Lawyers Say Ruling Allows Abuse Suits

By Sophia Hollander (Wall Street Journal)
August 30, 2012

New York state has one of the country's strictest statute of limitations for sexual abuse claims, despite lobbying by advocates who say the law can stymie victims who come forward too late.

Now some attorneys believe that legal framework may be shifting after a federal judge this week allowed a lawsuit detailing decades-old sexual abuse to go forward against one of Brooklyn's elite prep schools.

"Frankly I'm going over my files right now to see if there's anything that could be done," said Michael Dowd, an attorney specializing in abuse cases. He plans to review some 300 suits.

"It's the best news out of a court for the victims of sexual abuse this year, and probably in a number of years," he said.

U.S. District Court Judge Frederic Block ruled Tuesday that the statute of limitations didn't automatically disqualify a case against Poly Prep Country Day School, even though some allegations date back to 1966.

Twelve alumni of the Brooklyn private school and its summer program claim they were raped and abused by Philip Foglietta, a revered football coach whose 25-year career at the school started that same year. Mr. Foglietta died in 1998.

The plaintiffs argued that the statute of limitations shouldn't apply because Poly Prep knew about the abuse and covered it up-continuing to publicly celebrate Mr. Foglietta as an upstanding member of the school. As a result, the plaintiffs say, they were prevented from promptly filing their lawsuit.

In a 40-page ruling, Judge Block dismissed some claims-including racketeering charges against Poly Prep-but allowed substantial portions of the case to move forward.

"Any person who was sexually abused by an institution that covered it up should look very carefully at the specific facts of his or her case before making a determination on whether or not to try and seek legal relief," said the plaintiffs' attorney in the suit, Kevin Mulhearn. "They shouldn't automatically assume that the case is too old and they can't do anything about it."

Poly Prep officials downplayed the decision. The school "believes the claims will ultimately be dismissed following a hearing," said spokesman Malcolm Farley. "We are still hopeful that the case may be settled."

Some legal experts said that the ruling was a significant victory for the plaintiffs-as well as other litigants whose sexual-abuse cases have been blocked by the statute of limitations.

"Generally in the state of New York the courts have been relatively hostile to these kinds of claims," said Marci Hamilton, a Cardozo Law School professor specializing in sex-abuse cases. "So this is a very noteworthy case because a judge has approved a theory that would permit individuals who are older than 23 years of age to still be able to sue."

The case has attracted widespread attention in the wake of local sexual-abuse cases at Horace Mann, an elite Bronx prep school, and within New York City's Hasidic community, as well as high-profile cases involving Penn State University and the Catholic Church.

Messrs. Mulhearn and Dowd represent five of the plaintiffs in the Horace Mann case, which also involves decades-old abuse charges.

Mr. Mulhearn combined several cutting-edge strategies being used in other sexual-abuse cases, many of which had previously failed in New York courts.

One claim relied on the federal Racketeer Influenced and Corrupt Organizations Act, commonly known as RICO. Although Mr. Mulhearn and his co-counsel brought RICO claims on behalf of all 12 plaintiffs, only two claims survived in the judge's ruling.

Still, that result may be unprecedented in the context of sexual abuse, he and other experts said. In the surviving RICO claims, both plaintiffs donated money to the school after administrators allegedly covered up their knowledge of the abuse.

Mr. Mulhearn also invoked Title IX, more widely known for providing parity for women's sports programs.

The law can apply in abuse cases if a predator exclusively molests children of one gender.

Mr. Farley, spokesman for the school, noted that "nearly all of the RICO claims" had been dismissed, with the rest now subject to an evidentiary hearing.

New York judges have largely resisted both theories, experts said, preferring to defer to lawmakers.

But advocates pointed to a potential breakthrough.

Assemblyman Vito Lopez, a powerful lawmaker widely seen as blocking legislation in Albany to extend the statute of limitations, was censured last week after an ethics investigation substantiated sexual-harassment complaints made against him.

If the scandal results in Mr. Lopez's departure from the Assembly, "that removes someone who has been a major factor in opposing revision of the New York state statute of limitations for sexual abuse," said attorney Ed Wilson, an advocate for people who claim to have been abused by the Catholic Church.

Mr. Lopez could not be reached for comment.