2013 VT 52


Clarke v. Abate (2012-229)
 
2013 VT 52
 
[Filed 09-Aug-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 52

 

No. 2012-229

 

Jamie Clarke


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Civil Division


 


 


Joseph Abate, M.D.


January Term, 2013


 


 


 


 


Brian
  J. Grearson, J.


 

Michael I. Green and Jerome F. O’Neill of O’Neill Kellner
& Green, Burlington, for 
  Plaintiff-Appellant.
 
Ian P. Carleton and Eric S. Miller of Sheehey Furlong &
Behm P.C., Burlington, for
   Defendant-Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
REIBER, C.J.   In this civil action alleging sexual
assault and battery and intentional or reckless infliction of emotional
distress by a medical doctor during the course of his treatment of a high
school female athlete, plaintiff appeals the superior court’s grant of summary
judgment to defendant based on the six-year statute of limitations applicable
to childhood sexual abuse.  The court’s determination that the limitations
period had run as a matter of law before plaintiff filed her lawsuit relied
primarily on plaintiff’s statements to police and her deposition testimony
concerning her awareness of defendant’s wrongful conduct at the time of the
alleged assaults.  We conclude that the court erred by determining the
limitations accrual date as a matter of law rather than allowing the jury to
weigh inferences from the factual record regarding plaintiff’s state of mind
and knowledge during the relevant period of time.  Accordingly, we reverse
the judgment and remand the matter for further proceedings consistent with this
opinion.
¶ 2.            
The facts, viewed most favorably to plaintiff, are as follows.  See
Southwick v. City of Rutland, 2011 VT 53, ¶ 4, 190 Vt. 106, 35 A.3d 113
(“We review an award of summary judgment de novo, construing all doubts and
inferences in favor of the nonmoving party.”).  Plaintiff became a patient
of defendant, who was an orthopedic surgeon and a professor at the University
of Vermont medical school, in September 2000, a few months after her sixteenth
birthday.  Plaintiff had suffered a hip injury while training for her high
school soccer season, and her pediatrician referred her to defendant, whose
office notes indicate that she had groin pain near the pubic area.
¶ 3.            
After several visits, defendant told plaintiff that her parents did not
need to accompany her to appointments, which eventually took place on a weekly
basis, sometimes after hours without any record of them occurring. 
Defendant convinced plaintiff that he was the only doctor able and willing to
treat her complicated medical problems.  In late 2001, plaintiff began
babysitting for defendant at her mother’s suggestion, and, as a result,
plaintiff developed a close relationship with defendant and his family.
¶ 4.            
Defendant performed two surgeries on plaintiff, the first in March 2001
and the second in July 2002.  On at least three occasions during the
course of his treatment of plaintiff, including one time before her first
surgery and another time before her second surgery, defendant inserted his
ungloved fingers into plaintiff’s vagina.  No one other than defendant and
plaintiff was present on these occasions.  Defendant insists that these
vaginal penetrations were legitimate medical internal examinations conducted
for diagnostic purposes.  In fact, in his deposition testimony, he stated
that he believed his intra-vaginal examinations of plaintiff had led him to the
brink of discovering the source of her groin pain.  Plaintiff’s treatment
with defendant ended in August 2002.
¶ 5.            
In June 2007, defendant was arrested and criminally charged with
sexually assaulting another patient in a similar manner.  Defendant’s
arrest was highly publicized, and the media reports describing his alleged
conduct towards some patients—convincing parents not to attend office visits,
seeing patients during after-hours visits, not wearing gloves during vaginal
examinations, and holding himself out as the only doctor capable of addressing
the patients’ problems, for example—reminded plaintiff of her own experiences
while being treated by defendant.  Encouraged by her discovery that other
women had come forward, plaintiff responded to a police request for former
patients to provide any information related to the charges against defendant.
¶ 6.            
Plaintiff filed her civil suit against defendant on June 4, 2009. 
Defendant moved for summary judgment on the basis that the lawsuit was barred
by the applicable statute of limitations.  The trial court granted the
motion, relying primarily on statements made by plaintiff to police in 2007 and
her 2011 deposition testimony concerning her awareness of defendant’s conduct
at the time of the alleged assaults.  The court acknowledged that juries
generally determine statute-of-limitations accrual dates, but nevertheless
concluded as a matter of law that plaintiff’s cause of action began to accrue
when she reached the age of majority because her “own statements indicate that
she immediately recognized the tortious nature of [defendant’s] conduct.” 
More specifically, the court stated that plaintiff knew or should have known of
the assaultive nature of defendant’s conduct at the time it occurred because
of: (1) the manner of the examinations in question; (2) the nonprofessional and
inappropriate relationship that defendant fostered with her; and (3) “most
importantly,” her previous statements related to her awareness of defendant’s
wrongful conduct at the time of the suspect examinations.
¶ 7.            
On appeal, plaintiff argues that the trial court erred in granting
defendant summary judgment by: (1) construing facts favorably to defendant
rather than her; and (2) concluding that the statute of limitations could not
be tolled based on a theory of fraudulent concealment.
¶ 8.            
The parties and the trial court agree that the applicable statute of
limitations is found in 12 V.S.A. § 522(a), which states as follows:
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.
 
