Watkins v. Archdiocese of Portland in Oregon et al

Filing 74

OPINION & ORDER: Defendants' motion for summary judgment 33 is Granted, Defendants' motion for judicial notice 38 is Granted, Plaintiff's motion to re-open discovery 50 is Denied as Moot, and Plaintiff's motion for leave of court to disclose a supplemental expert witness opinion 51 is Denied as Moot. A final judgment should be prepared. Signed on 11/19/12 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

J. WATKINS,
Plaintiff,
3:11-CV-501-PK
v.

OPINION AND
ORDER

THE ARCHDIOCESE OF PORTLAND IN
OREGON and THE ROMAN CATHOLIC
ARCHBISHOP OF PORTLAND IN
OREGON,
Defendant.
PAPAK, Magistrate Judge:
Plaintiff J. Watkins filed this action against defendants The Archdiocese of Portland in
Oregon (the "Archdiocese") and The Roman Catholic Archbishop of Portland in Oregon (the
"Archbishop") on April 22, 2011. Watkins amended his complaint effective July 5, 2011.
Watkins alleges defendants' vicarious liability for the sexual battery of a child on a theory of
respondeat superior, arising out of sexual touching that Watkins suffered during his minority
between 1965 and 1969 at the hands of two priests employed by the defendants (Fathers Laughlin
and Durand). This court has jurisdiction over Watkins' action pursuant to 28 U.S.C. § 1334(b),
based on the relatedness of these proceedings to a case arising under Title 11 of the United States

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Code.1
Now before the court are defendants' motion (#33) for summary judgment (by and
through which defendants argue that Watkins' claims are time-barred), defendants' motion (#38)
for judicial notice, plaintiff's motion (#50) to re-open discovery, and plaintiff's motion (#51) for
leave of court to disclose a supplemental expert witness opinion. I have considered the motions,
oral argument on behalf of the parties, and all of the pleadings and papers on file. For the
reasons set forth below, defendants' motion (#33) for summary judgment is granted, defendants'
motion (#38) for judicial notice is granted, and, in light of my disposition of defendants'
dispositive motion, plaintiff's motion (#50) to re-open discovery and motion (#51) for leave of
court to disclose a supplemental expert witness opinion are each denied as moot.
LEGAL STANDARDS
I.

Judicial Notice
Federal Rule of Evidence 201(d) provides that "[a] court shall take judicial notice [of an

adjudicative fact] if requested by a party and supplied with the necessary information.” An
adjudicative fact is subject to judicial notice when the fact is “not subject to reasonable dispute in
that it is either (1) generally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose accuracy cannot be
reasonably questioned." Fed. R. Evid. 201(b).

1

Specifically, this action is subject to the future claims fund under the Third Amended
and Restated Joint Plan of Reorganization confirmed in In re Roman Catholic Archbishop of
Portland, 04-37154, which, in relevant part, sets a $20 million cap on the total funds available to
pay all claims made against the Archdiocese through 2023.
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II.

Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). Summary judgment is not proper if material factual issues
exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.
1995), cert. denied, 116 S.Ct. 1261 (1996). In evaluating a motion for summary judgment, the
district courts of the United States must draw all reasonable inferences in favor of the nonmoving
party, and may neither make credibility determinations nor perform any weighing of the
evidence. See, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).
FACTUAL BACKGROUND2
I.

History of the Parties' Dispute
Watkins was born in 1955, and attended fifth through eighth grades at St. Mary Parish

and School in Corvallis, Oregon, from 1965 through 1969. During that time, Fathers Thomas
Laughlin and Donald Durand were ordained priests of the Archdiocese assigned by the
defendants to serve at St. Mary. Watkins alleges that, during his time at St. Mary:
Father Durand and Father Laughlin acted as youth pastor, priest, confessor, role
model, and friend to the Plaintiff. They sought and gained the respect, trust, and
obedience of the Plaintiff and his parents. By virtue of this relationship, over
2

