recent development. This is not to say that historically organizations have ignored the topic, but their responses were shaped by incomplete knowledge and misperceptions about the dynamics of child sexual molestation and abuse. In order to evaluate the level of knowledge available to organizations about child sexual abuse it is important to examine how today's youth protection strategies were developed. . . . In the 1960s, child abuse prevention focused on abuse within families both physical and sexual (primarily incest) and stranger danger. . . . The emphasis in the mid-1970s was incest - abuse within the family. This is apparent by Idaho's statute which required only abuse by parents to be reported. The first nation-wide study into the incidence of child abuse was in 1974. It estimated only 7, 559 cases of sexual abuse in the entire country. Child sexual abuse was then and remains today significantly under-reported.

Pearson Expert Report (Dkt. No. 434-1) at pp. 15-20. While Doe XII has no objection to that passage, he does object once Pearson extends his discussion into the 1980s. For example, Pearson renders an opinion that “BSA, during he 1960s and into the 1980's BSA reflected the American culture of the time, addressing the topic of child sexual assault and sexuality in general . . . .” Id. at p. 25 (emphasis added). Doe XII claims that any discussion extending past the last date of abuse (1974) is irrelevant and should be excluded, and so his sole objection to the passage just quoted is with two words - “the 1980s.” Similarly, Pearson opined that “in the 1960s and into the 1980's, sex was not an appropriate subject to be discussed by organizations and BSA appropriately recommended that boys seek information on this topic from parents, doctors and spiritual advisors.” Id. at p. 25. (emphasis added). Again, Doe XII has no objection to this opinion except to the extent it extends into “the 1980's” and would restrict its extension to 1974.

         As another example, defense expert Dr. Monica Applewhite renders an opinion on society's recognition of child abuse in the 1960s, 1970s, and 1980s, and Doe XII's only objection is to her discussion that extends beyond 1974. Applewhite Expert Report (Dkt. No. 434-3).

         Similarly, Doe XII objects to defense expert opinions comparing defendants' conduct to the standards of other organizations both at the time of the abuse and in the decades following. For example, Doe XII objects to defense expert Pearson's opinion that “the 2007 Center for Disease Control [CDC] publication provides the best and most reasonable practices for youth serving and youth development agencies. This publication did not exist and the practices discussed herein were not nationally recognized by the government before 2007.” See Pearson Report (Dkt. No. 434-1). Pearson goes on to examine the CDC's 2007 recommendations, analyze whether BSA's practices from 1968 to 1983 met or exceeded those recommendations, compare BSA's practices to other organizations, and conclude that BSA met CDC's 2007 standards back in the 1968 to 1983 timeframe: “In my opinion . . . in the periods between 1968 and 1983 BSA was doing much of what the CDC report recommended in 2007, in order to protect Scouts from child sexual abuse.” Id. at pp. 9-16 and 26. Doe XII seeks to exclude all of those opinions by Pearson, and similar opinions from defense experts Michael Johnson and Dr. Applewhite.

         These opinions by the defense experts set standards for dealing with child abuse and compare defendants' conduct to those standards - whether the standards are institutional standards set by what other YSOs were doing or are societal standards set by the knowledge and attitudes toward child abuse at that time. The hundred pages of the reports of these three defense experts are concisely summarized in a single sentence by Pearson when he concludes that “[i]t would be unreasonable to try to judge the actions that occurred so long ago against today's greater knowledge and awareness regarding child sexual abuse.” See Pearson Report, supra at p. 18. In other words, these experts are attempting to establish what a reasonable standard of conduct would have been at the time of the abuse and to measure defendants' conduct against that standard.

         That testimony is directly relevant to a claim of punitive damages that requires the jury to establish a reasonable standard of conduct and determine if defendants' conduct was an extreme deviation from that standard. The Court has allowed Doe XII to pursue a claim for punitive damages against the BSA. See Memorandum Decision (Dkt. No. 537) (allowing plaintiffs to pursue punitive damages against BSA but reserving the decision as to the Church). Thus, the experts' testimony is relevant to the punitive damage claim against BSA. Consequently, the Court will deny Doe XII's motion to exclude this evidence to the extent the evidence is introduced by BSA in the punitive damage phase of the case. If the Court eventually allows Doe XII to pursue punitive damages against the Church, the Court would likewise refuse to exclude this evidence when introduced by the Church in the punitive damage phase of the trial.

         This leaves open the issue whether this evidence is relevant to the constructive fraud issue. The Court need not express any opinion on that issue at this time. It is enough to say that the expert opinions discussed above are relevant to punitive damages and thus will not be excluded for that purpose. If the trial on the settlement issue ends in Doe XII's ...


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