Doe v. Maskell

KARWACKI, Judge. In this case we are asked to decide whether the “discovery-rule” applicable to the time-bar of the statute of limitations on civil actions at law found in Maryland Code (1974, 1995 Repl. Vol.), § 5-101 of the Courts & Judicial Proceedings Article, 1 applies to cases of allegedly “repressed” and “recovered” memories. We hold that repression of memories is an insufficient trigger to compel the application of our discovery rule, and we shall affirm the summary judgment entered in favor of the defendants.

I Reviewing the record in a light most favorable to the plaintiffs, the facts of the case are as follows: Jane Doe, from 1967 to 1971, and Jane Roe, from 1968 to 1972, were students at Seton Keough High School [hereinafter “Keough”], a parochial school in Baltimore City. During their tenure at Keough, both girls, individually were referred for counseling to the school chaplain, Father A. Joseph Maskell. According to the complaints filed in the cases, Maskell subjected the girls to repeated sexual, physical, and psychological abuse including: “vaginal intercourse, anal intercourse, cunnilingus, fellatio, vaginal penetration with a vibrator, administration of enemas, ... hypnosis, threats of physical violence, coerced prostitution and other lewd acts, physically striking Plaintiff, and forcing Plaintiff to perform sexual acts with a police ⁶⁸⁷ officer.” 2 Both girls were allegedly threatened with extreme punishments if they informed anyone of the abuse, which continued until the girls graduated and left Keough in 1971 and 1972 respectively. At some point, 3 both plaintiffs claim ⁶⁸⁸ that they ceased to recall the abuse suffered at the hands of Father Maskell, due to a process they term “repression.” 4 Both plaintiffs began to “recover” memories of this abuse in 1992.

Plaintiffs filed suit against Father A. Joseph Maskell, Christian Richter M.D., 5 the School Sisters of Notre Dame, Seton Keough High School, the Archdiocese of Baltimore, and Archbishop William Keeler in his capacity as Archbishop of Baltimore. The suits, filed in the Circuit Court for Baltimore City on August 24,1994 allege battery, negligent supervision, negligent misrepresentation, intentional infliction of emotional distress, fraud, and loss of consortium. 6 The cases were consolidated for trial and assigned to the Honorable Hilary D. Caplan for trial. Prior to trial, the trial judge conducted a hearing to consider defendants’ motions for summary judgment based on the time-bar of the statute of limitations. At the hearing, both plaintiffs testified, as did expert witnesses offered by both plaintiffs and the defendants.

Affidavits, interrogatory answers and deposition transcripts were also part of the record. At the conclusion of the hearing, Judge Caplan entered summary judgment for the defendants. Doe and Roe appealed to the Court of Special Appeals. Before the case was considered by the intermediate appellate ⁶⁸⁹ court, plaintiffs petitioned this Court for certiorari.

The defendants agreed that the petition should be granted, and we issued our writ of certiorari to consider the important issues raised by this case. II The general Maryland statute of limitations and the one applicable in this case is Md.Code (1974,1995 Repl. Vol.), § 5-101 of the Courts and Judicial Proceedings Article. That section provides: “A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.” Statutes of limitations, like the one contained in § 5-101, are intended simultaneously to “provide adequate time for diligent plaintiffs to file suit,” Pennwalt Corp. v. Nasios, 314 Md. 433, 437 , 550 A.2d 1155, 1158 (1988), to “grant repose to defendants when plaintiffs have tarried for an unreasonable period of time,” id. at 437-38 , 550 A.2d at 1158 , and to “serve societal purposes,” id. at 438 , 550 A.2d at 1158 , including judicial economy.

There is no magic to a three-year limit. It simply represents the legislature’s judgment about the reasonable time needed to institute suit. We have also observed that: “Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients rather than principles.” Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 664-65 , 464 A.2d 1020, 1025 (1983) (quoting Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 , 65 S.Ct. 1137, 1142 , 89 L.Ed. 1628 (1945)).