(Emphasis added.)  The
Legislature’s insertion of the underlined clause indicates its adoption of the
discovery rule in determining the limitations period for bringing actions
concerning childhood sexual abuse.  See Earle v. State, 170 Vt.
183, 192, 743 A.2d 1101, 1107 (1999) (“The Legislature’s use of ‘discover’ in §
522 builds upon the case law developed for physical injuries and the so-called
‘discovery rule.’ ”); see also Soutiere v. Betzdearborn, Inc., 189 F.
Supp. 2d 183, 190 (D. Vt. 2002) (noting that this Court in Earle
“emphasized that it has attempted to unify the definition of accrual in statute
of limitations cases involving personal injury”).
¶ 9.            
Our discovery-rule case law construing the statute has established that
“a cause does not accrue for physical injuries [“or condition” 12 V.S.A. §
522(a)] until those injuries reasonably should be discovered.”  Earle,
170 Vt. at 192, 743 A.2d at 1108.  Thus, “[t]he date of accrual under the
statute of limitations seeks to identify the point at which a plaintiff should
have discovered the basic elements of a cause of action: an injury caused by
the negligence or breach of duty of a particular defendant.”  Id.
at 193, 743 A.2d at 1108; see Lillicrap v. Martin, 156 Vt. 165, 175, 591
A.2d 41, 46 (1991) (noting “clear trend” among courts holding that limitations
period does not begin to run “until the plaintiff has discovered his ‘legal
injury,’ such that the statute begins to run only when the 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”).
¶ 10.        
We have repeatedly and consistently emphasized that the question of when
an injury reasonably should have been discovered “is one of fact to be
determined by the jury.”  Lillicrap, 156 Vt. at 172, 591 A.2d at
44; see Turner v. Roman Catholic Diocese of Burlington, Vt., 2009 VT
101, ¶ 48, 186 Vt. 396, 987 A.2d 960 (citing Agency of Natural Res. v. Towns,
168 Vt. 449, 454, 724 A.2d 1022, 1025 (1998) for proposition that “the
determination of when a claim accrues is generally a question reserved for the
trier of fact”); see also Riley v. Presnell, 565 N.E.2d 780, 787 (Mass.
1991) (citing “majority of jurisdictions” holding “that factual disputes
concerning when a plaintiff knew or should have known of his cause of action
are to be resolved by the jury”).  Hence, the court rather than the jury
may determine the accrual-date issue only “when there is no legally sufficient
evidentiary basis for a reasonable jury to find for the nonmoving party on that
issue.”  Turner, 2009 VT 101, ¶ 48; see Lillicrap, 156 Vt.
at 173, 591 A.2d at 45 (stating that “such questions are ‘to be determined in
all doubtful cases by the jury, because the public insists that its conduct be
judged in part by the [person] in the street rather than by lawyers’ ” (quoting
Prosser and Keeton on the Law of Torts § 37, at 237 (5th ed. 1984))); cf. Rodrigue
v. Valco Enters., Inc., 169 Vt. 539, 540-41, 726 A.2d 61, 63-64 (1999)
(mem.) (concluding as matter of law that limitations period had run with
respect to plaintiff’s dram shop action where there was evidence showing
plaintiff knew from police investigation that driver who had rear-ended him had
been drinking at defendant’s establishment on evening of accident, that driver
had been charged with careless and negligent operation due to driving while
intoxicated, and that more details would be provided in police report, which
turned out to strongly suggest that defendant had overserved driver
intoxicating liquor that evening).
¶ 11.        
As noted, the trial court provided three reasons to support its
conclusion that the limitations period began to run as a matter of law when
plaintiff reached the age of majority shortly after the last of the alleged
assaults occurred.  The three reasons were all directed at the central
question of whether plaintiff knew or should have known at the time of the
alleged assaults that her longtime doctor’s digital vaginal penetrations, done ostensibly
in connection with the doctor’s treatment for her ongoing hip/groin injuries,
were assaultive in nature rather than legitimate medical examinations.
¶ 12.        
The trial court cited as the principal basis for its decision statements
made by plaintiff in a 2007 police interview and a 2011 deposition concerning
her awareness of possible wrongdoing on defendant’s part with respect to the
vaginal examinations.  In her 2007 interview with police, which occurred
in the context of an ongoing criminal investigation against defendant, she told
police about the examinations that caused her concern.  The court found
statements in the following dialog supportive of its decision:
Q: [D]uring your
visits with [defendant] was there ever anything that concerned you?
 
