Wahab v. Wahab

Filing 170

OPINION AND ORDER. The Court GRANTS summary judgment to Plaintiff on Defendant's counterclaims, CANCELS the jury trial, and DENIES all pending motions as moot. IT IS SO ORDERED. Signed on August 30, 2024 by Magistrate Judge Stacie F. Beckerman. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

EBRAHIM WAHAB,

Case No. 3:23-cv-00098-SB
Plaintiff,

OPINION AND ORDER

v.
SAIMA WAHAB,
Defendant.
BECKERMAN, U.S. Magistrate Judge.
Plaintiff Ebrahim Wahab (“Plaintiff”), a self-represented litigant, filed a defamation per
se claim against his niece, Defendant Saima Wahab (“Defendant”). Defendant answered and
filed counterclaims against Plaintiff for sexual battery of a child and intentional infliction of
emotional distress (“IIED”). The Court recently granted Defendant’s motion for summary
judgment on Plaintiff’s defamation claim. As a result, the only remaining claims in this case are
Defendant’s counterclaims. 1
Ebrahim Wahab is the “plaintiff/counterclaim defendant” and Saima Wahab is the
“defendant/counterclaimant.” See Westwood Apex v. Contreras, 644 F.3d 799, 802 n.1 (9th Cir.
2011) (“The parties and pleadings refer to [the plaintiff] Westwood Apex as a ‘cross-defendant’
as opposed to a ‘counterclaim defendant.’ . . . [T]he appropriate way to describe the underlying
proceedings is that [the] defendant Contreras filed a counterclaim against plaintiff/counterclaim
1

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The Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a), and
the parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C.
§ 636(c). For the reasons explained below, the Court enters summary judgment for Plaintiff on
Defendant’s counterclaims.
PROCEDURAL HISTORY 2
On August 2, 2024, the Court granted Defendant’s motion for summary judgment on
Plaintiff’s defamation claim. (Op. & Order at 1-25, ECF No. 118.) On August 14, 2024, about
three weeks before the pretrial conference scheduled for September 3, 2024, the Court advised
the parties that their pretrial materials failed adequately to address the statute of limitations
applicable to and timeliness of Defendant’s counterclaims and the Court would consider entering
summary judgment on the counterclaims if it found they are time barred. (Pretrial Order at 1-3,
ECF No. 142, citing Portsmouth Square v. S’holders Protective Comm., 770 F.2d 866, 869 (9th
Cir. 1985).)
In its Pretrial Order, the Court noted that there are only certain limited circumstances in
which it may enter summary judgment on its own motion. Id. The Court cited the Ninth Circuit’s
guidance in Portsmouth. See 770 F.2d at 869 (stating that “under certain limited circumstances a
district court may issue summary judgment on its own motion,” and a court has “limited
authority to grant summary judgment sua sponte in the context of a final pretrial conference”).
Recognizing that “[o]ne purpose of the Rule 16 pretrial conference procedure is to promote
defendant Westwood Apex[.]”). For purposes of brevity and consistency with past opinions and
because the nomenclature has no bearing on the outcome, the Court continues to refer to the
parties as “Plaintiff” and “Defendant.” See id. (“[A]ny deviations from this nomenclature are
immaterial to the result in this case.”).
Given the parties’ and Court’s familiarity with the factual history of this case, the Court
describes it below only as necessary to address issues related to whether Defendant timely filed
her counterclaims.
2

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efficiency and conserve judicial resources by identifying litigable issues prior to trial,” the Ninth
Circuit explained that a “court need not await a formal motion, or proceed to trial,” if “the
pretrial conference discloses that no material facts are in dispute and that the undisputed facts
entitle one of the parties to judgment as a matter of law,” because “under those circumstances,” a
court’s “summary disposition of the case conserves scarce judicial resources.” Id. (citation
omitted).
The Court wanted to ensure that both parties, but in particular, the party against whom
the Court may potentially enter judgment (here, Defendant), received a full and fair opportunity
to be heard and develop and present facts and legal arguments in support of their positions. See
generally id. at 869-70 (explaining that if a “court grants summary judgment in the absence of a
formal motion, [the Ninth Circuit] review[s] the record closely to ensure that the party against
whom judgment was entered had a full and fair opportunity to develop and present facts and
legal arguments in support of its position,” and that it is “preferable for . . . [a] court specifically
to notify the parties that it intend[s] to consider granting summary judgment at the pretrial
conference”) (citation omitted). To that end, the Court ordered the parties to file supplemental
trial briefs by August 26, 2024, addressing the application of the statute of limitations to
Defendant’s counterclaims, and advised that the parties could file declarations and exhibits in
support of their briefs or cite the CM/ECF-generated pages corresponding to the records upon
which they relied. (Pretrial Order at 2); cf. Portsmouth, 770 F.2d at 869-70 (noting that the
appellant argued that the district court “denied it an opportunity to respond with affidavits and
other evidence in support of its claim,” but nevertheless affirming the district court’s sua sponte
dismissal at the final pretrial conference).
///

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The parties timely filed their supplemental briefs and declarations in support by August
26, 2024. Given that the parties’ materials addressed a potentially case-dispositive issue and that
a jury trial was scheduled to begin in two weeks, the Court bifurcated the pretrial conference into
two phases, focusing first on the applicability of the statute of limitations to Defendant’s
counterclaims. See generally Hardeman v. Monsanto Co., 997 F.3d 941, 952 (9th Cir. 2021)
(noting that “[t]he district court bifurcated the pretrial proceedings” into two “phase[s]”).
On August 28, 2024, the Court held a hearing as part of the first phase of the pretrial
conference and the parties presented their statute of limitations-related arguments. Having
considered the parties’ filings and arguments, the Court grants summary judgment to Plaintiff on
Defendant’s counterclaims. 3
LEGAL STANDARDS4
“A grant of summary judgment is appropriate when ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’” Albino v. Baca, 747

3

Plaintiff, a self-represented litigant, raised the issue of whether Defendant timely filed
her counterclaims before the Court issued its Pretrial Order. (See Def.’s Am. Resp. Pl.’s
Interrogs. at 7, ECF No. 109-4 at 7, responding to Plaintiff’s interrogatories on January 25, 2024,
including an interrogatory centered on a mid-1990s meeting at which Defendant accused
Plaintiff of abusing her as a child and asking for an explanation as to “what prevented
[Defendant] from . . . filing a claim against [Plaintiff] in the past 33 years or so”; see also Pl.’s
Am. Resp. Def.’s Answer, Affirmative Defs., & Countercls. at 6, ECF No. 109, incorporating by
reference Plaintiff’s interrogatories and Defendant’s amended responses, asking why Defendant
“did not act on her allegations . . . before now,” and suggesting that Defendant failed timely to
act).
4

The Court notes that (1) many of the facts discussed herein are undisputed, and (2) if
there is a conflict, the Court resolves the conflict in Defendant’s favor pursuant to the summary
judgment standard described below. See generally Portsmouth, 770 F.2d at 868, 871 (describing
the procedural history and noting that the district court accepted as true proposed findings of fact
from the appellant’s pretrial materials, and later stating that “[b]ecause the district court’s [sua
sponte] disposition of the case amount[ed] to a summary judgment, [the Ninth Circuit] set forth
the facts in the light most favorable to [the party] . . . against which summary judgment was
granted”) (citation omitted).
PAGE 4 – OPINION AND ORDER

F.3d 1162, 1168 (9th Cir. 2014) (en banc) (quoting FED. R. CIV. P. 56(a)). “[T]he mere existence
of some alleged factual dispute . . . will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.” Scott v.
Harris, 550 U.S. 372, 380 (2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24748 (1986)).
“A material fact is one that is needed to prove (or defend against) a claim, as determined
by the applicable substantive law.” Simmons v. G. Arnett, 47 F.4th 927, 932 (9th Cir. 2022)
(citing Nat’l Am. Ins. Co. v. Certain Underwriters at Lloyd’s London, 93 F.3d 529, 533 (9th Cir.
1996)); see also Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir.
2014) (“A fact is ‘material’ only if it might affect the outcome of the case[.]” (quoting Anderson,
477 U.S. at 248)). “An issue of material fact is genuine if there is sufficient evidence for a
reasonable jury to return a verdict for the non-moving party.” Brown v. Arizona, 82 F.4th 863,
874 (9th Cir. 2023) (en banc) (quoting Karasek v. Regents of Univ. of Cal., 956 F.3d 1093, 1104
(9th Cir. 2020)); see also Fresno, 771 F.3d at 1125 (“[A] dispute is ‘genuine’ only if a
reasonable trier of fact could resolve the issue in the non-movant’s favor.” (quoting Anderson,
477 U.S. at 248)).
In determining whether a genuine issue of material fact exists, a court must view the
evidence in the light most favorable to, and draw all justifiable inferences in favor of, the
nonmoving party. See McNeil v. Sherwood Sch. Dist. 88J, 918 F.3d 700, 706 (9th Cir. 2019) (per
curiam) (“The court views ‘evidence in the light most favorable to the nonmoving party,’ to
determine ‘whether genuine issues of material fact exist.’” (quoting George v. Edholm, 752 F.3d
1206, 1214 (9th Cir. 2014))); Brown, 82 F.4th at 874 (“When determining whether a genuine
issue of material fact exists, [a court] ‘must draw all justifiable inferences in favor of the

PAGE 5 – OPINION AND ORDER

nonmoving party.’” (quoting Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1189 (9th Cir.
2021))). In doing so, a “court . . . may not judge credibility, weigh the evidence, or resolve
factual disputes[.]” Clarkson v. Alaska Airlines, Inc., 59 F.4th 424, 437 (9th Cir. 2023) (citing
Anderson, 477 U.S. at 255).
DISCUSSION
All that remains in this action are Defendant’s counterclaims against Plaintiff for sexual
battery of a child and IIED. (Def.’s Answer, Affirmative Defs., & Countercls. ¶¶ 21-27, ECF No.
33.) For the reasons discussed below, the Court grants summary judgment in Plaintiff’s favor on
Defendant’s counterclaims.
I.

