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

Filing 538

MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED, that the motion to exclude the perpetrators and other unnamed wrongdoers from the verdict form (docket no. 429 ) is GRANTED IN PART AND DENIED IN PART. IT IS FURTHER ORDERED, that the motion to exclude Libey witnesses (docket no. 382 ) is DENIED. Signed by Judge B. Lynn Winmill. (alw)

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

Case No. 1:13-cv-00275-BLW
MEMORANDUM DECISION AND
ORDER

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.

INTRODUCTION
The Court has before it plaintiffs’ motion to exclude abusers and the police from
the verdict form and defendant’s motion to exclude Libey witnesses. The motions are
fully briefed and at issue. For the reasons explained below, the Court will (1) deny that
portion of plaintiffs’ motion seeking to exclude the abusers from the verdict form but
grant the motion to exclude the police; and (2) deny the motion to exclude Libey
witnesses. The Court will address first the motion to exclude the abusers and the police
from the verdict form.
Memorandum Decision & Order – page 1

MOTION TO EXCLUDE ABUSERS AND POLICE FROM VERDICT FORM
Analysis – Motion to Exclude Abusers from Verdict Form
Plaintiffs ask the Court to exclude from the verdict form any question asking the
jury to make a comparative responsibility finding – that is, asking the jury to compare the
responsibility of BSA and the Church for the plaintiffs’ injuries with that of the men who
abused them. The three Idaho statutes that govern the doctrine of comparative
responsibility are set forth below:
Idaho Code § 6-801
Contributory negligence or comparative responsibility shall not bar
recovery in an action by any person or his legal representative to recover
damages for negligence, gross negligence or comparative responsibility
resulting in death or in injury to person or property, if such negligence or
comparative responsibility was not as great as the negligence, gross
negligence or comparative responsibility of the person against whom
recovery is sought, but any damages allowed shall be diminished in the
proportion to the amount of negligence or comparative responsibility
attributable to the person recovering. Nothing contained herein shall create
any new legal theory, cause of action, or legal defense.
Idaho Code § 6-802:
The court may, and when requested by any party shall, direct the jury to find
separate special verdicts determining the amount of damages and the
percentage of negligence or comparative responsibility attributable to each
party; and the court shall then reduce the amount of such damages in
proportion to the amount of negligence or comparative responsibility
attributable to the person recovering. Nothing contained herein shall create
any new legal theory, cause of action, or legal defense.
Idaho Code § 6-803(3), (4) & (5):
(3) The common law doctrine of joint and several liability is hereby limited
to causes of action listed in subsection (5) of this section. In any action in
which the trier of fact attributes the percentage of negligence or comparative
responsibility to persons listed on a special verdict, the court shall enter a
separate judgment against each party whose negligence or comparative
responsibility exceeds the negligence or comparative responsibility
attributed to the person recovering. The negligence or comparative
responsibility of each such party is to be compared individually to the
negligence or comparative responsibility of the person recovering. Judgment
Memorandum Decision & Order – page 2

against each such party shall be entered in an amount equal to each party's
proportionate share of the total damages awarded.
(4) As used herein, “joint tortfeasor” means one (1) of two (2) or more
persons jointly or severally liable in tort for the same injury to person or
property, whether or not judgment has been recovered against all or some of
them.
(5) A party shall be jointly and severally liable for the fault of another person
or entity or for payment of the proportionate share of another party where
they were acting in concert or when a person was acting as an agent or servant
of another party. As used in this section, “acting in concert” means pursuing
a common plan or design which results in the commission of an intentional
or reckless tortious act.
Under this statutory regime, a defendant who has been found liable to the plaintiff
for a tort bears liability only for that defendant’s proportionate share of the total damages,
and the plaintiff may not recover, except in limited circumstances, from one defendant
for the share of damages allocable to the fault of another defendant or nonparty
tortfeasor. The Idaho courts have extended the statute to apply to intentional torts and
allow an allocation of fault between a negligent tortfeasor and an intentional tortfeasor.
Rausch v. Pocatello Lumber Co., 14 P.3d 1074 (Id.Ct.App. 2000).
This allocation creates a concern, however, that a jury will naturally assign a
greater percentage of responsibility to the intentional tortfeasor. This very situation was
addressed in the Restatement (Third) of Torts: Apportionment of Liability § 14 (2000):
The modification of joint and several liability and the application of
comparative responsibility to intentional tortfeasors create a difficult
problem. When a person is injured by an intentional tort and another person
negligently failed to protect against the risk of an intentional tort, the great
culpability of the intentional tortfeasor may lead a factfinder to assign the
bulk of responsibility for the harm to the intentional tortfeasor, who often
will be insolvent. This would leave the person who negligently failed to
protect the plaintiff with little liability and the injured plaintiff with little or
no compensation for the harm. Yet when the risk of an intentional tort is the
specific risk that required the negligent tortfeasor to protect the injured
Memorandum Decision & Order – page 3