Except where otherwise indicated, the following recitation constitutes my construal of
the evidentiary record in light of the legal standard governing motions for summary judgment
under Federal Civil Procedure Rule 56.
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time, Father Durand and Father Laughlin gained the support, permission, and
acquiescence of the Plaintiff’s parents to spend time with the Plaintiff, to spend
time alone with the Plaintiff, to spend substantial periods of time with the
Plaintiff, to develop and maintain a social relationship with the Plaintiff and to
become a surrogate father and role model for the Plaintiff. Father Durand and
Father Laughlin eventually won the respect, loyalty, and obedience of the Plaintiff
while simultaneously acting in the interest of their employers and employment.
Father Durand and Father Laughlin used their positions of trust to have innocent
physical contact with the Plaintiff from time to time. Fr. Durand became a
predominant authority figure and male role model in the Plaintiff’s life, holding
and exercising the power of authorship of the Plaintiff’s attitudes, thinking,
beliefs, and behavior. At all material times, Father Durand and Father Laughlin
were acting, at least initially and partially, for the benefit of the Defendants,
within the time and space parameters and within the course and scope of their
employment.
First Amended Complaint, ¶ 7.
Watkins alleges that during his time at St. Mary Fr. Laughlin subjected him on multiple
occasions to unwelcome touching, including unwanted hugs, kisses, and touching in intimate
areas.
Watkins further alleges that when he was in the seventh or eighth grade, Fr. Durand
required him to strip from the waist down and to bend over and submit to being struck on the
buttocks by Durand with a wooden paddle, as a form of discipline. He further alleges that while
he was in the eighth grade, Fr. Durand took him and other boys on a weekend trip to a cabin near
Detroit Lake in Oregon, and that during the drive up to the cabin Durand directed him to sit on
Durand's lap and steer the car from that position, in which posture Watkins could feel Durand's
erection pressing against him. Watkins further alleges that during the cabin weekend Durand
required him to wrestle with Durand and other boys in various states of undress, to take nude
saunas with Durand, to take showers out of doors within Durand's view, to submit to the forcible
removal of his clothing, to submit while snow was rubbed on his genitals by Durand or by other
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boys, and to swim naked in a river in Durand's company.
II.

Watkins' Purported Discovery that the Complained-of Conduct Constituted Sexual
Abuse
Watkins testified in deposition to having experienced strong feelings of aversion during

and after the complained-of actions described above, to feeling "very violated and angry" over
the sexual touching, and to have actively resisted most of the conduct while it was taking place.
Immediately after the cabin weekend with Fr. Durand, Watkins attempted to speak with other
affected boys about what had happened, because (according to Watkins' non-contemporaneous
report to his psychologist) he "knew Durand had done something wrong," and was shocked to
discover that the other boys did not even want to discuss it. He similarly attempted to tell his
mother about the cabin incident, but she was unwilling or unable to hear what he was trying to
tell her, causing him to feel betrayed and let down.
In or around 1975, after Watkins had attained his majority (and approximately six years
after Fr. Durand's unwelcome conduct described above), Watkins saw Fr. Durand naked in a
sauna, and reacted to the sight as though he had been shot with a "bullet to the gut." Watkins
testifies that, at that time, he feared Durand because of "the experiences [he'd] had with him at
the cabin."
In or around 1983, or approximately contemporaneously with the event, Watkins learned
that Laughlin had been convicted of sexually abusing children in his care. Watkins later reported
to his psychologist that at the time he learned of Fr. Laughlin's conviction, he told his mother he
was surprised that it had been Laughlin, but "wouldn't have been surprised" had it been Fr.
Durand who had been convicted. Watkins also reported to his psychologist that reading about

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sexual abuse allegations against the Catholic Church in the newspapers would trigger strong
emotional responses.
Watkins concedes that throughout the 2000s he was aware of sex abuse claims being
made against priests of the Archdiocese.
In approximately July 2005, Watkins' friend G.W., at the time a sex-abuse claimant
against the defendants, contacted Watkins to inquire whether Watkins would consent to speak to
G.W.'s attorney (formerly Watkins' counsel in this action) regarding the cabin weekend with
Durand. Watkins agreed to do so, and did do so. Watkins subsequently reported to his
psychologist that the call had "blown him away" and that his initial verbal respnse was "Finallly!"
Watkins understood that G.W. was making sex abuse claims against the Archdiocese, that his
claims rested in part on the same cabin weekend with Fr. Durand at which Watkins had been
present, and that it was G.W.'s theory that he was entitled to money damages because he had
suffered injury in consequence of what had occurred at the cabin.
It is Watkins' position that beginning in his early teenage years he repressed all memory
of the alleged sexual abuse, and that he was unable to recall the unwelcome sexual touching or to
understand that it had been sexually abusive until some time in 2006. Watkins does not provide
evidence that any particular event or information either suddenly or gradually made it possible
for him to understand that he had suffered sexual abuse. Instead, Watkins takes the position that
his memory simply returned to him gradually, in "snippets," begin some time after he spoke to
G.W.'s attorney.

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ANALYSIS
I.

