STATE OF MINNESOTA DISTRICT COURT COUNTY OF HEHHEPIH FOURTH JUDICIAL DISTRICT Dale Soheffler TRANSCRIPT OF PRDCEEDIHGE Plaintiff, Caae Ho. PI 95--21flfl vs. volume fi Archdiocese of St. Paul and Minneapolis and Father Robert Kapoon, Defendants. The above-entitled matter came on for trial before the Honorable Gary Larson, one of the judges of the above--named oourt, and a jury. commencing on the 19th day of Januarg, 1996. in the Hennepin County Government Center, City of Minneapolis, County of Hennepin end state of Minnesota. Jeffrey R. Anderson, Esq., and Mark A. wendorf, Eaq., appeared as oouneel for and on behalf of the Plaintiff. Andrew J. Eiaenzimmar, Eeq., and John C. Gundereon, Eeq.. appeared as counsel for and on behalf of Defendant Archdiocese of St. Paul and Minneapolis. Frederick C. Brown, Eeq.. appeared as oounael for and on behalf of Defendant Father Robert Eapoun. 132 (February 6. 1996.} [The following discussion was held on the record out of the hearing of the jury.) THE COURT: who wants to go first? Mr. Eisensimmer seems to he the most anxious. MR. EISEHEIMMER: as long as I am still standing. Your Honor, yesterday we went over the jury instructions and verdict form. and you indicated that today we would have the opportunity to note for the record the matters that we brought up during that chambers conference regarding those items. as I also indicated at the time, it*s the defendant intention to bring motions for directed verdict in this case. and I understand that the Court will reserve argument then on those until sometime after the jury begins its deliberations. In terms of my position relative to these issues. on the claim of negligent retention, 1 would move for a directed verdict and elimination of that question from the special verdict form because there is no standard of care been proven by the plaintiff with respect to what would constitute the negligent retention of a Catholic priest. In addition. as we argued in our motion for summary judgment, and I need not repeat that argument here. the question of ?33 negligent retention of a Catholic priest raises serious constitutional issues and the Court would be restricted and the law would be restricted from finding liability on the part of the Catholic church for retaining a Catholic priest, because those are matters that go directly to the heart of the relationship between an archbishop and his priest and between the church and its priests. we also ask that there be no instructions and no verdict questions with respect to loss of earnings, both past and future, simply because there has been no evidence by plaintiff that would allow a jury to substantiate the amount of those two claims. In essence the jury will be forced to engage in speculation. conjecture and guess as to loss of earnings. so we would ask that the instructions as to those matters be stricken and that no questions be asked either past or future damages for loss of earnings on the yerdict form. an the scope of employment we have asked the Court in essence to instruct and to apply on the verdict form that requirement as to both negligent retention and negligent supervision. I don't intend to say any more than has already been discussed on that in the motion for summary judgment as well. and 134 finally, I asked the Court for a special instruction regarding the liability for the conduct of corporate employees. I asked for an instruction that Monsignor Srnec and any knowledge that he might have obtained from Mark Tuma that the jury be instructed that that knowledge cannot be imputed to the archdiocese. with that, tour Honor, I think I am concluded with what I want to note for the record. THE COURT: Mr. Brown? MR. BROWN: Your Honor, I join in the objection on the special verdict form and then the accompanying instruction with respect to loss of earnings for the same reasons as Mr. Eisensimmer has just noted and additionally because I would put this in the category of surprise with respect to past lost earnings. There was a specific interrogatory propounded by the Archdiocese asking for an itemization and details with respect to any loss of earnings. The information was not forthcoming and on I believe it was a Friday or Saturday prior to trial we received for the first time some income tax returns. We still have not received any calculation or itemization as to what the loss of this special damage item might be. as I noted in chambers, Your Honor, this cum-ammo-T35 certainly has prevented us from checking with prior employers, with checking with accountants or employment experts or other witnesses that we might have elected to use in this trial, so for that additional reason, I also object to the submission of any instruction and special interrogatory on loss of earnings as well as any future loss of earnings in this case. resterday we had another matter that was discussed in chambers. This also was in the category of surprise. a witness was called. Doyal vanoelder, by Mr. Anderson and by the plaintiff. Mr. UanGelder's name had been