Judge Mary Jacobson. Photo: Carmen Natale/ALM

Lawyers are fighting over viability of a $5 million judgment awarded in Mercer County Superior Court to a woman seeking to be compensated for years of sexual assault she suffered as a child.

The judgment was entered, then vacated in the case, a rare example in which an abuse victim seeks to collect from a family member who is accused of negligently failing to prevent repeated sexual abuse by her spouse.

Mercer County Assignment Judge Mary Jacobson confirmed a $5 million arbitration award July 26 in a suit by the sexual assault victim, identified in court documents as S.D., against her grandmother, Santa Damms. The court-appointed arbitrator awarded $5 million to S.D. after Damms' lawyer, David Schroth, was on notice of the arbitration session but failed to attend because he was appearing in court for another case in Philadelphia.

Jacobson granted Schroth's motion to vacate the $5 million judgment Sept. 18, but ordered him to file a notice for a trial de novo by Oct. 16. Schroth failed to do so by the deadline, prompting S.D.'s lawyer, Edward Harrington Heyburn, to file a renewed motion to confirm the $5 million arbitration award Oct. 17. Schroth filed a notice for trial de novo later the same day, but has not opposed S.D.'s motion to confirm the arbitration award.

Schroth said in his court filing that he missed the deadline because Jacobson indicated in court that he had 30 days to file for trial de novo, but her written order only gave him 28 days.

Schroth, of Destribats Campbell Staub & Schroth in Hamilton, did not respond to requests for comment.

The suit claims Santa Damms knew her husband, William, was a pedophile but negligently failed to supervise S.D. during her visits to their home. William Damms was eventually convicted of sexually assaulting S.D. on numerous occasions, Heyburn said. After serving his sentence in that case, William Damms was also found guilty of sexually assaulting S.D.'s sister, Heyburn said.

Schroth said in court papers that Santa Damms is an 82-year-old disabled woman who maintains she had no idea her husband sexually abused her grandaughters.

"It would be a grave injustice to defendant Santa Damms if given this good faith mistake by counsel for her to be saddled with a $5,000,000 judgment by default without the ability to present a defense," Schroth said in a court filing.

Santa Damms said in an affidavit that "our own son, the father of S.D., brought S.D. to our house regularly for years. He would not have brought her to our house if he suspected there was a problem. My understanding of the allegations against my husband are that he touched my infant granddaughter inappropriately. These touchings occurred outside my presence. My understanding of what happened here is that my husband acted to avoid my catching him committing these acts. I am not negligent in not seeing my husband touch my granddaughter when I was asleep in another room or in another room and my husband was acting to avoid being caught."

The civil suit's focus on the perpetrator's wife reflects the realities of seeking recovery for sexual assault. Santa Damms was picked as the defendant because "generally, intentional acts are not covered by homeowners liability insurance but negligent acts are," said Heyburn, of Gage Fiore in Lawrenceville, who represents the plaintiff along with the firm's Anthony Fiore Jr. "In these sex assault cases, where the perpetrator isn't rich, you have to look for an avenue where you can look to recover money. In this particular case, [S.D.'s grandmother] knew or should have known that her husband was a sexual predator and looked the other way."

William Damms, now 86, is currently serving a 12-month sentence at South Woods State Prison in Bridgeton for endangering the welfare of a child, according to the state Department of Corrections. He was previously jailed from 2010-2013 after being conviction for endangering the welfare of a child in S.D.'s case.

S.D. may need any money recovered from the case to pay for counseling, Heyburn said.

"Generally, life is extremely painful for her now. The trauma of being molested by one of the closest people in her family causes a lot of issues. She will be in some sort of counseling for the rest of her life," Heyburn said.

A judgment for the plaintiff would also help her emotionally, Heyburn said.

"A judgment against the grandmother will say that the victim wasn't wrong—she was a child, and the grandmother had a duty to protect her, and the grandmother is being held accountable for that. We focus a lot on the perpetrator but there a lot of people who knew what was going on but kept their mouths shut," he said.