Appeals Court Hears Alleged Yeshiva University Child Sex Abuse Victims’ Bid To Reinstate Lawsuit Against YU
Shmarya Rosenberg • FailedMessiah.com
A panel of three federal appellate court judges lashed out at Yeshiva University’s lawyer’s claim that alleged victims of child sex abuse at YU’s affiliated boys high school, some of whom are now in their sixties and the youngest of whom is now in his thirties, should have filed suit when the abuse took place and not decades later, Courthouse News reported.
The judges called the abuse horrific and sharply pressed YU’s attorney, Karen Bitar of Greenberg Traurig, over her claim that it was the victims’ responsibility to investigate to see if YU was doing anything to stop the abuse. That they did not do so immediately means the statute of limitations started ticking then and expired decades ago.
"Once there is the abuse, it is incumbent on the plaintiff to investigate,” Bitar insisted.
U.S. Circuit Judge Guido Calibrasi – who earlier in the hearing mournfully said “nothing was done, and nothing was done and nothing was done" to stop the abuse when it was taking place – bristled at Bitar’s claim. "Impossible!" Calibrasi said, reportedly comparing her position to expecting the victim of a car accident to investigate whether the vehicle that struck him had a structural defect in order to sue the manufacturer.
Judge Reena Raggi also lashed out at Bitar. "You may want to listen to the argument you're making," she said with evident distaste.
Bitar responded that the alleged victims each "sat on their rights between 20 and 40 years."
Raggi then attacked her for "stubbornly arguing that the time of accrual [of the statute of limitations] is the time of assault."
Calabresi told Bitar that “you're doing something very dangerous,” and added that courts will want to act on the "appalling" alleged sexual abuse unless she proves the alleged victims’ complaint was filed too late.
Bitar said that Judge Koeltl had ruled and that ruling said the same thing she was claiming now.
Calabresi replied that Koeltl’s ruling was based on different legal reasoning than Bitar’s and lashed out at her.
"Judge Koeltl knew what he was doing. I’m asking you if you know what you are doing,” Calabresi said.
Thirty-four former YU boys high school students sued YU, its directors and administrations for hundreds of millions of dollars, alleging that Rabbi George Finkelstein "preyed on the children of Holocaust survivors," and Rabbi Macy Gordon sodomized a 16-year-old boy with a toothbrush, and YU’s administration did nothing to protect the victims, even though they knew abuse was taking place.
Several months ago, U.S. District Judge John Koeltl dismissed that lawsuit because he believed the statute of limitations elapsed. The alleged victims appealed.
All three appellate judges pressed the alleged victims’ attorney Kevin Mulhearn for an answer as to why the alleged victims did not file suit as soon they saw YU had done nothing to deal with the abuse after some of them individually told YU administrators about it.
Mulhearn claimed that the clock on the statute of limitations only began ticking when the Jewish Daily Forward published a report on the allegations in 2012. Before then, Mulhearn said, YU’s “administration gave every indication that they did not know about it." Mulhearn pointed out that YU honored Finkelstein at a tribute dinner in 1995.
Bitar, YU’s lawyer, responded that Finkelstein's alleged abuse was one of the "best kept secrets" at YU. "I say that with a little bit of sarcasm," she added.
When Mulhearn began his rebuttal arguments Judge Raggi reportedly told him, “your situation is a little bit better than when you" finished your opening arguments.… [But] it's not whether your adversary's counsel is wrong. It's whether Judge Koeltl was wrong."
Mulhearn said that Koeltl erred by basing his ruling on arguments the YU’s attorneys never made.
The judges did not issue an immediate ruling.
[Hat Tips: The Lion, Sfek-Sfaika.]