Doe v. Society of the Missionaries of the Sacred Heart et al

Filing 140

MEMORANDUM Opinion and Order Signed by the Honorable Edmond E. Chang on 11/13/2012:Mailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN DOE,
Plaintiff,
v.
SOCIETY OF THE MISSIONARIES OF
THE SACRED HEART, and
PHILIP DEREA,
Defendants.

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No. 11 C 2518
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Plaintiff John Doe1 alleges that Defendant Father Philip DeRea sexually abused
Doe over a period of about eight years in the 1980s, and that Defendant Society of the
Missionaries of the Sacred Heart was negligent for failing to stop the abuse.2 In his
amended complaint, Doe brings a state-law personal injury claim against DeRea, and
a negligent supervision claim against the Society. R. 7.The Society moves to dismiss
the claims in Doe’s amended complaint as barred by the statute of limitations (DeRea
adopted the motion, so he is also a movant). R. 47, 50.3 For reasons explained more
fully below, the Society’s and DeRea’s motions are denied.

1

Doe’s motion to proceed under a pseudonym, R. 5, will be addressed in a separate

order.
2

The Court has subject matter jurisdiction over this case based on diversity jurisdiction.
See 28 U.S.C. § 1332.
3

DeRea moved to adopt the Society’s motion to dismiss and briefs. R. 50, 72. This Court
granted DeRea’s motions to adopt. R. 53, 74.

I.
In evaluating a motion to dismiss, the Court must accept as true the complaint’s
factual allegations. John Doe is a citizen of Maryland. R. 7, Am. Compl. ¶ 2. Doe was
born in 1969, and grew up in Washington, D.C.. Id. ¶¶ 2, 7. Doe was raised in a
traditional Catholic family, attended Catholic schools, and served as an altar boy. Id.
¶ 7. The Society ordained DeRea as a priest in 1968. Id. ¶ 8. Doe and DeRea met in
1980, when Doe offered to shovel snow for DeRea after a storm. Id. ¶ 9. Doe was
around 11 years old at the time. Id. ¶ 10. DeRea lived and worked just blocks from
Doe’s home. Id. ¶ 9. Over the next few months, DeRea developed a relationship with
Doe by offering Doe odd jobs, rides, and invitations to meals at DeRea’s home. Id.
DeRea began to sexually abuse Doe within a few months of their initial meeting,
and continued to do so for about eight years. Am. Compl. ¶¶ 10, 19. The abuse included
DeRea fondling Doe, showing Doe pornographic movies, performing oral sex on Doe,
having Doe perform oral sex on DeRea, having Doe masturbate DeRea to orgasm,
digitally penetrating Doe, and performing anal sex on Doe. Id. ¶ 11. Because of Doe’s
deep respect for priests, Doe “did not realize at the time that there was anything wrong
with DeRea’s conduct.” Id. ¶ 15. DeRea assured Doe of the “special nature” of their
friendship and“repeatedly instructed [Doe] not to tell anyone about” the sexual
contacts. Id. ¶ 17. Doe “regarded DeRea as larger than life, almost like a saint...[and]
never recognized until many years later that DeRea’s conduct with him was abusive.”
Id. ¶ 20.

2

In the spring of 2006, an incident with Doe’s son triggered “a flood of memories
into [Doe’s] consciousness about the sexual abuse by DeRea” and “[f]or the first time,
[Doe] began to realize what had really happened in his relationship with DeRea.” Am.
Compl. ¶ 22. Prior to this episode, Doe “was not cognizant that the activity engaged in
with DeRea was, in fact, sexual abuse.” Id. ¶ 23. Since 2006, as a result of the abuse,
Doe has suffered from severe depression, emotional distress, episodes of binge eating,
difficulties with emotional intimacy, and other psychological problems. Id. ¶¶ 25, 32.
Doe was eventually assessed by a psychologist who determined that “the effects [of the
abuse] were in a dormant stage and dissociated from [Doe’s] daily life and functioning
until 2006.” Id. ¶ 31. Doe was diagnosed with a dissociative disorder that “involv[ed]
active splitting off and compartmentalizing of his experience and somatic reactions,
and memory disturbance.” Id. ¶¶ 32-33. Doe’s “memory of the abuse . . . was not in his
conscious awareness throughout his adolescent and adult life until its emergence was
triggered by an event reminiscent of the original trauma in 2006.” Id. ¶ 33.
Because the parties’ arguments about the statutes of limitations are particularly
dependent on Doe’s age and the timing of events, a summary of the key dates may be
helpful. Doe was born in 1969. Am. Compl. ¶ 2. DeRea’s abuse began sometime around
1980, when Doe was 11. Id. ¶ 10. In 1987, Doe turned 18. Doe was 37 when he
experienced the “triggering event” in 2006 that he alleges led to his discovery of the
abuse and his injuries. Id. ¶ 22. Doe filed his complaint on April 14, 2011, when he was
42 years old. R. 1, Compl.
II.
3