APPLICABLE LAW
A.

Diversity Jurisdiction

The complete diversity requirement is met here. See Wahab v. Wahab, No. 3:23-cv00098-SB, 2023 WL 5035662, at *1 & n.2 (D. Or. Aug. 8, 2023) (finding that the Court had
diversity jurisdiction over Plaintiff’s sole claim for defamation, and recognizing that the parties
are diverse because Plaintiff and Defendant are citizens of Oregon and the District of Columbia,
respectively (citing 28 U.S.C. § 1332(a) and Strotek Corp. v. Air Transp. Ass’n of Am., 300 F.3d
1129, 1130-31 (9th Cir. 2002))). Defendant admits as much and seeks damages satisfying the
amount-in-controversy requirement. (Def.’s Answer, Affirmative Defs., & Countercls. ¶¶ 1 -2,
23, 27.)
Given these facts, the Court has diversity jurisdiction over Defendant’s counterclaims.
See Alta Gold Mining Co. v. Aero-Nautical Leasing Corp., 656 F. App’x 316, 318 (9th Cir.
2016) (“Contrary to Clark’s argument, the district court had diversity jurisdiction over Clark’s
claims and Aero-Nautical’s counterclaims.”); cf. Bristol v. Hughes, 797 F. App’x 366, 366 (9th
Cir. 2020) (vacating and remanding the district court’s dismissal for “lack of diversity
PAGE 6 – OPINION AND ORDER

jurisdiction [a defendant’s] counterclaims” because it was “not clear on review that the defective
[complete diversity] allegations . . . in [the] countercomplaint could not have been cured by
amendment”). Accordingly, Oregon substantive law applies to Defendant’s counterclaims. See
Or. Clinic, PC v. Fireman’s Fund Ins. Co., 75 F.4th 1064, 1068 (9th Cir. 2023) (exercising
diversity jurisdiction and therefore applying Oregon law (citing Alexander Mfg., Inc. Emp. Stock
Ownership Plan & Tr. v. Ill. Union Ins. Co., 560 F.3d 984, 986 (9th Cir. 2009))); Baldin v. Wells
Fargo Bank, N.A., 704 F. App’x 715, 716 n.1 (9th Cir. 2017) (stating that “the substantive law of
the State of Oregon applies to this diversity claim” (citing Zamani v. Carnes, 491 F.3d 990, 995
(9th Cir. 2007))).
B.

Oregon Law

Defendant’s counterclaims are based on conduct constituting child abuse. (Def.’s
Answer, Affirmative Defs., & Countercls. ¶¶ 14-27.) Thus, and as Defendant acknowledges,
Oregon Revised Statutes (“ORS”) § 12.117—which provides an “extended limitations period for
claims based on child abuse,” Fearing v. Bucher, 977 P.2d 1163, 1168 (Or. 1999)—applies to
Defendant’s counterclaims. (See Def.’s Answer, Affirmative Defs., & Countercls. ¶ 20, alleging
that Defendant’s “counterclaims are timely” under ORS § 12.117); see also Fearing, 977 P.2d at
1164, 1168 (noting that the plaintiff, who “allege[d] sexual abuse that occurred [when he was a
minor and] more than [twenty] years before the filing of the complaint,” “initiated the present
action . . . under the extended limitations period for claims based on child abuse contained in
ORS 12.117”).
1.

ORS § 12.117

“Oregon statutory law provides a two-year limitations period generally applicable to
claims sounding in tort[,] . . . [and that] actions accruing while a plaintiff is a minor may be filed
up to one year after the plaintiff attains majority.” Doe 150 v. Archdiocese of Portland, No. 08PAGE 7 – OPINION AND ORDER

cv-00691-PK, 2010 WL 11531082, at *2 (D. Or. June 16, 2010) (citing OR. REV. STAT.
§§ 12.110, 12.160), aff’d, 469 F. App’x 641, 642-43 (9th Cir. 2012). As discussed, however,
ORS § 12.117(1) provides an extended limitations period for actions based on conduct that
constitutes child abuse:
Notwithstanding ORS 12.110, 12.115 or 12.160, an action based on conduct that
constitutes child abuse . . . that occurs while the person is under 18 years of age
must be commenced before the person attains 40 years of age, or if the person has
not discovered the causal connection between the injury and the child abuse, nor
in the exercise of reasonable care should have discovered the causal connection
between the injury and the child abuse, not more than five years from the date the
person discovers or in the exercise of reasonable care should have discovered the
causal connection between the child abuse and the injury, whichever period is
longer.
OR. REV. STAT. § 12.117(1).5
“ORS [§] 12.117(2) defines ‘child abuse’ as used in ORS [§] 12.117(1).” Sherman v.
Dep’t Hum. Servs., 492 P.3d 31, 34 n.2 (Or. 2021) (en banc). ORS § 12.117(2)’s “definition
includes intentional physical and mental injury, rape, sexual abuse, and sexual exploitation of a
child.” Id. Defendant’s claims are based on conduct that falls squarely within this definition. (See
Def.’s Answer, Affirmative Defs., & Countercls. ¶¶ 16-18, 22-23, 27, alleging sexual abuse of a
child).
///
///
“Effective January 1, 2010, [ORS § 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.” Doe 150, 2010 WL 11531082, at *2 n.2. The
“amendment is retroactively applicable, except as to cases that reached judgment prior to January
1, 2010.” Id. (citation omitted). The Oregon legislature also amended ORS § 12.117(2)(B) in
2015, but that amendment is not material to the issues in this case. See Doe v. Silverman, 401
P.3d 793,794 & n.2 (Or. Ct. App. 2017) (addressing the applicability of the current version of
ORS § 12.117(1) and noting that the Oregon “legislature subsequently amended ORS [§] 12.117
in 2015,” but the “amendment did not amend the subsection of the statute that [was] at issue in
th[at] case”).
5

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2.

Discovery Rule

“The Oregon Supreme Court has provided . . . guidance for courts seeking to apply the
discovery rule in connection with [a] statute of limitations analysis[.]” Doe 150, 2010 WL
11531082, at *3 (citing Gaston v. Parsons, 864 P.2d 1319, 1323-24 (Or. 1994)); see also Doe
150, 469 F. App’x at 642-43 (affirming the district court’s application of “the reasonable person
standard . . . through the Oregon discovery rule under ORS 12.117(1)”). Specifically, the Oregon
Supreme Court has explained that courts evaluate discovery under an objective, reasonable
person standard:
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. See Frohs v. Greene, 452 P.2d 564, 565 (Or. 1969)
(discovery rule affords opportunity for plaintiff to discover that claim exists).
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 three
elements (harm, causation, and tortious conduct) exists.
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. See Woolston v. Wells, 687 P.2d
144, 150 (Or. 1984) (reasonable care means what a reasonable person of ordinary
prudence would do in the same or similar circumstances). 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, 864 P.2d at 1323-24 (simplified); see also T.R. v. Boy Scouts of Am., 181 P.3d 758, 764
(Or. 2008) (addressing the discovery rule and noting that “discovery is determined by [an]
objective, reasonable person standard” (citing Doe v. Am. Red Cross, 910 P.2d 364, 369-70 (Or.
1996))).
PAGE 9 – OPINION AND ORDER

The Oregon Supreme Court has explained that “[i]n applying th[is] standard, a court must
consider the facts from the perspective of a reasonable person in the circumstances of the
plaintiff.” Doe 1 v. Lake Oswego Sch. Dist., 297 P.3d 1287, 1295 (Or. 2013) (citing T.R., 181
P.3d at 766-67); see also Estrada v. Fed. Express Corp., 445 P.3d 1276, 1283 (Or. Ct. App.
2019) (explaining that “[a]n objective [discovery] standard need not strip out all of the
circumstances of a [plaintiff’s] situation”). A plaintiff’s “circumstances include, but are not
limited to, [a] plaintiff’s status as a minor, . . . the relationship between the parties, . . . and the
nature of the harm suffered.” Doe 1, 297 P.3d at 1295 (citing T.R., 181 P.3d at 766-67, Kaseberg
v. Davis Wright Tremaine, LLP, 265 P.3d 777, 782 (2011), and Gaston, 864 P.2d at 1323-24). A
plaintiff’s circumstances also include “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.” Doe 150, 2010 WL 11531082, at *4 (citing Gaston, 864 P.2d at
1323-24).
II.

