Does 2018 law open the floodgate for old sexual abuse claims? High court to decide

Lansing — The Michigan Supreme Court will rule in the coming months on whether decades-old sexual abuse and assault allegations can be resurrected in civil lawsuits.

The high court heard arguments last week over whether a 2018 law with a specific carveout for old claims brought by victims of serial sexual molester Larry Nassar also applies to individuals abused decades ago by clergy, school staff or other authority figures.

The case stems from a lawsuit filed by Brian McLain, who alleged he was abused by a priest, the Rev. Richard Lobert, when he was 16 and attended W.J. Maxey Boys Training School in Whitmore Lake.

McLain claimed the 2018 law allowed him to file suit within three years of discovering mental health conditions related to the alleged assault, regardless of when the actual assault occurred. The Diocese of Lansing, a plaintiff in the case, said that provision was meant to apply to future cases, but McLain's legal team countered it applied to his as well.

"The Legislature understood that child sexual abuse is very similar to something like asbestos poisoning," said Christopher Desmond, a lawyer for McLain. "Oftentimes the victims don't know about it until that statute (of limitations) is gone. Our Legislature recognized that ill and they wanted to remedy that ill.

"Our retroactive application of this statute today will only serve to further that purpose of the Legislature."

But the Diocese of Lansing argued the Legislature was explicit in the narrow carveout it provided for Nassar victims; in fact, lawyer Thomas Meagher argued, there were lawmakers who noted during the 2018 floor vote that they were voting against the bill because it didn't extend to other past victims of sexual abuse.

"When the Legislature wants to make its intention known, it knows how to do that," Meagher told the high court during a hearing Tuesday. "When the Legislature wants a statute to apply retroactively, it knows how to do it.”

Justice David Viviano also noted the Legislature was very specific when it came to exemptions for the Nassar victims.

"It's very strange that they would be specific about it in the very same statute in one place, but not in another," Viviano said.

McLain is bringing a claim of negligence against Lobert who was not charged after an attorney general investigation, and the Diocese of Lansing.

Usually a negligence claim would have a three-year statute of limitations from when the complaint occurred.

But the Legislature made key changes to Michigan's statute of limitations on civil sexual abuse claims in 2018, as it wrestled to address the aftermath of the Nassar scandal at Michigan State University.

The law passed in 2018 expanded the three-year statute of limitations post-assault to include childhood claims discovered up to an individual's 28th birthday or three years after making a connection between the assault and the resulting injury or trauma.

The change has largely been understood to apply prospectively — meaning for assaults that took place after 2018 — though there was a carveout included at the time to accommodate old claims associated with Michigan State University sports medicine doctor Larry Nassar, who was sentenced to 40 to 175 years in prison for sexual assault.

McLain maintained that the 2018 law was meant to be applied to cases like his — where an injury was connected to an assault after 2018 — and that he should be able to proceed with his claims against the dioceses.

Livingston County Circuit Court sided with McLain, but a three-judge Court of Appeals panel sided with the dioceses, leaving the Michigan Supreme Court to decide whether the 2018 law should be applied to McLain's case and whether that retroactive application is in line with case law surrounding retroactivity.

The litigation comes as legislation pending in the state House seeks to cement a similar outcome by suspending the statute of limitations retroactively for old abuse claims currently barred by the passage of time.

A decision allowing for retroactivity would be likely to open dioceses, schools and other institutions to a variety of sexual abuse claims that have so far been barred by the prospective interpretation of the 2018 law.

"While they didn’t do it very artfully, your honor, I do think that was the intent here," Desmond said.

But Meagher argued that line of thought didn't make sense. The Legislature would have had no need to include a carve out for Nassar victims if it meant for the three-year provision to apply retroactively in all cases.

"Why are they concerned about pulling in all these Nassar victims" if they were already included in the three-year provision? Meagher said.

eleblanc@detroitnews.com