Historically, our cases have held that a cause of action “accrued” on the date of the wrong. Hahn v. Claybrook, 130 Md. 179, 182 , 100 A. 83 (1917). Under this “date of wrong” rule, claims that were not discovered until after the limitations period had expired were automatically barred. This tradition ⁶⁹⁰ al rule did not distinguish between a “blamelessly ignorant” plaintiff and one who had acted negligently and “slumbered on his rights.” Hecht v. Resolution Trust Corp., 333 Md. 324, 334 , 635 A.2d 394, 399 (1994) (citing Harig v. Jokns-Manville Products, 284 Md. 70, 83 , 394 A.2d 299, 306 (1978).

To ameliorate this harsh result, this Court 7 developed the “discovery rule,” which holds that a cause of action “accrues” when plaintiff knew or should have known that actionable harm has been done to him. This discovery rule initially arose in the context of medical malpractice, see Hahn v. Claybrook, 130 Md. 179 , 100 A. 83 (1917), but soon expanded to encompass other forms of professional malpractice. See, e.g., Leonhart v. Atkinson, 265 Md. 219 , 289 A.2d 1 (1972) (accountant); Steelworkers Holding v. Menefee, 255 Md. 440 , 258 A.2d 177 (1969) (architect); Mattingly v. Hopkins, 254 Md. 88 , 253 A.2d 904 (1969) (civil engineer); Mumford v. Staton, Whaley & Price, 254 Md. 697 , 255 A.2d 359 (1969) (attorney). These developments culminated in Poffenberger v. Risser, 290 Md. 631 , 431 A.2d 677 (1981), where we made the discovery rule applicable in all civil suits.

We held that in order to “activate the running of limitations [it must be proven that the plaintiff had] actual knowledge—that is express cognition, or awareness implied from ‘knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry [thus, charging the individual] with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued.’ ” Poffenberger, 290 Md. at 637 , 431 A.2d at 681 (quoting Fertitta v. Bay Shore Dev. Corp., 252 Md. 393, 402 , 250 A.2d 69, 75 (1969)). ⁶⁹¹ But the discovery rule, by necessity, must operate differently in different contexts. To retain the requisite flexibility to apply the rule to different situations, this Court has always retained to itself the power to shape the contours of the discovery rule. As we explained in O’Hara v. Kovens, 305 Md. 280 , 503 A.2d 1313 (1986), “how the discovery rule operates in different types of cases is for the court to determine.” Id. at 298 , 503 A.2d at 1322 .

See also Hecht v. Resolution Trust Corp., 333 Md. 324 , 635 A.2d 394 (1994) (in a suit by corporation against its officers and directors alleging reckless banking practices, doctrine of adverse domination tolls the statute of limitations); Trimper v. Porter-Hayden, 305 Md. 31 , 501 A.2d 446 (1985) (latent disease actions accrue at the earlier of discovery or death); Pennwalt Corp. v. Nasios, 314 Md. 433, 452 , 550 A.2d 1155, 1165 (1988) (“discovery rule in a product liability action requires that statute of limitations should not begin to run until the plaintiff knows or ... should know of injury, its probable cause and either manufacturer wrongdoing or product defect.”). It is, therefore, for the trial court initially, and ultimately for this Court, to determine how the discovery rule will be applied to cases involving repressed memories. In so doing, we are mindful that “in determining the application of the statute [of limitations] to particular actions, we do so with awareness of the policy considerations unique to each situation.” Hecht, 333 Md. 324, 338 , 635 A.2d 394, 401 (1994). Therefore, the determination of the applicability of the discovery rule in a memory loss or repression case is a legal determination for this Court to make. 8 Ill We find that the critical question to the determination of the applicability of the discovery rule to lost memory cases is whether there is a difference between forgetting and repres ⁶⁹² sion.

