Colomb v. Roman Catholic Diocese of Burlington, Vermont, Inc.

Filing 59

MEMORANDUM OPINION AND ORDER denying 46 Motion for Summary Judgment; granting 54 Motion to Strike 53 Response to Reply to 46 Motion for Summary Judgment; denying 55 Motion for Leave to File Surreply Memorandum re 46 MOTION for Summary Judgment. Signed by Judge William K. Sessions III on 9/28/2012. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
EDWARD COLOMB,
Plaintiff,
v.
ROMAN CATHOLIC DIOCESE OF
BURLINGTON, VERMONT, INC.,
Defendant.

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Case No. 2:10-cv-254

Memorandum Opinion and Order
Edward Colomb has brought suit against the Roman Catholic
Diocese of Burlington, Vermont, Inc. (“the Diocese”) seeking
compensatory and exemplary damages for injuries he suffered as a
result of childhood sexual abuse.

The Diocese has moved for

summary judgment on several grounds:

1) Colomb’s suit is time-

barred; 2) Colomb’s suit offends the First Amendment’s Free
Exercise and Establishment clauses; 3) Vermont’s statute of
limitations for actions based on childhood sexual abuse violates
the Due Process Clause of the Fourteenth Amendment; 4) the
potential for disparate damage awards in childhood sexual abuse
cases in Vermont violates the First and Fourteenth Amendments;
and 5) imposing punitive damages is unwarranted and
unconstitutional.

The Diocese’s motion for summary judgment, ECF

No. 46, is denied.1
1

The Diocese has also moved to strike an unauthorized
response to its reply. The motion, ECF No. 54, is granted.
Colomb’s Motion for Permission to File Surreply Memorandum, ECF

I.

Factual Background2
Colomb was abused in 1974 when he was 13 years old by Father

Edward Paquette, a Roman Catholic priest of the Diocese.
Although he has known all along about the abuse, he only recently
learned that lawsuits had been filed against the Diocese, seeking
to hold it responsible for the sexual abuse perpetrated by
Paquette and other priests.
Vermont began investigating reports of priest abuse in 2002,
the first lawsuit against the Diocese was filed in 2002, and the
first press reports of sexual abuse by priests in Vermont emerged
in 2002.

Several cases have gone to trial; several cases have

settled.

Colomb cannot pinpoint a time when he connected his

longstanding psychological and emotional difficulties with the
abuse he suffered as a child.
Colomb filed his lawsuit against the Diocese on October 20,
2010, when he was 49 years old.

His complaint alleges that the

Diocese negligently hired, supervised, and retained Paquette;
breached a fiduciary duty to Colomb; fostered an atmosphere in

No. 55, is denied.
2

In this narrative, the Court includes only facts material
to the resolution of the motion for summary judgment, either
undisputed or taken in the light most favorable to Colomb, as the
nonmoving party. See, e.g., Golden Pacific Bancorp. v. F.D.I.C.,
375 F.3d 196, 200, 201 (2d Cir. 2004) (looking “to the
substantive law of the action to determine which facts are
material,” “credit[ing] the non-moving party’s evidence and
draw[ing] all justifiable inferences in favor of that party”).
2

which child sexual abuse could and did take place; failed to
provide treatment to victims of the abuse; failed to prevent the
intentional infliction of harm; engaged in outrageous conduct
that caused Colomb to suffer extreme emotional distress; and
participated in a conspiracy to conceal and cover up child sexual
abuse by employees of the Diocese.
Paquette and other priests were hired and retained by the
Diocese despite known instances of sexual abuse in their
histories.

After Paquette was hired in 1972 the Diocese placed

no restrictions on his duties, and he was assigned to a parish
with a school.

Paquette continued to molest children.

When the

pastor complained, the Diocese reassigned Paquette, but again
placed no restrictions on his unsupervised interactions with
children.

A further reassignment resulted in his placement in a

Burlington, Vermont parish with a school.
molested the altar boys of this parish.

Paquette repeatedly

Although the pastor

notified the Diocese in 1978, the Diocese did not notify the
police, interview the victims or attempt to help them.

Although

local parents were irate, the Bishop remained determined to
continue Paquette’s assignment, although he restricted Paquette
from training altar boys, and told him to avoid any activity that
could be misinterpreted.

The outcry was prolonged and

widespread, however, and the Diocese eventually decided to
terminate him.

