Archdiocese ponders strategy in abuse suits

Observers expect cases to end with settlements

By Andrew Wolfson

The Rev. Louis E. Miller has been named in 63 lawsuits filed against the Archdiocese of Louisville. He also faces criminal charges.

Attorney William McMurry, who represents most of the plaintiffs suing the archdiocese, said he plans to call most of them to the witness stand.

July 6, 2002 - The Rev. Louis E. Miller has been named in 63 lawsuits filed against the Archdiocese of Louisville. He also faces criminal charges.

Attorney William McMurry, who represents most of the plaintiffs suing the archdiocese, said he plans to call most of them to the witness stand.

There are no visible scars and no eyewitnesses. Many of the major figures are dead, and some incidents are alleged to have occurred as long as five decades ago.

So how do the 154 plaintiffs who have sued the Archdiocese of Louisville over the past three months prove allegations that they were molested by 21 different priests -- and that church officials knew about it and covered it up?

How does the archdiocese disprove those claims while adhering to a pledge made by Catholic bishops in national meeting in Dallas last month to reach out and apologize to victims of sexually abusive priests?

Lawyers who have both brought and defended such cases against the Catholic Church in the United States say it's unlikely that either will happen in a courtroom. They expect most of the cases to be settled.

''Nobody wants to try 150 cases -- least of all the judge,'' said Patrick Schiltz, who defended hundreds of abuse cases for the Catholic Church until 1995, when he became a law professor at the University of Notre Dame. ''It would take years.''

There is no official tally, but one expert estimates as many as 3,000 abuse claims have been made against Catholic priests and dioceses in the United States since the 1980s. Yet a Courier-Journal review of news accounts and legal data bases shows only 14 cases that have gone to trial since then, including one in Northern Kentucky.

The church rarely opts to go to trial because it realizes that ''it is almost unheard of for a jury to find a plaintiff was lying,'' said Schiltz and others, including Jeff Anderson, a St. Paul, Minn., attorney who said he's handled more than 600 such cases.

Specialists in such litigation agree the Archdiocese of Louisville would face a more daunting task in court than the plaintiffs.

''If the church wants to prove there was no abuse . . . that's like trying to prove you didn't speed in 1992,'' said Schiltz, who is now associate dean of the St. Thomas School of Law in Minneapolis.

Because the alleged damage to each plaintiff is different, the cases can't be tried together as a class action. Even the 63 suits that name one priest -- the Rev. Louis E. Miller -- probably can't be consolidated, lawyers say.

But to get a sense of damages, a judge may direct the parties to try a few sample cases in which different levels of abuse are alleged, Schiltz and other lawyers said.

Then the court would encourage them to settle the rest of the suits, using those verdicts as benchmarks. A judge also could order mediation.

The sheer number of lawsuits against the archdiocese could aid the plaintiffs' cause, lawyers say; even if the cases are tried separately, lawyer William McMurry, who represents most of the plaintiffs, said he will call to the witness stand all the plaintiffs who allege they were abused by the same priest.

That might be particularly effective in the cases that name Miller as well as the Revs. Arthur L. Wood and Daniel C. Clark, who are named in 31 and 13 lawsuits, respectively.

(Miller also has pleaded innocent to a 42-count criminal indictment alleging sexual abuse.)

The archdiocese's trial lawyer, Ed Stopher, wouldn't talk about strategy, but other lawyers said he might use the volume of cases to suggest that some plaintiffs weren't injured and simply jumped onto what they thought would be a gravy train of settlements.

To prove they were abused, the plaintiffs must make their cases largely through the strength of their recollections, the experts say.

''The richness of texture and detail about their experience and the place it occurred makes plaintiffs believable,'' said Anderson.

A plaintiff's testimony also might be bolstered by a former teacher or parents, who recount how ''Johnny had perfect grades and attendance in third grade but bad in fourth. That suggests something happened to Johnny,'' said Schiltz.

First line of defense

For its part, the Archdiocese of Louisville first will explore whether claims made against it are barred by the statute of limitations or on other legal grounds, said Brian Reynolds, its chief administrative officer.

