United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL U.S. DISTRICT COURT JUDGE
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.
Motion to Exclude Testimony of Defense Experts
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.
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.
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).
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.
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.
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.
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