Under the Federal Rules of Civil Procedure, a complaint generally need only
include “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give the
defendant fair notice of what the claim is and the grounds upon which it rests.” Bell
Atl. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and quotations omitted).
The Seventh Circuit has explained that this rule “reflects a liberal notice pleading
regime, which is intended to focus litigation on the merits of a claim rather than on
technicalities that might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580
(7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state
a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police
Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[W]hen ruling on a defendant's
motion to dismiss, a judge must accept as true all of the factual allegations contained
in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations
omitted); McGowan v. Hulick, 612 F.3d 636, 638 (7th Cir. 2010) (courts accept factual
allegations as true and draw all reasonable inferences in plaintiff's favor). A “complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). These allegations “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. Moreover, although the court must take
all of the factual allegations in the complaint as true, it is not required to accept as true
legal conclusions couched as factual allegation. Iqbal,556 U.S. at 679.
4

III.
For reasons discussed more fully below, Doe’s complaint will not be dismissed
at this stage of the litigation, because (1) Doe’s allegations that he did not discover that
DeRea’s conduct constituted sexual abuse, and he was not aware of any injuries arising
from the abuse, until 2006 are sufficient to invoke the discovery rule at this stage to
delay the start of the limitations period; and (2) Doe filed his claim within the
limitations period imposed by the applicable statute of limitations from the date of
discovery.
A.
Although a statute of limitations defense will not normally form the basis for a
motion to dismiss under Rule 12(b)(6), see Richards v. Mitcheff, 696 F.3d 635, 637-38
(7th Cir. 2012), it “is appropriate where the allegations of the complaint itself set forth
everything necessary to satisfy the affirmative defense, such as when a complaint
plainly reveals that an action is untimely under the governing statute of limitations.”
Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir. 2008) (internal
citations and quotations omitted). The Seventh Circuit has noted that dismissal under
Rule 12(b)(6) on the basis of the statute of limitations is “irregular,” since it is an
affirmative defense for which the defendant bears the burden of proof. United States
v. Northern Trust Co., 372 F.3d 886, 888 (7th Cir. 2004) (citing Fed. R. Civ. P. 8(c)).
More precisely, where a plaintiff has “pleaded [himself] out of court by alleging things
that, if true, devastate [his] claim,” id., and the basis for dismissal is the statute of

5

limitations, then the dismissal is actually based on Rule 12(c) (judgment on the
pleadings), Richards, 696 F.3d at 637-38.
According to the amended complaint, the sexual abuse was perpetrated by
DeRea between 1980 and 1988.4 Am. Compl. ¶¶ 9-21. At that time, the limitations
period in Illinois for a claim for childhood sexual abuse was governed by the general
statute of limitations for personal injury actions.5 735 Ill. Comp. Stat. 5/13-202 (eff.
July 1, 1987); Clay v. Kuhl, 727 N.E.2d 217, 220-21 (Ill. 2000). Although the Illinois
legislature subsequently enacted a specific statute of limitations for claims of childhood
sexual abuse in 1991, the Society correctly argues that such an enactment, as well as
any amendments to it, are irrelevant if Doe’s claims expired before 1991. M.E.H. v.
L.H., 685 N.E.2d 335, 339 (Ill. 1997) (“[O]nce a statute of limitations has expired, the