ANALYSIS
There is no dispute that Defendant’s counterclaims are based on allegations of “child

abuse” as defined in ORS § 12.117(2), and subject to the statute of limitations under ORS
§ 12.117(1).
A.

Matters of Law

A court may determine as a matter of law that claims based on conduct constituting child
abuse are time-barred under ORS § 12.117(1). See, e.g., Doe 150, 469 F. App’x at 642-43
(affirming the district court’s determination as a matter of law that ORS § 12.117(1) barred
claims based on “known [childhood] sexual abuse”). A court may do so if “the only conclusion a
reasonable jury could reach is that the plaintiff knew or should have known the critical facts at a
specified time and did not file suit within the requisite time thereafter.” T.R., 181 P.3d at 765
PAGE 10 – OPINION AND ORDER

(noting that although generally a question for the jury, the “[a]pplication of the discovery accrual
rule” is properly decided as a matter of law if the “only conclusion a reasonable jury could reach
is that the plaintiff knew or should have known the critical facts at a specified time and did not
file suit within the requisite time thereafter” (citing Brown v. J.C. Penney Co., 688 P.2d 811,
817-18 (Or. 1984))); see also Doe 150, 469 F. App’x at 643 (recognizing that a court “can
determine reasonableness as a matter of law based on its finding that ‘the only conclusion a
reasonable jury could reach is that the plaintiff knew or should have known the critical facts at a
specified time and did not file suit within the requisite time thereafter’” (quoting T.R., 181 P.3d
at 765)); B.J.G. v. Soc’y of the Holy Child Jesus, No. 07-cv-00541-HA, 2008 WL 896061, at *10
(D. Or. Mar. 28, 2008) (“The only conclusion a reasonable jury could reach in light of these facts
is that plaintiff knew, or should have known, both the substance of her injury, and the role that
the nuns and their alleged conduct played in that injury.”); In re Roman Cath. Archbishop, No.
04-37154, 2006 WL 2038642, at *6 (Bankr. D. Or. June 7, 2006) (“In this case, the evidence in
the record would not support a finding by a rational jury that claimant acted with reasonable
care. Therefore, summary judgment is appropriate.”).
B.

Illustrative Example

Doe 150 is an illustrative example of when a court found, as a matter of law, that claims
based on child abuse were time-barred under ORS § 12.117(1). The Court describes the case in
detail below.
In Doe 150, the plaintiff, a sixty-five-year-old man, filed a suit against the Archdiocese of
Portland (“Archdiocese”) and Roman Catholic Archbishop of Portland (“Archbishop”) on June
6, 2008. 2010 WL 11531082, at *1. The plaintiff alleged the “defendants’ vicarious liability for
sexual battery of a child and [IIED] on a theory of respondeat superior, and direct liability for
fraud and for negligence.” Id. In support, the plaintiff alleged that in the late 1950s, when he was
PAGE 11 – OPINION AND ORDER

about thirteen years old, a priest engaged in “[g]rooming” behaviors before sexually abusing him
on multiple occasions. Id. Around the time he turned eighteen, the plaintiff learned that “certain
friends of his had been warned not to go near [the priest] because he was known or suspected to
have sexually abused minors.” Id. at *2. Decades later, the plaintiff “read[] [late 1990s and/or
early 2000s] newspaper articles . . . regarding [the priest’s] acts of sexual abuse of minors,” the
plaintiff’s brother obtained “a favorable judgment or a favorable settlement in connection with
his [2001] action” asserting that the same priest engaged in child sexual abuse, and the plaintiff
received a January 2005 bankruptcy court notice advising recipients of an impending claims bar
date for clergy sex abuse claims against the Archdiocese or Archbishop. Id.
At summary judgment, the plaintiff did “not allege or offer evidence that he ever
repressed the memory that these incidents occurred,” and acknowledged that “he knew he had
‘been abused’ at all times.” Id. at *1. The plaintiff’s “position [was] that he only realized he had
‘been harmed’ by the abuse he had suffered in late 2007 or early 2008, shortly before filing th [e]
action.” Id. Attempting to bolster “his position that he could not reasonably have understood that
he had been harmed by the abuse he suffered at [the priest’s] hands prior to late 2007 or early
2008,” the plaintiff offered “opinion testimony [from] his treating mental health care provider.”
Id. at *2. The “therapist opine[d] that as a consequence of the abuse he suffered as a child, [the
plaintiff] ‘ha[d] limited insight into himself, and [was] not very psychologically minded, tending
to minimize attending to internal thoughts and feelings, a psychological defense mechanism[.]’”
Id. (ellipses omitted). The therapist also opined that the plaintiff “display[ed] ‘a distinct tendency
towards avoiding self-disclosure’ and [was] ‘likely to underestimate the psychological symptoms
that [he] may be experiencing,’” that individuals with the plaintiff’s “psychological profile ‘are
anxiously conformant to the expectations of others in authority’ and ‘have a notable blind spot to

PAGE 12 – OPINION AND ORDER

recognizing and acknowledging psychological difficulties,’” and that the plaintiff was “damaged
in such a way as to have caused him to avoid ‘processing’ the abuse experience fully until
recently.” Id.
For their purposes, the defendants did “not contest [the plaintiff’s] testimony that he did
not actually discover prior to late 2007 that the child abuse he suffered at [the priest’s] hands had
caused him cognizable harm”; rather, they “argue[d] that in the exercise of reasonable care [the
plaintiff] should have discovered the causal connection between the abuse and his consequential
harm” before the applicable deadline. Id. at *5. The district court “agree[d] with the defendants
that no trier of fact could conclude that [the plaintiff’s] failure to discover the causal connection
between the childhood abuse and his consequent injury [before the deadline] was reasonable.”
Id.
At the outset, the district court reiterated that the plaintiff “concede[d] that he never
repressed memory of the abusive acts themselves,” and found it “noteworthy that [the plaintiff’s]
realization that he had, in fact, been harmed by [the priest’s] abuse was not triggered by any
particular event in [the plaintiff’s] life or elicited in the course of therapy, but rather occurred,
from [the plaintiff’s] perspective, out of the blue, in the manner of an ‘epiphany.’” Id. The
district court then focused on the “occurrence of . . . three events,” any one of which would have
made a “reasonable person of ordinary prudence” aware of a “substantial possibility” that a claim
might lie:
[U]nder Oregon law[,] a plaintiff should, in the exercise of reasonable care,
discover the causal connection between childhood abuse and consequent injury
where a “reasonable person of ordinary prudence” would be aware of a
“substantial possibility” that the elements of a cause of action are present, or
would know facts that would cause a person of ordinary prudence to make
“further inquiry” as to that possibility. Gaston, 864 P.2d at 1323-24. Here, [the
plaintiff] concedes that he read newspaper articles regarding lawsuits arising out
of [the priest’s] acts of sexual abuse of minors in the late 1990’s and/or early
PAGE 13 – OPINION AND ORDER

2000’s, that he was contemporaneously aware that in 2001 his own older brother
filed a successful lawsuit arising out of abuse he had suffered at [the priest’s]
hands, and that when in January 2005 he read the bankruptcy court’s notice of the
claims bar date he understood that he “may” have had a claim against the
Archdiocese. Upon the occurrence of any of these three events, a reasonable
person of ordinary prudence who was aware that he had suffered childhood sex
abuse at [the priest’s] hands would necessarily have made “further inquiry” to
determine whether he might have a claim against the Archdiocese and/or
Archbishop arising out of such abuse, and moreover even absent such further
inquiry would necessarily have been aware of the “substantial possibility” that
such a claim might lie.
Id. (emphasis added).
The district court’s final observations concerned the plaintiff’s mental health treatment
and position that the nature of his injury effectively “masked” the connection between his abuse
and injury:
[The plaintiff] argues that the nature of his injury caused him to be unable
to appreciate that he had been harmed by [the priest’s] abuse until the date when
he came to the realization that he would sue the Archdiocese. [The court] find[s]
it plausible that cognitive impairments like those discussed by [the plaintiff’s]
therapist could make it difficult for a reasonable person of ordinary prudence to
appreciate the extent to which he had been harmed by childhood abuse. However,
a reasonable person suffering from all of the cognitive impairments discussed by
[the plaintiff’s] therapist would nevertheless have been on notice that further
inquiry could reveal the substantial possibility that he might have claims against
the Archdiocese. Moreover, neither [the plaintiff] nor his therapist offers any
answer to the question how it was that John came suddenly in late 2007 or early
2008, to the realization that he had been harmed by [the priest’s] abuse —with no
identifiable external event to trigger the realization—if he could not reasonably
have been expected to reach the same realization [a few years earlier]. [The court]
conclude[s] that [the plaintiff] has not raised a material question of fact as to
whether the nature of his injury might reasonably have “masked” the causal
connection between the childhood abuse and his consequential injury prior to
2007.
. . . [In summary], because no trier of fact could reasonably conclude that
it was reasonable for [the plaintiff] to fail prior to June 6, 2003 —approximately
two years following [the plaintiff’s] brother’s successful lawsuit against the
Archdiocese—to make the same discovery or inquiry, [the plaintiff’s] claims
are . . . time-barred under O.R.S. 12.117(1). [The] [d]efendants’ motion for
summary judgment is therefore granted as to each of [the plaintiff’s] claims in this
action.
PAGE 14 – OPINION AND ORDER