Defendants' Motion (#38) for Judicial Notice
By and through their motion for judicial notice, defendants request that the court take

judicial notice of the following:
•

In June 1983, the State of Oregon, through the Multnomah County Circuit Court,
entered guilty pleas for Thomas B. Laughlin on two counts of child sexual abuse.

•

On June 25, 1983, The Oregonian reported that Fr. Thomas B. Laughlin pleaded
guilty to two charges of second degree sex abuse resulting from sexual contact
with two boys in 1980.

•

In August 1983, the State of Oregon, through the Multnomah County Circuit
Court, entered judgment convicting Thomas B. Laughlin of two counts of child
sexual abuse.

•

On August 30, 1983, The Oregonian reported that "[a] Catholic priest was
sentenced . . . to one year in Multnomah County jail after pleading guilty to two
misdemeanor charges of sexual abuse involving boys under the age of 18."

•

On August 31, 1983, The Oregonian published two similar reports.

I agree with the defendants that these are fit matters for judicial notice. See Fed. R. Evid.
201(b). Defendants' motion for judicial notice is therefore granted, and the court takes notice of
the subject adjudicative facts.
II.

Defendants' Motion (#33) for Summary Judgment
As noted above, the gravamen of defendant's summary judgment motion is that Watkins'

claims are time-barred. There are two discrete and independent metrics for determining the
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timeliness of Watkins' claims, namely, the applicable statute of limitations, and the so-called
"claims bar date" set by a January 2005 order of the Bankruptcy Court for the District of Oregon.
Oregon statutory law provides a two-year limitations period generally applicable to
claims sounding in tort. See Or. Rev. Stat. 12.110. Under Or. Rev. Stat. 12.160, however,
actions accruing while a plaintiff is a minor may be filed up to one year after the plaintiff attains
majority. See Or. Rev. Stat. 12.160. Moreover, under Or. Rev. Stat. 12.117, actions based on
conduct constituting child abuse may be brought at any time before the victim of child abuse
reaches the age of forty, or, in the event the victim has not by that time discovered the causal link
between the abuse and any injury suffered as a result, and in the exercise of reasonable care could
not have been expected to discover such link, within five years after the date the victim either
discovered or reasonably should have discovered the causal link. See Or. Rev. Stat. 12.117(1).3
For purposes of Section 117, the term "child abuse" is defined as:
(a)

Intentional conduct by an adult that results in:
(A)

Any physical injury to a child; or

(B)

Any mental injury to a child which results in observable and
substantial impairment of the child’s mental or psychological
ability to function caused by cruelty to the child, with due regard to
the culture of the child;

(b)

Rape of a child, which includes but is not limited to rape, sodomy,
unlawful sexual penetration and incest, as those acts are defined in ORS
chapter 163;

(c)

Sexual abuse, as defined in ORS chapter 163, when the victim is a child;

3

Effective January 1, 2010, Or. Rev. Stat. 12.117 was amended to provide a five-year
rather than three-year period for bringing suit after discovery of an injury or a causal connection
between a defendant's conduct and an injury. This amendment is retroactively applicable, except
as to cases that reached judgment prior to January 1, 2010. See Or. Rev. Stat. 879.002.
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or
(d)

Sexual exploitation of a child, including but not limited to:
(A)

Conduct constituting violation of ORS 163.435 and any other
conduct which allows, employs, authorizes, permits, induces or
encourages a child to engage in the performing for people to
observe or the photographing, filming, tape recording or other
exhibition which, in whole or in part, depicts sexual conduct or
contact; and

(B)

Allowing, permitting, encouraging or hiring a child to engage in
prostitution, as defined in ORS chapter 167.

Or. Rev. Stat. 12.117(2). The Oregon Court of Appeals has expressly held that Section 117 may
properly be applied to torts of negligence (one of which is at issue here), stating that "the statute
clearly does apply to negligence claims, but only [to] those involving 'knowingly allowing,
permitting or encouraging child abuse.'" Lourim v. Swensen [("Lourim I")], 147 Or. App. 425,
439 (1997). The Lourim I court further specified that actual as opposed to constructive
knowledge that such child abuse was taking place is required for the extended limitations period
to apply. Id. at 444.
The Oregon Supreme Court has provided the following guidance for courts seeking to
apply the discovery rule in connection with statute of limitations analysis:
To discover a particular element of legally cognizable harm, the plaintiff does not
need to know to certainty that each particular element exists. The discovery rule
is designed to give plaintiffs a reasonable opportunity to become aware of their
claim. Actual knowledge that each element is present is not required. On the
other hand, a mere suspicion is insufficient to begin the statute of limitations to
run. We believe that a quantum of awareness between the two extremes is
contemplated by the statute. Therefore, the statute of limitations begins to run
when the plaintiff knows or in the exercise of reasonable care should have
known facts which would make a reasonable person aware of a substantial
possibility that each of the . . . elements [of a cause of action] exists.