The Diocese did not refer the matter to law

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enforcement, nor did it follow up with its parishioners or
Paquette’s victims.
Paquette was not the only child molester among the Diocese’s
priests.

Between 1963 and 2003 the Diocese received reports that

seven Diocesan employees had molested children.

The Diocese did

not report any of them for criminal prosecution; it did not tell
parents or children; and it did not immediately remove the
reported offenders from contact with children.

In some cases it

took years for the Diocese to take action to restrict these
employees from contact with children.

The Diocese repeatedly

covered up or minimized instances of sexual abuse by its priests.
II.

Discussion
Summary judgment must be granted if the moving party “shows

that there is no genuine dispute as to any material fact and [it]
is entitled to judgment as a matter of law.”
56(a).

Fed. R. Civ. P.

“It is the movant’s burden to show that no genuine

factual dispute exists, . . . and all reasonable inferences must
be drawn in the non-movant’s favor.”

Giannullo v. City of New

York, 322 F.3d 139, 140 (2d Cir. 2003) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970)).
The Court applies the substantive law of the state of
Vermont as well as its statute of limitations in this diversity
jurisdiction case.

See Guaranty Trust Co. of N.Y. v. York, 326

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U.S. 99, 108-12 (1945); accord Giordano v. Market America, Inc.,
599 F.3d 87, 94 (2d Cir. 2010) (applying New York’s substantive
law and statute of limitations in case that arose in New York).
A.

Statute of Limitations Defense

Section 522(a) of Title 12 of Vermont Statutes Annotated
provides:
A civil action brought by any person for recovery of
damages for injury suffered as a result of childhood
sexual abuse shall be commenced within six years of the
act alleged to have caused the injury or condition, or
six years of the time the victim discovered that the
injury or condition was caused by that act, whichever
period expires later. The victim need not establish
which act in a series of continuing sexual abuse or
exploitation incidents caused the injury.
Vt. Stat. Ann. tit. 12, § 522(a).
The statute was enacted in 1990, and applies retroactively
“only to cases where ‘the act of sexual abuse or the discovery
that the injury or condition was caused by the act of sexual
abuse occurred on or after July 1, 1984.’”

Earle v. State, 743

A.2d 1101, 1104 (Vt. 1999) (quoting 1989, No. 292 (Adj. Sess.), §
4(b)).

Given that the sexual abuse occurred in 1974, the statute

applies retroactively only if Colomb discovered on or after July
1, 1984 that his injuries were caused by the sexual abuse he
suffered.

The Diocese apparently does not contest the

applicability of the retroactivity provision.

See id. at 1107

n.4 (distinguishing between the date of discovery under the
retroactivity provision and the date of accrual under the statute

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of limitations).
Summary judgment is appropriate on statute of limitations
grounds only if as a matter of law Colomb knew or should have
known more than six years before he filed suit that his “injury
or condition” was caused by the sexual abuse.

See Turner v.

Roman Catholic Diocese of Burlington, Vt., 2009 VT 101, ¶ 43, 987
A.2d 960, 978.
The Diocese argues that Colomb knew that he had been abused
by Paquette prior to October 20, 2004, and knew or should have
known that Paquette had abused others prior to that date.
Assuming that this is the case however, the Diocese fails to
produce evidence that Colomb knew or should have known prior to
October 20, 2004 that his injuries were caused by the abuse.
The Vermont Supreme Court has emphasized that the Vermont
Legislature distinguished “between the acts of abuse themselves
and the injuries that result years later for many victims of
childhood sexual abuse, . . . in recognition of the unique nature
of childhood sexual assault.”
1106 (Vt. 1999).

Earle v. State, 743 A.2d 1101,

In his deposition Colomb stated that he suffers

from lack of trust and anxiety, that he had abused drugs and
alcohol but stopped drinking about eight years ago, that in the
previous year he thought he had a “moment of clarity” when he
realized that his alcohol and drug abuse could be related to the
sexual abuse he had suffered, but that he wasn’t sure when he

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made a connection between his emotional or psychological issues
and the sexual abuse.

Colomb Dep. 101:14-102:25 (June 14, 2011).

On this record, it is impossible to rule as a matter of law
that prior to October 20, 2004, Colomb made or should have made
the connection between his longstanding psychological issues and
the sexual abuse he suffered as a child.
the jury to resolve.