certainly in many records and had been known to us prior to trial. but only on the supplemental letter after all of the discovery had been completed, after interrogatory responses, statement of the case, and in fact the witness list had been prepared and served by the plaintiff did we become aware of the fact that the plaintiff intended to call Doyal Vanflelder as a witness at trial, and we argued long and hard before the Court in chambers yesterday, and I say we, I mean Mr. Eisenrimmer and myself, indicating that this was surprise and that the testimony in our judgment was so critical that we needed time to explore what he might say. 736 After further argument by all parties the Court decided to permit Mr. Vandelder to testify. and I am not sure if the order was even limited. at one time there was some suggestion that perhaps the testimony would be limited to some pertinent dates. THE CDURT: It wasn*t limited we ended up so the record reflects that. MR. BROWN: end we were, however, permitted to spend a few minutes in an informal session with Hr. Vanflelder prior to his testimony. I believe we spent perhaps 12 or 15 minutes. we learned among other things during that session that he may have had a calendar or some other documents on which he made notes which he did not have here in court, but we would object to the Court's permitting any testimony from that witness for those reasons. Third, and I don't think I had the opportunity of putting this on the record previously and I don't even recall which day it would have been, Your Honor. hut there was an objection made with respect to one set of opinions from Dr. Gonsiorek which I believe would have been on Friday of last week, with respect to a new line of questioning from Mr. Anderson, which was directed to whether a reasonable person would have known or should have known that I think it was geared to the Plaintiff although I am not even sure if it was that specific -- Dale Scheffler had been sexually abused and sustained injury as a result of that abuse. we again argued long and hard with the Court on that objection. He informed the Court that this opinion was again in the nature of a surprise with respect to any suhmittals that we had received prior to that date as to this expert witness, and equally important we argued to the Court that this reasonable person standard was something that was only to be decided by the jury and to permit this opinion from this witness even though he is an admitted expert was to invade the province of the jury. and since that is again a very important question on the special verdict, we ask the Court to not permit that opinion testimony. The Court did permit that testimony and there is on the record now some opinion testimony on that issue from Dr. Gonsiorek. with respect to the jury instructions, the archdiocese and I joined in this request that requested one instruction with respect to a priest and this was included within the archdiocese suhmittal, It was not a number. It was a special instruction but something to the effect, tour Honor, that a priest would have no greater duty than would an ordinary person with respect to his conduct with minors. I can he more specific if the Court wants, and I will dig out the instruction. THE COURT: What I think you should do is both of you should make sure that you file your individually requested jury instructions with the clerk. I consumed those that you gave me, so you need to make sure that you file those so they are in the file for keeping your record straight. MR. BROWN: That would be the one THE COURT: I know which one you are referring to, but so the record is straight, counsel, I want you to make sure to just file it in the next couple of days so that it's in the file. MR. BROWN: Yes, Your Honor. That would be the extent of it, end 1 would also at the time that the jury is out be moving the Court for directed verdict on behalf of Father Robert Kapoun and we will argue it at that time. THE COURT: what my plan is depending upon what time they go out this afternoon is to meet tomorrow morning at 9 o'clock, do whatever directed verdicts you want, do the JIO and the verdict form tor the punitive damages so it's all done. and we can all hithat at 9 tomorrow morning? okay. Mr. Anderson, what do you need to put on the record? MR. AHDERSDHI First as to the motion pertaining to negligent retention, the standard of care is a reasonable person standard, and there is no reason to believe or suggest that the employment practices of a religious organization have a standard otherwise, so no expert testimony is necessitated by reason of the fact itis a religious corporation. Second, the inquiry into the employment practices by reason of the claim of negligent retention does not invade or in any way implicate the ecclesiastical policies or positions made in the Catholic church. It does not by implication in any way even arguably infringe upon the first amendment in any way. Second, the loss of earnings claim is properly before the finder of fact. or. oonsiorek