It is crystal clear that in a suit in which a plaintiff “forgot” and later “remembered” the existence of a cause of action beyond the 3-year limitations period, that suit would be time-barred. Dismissal of such a case reflects our judgment that the potential plaintiff had “slumbered on his rights,” should have known of his cause of action, and was blameworthy. To permit a forgetful plaintiff to maintain an action would vitiate the statute of limitations and deny repose for all defendants. Plaintiffs in this case, however, claim that in order to avoid the pain associated with recalling the abuse they suffered, their memories were “repressed,” not merely “forgotten,” and later “recovered,” rather than “remembered.” They argue that this difference renders them “blamelessly ignorant” and excuses their failure to file suit in a timely manner.

To aid in an understanding of plaintiffs’ argument, we have extracted two implicit assumptions: 1. That there is a qualitative and quantitative difference between “repression” and mere “forgetting;” and 2. that this difference is of a sufficient quality to compel us to find that plaintiff is excused by operation of the discovery rule and had no reason to have known about the existence of her cause of action. We have reviewed the expert testimony provided at the summary judgment hearing, and reviewed numerous scientific journals submitted by the parties. We begin by attempting to understand what repression is.

Even defining the term is not easy; it originated with Sigmund Freud who used the term differently and sometimes contradictorily throughout his career. David S. Holmes, The Evidence for Repression: An Examination of Sixty Years of Research, in Repression and DISASSOCIATION: IMPLICATIONS FOR PERSONALITY, THEORY, PSYCHOPATHOLOGY and Health 85, 85-86 (J. Singer, ed. 1990) [hereinafter “The Evidence for Repression”]. Holmes chooses to adopt a definition of repression based on the manner in which the term is conventionally used: ⁶⁹³ “It is my belief that in its general use the concept of repression has three elements: (1) repression is the selective forgetting of materials that cause the individual pain; (2) repression is not under voluntary control; and (3) repressed material is not lost but instead stored in the unconscious and can be returned to consciousness if the anxiety that is associated with the memory is removed. The assertion that repression is not under voluntary control differentiates repression from suppression and denial, with which it is sometimes confused.... ” The Evidence for Repression at 86.

The plaintiffs have provided us with several studies purporting to validate the diagnosis of repression. J. Briere & J. Conte, Self-Reported Amnesia for Abuse in Adults Molested as Children, 6 J. Traumatic Stress 21 (1993); J.L. Herman & E. Schatzow, Recovery and Verification of Memories of Childhood Sexual Trauma, 4 Psychoanalytic Psychiatry 1 (1987); Elizabeth F. Loftus, et. al., Memories of Childhood Sexual Abuse, Remembering and Repressing, 18 Psychol. Women Q. 67 (1994); Linda M. Williams, Adult Memories of Child Sexual Abuse: Preliminary Findings from a Longitudinal Study, 5 Am Soc’y Prevention Child Abuse Advisor 19 (1992). The Defendants have also offered significant scientific information tending to discredit the concept of repression and its application in this setting.

These arguments against repression take several forms. First, the adversaries of repression stress that there is no empirical, scientific evidence to support the claims that repression exists. The studies purporting to validate repression theory are justly criticized as unscientific, unrepresentative, and biased. See e.g.

Harrison G. Pope, Jr. & James I. Hudson, Can memories of childhood sexual abuse be repressed?, 25 Psychol. Med. 121 (1995); The Evidence for Repression at 96-99. The reason for the failure of repression enthusiasts to obtain empirical evidence may be the nature of the process itself. As Dr. Jason Brandt of the Johns Hopkins University School of Medicine testified: ⁶⁹⁴ “There are clear cases of people who claim that they don’t remember things that happened in their past for whom no neurologic cause can be found.

They don’t have brain damage. They have nothing organically wrong that can account for [the claimed memory loss]. The question whether they remember or not, whether they truly have the mental state of a memory or not is impossible to determine.” “We know what they are reporting, we don’t know what they are experiencing. Furthermore, I believe that it is virtually impossible to distinguish psychogenic amnesia from faking, from malingering since the distinction between the two hinges on how conscious it is to the person and how willful it is, how intentional it is.

And how conscious somebody is and how willful they’re being, are things that in spite of what we may say, we really don’t have any way of assessing.” Just because there is so