# Petition for Writ of Certiorari — Doe ex rel. Doe v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2371%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 812

## Text

Bupreme Court, US
FILED

APR 20 1993

OFFICE OF THE CLERK
a

oe nee

IN THE

Supreme Court of the Anited States

APRIL TERM, 1993

JoHN Dog, a minor, by father, Jay Dog; and
ALExIs Dog, a minor, by father, Davip Dog; and
Jay Dog, Cinpy Dog, Davip Dok and LINDA Doe,

Petitioners,
VS.

UNITED STATES OF AMERICA,
Respondent.

Petition for Writ of Certiorari to the
United States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

GEORGE R. RIPPLINGER, JR.
RIPPLINGER, Dixon, & JOHNSTON
2215 West Main Street
Belleville, Illinois 62223
(618) 234-2440

Attorneys for Petitioners

St. Louis Law Printing,Inc. 13307ManchesterRd. St Louis,MO 63131 314-231-4477

QUESTIONS PRESENTED

1. Whether expert testimony is necessary to establish a
plaintiffs’ right to damages for emotional pain and suffering;
damages for permanent injuries; or an award for future damages.

2. Whether a party relying upon circumstantial evidence to
prove damages in a civil case must negate every other possible
cause for the damage to recover for those damages.

3. What is the correct definition of circumstantial evidence.

4. Whether the tort of seduction is still a viable cause of action
in the State of Illinois.

5. Whether the United States Court of Appeals for the Seventh
Circuit should have deferred to the Illinois Supreme Court on the
question of the viability of the tort of seduction and referred the
question to the Illinois Supreme Court for their decision pursuant
to Seventh Circuit Court of Appeals Rule 52 and Illinois Su-
preme Court Rule 20.

6. Whether the Court of Appeals’ analysis of the parent
plaintiffs’ cause case resting upon the tort of seduction as an
intentional tort rather than under the theory that the government
negligently allowed it to occur is contrary to its prior holding in
the first appeal in this cause, Doe v. United States, 838 F.2d 220
(7th Cir. 1988), and this court’s opinion in Sheridan vs. United
States, 487 U.S. 392, 108 S.Ct. 2449 (1988).

7. Whether an award of $25,000 to a minor who was sexually
molested while at an Air Force day care center is inadequate as
a maiter of law and shocking to the conscience.

—

TABLE OF CONTENTS

Page
SIRF PEMD WURIEEE TE ESED cc ncenccsssesnccencsescnenscssscneons one i
NIE IT SURF RUUMIIEE FRIED ssessscrcnesesvcssescsesescasssenes 0s iv
a cnc cinuasenanaiadonseansdsens nectienses l
Cee ia cis cbiseceewunsduannapton snxsuvntesesece 2
STATUTORY PROVISIONS INVOLVED ................. 2
Be EE GP BME CAS cecscsssccennsesssssssesassccesssne ' 5
REASONS FOR GRANTING THE PETITION .......... 1]
adhoc Ueda Santa ennnassavesaesavenbacssesnnsensnnnie 30
APPENDICES
Appendix A
Opinion of United States Court of Appeals
SE MM, BURP IUD sexveccscevnnsesssonssssonsesenses A-1
Appendix B
Opinion of United States Court of Appeals
(7th Cir. Dec. 1-21-93) denying Petitioners’
Petition for Rehearing and Petition for Re-
a clean cncuhibnsdnnteanacinncrnenen A-32

Appendix C
Opinions of United States District Court for
the Southern District of Illinois (Judgments
and Findings of Fact — 10-10-90) .................. A-35

al oon

TABLE OF AUTHORITIES

Cases:

Ball v. Bruce, 21 Tl. 161 (1859) .................sccecccsessesseees 18,22
Bennet v. Allcott, T.R. 166, 100 Eng. Rep. 90 (1797)... 18
Berghammer v. Mayer, 207 N.W. 289 (W.LS. Ct.

SID icaeiesinsissctcakcitessmcnniecimensnceiaciactesinasidilinsansibliiaisensiineian 20,21
Breining v. Lippincott, 187 S.W. 915 (Ark.S.Ct.

I vista saiciacsincisntnichsinsicuincateannsnsebawnneanabeatanniintion 19,20
Burnett v. Cabo, 7 Ill.App.3d 268, 285 N.E.2d 619, 627

(Sak Dilet,. BST Z) ocsccnessseisesrssnerccscenessaessoussonesesiontvense 16
Collins v. Hoskins, 306 Ky. 391, 208 S.W.2d 70 (C.A.

ID acisicesineiinesesncsanennssniencennnsansicbcansantananaieacinanteaptions 21
Cosmopolitan Bank v. County of Cook, 103 I1.2d 302,

469 N.E.2d 183, 82 Ill. Dec. 649, 655 (1984)........ 15
Crumble v. Blumenthal, 549 F.2d 462, 467 (7th Cir.

FFD rcicsnssesinnvssneniceannvsenicinntisnenpinnmnntiansveanumaninets 13

Cummings v. Chicago Transit Authority, 86 Ill.App. 3d
914, 408 N.E.2d 737, 42 Ill.Dec. 159 (1st Dist.

NI vcs cisessssssavesnsasnepunisicchsanacancesanensiinenonaunsoneavenniadin 28
Doe v. United States, 838 F.2d 220 (7th Cir. 1988)...... 28
Dwyre v. Stearns, 172 N.W. 69 (1919) .....sssesesssseseeeees 20
Musgrave v. Union Carbide Corporation, 493 F.2d 224,

ZB C7Or CAe. TOPE) ocscnssncinccssiesonsossnrsesinsvnsisenonovsness 16

National Casting Division Midland-Ross v. Industrial
Commission, 55 Ill.2d 198, 204 (1973) .......eseeee 17

Noice v. Brown, 39 N.J.L. 569 (N.J.S.Ct. 1877) ........... 19
Olympia Equipment Leasing v. Western Union Tele-
graph, 797 F.2d 370, 383 (7th Cir. 1986) ............. 12
Phillips v. Hunter Trails Community Association,
685 F.2d 184, 190 (7th Cir. 1982) 0.0... 13,24
Placher v. Streepy, 19 Ill.App. 2d 183, 153 N.E.2d 369,
FE ee CE cis taiiciciccniccenidaveattiendaanammnauel 14.
Redmon v. Sooter, 1 Ill.App.3d 406, 274 N.E.2d 200, 204
BR gg: RRA ites tae or Pe tale 14

Robinson v. Chicago Transit Authority, 69 Ill.App.3d
716, 388 N.E.2d 163, 26 Ill.Dec. 539, 543 (1st Dist.
Ea FD ewicsnidislaieiioianiaaanbleibataiamaiinlanenienteaengs 14

Scholle v. Continental National American Group, 44
Ill. App.3d 716, 358 N.E.2d 893, 3 Ill.Dec. 350, 355

GR BE Ui icinisttntetniciatndticcvoncaabavemmiititovs 12,16,23
Seaton v. Sky Realty Company, Inc., 491 F.2d 634, 636-

ee Gre ee PD tik tcnserseacenedincoimenes 23
Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449

PUTTS sceitvnrsvcasunsatecishendeetistabonionshaacoadesilialotubaelaptaie 23
Stone v. Bang, 122 S.W. 915 (Miss. Ct. 1929).............. 21,22
Turner v. City of Chicago, 95 Ill.App.2d 38, 238 N.E.2d

100, 101-102 (1st Dist. 1968)...................cccccsssseees 13,15
Vilardo v. Public Taxi Service, Inc., 118 Ill.App.2d 62,

254 N.E.2d 653, 654 (1st Dist. 1969)................00. 13
Walsh v. Dream Builders, 129 Mll.App.2d 280, 264

N.E.2d 247, 250-251 (1st Dist. 1970) «0.0.0.0... 16

White v. Mortland, 71 Tl. 250 (1874) 00... eects 18

a ae

Statutes:
Ms AE RARIPT Niaccanscnasndnvncotoesansiansansnanneahhsnpasiaitia 2
SE OB ID niccenssonnchpiniannnniinaschimeinnnepninntes 2
a ie: A eh 0 IN ssessnnicerinanernecctnrvasscncenenstncens 2

Federal Rules of Civil Procedure:
TU > II sn ssa scnnea hen nendadensonenbamnesbs 3,22
Seventh Circuit Rules:

ET TTR 4,22

Illinois Supreme Court Rules:

Ill.Rev.Stat. Ch. 110A, Sec. 20 (Effective August 1,
1992), Supreme Court Rule 20).........scssesssscrsssoccesee 4,22

No.
IN THE \

Supreme Court of the United States

APRIL TERM, 1993

JoHN Dog, a minor, by father, Jay Dog; and
ALExis Dog, a minor, by father, Davip Dog; and
Jay Dog, Cinpy Dog, Davin Dog and Linpa Doe,

Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.

Petition for Writ of Certiorari to the
United States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

TO: The Honorable, The Chief Justice and Associate Justices of the
Supreme Court of the United States

John Doe, a minor, by father, Jay Doe; and Alexis Doe, a minor,
by father David Doe; and Jay Doe, Cindy Doe, David Doe and Linda
Doe petition this Court for a Wnit of Certiorari to the United States
Court of Appeals for the Seventh Circuit.

OPINIONS BELOW

The Opinion of the Court of Appeals (App. A) is reported at 976
F.2d 1071.

The Opinion of Court of Appeals denying the Petition for
Rehearing and Petition for Rehearing In Banc (App. B) is unre-
ported.

ar. fee

The Opinion of the United District Court, Southern District of
Illinois (App. C) is unreported.
JURISDICTION

The United States Court of Appeals for the Seventh Circuit
denied petitioners’ Petition for Rehearing on January 21, 1993 This
Petition is filed accordingly within the time allowed by law. The
jurisdiction of this Court is invoked under 28 USCA 1254(1).

STATUTORY PROVISIONS INVOLVED
28 U.S.C. § 1291 - Final decisions of district courts
The courts of appeals (other than the United States Court of

Appeals for the Federal Circuit) shall have jurisdiction of
appeals from all final decisions of the district courts of the
United States, the United States District Court for the District
of the Canal Zone, the District Court of Guam, and the District
Court of the Virgin Islands, except where a direct review may
be had in the Supreme Court. The jurisdiction of the United
States Court of Appeals for the Federal Circuit shall be limited
to the jurisdiction described in sections 1292(c) and (d) and
1295 of this title.

28 U.S.C. § 1346 (b) - United States as defendant

(b) Subject to the provisions of chapter 171 of this title, the
district court, together with the United States District Court for
the District of the Canal Zone and the District Court of the
Virgin Islands, shall have exclusive jurisdiction of civil actions
or claims against the United States, for money damages,
accruing on and after January 1, 1945, for injury or loss of
property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.

28 U.S.C. § 2671 et seq. - Definitions

As used in this chapter and sections (1346(b) and 2401(b)
of this title, the term —

—

“Federal agency” includes the executive departments and
independent establishment of the United States, and corpora-
tions primarily acting as, instrumentalities or agencies of the
United States but does not include any contractor with the
United States.

“Employee of the government” includes officers or em-
ployees of any federal agency, members of the military or
naval forces of the United States, and persons acting on behalf
of a federal agency in an official capacity, temporarily or
permanently in the services of the United States, whether with
or without compensation.

“Acting within the scope of his office or employment”, in
the case of a member or naval forces of the United States,
means acting in line of duty. June 25, 1948, c. 646, 62 Stat. 982;
May 24, 1949, c. 139 § 124, 63 Stat. 106.

Federal Rules of Civil Procedure
Fed.R.Civ.P. 52(a) — Findings by the Court; Judgment on
Partial Findings

(a) Effect. In all actions tried upon the facts without a jury
or with an advisory jury, the court shall find the facts specially
and state separately its conclusions of law thereon, and judg-
ment shall be entered pursuant to Rule 58; and in granting or
refusing interlocutory injunctions the court shall similarly set
forth the findings of fact and conclusions of law which
constitute the grounds of its action. Requests for findings are
not necessary for purposes of review. Findings of fact, whether
based on oral or documentary evidence, shall not be set aside
unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the credibility of the
witnesses. The findings of a master, to the extent that the court
adopts them, shall be considered as the findings of the court. It
will be sufficient if the findings of fact and conclusions of law
are stated orally and recorded in open court following the close
of evidence or appear in an opinion or memorandum of
decision filed by the court. Findings of fact and conciusions of

law are unnecessary on decisions of motions under Rule 12 or
56 or any other motion except as provided in subdivision (c) of
this rule.
Seventh Circuit Ruies

7th Circuit Rule 52 — Certification of Questions of State
Law

When the rules of the highest court of a state provide for
certification to that court by a federal court of questions arising
under the laws of that state which will control the outcome of
a case pending in the federal court, this court, sua sponte or on
motion of a party, may certify such a question to the state court
in accordance with the rules of that court, and may stay the case
in this court to await the state court’s decision of the question
certified. The certification will be made after the briefs are filed
in this court. A motion for certification shall be included in the
moving party’s brief.

Illinois Supreme Court Rules:

lil.Rev. Stat. Ch. 110A, Sec. 20 (Effective August 1, 1992),
Supreme Court Rule 20 -
Certification of Questions of State Law from Certain
Federal Courts

Text of Rule Effective August 1, 1992

(a) Certification. When it shall appear to the Supreme Court
of the United States, or to the United States Court of Appeals
for the Seventh Circuit, that there are involved in any proceed-
ing before it questions as to the law of this State, which may be
determinative of the said cause, and there are no controlling
precedents in the decisions of this court, such court may certify
such questions of the laws of this State to this court for
instructions conceming such questions of State law, which
certificate this court, by written opinion, may answer.