gave in response to expert interrogatory answers a detailed narrative report consisting of 12 pages or something like that. and in that recites at various times that Mr. Scheffler has by reason of the abuse suffered in all areas of his functioning among which was his vocational, his vocation, his ability to work, his 140 ability to do work. and has by implication and reason of that suffered lost earnings in the past and also is permanently impaired to some degree by reason of that, not totally out partially permanently impaired. In other words, his ability to work has been permanently diminished. I got that word out. and he went on to testify further that in doing a assessment use a global assessment of functioning on the Axis 4, and I think Dr. Hung, the expert for the defendants. testified that he in fact used a global assessment of functioning. and that that is a numerical designation and that in this case and that includes his assessment of functioning in all areas including vocational. and in this case testified that his global assessment of functioning, that is Dale 5che?fler*not been abused it would have been higher, and he opined that it would have been EU to 35. and for that reason there is a real and identifiable evidence of the loss of earnings and loss of earning capacity and the question then is properly up for the jury. Third. Pastor yandelder. In the proposed jury guestionnaire that we proposed and used in this case. we sent this questionnaire to defendants the week ?41 before trial. and in it we listed all perspective witnesses, both expected to he called by us and by the defendants and in that list Ooyal vandelder is listed. I don't believe the questionnaire, Your Honor, has been made a record, so I would offer the questionnaire as part of the record. THE COURT: The questionnaire? MR. ANDERSON: That was used. yes. THE COURT: with the jury do you mean? HR. ANDERSON: Yes. THE COURT: That's fine. HR. ANDERSON: Maybe I will -- THE COURT: I will stick it here and we will see if it gets filed. MR. ANDERSON: Thank you. In that regard the week before trial mailed and faxed a letter advising defendants' attorneys that we specifically intended to call Pastor vandelder. It may have been the Friday or Thursday before trial, but I did send that letter. when we we obviously d1dn*t call many of the witnesses listed on the questionnaire but Ooyal VanOe1der's existence in this case as a factual witness had been clearly made known to defendants in discovery and it should be noted that at no time did defendants in this case take any of the depositions of those factual witnesses that were made known in discovery other than the parties. when we notified counsel in trial that we intended to call Pastor Uanfielder live, there had been already testimony -- THE COURT: as opposed to dead? HR. ANDERSON: Well, call him as a witness I meant. There had already been testimony about Pastor vandelder in the case. and at that time I told the Court and defendants* lawyers that I would have Pastor vandelder available early before his scheduled testimony if they would like to inquire of him, and I did and they did and they did ask him questions and made inquiries of him about his testimony, what he knew or didnit know for 15 minutes or so. If there was any argument of surprise, it was by reason of late notice if you will of Pastor vanfielder. It was relieved by making him accessible, and I don't have anything further to say about that. The last and final objection raised is that Dr. Gonsiorek was allowed to give an expert opinion going to one of the questions of fact in this case, that is when in time did a reasonable person know or have reason to know injury was caused by reason of abuse. This Court is aware that an expert witness with specialised knowledge and training can testify 143 and give opinions on ultimate questions of fact. and in this case Dr. Gonsioreh foundation was laid for that expert opinion that in cases of sexual abuse there is a dynamic where there is a delayed discovery of injury, and in this case Dale Scheffler in his situation was reasonable in experiencing said delayed discovery of injury and to that end expert testimony given peculiar dynamics of sexual ahuae is the most suited and probative to the ultimate question and was properly allowed by this Court. I have nothing further. HR. EISENEIHMER: Your Honor, very briefly, since or. Gonsiorek*s report is not of record. I would like to note that from my review of Dr. Gonsiorek's report. which is what counsel furnished to us in discovery responses in this case relative to what would he expected for Gonsiorek's expert testimony. The only statement he makes in there that one I think can conclude relates to this claim of loss of earnings either past or future. Gonsiorek said there was some occupational diminishment. He didn't quantify that or characterize it any further than that. I think the witness himself when he testified indicated that he did not feel competent to express an opinion in terms of dollars what