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Indiana Court of Appeals: Statutes of Limitation And 'Repressed Memory' Molestation Claims
Posted in Litigation

This week, in Lacava v. Lacava, the Indiana Court of Appeals addressed the application of statutes of limitation to repressed-memory molestation claims. 

Proceedings in Lacava began in 2005, when the plaintiffs sued their father for damages arising out of the alleged molestation of them when they were minors. Although the complaint was filed after the presumptive statute of limitations applicable to minors had expired, there were issues as to when the plaintiffs’ cause of action accrued.

The Indiana Court of Appeals explained that, generally, a minor’s cause of action does not accrue until the “disability” is removed.  This rule applies “even absent actual cognition or memory by the child” of the action, because a parent’s knowledge of the act is imputed to the child.  However, a “fraudulent concealment” exception applies to otherwise untimely claims arising from childhood injury caused by a felonious act of a parent.  In these instances, the plaintiff must use due diligence to commence an action once the plaintiff “knows or should have discovered that a childhood injury was sustained as a result of defendant’s tortuous conduct.”

In Lacava, the Marion Superior Court denied the defendant father’s motion for summary judgment, which argued the plaintiffs’ claims were time-barred.  The father contended that, because the mother was aware of the molestation, her knowledge was imputed to the plaintiffs.  In opposition, the plaintiffs argued that their mother’s failure to report the act indicates she was complicit with the father and, therefore, their claims were subject to the fraudulent concealment exception.  The Indiana Court of Appeals affirmed the trial court’s order, concluding that there was a genuine issue of fact whether the mother played a role in concealing the molestation.

The Court of Appeals also addressed the issue of whether an expert opinion substantiating the plaintiffs’ claim of “repressed memory” was required to withstand summary judgment.  Citing the Indiana Supreme Court’s holding in Doe v. Shults-Lewis Child & Family Services, Inc., 718 N.E.2d 738 (Ind. 1999), the Court of Appeals explained that, when asserting “repressed memories” as an explanation for the delay in making a claim, a plaintiff must present an expert opinion regarding the plaintiff’s experience of repressed memories.  Here, however, the Court concluded that the plaintiffs’ trial-court request for additional time to produce such an opinion precluded summary judgment for now.

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