4

The Society argues that Doe’s claims based on conduct that occurred after Doe turned
18 (in 1987) cannot possibly be actionable at this time, because, no matter what, such claims
are subject to the standard two-year statute of limitations for personal injury claims. R. 70,
Def.’s Reply Br. at 1-3. In his response brief, Doe affirmatively states that his “claims are based
only on the seven years of abuse and negligent supervision . . . that occurred prior to Doe
attaining majority,” and concedes that conduct after he turned 18 would not be actionable
because more than two years have lapsed since the alleged discovery of his claims in 2006.
R.64, Pl.’s Resp. Br. at 8 n.6. As explained below, the precise date that the actionable conduct
ended is not material to this opinion, given the application of the discovery rule. There is no
need to decide now whether the conduct that occurred after Doe turned 18 is relevant and
admissible even though the conduct is not by itself the basis for liability.
5

Since we decide this case under diversity jurisdiction, the Court is bound to apply the
substantive law of the forum state, including its choice-of-law rules. Klaxon Co. v. Stentor Elec.
Co., Inc., 313 U.S. 487, 496 (1941). As a general rule, statutes of limitations are considered to
be substantive for purposes of the Erie doctrine. Guaranty Trust v. York, 326 U.S. 99, 110
(1945). However, Illinois choice-of-law rules regard statutes of limitations as procedural, and
thus an Illinois court would apply its own statutes of limitations to this case, even though its
choice-of-law principles might dictate the application of another state’s substantive law. Cox
v. Kaufman, 571 N.E.2d 1011, 1015 (Ill. App. Ct. 1991).

6

defendant has a vested right to invoke the bar of the limitations period as a defense to
a cause of action...[and that right] cannot be taken away by the legislature . . .”).
In 1988, the Illinois statute of limitations for personal injury actions provided
that “[a]ctions for damages for an injury to the person . . . shall be commenced within
2 years next after the cause of action accrued . . . .” 735 Ill. Comp. Stat. 5/13-202 (eff.
July 1, 1987). In addition, a separate provision tolled the start of the limitations period
for minors until they reached the age of majority (in Illinois, age 18). 735 Ill. Comp.
Stat. 5/13-211 (eff. Jan. 1, 1991). The central disagreement between the parties is when
Doe’s claims accrued, that is, when the limitations period began to run on Doe’s claims.
The Society argues that Doe’s claims accrued when Doe turned 18 (in 1987) and were
time-barred, at the latest, by 1990, two years from the date of the last instance of
abuse. R. 48, Def.’s Mem. Supp. Dismiss. at 2. Thus, the Society argues, the 1991
enactment of a special statute of limitations for childhood sexual abuse claims does not
apply to Doe’s claims because they were already time-barred in 1991. Id.
Doe argues in response that, under the discovery rule, his claims did not accrue
until 2006, and the recent amendments to the statute of limitations for childhood
sexual abuse claims therefore do apply. R. 64, Pl.’s Resp. Br. at 5-7. If the most recent
amendment to the childhood sexual abuse statute of limitations applies, Doe need only
have commenced his action within 20 years of the date he “discovers or through the use
of reasonable diligence should discover both (i) that the act of childhood sexual abuse
occurred and (ii) that the injury was caused by childhood sexual abuse.” 735 Ill. Comp.
Stat. 5/13-202.2(b) (eff. July 1, 2011); Pl.’s Resp. Br. at 6. The parties thus disagree
7

whether the discovery rule delayed the start of the limitations period for Doe’s claims
until 2006.
B.
Although the Illinois legislature later codified the discovery rule specifically for
childhood sexual abuse claims, at the time of the misconduct alleged in Doe’s
complaint, the common law version of the discovery rule would have applied to Doe’s
claims. Clay, 727 N.E.2d at 220-221. The discovery rule comprises a two-part inquiry.
“Under the [common law] discovery rule, a party’s cause of action accrues when [1] the
party knows or reasonably should know of an injury and [2] that the injury was
wrongfully caused.” Id. at 220 (citations omitted). In light of that two-part inquiry,
Illinois case law generally recognizes that the discovery rule’s applicability is ordinarily
a fact question. “The issue whether an action was brought within the time allowed by
the discovery rule is generally resolved as a question of fact,” Clay, 727 N.E.2d at 221
(citations omitted), but may be determined as a matter of law “when the answer is
clear from the pleadings.” Id.; Witherell v. Weimer, 421 N.E.2d 869, 874 (Ill. 1981)
(“Where it is apparent from the undisputed facts . . . that only one conclusion can be
drawn, the question [of the discovery rule] becomes one for the court.”). Here, Doe’s
amended complaint, accepting the allegations are true, supports application of the
discovery rule: Doe alleges that he “did not recognize [DeRea’s conduct] as sexual abuse
until 2006,” and Doe alleges that his injuries “first actively manifested in 2006.” Am.
Compl. ¶¶ 38, 39. Moreover, DeRea allegedly used his authority and position of trust
to prevent Doe from realizing that the abuse was wrongful (until 2006). Am. Compl.
8