Id. at *6.
On appeal, the plaintiff argued that the district court erred by (1) “usurp[ing] the role of
the jury in determining the reasonableness of [the plaintiff’s] delayed discovery as a question of
law,” and (2) “ignor[ing] the compelling testimony of [the plaintiff’s] expert concerning whether
the nature of [the plaintiff’s] harm might reasonably have masked the causal connection between
his childhood abuse and the consequent harm.” 469 F. App’x at 642. The Ninth Circuit disagreed
and affirmed. Id.
In so affirming, the Ninth Circuit stated that “the district court . . . found, as a matter of
law, that upon the occurrence of any of several specific events, a reasonable person of ordinary
prudence who was aware that he had suffered childhood sex abuse at the priest’s hands would
necessarily have been aware of the substantial possibility that [the plaintiff’s] claim might lie,”
and that “[t]he district court’s findings [were] correct.” Id. at 642-43 (simplified). The Ninth
Circuit described what the district court emphasized “[a]t the outset of its analysis,” namely, that
“in late 2007 or early 2008, [the plaintiff] suddenly had an epiphany in his dining room that the
abuse, which [he] never forgot or repressed, had harmed him,” and the plaintiff was “neither able
to explain how he came to have such an epiphany nor why he did not have such revelation
sooner.” Id. at 643. The Ninth Circuit then turned to the “three events” upon which the district
court relied:
Additionally, the three events relied upon by the district court, in addition
to the numerous other instances of notice in the record, would lead a reasonably
prudent person in circumstances similar to [the plaintiff] to know of, or at least
discover through inquiry, a substantial possibility that the known abuse led to his
suffered harm prior to June 6, 2003[.] . . . Specifically, in 2001, [the plaintiff’s]
older brother had gone through a situation practically identical to that of [the
plaintiff], had sued and won, and had even asked [the plaintiff] if he were going to
file a claim. The district court also relied on the facts that [the plaintiff] received
actual written notice of a potential claim against the Archdiocese, that he
understood that he might have such claim, and that, at the time, he chose not to
PAGE 15 – OPINION AND ORDER

pursue the claim. Such evidence supports the district court’s conclusions with
which we agree.
Id.
Like the district court, the Ninth Circuit concluded by finding unpersuasive the plaintiff’s
argument and evidence that psychological barriers masked the connection between his abuse and
injury:
[The plaintiff’s] explanation that he did not conduct an investigation into
the causal connection between his abuse and suffered harm because of “profound
psychological barriers to the normal introspection and self-assessment that would
have allowed [the plaintiff] to recognize such injury” is unpersuasive. The record
is replete with facts that would have not only caused a reasonable person in [the
plaintiff’s] circumstances to investigate further, but would have caused [the
plaintiff], if he would have inquired to any degree, to discover that he did in fact
have a claim against the Archdiocese.
Despite the objective evidence concerning [the plaintiff’s] perceived
inability to recognize the causal connection between his abuse and subsequent
harm, and in light of the numerous events that occurred in [the plaintiff’s] life
before the bar date in conjunction with the fact that there is no reason in the
record as to how or why [the plaintiff’s] sudden realization occurred, [the
plaintiff] fails to show that there is a “proper” question for the trier of fact. See
Anderson, 477 U.S. at 249-50.
Id.
C.

Defendant’s Theory and Record of Delayed Discovery
1.

Defendant’s Theory and Text Message

In her answer, affirmative defenses, and counterclaims, Defendant alleges that before
“May of 2022, [she] did not discover and could not have reasonably discovered the causal
connection between [Plaintiff’s] abuse and [her] resulting injuries from the abuse itself.” 6 (Def.’s

6

As discussed further below, Defendant turned forty in 2016, Plaintiff filed this action on
January 20, 2023, and Defendant filed her counterclaims on September 29, 2023. (See Compl. at
1; Def.’s Answer, Affirmative Defs., & Countercls. at 8-9, setting forth the filing dates; id. ¶¶ 1416, stating that Defendant was born in 1976 and Defendant’s counterclaims are based on abuse
that began shortly after her father’s 1979 kidnapping and occurred when she was “between three
and five years of age”). For statute of limitations purposes, then, Defendant’s counterclaims are
PAGE 16 – OPINION AND ORDER

Answer, Affirmative Defs., & Countercls. ¶ 20.) Defendant also alleges that “[t]he psychological
effects of the abuse . . . prevented [her] from discovering the causal connection between the
abuse and the injuries she suffered as a result of the abuse.” (Id.) Consequently, Defendant
alleges that she timely filed her counterclaims against Plaintiff pursuant to ORS § 12.117(1).
(Id.)
Defendant cites “May of 2022” as a turning point in her discovery of the causal
connection between her abuse and injuries because she attended a family event in May 2022, and
not only “saw [Plaintiff] for the first time since the mid-1990s” but “[t]o her utter shock and
horror, . . . witnessed [Plaintiff] hugging and touching her very young niece.” (Id. ¶ 19.)
Defendant “fled the family gathering” after “witnessing this interaction,” and later “sent a text
message to her family members with young children alerting [them] that she had been sexually
assaulted as a child by [Plaintiff] and warning them to not allow their children to be harmed by
[Plaintiff].” (Id.)
Defendant’s message, which was the basis of Plaintiff’s now-dismissed defamation per se
claim, describes facts and circumstances relevant to Defendant’s theory of delayed discovery,
including, but not limited to, Defendant’s previous disclosures and knowledge that Plaintiff
abused her as a child:
[Plaintiff] is a pedophile. He molested me when I was a child in [K]abul for
months. It started when my father was taken and it went on until the pedophile left
Afghanistan. Last night seeing him hug [a young family member] broke my heart.
I feel that I have to stop hiding this truth. It’s not my shame. It’s his. My fight and
only timely if, in the exercise of reasonable care, she could not have been expected to discover
the causal link between the abuse she suffered and any consequential injury before September
29, 2018. See Doe 150, 2010 WL 11531082, at *4 (“This action was filed June 6, 2008.
[Plaintiff] attained the age of 40 in 1985. Thus, [plaintiff’s] claim may only be timely for statute
of limitations purposes if in the exercise of reasonable care he could not have been expected to
discover the causal link between the abuse he suffered and any consequential injury prior to June
6, 2003.”).
PAGE 17 – OPINION AND ORDER

fall out with [Plaintiff’s two brothers] were also a direct result of them choosing a
child molester over me. When the pedophile came to live with us in [Portland], I
told [Plaintiff’s brothers] what he had done to me as a child. I told them I couldn’t
live having him in my life, and they both picked their brother over me. It’s a
choice they made and their choice made me realize how weak [Plaintiff’s
brothers] are. I decided to go my separate ways, and I have not regretted my
decision. I do know both [of Plaintiff’s brothers] are sorry now but I can’t forgive
them for threatening to get the pedophile a lawyer to sue me if I went public about
the abuse[,] [w]hich is what [Plaintiff’s eldest brother did] in my final argument
with him.
I am not rehashing the past to get your sympathy or ask for understanding. I am
only telling you all because now you have daughters and you have sons and I see
you are giving a pedophile access to your children, not knowing what he’s
capable of. It’s my obligation to warn you that your children are not safe around
him. If you still choose to socialize with him, it’s on you. I am telling you in clear
language he is a child molester, and once a child molester, always a child
molester. There is no need for any[] of you to message or respond to this message
because I know some of you would be forced to finally pick a side which makes
you uncomfortable but I am more concerned about your children. They need
protection from the evil around them. But if you need to talk about this, like I
said, it’s not my shame. I will talk. It’s the truth and if [Plaintiff’s brothers] were
half the men they think they are, they would’ve stood by me and right now
[Plaintiff] would not be having dinner with your children. Only in [an] Afghan
family, a child molester would be protected to protect the family name. In any
decent society, he would be forced to register as a pedophile, and would be jailed
if he was seen hugging a child.
(Compl. at 8-10, ECF No. 2; see also Def.’s Answer, Affirmative Defs., & Countercls. ¶¶ 4, 6,
admitting that Defendant sent the text message and stated that “Plaintiff molested [her] when she
was a child”).
Taken together, Defendant’s May 2022 message and operative pleading reflect that she
previously disclosed known sexual abuse to other family members, including Plaintiff’s eldest
brother, in the mid-1990s. (See Def.’s Answer, Affirmative Defs., & Countercls. ¶ 18, alleging as
much). The record includes additional details about Defendant’s mid-1990s disclosures of known
sexual abuse.
///
///
PAGE 18 – OPINION AND ORDER

2.