The matter will be for

See Turner, 2009 VT 101, ¶ 48, 987 A.2d at

979-80; see also Lillicrap v. Martin, 591 A.2d 41, 46 (Vt. 1989)
(holding that the statute of limitations does not begin to run
until a plaintiff has or should have discovered both the injury
and the fact that it may have been caused by the defendant’s
negligence or other breach of duty).
B.

First Amendment Defense

The Diocese argues that
continued exposure to damages including punitive
damages makes it highly likely that the tort system
will put the Diocese out of existence. If the
protections of the First Amendment are to mean
anything, the government should not be allowed to shut
the doors of a church and put it up for sale.
Def.’s Mot. for Summ. J. 21.

It argues further that “[c]ontinued

application of the law of torts in this case will likely end the
ability of the Catholic faith to function in this State
consistent with its mission and purpose.”
argument is utterly speculative.

Id. at 23.

The

If a jury finds for the

plaintiff and if it awards damages, and if the award is
substantial, then the Diocese may cease to exist, and the
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Catholic faith may not be able to function properly.

To the

extent that the Diocese’s First Amendment challenge to a punitive
damages award has any merit, it is premature.
C.

Due Process Defense

The Diocese argues that Vermont’s statute of limitations for
childhood sexual abuse deprives it of due process by exposing it
to litigation of a claim that arises out of events that took
place thirty-six years ago.
nearly twenty years ago.

This Court rejected this argument

Barquin v. Roman Catholic Diocese of

Burlington, Vt., 839 F. Supp. 275, 280-81 (D. Vt. 1993).

The

Diocese fails even to cite this decision; it has offered no
reasoned basis for the Court to revisit its ruling.
D.

Inconsistent Damages Awards Defense

The Diocese argues that because damages in civil suits in
“Paquette cases” involving conduct similar to the allegations in
Colomb’s complaint have varied widely, the imposition of civil
damages in this case would violate the First and Fourteenth
Amendments.

It complains that the jury charges on punitive

damages have not been consistent from case to case, and that the
Diocese’s financial exposure through this unpredictability is
“considerably more severe than any criminal sanctions.”
Setting aside the debatable point whether the loss of
liberty or the loss of property constitutes the greater
deprivation, to the extent that the Diocese is arguing for tort
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reform, its arguments are better directed to the Vermont
legislature.

A federal court, sitting in diversity, has no power

to revise state law.

See, e.g., Erie R. Co. v. Tompkins, 304

U.S. 64, 78 (1938) (“Except in matters governed by the Federal
Constitution or by acts of Congress, the law to be applied in any
case is the law of the state.

And whether the law of the state

shall be declared by its Legislature in a statute or by its
highest court in a decision is not a matter of federal
concern.”).

The Vermont Supreme Court has recently clarified

that a punitive damages award requires a showing of “wrongful
conduct that is outrageously reprehensible” and “malice, defined
variously as bad motive, ill will, personal spite or hatred,
reckless disregard, and the like.”

Fly Fish Vermont, Inc. v.

Chapin Hill Estates, Inc., 2010 VT 33, ¶ 18, 996 A.2d 1167, 1173.
If this case comes to trial, and if the evidence warrants it, and
if an instruction on punitive damages is requested, this Court
will instruct the jury in conformity with Vermont law.

Should a

jury in this case render an award that the Diocese deems
excessive, this Court will, upon motion, “‘determine whether the
jury’s verdict is within the confines set by state law.’”
Consorti v. Armstrong World Indus., Inc., 103 F.3d 2, 4 (2d Cir.
1996) (per curiam) (quoting Gasperini v. Ctr. for Humanities,
Inc., 518 U.S. 415, 437 (1996)).
The Court can discern no cognizable First or Fourteenth

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Amendment claim in the Diocese’s concern that multiple instances
of sexual abuse by one of its priests has exposed it to multiple
lawsuits and multiple trials, in which Vermont juries hearing
similar but certainly not identical evidence have reached
different conclusions about an appropriate award of damages.
E.

Inappropriateness of Punitive Damages Defense

The Diocese argues that section 522(a) permits the
unconstitutional retroactive imposition of punitive damages;
would unfairly punish the innocent members of the Diocese; would
serve no deterrent purpose; and is unnecessary.
The Diocese quotes Landgraf v. USI Film Products, 511 U.S.
244, 281 (1994), as noting that “[t]he very labels given
‘punitive’ or ‘exemplary’ damages, as well as the rationales that
support them, demonstrate that they share key characteristics of
criminal sanctions.

Retroactive imposition of punitive damages

would raise a serious constitutional question.”