person, that result significantly diminishes the purpose for requiring a person
to take precautions against this risk.
Id. at comment b. The Restatement solves this dilemma by making the tortfeasors jointly
and severally liable: “A person who is liable to another based on a failure to protect the
other from the specific risk of an intentional tort is jointly and severally liable for the
share of comparative responsibility assigned to the intentional tortfeasor in addition to the
share of comparative responsibility assigned to the person.” Id. The Restatement
explains that “persons who negligently fail to protect against the specific risk of an
intentional tort should bear the risk that the intentional tortfeasor is insolvent.” Id.
The Restatement recognized that “most courts” have recognized this dilemma but
have solved it somewhat differently by “refus[ing] to permit assignment of a share of
comparative responsibility to the intentional tortfeasor in a suit against the negligent
party.” Id. That was essentially the position Idaho courts took prior to the passage of the
statutory scheme quoted above. See Hickman v. Fraternal Order of Eagles, 758 P.2d 704
(Id.Sup.Ct. 1988), overruled by Idaho Dept. of Labor v. Sunset Marts, Inc., 91 P.3d 1111
(Id.Sup.Ct. 2004). In Hickman, heirs of two persons killed by an intoxicated driver
brought an action to recover damages from the Fraternal Order of Eagles (Eagles), who
provided alcohol at a Christmas party attended by William Davis, the driver, who
consumed alcohol at the party before he caused the collision. Davis was not a party to
the subsequent litigation, and the district court refused to put him on the verdict form so
the jury could compare his responsibility with that of the Eagles. The jury returned a

Memorandum Decision & Order – page 4

verdict for the Eagles and the heirs appealed the decision to keep Davis off the verdict
form. The Idaho Supreme Court affirmed, quoting the trial court’s analysis as follows:
The main issue in this case, the only issue in this case, is Eagles’ negligence.
If Eagles is one percent negligent, they are liable for everything. If Eagles is
ninety-nine percent negligent as compared to Davis, they are liable for
everything. If Eagles is zero percent negligent, there is nothing to compare it
with. In effect, I think trying to compare Eagles to the non-party Davis is
irrelevant and confusing.
758 P.2d at 707. But after Hickman was decided, the Idaho Legislature passed the
statutory scheme quoted above, substantially limiting the applicability of joint and several
liability. Subsequently, the Idaho Supreme Court overruled Hickman in Sunset Marts, a
case with facts identical to Hickman. In Sunset Marts, the court held that the jury must
allocate responsibility between the drunk driver and the vendors of alcohol. Sunset
Marts, 91 F.3d at 1116-17. As Sunset Marts made clear, the only time the drunk driver
could be kept off the verdict form would be in the infrequent circumstance where joint
and several liability applied – that is, where the drunk driver acted as the vendor’s agent
or in concert with the vendor. See Idaho Code § 6-803(5). In this case, the plaintiffs
have not argued in their briefing on this motion that the abusers were acting in concert
with – or as agents of – the Church or BSA. Thus, the Court is assuming here that joint
and several liability does not apply.
It is thus clear that Idaho has rejected the Restatement approach (include the
intentional tortfeasor on the verdict form and apply joint and several liability) and the
approach of most courts (refuse to include the intentional tortfeasor on the verdict form).
Still, the dilemma remains – the jury will naturally allocate most of the responsibility to
Memorandum Decision & Order – page 5