(b) Contents of Certification Order. A certification order
shall contain:

(1) the questions of law to be answered; and

a, yee

2) a statement of all facts relevant to the questions
certified and showing fully the nature of the controversy
in which the questions arose.

(c) Records Before Certifying Court. This Court may
require the original or copies of all or any portion of the record
before the certifying court to be filed with it, if, in the opinion
of this court, the record or a portion thereof may be necessary
in answering the questions.

(d) Briefs and Argument. Proceedings in this court shall be
those provided in these rules governing briefs and orai argu-
ments, except that the time for filing briefs specified in Rule
343 begins to run from the day this court agrees to answer the
certified question of law, and the parties retain the same
designation as they have in the certifying court.

(e) Costs of certification. Fees and costs shall be the same as
in civil appeals docketed before this court and shall be equally
divided between the parties unless otherwise ordered by the
certifying court.

Amended April 1, 1992, eff. Aug. 1, 1992.
STATEMENT OF THE CASE

The piaintiffs in this case are Alexis Doe and her parents, David
and Linda Doe, and John Doe with his parents, Jay and Cindy Doe.
Alexis and John Doe were two three-year old children, unrelated,
who the trial court found had been sexually abused at Scott Air Force
Base Day Care Center. The trial judge for the Southern District of
Illinois (The Honorable William Beatty, Jr.) found the government
liable under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§
1346(B), 2671 et seq. in the amount of $25,000 per child and
dismissed the parents’ claims other than for medical expenses.

On September 25, 1984, Alexis Doe was approximately three
years old, one month. (Tr. 32). Her mother, Linda Doe, dropped
Alexis off at the Scott Air Force Base day care center at 8:15 a.m. (Tr. 33)
and retumed to pick her up sometime between 3:15 and 3:30. (Tr.39).

While driving Alexis home from the center, Linda asked her
daughter if she had made friends during the day and if she would like

a” oe

to go back again. Alexis said she had made friends but she did not
want to go back. (Tr. 42). A very nice teacher had put water on her
“gina” because a purple man had poked it with a “scrape” and made
it hurt. (Tr. 43). In response to her mother’s questions about this
incident, Alexis said that “the man had said he was sorry he hurt her,
and that he had pulled his pants up and down, and then the mommy
teacher had opened up her blouse and the man had peed on her
titties.” (Tr. 43) Alexis then told her mother that she had called and
called her and that her mother wouldn’t come. (Tr. 43). Up until this
point Alexis had related her story in a matter of fact manner (Tr. 96),
but she became angry and upset when she told her mother that she
had called for her mother but her mother never came. (Tr. 111).
Upon arriving at the Doe family home, Linda removed her
daughter’s clothes and looked for evidence of abuse in Alexis’s
vaginal area. She found none. (Tr. 44). Linda Doe then called her
husband, a pediatrician at Scott Air Force Base. He recommended
that Alexis be brought immediately to the base hospital to be
examined by the chief pediatrician, Dr. Dicheson. (Tr. 44). He gave
Alexis a genital exam. (Tr. 188). No standard rape protocol (Tr. 45)
or tests for sperm were conducted during this exam. (Tr. 206). Alexis
told Dr. Dicheson that she was in a room with a man and a woman
and that the man took his penis out of his pants. (Tr. 188). Dr.
Dicheson found no physical evidence of sexual abuse (Tr. 191). He
found that enough evidence was present of sexual abuse that a
psychological examination of Alexis was warranted. (Tr. 217).
Linda Doe bought her daughter a sandwich to eat after her
daughter had been examined by Dr. Dicheson. Eating the sandwich
triggered another memory for Alexis. Alexis then told her mother
that earlier “the purple man had put his penis in her mouth and peed
in her mouth and made her throw up her sandwich.” (Tr. 55). The
evening of the 25th, when Linda Doe, an R.N. (Tr.32), was giving
her daughter a bath she found a needle mark on her daughter’s big
toe. When she asked Alexis about the mark Alexis said that the
people had given her a shot in her toe because she was screaming and
crying and making too much noise. The people told Alexis that if she
kept making noise they would give her another shot. (Tr. 56). Prior

ee, ed

to this incident Alexis had never made any complaints of this nature.
(Tr. 81) Her father stated that everybody was in shock by the
information coming out of a little girl who had only learned to speak
Clearly six months prior to the incident. (Tr. 245).

The Does went to the police station on the base and an exhanistive
investigation ensued.

The Air Force’s Office of Special Investigation called in the
Illinois Department of Children and Family Services (DCFS) to
assist in their investigation. The OSI assigned the DCFS the task of
interviewing the children (Tr. 815), which was done through the
Rape and Crisis Center at Southern Illinois University-Edwardsville.
Later that same day Alexis was interviewed there by Pam Klein, a
sexual abuse counselor. Pam Klein is a counselor and therapist with
twelve years experience (Tr.386) who specializes in physically and
sexually abused children. She has a B.A. in psychology and an M.A. in
counseling education. (Tr. 385). During this interview, Pam Klein said she,

“asked her [Alexis] if these dolls could help her show us what

happened to her, and she undressed the dolls and took the lit-

tle— the penis which is tiny on the doll, and worked for a very

long time to try to get it into the vagina of the doll, and she was

totally self-absorbed in that activity to the point where she —

you know, it was almost like we weren’teven there.” (Tr. 405).
On the basis of Alexis’s treatment at the center (about fifteen
treatment sessions), Pam Klein believed that, “Alexis was sexually
abused, that she had experienced oral copulation [sic],and that she
had a penis around her vaginal area, and that she experienced
visually seeing two adults having intercourse to the point where she
could describe the penis going into the vagina.” (Tr. 420). Ms. Klein
arrived at this conclusion because, Alexis’s “emotional status was
consistent with the children who disclosed these kinds of things, and
her consistency of statement throughout.” (Tr. 420).

Ms. Klein stated that children who are sexually abused tend to
develop post-traumatic stress disorder and traumatogenic stigmati-
zation. (Tr. 429). This may result in the child developing distressful
or phobic behaviors around sexual issues.

Ms. Klein explained that, “such a child may ... become
fascinated by sexual things and begin to manifest an overt kind
of morbid curiosity about sexual things, and at the same time
become very phobic around any sexualized behavior seeing it
as fearful because they have been given a message that sex is
something that is hurtful....They also feel a stigmatization
about being abused in that they know that they are different. ....
In addition to that there is an incorporated sense of betrayal in
that the people that you look to for trust and care as achild were
not trustworthy and they hurt you....” (Tr. 430).
Ms. Klein said that the behavior Alexis was exhibiting was consistent
with that of a child who had been sexually abused. (Tr. 431) Ms. Klein
stated that since Alexis was still exhibiting this kind of behavior, Alexis
would benefit from further therapy. (Tr. 432).

On November 18, Dr. Gerwell interviewed Alexis Doe. (Tr. 929).
Dr. Gerwell is a Major in the Air Force and a clinical psychologist
with a Ph.D. in adult clinical and child school psychology. At some
point Linda Doe was asked to enter the room in order to provide
reassurance for her daughter. (Tr. 950). Alexis re-enacted and
described having a penis placed in her mouth and becoming ill and
vomiting. (Tr. 931).

In the months which followed September 25th, although her
initial story remained consistent, Alexis revealed the following
details of the incident. The people had squashed her in between them
and the man had rubbed his penis on her stomach. The man had
touched the lady’s titties and the mommy teacher had done “ballet”
on the purple man. The lady had said that when she got to be a woman
or grown up Alexis could do “ballet” on the man as well. (Tr. 67).
As far as Linda Doe knew, Alexis had never seen in person or in film
adults having sexual relations. (Tr. 66).

Immediately following September 25, Alexis was “very de-
pressed, very quiet, withdrawn, and despondent.” (Tr. 75). For
several months Alexis would masturbate on her bed with two dolls.
(Tr.76). “She would rub her vagina where the dolls’ vagina would
be, and there was always three of them.” (Tr. 76). Although she no

longer participates in these sessions, Alexis still acts out intercourse
with her dolls, Barbie and Ken. (Tr. 77). Unlike the other children
in the family, Alexis is very uncomfortable with displays of affec-
tion between her parents. She becomes anxious and an gry when her
parents kiss hello or goodbye. (Tr. 232-3) Alexis tells her parents that
such behavior is nasty and dirty. (Tr. 77). David Doe said that Alexis is
“deathly afraid of anyone vomiting.” (Tr. 233-234). She is intrigued and
interested by sexual innuendo on the television. (Tr. 79).

On October 19, 1984, after reading an account in the base
newspaper of the allegations of sexual abuse occurring at the Air
Force day care center, Cindy Doe decided to question her son, John
Doe, about whether he had ever been touched or ever had anything
bad happen to him. (Tr. 356). He said a man anda lady had touched
him and pointed to his penis and to his bottom. (Tr. 356). At this time
John Doe was three years old. (Tr. 269). He became very angry and
uncomfortable while he told his mother this story. (Tr. 357).

On October 30, 1984, John Doe’s parents contacted Scott Air
Force Base’s commander (Tr. 360), and an investigation ensued.
The Does took John to the Rape Crisis Center in Edwardsville for
an interview upon the advice of the Air Force (Tr. 363,364). In this
interview, John disclosed that a finger had been inserted into his
rectum as well as having been touched on his penis and his bottom.
(Tr. 270). He was anxious, nervous, and distracted while talking
about events that happened at the day care center. (Tr. 277). He
revealed that the “bad people” had threatened him if he ever told
anyone what had happened to him. (Tr. 512). He continued therapy
weekly at the Crisis Center until April 1985. (Tr. 371-2).

Since October, John developed a pattern of play that was angry
and violent. (Tr. 373). He became obsessed with swords, guns,
sharks, snakes, knives and other similar objects. (Tr. 374). He
watches violent shows on television and becomes an gry easily. (Tr.
507). He has difficulty getting along with other children. (Tr. 507 ).
Since October 19, 1984, he has experienced night terrors regularly.
The night terrors were somewhat like nightmares but the parents
were unable to wake John up for 20 minutes to a half hour and were

a

accompanied by uncontrollable crying. (Tr. 376,505). At first the
night terrors occurred about once a week, and then subsided
gradually, with frequent recurrences until 1989. (Tr. 377). John
atten? ° therapy sessions for the night terrors for about two and a
half years. (Tr. 505).

The security at the Scott Air Force Base Day Care Center was
negligible in 1984. Outside doors leading to all the rooms at the
center were unlocked. (Tr. 259). No alarm system for these outer
doors was in place. The grounds of the day care center were
unfenced except for the playground, which had many gates which
were kept unlocked. (Tr. 261). At one time an unfamiliar bearded
man was seen entering the building by one of the employees. (Tr.
1002) He told the employee that he wanted to take one of the children
shopping. The man had to be escorted away and was eventually
barred from entering the base. (Tr. 1003). A binder kept at the
entrance of the center had the names of the children and how long
they would stay recorded in it. The binder was often left unattended
where anyone could read it, and the parents were notalways required
to sign their children out. (Tr. 588) Criminal background or general
background checks were not done on the day care center employees
(other than the director). (Tr. 262). A janitor who worked at the
center had a public record of child abuse and admitted to abusing
three or more children at the day care center since his employment
had begun and to molesting many other children in the community
at large before his employment. (Tr. 222) The director was unaware
of this criminal record until the investigation of the Doe families’
allegations. Cox stated that the Air Force in general, and Scott Air
Force Base in particular had no specific guidelines for security
measures or regulations dealing with identification or reporting of
child abuse. (Tr. 638-40).

Following the verdict for plaintiffs on October 10, 1990, all
parties appealed. The trial court was affirmed by the United States
Court of Appeals for the Seventh Circuit on October 1, 1992, 976
F.2d 1071, and plaintiffs’ Petition for Rehearing and Rehearing /n
Banc was denied on January 21, 1993.

=a?

REASONS FOR GRANTING THE PETITION

The sexual abuse of children and its effect on the child and the
child’s parents is a subject that was taboo in this society until recent
revelation of its widespread occurrence and effect. This case pre-
sents to the Court an opportunity to address these issues of national
impact and set standards for the burgeoning area of trauma and its
accompanying litigation. The trial court and the Appellate Court
decisions should be reviewed by this Court because they result in (1)
a substantial change in the law of evidence requiring insurmount-
able obstacles to recovery by those traumatized by sexual abuse; (2)
acomplete denial of recovery to parents by these courts because they
incorrectly interpret the viability of the tort of seduction in Illinois,
and by inference, in the remainder of this country; and (3) the award
in this case should be reviewed by this Court as it is so low as to be
shocking to the conscience.

1. THE EFFECT OF THE APPELLATE COURT DECI-
SION IS TO REQUIRE EXPERT OPINIONS IN EVERY
CASE OF SEXUAL ABUSE TO PROVE A CAUSAL LINK
BETWEEN THE CHILD’S ABNORMAL BEHAVIOR
FOLLOWING ABUSE AND TO ESTABLISH FUTURE
DAMAGES. IT ALSO CONCLUDES THAT SUCH TES-
TIMONY MUST BE ABSOLUTE AND DEFINITE. FI-
NALLY, THE DECISION IS INCORRECT INITS STATE-
MENT THAT THERE WAS NO EVIDENCE INCLUD-
ING CIRCUMSTANTIAL TO SUPPORT AN AWARD
FOR FUTURE TRAUMA.

Both the Court of Appeals (decision at 30) and the trial court seem
to be searching for an expert witness who will tell them unequivo-
cally that the behavior of these children is definitely caused by their
sexual assault and is not affected by any other event in their lives
before allowing these children to recover substantial damages. The
law does not require such precision; the Courts are not entitled to
such relief from decision making.