Landgraf

involved provisions of the Civil Rights Act of 1991 which created
a right to recover compensatory and punitive damages for certain
violations of Title VII, but did not express a clear intention
concerning its applicability to cases pending on appeal when the
statute was enacted.

See id. at 247.

The Vermont legislature created a six-year statute of
limitations for civil actions based on childhood sexual abuse,
and provided that the statute would have a six-year period of

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retroactive applicability to conduct or to discovery that the
injury was caused by the conduct.

See Earle, 743 A.2d at 1104.

No new cause of action was created, nor did the statute provide
any new or additional remedies; individuals who had suffered
sexual abuse as minors had a cause of action against the
responsible parties and could seek compensatory and punitive
damages both before and after the enactment.

The Vermont

legislature thus did not “impose” punitive damages retroactively,
and it did clearly express its intent to reach back six years to
permit the filing of certain suits that might otherwise be timebarred.

Landgraf and its admonition is therefore inapposite to

this case.
The Diocese argues that the common law rule excepting
municipalities from an award of punitive damages should extend to
it as a charitable, religious organization that cannot act
maliciously, except through its officials.

The rationale for

exempting municipal corporations from an award of punitive
damages does not logically extend to private religious
organizations.

As the Vermont Supreme Court has observed:

The twin aims behind punitive damages—punishment and
deterrence—would not be met if they were levied against
a municipal corporation for the malicious and wrongful
acts of its officers. Rather than exclusively
targeting the wrongdoers, such an award would punish
all of the town’s taxpayers. . . . [W]hile the public
is benefited by the exaction of such damages against a
malicious, willful or reckless wrongdoer, the benefit
does not follow when the public itself is penalized for
the acts of its agents over which it is able to
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exercise but little direct control.
In re Town Highway No. 20, 2012 VT 17, ¶ 69, 45 A.3d 54, 79.
(quotation marks and citation omitted).

Whatever the merits of a

rule against assessing punitive damages against a private
religious organization, support for such a rule is not available
by analogy to public municipal corporations, and such a rule has
not been incorporated into the common law of Vermont.
The Diocese argues further that litigation of other sexual
abuse cases has taken an economic, emotional and psychological
toll on the church, its leaders and innocent members of the
church community.

The Court has no reason to doubt these

assertions; nevertheless they have no bearing on whether it will
be appropriate on the facts of this case to consider whether an
award of punitive damages is warranted.
Finally, the Diocese asserts that punitive damages would be
unnecessary because it has “taken steps to put its house in
order.”

Def.’s Mot. for Summ. J. 38.

These actions have

included conducting background checks and screening of church
personnel who work with minors, and implementing programs
designed to provide a safe environment for children.

These

facts, if proven, may be admissible as mitigating evidence
relevant to punitive damages.

They do not create an absence of

genuine dispute of fact on the question whether Diocesan
officials acted outrageously reprehensibly, with malice, as

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defined by Vermont courts.
Colomb’s evidence may or may not be sufficient to warrant
charging the jury on punitive damages.

The Diocese, however, has

not sustained its burden of showing an absence of genuine dispute
as to the material facts relevant to this issue.
F.

Excessive Government Entanglement Defense

The Diocese argues that the First Amendment precludes a suit
against it for negligent hiring or supervision.

The First

Amendment’s Free Exercise Clause “provides that ‘Congress shall
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . . .’”

Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531
(1993).

“[G]overnment actions that ‘substantially burden the

exercise of sincerely held religious beliefs’ [are prohibited]
unless those actions are narrowly tailored to advance a
compelling government interest.”

Fortress Bible Church v.

Feiner, ___ F.3d ___, No. 10-3634-cv, 2012 WL 4335158 at *9 (2d
Cir. Sept. 24, 2012) (quoting Fifth Ave. Presbyterian Church v.
City of New York, 293 F.3d 570, 574 (2d Cir. 2002)).

However, “a

law that is neutral and of general applicability need not be
justified by a compelling governmental interest even if the law
has the incidental effect of burdening a particular religious
practice.”

Church of the Lukumi, 508 U.S. at 531.

It is accordingly “well established that a generally
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applicable law that does not target religious practices does not
violate the Free Exercise Clause.”

Universal Church v. Geltzer,

463 F.3d 218, 228 (2d Cir. 2006).

The torts of negligent hiring

and negligent supervision do not target religious practices, and
the Diocese does not contend that Vermont recognizes these torts
in order to burden religion.