A: Um, yeah,
definitely. . . . I mean just like his—his facial expressions and he would like
perspire a lot and while he was examining me and that’s all I can like remember
is like just his facial expressions just like he scared me. . . . Like he was
enjoying it . . . .
 
. . . .
 
  This is
so—it’s so hard because you’re like—when you’re in there, you’re—you’re like on
your, you know, you’re on your guard and you’re like—like this—this should not
be happening and—
 
. . . .
 
Q:  And what
was he—how was he touching you?  Well, what was he doing?  Like when
he was doing this, what is he saying to you?
 
A: 
Nothing.  It’s all like facial—facial expressions and—
 
. . . .
 
Q:  I mean—but
how is he touching you though?  I mean how—how—
 
A:  Well, I
mean I guess in a way someone would examine you but I don’t think it got like—I
just don’t know. . . . I don’t—it was—I felt like there was a difference. 
There was definitely like a line where it went from, you know, him really
examining me to like him finding pleasure out of it.
 
Q:  Well, talk
to me about that.  I don’t understand what you mean.
 
A:  Um, just
things like—it was just like the aura like just the feeling in the room the—his
facial expressions changed, um, like he was kind of like—like nervous in a way,
um, like he was perspiring and definitely—it was a definite feeling.  It
was different.  It was definitely different.
 
Q:  Different
than what you had experienced before?
 
A:  Right and
then like him examining . . . versus him kind of taking it to the next level
where he—it really wasn’t examining anymore.  It was more like him just
finding—it was more like gratifying to him than it was to me.
 
. . . .
 
Q:  At any
point did you ever talk to him about it?
 
A:  No. . . .
I guess I hoped that my facial expressions would have said everything but—
 
Q:  So what do
you mean by that?  Talk about that.  I mean so did—did he know that
you were uncomfortable with it?
 
A:  I’m—I’m
not sure.
 
. . . .
 
Q:  Who—who
did you tell or who did you mention it to?
 
A:  Um, I just
kind of like, you know, mentioned it to my mom and— . . . . Um, my sister and I
don’t know I—I kind of like told some of my friends like kind of—I was just
kind of seeing what other people would say if I told them because I really
wasn’t like sure.  I don’t know.  I was just like in a state of mind
that I just didn’t know. . . .
 
Q:  Well, what
did—what did they say to you?  Did anybody make any recommendations to
you?
 
A:  Um, like
my friends were like, “Oh, that’s, you know, that’s weird like that shouldn’t
be happening.”  And I was like, “Yeah, really.  It really shouldn’t.”
 
. . . .
 
Q:  Was there anything
else that happened with you with him that you were concerned about during the
examinations, um—
 
A:  After my
surgery?
 
Q:  After your
surgery?
 
A:  Um, yes,
he, um, I don’t—I don’t remember how like it started or—or anything.  I
just—I remember him, um, just like putting his fingers in my vagina. . . . And
not like in an examining way either.
 
. . . .
 
Q:  Okay,
was—okay, so, um, what did he—did he—he didn’t say he was going to do anything
then?  Or you don’t remember I am sorry?
 
A:  I don’t
recall.
 
Q:  I am
sorry.  So what did, uh, how long did that go on for?
 
A:  Not very
long because I think he was—he was startled by me in that I jumped back and,
um, but I mean I remember it being a couple of minutes.
 
Q:  Okay and
do you remember what he was doing?  Do you remember specifically what
physically—you just mentioned physically [what] he was doing?
 
A:  Um, it
was—I mean just moving his fingers in and out.  It wasn’t—it was—it
wasn’t—he definitely wasn’t examining.  He wasn’t doing pressure or
anything. . . . Like while he was doing this he was like watching like my
facial expression.
 
Q:  Okay and
did he say anything?  Make any comment to you?
 
A:  No.
 
. . . .
 
Q:  Now if you
knew it was [not] okay, why didn’t you tell the—tell the authorities?
 