Judges and juries have been assessing damages for physical and
emotional pain and suffering since the beginning of our legal system

12

without more evidence than that provided by the victims them-
selves.

The evidence provided by the parents and the other witnesses in
this case as to the children’s behavior before the sexual molestation
and following should leave little doubt in this Court’s mind as to
causation. Hoping that “... in the future, experts will develop new
methods for assessing damages...” is merely an excuse for refusing
to accept the responsibility of being fact finders and damage
assessors which judges and juries have been required to accept since
the beginning of our judicial system. Yes, itis difficult, but hopefully
this Court will not allow trial courts to avoid their responsibility
because it is difficult or imprecise to decide. Fact finders are
permitted to draw inferences based upon their own observation and
experience in the ordinary affairs of life. The fact finder may base
its verdict upon a preponderance of all the evidence not merely that
supplied by expert testimony. Scholle vs. Continental National
AmericanGroup, 44 Ill. App.3d7 16, 358 N.E. 2d 893, 3 Ill. Dec. 350,
355 (2d Dist. 1977). Pain and suffering, physical or emotional, has
never been exactly quantifiable. It may never be. These children
cannot wait for the court to someday receive a magic yardstick to
measure their hurt. Nothing is different regarding assessing their .
pain and suffering from sexual assault as opposed to the pain and
suffering from physical injury except the source. Speculation has its
place in estimating damages and doubt should be resolved against
the wrongdoer. Olympia Equipment Leasing vs. Western Union
Telegraph, 797 F.2d 370, 383 (7th Cir. 1986).

EXPERT TESTIMONY IS NOT NECESSARY TO
ESTABLISH A PLAINTIFF’S RIGHT TO DAMAGES
FOR EMOTIONAL PAIN AND SUFFERING; DAM-
AGES FOR PERMANENT INJURIES; OR AN
AWARD FOR FUTURE DAMAGES.

EXPERT TESTIMONY IS NOT REQUIRED TO
PROVE MEDICAL DAMAGES.

Both the trial court and the Court of Appeals’ decisions require

expert testimony to prove damages in this case. It has never been

ee

required and this Court should review this case to prevent this
substantial change in the law of evidence.

A plaintiff or other lay witness may testify as to his own opinion
as to the source and severity of the plaintiff's injuries and the plainuff
need not produce a physician to prove the injuries. Turner vs. City
of Chicago, 95 Ill. App. 2d 38, 238 N.E. 2d. 100, 101-102 (1st Dist.
1968). These children through their parent’s testimony have pro-
vided adequate proof of their injury and its source. None of their
symptoms were present until immediately after the sexual molesta-
tion. There is no evidence of any other cause. Evidence of good
health prior to an accident and illness and poor health immediately
following it is sufficient evidence from which a fact finder may
legitimately conclude that the condition of ill being was caused by
the accident. The injured party is not required to disprove every
alternative hypothesis suggesting a cause other than the Defendant’s
negligence in order to recover damages. Vilardo vs. Public Taa Service,
Inc., 118 I. App.2d 62, 254 N.E.2d 653, 654 (1st Dist. 1969).

The extent of intangible harm may be established solely by the
testimony of the Plaintiff or someone who has had the opportunity
to observe the Plaintiff for a considerable period of time as the
parents did in this case. Crumble vs. Blumenthal, 549 F.2d 462, 467
(7th Cir. 1977).

Emotional damages may be inferred from the circumstances of a
particular case. Phillips vs. Hunter Trails Community Association,
685 F.2d 184, 190 (7th Cir. 1982). No more should be required than
is possible.

REQUIRING AN EXPERT WITNESS TO STATE
WITH LEGAL EXACTITUDE THE CAUSE OF
PLAINTIFFS’ INJURIES IS ERROR. AN OPINION
THAT THE DEFENDANT?’S NEGLIGENCE MIGHT
OR COULD HAVE CAUSED THE SYMPTOMS DIS-
PLAYED IS SUFFICIENT TO SUPPORT A VER-
DICT IN THE PLAINTIFFS’ FAVOR

All of the expert witnesses who tesufied including Dr. Gerwell,
consistently testified that the emotional trauma displayed by the

14

children might or could have been caused by their sexual molesta-
tion and might or could continue in the future.

Anexpert in a non-legal field is not required to use any particular
legal talismanic incantation to present his testimony. The use of the
terms “possible” and “might” are satisfactory when giving opinions
on medical causation or medical permanency, and testimony that a
certain occurrence might or could have caused Plaintiff's
symptomology or that an injury might or could cause damages in the
future or permanently is not speculative. The fact finder may
reasonably infer from such testimony that the children’s problems
were caused by the sexual molestation and would continue to cause
them problems in the future. Robinson vs. Chicago Transit Author-
ity, 69 DL.App.3d 1003, 388 N.E.2d 163, 26 Ill.Dec. 539, 543 (1st
Dist. 1979). It is for the fact finder to weigh the evidence and base
his decision upon it. There are no grounds to disregard it. Placher vs.
Streepy, 19 Ill. App.2d 183, 153 N.E.2d 369, 372 (2d Dist. 1958).
“When a doctor is asked to base his opinion on a reasonable degree
of medical certainty, the certainty referred to is not that some
condition in the future is certain to exist or not exist, rather the
reasonable certainty refers to the general consensus of recognized
medical thought and opinion concerning the probabilities of the
condition in the future based on present conditions.” Redmon vs.
Sooter, | T.App.3d 406, 274 N.E.2d 200, 204 (3d Dist. 1971).

A PARTY RELYING UPON CIRCUMSTANTIAL EVI-
DENCETO PROVE DAMAGES IN A CIVIL CASE NEED
NOT NEGATE EVERY OTHER POSSIBLE CAUSE FOR
THE DAMAGE TO RECOVER FOR THOSE DAMAGES.

THEEVIDENCE IS THAT THESEXUAL ATTACKS
ON THESE CHILDREN MIGHT OR COULD HAVE
CAUSED THEIR EMOTIONAL DAMAGE WHICH
MIGHT OR COULD CONTINUE INTO THE FU-
TURE

The testimony of the parents and all treating or examining
witnesses in this case testified consistently, except that the Air Force

witness, Dr. Gerwell, made the unsupported conclusion that there
would be no future damages to these children. The Courts below
stated that no witnesses except the parents and Pam Klein are
unqualified in their testimony. They need not be. The Plaintiffs’, or
as here, Plainuffs’ parents’, testimony, standing alone without
medical testimony as to the children’s pain is sufficient without
more to make a prima facie showing of damages. While the burden
of proof always stays with the Plaintiffs’ orce a prima facie case is
established, the burden of going forward with the evidence to show
that Plainuffs were either not injured or not injured to the extent
Claimed shifts to the defendant. Turner vs. City of Chicago, 95
Il]. App.2d 38, 238% N.E. 2d. 100, 101-102 (1st Dist. 196%).

Itis the government, not the Plaintiffs, who has failed in its burden
to discredit Plainuffs’ prima facie case on the question of damages.
Dr. Gerwell says other unspecified things may have caused the
children’s symptoms, but there is no evidence of any other cause.
The trial court said it“... can think of all kinds of things that would
cause...”” these symptoms in these children but he may not so
speculate. There is no evidentiary basis for him to do so. The
appellate court and the trial court found Plaintiffs’ evidence to be
less than 100% positive. That is true but it is the only evidence and
the only testimony in this case as to the cause of these children’s
behavior. It is uncontradicted. Unless it is inherently unbelievable,
uncontradicted testimony is not to be disregarded. Cosmopolitan
Bank vs. County of Cook, 103 Ml.2d 302, 469 N.E.2d 183, 82 Il. Dec.
6A9, 655 (1984). It is the trial court and the appellate court which
speculate, not the plaintiffs.

There is no evidence in this case that these children’s trauma was
caused by anything other than their sexual molestation. Dr. Gerwell’s
theorizing and Judge Beatty’s imagination notwithstanding, there is
no such evidence.

a,

WHAT IS THE CORRECT DEFINITION OF CIR-
CUMSTANTIAL EVIDENCE?

DIRECT AND CIRCUMSTANTIAL EVIDENCE
SUPPORTS PLAINTIFFS’ CASE FOR DAMAGES
PAST, PRESENT AND FUTURE
This appellate court and the trial court held there was noevidence
in this case, direct or circumstantial, of causation connecting the
behavior of the children to their sexual molestation nor to support an
award for future damages.

Circumstantial evidence is proof of facts or circumstances which
give rise to a reasonable inference of the truth of the facts sought to
be proved. Walsh vs. Dream Builders, 129 Ill.App. 2d 280, 264
N.E.2d 247, 250-251 (1st Dist. 1970). It is the duty of the trier of fact
to make these inferences, not an expert witness.

Circumstantial evidence is sufficient, either alone or in combina-
tion with direct evidence, to prove any element of a case and may
even contradict and overcome direct and positive testimony. The
only limitation is that the inference drawn must be reasonable. There
is also no requirement that the circumstances to justify the infer-
ences sought, negative every other possible conclusion. “The law is
not so exacting that it requires proof of...causation by testimony so
clear that it excludes every other speculative theory.” Musgrave vs.
Union Carbide Corporation, 493 F.2d 224, 228 (7th Cir. 1974).

Medical causation may also be proved in whole or in part by
circumstantial evidence. Scholle vs. Continental National American
Group, 44 IlLApp.3d 716, 358 N.E.2d 893, 3 ILDec. 350, 355 (2d Dist.
1977). Evidence that future damages are reasonably certain tooccurmay
also be inferred simply from the nature of the injury or disability. Burnea
vs. Caho,7 Ill.App.3d 266, 285 N.E.2d 619, 627 (3d Dist. 1972).

The evidence in this case is that the complained of behavior
patterns of both children did not begin until shortly after their sexual
molestation. There is no evidence of any other cause. Every profes-
sional witness states that the sexual molestation might or could have
caused the behaviors. The parents, one of whom was a pediatrician,
said that this was the only cause. The trial court not only could have

| en

inferred from these circumstances, he had to infer from these
circumstances a causal connection between the sexual abuse and the
behaviors because Plaintiffs established a prima facie case and
shifted the burden of going forward with the evidence to the
government. The government was unable to introduce any evi-
dence, direct or circumstantial, to account for the behaviors and the
cause and effect relationship is not inherently improbable. Weight
of evidence is not a consideration at this point as the only evidence
presented is Plaintiffs’. Where there is only evidence on one side of
the scale there is nothing to compare it with.

“Where, as here, there exists limited medical knowledge of a
malady, we have recognized that medical testimony pertaining to
causation may not be unqualified and unequivocal (citations omit-
ted) “proof of the state of health of the [Plaintiff] prior to and down
to the time of the injury, and the change immediately following the
injury and continuing thereafter, is competentas tending toestablish
that the impaired condition was due to the injury.”” National Casting
Division Midland-Ross vs. Industrial Commission, 55 11.2d 198,
204 (1973). The trial court and the Appellate Court are in error.

2. THE TORT OF SEDUCTION IS STILL A VIABLE
CAUSE OF ACTION IN THE STATE OF ILLINOIS.

Plainuffs, the parents of the minor plaintiffs, seek to recover for
the emotional and psychological trauma they have suffered due to
the sexual molestation of their minor children. Sexual molestation,
however, is a unique injury in that its principal damage is emotional
not physical. Most cases of sexual molestation are not accompanied
by physical injury to any great degree. There are cases where
extraordinary force and brutality accompany the molestation due to
the molester’s peculiar brutal deviation or because of the force
required to accomplish the molestation. These situations are the
exception rather than the rule. Therefore it is not surprising that here
the actual physical trauma to these toddlers was minimal.

The psychological trauma of the sexual molestation is the prin-
cipal trauma in most cases. It is also peculiarly psycho- traumatic to
the entire family unit since it is focused on the most private part of

=

everyone’ life and the part which holds a family together, resulting
in the formation and growth of the family. It is an intrusion on the
privacy of a family’s most intimate aspect, coloring forever the
relationships within the family unit.

The courts have recognized the unique damage to the family
caused by a sexual assault on one of its members and have allowed
parents to recover for their emotional trauma when a child is
sexually molested since the earliest days of the common law. One
of the earlier reported cases found was Bennett vs. Allcott, T.R. 166,
100 Eng. Rep. 90 (1797).

The earliest mention of the adoption of the doctrine in Illinois is
the case of Ball vs. Bruce, 2) Ill. 161 (1859). Here, the male plainuff
brought an action against the defendant for the seduction of his
minor, orphaned, sister-in-law who was under his care and in his
service. The minor became pregnant and the plaintiff alleged that he
incurred medical expenses in caring for her and lost her services for
a period of time. Baill, at 161.

The court held that a case for seduction may be maintained by a
parent or, in this case, a person standing in loco parentis for
debauching a daughter, Ball, at 161, solong as the minor is under the
control of, and may be required to perform service for the plainuff.
Evidence of acts of service need only be slight, such as making tea
and proof of service was required by the court. Ball, at 162.

Once a loss of slight service was established, the jury was entitled
to award the plaintiff damages for“. . . the wounded feeling of the
parent, the disgrace brought upon the family, and the loss of society
of the child”. Ball, at 162.

The only other case in Illinois dealing with this theory of recovery
is White vs. Murtland, 71 Ill. 250, 265 (1874), where the court, in
keeping with the development of this area of the law in other
jurisdictions, held that it was only necessary to show that the parent
or other plaintiff had the right to request service from the molested
minor to recover. No proof of actual service to the parent was to be
required henceforth for the plaintiff parent to recover the resulting

= =

damages, including the parent’s mental anguish. Neither case has
been overruled, nor limited in any subsequent decision.