No priests are named as defendants. All of the lawsuits hold the archdiocese liable, claiming it knew about the alleged abuse and did nothing.

Reynolds said the archdiocese's approach will reflect ''concern for victims and their need to be encouraged and supported in their healing,'' as demanded in the bishops' Charter for the Protection of Children and Young People.

But he said the archdiocese in many ways is like any other defendant. ''It is important to recognize that we are stewards of the gifts given by the Catholic people to carry out the mission and ministry of the church,'' he said. ''We will defend our rights.''

Stopher, the archdiocese's lawyer, said he expects to take depositions from every plaintiff. Such sworn examinations have been used in cases elsewhere to expose allegations that couldn't be true, Schiltz said.

For example, he said he won dismissal of a suit against a bishop alleged to have molested someone on a church balcony in the 1960s; Schiltz said he proved the balcony wasn't built until the 1970s.

In another case, a bishop was able to show he was in Rome working on the Vatican II reforms during the time a plaintiff alleged the bishop had abused him, Schiltz said.

The archdiocese probably will try to undermine the credibility of plaintiffs who made mistakes in their original complaints and subsequent depositions, Schiltz said.

For example, in a May 23 lawsuit, Joseph A. Ball Jr. alleged that the Rev. Thomas Creagh made inappropriate comments when Ball went to him in confession, after allegedly being molested by another priest in the early 1950s -- a decade before Creagh was ordained. In an amended complaint filed last month, Ball dropped Creagh from the complaint and instead named the late Rev. C. Patrick Creed. McMurry, who represents Ball, blamed the error on confusion over similar names.

Another tactic the archdiocese is expected to use stems from the fact that the bulk of the lawsuits cite allegations stemming from the 1950s, '60s and '70s. Lawyers say the archdiocese likely will to try to show that church officials acted reasonably -- based on what was known about pedophilia in those years -- by sending priests accused of child sex abuse for treatment, then reassigning them to new parishes when doctors said they no longer posed a danger.

But a jury in Stockton, Calif., rejected that argument three years ago when it awarded $30 million to brothers James and Joh Howard, who had alleged that top church officials ignored evidence that the Rev. Oliver O'Grady was a pedophile as they moved him from parish to parish.

The award was later reduced to $12 million, and the case subsequently settled for $7.65 million.

In the largest verdict in a case that went to trial, 11 plaintiffs in Dallas in 1997 were awarded $119 million by a jury that found the men had been molested from 1977-1992 by the Rev. Rudolph Kos and that the church concealed information about him.

In the Kentucky case, the Diocese of Covington was ordered to pay $750,000 to John Secter, a veterinarian who claimed he'd been abused by a teacher at the Kentucky Latin School 17 years before he filed suit.

Upholding the verdict, the Kentucky Court of Appeals said the diocese knew that John Bierman was a problem long before Secter was a student, yet ''took no action to discipline or sanction Bierman,'' to warn others, or to report the matter to police.

If the Louisville cases are settled, the Covington case might be an indicator of their value. McMurry noted that Secter was fondled through his clothes -- as many of the Louisville plaintiffs contend they were -- yet still was awarded a large amount.

On the other hand, the jury awarded Secter only $50,000 to compensate for his damages; the rest was for punitive damages -- to punish the diocese and encourage it to clean up its act.

Schiltz and others say juries might be less likely to award punitive damages today, if they believe the church is following through on its promise to reduce sexual abuse in the church.

Pressure put on plaintiffs

Victim groups and plaintiffs' lawyers say dioceses across the country historically have played hardball by forcing plaintiffs to undergo grueling, multi-day depositions and hiring private investigators to root through their lives.

A lawyer for the Joliet, Ill., diocese asked a plaintiff who claimed he was paddled by a priest on his bare buttocks how it made him feel and whether he blamed himself, a local paper, the Daily Southtown, reported.

In Hawaii, a woman who sued the church after a priest was convicted of molesting her son was countersued by the diocese for negligence for letting her boys sleep over at the cleric's apartment.

