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Missouri Supreme Court Permits Speculative Expert Testimony on “True” Meaning of Letters in Priest’s Personnel File

By Brian J. Hingston

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.

The Plaintiff, identified as John Doe 122, alleged that he was sexually abused by Brother John Woulfe in approximately 1971.[2] Brother Woulfe was a Marianist brother who served as Doe’s counselor at Chaminade College Preparatory School.[3] In 2012, Doe received a letter from Father Martin Solma of the Marianists indicating that Chaminade had received an allegation of sexual abuse against Brother Woulfe.[4] According to Doe, this letter brought back memories of the alleged abuse he suffered at the hands of Brother Woulfe.[5]

In 2015, Doe filed suit against the Marianists and Chaminade. Doe’s complaint contained a variety of theories of liability, including a claim for intentional failure to supervise, which was the count at issue before the Missouri Supreme Court.[6] The defendants moved for summary judgment on all counts, which was granted by the trial court.[7]

One of the issues pending before the Missouri Supreme Court was whether the trial court had properly granted summary judgment in favor of the defendants on plaintiff’s claim of intentional failure to supervise the alleged perpetrator, Brother Woulfe.[8] Under Missouri law, in order to prevail on a claim for intentional failure to supervise, the plaintiff must show that harm was certain or substantially certain to result from the failure to supervise an employee, and that the defendants disregarded that known risk.[9]

To show that the defendants knew Brother Woulfe posed such a risk of harm and that the defendants disregarded that risk, plaintiff put forth the expert testimony of Father Thomas Doyle.[10] Father Doyle is a Catholic priest who has been used as an expert for plaintiffs in many abuse cases. As part of his testimony in the Doe case, he represented that he has spent more than 30 years reviewing thousand of priests’ personnel files, including many files of priests who have been accused of sexual abuse.[11] On that basis, plaintiff proffered Father Doyle as an expert who could interpret the contents of letters contained in Brother Woulfe’s file, where all the relevant parties to that correspondence are, presumably, either deceased or unavailable.

In Father Doyle’s expert report, he provided the following opinion: “The Marianist leadership received notice of inappropriate sexual contact with minors by Brother Woulfe in 1968. This is reflected in a letter from Brother James Gray, Director of Education to Brother Woulfe dated July 1, 1968.”[12] That letter states, in relevant part:

I am sorry that things did not work out more appropriately at St. Boniface. At the same time . . . the actual grace left by this unusual situation may be one which helps you to confront and overcome the problem, which if left untended, would eventually become a serious one for religious life.[13]

The letter does not make any reference to Brother Woulfe having acted inappropriately with minors. However, according to Father Doyle, this letter actually uses “coded” language that in fact does refer to Brother Woulfe having been accused of being sexually inappropriate with minors.[14] Father Doyle’s expert report stated that this section of the letter “refers to the sexual activity. It does not address it directly. Rather, it is written in the euphemistic or coded language that has been and continues to be commonly used by Catholic bishops, religious superiors and other clerics, when referring to sexual abuse with minors.”[15]

Defendants argued that this letter could have referred to anything, including Brother Woulfe’s failure to attend masses, or other issues with Brother Woulfe that witnesses had testified to.[16] Father Doyle disagreed, stating issues related to alcohol abuse, or failure to attend community meals or masses, for example, are usually addressed directly.[17] On the other hand, issues related to sexual misconduct were usually referred to using coded language.[18] Thus, Father Doyle opined that the references to the “unusual situation” and the fact that “things did not work out more appropriate at St. Boniface” were references to sexual misconduct, rather than some other benign explanation.[19]

On cross-examination, Father Doyle admitted that he has never met or spoken to the author of the letter, Brother Gray.[20] He further admitted that as Brother Gray is dead, Father Doyle has no way of knowing with any certainty what Brother Gray intended to convey in the letter.[21] Regardless, Father Doyle insisted that, based upon his experience in reviewing personnel files of priests, that the language used by Brother Gray was a reference to sexual misconduct, and not some other issue.[22]

Father Doyle had never met or spoken to Brother Gray.[23] Further, as Brother Gray passed away prior to the time this case was filed, he was not deposed, and nobody was able to ask Brother Gray about the meaning of the letter.[24] Thus, Father Doyle’s opinion is based entirely on Father Doyle’s own reading of the letter, based upon his experience in reading personnel files of priests over the past several decades.

Despite the speculative nature of Father Doyle’s opinion, the Missouri Supreme Court ruled that it could be submitted to the jury.[25] According to the Court, Father Doyle’s testimony, if believed by the jury, would permit the jury to infer that the defendants knew Brother Woulfe posed a risk of harm, and that the defendants disregarded that risk.[26] Defendants argued that Father Doyle’s testimony was speculative and invaded the province of the jury by giving an opinion on an ultimate issue.[27] The Court responded that Father Doyle does not profess to have first hand knowledge of what Brother Gray intended in his letter. Rather, Father Doyle was simply giving an opinion, based on his knowledge and experience, that “vague and indirect” references to a priest’s “problems,” such as what is contained in Brother Gray’s letter, are often coded references to sexual misconduct.[28] The Court thus concluded that Father Doyle’s testimony would assist the jury in determining what the defendants may have known about Brother Woulfe, and permitted it to be presented to the jury.[29]

The Missouri Supreme Court’s opinion regarding Father Doyle’s testimony is likely to impact litigation throughout the country. In cases involving decades-old allegations of sexual misconduct, often one of the only available defenses to religious organizations is the fact that the organization had no knowledge that the perpetrator of the abuse posed a risk of harm to minors. Should plaintiffs be able to present expert testimony that seemingly benign letters in personnel files are actually coded language for sexual misconduct, the notice defense could be significantly undermined. Moving forward, it will be crucial to track whether this opinion is being used in other states to present similar expert opinions. For more information regarding the Doe 122 decision, or how it may impact your organization, please contact Brian J. Hingston at [email protected] or 312-506-4466.

[1] Doe 122 v. Marianist Province of the United States, 620 S.W. 3d 73 (Miss. 2021).

[2] Id. at 75.

[3] Id.

[4] Id. at 76.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 81.

[9] Id. at 81-82.

[10] Id. at 82.

[11] Id.

[12] Id. at 83.

[13] Id. at 82.

[14] Id. at 83.

[15] Id.

[16] Id. at 85-86.

[17] Id. at 86.

[18] Id. at 86.

[19] Id. at 87.

[20] Id. at 85.

[21] Id.

[22] Id. at 85-86.

[23] Id. at 85.

[24] Id.

[25] Id. at 88.

[26] Id. at 87.

[27] Id.

[28] Id. at 88.

[29] Id.