In a decision earlier this year, the Missouri Supreme Court issued an opinion reversing a grant of summary judgment in favor of the defendants in the case of John Doe 122 v. Marianist Province of the United States.[1] While the case involves allegations of childhood sexual abuse, the Court’s ruling has the potential to expand the bounds of appropriate expert testimony, with implications for many cases that depend on the interpretation of historic business records. The central issue in Doe was whether the trial court had properly granted summary judgment in favor of the defendants on Plaintiff’s claims of intentional failure to supervise the alleged perpetrator of the abuse, Brother John Woulfe.
In reversing the trial court’s grant of summary judgment, the Missouri Supreme Court approved of the expert testimony proffered by Plaintiff which speculated that a seemingly innocuous letter written in 1968 actually contained coded language referring to sexual abuse. Despite the fact that Plaintiff’s expert had never spoken to the individual who drafted the letter, and there was nobody living to testify regarding the letter, the Missouri Supreme Court ruled that such speculative testimony was permitted, and could allow the jury to conclude that the Marianists had notice of Brother Woulfe posing a risk to minors, thus exposing the defendants to potential liability.
One of the defenses raised by the Marianists was that it had no notice Brother Woulfe posed a risk of harm to anyone prior to the time of Plaintiff’s allegations in Doe. The “notice defense” is a common defense raised by religious institutions around the country to fight back against decades-old allegations of sexual abuse. Generally, in order to establish liability against the institution on claims involving negligent hiring, retention, or supervision, a plaintiff must show that the institution either knew, or should have known, that the perpetrator posed a risk of harm to minors. This ruling by the Missouri Supreme Court could potentially undermine the notice defense by allowing a plaintiff to seize on facially neutral correspondence in historical records to argue that they actually contain coded language for sexual abuse.
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