State Laws Opening Windows for Sex Abuse Claims a Challenge for Plaintiffs in Lawsuits Against Boy Scouts
A key component of the complaint are the allegations that the Boy Scouts maintained files, known as the "Ineligible Volunteer" files, that documented the incidents of abuse dating back to shortly after the group's founding in 1910.
November 19, 2019 at 03:32 PM
7 minute read
It has been slightly less than a year since the Boy Scouts of America announced it was considering filing for bankruptcy to deal with a spate of sex abuse claims, and in that time 40 states have introduced bills aiming to expand the statute of limitations for bringing lawsuits alleging just this type of abuse.
Now, with several of these laws either having been recently enacted, or set to go into effect in the coming weeks, hundreds of new lawsuits are gearing up to be filed against the organization before the end of the year.
But, there remains in place a complex patchwork of statute of limitations laws, civil litigation windows and case law across the country that attorneys must navigate in order to bring suits against the national organization before a possible bankruptcy caps the litigation.
According to attorneys, New Jersey is likely to see a significant wave of these cases, but at least one Pennsylvania firm is also looking to take a novel approach and hoping to use the nation's capitol as a sort of catchall venue for bringing these claims.
"Because the Boy Scouts were a congressionally established organization, there's jurisdiction in the D.C. courts," Philadelphia attorney Stewart Eisenberg of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck said. "The Boy Scouts received congressional funding every year, and they have to report to congress."
Eisenberg is part of a group of lawyers calling themselves "Abused in Scouting" that aims to file several hundred lawsuits against the Boy Scouts of America in the coming weeks. The group includes Houston attorney Tim Kosnoff and Andrew Van Arsdale in San Diego. According to Eisenberg, his group plans to file at least 45 cases in New Jersey, 82 in Pennsylvania, 84 in New York, 169 in California and between 300 and 400 in the U.S. District Court for the District of Columbia before the start of next year.
The argument that the D.C. federal court has jurisdiction given that the organization is federally chartered and receives federal funding is an argument that has not been legally tested, Eisenberg said, and he expects it will be challenged; however, with a two-year window law that went into effect in D.C. in May, Eisenberg said it could be the best chance to make sure those with claims stemming from abuse in states without extended statute of limitation laws can sue before the Boy Scouts file for bankruptcy.
But D.C. is not the only venue expected to see a significant uptick in litigation.
McLaughlin & Lauricella attorney Slade McLaughlin, who has represented child sex victims with claims against the Philadelphia Archdiocese and said he has been in talks to bring some Boy Scout cases as well, said he is expecting a large wave of cases to be filed in New Jersey, and in Middlesex County in particular. That is because between 1954 and 1979, the organization had its headquarters in New Brunswick, New Jersey.
New Jersey is also set to have its own two-year window legislation go into effect Dec. 1.
"You're going to see hundreds of cases filed in New Jersey alone," McLaughlin said, adding that, not only was the organization headquartered there, but it was a place many troops visited.
Pennsylvania—New Jersey's neighbor to the west—is also expected to see an uptick in Boy Scout cases even though the state legislature has not passed window legislation, or expanded the current law, which allows victims of childhood sex abuse until the age of 30 to sue.
That is because of recent Pennsylvania case law attorneys characterized as opening the "courthouse doors" for claims where the plaintiff could not have adequately investigated his or her potential claim before the statute of limitations expired. The case attorneys often cite is Rice v. Diocese of Altoona-Johnstown in which the state Superior Court in June revived a decades-old claim based in part on the fact that a grand jury report outlined newly discovered information the plaintiff—an alleged victim of sexual abuse by a priest—would not have been aware of before the statute of limitations expired.
At least one suit has already been filed in Pennsylvania alleging abuse by the Boy Scouts. In August, a man from Luzerne County filed suit in Philadelphia state court claiming to have been sexually abused by a scoutmaster between 1974 and 1980 when he was a minor. Eisenberg's firm filed the lawsuit.
Along with raising claims against the scoutmaster, the lawsuit lodges numerous claims against the Boy Scouts of America specifically for failing to investigate the scoutmaster with background checks or psychological testing, failing to have adequate safeguards in place to protect against potential abuse and failing to take proper action to remove the scoutmaster.
The suit alleges fraudulent concealment, conspiracy, willful and reckless misconduct and negligence, among other things. Although scoutmasters are not employed by the Boy Scouts of America, the complaint also makes a claim for respondeat superior.
A key component of the complaint are the allegations that the Boy Scouts maintained files, known as the "Ineligible Volunteer" files, that documented the incidents of abuse dating back to shortly after the group's founding in 1910.
"The [Ineligible Volunteer] files highlight BSA's vulnerabilities, including pedophiles' techniques used to enter scouting, pedophiles' patterns of grooming victims, and widely-found biographical and behavioral characteristics shared by pedophiles that had entered or were attempting to enter scouting," the complaint said. "The overwhelming evidence of the [Ineligible Volunteer] files at present shows that for a century BSA has known of BSA's distinctive characteristics that render scouts particularly prone to pedophiles' abuse."
Eisenberg said most people did not know about these files until his group began advertising on TV, which is where the Rice precedent comes into play.
Of course, if the Boy Scouts of America file for bankruptcy, all pending litigation will be stayed, and a deadline will be put in place for new claims to be filed. Claims stemming from activities before the stay was put in place will then be barred regardless of the statutes of limitations, or window laws, and it is unlikely any of the claims filed could then come before a jury anytime soon.
Still, attorneys said that filing the claims is worth it.
McLaughlin noted that the bankruptcy court could set up a compensation fund, similar to what several diocese in Pennsylvania and elsewhere have implemented, that would allow people to get "significantly compensated." He also noted that, since not all older insurance policies specifically disclaimed abuse, some cases may be able to move ahead solely against the insurance carrier outside the bankruptcy process.
Eisenberg said that it is also important to give a full picture of what the Boy Scouts is now facing.
"Knowing this—that people's rights would be affected if they declared bankruptcy—the solution was to file cases now, or at least get on record with the Boy Scouts that these victims were out there and there were many, many more on record filing lawsuits, so when they did go into bankruptcy, they were aware of the enormity of the problem," Eisenberg said.
The Boy Scouts did not return a message seeking comment.
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