A:  Because I
believed him.  I believed that he was the only one that would—would spend
this time and, um, you know, he stuck around for this long like he—he was
invested in, you know, my injury and, um, you know, he was willing to—to
research it and, you know, talk to different doctors and, um, yeah, I guess
that’s—that was—I guess I was just more concerned about getting better than— .
. . . [a]nything else because I was in so much pain. . . . And I was so young
and—
 
Q:  Yeah,
okay—
 
A:  Um, and
that’s a horrible excuse. 
 
¶ 13.        
Without question, a reasonable juror might infer from plaintiff’s
statements to police that she had sufficient knowledge at the time of the
incidents in question to understand that defendant’s conduct was wrongful and
not medically necessary.  But, on the other hand, these statements do not
demonstrate such knowledge on her part as a matter of law.  Examining the
statements most favorably to plaintiff, a reasonable juror could infer that
plaintiff was “on [her] guard” as a teenaged girl having her male doctor
examine her in a sensitive and private area of her body, and that although she
had a “definite feeling” that the doctor was satisfying his sexual desires
during certain examinations, she could not confirm those feelings because she
“believed” defendant, and her family did not react to her concerns about her
treatment with him.
¶ 14.        
At one point during the police interview, plaintiff stated: “And I felt
like I could trust him.  I mean he’s my doctor. . . . [H]e has done
surgery on me and I just kind of . . . [u]m, I trusted him I guess.”  She
also stated that she went to her mother and sister about her concerns to see
what they would say because she was “in a state of mind that [she] just didn’t
know.”  Thus, although plaintiff, in the context of making a
statement to criminal investigators, indicated she “definitely” felt something
was wrong during the examinations, she also made statements indicating that she
was not sure if her concerns were valid and did not receive affirmation of the
validity of those concerns from family members.  Indeed, in a July 2008
deposition taken at the Chittenden County State’s Attorney’s Office, she
indicated that she had hinted to her mom and sister about what was happening
but they did not react at all, so she “assumed it was fine.”  She further
stated that, “I feel like he definitely used his power over me to make me feel
like this was okay and he was my doctor and he knew what—what was supposed to
be going on.”
¶ 15.        
Given plaintiff’s at-times equivocating and conflicting statements to
the authorities concerning her knowledge and awareness of any wrongful conduct
on defendant’s part, it was the jury’s prerogative to make any inferences from
those statements and determine at what point plaintiff knew or should have
known that defendant’s conduct was assaultive rather than medical in
nature.  See Howley v. Town of Stratford, 217 F.3d 141, 151 (2d
Cir. 2000) (“It is not the province of the court itself to decide what
inferences should be drawn; if there is any evidence in the record from any
source from which a reasonable inference could be drawn in favor of the
nonmoving party, summary judgment is improper.” (citations omitted)).
¶ 16.        
The same can be said with respect to the statements made by plaintiff
during her 2011 deposition testimony and also relied upon by the trial court in
granting defendant’s motion for summary judgment.  The trial court and defendant
rely on the following statements from that deposition:
Q: So before you
spoke with your friends at college, had you spoken to any member of your family
about concerns that you had with respect to [defendant’s] treatment of you?
 
A:  Yeah, I
think it was like—very, like, subtle things I would tell them.  I would
tell my mom or my sister . . . just. . . . [l]ike, [defendant] was, like,
rubbing my legs after an exam. . . . They didn’t really respond in any alerting
way, so I guess that’s normal.
 
Q:  So were
you bringing it up to them for—because you thought it was wrong or because you
were looking to see if they thought it was wrong?
 
A:  I guess I
always knew it was wrong in my heart.  I really need—
 
Q:  You mean
since—since it happened?
 
A:  Yeah. 
I just kind of wanted to feel like it was justified by someone, someone older
than me, someone that I trusted, and that’s why I, you know, did mention it to
them on various occasions of strange things that, I don’t know, a normal person
wouldn’t think was okay.
 
Q:  So if you
knew it was wrong in your heart, why were you looking for an older person to
justify it?
 
A:  I was
young.  I was very young.  I was very naive.  I was very
sheltered as a child.  I guess I had trouble being—believing in myself. 
Had some, like, self-esteem issues.
 
Q:  So even
though you had some trouble believing in yourself, you—like you said before, in
your heart you knew it was wrong?
 
A:  Yes.
 
Q: From the time
that it happened?
 
A:  Yes.
 
. . . .
 
Q: 
Let’s—let’s go back to your discussing these matters with your friends at—at
UVM.  It sounds like periodically the topic of [defendant] would come up
with—with friends at UVM and your friends would make comments like, That’s
really weird and not appropriate—or something like that.
 
A:  Yes.
 
Q:  
And—that validated your—your own personal feelings about the inappropriateness
of the—of the—of the medical attention.
 
A:  Yes.
 
Q:  Did any of
those types of conversations take place in your junior or senior years; that is,
further away from the time that you saw [defendant] and I take it after you
stopped baby-sitting for him as well?
 
A:  Not that I
recall. . . .
 
. . . .
 
Q: You stopped
seeing [defendant] in August of 2002.  Do you recall why you stopped
seeing [defendant]?
 
A:  Yes
 
Q:  Why is
that?
 
A:  Well, I
had my surgery, and I was recovering, and I wasn’t experiencing any pain. 
I didn’t really want to be around him any longer.  I really didn’t feel
want to feel like I was being controlled or have to deal with that situation
anymore.  It was just kind of done.  I was—
 
Q:  So—so on
some level your—physically your treatment had run its course; you had had the
surgery— . . . . Is that correct?
 
A:  Yes.
 
. . . .
 
Q: . . . . [W]hat
led to your decision to—to come forward and speak with the authorities?
 
A:  I knew in
my heart that—I mean, there was a point where I knew that I couldn’t—what was
the point of coming forward?  I didn’t have any real evidence.  I
didn’t keep track of the dates I was seen when he examined me after
hours.  I didn’t keep track of the days that I baby-sat for him.  I
didn’t keep track of the days that he came to my work.  I didn’t—I didn’t
have anything.  I had my point of view vers[us] his, and that’s all I had,
and I felt for a long time like I didn’t have enough to say, Look, this guy
really did something to me, and I just thought it would go away.
 
  I buried it
a long time ago.  After my mom and my sister didn’t find any substance to what
I was saying, I buried it.  I was like, I’m—it’s gone.  It didn’t
happen.  But until that—it came on the news and in the papers, I mean,
what couldn’t hurt to come forward and tell my story?  Because other girls
had experienced the same thing, but they had evidence and they had things that
were substantial that I didn’t have.
 
¶ 17.        
Defendant relies primarily on the plaintiff’s statement that from the
beginning she knew in her “heart” that what defendant had done to her was
wrong.  Taken in isolation, this statement might support the trial court’s
summary judgment ruling on the accrual date.  But, once again, plaintiff’s
deposition testimony, taken as a whole, is equivocating and ambiguous as to
whether she was sufficiently aware, or should have been aware, that defendant’s
acts were assaultive rather than therapeutic in nature.
¶ 18.        
Even the most damning statement itself expresses plaintiff’s uncertainty
as to what she knew about defendant’s conduct: “I guess I always knew it
was wrong in my heart.”  (Emphasis added.)  She testified that she
was “very young” and “very naive” and needed affirmation of her suspicions but
did not get it from her family.  She expressed an inability to believe in
herself.  Although she confirmed, when pressed by her interviewer, that
she knew in her “heart” that defendant’s conduct was wrong even though she had
trouble believing in herself, the deposition testimony as a whole, just as in
her interviews with authorities years earlier, reveals real uncertainties as to
her knowledge of the wrongfulness of defendant’s conduct.
¶ 19.        
Examining this testimony as a whole, a reasonable jury could conclude
that even though plaintiff suspected that defendant had examined her to satisfy
his sexual desires rather than treat her hip/groin injury, she did not and
could not have reasonably discovered the alleged legal injury until she learned
through media reports that defendant had been charged with assaulting other
women in a similar manner.  A reasonable jury could come to such a
conclusion, considering the position of trust and authority established by
defendant as plaintiff’s longstanding doctor, the fact that plaintiff was being
treated for an injury near an intimate part of her body, and the lack of a
response from plaintiff’s family affirming her vacillating concerns about
defendant’s methods of examination and treatment.  Cf. Doe v. Creighton,
786 N.E.2d 1211, 1214 (Mass. 2003) (affirming summary judgment ruling on
statute of limitations because plaintiff failed to submit additional evidence
beyond fact that sexual abuse took place—such as “that the defendant made any
attempt to cloak his actions behind a facade of normalcy or otherwise disguise
the nature of the abuse”); Riley, 565 N.E.2d at 786 (concerning alleged
abuse that defendant portrayed as therapeutic technique).
¶ 20.        
The trial court gave two other reasons for granting defendant summary
judgment on the statute-of-limitations issue.  First, the court stated
that the manner of the vaginal examinations was “troubling.”  The court
noted plaintiff’s own deposition testimony indicating that the examinations
were performed without warning, without latex gloves, and after hours in
defendant’s office with no one else present.  Second, the court cited the
inappropriate, nonprofessional relationship that defendant fostered with
plaintiff, noting that defendant overpaid plaintiff for babysitting, gave her
access to his personal contact information, allowed her to drive his car, and
made inappropriate comments to her about his family.  The apparent
reasoning here is that because defendant had established a personal
relationship with plaintiff beyond the common professional doctor-patient
relationship, and because orthopedic-related vaginal examinations were unusual,
plaintiff should have known that her doctor was engaging in assaultive conduct
rather than examining her for hip/groin injuries.
¶ 21.        
Essentially, the trial court made inferences favorable to defendant from
the facts, even though plaintiff was the nonmoving party.  See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (stating that with regard
to motion for summary judgment “all justifiable inferences are to be drawn in
[the nonmoving party’s] favor”).  While for the most part the material
facts in this case—facts as to what occurred during the examinations and what
the parties stated in their deposition testimony—are undisputed, the inferences
from those facts concerning plaintiff’s knowledge and awareness of any
wrongdoing on defendant’s part are far less clear.  “In determining
whether an individual had knowledge, the underlying facts are merely the
starting point for an assessment of the inferences to be drawn from the
objective facts and their significance.”  Soutiere, 189 F. Supp. 2d
at 191.  The ultimate assessment of the inferences is for the jury rather
than the court, unless reasonable minds could not differ on the question of
knowledge.  Id.
¶ 22.        
Here, reasonable minds could differ on whether the manner of the vaginal
examinations and the closer relationship that had developed between defendant
and plaintiff due in part to plaintiff babysitting for defendant’s family
should have made plaintiff aware of the assaultive nature of defendant’s
examinations.  Jurors could certainly differ on the extent to which the
teenaged plaintiff was or should have been aware of the irregularity of
purported medical examinations by her orthopedic doctor, who was treating
injuries through examinations involving the most intimate area of her
body.  Jurors could even infer that the close relationship between
defendant and plaintiff established a level of trust that precluded plaintiff
from affirming concerns she had about the examinations.  Indeed, in his
deposition testimony, plaintiff’s expert testified that the close relationship
between defendant, his family, and plaintiff made this “almost more of like an
incestuous type situation,” which conceivably could influence a juror’s belief
as to whether plaintiff could be reasonably expected to believe that defendant
had abused her during the examinations.  Cf. Evans v. Eckelman, 216
Cal. App. 3d 1609, 1614 (Dist. Ct. App. 1990) (noting “widely recognized fact
that the shock and confusion engendered by parental molestation” could cause
delay in victim recognizing full impact of abusive acts).
¶ 23.        
Moreover, we reject defendant’s suggestion that the trial court’s
decision can be supported by the fact that: (1) plaintiff stopped seeing
defendant in August 2002, not long after the last of the suspect examinations;
and (2) friends in whom she confided during her freshman and sophomore years in
college thought that defendant’s conduct was “really weird” and “not
appropriate.”  Plaintiff made it clear in her deposition testimony that
her primary reasons for not continuing treatment with defendant after August
2002 was that her surgery was over and she was not experiencing any pain. 
Indeed, she agreed that her “treatment had run its course.”  She also
stated that she did not want to feel like she was being controlled by
defendant, but that statement does not demonstrate her knowledge that his
conduct was assaultive rather than therapeutic.  It is merely another fact
for the jury to weigh.  Nor do the quoted comments of her friends support
a ruling, as a matter of law, that plaintiff knew or should have known that
defendant had assaulted her while purportedly treating her.
¶ 24.        
“Two common themes run through the cases applying the discovery rule of
accrual,” Id. at 1614, which “is essentially a rule of equity,” R.L.
v. Voytac, 971 A.2d 1074, 1082 (N.J. 2009) (quotation omitted).  The
first is that the rule often applies “to types of actions in which it will
generally be difficult for plaintiffs to immediately detect or comprehend” the
wrongful conduct or the injury caused by that conduct; the second is that
“courts have relied upon the nature of the relationship between defendant and
plaintiff to explain application of the delayed accrual rule,” and then
generally applied the rule “to confidential or fiduciary relationships.”  Evans,
216 Cal. App. 3d at 1615.  Those themes reach their apex in a case such as
this in which a doctor allegedly sexually assaults a minor patient while
purportedly performing a medical examination for a longstanding injury in a
private area of the patient’s body. This is particularly true here, where
defendant’s doctor-patient relationship with plaintiff evolved into a close
personal relationship involving deeper levels of trust.
¶ 25.        
Given the imbalances of the roles between plaintiff and defendant, as
well as the ambiguities and inconsistencies in the statements relied upon by
the trial court with respect to the extent of plaintiff’s knowledge and
understanding of whether the purported treatment was in fact childhood sexual