The law continued to develop, however, in other jurisdictions
premised upon the same common law origin. Noice vs. Brown, 39
N.J.L. 569 (N.J.S.Ct. 1877), was an action by a widowed mother for
the sexual molestation of her minor daughter. Noice, at 570. The
court held that this offense of seduction “. . . where no special
damagesare laid, [is], obviously, strictly personal, being [aremedy],
mainly, for wounded feelings. Feeling being as much a part of the
person as the physical frame, no reason appears why an injury to the
former is not as much a tort to the person as an assault would be.

The wrong is of a two fold character, wounding the person in his
feelings, and affecting his property rights, resting, as it does, on the
technical ground that, by the injury, he lost a service of some
pecuniary value.” Noice, at 571.

In keeping with the earlier Illinois position, the court held that for
a parent to recover damages “. . . it is well settled that no proof of
service is necessary beyond that implied from the fact of the
daughter living in her father’s house as a member of his family . . .
. ““ Noice, at 572.

The courts of Arkansas have also spoken on the issue in Breining
vs. Lippincott, 187 S.W. 915 (Ark. S. Ct. 1916), which was, again,
a Suit by a widowed mother for the debauchery of her minor daughter
wherein the mother sought to recover for, and alleged, that she
suffered “*. . . great and untold humiliation . . . and [was] deprived
. .. Of the services, companionship, and society of her daughter . .
.”’ as well as her daughter’s medical bills. Breining, at 915.

The court there held that

“, .. the rule of law which only permits a parent to recover
damages for the debauchery of a minor daughter because of his
relation as master, and not that of parent is . . . “but little more
than a fiction’ and, being such, it should be and is no longer
recognized by the best of modern judicial thought as the
essential basis of a party’s action for the debauchery of a minor
child. The real and substantial basis for the recovery should be

the personal injury which the parent sustained in his capacity
as parent and not as master.” Breining, at 917.

Thus, it can be seen that the cause of action which was first based
upon the theory that the parent, as master, had lost the service of his
child/chattel/servant was, by 1916, totally replaced with a cause of
action for a parent for the emotional distress caused the parent by the
sexual molestation of his or her child without the need to show any
actual damages from loss of service.

The Supreme Court of North Dakota spoke to the issue in Dwyre
vs. Stearns, 172 N.W. 69 (1919), which was an action for the sexual
molestation of a minor daughter brought by a widowed mother
again. Here the mother sued for her loss of society and comfort of
her daughter, the shame, humiliation, and disgrace occasioned to
her, as well as her experienced loss of services. Dwyre, at 69-70.
Here also, for the first time, no pregnancy occurred and the legal
fiction that loss of service is required is abandoned forever. Dwyre,
at 71. The court held that ““ the thought that the wrong perpetrated
by the seduction of the daughter must be measured by the actual loss
of services sustained by a parent, and must so be compensated,
shocks the finer sense of humanity and morality. We do not hesitate
to announce and adopt the rule of damages generally stated, namely,
that when the technical basis of actual or constructive loss of services
has once been established, damages may be recovered from all that
the parent may suffer by the ruination of the daughter, and the
disgrace to the family . . . this includes not only loss of services but
also the dishonor and mental suffering brought upon the household
.... Dwyre, at 71.

Berghammer vs. Mayer, 207 N.W. 289 (W.I.S. Ct. 1926), was an
action by a parent for the seduction of his minor daughter where the
trial court limited the parent to actual pecuniary loss. No evidence
was introduced for medical expenses, though there was evidence
that the child was unemployed for a period of ime due to pregnancy
and thereby lost wages. The trial court limited the jury to these
elements of damage, holding that damages which result from the
parent’s shame, humiliation, disgrace, etc., are to only be recovered

SESE a

21

as punitive damages. The Supreme Court of Wisconsin disagreed
and held that the damages for wounded feelings and affections, the
parent's sense of shame, humiliation and disgrace for the wrong
done him or her in his or her social and family relation and the stain
and dishonor brought on the family are all reasonable as compensa-
tory damages. Berghammer, at 290.

The court also held that damages may be recovered for the
wounded honor of the family and on account of the anxiety of the
parent for his or her other children. Berghammer, at 291.

Stone vs. Bang, 122 S. 95 (Miss. Ct. 1929) is based upon statute.
The statute in question, however, was merely a re-statement of the
common law. Here, too, the court held that a parent could recover
for his or her mental anguish caused by the sexual molestation of his
or her child. Stone, at 97.

Collins vs. Hoskins, 306 Ky. 391,208 S.W. 2d 70(C.A. 1948) is
the most recent case plaintiffs could find on the subject. Here a father
sued for damages for the seduction of his minor daughter, and the
plaintiff was allowed to recover under the common law theory.

“ “A perusal of the books shows how difficult it is for the
judicial mind to emancipate itself from forms sanctioned by
age and long experience. But courts cannot stand still, and
observe society in the march of improvement toward higher
development of morals, and a more refined appreciation of its
varied relations. Jurisprudence must expand its principles, and
their applications, so to keep in harmony with the necessities
of advancing society .. . The true relation to parent and child,
is that of protection, nurture and education, on the one side, and
dependence, filial affection and obedience on the other... The
family is the oldest institution among men; out of the aggrega-
tion of these lesser communities, the state and the nation is
made up; whatever tarnishes the purity and honor of . . . [its]
members, whilst entailing disgrace and suffering upon the
family, also in its effects is a public wrong. That system of
jurisprudence which punishes in damages the slightest aggres-
sion upon property, but denies redress to the . . . [parents] for

to
to

the defilement of an infant. . . is at variance with the sentiments
and conscience of this age.’ ” Stone vs. Bang, at 96-97, citing
Ellington vs Ellington, 47 Miss. 329.

The sexual molestation of a minor daughter of child-bearing age
is a horrible, mind-numbing injury to a family. How much more
horrible is that trauma when the child is only three? What difference
that the child is male or female?

“The law is surely not so impotent in its power to protect the weak
and inexperienced against the wicked and depraved, as not to punish
such wrongs by inflicting damages, commensurate to the injury.”
Ball, at 163.

THE UNITED STATES COURT OF APPEALS
SHOULD HAVE DEFERRED TO THE ILLINOIS SU-
PREME COURT ON THE QUESTION OF THE VIABIL-
ITY OF THE TORT OF SEDUCTION AND REFERRED
THE QUESTION TO THE ILLINOIS SUPREME COURT
FOR THEIR DECISION PURSUANT TO COURT OF
APPEALS RULE 52 AND ILLINOIS SUPREME COURT
RULE 20.

While this cause was pending, after argument but before decision,
7th Circuit Rule 52 was adopted providing for certification of state
law questions which will control the outcome of a pending case, sua
sponte or on motion of a party, to the state court.

The Illinois Supreme Court adopted Supreme Court Rule 20,
Chapter 110A, Sec. 20, Ill.Rev.Stat., effective August 1, 1992,
which provides for certification of a question of Illinois state law
pending before the Court of Appeals which may be determinative
of a cause to the Dlinois Supreme Court where there are no
controlling precedents in the decisions of the Illinois Supreme
Court. The continued validity of the tort of seduction in Illinois is
such an issue.

The Appellate Court should have allowed the Illinois Supreme
Court the opportunity to reexamine the tort based upon the later
cases cited which move the cause of action to one for the parent's
emotional trauma resulting from the injury to their child.

~ oo

The decision as to whether or not to continue this cause of action,
its development and its basis are uniquely public policy issues that,
given their importance to the people of Illinois and the frequency of
child abuse now known, more properly should be decided by the
Illinois Supreme Court.

Finally, the Court of Appeals’ analysis of the plaintiffs’ case
resting upon the tort of seduction as an intentional tort rather than
under the theory that the government negligently allowed it to occur is
contrary toits prior holding in the first appeal in this cause, Doe v United
States, 838 F.2d 220 (7th Cir. 1988), and this Court’s opinion in
Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449 (1988).

3. $25,000.00 IS SHAMEFULLY INADEQUATE FOR
THE CRIME THE GOVERNMENT ALLOWED TO OC-
CUR

If the humiliation one suffers from being denied the right to
purchase a $675,000.00 home because of his race is worth $ 10,000.00
[Phillips at 191], the rape of a three year old child is certainly worth
more than $25,000.00. The fact that the blatant inadequacy of this
award does not sheck the conscience of the Appellate Court shocks
these Plaintiffs and their counsel. It does not require pages of
testimony and twenty-five experts to tell anyone how they would
feel if they had a loved one raped. It does not require the wisdom of
Solomon to note the devastation in these families.

The fact finder may always make inferences based upon his or her
own observations and experience in the ordinary affairs of life in
reaching a verdict including damages. Compensatory damages may
be awarded for emotional damages and there need not be medical
evidence to sustain it. Seaton vs. Sky Realty Company, Inc.
491 F.2d 634, 636-638 (7th Cir. 1974); Scholle, at 355.

THE COURT CAN AND SHOULD LOOK TO RE-
COVERIES IN OTHER CASES TO DETERMINE IF
A PARTICULAR AWARD IS ADEQUATE

The Appellate Court chose to ignore the numerous other child
sexual abuse cases where recoveries were enormously higher cited
in the appeal of this case saying that would not be proper.

24

Bollard v. Mother’ s Helper, Inc., Va., Norfolk Circuit Court,
No. L 85-2217 (Nov. 24, 1986). Two-year-old sexually abused
by sons of day care operator awarded $828,000 by jury for
psychological trauma and permanent emotional scarring.
Johnson v. State of lowa, lowa, Pottawattamie County District
Court, No. 5624 (Nov. 9, 1987). Eight former and current
students at lowa School for Deaf sued school for damages from
physical and sexual abuse. Plaintiffs suffered from post-
traumatic stress syndrome, exhibited hostility, change in sexual
identity, and depression. The parties settled for $2 million.
Spann v. Tyler Independent School District, U.S. District
Court, E.D. Tex., No. TY-6-213-CA, (March 25, 1988). Six-
year-old sexually abused by bus driver was awarded $237,000
plus attorney’s fees by the jury. Boy suffered from chronic
post-traumatic stress syndrome.
Brown v. Brown Ikershow Co., S.C. (1983) $30 million jury
verdict.
Clarke v. Boy Scouts of America, ATLA L. Rep. (April, 1981).
Jury award of $651,744.
Phillips v. Day, U.S. District Court, E.D. Va., (1988). $850,000.
It certainly did not stop the Seventh Circuit from doing so to
justify a reduction of a Plaintiff's recovery for emotional trauma
from $25,000.00 to $10,000.00 in the Phillips case cited above,
where the court reviewed all of its decisions in housing discrimina-
tion cases and cited that as its basis for decision. Phillips at 190-191.
Utilizing the same mathematics that the Appellate Court utilized
in Phillips [prior awards ranged between $500.00 and $5,000.00
Phillips at 190}. It could have as easily justified a verdict for twice
the highest amount cited by Plaintiffs, $30 million or twice the
lowest verdict cited, $237,000.00.

The record does not support the district court’s award
of such minimal damages to John and Alexis Doe.

Permanent and Future Damages—John Doe

Since John Doe informed his parents about unknown persons
fondling him at the “nursery,” (Scott Air Force Base Day Care

25

Center) he has experienced night terrors, often engages in violent
behavior and has “‘an absorption with violent themes in his play.” He
is obsessed with knives, guns, and swords and insists on carrying
them with him whenever he is not in school. (Tr. 375). He was
irritable, moody, had a low frustration tolerance, and was obsessed
with sharks for a while, watching the movie JAWS about 100 times
over a few months. Moreover, he has difficulty interacting with
other children. He had been under the care of a clinical psychologist
for two and a half years because his night terrors were becoming so
frequent that his parents became very alarmed. The sessions stopped
only after the clinical psychologist felt that the night terrors were
under control.

Clearly John Doe is a troubled child. The emotional trauma
inflicted upon John by the sexual abuse was evident from the
agitation, discomfort, and anger which accompanied his disclosures
of the event. Dr. Gerwell concluded that John had been threatened
or perhaps actually injured by the perpetrators of the abuse and that
this had intimidated John to the point where he had great difficulty
telling others about the incident. (Tr. 924). John felt so threatened by
the abusers that he became anxious and very reticent when ques-
tioned about the event months afterwards in a setting where he knew
he was safe from the abusers and where he knew it was safe to
disclose what had happened to him.

Child abuse victims often do not reveal that they have been
abused for years. John was discouraged from telling his parents
about the abuse because he had been threatened by the perpetrators
with injury if he told anyone. The amount of delay in relating the
abuse is not directly related to the extent of the trauma. (Tr.444).

Here, John’s symptoms surfaced soon after the event and are
directly related to the event. No other plausible cause for the
symptoms is in evidence.

The judge concluded that John and Alexis’s problems, “could just
as well be the result of sibling rivalry, and jealousy.” (Tr. 17). There
is no evidence to support that conclusion. The behavior John has
exhibited since the event is unusual in children.

on

“It would be one, two, three o’clock in the moming, we
would hear John crying in his room with Tony.... We would
take him downstairs because he was just screaming and crying
uncontrollably, and we would carry himdown the stairs and sit
him on the couch, and we would look right in his eyes and we
would say John and his eyes would be open and he would be
iooking rightatus and we would say John, it’s okay, wake up....
And it would take twenty to thirty minutes for him to finally
realize that he was in his home, that he was with his parents and
then he would go back to sleep. “

Testimony of John’s father. (Tr. 552).

