# Doe v. Archdiocese of Milwaukee > Wisconsin Supreme Court · June 27, 1997 · 211 Wis. 2d 312 URL: https://www.frixlaw.com/law-library/cases/9673525 ## Case - **Full name:** John BBB Doe, Plaintiff-Appellant, v. Archdiocese of Milwaukee, St. Mary's Congregation, and Father Jerome Lanser, Defendants-Respondents , Alias Insurance Company No. 1, and Alias Insurance Company No. 2, Defendants. [Case No. 94-0423]; John MMM Doe, Plaintiff-Appellant, v. Alias Insurance Company No. 1, Alias Insurance Company No. 2, Archdiocese of Milwaukee, St. Boniface Congregation, and Father Michael Neuberger, Defendants-Respondents. [Case No. 94-0695]; T.C., Plaintiff-Appellant, v. Archdiocese of Milwaukee, Reverend S. Joseph Collova, and St. James Catholic Church, Defendants-Respondents. [Case No. 94-2124]; J.J., Plaintiff-Appellant, v. Archdiocese of Milwaukee, Father Michael Neuberger, and St. Boniface Congregation, Defendants-Respondents. [Case No. 94-2128]; A.C., Plaintiff-Appellant, v. Archdiocese of Milwaukee, Reverend William J. Effinger, and St. Francis Desales Catholic Church, Defendants-Respondents. [Case No. 94-2141]; Susan Smith, Plaintiff-Appellant, v. Archdiocese of Milwaukee, Reverend William J. Effinger, and St. Mary's Catholic Church, Defendants-Respondents. [Case No. 94-2384]; John Brown, Plaintiff-Appellant, v. Archdiocese of Milwaukee, St. Francis Desales Catholic Church, and Reverend William J. Effinger, Defendants-Respondents. [Case No. 94-2852] - **Court:** Wisconsin Supreme Court - **Decided:** June 27, 1997 - **Citations:** 211 Wis. 2d 312; 565 N.W.2d 94; 1997 Wisc. LEXIS 87 - **Precedential status:** Published - **Opinion:** Concurrence by Abrahamson - **Judges:** Geske, Abrahamson, Crooks - **Cited by:** 52 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9673525 ## How later opinions describe it (automated extraction) - explaining that the plaintiffs alleged claims against the Archdiocese for "negligent employment, training and supervision of the defendant priests, and for failure to report the abuse" - finding that claims against an archdiocese for negligent training, placement, and supervision of an abusive priest were derivative of underlying abuse - holding that, as a matter of public policy, the unreliability of repressed memory theory prevented it from tolling the statute of limitations - affirming trial courts' grants of summary judgment that plaintiffs' claims were barred by the statute of limitations ## Opinion text SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE ¶ 99. (concurring). This case is largely governed by and inexorably follows from Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302 , 533 N.W.2d 780 (1994). I join the mandate of the court because I recognize *367 Pritzlaff as the law of Wisconsin, even though I did not agree with the majority opinion in Pritzlaff , and I continue to believe the decision unfortunate. ¶ 100. I write separately to point out the nature of the rule the majority adopts and why I believe the court need not take this approach to the difficult problem of the validity and reliability of evidence in cases such as the ones presented. ¶ 101. The majority opinion discusses at great length the facts of the cases before the court. Nonetheless, the majority's holding is not limited to the facts of the cases presented. The majority opinion enunciates a broad rule of law encompassing all children: A plaintiff who while a minor was sexually assaulted by a person in a position of trust (such as a clergyperson) 1 is, as a matter of law, irrebuttably presumed to have discovered the injury and the cause thereof at the moment of the assault, regardless of whether the plaintiff repressed all memory of the assault or the plaintiff did not know and should not have reasonably known of the injury or cause thereof. ¶ 102. I believe that the principal failing of both Pritzlaff and the majority opinion today is that the discovery rule is applied categorically; categories control, particular facts are irrelevant. But by its very nature, the discovery rule is a matter largely of a plaintiffs mental state (using both subjective and objective *368 criteria); a plaintiffs mental state is not a matter amenable to categorical application. 2 ¶ 103. The flaw in attaching categorical rules to the discovery rule is readily apparent in today's decision involving plaintiffs who were children at the time of the assault. The court has reduced the mental and emotional state of a traumatized child, whether two years of age or 16 years of age, to an absolute rule of law, instead of applying the discovery rule to each child victim on the basis of the particular circumstances. ¶ 104. I recognize that stale claims and repressed memories recovered after decades pose daunting problems for a court's search for the truth. But because testimonial reliability is a key issue, I would tackle it in the manner we handle such questions in other instances. 3 ¶ 105. For those plaintiffs who do not allege repressed memory, the fact finder ordinarily determines when the plaintiff knew or should have known of the injury and its cause. For those plaintiffs who allege repressed memory I would treat repressed memory evidence like other challenged scientific evidence and expert witness opinion. ¶ 106. Realizing that its approach to the discovery rule is contrary to our prior cases, the majority tries *369 to narrow its decision by explaining that the acts complained of in this case were intentional. Majority op. at 343-45. But on what theory are we to distinguish for purposes of the discovery rule between negligent acts and intentional acts? Why would the running of the statute of limitations against the plaintiff be controlled by the mens rea of the defendant? ¶ 107. Finally, I comment on the present case in relation to the recently issued Estate of Cheryl Makos v. Wisconsin Masons Health Care Fund, 211 Wis. 2d 41 , 564 N.W.2d 662 (1997). Two members of the court (Justices Steinmetz and Crooks) concluded in Makos that the Wisconsin constitution precludes any statute of repose that operates to forestall a claim before the injury and cause thereof are known or should have been reasonably known. If, as a fair reading of the pleadings in the present case allows, these plaintiffs did not suffer injury until they recovered their harmful memories of their assaults, the courthouse doors have been closed to them by operation of the majority's decision in contravention of Wis. Const. art. I, § 9 according to the two opinions in Makos. Just like Ms. Makos, who did not detect the wrong that occurred to her through the pathologist's misdiagnosis until after the statute of limitations (as limited by the statute of repose) had run, the plaintiffs here did not detect the wrongs that had been done to them until after the statute of limitations had run. The plaintiffs, like Ms. Makos' estate, allege that they did not discover their injuries until the courthouse doors were barred. Ms. Makos' estate won; these plaintiffs lose. ¶ 108. The foundation of our discovery rule jurisprudence has, in my opinion, been disturbed by Pritzlaff and this decision. *370 ¶ 109. For the reasons set forth, I write separately. *371 [[Image here]] The rule does not apply when the offender was a family member. The legislature codified Hammer v. Hammer, 142 Wis. 2d 257 , 418 N.W.2d 23 (Ct. App. 1987), in Wis. Stat. § 893.587 declaring that a cause of action for incestuous abuse will not accrue until the victim discovers, or in the exercise of reasonable diligence should have discovered, the fact and probable cause of injury. It has been reported that the "substantial majority of courts hold that the discovery rule preserves the claims of those suffering from repressed memory." Doe. v. Doe, 931 P.2d 1115, 1122 (Ariz. Ct. App. 1996) (Lankford, J., dissenting in part), review granted, Feb. 26, 1997, citing Farris v. Compton, 652 A.2d 49, 59 (D.C. App. 1994); Olsen v. Hooley, 865 P.2d 1345, 1349 (Utah 1993). See also McCollum v. D'Arcy, 638 A.2d 797, 799-800 (N.H. 1994); Ault v. Jasko, 637 N.E.2d 870, 873 (Ohio 1994). See Wis. Stat. chs. 904, 906 and 907 (1995-96). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9673525. Public record. Not legal advice.