abuse, the trial court erred in dismissing  plaintiff’s suit as a matter
of law.  The jury should have been given the opportunity to weigh the
inferences and nuances of plaintiff’s statements and other evidence in
determining the proper accrual date for the applicable statute of
limitations.  We are not persuaded otherwise by defendant’s reliance on
out-of-state cases with distinguishable facts and distinct law.  See,
e.g., Baird v. Am. Med. Optics, 713 A.2d 1019, 1025-26 (N.J. 1998)
(concluding that statute of limitations began to run on plaintiff’s medical
malpractice and informed consent claims shortly after her cataract surgery when
she was aware of her worse eyesight and was told about problems with surgery); Rose
v. Women’s Health Clinic, 630 N.E.2d 760, 762 (Ohio Ct. App. 1993)
(concluding that when plaintiff learned she had cancer, “cognizable event”
occurred, thereby triggering running of statute of limitations with respect to
medical malpractice action alleging negligence in not informing her of pap
smear test results).
¶ 26.        
Nor are we persuaded by defendant’s arguments that the trial court’s
decision should be affirmed because: (1) plaintiff never disputed the facts
defendant asserted in his summary judgment motion; and (2) plaintiff’s attorney
conceded at the hearing on his summary judgment motion that plaintiff had been
on inquiry notice of her claims so as to bar her cause of action under the
applicable statute of limitations.  Regarding the first argument, defendant’s
reply to plaintiff’s opposition to his motion for summary judgment included his
contention that plaintiff had failed to contradict any of the facts contained
in his memorandum of undisputed facts, including that she was immediately aware
of the wrongfulness of defendant’s examinations and the resulting injury. 
The trial court did not address this argument in its decision, and defendant
renews it before this Court on appeal.
¶ 27.        
In making the argument, defendant relies upon a sentence in former V.R.C.P.
56(c)(2)—“All material facts set forth in the statement [of undisputed material
facts] required to be served by the moving party will be deemed to be admitted
unless controverted by the statement required to be served by the opposing
party.”[*] 
Defendant asserts that plaintiff “never disputed any of the foregoing facts,
all of which were set forth in” his statement of undisputed facts.
 Defendant does not indicate precisely what those facts were, but his
statement of undisputed material facts in support of his motion for summary
judgment quotes the very same statements by plaintiff that he claims, and the
trial court ruled, entitled him to summary judgment based on plaintiff’s
concurrent acknowledgement of the wrongfulness of his conduct.
¶ 28.        
Defendant cannot prevail on grounds that plaintiff failed to challenge
his statement of undisputed facts insofar as we have ruled herein that those
statements were insufficient to support the trial court’s summary judgment
ruling in favor of defendant based on plaintiff’s alleged acknowledgement of
defendant’s wrongful conduct.  See Milton Educ. &  Support
Ass’n v. Milton Bd. of Sch. Trs., 171 Vt. 64, 74-75, 759 A.2d 479, 486-87
(2000) (holding that labor board did not err in denying school board’s motion
for summary judgment, even though employee association filed no opposition to
motion, because proffered facts were insufficient to warrant grant of summary
judgment as matter of law).  Plaintiff never conceded that she knew or
should have known of the wrongfulness of defendant’s conduct, which was the
ultimate factual question for the jury to resolve in determining whether the
statute of limitations had run.  See 10B C. Wright & A. Miller,
Federal Practice and Procedure § 2738, at 346-356 (3d ed. 1998) (“[U]ltimate or
conclusory facts and conclusions of law cannot be utilized on a summary
judgment motion.”).  The parties debated at the hearing on defendant’s
motion for summary judgment whether those statements demonstrated plaintiff’s
awareness of defendant’s wrongful conduct, with plaintiff arguing that the
statements were ambiguous and for the jury to construe.  As discussed
above, we agree it was for the jury to decipher the meaning of the statements.
¶ 29.        
Defendant’s second argument is that plaintiff’s counsel conceded at the
hearing on his motion for summary judgment that plaintiff was on inquiry notice
of the assault so as to preclude her lawsuit based on the applicable statute of
limitations.  At that hearing, the court asked plaintiff’s counsel if he
thought that plaintiff, by bringing her suspicions to the attention of her
family, indicated her awareness that defendant’s acts constituted a sexual
assault and were not medical treatment.  Plaintiff’s counsel stated that
it indicated only that she was questioning the appropriateness of defendant’s
conduct.  By acknowledging, in response to the court’s questioning, that
plaintiff had concerns early on about the appropriateness of defendant’s
examinations, plaintiff’s counsel did not concede that plaintiff had knowledge
sufficient to trigger the running of the applicable statute of limitations, as
explained above.
¶ 30.        
Finally, we address the issue of fraudulent concealment.  
Section 555 of Title 12 provides as follows: “When a person entitled to bring a
personal action is prevented from so doing by the fraudulent concealment of the
cause of such action by the person against whom it lies, the period prior to
the discovery of such cause of action shall be excluded in determining the time
limited for the commencement thereof.”  Plaintiff mentioned fraudulent
concealment in her original complaint but then removed any mention of the term
from her second amended complaint.  In response to defendant’s motion for
summary judgment, she argued in part that defendant had fraudulently concealed
plaintiff’s potential cause of action by telling her that he was uniquely
qualified to treat her and by suggesting to her that the allegedly assaultive
examinations were part of his treatment for her injuries.  The trial court
rejected this argument in its decision, stating that a well-established defense
to a claim of fraudulent concealment is that the plaintiff knew or should have
known of the cause of action, which was the case here.  See Snyder v.
Boy Scouts of Am., Inc., 205 Cal. App. 3d 1318, 1323 (Dist. Ct. App. 1988)
(“Where fraud is established the statute is tolled only for so long as the
plaintiff remains justifiably ignorant of the facts upon which the cause of action
depends; discovery or inquiry notice of the facts terminates the tolling.”).
¶ 31.        
On appeal, plaintiff briefly repeats her fraudulent concealment
claim.  Defendant responds that: (1) as the trial court concluded, the
claim is unavailable because even if there was fraud on his part, plaintiff did
not rely upon the fraud but rather was aware, or should have been aware, of the
cause of action; and (2) the claim is unavailable because plaintiff failed to
plead it and first mentioned it only in response to plaintiff’s motion for
summary judgment.
¶ 32.        
As suggested by the trial court’s ruling on this issue, any claim of
fraudulent concealment is subsumed within the central preliminary question
disputed by the parties, ruled on by the trial court, and to be considered by
the jury on remand: Given all of the circumstances of this case—including
defendant’s conduct, his relationship with plaintiff, and the nature of the
injury—at what point did plaintiff know, or should she have known, that defendant
assaulted her while purportedly examining her?  The jury’s answer to that
question will determine whether plaintiff may move forward with her lawsuit,
irrespective of the existence of any fraud claim.  Plaintiff may argue to
the jury that defendant’s actions, including those noted above, effectively
precluded her from understanding that she had a cause of action against
defendant, at least until criminal charges were filed against him in connection
with alleged similar assaults against other women.  We agree with
defendant, however, that, to the extent plaintiff is asserting a claim of
intentional fraud, she is foreclosed from pursing such a claim because she
failed to plead it.  See Fercenia v. Guiduli, 2003 VT 50,
¶ 15, 175 Vt. 541, 830 A.2d 55 (declining to read medical malpractice
negligence claim in complaint “as one of intentional fraud”).
Reversed and remanded for further proceedings
consistent with this opinion.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