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We emphasize that this is an objective test. In most cases, the inquiry will
concern what a plaintiff should have known in the exercise of reasonable care. In
such cases, the relevant inquiry is how a reasonable person of ordinary prudence
would have acted in the same or similar situation. Relevant to this analysis will
be a plaintiff's failure to make a further inquiry if a reasonable person would
have done so. The discovery rule does not protect those who sleep on their
rights, but only those who, in exercising the diligence expected of a
reasonable person, are unaware that they have suffered legally cognizable
harm.
Gaston v. Parsons, 318 Or. 247, 255-256 (1994) (emphasis supplied). The Gaston court went on
to note that the reasonableness inquiry can be impacted by, e.g., representations made by the
tortfeasor on which the plaintiff might reasonably rely, or by side effects of the tortious conduct
that might act to "mask" the harm the plaintiff suffered. See id. at 256-257.
The question of when a person in the exercise of reasonable care should have discovered
an injury or the causal connection between an injury and a tortfeasor's conduct is generally a
question of fact for a jury to decide. In Minisce v. Thompson, 149 Or. App. 746 (1997), the
Oregon Court of Appeals held that the question of "whether [the injury] should have sufficiently
alerted plaintiff to trigger discovery . . . is a quintessential jury question." Minisce, 149 Or. App.
at 752. In Hoeck v. Schwabe Williamson & Wyatt, 149 Or. App. 607 (1997), the court held that
"precisely when a person reasonably should have known that the harm suffered was caused by
another's negligence generally presents a question of fact." Hoeck, 149 Or. App. at 612.
Nevertheless, a court may grant summary judgment "[w]here the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party," because under those
circumstances "there is no 'genuine issue for trial'." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
Watkins attained the age of 40 in 1995. This action was filed April 22, 2011. Thus,
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Watkins' claim was timely filed under Oregon's applicable statute of limitations only if, in the
exercise of reasonable care, Watkins could not have been expected to discover the causal link
between the abuse he suffered and any consequential injury at any time prior to April 22, 2006.
A separate analysis is required in connection with the claims bar date ordered by the
bankruptcy court. Federal Rule of Bankruptcy Procedure 3003(c)(3) provides that the bankruptcy
court "shall fix and for cause shown may extend the time within which proofs of claim or interest
may be filed." Fed. R. Bankr. Pro. 3003(c)(3). Pursuant to Rule 3003(c)(3), in January 2005 the
Bankruptcy Court for the District of Oregon issued an order fixing a "claims bar date" of April
29, 2005, for "existing claims" against the Archdiocese or Archbishop, stating that such a date
was "necessary for the prompt and efficient administration of the [Archdiocese’s] Chapter 11
case and to protect the interests of the [Archdiocese], its creditors and other parties in interest[.]"
Pursuant to the bankruptcy court's order, any individual with an accrued claim against
the Archdiocese was required to file a proof of claim by April 29, 2005. See Fed. R. Bankr. Pro.
3003(c)(2) (“Any creditor . . . whose claim . . . is not scheduled . . . shall file a proof of claim
within the time prescribed by subdivision (c)(3). . . .”). The Archdiocese's Joint Plan of
bankruptcy established that the Archdiocese was "discharged from all liability" on claims and
debts arising before the effective date of the Archdiocese's reorganization if not filed before the
claims bar date. "The granting of a discharge operates as a permanent injunction against any
attempt to collect or recover on a prepetition debt." Irizarry v. Schmidt (In re Irizarry), 171 B.R.
874, 878 (B.A.P. 9th Cir. 1994); see also Bankr. C. § 524(a).
The bankruptcy court's order incorporated the language of the discovery rule incorporated
by Or. Rev. Stat. 12.117(1) into the definition of "future claimants," whose claims would not be
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barred if not filed prior to the claims bar date:
The only [future] claimants [or claimants whose claims would not be barred if
brought after the claims bar date of April 29, 3005] are (1) minors; (2) those with
repressed memory; and (3) those persons who know they were subjected to sexual
contact as children but who have "not discovered the [resulting] injury or the
causal connection between the injury and the child abuse, nor in the exercise of
reasonable care should have discovered the injury or the causal connection
between the injury and the child abuse[.]" O.R.S. 12.117(1).
In re Roman Catholic Archbishop, Case No. 04-37154-elp11, 2005 Bankr. LEXIS 42 (Bankr. D.
Or. Jan. 10, 2005) (third modification original). Thus, Watkins' claim was timely filed for