¶¶ 11, 15, 17, 22, 23, 31, 38, 39. Based on these allegations, Doe’s claim did not accrue
until 2006 because it was only then that he knew, or reasonably should have known,
of the injuries, and that the injuries were wrongfully caused.
In response, the Society argues that the discovery rule is inapplicable to save
Doe’s claims. Def.’s Mem. Supp. Dismiss. at 9. According to the Society, the Illinois
Supreme Court held in Clay v. Kuhl, 727 N.E.2d 217 (Ill. 2000), that sexual abuse is
a “sudden traumatic event” and therefore “the limitations period commences the
moment the act of abuse occurred.”Id. (citing Clay, 727 N.E.2d at 222). But Doe
correctly points out in his response that the Illinois Supreme Court has never so held.
Pl.’s Resp. Br. at 11. Rather, in Clay, the Illinois Supreme Court specifically noted that
it made “no determination” whether, as a matter of law, the discovery rule could—or
could not—apply to claims of childhood sexual abuse. 727 N.E.2d at 222; see also id. at
220 (“We need not determine in this case whether the instances of childhood sexual
abuse alleged here must be considered ‘sudden traumatic events’ for purposes of
applying the statute of limitations.”). Clay analyzed the plaintiff’s claims assuming the
discovery rule might apply, and found that the discovery rule—in that case—was not
“of assistance” to the plaintiff. Id. at 220.
Although Clay did not hold the discovery rule inapplicable to childhood sexual
abuse claims as a matter of law, Clay did reject the application of the discovery rule to
allegations similar to (though, as explained below, distinguishable from) those in Doe’s
amended complaint. So an extended discussion of Clay is warranted. In that case, Clay
brought suit in 1996 against clergyman Kuhl and the religious order to which Kuhl
9

belonged (the same defendant as in this case, the Society), alleging that Kuhl had
sexually abused Clay throughout the 1970s, and that the Society was aware of the
abuse but did not take steps to prevent it. Clay, 727 N.E.2d at 219. The defendants
moved to dismiss, arguing that Clay’s claims were barred by the applicable statute of
limitations. Id. Clay countered, as Doe does here, that the limitations period on her
claims was extended by the discovery rule. Id. at 220. To decide the case, the Illinois
Supreme Court analyzed whether Clay “establish[ed] the timeliness of her action under
the discovery rule,” and ultimately determined that she had not. Id. The Court found
that “the allegations of [Clay’s] complaint make it clear that [Clay] had sufficient
information about her injury and its cause to require her to bring suit long before the
date of discovery alleged in the complaint.” Id. at 221. The Court further held:
Given the allegations in the [complaint], which show that [Clay] was always
aware of the misconduct charged, and the absence of any contrary assertion that
[Clay] repressed memories of the abuse, we believe that [Clay’s] action must be
considered untimely under the discovery rule.
Id. at 221-22 (emphasis added). The crucial component of the Court’s holding was the
majority’s conclusion that Clay was “always aware of the misconduct charged.”6 Id. at

6

Without the benefit of the entire record in Clay, it is not crystal clear what parts of the
amended complaint led the Court to conclude that Clay had conceded that she always knew
of the injury, or at least some of the injury. Arguably, at least one allegation in Clay’s third
amended complaint is to the contrary, namely, the allegation that “[a]t the time the abuse
occurred, [Clay] did not know it was abnormal behavior.” 727 N.E.2d at 221. Nevertheless, as
explained above, the Illinois Supreme Court concluded that Clay “had sufficient information
about her injury and its cause” that she should have brought her claim “long before the date
of discovery alleged in the complaint.” Id. Apparently, somewhere in the litigation Clay
admitted that she was aware of some injury before the date of her alleged “discovery.” See id.
(quoting the allegation in Clay’s complaint that “the injuries were not caused immediately but
evolved with the overlay of life experience”).