that loss of earning IDl.DCfl--I-?44 capacity was, and he certainly did not suggest in terms of utilization of the global assessment of functioning score from the DEM that that somehow translated into the ability to quantify the loss of earnings either past or future of the plaintiff. The only other thing I would like to respond is with respect to Pastor vanfielder. It's my understanding that counsel furnished us Friday before this trial began with a letter indicating that he intended to call additional witnesses. one of whom was Pastor Vandelder. up to that point in time he had not been identified as a witness, and it's my belief that the testimony of Pastor Vanfielder goes to a critical issue here and that is the statute of limitations issue, so certainly I think there is some prejudice to the defendants in terms of allowing that testimony at a late date. with respect to counsel's indication that we didn't oppose any other fact witnesses I will note for the record that other witnesses in this case, Hark Tuma, Michael bearing, and Mark schuta, although they weren't deposed in the Scheffler case each of them has commenced their own lawsuit and certainly their depositions were taken in connection with that lawsuit, so we have conducted a fair amount of --?45 discovery in this case of other witnesses including Mrs. Braith as well as Howard Braith, the brother of Rusty Braith, although plaintiff chose not to call them as witnesses. Thank you, Your Honor. THE COURT: Mr. Brown? MR. BROWN: Nothing further. Your Honor. THE COURT: Mr. Anderson? HR. ANDERSON: Nothing. THE COURT: I don't feel there is any need to specifically rule at this time. I have ruled and it's all of reoord of what we have done and those are my rulings in this regard, and this was just for the purpose of making a record. Okay. {Recess taken.} {Jury brought into the courtroom.) THE COURT: Good morning, ladies and gentlemen. as I indicated to you yesterday, we are now at the stage of the trial where the lawyers will be making their closing arguments to you. again the rules provide for the order in which the closing arguments will be given to you. We don't flip a coin or draw straws to decide how that happens. The rules provide for the order in which the attorneys will be making their closing arguments to you. Mr. Eisenrimmer will speak to you first and then Mr. Brown and then Mr. Anderson and then I will give you your final instructions. Mr. Eisenzimmer has indicated to me that he is going to take more than one hour and less than two hours. Mr. Brown has indicated that he will take about one hour. and Mr. Anderson has indicated that he will take about two hours in his closing remarks. Hy remarks I am estimating to be about 15 to 2D minutes to you. I anticipate that Hr. Eisenzimmer and Mr. Brown will be able to speak to you this morning for sure. at some point of course we have to take a break for my court reporter. If any of the speakers goes more than an hour and a half. they will indicate to me the appropriate time to take a break. Hy court reporter cannot do this for more than an hour and a half at a time without a break, so you won't be sitting here for more than an hour and a half at a time going through this process. If it's possible we will start Mr. Anderson's closing remarks before lunch. break for lunch, and then come back and he will finish them. depending upon how the timing actually works out. You may proceed, counsel. MR. EISENZIHMER: Thank you. Your Honor. Your Honor, counsel, members of the jury. when I first stood before you a few days ago one of the things I began with was an apology, and today I want to begin with that same apology acknowledging as I did in my opening statement that there has been a certain amount of repetition throughout the trial, about the events in question, about the facts and opinions and other things. I warned you that that would be part of the trial and it has certainly proved true, and I hope you can understand the reason for that. I also want to thank you largely because of the repetition and things of that nature that trials necessitate. I want to thank you for your attention and your patience to these matters. we come now to this time of a trial that's called a closing argument or a summation. It's the opportunity for us lawyers to stand in front of you and tell you what we believe the facts have shown and what we believe the law that you will apply to those facts should be so as to allow you to deliberate to your verdict, and in the time I have before you this morning I want to talk about those facts and about the law and about your deliberations and your verdict form and things of that nature, and if I have done my job. when I am all done you will have a better --I --Ian' IUI hi LTJ IU- -It (II 143 understanding of the position that my client and I are taking in this ease and hopefully that will assist you in your deliberations. Now, in making these closing remarks, as the judge has indicated I go first. Then I am followed by Mr. Brown and finally by Mr. