
USCA1 Opinion

	




          A      p      r      i      l   5      ,   1      9      9      5                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ______________________          No. 95-1962                                 CHARLOTTE FLANAGAN,                                Plaintiff, Appellant,                                          v.                           GARY I. GRANT AND MERCIA GRANT,                                Defendants, Appellees.                                   _______________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion  of this  Court issued  on  March 27,  1996, is          amended to reflect the following change on the cover sheet:               James  B.  Krasnoo, with  whom Paul  J.  Klehm and  Keith B.               __________________             _______________      ________          Hughes were on brief for appellees.          ______                                          1                           UNITED STATES COURT OF APPEALS                                 FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1962                                 CHARLOTTE FLANAGAN,                                Plaintiff, Appellant,                                          v.                           GARY I. GRANT AND MERCIA GRANT,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Reginald C. Lindsay, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________               Carmen  L.  Durso, with  whom Mary  F.  McCabe and  Lynne A.               _________________             ________________      ________          Tatirosian were on brief for appellant.          __________               James  B.  Krasnoo, with  whom Paul  J.  Klehm and  Keith B.               __________________             _______________      ________          Hughes was on brief for appellees.           ______                                 ____________________                                    March 27, 1996                                 ____________________                                          2                      Per Curiam.  Plaintiff-appellant Charlotte Flanagan                      __________            filed this diversity action against her  parents, defendants-            appellees  Gary  and  Mercia  Grant,  in  the  United  States            District Court for the  District of Massachusetts on November            12, 1993.   Her  complaint alleged  that her  father sexually            abused her for  four years,  beginning in 1980  when she  was            fourteen, and that her mother actively helped to cover up the            abuse  and  to  coerce  her  to  drop charges  against  him.1            Defendants  moved  for  summary  judgment, and,  in  a  well-            reasoned  report and  recommendation,  the  magistrate  judge            recommended  allowing  the  motion  on the  ground  that  the            complaint  was  time-barred   by  the  applicable  three-year            statute  of limitations.  Flanagan v. Grant, 897 F. Supp. 637                                      ________    _____            (D.   Mass.  1995).     The   district  court   accepted  the            recommendation.  Plaintiff appeals.                       Having  considered the record, the parties' briefs,            and  oral  argument,  we  essentially agree  with  the  lower            court's reasoning and  result and see no need  to go over the            same ground  in the same detail.   See In re  San Juan Dupont                                               ___ ______________________            Plaza Hotel Fire  Litig., 989  F.2d 36, 38  (1st Cir.  1993).            ________________________            The  magistrate  judge  correctly applied  the  Massachusetts            discovery rule to the facts of this case, taking into account            the controlling  Massachusetts  cases including  the  leading                                            ____________________            1.   Plaintiff  claimed assault  and battery,  intentional or            negligent   infliction  of  emotional   distress,  breach  of            fiduciary duty, and violation of her civil rights.                                         -3-                                          3            authority, Riley v. Presnell,  409 Mass. 239, 565  N.E.2d 780                       _____    ________            (1991).   Since issuance  of the lower  court's opinion,  the            Appeals  Court  of  Massachusetts  has  handed  down  another            relevant decision, Phinney v. Morgan, 39 Mass. App. Ct.  202,                               _______    ______            654 N.E.2d 77, rev.  denied, 421 Mass. 1104, 656  N.E.2d 1258                           ____________            (1995).   Phinney  gives  further support  to the  magistrate                      _______            judge's view  that the limitations period  and discovery rule            considered in  Riley, a  malpractice case, will  apply here.2                           _____            It also lends support to  the present outcome, in that, in  a            fairly analogous situation involving parental incest, summary            judgment was awarded absent  plaintiffs' showing of a triable            issue  as to  whether they  or a  reasonable person  in their            position would have lacked sufficient notice of the cause  of            their harm within  the applicable time period.   See Phinney,                                                             ___ _______            654 N.E.2d at 81-82.                      Focusing, as the lower  court properly did, on when            plaintiff knew or had  sufficient notice of the cause  of her                                            ____________________            2.    Plaintiff's attempt  to  apply  retroactively a  recent            Massachusetts enactment codifying the discovery rule in cases            of sexual abuse of a minor  does not carry her far.  Even  if            Massachusetts  General Laws ch.260,   4C were to apply, as it            became effective December 17, 1993, after plaintiff filed her            complaint but  before the  answer was  filed, cf.  Riley, 565                                                          ___  _____            N.E.2d  at 788 & n.3 (looking at whether stage of proceedings            governed  by legislative  change on  tolling had  passed), it            appears in the present circumstances to set out substantially            the same standard and criteria announced in Riley.                                                         _____                                         -4-                                          4            harm,3  we  agree that  the  record  demonstrates no  triable            issue over whether such knowledge or notice may have occurred            only after November 12, 1990  (the relevant date, three years            before  the  complaint was  filed).   The  record  contains a            plethora of  undisputed  evidence showing  plaintiff's  early            awareness of distress resulting from her father's abuse.  She            filed, withdrew, and later refiled (in October 1990) criminal            charges against her father.  She manifested  from 1984 onward            her  strong  desire  to   escape  the  repeated  abuse  (and,            subsequently, to help her  sister escape the risk  of abuse).            Her own  suicidal  inclinations in  1984  are linked  in  her            affidavit  with going  to the  police in  that year  with her            mother and  sisters to  protest  her father's  conduct.   Her            psychologist,  Dr.  Wayment,  opined  that   plaintiff  could                                            ____________________            3.   Appellant concedes, as  the magistrate judge found, that            there is no  dispute over  the first prong  of the  discovery            rule,  i.e., that plaintiff knew she had been harmed prior to                   ____            November  1990.    The  sole  issue  is  whether,  given  Dr.            Wayment's   and  plaintiff's   affidavits  relating   to  her            dissociation --  rendering her unable causally  to relate her            psychological injuries to  her father's conduct  -- plaintiff            or a reasonable person who had been subject to her experience            would have lacked sufficient  knowledge until after  November            12, 1990 that her father caused her injuries.  We believe, in            this regard,  that the  magistrate judge misspoke  in resting            her  prong  one  finding  solely  on  plaintiff's remembrance            before then of "the incestuous acts."  Flanagan, 897 F. Supp.                                                   ________            at 642.  The relevant harm referred to in Riley is not simply                                                      _____            the  abusive  conduct  itself  but the  psychological  injury            therefrom.   See Riley, 565  N.E.2d at 786.   Here, appellant                         ___ _____            considered suicide  and  manifested other  forms of  distress            prior to November 1990, making it clear that she was aware of            the psychological harm prior  to then so as to  satisfy prong            one of the discovery rule.                                         -5-                                          5            intellectually  understand  the   relationship  between   her            father's  incest and her feelings, although she did not fully            associate  emotionally   the  incestuous  conduct   with  her            feelings until the fall of 1993.                      Riley  held   that   even  though   emotional   and                      _____            psychological barriers  may prevent  a plaintiff  from taking            action against an abusive  defendant, a plaintiff's knowledge            of a causal association between  the abuse and the  resulting            psychological  harm suffices  to trigger  the running  of the            statute of limitations.   Riley, 565 N.E.2d at 787;  see also                                      _____                      ________            Phinney,  654 N.E.2d at 81-82.  We think the magistrate judge            _______            did  not  err  in finding  no  triable  issue  here, and  are            constrained  to agree  with her conclusion  in this  sad case            that  "[i]n the case at bar, although plaintiff did not fully            experience the extent of the damage inflicted by  her father,            she  nevertheless realized  that  her father  was the  likely            cause of her injuries prior to November 12, 1990."  Flanagan,                                                                ________            897 F. Supp. at 643.                      There is  no merit  in plaintiff's second  argument            that  the district  court inadequately  performed its  review            duties because it simply noted its approval on the magistrate            judge's  report  itself.    Plaintiff  cites  no  caselaw  or            particular fact supporting her claim and we discern none.                          Affirmed.                         ________                                         -6-                                          6