10

221. Clay’s holding therefore, as described by the Illinois Supreme Court in a later
case, is that the discovery rule cannot save a plaintiff’s otherwise time-barred claim for
childhood sexual abuse when the plaintiff “was aware of the abuse as it occurred and
does not allege that she repressed memories of that abuse.” Parks v. Kownacki, 737
N.E.2d 287, 294 (Ill. 2000) (citing Clay) (emphasis added).
Clay is distinguishable because here Doe alleges not merely that he was
unaware of the causal connection between his injuries and the abuse by DeRea until
2006, but that he “did not recognize [DeRea’s conduct] as sexual abuse until 2006,” and
that his injuries “first actively manifested in 2006.” Am. Compl. ¶¶ 38, 39. In other
words, whereas Clay apparently suffered injuries related to the abuse well before the
date of her alleged discovery, and “was always aware of the misconduct,” Clay, 727
N.E.2d at 220, Doe has alleged that he did not recognize that DeRea’s conduct was
misconduct or that it was harmful, and did not suffer injury, until 2006. Nor, as alleged
by Doe, should Doe have known that DeRea’s conduct was misconduct, given Doe’s age
at the time and DeRea’s assurances of the “special nature of their friendship.” Am.
Compl. ¶ 17. Accepting Doe’s allegations as true, as we must when evaluating a motion
to dismiss, Doe has pled enough facts to trigger the application of the discovery rule
at this stage of the litigation. See Witherell, 421 N.E.2d at 874 (the discovery rule will
delay the start of the limitations period until a plaintiff “knows or reasonably should
know of his injury and also knows or reasonably should know that it was wrongfully
caused”).

11

It is true that Clay also went on to address and reject Clay’s argument that her
injuries were “latent to some extent,” and that her failure to “fully” discover her
injuries was sufficient to delay the running of the limitations period. Clay, 727 N.E.2d
at 222. The Society has latched onto the language in this portion of Clay’s analysis to
argue that Doe’s claims must be dismissed under the statute of limitations. Def.’s
Mem. Supp. Dismiss. at 9. Specifically, the Society argues that “Illinois law presumes
an intent to harm and a resulting injury” from childhood sexual abuse, and thus the
limitations clock immediately starts ticking from the moment the abuse begins and the
discovery rule cannot prevent the ticking. Id. (citing Clay, 727 N.E.2d at 222). But that
does not follow. The actual point that Clay was making was that the plaintiff—who
knew of some injury but not necessarily its full extent—did not have to wait to file suit
until she knew of the injury’s full extent. It was in this context that the Illinois
Supreme Court stated, “Notably, Illinois law presumes an intent to harm and a
resulting injury from the type of misconduct allegedly committed by Kuhl. . . . Thus,
it was not necessary that the plaintiff postpone the commencement of her action until
she was aware of the full extent of her injuries.” Clay, 727 N.E.2d at 222 (citations
omitted). So, for someone like Clay, who knew that she had suffered some injury, the
abuse claim accrued and the limitations clock started ticking. What the Court in Clay
was understandably concerned about was a rule that would “improperly create a
subjective standard,” by forcing a court to decide how much injury is needed before the
discovery rule applies (or does not apply). Id. at 223. If Doe alleged in this case that he
recognized DeRea’s conduct as abusive when it occurred, but simply did not suffer the
12

full extent of his injuries until 2006, his claim would be barred by the statute of
limitations. Doe alleges, however, that no injury manifested until 2006. Am. Compl.
¶¶ 31, 39.
Indeed, the presumption of intentional injury allows a victim of abuse who
knows that he or she has suffered some injury to bring the claim immediately following
the abuse, without the need to know the full extent of the injury.7 Allowing suit to be
brought by a victim who knows of some injury is a far cry from holding that the
discovery rule can never apply to abuse claims simply because there is a presumption
of intentional injury. Clay did not reject the discovery rule’s application to abuse cases
that present the right facts. Doe alleges that no injury manifested until 2006, Am.
Compl. ¶¶ 31, 39, and that Doe did not recognize DeRea’s actions as misconduct until
then. These allegations are sufficient to allow Doe to invoke the discovery rule at this
stage.8
Although not cited by the parties, it is worth addressing a recent case decided
by the Illinois Appellate Court, Softcheck v. Imesch, 855 N.E.2d 941 (Ill. App. Ct. 2006),