These night terrors did not happen once or twice but frequently,
sometimes as often as weekly (Tr. 552) for a number of years. John
required two and a half years of therapy before the night terrors were
finally under control. Shortly after the event occurred John would
have conversations with his father, conversations unlike those he
had engaged in previously, (Tr. 555) which indicated that he was
seriously affected by the abuse and the threats. One day John drew
a picture of a snake and showed it to his father, Jay Doe. John told
his father, “It’s a snake.... and well, the bad people had it.” ““That’s
when he said, Dad would you kill the snake? ... He said would you
kill the bad people?” (Tr. 557) The content of John’s conversations
links his preoccupation with snakes and violence to the “bad people”
— his word for the perpetrators of the abuse. John’s brother Tony,
only a year or two his junior, does not have similar problems. The
violent behavior, the night terrors began only after the abuse
occurred, and had begun long before John’s parents were divorced.

Mr. Kinsey, John’s therapist, linked John’s behavior to the abuse
in two ways. First he listed types of behavior the psychology
profession finds commonly exhibited in child victims of sexual
abuse.

“Frequently there’s — you know, there’s a recurring theme, a
lot of fears, a lot of monsters, nightmares, afraid to go certain
places, afraid of certain types of people. .... Some of these kids
will develop aggressive behavior, some of them will develop

mak ead

very passive, withdrawn behaviors. Some of them will de-
velop an over — an overly great effort to control their lives
because they have felt that they’ ve been violated and their lives
have gotten out of control.” “I have seen kids with abuse in
their background, sexual or physical abuse, who do have quite
a fixation with monsters and big-toothed demons and animals
and things like sharks and wolves.”

Mr. Kinsey further stated that John’s night terrors, marked changes
in mood and difficulty with frustration and so forth and preoccupa-
tion with sharks and monsters were consistent with child abuse.
Secondly, it was the opinion of the clinical psychologist that John’s
night terrors were caused by the Scott Air Force Base incident.’

John’s therapy continued up until three months before trial. If
John’s difficulty in getting along with other children (including
striking them), his obsession with violence, and using guns and
knives continue, it seems evident that John will need future therapy
when he reaches an age where such behavior becomes potentially
dangerous.

Likewise, the judge’s ruling that there was no evidence of future
damages in this case and no evidence which tends to show that John

"Mr. Kinsey testified that in play therapy, the technique he used with John,
he idenufies conflicts the child is dealing with by looking for recurrent themes
in their play. Children may resolve these conflicts unconsciously through
their play. John acted outa specific scenario through his play with Mr. Kinsey
every weekly session for a period of seven to eight weeks. In this scenario,
John identified one of the people in his play as a boy, and the boy was taken
away from school by a“‘bad man.” “He would say things like the man— ‘The
man is hurting him.’” “— we have a little jail in the playroom, and the bad
man was put in jail. And after the bad man was put in jail, then he for a few
sessions was real concerned about the bad man and what would happen to
him. Would he stay in jail, would he be good now so he could be let out, and
so forth. That was a very, I think, meaningful play experience for John. ...after
he had done that particular theme play several times the nightmares began to
decrease and eventually go away. He behavior at home did become more
stabilized and he was more reasonable in terms of how he interacted with the
other members of the family and so forth.”

pn

Doe will have any need for future medical or psychological treat-
ment,” isclearly erroneous. Possible future damages are compensable
if they are reasonably certain to occur. Cummings v. Chicago
Transit Authority, 86 Ill. App.3d 914, 408 N.E.2d 737, 42 Ill. Dec.
159 (1st Dist. 1980). Itis reasonably certain that John Doe will need
future therapy for the emotional damage which took place because
of the abuse. Sexual abuse of children is not a fleeting touching
which results in no emotional scarring (Tr. 430-432, 482); its
repercussions may be pervasive and damaging even if the child has
no memory of the event itself.

Permanent and Future Damages — Alexis Doe

Alexis Doe, since being sodomized and thus induced to vomit at
the Air Force Base, has become “deathly afraid of anyone vomit-
ing.” (Tr. 233). She for a while participated in bizarre sexual
behavior with her dolls, masturbating with them by rubbing them up
against her genitals, always with two dolls and herself.” The parallel
between this behavior and her account that she had been sandwiched
in between two adults who were lovemaking is easy to draw, and
certainly more probably than not causally related to the sexual
abuse. The plaintiffs produced uncontested evidence that to her
parents’ knowledge Alexis had not been exposed on television or in
person to lovemaking. Alexis also exhibits an increased awareness
of sexual innuendo on television that is age inappropriate’, and

2 After that maybe acouple of months after that, she masturbated a lot with
her dolls on her bed, she would take all their clothes off and be like a third
person with two dolls.... She would rub her vagina where the doll’s vagina
would be, and there was always three of them....Within the last year, ...,she
didn’t get on the dolls anymore and participate, but her dolls do have
intercourse, she takes their clothes off and Barbie and Ken also have
intercourse.” testimony of Linda Doe. (Tr. 77).

3“ think she reacts very differently toward say some sexual innuendo on
television. ...it’s an intuitive kind of difference from my other children and
children I have known.... She seems more intrigued, more interested, in a
different way. There doesn’t seem to be that sense of innocence or wanting
to watch it to find out what are they doing, it’s more...more aroused.”
testimony of Linda Doe, Alexis’s mother. (Tr. 79).

at eek

becomes very uncomfortable with any displays of affection be-
tween her parents. (Tr. 232-3). Alexis believes that kissing hello and
goodbye between her parents is “nasty.’”* Clearly, Alexis has
permanently lost her childish innocence of sexual matters and has
become confused about the distinction between sex and love.

This damage is apparent at Alexis’s young age of seven, before
she has had to deal with such issues as her own adult sexuality.
Surely if the damage from the incident it making itself known now,
the likelihood of future problems when Alexis reaches puberty and
beyond is reasonably certain. Alexis’s mother admitted that al-
though she had not sought out therapy for her daughter at this point,
that she would do so if Alexis’s current behavior continues. (Tr. 80).
Mr. Doe, a pediatrician feels the same way. (Tr. 236). Part of Mrs.
Doe’s reluctance to seek therapy for Alexis is not because Alexis has
not suffered damages from the incident or that current behavior is
not disturbing but because Mrs. Doe still hopes the Alexis’s
behavior will subside on its own although no evidence shows that
this is likely. (Tr.81)

The other reason Mrs. Doe has hesitated to provide help for her
daughter is that she fears therapy will reinforce the behavior
(perhaps a mistaken belief) and because in her own words, “I want
the private parts of my life left to me, I don’t want it opened up to the
Court and whoever wants it. “ (Tr. 81).

Finally, the sexual abuse of Alexis had an impact on the family.
This impact in turn has affected the quality of Alexis’s life. How the
family reacts to the fact that Alexis has been abused determines in
some part how damaging the incident will be to her. Phil Hengen,

*"She [Alexis] becomes very emotionally distraught whenever I kiss
my wife, show any physical affection. She gets a very disgusted look on her
face, and makes a comment like oh that’s gross, and she will run out of the
room, if she can, or then she usually pouts about it for awhile afterwards,
frequently have to go in and reassure her and talk tc her.... the thing that I feel
(father is a pediatrician) is inappropriate about Alexis is the anger and anxiety
that she has about it. It’s not just, oh that’s gross, giggle, giggie, or that sort
of behavior I would consider normal.” testimony of Alexis’s father. (Tr. 232-
3).

=

a professional counselor told the Does that the, “primary effects on
Alexis from that point forward would be determined by how Linda
and I did, that if our relationship fell apart and if our relationship
became such the we became estranged from her.... that would be
much more damaging.” (Tr. 254). These are consequential damages
recoverable under Illinois law.

Alexis’s father testified that he withdrew emotionally from his
daughter immediately following the event for a period of three to
four months (Tr. 170). He withdrew so completely that he did not
observe his daughter’s behavior at all for the first three to four
months. (Tr. 230). Alexis’s parents are also overprotective of their
daughter. They have moved to Fargo, North Dakota because it had
one of the lowest crime rates in the country and they wanted to live
someplace “safe.” (Tr. 139). In addition, her parents do notallow her
or the other children to do normal activities like going trick-or-
treating (Tr. 169, 234). As a result Alexis is less mature than most
kids her age and more fearful than most of being in a place where she
is not protected. (Tr. 234).

CONCLUSION

For the foregoing reasons, the Petition for a Writ of Certiorari to
the United States Court of Appeals for the Seventh Circuit should be

granted.
Respectfully submitted,

GEORGE R. RIPPLINGER, JR.

RIPPLINGER, DIXON &
JOHNSTON

2215 West Main Street

Belleville, Illinois 62223

(618) 234-2440

Attorney for Petitioners
and Counsel of Record

April 19, 1993

APPENDIX

5B TSE SIRE

- a
———- —

APPENDIX A

IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

Nos. 90-3762, 90-3763, 90-3764, 90-3765

JOHN DOE, ET AL.,

Plaintiffs-Appellees,
Cross-Appellants,

Vv.

UNITED STATES OF AMERICA,

Defendant-Appellant,
Cross-Appellee.

Appeal from the United States District Court
for the Southern District of Illinois.
Nos. 85 C 5630, 85 C 5631 — William L. Beatty, Judge.

ARGUED DECEMBER 11, 1991 — Decipep OcTOBER 1, 1992

Before FLAUM and RIPPLE, Circuit Judges, and WILL,
Senior District Judge.*

FLAUM, Circuit Judge. The plaintiffs in these consolidated
cases, two minor children and their parents, allege that durin g the
fall of 1984 the children were sexually molested by unknown
parties while in the care of the Scott Air Force Base Day Care
Center (“Center”). The plaintiff children, although not related,
are referred toas “Alexis Doe” and “John Doe.” Accordin gtothe
plaintiffs’ theory, while the Center employees did not neces-
sarily perpetrate the abuse, they were negligent in supervising
the children, thereby allowing Alexis and John to be abused by

* The Honorable Hubert L. Will, Senior District J udge for the Northem
District of Illinois, is sitting by designation.

—— ao

an unknown person or persons. Following a bench trial, the court
entered judgment in favor of the children and awarded each child
$25,000 in damages. Jurisdiction is premised on the Federal Tort
Claims Act (FTCA), 28 U.S.C. §1346(b).

I.

We begin with an abbreviated overview of the facts. At about
8:15 a.m. on September 24, 1984, Alexis’ mother took Alexis,
then three years old, to the Center. She retrieved her daughter
shortly after 3:00 p.m., and during the car ride home Alexis told
her mother that an unidentified “purple man” had poked her
“gina”—Alexis’ word for vagina—with a “scrape.” On October
19, 1984, after reading an article in the Scott Air Force Base
newsletter discussing allegations of sexual abuse at the Center,
John’s mother asked three-year-old John whether anyone at the Center
had touched him in a “‘bad way.” John responded in the affirmative, and
said that a man had touched his penis and a woman had touched his
“‘bombosity”— John’s word for buttocks.

After unsuccessfully seeking administrative relief, the parents
of Alexis and John ultimately filed suit in district court on behalf
of themselves and their children. The complaints, premised on
the FTCA, sought damages of $8 million for medical expenses
and emotional injuries to the parents and to their children. The
district court consolidated the cases, and initially granted sum-
mary judgment to the government on the ground that the claim
asserted was one “arising out of assault [or] battery,” 28 U.S.C
§§ 1346(b), 2680(h), and therefore was not cognizable under the
FTCA. We reversed, holding that the claims arose out of a breach
of an affirmative duty to the victims even if the persons commit-
ting the alleged assaults were government employees, and re-
manded the case for trial. Doe v. United States, 838 F.2d 220, 225
(7th Cir. 1988). The district court then dismissed the parents’
claims for their own emotional injuries, but allowed them to
remain as plaintiffs to pursue recovery for their children’s
medical expenses and emotional injuries.

een

At the bench trial, the district judge permitted the parents to
testify as to the out-of-court statements their children made to
them regarding the alleged abuse. It is these statements that form
the basis of the government’s appeal. The government contends
that the children’s admittedly hearsay statements did not fall
within any exception to the general rule against admission of
hearsay, and were therefore erroneously admitted. On cross-
appeal, the plaintiffs maintain first, that the court improperly
dismissed the parental claims for emotional distress, and second,
that the damage awards are inadequate. We affirm.

Il.

Under the residual, or catchall, exceptions of the Federal
Rules of Evidence, see Fed. R. Evid. 803(24), 804(b)(5), the trial
court may admit reliable hearsay that does not fall within one of
the traditional, enumerated exceptions. These residual excep-
tions “accommodate ad hoc instances in which statements not
otherwise falling within a recognized hearsay exception might
nevertheless be sufficiently reliable to be admissible at trial.”
Idaho v. Wright, 110 S. Ct. 3139, 3147 (1990); see Advisory
Committee Note to Rule 803(24). Congress intended that the
residual exceptions be used sparingly; although trial judges are
given considerable discretion in evaluating hearsay offered
thereunder, that discretion is “tempered by the requirement that
the exception be reserved for exceptional cases.” John E.B.
Myers, Child Witness Law and Practice, § 5.37, at 205 (Supp.
1991). Despite these admonitions, the residual exception is used
with some frequency in child abuse litigation. See, e.g., United
States v. Shaw, 824 F.2d 601, 609 (8th Cir. 1987), cert. denied,
484 U.S. 1068 (1988); see also United States v. Dunn, 851 F.2d
1099, 1101 (8th Cir. 1988).