In Boston, Cardinal Bernard Law declared in court papers that ''unspecified negligence'' by a then-6year-old boy and his parents contributed to any alleged abuse of the boy by a priest. The attorney for the plaintiff, now 24, called Law's position ''appalling.''

Secter said the Covington diocese didn't treat him ''horribly bad.''

''Their private investigators interviewed friends of ours in their front yards,'' he said, ''but they didn't go through our garbage.''

Reynolds said the Louisville archdiocese will use any defense suggested by Stopher, who is known as aggressive trial lawyer, but ''to suggest a child was negligent and somehow caused their own abuse would be absurd and simply wrong.''

Asked if the archdiocese supports giving fair compensation to plaintiffs if they prove they were abused and damaged, Reynolds said, ''No money will erase the pain of child abuse.'' He also said that the archdiocese's offer of free counseling to victims ''is central to our response.''

The only indication so far of the value the archdiocese puts on such cases comes from Mark A. Mays, who said that before he filed suit last month, he offered to settle for $250,000 and Reynolds responded with a $25,000 offer. Mays alleges he was molested by Wood in 1962 when he was a student at St. Athanasius.

Reynolds said the archdiocese won't comment on individual cases.

For his part, Stopher said he would treat the litigation like any other case. ''I always try to be appropriate and civil with regard to all claimants and parties,'' he said.

But plaintiffs are likely to face painfully embarrassing questions, said Suzanne Cassidy, who represented Secter, as church lawyers explore whether problems they say were triggered by alleged abuse -- depression or alcoholism or anxiety, perhaps -- are real, and whether there are alternate explanations, such as sexual abuse by a relative.

In the Louisville cases, plaintiffs also must show the church knew about and concealed earlier abuse.

That's because they are relying on the ruling in Secter's case, in which the Court of Appeals said the statute of limitations -- which normally would require minors to sue within five years of their 18th birthday -- could be suspended, if there is evidence the defendant concealed wrongdoing.

That can be proved, the court said, by failure of a defendant to report child abuse as required by law.

Concealment can be proved most dramatically by documents showing that a defendant knew about an employee's wrongdoing.

In Secter's case, for example, the diocese's secret archive files showed the church returned Bierman to the classroom one time despite a bishop's misgivings that his pedophilia had not been cured and that he would continue to be a ''problem.''

The Louisville archdiocese says it has no records showing that officials knew of sexual abuse allegations against Miller before 1989, and no records explaining why he, or any other priest, was transferred so often.

But McMurry argues that an exhibit attached to a lawsuit filed Friday shows that in Miller's case, the archdiocese concealed misconduct.

The suit cites a deposition given in a case filed against Miller by a niece, Mary C. Miller, in 1999. In the sworn statement, Archbishop Thomas C. Kelly said he couldn't recall any other lawsuits against Miller; but Kelly had been personally served with a suit that named the priest in 1990.

Kelly has said through a spokesman that he didn't remember the earlier case was a lawsuit because it was settled out of court. But McMurry contends in the complaint filed Friday that Kelly deliberately ''lied'' to withhold knowledge about Miller's past.

Even without ''smoking gun'' documents, Cassidy said McMurry and the other plaintiffs' lawyers could show that priests were moved frequently, at odd times of the year, to suggest they were transferred for improprieties.

McMurry said he has ''lock-solid'' evidence that eight plaintiffs or their parents reported abuse by Miller to their school principal, parish priest or the archdiocese, and that 14 plaintiffs overall reported the priest who they say abused them.

But some of those reports may be shaky.

For example, McMurry cites Paul R. Barrett as a ''whistle-blower'' for reporting alleged abuse by Clark at St. Rita School. In an interview, however, Barrett said he asked two priests to set up meetings with Clark but never told them why.

Still, lawyers say they expect the church to tread more lightly than in the past, given the bishops' admission in Dallas that abuse ''and the ways in which we bishops addressed these crimes and sins, have caused enormous pain, anger, and confusion.''

Cassidy, Secter's lawyer, said, ''I can't imagine that with the amount of media exposure and public interest in this scandal that it would be in the church's long-range interest to anger victims again.''