No matter how onerous the Diocese

finds it to defend against a lawsuit claiming that it was
negligent in hiring and supervising Paquette, neither Vermont
tort law on negligent hiring and supervision nor this particular
lawsuit presumes to dictate or condemn any particular religious
practices.
The Diocese does not specify what religious practices or
freedoms it feels are infringed; it states generally and
conclusorily that the lawsuit “implicates church governance and
administration,” that the process of adjudication “affect[s]
governance of church affairs” and “the church’s relationship with
its membership and its priests,” and a negligent supervision
lawsuit “will infringe on the Catholic Church’s religious beliefs
used to formulate its supervisory policy.”
J. 39, 40.

Def.’s Mot. for Summ.

The Diocese appears merely to be arguing that it

cannot be sued for negligent hiring or supervision because it is
a religious institution.

This Court adopts the Vermont Supreme

Court’s ruling in Turner on the identical point:
Defendant does not argue that the common law of
negligence is something other than a neutral law of
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general applicability or that it is directed
specifically towards a religious belief or practice of
defendant. Nor has defendant identified a specific
doctrine or practice that will be burdened if
plaintiff’s suit goes forward. We do not believe
defendant’s generalized assertion that requiring it to
hire and supervise priests in a nonnegligent manner
would constitute undue interference in church
governance.
Turner, 2009 VT 101, ¶ 28, 987 A.2d at 973.
G.

Eighth Amendment Defense

The Diocese argues that imposition of punitive damages would
constitute an excessive fine and cruel and unusual punishment, in
violation of the Eighth Amendment.

The Eighth Amendment’s

excessive fines clause does not apply to awards of punitive
damages in cases between private parties.

Browning-Ferris Indus.

of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 260
(1989).

To the extent that the Diocese claims that an award of

punitive damages would violate the Due Process Clause of the
Fourteenth Amendment, see Def.’s Mot. for Summ. J. 40-41, the
argument is premature, given that no jury has awarded Colomb any
damages whatsoever.

Cf. Browning-Ferris, 492 U.S. at 276-77

(“[A] jury award may not be upheld [under the Due Process Clause]
if it was the product of bias or passion, or if it was reached in
proceedings lacking the basic elements of fundamental
fairness.”).
The Diocese does not explain the connection between the
potential for a punitive damages award and the Eighth Amendment’s

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prohibition against cruel and unusual punishment, and the Court
discerns none.

See, e.g., Alexander v. United States, 509 U.S.

544, 557 (1993) (“[T]he Cruel and Unusual Punishments Clause . .
. is concerned with matters such as the duration or conditions of
confinement . . . .”).
H.

Ex Post Facto Clause Defense

The Diocese argues that the Ex Post Facto Clause of Article
I, Section 10 of the United States Constitution bars the
imposition of punitive damages in this case, citing Calder v.
Bull, 3 U.S. 386, 390 (1798).

The Calder Court distinguished

between laws generally having a retrospective effect and ex post
facto laws.

Ex post facto laws create or aggravate a crime; or

increase a punishment or change the rules of evidence for the
purpose of conviction of a crime.

Id. at 391; see Collins v.

Youngblood, 497 U.S. 37, 41 (1990) (“[T]he constitutional
prohibition of ex post facto laws applies only to penal statutes
which disadvantage the offender affected by them.”); see also
United States v. Kumar, 617 F.3d 612, 639 (2d Cir. 2010) (stating
the original understanding of the Ex Post Facto Clause as:
“Legislatures may not retroactively alter the definition of
crimes or increase the punishment for criminal acts.”), cert.
denied, 131 S. Ct. 2931 (2011).
The Diocese offers no authority for the proposition that the
availability of punitive damages upon proof of commission of a
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civil tort, retroactive or no, has anything to do with the
Constitution’s prohibition against ex post facto laws.

Moreover,

the conduct at issue here was a common law tort both before and
after the enactment of Section 522 of Title 12 of Vermont
Statutes Annotated.
III. Conclusion
For the above-stated reasons, the Diocese’s motion for
summary judgment, ECF No. 46, is denied.

The Diocese’s Motion to

Strike Plaintiff’s Supplemental Memorandum Filed in Opposition to
Motion for Summary Judgment, ECF No. 54, is granted.

Colomb’s

Motion for Permission to File Surreply Memorandum, ECF No. 55, is
denied.
Dated at Burlington, in the District of Vermont, this 28th
day of September, 2012.

/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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