The nation’s courts are, unfortunately, awash with child
sexual abuse cases; such litigation has been given the dubious
label, “tort of the 1990s.” See Dick Dahl, Plymouth County Jury
Award May Make Child Sexual-Abuse Litigation a New Tort of

aay ee

the 1990s, 1991 Massachusetts Lawyers Weekly, Apr. 15, 1991.
The number of children sexually abused each year in the United
States has been estimated at between 60,000 and 100,000, Ann
Marie Hagen, Note, Tolling the Statute of Limitations for Adult
Survivors of Childhood Sexual Abuse, 76 lowa L. Rev. 355, 357
(1989) (citing L. Karp, Domestic Torts: Family Violence, Con-

\ flict and Sexual Abuse 154 (1989)), and even these disturbing
statistics are underinclusive because many cases go unreported.
Id. Detecting sexual abuse, and convicting its perpetrators, is
problematic because of the lack of witnesses, the difficulty of
obtaining corroborative physical evidence, and the typical reluc-
tance or inability of the victim to testify against the defendant.
Judy Yun, Note, A Comprehensive Approach to Child Hearsay
Statements in Sex Abuse Cases, 83 Colum. L. Rev. 1745, 1745
(1983). In light of these circumstances, the out-of-court state-
ments of the child victim take on exceptional significance; a
youngster’s hearsay statements in sex abuse cases often con-
stitute the only proof that a crime has occurred. /d.'

' Numerous states have attempted to address the problem by fashioning
“tender years” exceptions to the general rule against hearsay admission. See,
e.g., Fla. Stat. Ann. §90.803(23) (West 1992) (establishing hearsay exception
for statements of child victims). No such exception exists within the federal
system, however, socourts have attempted to accommodate these statements
through the use of other, existing exceptions under the Federal Rules. See
Eleanor Swift, The Hearsay Rule at Work: Has It Been Abolished De Facto
by Judicial Decision?, 76 Minn. L. Rev. 473, 498 (1992) (“[E)xpansive
readings of Rules 803(2) [excited utterance] and 803(4) [statements for
purposes of medical diagnosis or treatment}, combined with the liberal use of
the Rule 803(24) catch-all exception, create the sense that much of what a
child victim says outside of court about being sexually abused will be
admitted in federal trials.”); State v. Plant, 461 N.W.2d 253, 264 (Neb. 1990)
(upholding admission of “excited utterance” made by four-year-old child two
days after alleged incident and after police questioning); see also Joseph
Rand, Note, The Residual Exceptions to the Federal Hearsay Rule : The Futile
and Misguided Attempts to Restrain Judicial Discretion, 80 Geo. L.J. 873
(1992) (heralding as a welcome development the increasingly liberal con-
struction of residual exception).

a oe

The central issue in such cases typically is whether the
proffered hearsay possesses indicia of reliability “equivalent” to
the indicia of reliability supporting the traditional exceptions—
whether, in other words, “the circumstantial guarantees of trust-
worthiness” of the hearsay offered under the residual exception
are “ ‘equivalent’ to the guarantees that justify the specific
exceptions.” Huff v. White Motor Corp., 609 F.2d 286, 293 (7th
Cir. 1979); see Lee v. Illinois, 476 U.S. 530, 543 (1986); Ohio v.
Roberts, 448 U.S. 56, 66 (1980).2 Idaho vy. Wright, supra,
recently rejected the view that a mechanized test should be
formulated to determine whether a child’s out-of-court state-
ment is reliable, and instead adopted a “totality of the circum-
stances” approach. Significantly, the Court stated that the trial
judge may consider any evidence that sheds light on “whether
the child declarant was particularly likely to be telling the truth
when the statement was made.” 110 S. Ct. at 3150. Wright
identified several factors that trial courts may consider in evalu-
ating the reliability of a child’s hearsay statement, including
spontaneity, consistent repetition, the mental state of the child at
the time the statement was made, use of terminology unexpected
of a child of similar age, and lack of motive to fabricate. This list,
however, is “not exclusive, and courts have considerable leeway
in their consideration of appropriate factors.” Jd. The Court, at
least in the confrontation clause context, limited the relevant
circumstances to “those that surround the making of the state-
ment and that render the declarant particularly worthy of belief.”

* Courts and commentators dispute the reliability of children’s accounts of
sexual abuse. Compare, e.g., Hollida Wakefield & Ralph Underwager,
Accusations of Child Sexual Abuse 85-91(1988) (children’s allegations of
sexual abuse of limited reliability because children are not necessarily able to

“differentiate fact from fantasy) with Billie Wright Dziech & Charles B.
Schudson, On Trial: America’s Courts and Their Treatment of Sexually
Abused Children 57 (1989) (“The veracity of sexually abused children has
been analyzed by researchers, all of whom report that false accusations are
extremely rare.”).

—) oe

Id. at 3148. That is to say, “if the declarant’s truthfulness is so
clear from the surrounding circumstances that the test of cross-
examination would be of marginal utility, then the hearsay rule
does not bar admission of the statement at trial.” Jd. at 3149.

As we previously have recognized, prosecutions based on
sexual abuse allegations “place a strain on traditional notions of
procedural justice.” Nelson v. Farrey, 874 F.2d 1222, 1224 (7th
Cir. 1989), cert. denied, 493 U.S. 1042 (1990). This is especially
so in a case such as this, where the alleged abuse left no physical
traces, and where the children were extremely young when the
abuse occurred. See id. It is against this complex backdrop that
we turn to the specifics of this case.

lil.
A.

The government contends that the hearsay statements of
Alexis and John contain inadequate circumstantial guarantees of
trustworthiness to justify admission, and maintains, therefore,
that the district court abused its discretion in admitting them.
According to the government, without these hearsay statements
there is insufficient evidence upon which to base a finding of
liability. ,

At trial, the government argued that the parents should not be
permitted to testify as to their children’s out-of-court statements
because Alexis and John were not competent at the time they
made the statements, and that even if they were, the statements
were hearsay not falling within any exception to the rule against
hearsay admission. Tr. 7-8. Without explicitly ruling on the
competency issue, the district court acknowledged that the
parents’ testimony regarding the children’s accounts was hear-
say, but admitted it because given “the circumstances under
which [the parents] received the information from the children,
the way that they have told the story, I think there is credibility.”

— ,

Tr. 1054. In written findings, the district court reaffirmed its
determination of credibility, and further noted that requiring the
children to testify at trial would be psychologically harmful.
App. at 4-5, 8-12. On appeal, the government contends that only
one indicia of reliability—absence of motive to fabricate—is
present here, and that this factor, standing alone, is insufficient
to justify admission of the children’s hearsay statements.

At the outset, we recognize the obvious difficulty in at-
tempting to employ a consistent application of the residual
exception. By its very nature, the exception is subject to varying
standards regarding a statement’s trustworthiness and the neces-
sity for its use. See Ray Yasser, Strangulating Hearsay: The
Residual Exceptions to the Hearsay Rule, 11 Tex. Tech. L. Rev.
587, 597, 603-04 (1980). Consequently, some commentators
have criticized courts for expanding existing hearsay exceptions
beyond recognition, see, e.g., Yun, supra, while others have
suggested that the trial courts’ discretion under the residual
exception be restricted to prevent standards of trustworthiness
from falling too low. See, e.g., Glen Lenhoff, Note, The Federal
Courts and the Catchall Hearsay Exceptions, 25 Wayne L. Rev.
1361, 1377 (1979).

Whatever the merits of these criticisms, however, our function
is not to establish new standards, or to second- guess the determi-
nations of the trial judge. We review claims of reversible error in
a trial court’s decision to admit or exclude evidence only for
abuse of discretion, and in so doing, give the trial judge great
deference. Littlefield v. McGuffey, 954 F.2d 1337, 1342 (7th Cir.
1992); Geitz v. Lindsey, 893 F.2d 148, 150 (7th Cir. 1990);
United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir. 1980), cert.
denied, 450U.S. 1001(1981). Moreover, the trial court is entitled
to a “considerable measure of discretion” in deciding whether to
admit hearsay evidence under Rule 803(24) in particular. Moffett
v. McCauley, 724 F.2d 581, 583 (7th Cir. 1984); see also United
States v. Vretta, 790 F.2d 651 (7th Cir.), cert. denied, 479 U.S.

hiesiemueniineicedi

—* fo

851(1986); United States v. Howard, 774 F.2d 838, 845 (7th Cir.
1985). As the Eighth Circuit observed in another case involving
allegations of child sexual abuse, “Rule 803(24) provides a trial
court with some flexibility when it must make a determination as
to the admissibility of hearsay evidence, and there is no specific
rule governing admissibility.” United States v. Cree, 778 F.2d
474, 478 (8th Cir. 1985). The relevant benchmark is not how we
would have ruled had we been standing in the trial judge’s shoes,
but rather, “whether any reasonable person could agree with the
district court.” Littlefield, 954 F.2d at 1342 (quoting Geitz, 893
F.2d at 150-51 (citations omitted; emphasis in original));
Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1266 (7th
Cir. 1988). In reviewing the district court’s evidentiary rulings,
“we are mindful of the common-sense admonition that ‘[w]hen
the choice is between evidence which is less than best and no
evidence at all, only clear folly would dictate an across-the-
board policy of doing without.’ “ Morgan v. Foretich, 846 F.2d
941,943 (4th Cir. 1988) (quoting Fed. R. Evid. art. VIII advisory
committee’s note)).

B.

At trial, Alexis’ mother testified that she had picked up her
daughter at the Center shortly after 3:00 p.m. on September 25,
1984. During the car ride home, Mrs. Doe asked Alexis about her
friends and if she wanted to visit the Center again. According to
Mrs. Doe, Alexis replied that she had made friends, but asked her
mother not to take her back to the Center any more. She further
told her mother “that the teacher was very nice to her and that she
put water [on] what she called her gina.” Mrs. Doe stated:

A: I felt pretty shocked and so I asked her what happened
to her gina, why did she need it to feel better, and she
said that the purple man had poked it witha. . . scrape
and that it hurt and so that the white teacher made it feel
better by putting water on it.

— * vom

Q: What was said next?

A: lLasked her what, I guess I just tried to figure out what
all that meant, and asked her if they had touched her,
and she said that yes, you know, yes they had, that they
had poked her vagina and that the man said that he was
sorry he hurt her, and [I] asked her what else happened
and she said that the man had pulled his pants up and
down, pulled them down and then pulled them up and
then pulled them down, and then the mommy teacher

opened up her blouse and she said that she showed
her titties to the man, and the man peed on both of
therm, and she had asked me to not take her there any
mm a and she said I called you and called you, mommy,
and you wouldn’t come.

Tr. 42-43. Upon reaching their home, Mrs. Doe examined Alexis but
discovered no visible physical signs of abuse. She then called her
husband, a pediatrician at the Base, and told him the story. He told her
tocome to the Base hospital, which she did, where Alexis was examined
by Dr. Donald Dicheson, the Base’s chief pediatrician. Like Mrs. Doe,
he discovered no signs of physical abuse. Tr. 45-46.

The Does subsequently reported the incident to the police. At
the station, Alexis and her parents met with a Sergeant Lofties,
and Alexis again stated that a purple man had poked her vagina
with a scrape. When asked where the scrape was, Alexis said “it
fell off in the car,” which, according to Mrs. Doe, was “a new
thing she had not told me.” Tr. 52. Mrs. Doe testified that she and
Lofties then took Alexis to a snack shop and then back to the
Center, Lofties went inside, and, during his absence, Alexis
made further statements regarding the alleged incident.

I think she was still eating her sandwich or I was trying to
get to her [sic] eat the sandwich, and she had said that earlier
the purple man had put his penis in her mouth and peed in
her mouth and made her throw up her sandwich.

whe sea

— A-10 —

Tr. 55. When bathing Alexis on the evening of the incident, Mrs.
Doe, a registered nurse, noticed that “she had a little pin prick or
needle prick mark in her toe” which appeared to be “an injection
site, where you put the needle and there is just a little dot of blood
on it.” Tr. 55. In response to her mother’s query about the marks,
Alexis “said she was screaming and crying and making too much
noise when these people had her, and so they gave her a shot and
they said that if she was crying any more, they were going to give
her another shot.” Tr. 55.

The next day, Mrs. Doe took Alexis to the local rape crisis
center, where Alexis was interviewed in a play room while Mrs.
Doe watched through a one-way mirror. Mrs. Doe stated that her
daughter removed the clothing from the dolls and pushed the
naked dolls together on their genital areas. Tr. at 65. According
to Mrs. Doe, Alexis had never witnessed adults having any kind
of sexual relations.

Mrs. Doe then testified that at some point over the next few
days, Alexis mentioned that a boy named Joey had been present,
and revealed additional details.

I remember her saying that these people gave her a bath
after they had squashed her in between them and she
couldn’t breathe and the man rubbed his penis on her
stomach and that they gave her a bath afterwards, they took
her clothes off and folded them and gave her a bath, and the
purple man told her that if she said anything, he would bite
eee

Tr. 66-67. According to Mrs. Doe, Alexis then told her “‘that the
purple man touched the lady’s titties, and they did ballet. The
mommy teacher did ballet on the purple man, and that the lady
said that when she got to be a woman or grown up that she could
do ballet on the man, too.” Tr. 67. At some point, Alexis also told
her mother that while “the purple man and the teacher were in the
other room doing bad things,” Alexis “was in the kitchen, and the

|

— so

dog was making her food.” Tr. 105; see also Tr. 67. Alexis told
her mother on another occasion that the dog drove her in a police
car to a safe place. Tr. 105.

i

John’s mother testified that upon reading about allegations of
child abuse at the Center in the base newsletter in October 1984,
she asked John whether anybody had ever touched him or done
something bad to him at the nursery (the family’s term for the
Center):

[A]nd he said yes, they did, and I guess I was in shock that
he said yes, so I just remember that I tried to stay calm, and
I asked him, I guess I remember, I said, what happened
John, and he went on— actually, I said who touched you,
and he said a man, and he said a lady. I asked him where they
had touched him and John at the time pointed to his penis
and to his bottom, and I asked him if the man had a name,
and he said yes, I said what was the man’s name. He said the
man’s name was John. I asked him if the lady had a name,
and he said no, he just referred to her as a lady.