Defendant’s Deposition Testimony

Defendant described her mid-1990s disclosures and knowledge of childhood sexual abuse
throughout her deposition testimony. (See Dep. Saima Wahab (“Def.’s Dep.”) 6:1-190:8, Apr.
29, 2024, ECF No. 167.) For present purposes, the Court relies primarily on Defendant’s own
testimony.
In May 1991, Defendant moved to the United States to live with her uncle and Plaintiff’s
eldest brother, Zaher Wahab. (Def.’s Dep. 33:21-34:13, 181:11-182:6; see also Def.’s Answer,
Affirmative Defs., & Countercls. ¶¶ 14, 18, representing that Defendant’s father had several
brothers, including Plaintiff and the “eldest” brother, Zaher Wahab ). Between May and
September 1991, the “routine” for Defendant, Defendant’s siblings (Khalid and Najiba Wahab),
and Defendant’s cousins (Aziz, Emal, and Jamila Wahab)—all of whom lived with Zaher
Wahab—consisted of working with an English tutor at Zaher Wahab’s home. (See Def.’s Dep.
33:21-34:13, 86:21:87:7, 136:20-137:25, 154:4:6, 158:15-159:3, 181:11-25, using the plural
“we” and “us” at times but also identifying the six Wahab children who were siblings or cousins
and initially lived and moved together in Oregon; Def.’s Am. Resp. Pl.’s Interrogs. at 3, stating
that Defendant sent the May 2022 message to her siblings and the cousins with whom she
previously lived; Dep. Zaher Wahab 48:12-50:3, Mar. 21, 2024, ECF No. 109-7, showing that
around the “spring of 1991,” all six children moved to the United States to live with Zaher
Wahab).
In September 1991, when she was about fifteen years old, Defendant enrolled as a
sophomore at a local public high school. (Def.’s Dep. 181:17-182:5; see also Def.’s Answer,
Affirmative Defs., & Countercls. ¶ 14, alleging that Defendant was born in 1976; Def.’s Dep.
7:12-20, 89:8-90:1, reflecting that Defendant identified her “legal birthday” as falling in early
September 1976 but added that one of her uncles said that it actually fell in early February
PAGE 19 – OPINION AND ORDER

1976).7 In or around September 1993, when Defendant was about seventeen years old and near
the beginning of Defendant’s senior year of high school, Defendant, Defendant’s siblings, and
Defendant’s cousins moved into the home of their other uncle, Amin Wahab, on “Garden Home
Road.” (Def.’s Dep. 32:19-34:13, 36:17-37:8; see also Dep. Zaher Wahab 49:5-50:2, noting that
Zaher Wahab’s brother, Amin Wahab, also lived in Oregon when the Wahab children arrived in
1991).
Also in or around September 1993, Defendant reported for the first time to her uncles,
Zaher and Amin Wahab, that Plaintiff abused her as a child. 8 (See Def.’s Dep. 36:17-37:8,
“Q. . . . [T]ell me . . . the date, the month, and the year when you told Zaher and Amin about the
alleged abuse by [Plaintiff]. A. When [Plaintiff] brought [his] van . . . to Garden Home
Road . . . which was 1993 . . . . Q. Let’s -- you said September of 1993? A. I said Septemberish. . . . Since these were all our family homes, there wasn’t a move in date -- exact date. We
moved our stuff from Zaher’s house to the Garden Home house over several weeks. So it’s hard
to give you the exact date. I’m giving you the range of it.”; id. at 182:6-12, “Q. . . . When you

Defendant is “unaware of her true date of birth” and “cannot attest to the accuracy of
her date of birth,” because “she was not issued a birth certificate, as was the custom in
Afghanistan at the time of [her] birth.” (Def.’s Am. Resp. Pl.’s Interrogs. at 3.) Defendant
believes that her uncle, Zaher Wahab, “who was not in Afghanistan at the time of [her] birth,”
arbitrarily selected and entered the September 1976 birth date on her “official documentation.”
(Id.) As discussed herein, although Defendant is unaware of her exact birth date, Defendant’s
counterclaims are predicated on her more general assertions that she was born in 1976, that
Plaintiff’s abuse began shortly after her father’s kidnapping in 1979, and that “at the time of the
assaults [she was] between three and five years of age.” (Def.’s Answer, Affirmative Defs., &
Countercls. ¶¶ 14-16.) Thus, it is undisputed that Defendant was born at some point in 1976.
Accordingly, Defendant would have turned eighteen and forty years old in 1994 and 2016,
respectively.
7

8

Defendant reports that her childhood abuse ended in the early 1980s because her mother
“caught [Plaintiff] in the act of assaulting her,” took her to a “doctor for medical evaluation and
treatment,” and “reported her . . . assault” to “the authorities” in Afghanistan. (Def.’s Answer,
Affirmative Defs., & Countercls. ¶ 17; Def.’s Trial Br. at 2, ECF No. 127.)
PAGE 20 – OPINION AND ORDER

came to the United States . . . , did you immediately bring up this topic [of] your childhood
molestation with your uncles or did you wait? A. As I answered before, after [Plaintiff] moved
in[to] [Amin Wahab’s garage on Garden Home Road] in 1993.”; see also id. at 136:25-137:25,
describing where Plaintiff and the Wahab children resided after Plaintiff moved to Garden Home
Road).
During her deposition, Defendant testified that she “remember[s]” details about when
Plaintiff abused her as a child and later threatened that if she “said anything to anyone, [Plaintiff]
would make [her] mother disappear the way [her] father [had recently] disappeared” in
Afghanistan. (See id. at 49:20-51:25, 52:15-54:2, demonstrating as much and adding that
contrary to the suggestion that Defendant did not report the incidents, Defendant “told
[Plaintiff’s] brother in the US as an adult” about the previously described abuse ; see also id. at
22:18-23:24, reflecting that Defendant recounted that Plaintiff “molested [Defendant]” as a child
and responded to a question about her memory of certain dates by stating that “an experience that
happens to you is a lot easier to remember than to remember what month and what date and what
year it was”). Defendant further testified that her reporting of abuse was not limited to her initial
disclosure to her uncles in or around September 1993 and at the age of seventeen; rather, there
were several “family meetings”/“many conversations” during which she reported the abuse to
Zaher and Amin Wahab, her siblings, her cousins, and occasionally Plaintiff. (See id. at 140:20144:22, 152:3-155:4, 158:3-161:10, noting that the “family meetings”/“conversations” “[o]ften”
but did not always involve eight family members, Defendant, Amin Wahab, Zaher Wahab,
Defendant’s siblings, and Defendant’s cousins, as well as Plaintiff on some “[o]ccasion[s],” and
describing how Defendant “told [Plaintiff’s] brother in the US as an adult” about Plaintiff
abusing her as a child, Defendant confided in her brother, Khalid Wahab, who “would see [her]

PAGE 21 – OPINION AND ORDER

cry” because she had “many conversations” and “fight[s] with [her] uncles” about Plaintiff
abusing her, Defendant’s cousins knew that “there was a lot of tension, and that there [were]
family meetings, which ended with [Defendant] crying and begging, and asking [her uncles] to
do something,” and Defendant’s younger sister “cried” and “sympathized” with Defendant about
the abuse).
Defendant could not recall an exact number but testified that beginning in September
1993, “[t]here were many” or “[s]everal” meetings “[s]paced out” over the span of “[a]bout five”
years, and the meetings often “ended with [her] crying and begging and asking [her uncles] to do
something.” (Id. at 140:20-144:22, 152:3-157:20, 158:3-161:10; Def.’s Am. Resp. Pl.’s
Interrogs. at 4-5, stating that beginning in “late 1993,” there were multiple meetings between
Defendant and her uncles about the abuse). Although Defendant’s uncles wanted to protect their
“family name,” instructed her to “stay silent,” and called her “ungrateful,” Defendant testified
that she “wouldn’t give up” for five years, “kept asking [her uncles] to do something,” and
continued to implore her uncles to “take actions” to “punish” Plaintiff or “let somebody else
punish [Plaintiff] if they couldn’t do it,” to “protect” her, to “get [Plaintiff] out of [her] life,” and
to prevent her from “hav[ing] to see the person who” abused her. (Def.’s Dep. 140:20-144:22,
152:3-157:20, 158:3-161:10; Def.’s Am. Resp. Pl.’s Interrogs. at 4-5.) In seeking a punishment,
Defendant expected “[w]hatever the punishment for [a] child molester was.” (Def.’s Dep.
157:16-20, 160:4-21.) Defendant also remained vigilant about the possibility that Plaintiff may
harm her siblings, which is why “she made sure when [Plaintiff was alone] in the house [without
Amin Wahab], [she] was with [her siblings] all the time . . . [and] knew that they were safe.” (Id.
at 167:7-23.)
///