7

See Doe v. Montessori School, 678 N.E.2d 1082, 1089 (Ill. App. Ct. 1997) (holding that
injury is presumed in claims of childhood sexual abuse for purposes of determining whether
a plaintiff who was 2 ½ years old at the time of the abuse may proceed with her claim even
though she did not recall the abuse).
8

The Society’s reference to Seventh Circuit precedent is similarly unavailing. Hollander
v. Brown, 457 F.3d 688 (7th Cir. 2006), cites to Clay in determining whether the discovery rule
should apply, but does so in the context of holding that the discovery rule does not delay the
limitations period on a plaintiff’s claim where it was obvious that she suffered injuries at the
time the alleged sexual assault occurred, even if she only later discovered the full extent of her
injuries. Id. at 692-93. Hollander is also distinguishable because it involved the forcible sexual
assault and kidnaping of an adult, id. at 690-91, instead of a minor who is less able to
understand that he has been injured.

13

because of its factual similarity to this case and because its reading of Clay is
potentially at odds with this Court’s analysis. In Softcheck, multiple plaintiffs brought
tort claims against two priests and their Diocese, alleging that the priests had abused
them in the late 1970s. 855 N.E.2d at 943. With regard to the timing of their suit, the
Softcheck plaintiffs alleged that:
[They] did not, in fact, begin to perceive the wrongfulness of the conduct of
defendants until 2002 when they heard of pedophile priest litigation involving
other priests and dioceses and began to realize that their own experiences may
have been victimization possibly having a causal relation to their emotional and
psychological disturbances.
Id. at 944. The court in Softcheck determined that the plaintiffs’ claims were timebarred because they did not plead facts sufficient to invoke the discovery rule. Id. at
947.
In arriving at its conclusion, Softcheck stated that the case was “on all fours”
with Clay. Id. Despite the plaintiffs’ allegations that they did not understand the
wrongfulness of the defendants’ conduct at the time it occurred, Softcheck held that the
plaintiffs’ allegations “simply do not lead to a reasonable inference sufficient to invoke
the discovery rule.” Id. at 948. According to Softcheck, Clay held that a childhood
sexual abuse victim cannot invoke the discovery rule unless the plaintiff alleges that
“defendants or anyone tried to convince [him] . . . that sex between a priest and a child
is not wrongful but, rather, beneficial to the child’s growth.” Softcheck, 855 N.E.2d at
948 (citing Clay). Softcheck reached this conclusion based on its reading of the Clay’s
discussion of Illinois law’s presumption of an intent to harm in cases of childhood
sexual abuse. Id. (citing Clay, 727 N.E.2d at 222). But as explained above, Clay’s
14

discussion of the presumption of intent to harm, and the difficulties of a “subjective”
standard, were in reference to the rule in Illinois that a plaintiff’s failure to
comprehend “the full extent” of an injury is insufficient to invoke the discovery rule so
long as the plaintiff understood that he or she has suffered some injury. Clay, 727
N.E.2d at 222-23. To the extent that Softcheck holds otherwise, this Court’s assessment
is that the Illinois Supreme Court would not agree. See Allstate Ins. Co. v. Menards,
285 F.3d 630, 635 (7th Cir. 2002) (state supreme court’s interpretation of state law
controls in diversity cases).
What’s more, even accepting Softcheck on its own terms, that case might be
distinguishable. Here, in his amended complaint Doe alleges that DeRea (for whose
conduct the Society is allegedly liable) so deeply indoctrinated Doe that he did not
realize the abuse was wrongful until the triggering event in 2006 and, just as
importantly, that the injuries did not manifest themselves until that later time. Am.
Compl. ¶¶ 11, 15, 17, 22, 23, 31, 38, 39. In contrast, it appears that the plaintiffs in
Softcheck suffered from psychological and emotional disturbances before 2002, and
simply did not realize the connection to the abuse they suffered until 2002. Softcheck,
855 N.E.2d at 944. Therefore, even assuming Softcheck properly interpreted Clay,
those facts are distinguishable from this case, where Doe alleges that injuries did not
manifest themselves until 2006.
Lastly, both sides in this case sought to rely on another, recently-decided abuse
case, namely, Wisniewski v. Diocese of Belleville, 943 N.E.2d 43 (Ill. App. Ct. 2011). On
one side, Doe argues that Wisniewski holds that the discovery rule may apply in cases
15

like Doe’s to delay the limitations period for claims of childhood sexual abuse, Pl.’s
Resp. Br. at 9-10, whereas the Society claims that Wisniewski “supports a dismissal in
the instant action,” Def.’s Mem. Supp. Dismiss. at 9. But the procedural posture of
Wisniewksi is entirely different from this case, and it is therefore difficult to draw any
lessons from its analysis of Clay. In Wisniewski, the plaintiff brought claims not only
of battery and negligence, but also alleged that the Diocese had fraudulently concealed
Wisniewski’s cause of action. Wisniewski, 943 N.E.2d at 68. A jury trial was held on the
fraudulent concealment claim to determine whether that could revive Wisniewski’s
claims that were otherwise barred by the statute of limitations and statute of repose.
Id. The opinion arose from the trial court’s denial of the Diocese’s motion for a
judgment notwithstanding the verdict, on the jury’s finding that the Diocese had
fraudulently concealed Wisniewski’s cause of action. Id. at 69. Given that posture, the
appellate court did not directly address the question of whether the discovery rule
could apply to Wisniewski’s claims, since the trial court had apparently already
decided that issue in the negative on an earlier summary judgment motion. The
appellate court held, however, that the trial court properly submitted the question of
when Wisniewski discovered his claim to the jury as a factual issue, and distinguished
Clay on that basis. Id. at 84. But that analysis was in the context of the court’s
discussion of the fraudulent concealment issue, and thus, its applicability to this case
is questionable. At most, Wisniewski provides indirect support, consistent with this
opinion, that Clay does not hold, as a matter of law, that the discovery rule cannot
apply to claims of childhood sexual abuse.
16

C.
Because the Court holds, at this stage, that the amended complaint adequately
alleges facts that permit the discovery rule to delay the start of the limitations period
on Doe’s sexual abuse claims until 2006, analysis of the amendments to the specialized
statute of limitations for childhood sexual abuse claims is necessary.9 According to the
allegations of Doe’s complaint, and the analysis above, Doe discovered his claim
sometime in 2006. Therefore, the Court must determine whether Doe filed his
complaint within the time required by the statute of limitations that was in place
between 2006 and the time that Doe filed suit on April 14, 2011. In 2006, 735 Ill.
Comp. Stat. 5/13-202.2 permitted childhood sexual abuse claims to be filed within five
years of the date of discovery. See 735 Ill. Comp. Stat. 5/13-202.2 (eff. July 24, 2003),
2003 Ill. Legis. Serv. P.A. 93-356 (West). On January 1, 2011, before Doe’s five years
to file his claim could have expired, the statute was again amended to allow childhood
sexual abuse claims to be filed within 20 years of the date of discovery. See 735 Ill.
Comp. Stat. 5/13-202.2 (eff. Jan. 1, 2011), 2010 Ill. Legis. Serv. P.A. 96-1093 (West). As
with previous amendments, the 2011 amendments “apply to actions commenced on or
after [January 1, 2011] . . . if the action would not have been time barred under any

9

As noted, in 1991 the Illinois legislature formally codified the common law discovery
rule for claims of childhood sexual abuse. See 735 Ill. Comp. Stat. 5/13-202.2 (eff. Jan. 1, 1991),
1990 Ill. Legis. Serv. P.A. 86-1346 (West). Because the parties here do not argue, and the Court
does not find, that the enactment or any subsequent amendments to it narrowed the common
law discovery rule, the Court need not analyze whether Doe’s invocation of the discovery rule
survived each iteration of 735 Ill. Comp. Stat. 5/13-202.2. See D.P. v. M.J.O., 640 N.E.2d 1323,
1326 (Ill. App. Ct. 1994) (noting that the discovery rule in 13-202.2 “correlates” with the
judicially developed discovery rule).

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statute of limitations or statute of repose prior to [January 1, 2011].” Id. Because Doe’s
claims were not barred by any previously-effective statutes of limitations, in light of
the discovery rule, the 2011 amendment applies to his claims, and he was well within
the 20-year limitations period when he filed suit in April 2011.
IV.
For the reasons stated above, Defendants’ motion to dismiss [R. 47] is denied.
Both Defendants shall file an answer to the amended complaint on or before December
4, 2012. Status hearing is set for December 11, 2012 at 10 a.m.
ENTERED:

___________________________
Honorable Edmond E. Chang
United States District Judge
DATE: November 13, 2012

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