Tr. 356-57. According to Mrs. Doe, John became “very angry
and very uncomfortable,” and asked her “why did you take me
there?” Tr. 357. Mrs. Doe stated that she decided “not to push
John” about the matter until her husband, who was out of town,
returned, although in the interim she occasionally raised the
issue. In response to questions about the lady’s identity, John
would say he did not remember, and when asked about the man’s
name, John “would become very angry and [say] I told you
Mom, the man’s name is John.” Tr. 358. Mrs. Doe testified that
John would then tell her that he did not want to discuss the matter
any further.

Mr. Doe testified that he waited several days after returning
from his trip to see whether John would initiate a discussion of

— A-12 —

the incident. When he failed to do so, Mr. Doe asked his son
whether anything ever happened to him at the nursery. Accord-
ing to Mr. Doe, “without any interruption [John] began a detailed
description of what had happened to him.” Tr. 538. Mr. Doe said
that John “could not tell me where it had happened exactly, what
room or anything like that, but he said thata man had touched him
on his weenie, his term for penis,” and further, “that a woman had
touched him on his bombosity, which was his term for his bottom
or his buttocks.” Tr. 538. Mr. Doe asked if the man had a name,
and his son responded, “yes, John,” and when asked if the
woman had a name, John replied no. When asked what they were
wearing, John told his father that the man wasn’t wearing any
clothes, and that “the lady had red legs.” Tr. 538. Mr. Doe stated
that John offered this information in response to very general
questions about the Center, and that he “didn’t initiate the
conversation in the context of ‘something bad happened to you,
disin’t it, John,’ ” Tr. 539.

The Does testified that John later supplemented his story,
Stating that the “bad people” at the nursery had a snake, which
“they put [on] my hand and it bit me.” Tr. 557-58 (Mr. Doe). John
also drew oval shapes on a piece of paper, and told his father that
there were bags used in a game whereby “the man would jump
in and out of the bag and then the kids would jump in and out of
he [sic] bag” Tr. 603. According to Mrs. Doe, after the incident
John began to draw pictures “of things with Straight lines” and
Cages, and to talk about

being burned. And at one time, at one point he had said the
people told me that this is what would happen if I talked, and
he drew a picture of a figure and then he scribbled it out with
an orange marker and he said this is the fire and this is what
would happen to me if I ever told anybody.

Tr. 511-12. Mrs. Doe testified that John drew pictures of two
people, and later referred to another little boy, “Tonya,” stating

—

“that they did this to Tonya, Tonya was a nice little boy, but they
did this to Tonya too.” Tr. 512.

D.

The government asserts, correctly, that hearsay not within an enu-
merated exception is presumptively unreliable, and the burden of
overcoming that presumption falls on the party seeking to introduce the
evidence. According to the government, because the children’s com-
ments satisfy only one indicium of reliability, the absence of a motive
to fabricate, the plaintiffs failed to satisfy this burden.

In regard to Alexis, the government first argues that her story
lacked consistency, because it accumulated new details that
grew increasingly “bizarre’’-—such as the dog who made her
food and drove a police car. It is true that reliability generally is
enhanced when a child consistently repeats an out-of-court
statement more than once, see Cree, 778 F.2d at 477 n.5. But cf.
State v. Robinson, 735 P.2d 801, 811 (Ariz. 1987) (“Consistency
does not always guarantee trustworthiness; it could be evidence
that the statements were rehearsed.””). Conversely, if the details
of the abuse vary each time the event is described, reliability is
less certain. See State v. Taylor, 704 P.2d 443, 452 (N.M. Ct.
App. 1985); State v. Smith, 384 N.W.2d 546, 549 (Minn. Ct.
App. 1986). But it is to overall consistency that we look, not
constancy with regard to each and every detail. “What is most
important is consistency regarding the core details of the expe-
rience. Consistency about peripheral details is less important.”
Myer, supra, § 5.37A, at 210. In United States v. Dorian, 803
F.2d 1439, 1444 (8th Cir. 1986), for example, inconsistency did
not render a five-year-old sexual abuse victim’s hearsay state-
ments unreliable since “it frequently takes a long time for
children to share what is really going on and they may then do so
in stages, telling a little more each time.”

Here, although various peripheral details concerning the al-
leged abuse expanded over time, the basic framework of Alexis’

=.

story remained the same. Indeed, as the government acknowl-
edges, Alexis never waivered in her account of a “mommy
teacher” putting water on her “gina.” On cross-examination, Dr.
Dicheson testified that Alexis’ statements to her parents were
consistent, and that although three-year-old children typically
“have a lot of fantasy and fantasy usually changes moment to
moment or the story changes moment to moment,” Alexis’
parents were concerned because “each time the story was re-
peated, it seemed to be essentially the same type of message that
was being presented.” Tr. 198-99. That very consistency led
Dicheson to conclude that abuse may have taken place. Tr. 199.

Nor are we troubled that Alexis divulged the specifics regard-
ing the abuse in a piecemeal fashion. Contrary to the plaintiffs’
contention, we do not find this, in itself, a circumstantial guaran-
tee of trustworthiness—indeed, under this view the hearsay
proponent would be in a no-lose situation: if the story is consis-
tent, it is an indicium of reliability; if it is inconsistent in that the
disclosures are offered in stages, it still serves as an indicium of
reliability. We believe nonetheless that the core consistency of
Alexis’ story, which held firm with each new revelation, serves
as an indicator of trustworthiness.

The government further maintains that because many of
Alexis’ statements were prompted by adult questions, they
lacked the requisite spontaneity. See Wright, 110 S. Ct. at 3150
(spontaneity an indicator of trustworthiness). The government
argues that Alexis’ only spontaneous statement was the com-
ment that her teacher was very nice and had put water on her
“gina,” and that all of her subsequent statements were elicited by
the inquiries of her mother and investigators. The government is
correct that the more spontaneous the statement, the less likely
it is to be a product of fabrication, memory loss, or distortion. See
Morgan, 846 F.2d at 946. Yet, a lack of spontaneity is not
necessarily fatal to the admission of hearsay, especially in the
child abuse context. See State v. Sorenson, 421 N.W.2d 77, 86

Mii.

— A-15 —

(Wis. 1988) (use of residual exception in child sexual assault
cases even less tied to immediacy of statements because other
indicia of reliability support its trustworthiness). Similarly, the
fact that a statement is elicited through questioning does not
necessarily defeat reliability. As Wright recognized, procedural
requirements— such as an absence of leading questions—may
“in many instances be inappropriate or unnecessary to adetermina-
tion whether a given statementis sufficiently trustworthy...” /d.
at 3148; see also Nelson, 874 F.2d at 1229. Moreover, as the
government acknowledges, Alexis’ core statements were of-
fered at the child’s own initiative, shortly after the alleged
incident occurred, with no parental prompting.

As to Alexis’ mental state, see Wright, 110 S. Ct. at 3150, the
government maintains that her “matter-of-fact tone” in relating
her account of the abuse fails to furnish a circumstantial guaran-
tee of trustworthiness. Commentators have observed, however,
that the childhood perspective on sexual experiences “does not
produce the shock or excitement that the law presumes to exist
after such an event. Quite often, the incident is related as part of
the day’s activities without any indication from the child that it
was traumatic or unusual.” Yun, supra, at 1757; see Brown v.
United States, 152 F.2d 138 (D.C. Cir. 1945) (three-year-old
child calmly reported assault in school that day during normal
dinnertime conversation). Moreover, although Alexis reported
the incident in a matter-of-fact tone, she became angry and upset
when telling her mother that she had failed to come in response
to her pleas for help.

Finally, the government claims that Alexis failed to provide
“graphic descriptions” of the alleged sexual activity, and that her
hearsay statements do not relate details of the sort that could only
be acquired through direct sexual contact. Cf. Nelson, 874 F.2d
at 1229 (“Merely playing with anatomically correct dolls would
not have given [the victim] the idea that one might be sprayed in
the face with ‘white mud’ from an erect penis.”). At root, the

— A-16—

government’s dispute is that the descriptions provided by Alexis
were insufficiently “graphic” to establish that she had been
exposed to some sort of sexual contact.

We disagree. Alexis’ age, her knowledge, and her childlike
description of the abuse give her statements the ring and quality
of truth. See United States v. Nick, 604 F.2d 1199, 1204 (9th Cir.
1979). She stated that “the man” had “touched the ladies’ titties
and the mommy teacher had done ‘ballet’ on the purple man” and
that “‘a purple man had put his penis in her mouth and peed in her
mouth and made her throw up her sandwich.” These graphic
descriptions in childlike terminology are precisely the type that
serve as an indicator of veracity; the use of the word “ballet”
rather than the phrase “sexual intercourse,” for example, indi-
cates that Alexis actually witnessed the event and was not merely
coached by someone using adult terms for sexual behavior.’

Given the “totality of the circumstances,” see Wright, 110S.
Ct. at 3148, we find no abuse of discretion in the admission of the
hearsay statements at issue. Alexis’ graphic descriptions and
consistency strongly suggest that her statements were trustwor-
thy. As the Supreme Court has admonished, the test for admis-
sibility is not a mechanized one. Although, for example, Alexis’
mental state does not provide an indicium of reliability, the
absence (or weakness) of trustworthiness in regard to one ele-
ment does not necessitate exclusion of the proffered evidence.
Alexis’ hearsay statements were properly admitted.

> We note that Dr. Gerwell similarly testified that during play therapy
Alexis “clearly showed some sort of emesis type response, coughing or what
we would interpret as being ill or throwing up or having emesis.... That
particular scenario is impressive because it certainly would be the kind of
thing that would not fit into normal type of exposure or experience of a child
this age, or most children.” Tr. 931-32; see also Tr. 934 (“It was my
conclusion that [Alexis] had been exposed to some type of sexual, in-
appropriate sexual experience . . . [based upon] the details that she produced,
particularly the realm of what appeared to be a fellatio incident.”) (Dr.
Gerwell).

— A-17 —

Turning to John’s statements, we first find that, contrary to the
government’s contentions, the core of his story remained consis-
tent over time as well. John repeatedly maintained, for example,
that the male assailant was named John, that he did not know the
female’s name, and that the abusers had touched his penis and his
buttocks. See also Tr. 358 (“His story was very, very consistent
with what he had originally told me . . . and I asked him again
what the man’s name was, he would become very angry and said
I told you Mom, the man’s name is John, and just pretty much
was the same story the whole weekend.”) (Mrs. Doe). Although
his later accounts made references to such things as cages, threats
of fire, snake bites, and a playmate, these are peripheral matters
that did not alter the nucleus of his story.

We have a more difficult time in assessing the spontaneity of
John’s statements. Admittedly, they lack spontaneity in the
traditional sense; yet, this does not automatically render them
unreliable. First, as we previously observed, spontaneity in the
child abuse context is not necessarily determinative of reliabil-
ity. See Sorenson, 421 N.W.2d at 86 (contemporaneity and
spontaneity of statements generally are not as crucial in admit-
ting hearsay statements of young sexual assault victims under
the residual exception); see also Iron Shell, 633 F.2d at 85-86.
Furthermore, spontaneous answers to nonleading questions may
be deemed reliable in appropriate circumstances. /ron Shell, 633
F.2d at 86; Robinson, 735 P.2d at 811 (five-year-old’s statements
spontaneous where “she explained what had occurred with little
prompting.”’); State v. McKinney, 747 P.2d 1113,1117n.4 (Wash.
Ct. App. 1987) (“Statements made in response to questions are
spontaneous where the child volunteers the information in re-
sponse to questions that are neither leading nor suggestive.”’); see
also Sorenson, 421 N.W.2d at 86; State v. Lindner, 419 N.W.2d
352 (Wis. Ct. App. 1987) Here, John’s parents stated that their
son volunteered the specific information when asked general,
nonleading questions about the Center. Furthermore, John vol-
unteered additional information to his mother following a No-

|

— A-18 —

vember 17 tour of the Center. Moreover, even the use of leading
questions, as noted in Wright, does not necessarily render a
child’s out-of-court statements untrustworthy. 110 S. Ct. at
3148; cf Iron Shell, 633 F.2d at 92 (authorizing use of leading
questions during direct examination of child witness).