PAGE 22 – OPINION AND ORDER

In addition to suggesting that her uncles “let somebody else punish” Plaintiff if they were
unwilling to do so and stating that she expected an appropriate “punishment for [a] child
molester,” Defendant testified that when she was “about [seventeen]” years old—i.e., in or
around September 1993, when she first disclosed to her uncles that Plaintiff abused her as a
child—she “left it up to” her uncles to decide how to punish Plaintiff but she “did suggest legal
means.” (Id. at 159:20-161:10; see also id. at 36:17-37:8, 182:6-12, estimating an initial
disclosure range in or around September 1993; Def.’s Am. Resp. Pl.’s Interrogs. at 4-5,
providing a similar range of “[s]ometime [in] late 1993”). According to Defendant, the five-year
period in which she reported the abuse and asked her uncles to punish Plaintiff closed “towards
the end of [19]98,” after she graduated from Lewis and Clark College (“Lewis and Clark”) and
Amin Wahab “kicked [her] out of [his] house[.]” (Id. at 152:3-157:20, 158:3-161:10, 161:12163:12, 174:25-177:15; see also Def.’s Am. Resp. Pl.’s Interrogs. at 4, noting that Defendant
graduated in May or June 1998).
Defendant explained that after she graduated from college, Amin Wahab informed
Defendant that she needed to “get out” of his home if she was “not going to stay silent
and . . . going to create a problem for [the Wahab] family,” and therefore Defendant “moved out”
rather than “[s]uffer in silence” and “[e]at dinner” with her abuser. (Def.’s Dep. at 152:3-157:20,
158:3-161:10, 161:12-163:12, 174:25-177:15.) In a recently filed declaration, Defendant further
explained that between the ages of seventeen and twenty-three, she “was forced to live with [her]
abuser” because when she reported the abuse to and asked for the support of her uncles, they
offered no support, “refus[ed] to make [Plaintiff] disappear,” and “treat[ed] [her] differently
because [she] was a woman.” (Suppl. Decl. Saima Wahab Supp. Countercls. (“Def.’s Decl.”) ¶ 3,
ECF No. 152.) Defendant adds that she was “angry during this time at [her] uncles” because of

PAGE 23 – OPINION AND ORDER

their response and decision to “ignore their obligations to [her as a result of] their religion and
culture,” she “moved out of [Amin Wahab’s] house to create a life separate from [her] family ,”
and she “saw [her] abuser for the first time in decades” at the May 2022 family gathering. (Id.
¶¶ 3-4.)
3.

Other Evidence and Past Representations

Defendant recounted many similar, “relevant facts” in her motion for summary judgment.
(Def.’s Mot. Summ. J. at 3, ECF No. 100) (bold and all caps omitted). For example, Defendant
recounted that “Plaintiff’s assault of Defendant [has been] common knowledge amongst the
Wahab family members since the mid-1990s.” 9 (Id.) To that end, Amin Wahab “testified that
sometime in 1996 he participated in a conversation during which Defendant stated that she had
been sexually assaulted by Plaintiff when she was a child living in Afghanistan.” (Id., citing Dep.
Amin Wahab 23:11-24:2, 24:23-25:9, 26:24-27:10, 42:21-46:5, Mar. 19, 2024, ECF No. 101-1 at
3-5.) Plaintiff, Plaintiff’s eldest brother, Zaher Wahab, and Defendant’s brother were also present
at this meeting. (Id. at 3-4, citing Dep. Amin Wahab 43:4-13 and Dep. Zaher Wahab 95:2396:5.)
Throughout this case, Plaintiff has similarly “admitted that he has known for over
[twenty-five] years about Defendant telling members of the family that [Plaintiff] sexually

9

The Court emphasizes that Defendant did not simply present facts in the light most
favorable to the nonmoving party at the summary judgment stage (i.e., Plaintiff); rather,
Defendant accurately described deposition and court hearing transcripts and presented legal
arguments and defenses that depended on facts derived from the cited sources. (See Def.’s Mot.
Summ. J. at 7, 9, arguing that Plaintiff’s and Plaintiff’s brothers’ testimony “confirm that
Defendant first reported that Plaintiff sexually assaulted her as a child in Afghanistan during a
family meeting held in the mid-1990s,” Defendant’s May 2022 text message “conveyed in
writing the same report of sexual assault she first reported in the mid -1990s,” Defendant “made
statements to other family members and to Plaintiff himself in the mid-1990s,” and Defendant’s
“text is consistent with statements made decades earlier, closer in time to when the abuse
happened”).
PAGE 24 – OPINION AND ORDER

assaulted her when she was a child in Afghanistan.” (Id. at 3.) In fact, Plaintiff testified that
“Defendant [told] him, Amin Wahab, Zaher Wahab, and Khalid Wahab that she was ‘sexually
abused’ as a child by him.” (Id., quoting Dep. Ebrahim Wahab (“Pl.’s Dep.”) 69:20-73:14, Apr.
30, 2024, ECF No. 101-4 at 3-4.) Plaintiff also testified that to the “[b]est of [his] memory and
knowledge,” Defendant reported this during a family meeting held “sometime in 1997.” (Pl.’s
Dep. 69:20-73:14.) Furthermore, during an in-person hearing and status conference held on
March 6, 2024, Plaintiff informed the Court that he attended a 1997 meeting, at which Defendant
“told her two [other] uncles, Amin and Zaher [Wahab], . . . that she was sexually assaulted by
Plaintiff.” (See Def.’s Mot. Summ. J. at 4, citing Ct. Hr’g Tr. 22:5-22, Mar. 6, 2024, ECF No.
101-3 at 4, reflecting that before his deposition, Plaintiff referenced “four” total attendees at this
meeting).
Similar to Plaintiff, Amin Wahab testified that the 1996 meeting occurred when
Defendant was “an adult” and “junior or [so] . . . in college” and “around th[e] time” or shortly
before he purchased a new home (i.e., a purchase he made “late in the year” in 1996), which is
where Amin Wahab, Defendant, and two of Defendant’s cousins later resided. (Dep. Amin
Wahab 23:11-28:24, 42:21-49:17; see also Dep. Saima Wahab (“Def.’s Dep.”) 7:10-18, Apr. 29,
2024, ECF No. 111-1 at 1, reflecting that Defendant provided testimony on her “legal birthday,”
which falls in September 1976). Like Amin Wahab, Zaher Wahab estimated that the meeting at
his home and involving Plaintiff, Plaintiff’s brothers, and Defendant, who was “upset,” occurred
when Defendant was in her “first year or second year of college.” 10 (Dep. Zaher Wahab 73:6-13,
ECF No. 108-8.)
///
10

Zaher Wahab, who is around eighty years old, was a long-time professor at Lewis and
Clark. (Dep. Zaher Wahab 5:15-24, 97:18-25.)
PAGE 25 – OPINION AND ORDER

With respect to how Plaintiff’s brothers responded to Defendant’s reports of abuse, Amin
Wahab testified that based on his “recollection” of the 1996 meeting, Zaher Wahab told
Defendant that “fil[ing] a lawsuit . . . would be an option” or to “file a lawsuit,” and later added
that Zaher Wahab “probably . . . meant” that Defendant could take her report “to the police or the
court[.]” (Dep. Amin Wahab 27:1-28:16.) Zaher Wahab testified that during the meeting, he told
Defendant that if she believed she “ha[d] a case” against Plaintiff, she was a “grown[-]up” and
“should go ahead and . . . bring this up to . . . a lawyer or the police or the court.” 11 (Dep. Zaher
Wahab 73:6-23.)
In addition to the foregoing, Defendant’s cousin, Jamila Wahab, testified that “it became
clear well after the mid-1990s family discussion, but [years] before the [May 2022] text message
at issue, [that] members of the Wahab family continued to share [Defendant’s] report of
Plaintiff’s sexual assault of Defendant.” (Def.’s Mot. Summ. J. at 4, citing Dep. Jamila Wahab
36:2-38:24, 39:18-40:23, Apr. 16, 2024, ECF No. 101-5 at 3-4.) Specifically, Jamila Wahab
testified that before she received the May 2022 text message, there were “probably . . . multiple
occasions” in which her mother told her children about Defendant’s claim that Plaintiff molested
her when she was a child, or at least “something along th[e] lines” of what Defendant’s text
claimed. (Dep. Jamila Wahab 36:18-38:21.) Jamila Wahab further testified that her mother was
attempting to address Defendant’s and Defendant’s uncles’ ongoing “tension,” “unresolved
issue,” and inability to “get[] along,” all of which related to Defendant’s uncles’ handling of
Defendant’s allegations against Plaintiff. (Id.) Jamila Wahab also testified that she “assum[ed]”
that her mother first raised these issues “around the time” she “graduated college” (i.e., Jamila
Defendant’s counsel stated at the hearing on this matter that Defendant disputes these
statements. However, as discussed, Defendant testified at her deposition that she suggested to her
uncles “legal means” to punish Plaintiff many years ago. (Def.’s Dep. 159:20-161:10.)
11

PAGE 26 – OPINION AND ORDER

Wahab graduated from college not long before her parents moved to the United States in 2007 )
but after her 2008 marriage. (Id.)
D.

