Doe I et al v. Boy Scouts of America et al

Filing 349

MEMORANDUM DECISION AND ORDER It is hereby ORDERED, that the BSA's motion to exclude testimony of Schoener (docket no. 316 ) is GRANTED IN PART AND DENIED IN PART. It is further ORDERED, that the LDS Church's motion to exclude testimony of Schoener (docket no. 306 ) is GRANTED IN PART AND DENIED IN PART. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOHN DOES I-XIX, and JOHN
ELLIOTT,

Case No. 1:13-cv-00275-BLW

Plaintiffs,

MEMORANDUM DECISION AND
ORDER

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.

INTRODUCTION
The Court has before it motions to exclude the testimony of plaintiffs’ expert
witness Gary Schoener. The motions are fully briefed and at issue. The Court recently
issued an opinion on similar motions to exclude testimony of another expert for plaintiffs,
William Dworin, and the analysis there applies with equal strength here. See
Memorandum Decision and Order (Dkt. No. 347). For the reasons expressed below, the
Court will grant the motions in part and deny them in part.
Memorandum Decision & Order – page 1

BACKGROUND
Schoener is a licensed psychologist who is expected to testify to the following
points: (1) The BSA and LDS Church knew – before plaintiffs were abused – that there
were sexual predators in their adult leadership positions; (2) With this knowledge, the
BSA and LDS Church had a duty to give warnings, institute protective programs, and
open investigations but failed to do so; (3) Instead, the BSA and LDS Church falsely
represented that scouting was safe and the adult leaders trustworthy; (4) Parents and boys
placed trust and confidence in these representations of the BSA and the LDS Church; and
(5) The LDS Church as an organization has “inherent credibility” that constituted an
“implied representation” that any program it promoted – like scouting – was safe.
Schoener has been a licensed psychologist in Minnesota since 1974. He has a
B.A. in Psychology from Cornell University, and is a Ph.D. candidate in Clinical
Psychology at the University of Minnesota. He practices as a clinical psychologist,
specializing in counseling patients sexually abused by counselors and psychotherapists,
including minor patients, and the sexual abuse of children. For the last 45 years, he has
“provided consultation to individuals, families, local institutions, and regional and
national organizations concerning many issues related to prevention and intervention in
cass of sexual abuse by persons in positions of trust.” See Report (Dkt. No. 305-8) at p.
4. He has worked as a consultant with organizations, specifically youth-serving
organizations, since the late 1970s, providing advice and training for sexual abuse
prevention policies, training, and responding to complaints. Id. at pp. 4-5. He has been
an expert for plaintiffs and defendants in at least 40 civil child sexual abuse cases, to
Memorandum Decision & Order – page 2

testify about issues related to child sexual abuse in the setting of institutions of trust, such
as churches, the Boy Scouts, Girl Scouts, Big Brothers Big Sisters, other volunteer
programs, public and religious-based schools, and treatment centers.
ANALYSIS
The BSA’s Motion to Exclude
The BSA challenges Schoener’s expected testimony on negligence issues. For
example, he will testify that the BSA had a duty to investigate incidents of abuse, to warn
parents and boys that sexual predators might be in adult leadership positions, to notify
parents and boys of adult leaders put on “probation” by the BSA, and to institute
programs that would protect boys and remove predators. The BSA failed to take any of
these actions, he will testify.
As the BSA accurately points out, this testimony all relates to a negligence case,
not a constructive fraud case. These are opinions about what the BSA should have done,
and hence are not pertinent to a constructive fraud case that looks at what the BSA
actually did – that is, a constructive fraud case examines whether a relationship of trust
and confidence was created by false statements to these plaintiffs, not whether protective
actions were required by some standard of care. Consequently, the Court will exclude
all testimony from Schoener that the BSA had a duty to investigate incidents of abuse, to
warn parents and boys that sexual predators might be in adult leadership positions, to
notify parents and boys of adult leaders put on “probation” by the BSA, and to institute
programs that would protect boys and remove predators.

Memorandum Decision & Order – page 3

The BSA seeks to exclude Schoener’s testimony that the BSA knew about abusers
and that it falsely represented that scouting was safe. More specifically, Schoener will
testify that based on his review of the IV Files, the 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.” See Report,
supra, at p. 3. 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.
This testimony – unlike the testimony discussed above – relates directly to
plaintiffs’ constructive fraud case. These are not opinions about what the BSA should
have done but are instead opinions that the BSA knew certain facts and made statements
to parents and boys that, based on that knowledge, were false. These opinions are
directly relevant to elements of a constructive fraud case. The opinions are also within
Schoener’s expertise. He is a licensed psychologist who has spent decades working with
organizations like the BSA on child abuse issues. His expertise would allow him to
render opinions on what an organization knew and whether, given that knowledge, its
representations were false.
But Schoener strays outside his field of expertise when he testifies that parents and
boys had a relationship of trust and confidence with the BSA and relied upon these false
representations. Schoener is merely speculating here, and this testimony must come from
the boys and their parents. The Court will exclude any testimony from Schoener that