It is also significant that in child sexual abuse cases, a delay
often occurs between the assault and a statement by the child
disclosing it, Yun, supra, at 1757; Jean L. Kelly, Comment,
Legislative Responses to Child Sexual Abuse Cases: The Hear-
say Exception and the Videotape Deposition, 34 Cath. U.L. Rev.
1021, 1024 (1985), often because the child fears reprisal or
punishment. See, e.g., People v. Davison, 163 N.W.2d 10 (Mich.
Ct. App. 1968) (nine-year-old girl delayed making statement for
two weeks after assault because of her fear of defendant). In light
of this, numerous courts have upheld the admissibility of out-of-
court statements made some time after the alleged abuse and in
response to questioning by a trusted adult. See, e.g., Bertrang v.
State, 184 N.W.2d 867, 870 (Wis. 1971) (fact that child’s
assertions “are not made within a few minutes or even hours of
the alleged assault is not controlling, nor is the fact that they are
not volunteered but made in response to questions.”); State v.
Superior Court of County of Pima, 719 P.2d 283, 290 (Ariz. Ct.
App. 1986). Here, given the details of John’s accounts— includ-
ing references to the “bad man’s” threats to harm John through
snake bites and the use of fire—the lack of spontaneity does not
defeat a finding of reliability, and lends credence to the child’s
veracity. See Fitzgerald v. United States, 443 A.2d 1295, 1298
(D.C. Ct. App. 1982); see also Tr. 924 (interviews with John
indicated that “he may have known but would not or could not
release information . . . the suggestion that there were other
factors acting to prevent him from being willing to participate
and give more information”) (Gerwell testimony); Tr. 924-25
(re-enactments of incident in play therapy with John suggested
that injury or threat of injury had been involved) (Gerwell).

|

— A-19 —

Admittedly, John’s mental state and use of graphic descriptions,
alone, do not provide significant support for admission of the
testimony. John did become agitated and uncomfortable when
discussing the incident, although not extremely so. As to child-
like terminology, the words he used—“‘bombosity”’ and “weenie,”
for example—were not necessarily outside a three-year-old’s
realm of knowledge. Yet, we do not find this defeats admissibil-
ity. As we have emphasized, admissibility under the residual
exception must be determined on a case-by-case basis, and here,
when viewed in context and in totality, we cannot say the district
court abused its discretion in admitting John’s statements. John’s
tender age, the consistency of his story, the fact that his story
provided a rationale for the lack of contemporaneity, and his
voluntary statements in response to general, nonleading ques-
tions, support the district court’s determination that his state-
ments provided adequate guarantees of trustworthiness to justify
admission.

Although the government further maintains that the compe-
tence of the out-of-court declarant is crucial in applying the
residual hearsay exception (here, the district court conducted no
inquiry to determine the competence of either Alexis or John),
we need not address this argument at great length. In Wright, the
Supreme Court rejected the contention that a young girl’s hear-
say Statements were per se unreliable, or at least presumptively
unreliable, on the ground that the trial court found her incompe-
tent to testify at trial. Although the trial court found that the girl
was “not capable of communicating to the jury,” the Supreme
Court noted that this did not necessarily mean the judge had
deemed the girl incompetent to testify. Significantly, the Court
stated, “the more reasonable inference is that, by ruling that the
statements were admissible under Idaho’s residual hearsay ex-
ception, the trial court implicitly found that the [girl], at the time
she made the statements, was capable of receiving just impres-
sions of the facts and of relating them truly.” Wright, 110 S. Ct.
at 3151. The same reasoning applies here. Although, as Wright

————————

— A-20 —

acknowledged, a child’s ability to communicate “might be
relevant to whether the earlier hearsay statement possessed
particularized guarantees of trustworthiness,” id. at 3151-52,
because here (under Wright’ s reasoning) the district court implicitly
found John and Alexis capable of understanding the facts and truthfully
relating them, we do not find that its failure to determine the children’s
competency renders their testimony inherently unreliable. See also
Morgan, 8A6 F.2d at 946, 949. We conclude that the district court did
not abuse its discretion in allowing the parents to testify regarding their
children’s hearsay statements.
IV.

On cross-appeal, the parents contend that the district court
improperly dismissed the state common-law counts, premised
upon the tort of seduction, for their own emotional injuries
suffered as a result of the molestations of their children. Under
the FTCA, the United States is, as a general matter, liable in tort
“in the same manner and to the same extent as a private indi-
vidual under like circumstances.” 28 U.S.C. § 2674. The plain-
tiffs contend that Illinois law—the substantive law applicable
here— recognizes this cause of action. The district court dis-
agreed and dismissed the claim. We likewise conclude that
Illinois courts would no longer recognize a cause of action for the
tort of seduction.

In pressing this claim, the plaintiffs rely exclusively on
nineteenth- and early twentieth-century cases. Of course, the
mere fact that a case is old does not mean it is no longer good law,
see Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); here,
however, we believe the cases the plaintiffs rely upon are both
inapposite and rest upon outmoded premises no longer accepted
by Illinois courts. As the government points out, the plaintiffs
allege that their children were abused as a result of the
government’s neglect; they do not claim, and the court did not
find, that a government agent had perpetrated the abuse. None of
the cases relied upon by the plaintiffs allow recovery from a

— A-21 —

defendant on the ground that a “seduction” was negligently
permitted to occur and, therefore, are inapplicable here. More-
over, as the district court observed, the seduction cases rest upon
a conception of the parent-child relationship, and specifically,
the father-daughter relation, as one of master and servant. See,
e.g., Ball v. Bruce, 21 Ill. 161, 163 (1859) (“If plaintiff was the
master and [his daughter] was the servant, and in consequence of
her seduction he was deprived of her services, why may he not
recover as any other master for the seduction of his servant.”);
see also Hobson v. Fullerton, 4 Ill. App. 282, 284 (1879)
(requiring proof of master-servant relationship to recover on
seduction theory). This outdated conception clearly is untenable
today. See, e.g. Bullard v. Barnes, 468 N.E.2d 1228, 1233-34
(Ill. 1984) (contrasting nineteenth-century view, “when children
were valued largely for their capacity to contribute to the family
income,” with modern view that “the chief value of children to
their parents is the intangible benefits they provide in the form of
comfort, counsel and society’’).

Finally, as the government observes, the type of damages for
which the parents here seek recovery are sufficiently analogous
to damages alleged for emotional injuries in other scenarios in
which Illinois courts have rejected recovery, see, e.g., Rickey v.
Chicago Transit Auth., 457 N.E.2d 1, 5 (Ill. 1983) (party must
satisfy “zone-of-physical-danger” test, which requires proxim-
ity to accident in which direct victim was physically injured and
high risk to plaintiff of physical impact, to recover damages for
emotional distress); Dralle v. Ruder, 529 N.E.2d 209, 212-14
(Ill. 1988) (no recovery to parents for loss of their society
resulting from nonfatal injury to child), to conclude that recovery
would be rejected here as well. As a general matter under Illinois
law, “before a plaintiff can recover for negligently caused
emotional distress, he must have, himself, been endangered by
the negligence, and he must have suffered physical injury or
illness as a result of the emotional distress caused by the
defendant’s negligence.” Siemieniec v. Lutheran General Hosp.,

— A-22 —

512 N.E.2d 691, 707 (Ill. 1987). The plaintiffs here do not satisfy
these prerequisites. The district court properly dismissed the
parents’ claims for recovery grounded on the common-law tort
of seduction.

Vs

The parents’ primnary contention on cross-appeal is that the
district court’s damages awards of $25,000 to each child were
inadequate. Under the FTCA, damages determinations are gov-
erned under the clearly erroneous standard, and the nature and
measure of damages are assessed according to state law.
Jastremski v. United States, 737 F.2d 666, 672 (7th Cir. 1984).
We cannot overturn the district court’s damage award unless its
factual basis is clearly erroneous. Wheel Masters, Inc. v. Jiffy
Metal Prods. Co., 955 F.2d 1126, 1131 (7th Cir. 1992);
Wolkenhauer v. Smith, 822 F.2d 711,715 (7th Cir. 1987); Adams
Apple Distr. Co. v. Papeleras Reunidas, S.A., 773 F.2d 925, 930
(7th Cir. 1985). Our task is limited to inquiring whether the trial
court abused its discretion; it is not to consider whether we
personally would have made the same award. De Santis v.
Parker Feeders, Inc., 547 F.2d 357, 365 (7th Cir. 1976); see also
Wolkenhauer, 822 F.2d at 715.

The plaintiffs assign numerous errors to the district court’s
damages findings. The first involves the court’s reference to the
anatomical dolls used during the course of the investigations. In
assessing damages, the district judge observed that the children’s
current psychological problems, which we discuss below, may
not have been caused by the abuse, but “could well have been
caused by something else, for example, the use of anatomically
correct dolls by the Air Force and Illinois state investigator, Dr.
Gerwell, or the people at [the] Rape Crisis Center where the Air
Force referred the Does.” App. at 6, 12.

The plaintiffs are correct (as the government concedes) that
under Illinois law, “a person injured through another’s negli-

—ais

gence can recover from the original tortfeasor not only for the
original injury but for any aggravation of the injury caused by a
physician’s malpractice, assuming that there was no want of
ordinary care in the selection of the physician.” Gertz v. Campbell,
302 N.E.2d 40, 43 (Ill. 1973). According to the plaintiffs, since
the government is the original tortfeasor, and the sexual abuse
constitutes the original injury, the government also is liable for
any enhanced traumatization caused by the government investi-
gators’ use of anatomically correct dolls in diagnosing and
treating the children’s abuse. While this may be correct as a
purely legal matter, as a factual matter the district court did not,
contrary to the plaintiffs’ contention, explicitly find that the use
of the dolls had resulted in emotional damages to the children.
The plaintiffs’ contention therefore fails.

The plaintiffs also contend that the « urt erred in “failing to
consider elements of damage in the same manner a jury would
have.” Underlying this contention is the following statement by
the district court:

I can recognize the parents feel that these children have
been severely traumatized and damaged. If I were in your
position, I would feel the same way. If this were my child
and my grandchild, I would have the same feelings that you
have. I can’t indulge the luxury of approaching the case
from that standpoint.

Tr. 18. According to the plaintiffs, the judge erred because he
“should be able to let his own emotions be a guide” in assessing
damages. To buttress their claim, the plaintiffs provide capsule
summaries of six sexual abuse cases yielding larger verdicts than
the one rendered here. But aside from the superficial similarity
of subject matter, these cases offer little in the way of useful
comparison. Thata six-year-old Texas boy suffering from chronic
posttraumatic stress syndrome recovered $237,000 plus attorney
fees following sexual abuse by a bus driver, see Spann v. Tyler
Indep. School Dist., No. TY S/B 6 213 CA (E.D. Tex. Mar.

oe

25,1988), does little to illuminate the propriety or impropriety of
the damages verdict here. We believe that the judge’s statements
were merely expressions of sympathy to the parents, and agree
with the government that the court here simply recognized that
a factfinder—be it judge or jury—must base its damages deter-
mination on the evidence and the appropriate legal standards,
rather than adopt the perspective of the aggrieved party.

Finally, emphasizing the preponderance of the evidence stan-
dard, the plaintiffs dispute the court’s finding that the plaintiffs
had failed to adequately prove future or permanent emotional
damages to either John or Alexis. In reviewing the damages
ruling in this regard, it is helpful first to review the court’s ruling
on liability, for this determination affects its damages assess-
ment. In its oral ruling that the plaintiffs had proved by a
preponderance of the evidence that some sort of abuse had
occurred, the court emphasized:

I do think that these children were molested in some term of
that word, they were molested in some way. I do not think
that there was any—well, obviously from the evidence,
there was no objective evidence of any physical injury, but
there doesn’t have to be. The slightest touch would have
breached the duty, and would have resulted in an actionable
Situation.

Tr. 1057. As the government correctly observes, it is this
conclusion that lays the foundation for the court’s assessment of
damages. We turn now to the awards in regard to each child.

Shortly after the molestation occurred, John began suffering
extremely severe nightmares, known as “night terrors.” He also
began to engage in violent behavior, and became obsessed with
violent themes in his play—ranging from an insistence on
carrying knives, guns, and swords, to an obsession with sharks,
viewing the movie “JAWS” some 100 times over a span of a few
months. After the frequency of his night terrors alarmed his

— A-25 —

parents, John spent two and one-half years in therapy with a
clinical psychologist, George Kinsey. According to the plain-
tiffs, “John Doe is a troubled child.” This may well, unfortu-
nately, be all too true; but to recover damages the plaintiffs must
establish to the factfinder both a nexus between John’s emo-
tional damages and the molestation, and that the damages are
permanent or certain to recur in the future.

Under Illinois law, the plaintiff has the burden of establishing
that damages were sustained, and of providing the court with a
reasonable basis for computing those damages. Adams Apple,
773 F.2d at 930; Schoeneweis v. Herrin, 443 N.E.2d 36, 42 (Ill.
App. Ct. 1982). “Damages may not be awarded on the basis of
conjecture or speculation; if the plainuff establishes that he is
entitled to damages but fails to provide a proper basis with which
to determine those damages, he may be awarded only nominal
damages.” Adams Apple, 773 F.2d at 930; Schoeneweis, 443
N.E.2d at 42. Damages are legally recoverable under Illinois law
if they can be proved toa degree of reasonable certainty. Chicago
Title & Trust Co. v. Walsh, 340 N.E.2d 106 (Ill. App. Ct. 1975);
Cummings v. Chicago Transit Auth., 408 N.E.2d 737, 742 (Ill.
App. Ct. 1980).

Here, the district court found no evidence to relate causally
either John’s preoccupation with violence or his night terrors to
his abuse while under the Center’s care, and no evidence to show
that John will need future medical or psychological treatment.
Further, the court credited Dr. Gerwell’s testimony that little, if
any, damage, emotional or otherwise, should result from the
incident, and found no evidence of any permanent or future
damages. We find that the court did not abuse its discretion in
determining that John’s future or permanent damages were not
established to a degree of reasonable certainty.

It is true, for example, that children often experience anxiety
attacks soon after abuse has occurred, which may manifest itself
through increased fear and nightmares. Hagen, supra, at 359; see

— A-26 —

also Kinsey Dep. 53. But this does not translate into a causal
relationship between John’s abuse and his nightmares. See
Kinsey Dep. 60 (although quite often children have nightmares
subse

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2371%3A1. Public record. Not legal advice.