Disposition

The Court finds that a reasonable person in Defendant’s circumstances in the exercise of
reasonable care should have discovered the causal connection between Plaintiff’s abuse and
Defendant’s resulting injuries before September 29, 2018, and that no reasonable trier of fact
could conclude otherwise.
Defendant alleges that before “May of 2022, [she] did not discover and could not have
reasonably discovered the causal connection between [Plaintiff’s] abuse and [her] resulting
injuries from the abuse itself.” (Def.’s Answer, Affirmative Defs., & Countercls. ¶ 20.)
Defendant also alleges that “[t]he psychological effects of the abuse . . . prevented [her] from
discovering the causal connection between the abuse and the injuries she suffered as a result of
the abuse.” (Id.) As such, Defendant alleges that her counterclaims are timely under ORS
§ 12.117(1). (Id.)
In support of her delayed discovery theory, Defendant relies in part on the testimony of
Anna Rose Bick-Mera (“Bick-Mera”), a licensed clinical social worker who has treated
Defendant since November 2023. (Def.’s Expert Witness Disclosure at 2, ECF No. 134; see also
Suppl. Decl. Anna Rose Bick-Mera Supp. Countercls. (“Bick-Mera Decl.”) at 1-4, ECF No.
154.) Bick-Mera diagnosed Plaintiff with post-traumatic stress disorder (“PTSD”). (Def.’s
Expert Witness Disclosure at 2.) At trial, Bick-Mera would have testified that Defendant
“experienced some of the symptoms associated with PTSD throughout the years following her
childhood abuse by [P]laintiff,” but she “did not meet the full diagnostic criteria for PTSD until
May of 2022 when she [was] triggered by seeing [Plaintiff] . . . at a family event.” (Id. at 2-3.)
Bick-Mera also would have testified that after the May 2022 event, Defendant “experienced
PAGE 27 – OPINION AND ORDER

PTSD symptoms, including[,] but not limited to, flashbacks, nightmares, insomnia, fragmented
sleep, emotional flooding, anxiety, depression, [and] loss of enjoyment of usual social and
employment activities.” (Id. at 3.)
Defendant turned forty in 2016, Plaintiff filed this action on January 20, 2023, and
Defendant filed her counterclaims on September 29, 2023. (See Compl. at 1; Def.’s Answer,
Affirmative Defs., & Countercls. at 8-9, setting forth the filing dates; id. ¶¶ 14-16, stating that
Defendant was born in 1976 and Defendant’s counterclaims are based on abuse that began
shortly after her father’s 1979 kidnapping and occurred when she was “between three and five
years of age”). For statute of limitations purposes, then, Defendant’s counterclaims are only
timely if, in the exercise of reasonable care, she could not have been expected to discover the
causal link between the abuse she suffered and any consequential injury before September 29,
2018. See Doe 150, 2010 WL 11531082, at *4 (“This action was filed June 6, 2008. [The
plaintiff] attained the age of 40 in 1985. Thus, [the plaintiff’s] claim may only be timely for
statute of limitations purposes if in the exercise of reasonable care he could not have been
expected to discover the causal link between the abuse he suffered and any consequential injury
prior to June 6, 2003.”); OR. REV. STAT. § 12.117(1) (recognizing that an action like this “must
be commenced before the person attains 40 years of age, or if the person has not discovered the
causal connection between the injury and the child abuse, nor in the exercise of reasonable care
should have discovered the causal connection between the injury and the child abuse, not more
than five years from the date the person discovers or in the exercise of reasonable care should
have discovered the causal connection between the child abuse and the injury, whichever period
is longer”).
///

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The Court focuses on the time period in which Defendant was around eighteen years old
and older and resided in the United States (the mid-1990s to the present). Similar to Doe 150, the
Court emphasizes at the outset that Defendant does not claim that she forgot or repressed her
memories of the abuse, which she acknowledges “did cause harmful and offensive contact with
[Defendant.]” (Def.’s Answer, Affirmative Defs., & Countercls. ¶ 22 ); see Doe 150, 469 F.
App’x at 643 (noting the emphasis at the outset of the district court’s analysis that the plaintiff
“never forgot or repressed” memories of the abuse, which “had harmed him”); Doe 150, 2010
WL 11531082, at *5 (“John concedes that he never repressed memory of the abusive acts
themselves.”).
The record before the Court clearly supports that Defendant remembers Plaintiff’s abuse.
Defendant testified that she “remember[s]” details about when Plaintiff abused her as a child and
later threatened that if she “said anything to anyone, [Plaintiff] would make [her] mother
disappear the way [her] father [had recently] disappeared” in Afghanistan. (See id. at 49:2051:25, 52:15-54:2, stating as much and adding that contrary to the suggestion that Defendant did
not report the incidents, Defendant “told [Plaintiff’s] brother in the US as an adult” about the
previously described abuse; see also id. at 22:18-23:24, reflecting that Defendant recounted that
Plaintiff “molested [Defendant]” as a child and responded to a question about her memory of
certain dates by stating that “an experience that happens to you is a lot easier to remember than
to remember what month and what date and what year it was”).
Defendant also testified that her reporting of the abuse was not limited to her initial
disclosure to her uncles in or around September 1993 at the age of seventeen; rather, there were
several “family meetings” and “many conversations” during which she reported the abuse to
Zaher and Amin Wahab, her siblings, her cousins, and occasionally Plaintiff. (See id. at 140:20-

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144:22, 152:3-155:4, 158:3-161:10, noting that the “family meetings”/“conversations” “[o]ften”
but did not always involve eight family members, Defendant, Amin Wahab, Zaher Wahab,
Defendant’s siblings, and Defendant’s cousins, as well as Plaintiff on some “[o]c casion[s],” and
describing how Defendant “told [Plaintiff’s] brother in the US as an adult” about Plaintiff
abusing her as a child, Defendant confided in her brother, Khalid Wahab, who “would see [her]
cry” because she had “many conversations” and “fight[s] with [her] uncles” about Plaintiff
abusing her, Defendant’s cousins knew that “there was a lot of tension, and that there was family
meetings, which ended with [Defendant] crying and begging, and asking [her uncles] to do
something,” and Defendant’s younger sister “cried” and “sympathized” with Defendant about the
abuse).
Further, Defendant could not recall an exact number but testified that beginning in
September 1993, “[t]here were many” or “[s]everal” meetings “[s]paced out” over the span of
“[a]bout five” years, and the meetings often “ended with [her] crying and begging and asking
[her uncles] to do something.” (Id. at 140:20-144:22, 152:3-157:20, 158:3-161:10; Def.’s Am.
Resp. Pl.’s Interrogs. at 4-5, stating that beginning in “late 1993,” there were multiple meetings
between Defendant and her uncles about the abuse). Defendant’s uncles wanted to protect their
“family name,” instructed her to “stay silent,” and called her “ungrateful,” but Defendant
testified that she “wouldn’t give up” for five years, “kept asking [her uncles] to do something,”
and continued to implore her uncles to “take actions” to “punish” Plaintiff or “let somebody else
punish [Plaintiff] if they couldn’t do it,” to “protect” her, to “get [Plaintiff] out of [her] life,” and
to prevent her from “hav[ing] to see the person who” abused her. (Def.’s Dep . 140:20-144:22,
152:3-157:20, 158:3-161:10; Def.’s Am. Resp. Pl.’s Interrogs. at 4-5.) In seeking punishment for
Plaintiff’s abuse, Defendant expected “[w]hatever the punishment for [a] child molester was.”

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(Def.’s Dep. 157:16-20, 160:4-21.) Defendant also remained vigilant about the possibility that
Plaintiff may harm her siblings, which is why “she made sure when [Plaintiff was alone] in the
house [without Amin Wahab], [she] was with [her siblings] all the time . . . [and] knew that they
were safe.” (Id. at 167:7-23.)
In addition to suggesting that her uncles “let somebody else punish” Plaintiff if they were
unwilling to do something themselves and stating that she expected an appropriate “punishment
for [a] child molester,” Defendant testified that when she was “about [seventeen]” years old —
i.e., in or around September 1993, when she first disclosed to her uncles that Plaintiff abused her
as a child—she “left it up to” her uncles to decide how to punish Plaintiff but she “did suggest
legal means.” (Id. at 159:20-161:10; see also id. at 36:17-37:8, 182:6-12, estimating an initial
disclosure range in or around September 1993; Def.’s Am. Resp. Pl.’s Interrogs. at 4-5,
providing a similar range of “[s]ometime [in] late 1993”). According to Defendant, the five -year
period in which she reported the abuse and asked her uncles to punish Plaintiff closed “towards
the end of [19]98,” after she graduated from Lewis and Clark and Amin Wahab “kicked [her] out
of [his] house[.]” (Id. at 152:3-157:20, 158:3-161:10, 161:12-163:12, 174:25-177:15; see also
Def.’s Am. Resp. Pl.’s Interrogs. at 4, noting that Defendant graduated from Lewis and Clark in
May or June 1998).
Relatedly, Defendant has on multiple occasions during this litigation acknowledged that
“Plaintiff’s assault of Defendant [has been] common knowledge amongst the Wahab family
members since the mid-1990s.” (See, e.g., Def.’s Mot. Summ. J. at 3.) As discussed above,
Defendant’s reference to “Wahab family members” includes, but is not limited to, Defendant’s
uncles, mother, brother, and cousin’s family, and all of these Wahab family members possess
such knowledge because of their direct or indirect of awareness of Defendant’s reports of abuse.

