See Me, Feeney

A jury yesterday found the Green Bay Diocese liable for damages resulting from assigning Father John Feeney to Saint Nicholas Church in Freedom, Wisconsin, without disclosing to parishioners that he had previously sexually assaulted minors, the Green Bay Press-Gazette reports. The plaintiffs are two brothers who Feeney sexually assaulted in the late 1970s, when they were 12 and 14 and were Saint Nicholas parishioners. The jury verdict Monday also awarded one of the brothers $225,000 and the other $475,000 in compensatory damages.

From what I can glean from the press report, the Plaintiffs' legal theory appears to be that the Diocese had an obligation to disclose Feeney's history and the failure to do so constituted a misrepresentation that he was no danger to children. That might be a stretch, but it convinced the trial judge.

Since the claim is of a kind of fraud, the statute of limitations was extended until the Plaintiff's discovered the fraud. It also allows the jury to award punitive damages, on which jury reconvened today to deliberate.

The usual practice in Wisconsin civil cases is to use a special verdict form, which will ask separate questions regarding liability and damages. You can hear the judge reading the jury's answers to the verdict questions in the video accompanying the article. In general, a jury is instructed to answer the damage questions without regard to how they answered the liability questions, which is why the diocese's attorney would argue "if the jury found the diocese guilty, the brothers should be given $100,000."

In the Plaintiffs' case, "priests testified there were allegations of inappropriate behavior by Feeney ... long before he assaulted" and that "Feeney was attending mental health counseling in 1974 after he touched girls inappropriately at a church retreat... . " Plaintiffs also "presented a letter forwarded from psychologist Thomas Kelley to the bishop [Aloysius Wycislo] stating under stress Feeney’s 'usual controls over sexual impulses may fail and cause some indiscretions.'" (Comments to the article include some on Feeney's reputation in De Pere in the 1970s.)

In the defense case, "the bishop, who died in 2005, said in a previous deposition that if there was merit to complaints of sexual abuse by Feeney, he would have immediately suspended the priest."

The Diocese's press release regarding the verdict said "For those who knew Bishop Wycislo and understood his integrity, the jury’s decision is contrary to what we believe to be the judgment and actions of Bishop Wycislo and how the Diocese of Green Bay reviewed John Feeney’s actions prior to 1978." If that is a way of saying the jury should have believed the defense witnesses, that's usually an uphill fight after the verdict's in.

The statement also said, "If the documents and depositions indicated that there was a legitimate basis for the allegation of fraud against Bishop Wycislo and the Diocese, we would not have undertaken the expense and time to so vigorously defend Bishop Wycislo and the Diocese." That looks like a reference to whether there was any legal duty to disclose what was known about Feeney.

I expect we'll see more on the legal issue in other cases against dioceses, and, as Milwaukee's Bishop Emeritus Richard Sklba suggested, even against parishes.

Update: Wednesday's Milwaukee Journal Sentinel adds,

"The lawsuit marks the first time a plaintiff has successfully sued the Catholic Church in Wisconsin over clergy sex abuse since the state Supreme Court barred such negligent supervision cases on First Amendment grounds in 1995. It reopened them in 2007, under the fraud statute."

Meaning, as I understand it, that the immunity a religious body has regarding how it oversees its clergy does not protect it from claims of fraud, and the statute of limitations does not begin to run in such cases until the fraud is, or should have been, discovered. Also,

"Evidence obtained as part of the trial included a deposition of a diocesan official who said the diocese in 2007 began destroying files of some priests accused of sexually abusing minors."

Bishop David Zubik then lead the Green Bay Diocese and is now Bishop of Pittsburgh. The Pittsburgh Post-Gazette had earlier reported,

"the Survivors Network of Those Abused by Priests asked for a court injunction preventing the Diocese of Green Bay from destroying any priest's personnel files. ...

"The group's evidence was a deposition from the Rev. John Doerfler, chancellor of the Diocese of Green Bay. He testified that in 2007 the diocese destroyed detailed medical reports on all priests -- unless there was a claim pending -- in order to comply with federal laws on medical privacy. He said that records of all priests who had been dead for more than a year were destroyed unless there was pending legal action.

"He testified that some files of accused child molesters were destroyed in the process. They included psychological reports on a notorious abuser, the former-Rev. John Feeney, who has been in prison for sexual assault since 2004. Two of his victims sued in 2008, and the case is pending."

Offhand, the destruction of records which might be relevant to potential claims or litigation seems problematic, for example, because it might later be regarded as spoliation of evidence, or make the organization appear to be involved in a cover-up. To return to the newspaper report of the verdict, it was headlined Green Bay diocese liable for molestation cover-up.

Update 2: The Appleton Post-Crescent reports the Plaintiffs dropped their punitive damage claim. In announcing this, they distributed some documents that were not entered into evidence.

"One was a letter from Monsignor Roy Klister to the Merryfields' parents dated Jan. 23, 1979. It said that 'not publicizing the incident and your understanding of the problem was the correct and just approach.'" ...

"Troy Merryfield also referenced a 1983 letter sent to Feeney from Bishop Aloysius Wycislo regarding Feeney's release from the diocese. Wycislo wrote, 'I am capable of forgetting about all this and writing a good letter of recommendation for you to a new bishop.'"

Todd Merryfield summed up. "'They're more interested in protecting the institution than the children and that's a pretty sad, sad statement on an operating philosophy,' he said. 'I'd be embarrassed to operate that way.'"