purposes of the bankruptcy court's claims bar date only if, in the exercise of reasonable care,
Watkins could not have been expected to discover the causal link between the abuse he suffered
and any consequential injury at any time prior to April 29, 2005.
Defendants urge the court to find that Watkins had actual knowledge both of the sexual
abuse he suffered and that the abuse was harmful at all material times since the abuse occurred.
In support, defendants point to evidence, discussed above, that Watkins' own testimony
establishes that he had contemporaneous awareness that something "wrong" had occurred over
the course of the weekend at the cabin with Fr. Durand.
In the alternative, defendants argue that, even if Watkins repressed all memory of the
sexual abuse prior to reaching his majority, he was put on inquiry notice of the possibility that he
had been harmed by sex abuse at the hands of Frs. Laughlin and Durand each time he read in the
newspaper about sex abuse charges being filed against the Archdiocese or about Laughlin's
conviction during the early 1980's. Finally, defendants argue that, by not later than July 2005,
when he spoke with G.W.'s attorney about serving as a witness to events taking place during the
cabin weekend with Fr. Durand in connection with G.W.'s sex abuse claim against the
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Archdiocese, a reasonable person would necessarily have been placed on inquiry notice as to
whether he, too, might have a similar claim arising out of those same events.
I am unpersuaded by defendants' argument that, as a matter of law, Watkins has had
actual knowledge of the sexual abuse and its harmfulness since it occurred. Watkins has
provided competent testimony that he repressed all memory of the sexual abuse and of its
harmfulness prior to 2006, and for purposes of defendants' motion I resolve all disputes regarding
the accuracy of Watkins' testimony in Watkins' favor. For the same reason, I am unpersuaded
that Watkins' contemporaneous knowledge of Fr. Laughlin's conviction and of sexual abuse
claims reported in the newspaper during the 1980's was sufficient as a matter of law to establish
that Watkins should have been aware of the substantial possibility that he had a potential claim
against the defendants. Watkins has testified that memory of the abuse and its harmfulness was
not triggered by any of the potential catalysts taking place in the 1980's.
However, I agree with defendants that, notwithstanding the claimed repression of
Watkins' memory, Watkins was placed on inquiry notice of his potential claims against the
defendants by not later than July 2005. At that time, Watkins was contacted by his friend G.W.,
then a sex-abuse claimant against the defendants, who asked if Watkins would be willing to
speak to G.W.'s attorney regarding events taking place during the cabin weekend with Durand.
Watkins agreed to and did speak to G.W.'s attorney, who subsequently served as the attorney
representing Watkins at the time this action was filed.
At the time Watkins spoke with G.W.'s attorney, he was necessarily placed on notice that
G.W. was pursuing sex abuse claims against the defendants arising out of events to which
Watkins had been both a witness and a victim, much as G.W. had been. Notwithstanding any
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suppression of memory, Watkins' knowledge that sex abuse claims might lie against the
defendants based on conduct of which he had at least potentially been a victim must necessarily
have placed him on inquiry notice regarding the possibility that he, too, might have similar
claims. In consequence, as a matter of Oregon law Watkins' claims against the defendants
became time-barred by not later than July 2010. As noted above, Watkins filed this action in
April 2011, some nine months after the applicable limitations period had closed.
Because a reasonable person would have been on inquiry notice of the substantial
possibility that sexual abuse claims might lie against the defendants by not later than July 2005,
Watkins' claim is time-barred under the applicable statute of limitations. Defendants' motion
(#33) for summary judgment is therefore granted.
III.

Plaintiff's Motion (#50) to Re-Open Discovery and Motion (#51) for Leave to
Supplement Expert Witness Disclosure
In light of the foregoing disposition of defendants' dispositive motion, Watkins' motion to

re-open discovery and motion for leave to supplement his expert witness disclosure are denied as
moot.
CONCLUSION
For the reasons set forth above, defendants' motion (#33) for summary judgment is
granted, defendants' motion (#38) for judicial notice is granted, plaintiff's motion (#50) to
///
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re-open discovery is denied as moot, and plaintiff's motion (#51) for leave of court to disclose a
supplemental expert witness opinion is denied as moot. A final judgment should be prepared.

Dated this 19th day of November, 2012.
/s/ Paul Papak
Honorable Paul Papak
United States Magistrate Judge

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