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Thus, the undisputed factual record reflects that Defendant recalled the abuse and disclosed it
frequently to extended family members beginning at least in the 1990s.
Addressing her memories of the abuse that she suffered and awareness of the causal
connection between the abuse and the consequential harm, Defendant emphasizes that after
witnessing Plaintiff hug a young family member at the family gathering in May 2022, she
“experienced a flood of memories of the sexual assaults committed by [Plaintiff].” (Def.’s Trial
Br. at 3; see also Def.’s Answer, Affirmative Defs., & Countercls. ¶¶ 19-20; Def.’s Am. Resp.
Pl.’s Interrogs. at 7, addressing similar or related matters). Defendant explains that “[t]hese
memories then caused and continued to cause her significant emotional distress demonstrated by
flashbacks, nightmares, insomnia, fragmented sleep, emotional flooding, anxiety, depression,
loss of enjoyment of social activities, and the inability to seek employment.” (Def.’s Trial Br. at
3.)
Given Defendant’s reported abuse and the fact that Defendant, who had not seen Plaintiff
“since the mid-1990s,” witnessed Plaintiff hug a young family member, it is understandable (and
the Court does not question) that Defendant was “shock[ed] and horr[ified]” and “experienced a
flood of memories of the sexual assaults by [Plaintiff].” (Def.’s Trial Br. at 3; Def.’s Answer,
Affirmative Defs., & Countercls. ¶ 19.) Importantly, however, the 2022 incident did not involve
the discovery of a repressed memory. See Kraft v. St. John Lutheran Church, 414 F.3d 943, 947
n.3 (8th Cir. 2005) (noting that the plaintiff “argue[d] that there was disputed evidence
concerning when he actually discovered that the abuse caused his injuries,” and the “case [did]
not involve the discovery of a repressed memory” because he “ha[d] always retained an
awareness of the facts of the claimed abuse”).
///

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Further, the record reflects that Defendant suffered harm resulting from Plaintiff’s abuse
prior to the 2022 incident. For example, Bick-Mera, who established a treatment relationship
with Defendant in November 2023, would have testified at trial that Defendant “experienced
some of the symptoms associated with PTSD throughout the years following her childhood
abuse by [Plaintiff].” (Def.’s Expert Witness Disclosure at 2.) Although Bick-Mera explains in
her recently filed supplemental declaration that Defendant “did not meet the criteria for a
diagnosis of PTSD” between the ages of seventeen to twenty -three or during the decades
preceding May 2022, and that the May 2022 event “trigger[ed] the delayed onset PTSD” (BickMera Decl. ¶¶ 3-7), Bick-Mera does not disavow her earlier statements that Defendant also
suffered from PTSD symptoms throughout the years following the childhood abuse. Further, the
events that occurred in the 1990s when Defendant initially disclosed the abuse to her extended
family demonstrate that Defendant was experiencing harm as a result of the abuse in her early
adulthood. See generally Wilson, 2021 WL 3779630, at *4 (noting that the plaintiff “identif[ied]
[a defendant] as the person who inflicted harm upon her,” the plaintiff’s “grievance described her
assault and her strong reaction to the assault,” and the plaintiff “describe[d] having a serious
reaction to the assault, including . . . visibly shaking, . . . having flashbacks . . . , finding the
experience ‘horrifying,’ and that the assault triggered fear and haunted her,” and explaining
“[a]lthough [the plaintiff’s] grievance form describe[d] some psychological harm, even if [the
plaintiff did] raise issues of material fact regarding the extent of her knowledge regarding her
psychological harm, that [did] not create an issue of material fact for purposes of the discovery
rule”); Doe, 7 v. Josephine County, 697 F. App’x 567, 568-69 (9th Cir. 2017) (affirming the
district court’s entry of summary judgment in the defendant’s favor on the plaintiffs’ state and
federal claims, explaining that the plaintiffs’ “federal claims accrued at the time the [p]laintiffs

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recognized they had suffered some harm and knew the identity of the tortfeasor, even if a
different kind of harm arose years later,” and “[a] separate claim does not accrue and the statute
of limitations [was] not tolled even if the [p]laintiffs were not aware that the psychological
problems they [were] suffering as adults were caused by the abuse,” and adding that the
“[p]laintiffs’ state law claims [were] barred by Oregon’s [applicable] statute of limitations for the
same reasons the federal claims [were] barred”) (simplified).
The record is clear that Defendant suffered additional and profound harm as a result of
the May 2022 incident, which Bick-Mera’s PTSD diagnosis confirms. However, the record also
reflects that Defendant suffered harm much earlier and a victim of abuse need not know the full
extent of her harm for the limitations period to begin. See generally Wilson v. Or. ex rel. Dep’t of
Corr., No. 3:20-cv-2078-SI, 2021 WL 3779630, at *4 (D. Or. Aug. 25, 2021) (“A plaintiff need
not know the full extent of her harm for the limitations period to begin. . . . ‘[According to the
Oregon Supreme Court,] [i]f a plaintiff knows that he or she has suffered some harm and knows
that it is the result of tortious conduct, an argument that the plaintiff did not know the full extent
of the harm . . . will be of no avail.’ . . . [The plaintiff] knew at least that she had been sexually
assaulted and had suffered at least some harm warranting damages. Even if [the plaintiff] was
unaware of the full extent of her harm, including her psychological harm, that does not extend
the running of the statute of limitations.” (quoting Doe 1, 353 Or. at 335)); see also id. (noting
that the plaintiff “identif[ied] [a defendant] as the person who inflicted harm upon her,” the
plaintiff’s “grievance described her assault and her strong reaction to the assault,” and the
plaintiff previously “describe[d] having a serious reaction to the assault, including . . . visibly
shaking, . . . having flashbacks . . . , finding the experience ‘horrifying,’ and that the assault
triggered fear and haunted her,” and explaining “[a]lthough [the plaintiff’s] grievance form

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describe[d] some psychological harm, even if [the plaintiff did] raise issues of material fact
regarding the extent of her knowledge regarding her psychological harm, that [did] not create an
issue of material fact for purposes of the discovery rule”).
The relevant question before the Court is whether a reasonable person in Defendant’s
circumstances in the exercise of reasonable care should have discovered the causal connection
between Plaintiff’s abuse and the resulting injuries before September 29, 2018 and made further
inquiry to determine if Defendant had a legal claim. See OR. REV. STAT. § 12.117(1); see also
Doe 150, 2010 WL 11531082, at *5 (holding that the relevant inquiry is twofold: (1) whether, in
light of the facts and occurrences of which the plaintiff was aware, “a reasonable person of
ordinary prudence who [knew that she] had suffered childhood sex abuse at [the defendant’s]
hands would necessarily have made ‘further inquiry’ to determine whether [she] might have a
claim against [the defendant] . . . arising out of [the] abuse,” or (2) “even absent . . . further
inquiry[, such a person] would necessarily have been aware of the ‘substantial possibility’ that
such a claim might lie”); see also Doe 150, 469 F. App’x at 642-43 (affirming).
The undisputed factual record reflects that Defendant (1) never forgot or repressed her
memories of the childhood sexual abuse; (2) suffered emotional distress resulting from the abuse
for at least several years in early adulthood as reflected by expert testimony, as well as evident in
Defendant’s own testimony recounting her repeated reports of the abuse to family members,
emotional meetings and fights with her uncles, strong emotional reactions to Plaintiff’s presence,
demands for an appropriate “punishment” for the harm Plaintiff caused, and continued demands
for action when her uncles failed adequately to respond to her reports and requests for
punishment; and (3) was aware that Plaintiff’s abuse violated the law and that there could be
“legal means” to “punish” him. (See Def.’s Answer, Affirmative Defs., & Countercls. ¶ 17;

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Def.’s Trial Br. at 2, suggesting that Defendant knew that that decades earlier, her mother
witnessed and reported Plaintiff’s abuse to authorities in Afghanistan, and took her for a medical
evaluation and treatment; Def.’s Dep. 140:20-144:22, 152:3-157:20, 158:3-161:10; Def.’s Am.
Resp. Pl.’s Interrogs. at 4-5, reflecting that Defendant “wouldn’t give up” for five years in the
1990s, “kept asking [her uncles] to do something,” and continued to implore her uncles to “take
actions” to “punish” Plaintiff or “let somebody else punish [Plaintiff] if they couldn’t do it,” to
“protect” her, to “get [Plaintiff] out of [her] life,” and to prevent her from “hav[ing] to see the
person who” abused her, and “suggest[ing] legal means” to punish Plaintiff; Def.’s Dep. 157:1620, 160:4-21, demonstrating that Defendant expected “[w]hatever the punishment for [a] child
molester was”).
In light of these undisputed facts, the Court concludes that a reasonable person in
Defendant’s circumstances should have discovered in the exercise of reasonable care the causal
connection between Plaintiff’s abuse and Defendant’s injuries before September 29, 2018, and
that no reasonable jury could reach a different conclusion. Accordingly, Defendant’s
counterclaims are time barred as a matter of law and the Court must enter summary judgment for
Plaintiff.
CONCLUSION
For these reasons, the Court GRANTS summary judgment to Plaintiff on Defendant’s
counterclaims, CANCELS the jury trial, and DENIES all pending motions as moot.
IT IS SO ORDERED.
DATED this 30th day of August, 2024.

HON. STACIE F. BECKERMAN
United States Magistrate Judge

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