Memorandum Decision & Order – page 4

parents and boys had a relationship of trust and confidence with the BSA and relied upon
these false representations.
The LDS’s Church’s Motion to Exclude
The LDS Church moves to exclude Schoener’s testimony on many of the same
grounds, and the same analysis largely applies, although some extra analysis is necessary,
as was the case in the Dworin decision. The IV Files were kept by the BSA, not the LDS
Church. Schoener testified that the BSA concealed the IV Files from the LDS Church.
See Schoener Deposition (Dkt. No. 305-15) at pp. 98-99. Thus, Schoener is not relying
on knowledge of the IV Files to establish the knowledge of the LDS Church, but instead
will testify that the LDS Church “had specific notice that [abusers] Schmidt and Arnold
presented the danger of child molestation to the scouts.” See Report, supra at p. 22.
Thus, like Dworin, the material that Schoener relies upon to establish the
knowledge of the LDS Church is much narrower then what he relied upon in rendering
his opinion about the BSA’s knowledge. Given his deposition testimony, Schoener could
not testify that the LDS Church was aware of the IV Files and had a broad knowledge of
sexual predators within adult leadership positions that those IV Files might convey. But
Schoener is on more solid ground when he limits his testimony to rely only on Arnold
and Schmidt to render an opinion that the LDS Church knew of sexual predators in its
adult leadership positions – after all, Arnold and Schmidt are two of the predators that
allegedly molested plaintiffs. Accordingly, so long as Schoener’s testimony about the
knowledge of the LDS Church is limited to its knowledge of Arnold and Schmidt, the
Court will not exclude it.
Memorandum Decision & Order – page 5

For the same reasons, the Court will not exclude Schoener’s testimony that the
LDS Church, having this knowledge, made false representations to parents and boys that
scouting was safe and that adult leaders were trustworthy. Again, this testimony is within
Schoener’s area of expertise and is relevant to the elements of constructive fraud.
But Schoener goes outside the area of his expertise when he testifies that (1) the
LDS Church has an “inherent credibility” with parents and boys, creating an implicit
promise that any program it promotes – like scouting – is safe; and (2) the LDS Church
created trust and confidence with parents and boys who relied upon the Church’s
representations. Schoener is speculating here, and this testimony will be excluded.
With regard to Schoener’s testimony that the LDS Church had various duties that
it failed to fulfil, the analysis is the same as applied to the BSA above – this testimony
must be excluded. Consequently, the Court will exclude all testimony from Schoener
that the LDS Church had a duty to investigate incidents of abuse, to warn parents and
boys that sexual predators might be in adult leadership positions, to notify parents and
boys of adult leaders put on “probation” by the BSA, and to institute programs that would
protect boys and remove predators.
Conclusion
The BSA’s motion to exclude will be denied in large part except that it will be
granted to exclude Schoener’s testimony that (1) the BSA had a duty to investigate
incidents of abuse, to warn parents and boys that sexual predators might be in adult
leadership positions, to notify parents and boys of adult leaders put on “probation” by the
BSA, and to institute programs that would protect boys and remove predators; and (2) the
Memorandum Decision & Order – page 6

boys who joined scouting and their parents believed and relied upon the BSA’s
statements that scouting was safe and wholesome.
The LDS Church’s motion to exclude will be denied in large part except that it
will be granted to exclude Schoener’s testimony that (1) the LDS Church had a duty to
investigate incidents of abuse, to warn parents and boys that sexual predators might be in
adult leadership positions, to notify parents and boys of adult leaders put on “probation”
by the BSA, and to institute programs that would protect boys and remove predators. (2)
the LDS Church has an “inherent credibility” with parents and boys, creating an implicit
promise that any program it promotes – like scouting – is safe; and (3) the LDS Church
created trust and confidence with parents and boys who relied upon the Church’s
representations.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the BSA’s motion to
exclude testimony of Schoener (docket no. 316) is GRANTED IN PART AND DENIED
IN PART. It is granted to the extent it seeks to exclude Schoener’s testimony that (1) the
BSA had a duty to investigate incidents of abuse, to warn parents and boys that sexual
predators might be in adult leadership positions, to notify parents and boys of adult
leaders put on “probation” by the BSA, and to institute programs that would protect boys
and remove predators; and (2) the boys who joined scouting and their parents believed
and relied upon the BSA’s statements that scouting was safe and its adult leaders
trustworthy. It is denied in all other respects.
Memorandum Decision & Order – page 7

IT IS FURTHER ORDERED, that the LDS Church’s motion to exclude testimony
of Schoener (docket no. 306) is GRANTED IN PART AND DENIED IN PART. It is
granted to the extent it seeks to exclude Schoener’s testimony that (1) the LDS Church
had a duty to investigate incidents of abuse, to warn parents and boys that sexual
predators might be in adult leadership positions, to notify parents and boys of adult
leaders put on “probation” by the BSA, and to institute programs that would protect boys
and remove predators; (2) the LDS Church has an “inherent credibility” with parents and
boys, creating an implicit promise that any program it promotes – like scouting – is safe;
and (3) the LDS Church created trust and confidence with parents and boys who relied
upon the Church’s representations. It is denied in all other respects.

DATED: December 4, 2018

_________________________
B. Lynn Winmill
Chief U.S. District Court Judge

Memorandum Decision & Order – page 8