the insolvent or unavailable intentional tortfeasor, leaving plaintiffs without a remedy,
assuming the jury finds constructive fraud.
Curative instructions may be necessary here. This would include an instruction
based on Seppi v. Betty, 579 P.2d 683 (Id.Sup.Ct. 1978). The instruction in Seppi
informed the jury that if the allocation of responsibility to the plaintiff was greater than
that allocated to the defendant, the plaintiff would receive nothing. Id. The Seppi
decision’s reasoning applies with equal strength to the issue here, informing the jury that
their award of damages will be reduced by the percentage of responsibility they allocated
to the abuser:
It would be incredibly naive to believe that jurors, after having listened
attentively to testimony of the parties and a parade of witnesses and after
having heard the arguments of counsel, will answer questions on a special
verdict form without giving any thought to the effect those answers will have
on the parties and to whether their answers will effectuate a result in accord
with their own lay sense of justice. With respect to most questions, the jury
would have to be extremely dullwitted not to be able to guess which answers
favor which parties. In those instances where the legal effect of their answers
is not so obvious, the jurors will nonetheless speculate, often incorrectly, and
thus subvert the whole judicial process. It is this latter problem, juries
speculating on the effect of their answers, that creates a unique danger when
the issues in a comparative negligence case in Idaho are submitted to a jury
in a special verdict form.
579 P.2d at 690. By instructing the jury of the effect of their allocation of responsibility,
the jury will be much less likely to make incorrect assumptions and render a verdict that
truly matches their intent. The Court therefore intends to draft its instructions so that the
jury fully understands that any percentage of responsibility allocated to the abuser will
reduce plaintiffs’ damages by that percentage.
Analysis – Motion to Exclude Police from Verdict Form
Memorandum Decision & Order – page 6

In the same motion, plaintiffs ask the Court to exclude the police from the verdict
form. BSA did not respond to this request in its response brief, and the Church states that
“[t]he police’s involvement is not at issue in the only remaining claim against the Church,
Doe XII’s.” See Church Brief (Dkt. No. 473) at p. 2. The Court will therefore grant the
plaintiffs’ motion to the extent it seeks to exclude the police from the verdict form.
Conclusion
The Court will therefore deny that portion of plaintiffs’ motion seeking to exclude
the abusers from the verdict form but grant the motion to exclude the police. With regard
to the abusers being on the verdict form, the Court will draft its jury instructions to
inform the jury of the effect of any allocation of responsibility they make.
MOTION TO EXCLUDE LIBEY WITNESSES
Introduction
BSA has filed a motion to exclude any testimony from third-party witnesses
related to allegations of abuse by former Scoutmaster Lawrence Libey. BSA argues that
the allegations are not relevant because they fail to address any of the elements of
constructive fraud. The testimony at issue is that of (1) David Eveland, a former
Scoutmaster, (2) George Poleson, who was a Scout in Troop 156 where Libey was a
Scoutmaster, (3) testimony of Does XX, XXIII, and XXIV who were abused by Libey,
and (4) other persons related to Troop 156. The Court will review the testimony of each
below.
Dave Eveland