[*] 
This sentence no longer exists in the current version of Rule 56.  The
sentence was deleted, effective January 23, 2012—approximately six weeks after
plaintiff responded to defendant’s motion for summary judgment but several
months before the court ruled on the motion—as part of an update of the rule to
“clarify[] the substance and process for summary judgment and establish[]
uniformity with the current federal rule.”  Reporter’s Notes, 2012
Amendment, V.R.C.P. 56.  The new rule states in relevant part that if a
party fails to address another party’s assertion of fact as required by 56(c),
the court “may” give the party an opportunity to address the fact, consider the
fact undisputed “for purposes of the motion,” grant summary judgment if the
motion and supporting materials warrant it, or “issue any other appropriate
order.”  V.R.C.P. 56(e).  The use of the word “may” under the new
rule “means the court may choose not to consider the fact as undisputed, for
example if the court knows of record materials that show grounds for genuine
dispute.”  Reporter’s Notes, 2012 Amendment, V.R.C.P. 56.  Moreover, “[t]he
phrase, ‘for purposes of the motion’ clarifies that a party who failed to make
a proper Rule 56 response or reply remains free to contest the fact in further
proceedings.”  Id.  Given our resolution of this issue, we
need not consider whether the current version of Rule 56 clarified that the
trial court has always had the discretion to consider a fact as disputed based
upon an examination of the record.