Memorandum Decision & Order – page 7

He will testify that he suspected Libey of sexually abusing Scouts after he saw
Libey sleep with a Scout in a tent during a campout. He complained to the sponsoring
organization – the Elks Lodge – and gave them an ultimatum that if Libey stayed as a
leader, he (Eveland) would resign.
This testimony is relevant because BSA has not stipulated that Doe IV and Doe
XVIII were abused by Libey. Eveland’s testimony that he saw Libey sleeping with a
Scout in a tent (with no other adult in the tent) during a campout is some evidence
confirming the accounts of abuse by the plaintiffs here, Doe IV and Doe XVIII. The
Court will therefore deny the motion to exclude Eveland’s testimony.
George Poleson
Poleson will testify that in 1969 or 1970, he went with his father to a meeting with
Unit Chairman Phil Weisgerber to address rumors about Libey sexually abusing Scouts.
Poleson was a 12-year boy at the time and waited outside Weisgerber’s office while his
father, Libey, and other fathers, met with Weisgerber. Poleson could not hear what the
men discussed but recalls that when the meeting was over, his father came out and told
him “if he [Libey] touches you, you will let us know, and we will take care of it right
now." See Poleson Deposition (Dkt. No. 300 – Exh. 60) at p. 31. Poleson testified that
another father who had been in the meeting said the same thing to his son who was
waiting with Poleson outside the meeting room. Id.
A reasonable inference from Poleson’s testimony is that the men were discussing
rumors of Libey’s sexual abuse of Scouts. In that sense, Poleson’s testimony is relevant
because it confirms plaintiffs’ testimony of abuse, a fact at issue in this case.
Memorandum Decision & Order – page 8

But this reasonable inference depends entirely on the father’s statement (“If he
touches you . . .”) being admissible. Without that statement, Poleson’s testimony is
reduced to inadmissible speculation about what men discussed behind closed doors. See
Poleson’s Deposition, supra, at p. 30 (“And we kind of really didn’t know what was
going on”). But with the father’s statement, Poleson’s testimony rises above mere
speculation – the father’s statement confirms Poleson’s own recollection of the meeting’s
purpose. Id. (“[I was aware of the rumor of Libey’s abuse] because of what my father
and Bill’s father said when they came out”). So, the key issue is whether Poleson’s
recollection of his father’s statement is admissible.
The father’s statement is being introduced to show his concern that Libey is an
abuser, and so is being offered for its truth (that he was concerned) and is therefore
hearsay. But an exception applies for a statement “of the declarant’s then-existing state
of mind” – the statement shows the father’s then existing state of mind, i.e., his concern
that Libey is an abuser. See Rule of Evidence 803(3). The father’s statement is
admissible, and thus Poleson’s testimony about his recollection of the meeting is
admissible. The motion to exclude this testimony will be denied.
Does XX, XXIII, & XXIV:
All three of these witnesses will testify that they were abused by Libey in the years
between 1970 and 1972. This testimony directly confirms plaintiffs’ testimony of abuse,
a fact at issue, and is therefore relevant. The motion to exclude this testimony will be
denied.
Other Third-Party Witnesses
Memorandum Decision & Order – page 9

Plaintiffs served a witness disclosure that identified other third-party witnesses
who may testify as having heard that Scouts in Troop 156 were abused. For example,
Marcy Jacobson may testify that her brother was abused by Libey. Gerald Conway
recalls rumors about kids going to Libey's trailer. David Lockhert remembers “jokes
among the boys that they should `watch themselves' if they were invited to Libey's
trailer.” Richard Nice believes “Libey abused kids in the troop.”
BSA moved to exclude this testimony and plaintiffs did not address that part of the
motion in their response brief. The Court does not have any deposition excerpts or other
material on which to base a ruling concerning these witnesses. While the plaintiffs’
failure to offer any support for these witnesses might normally warrant exclusion, the
Court would be excluding evidence in complete ignorance of the context of the testimony
being excluded. The Court will therefore deny the motion to exclude at this time without
prejudice to the right of BSA to raise these same grounds at trial.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to exclude the
perpetrators and other unnamed wrongdoers from the verdict form (docket no. 429) is
GRANTED IN PART AND DENIED IN PART. It is granted as to the police but denied
in all other respects. This denial is conditioned on the Court’s intent to draft the jury
instructions to fully inform the jury of the effect of their verdict.
IT IS FURTHER ORDERED, that the motion to exclude Libey witnesses (docket
no. 382) is DENIED.
Memorandum Decision & Order – page 10

DATED: April 17, 2019
_________________________
B. Lynn Winmill
United States District Judge

Memorandum Decision & Order – page 11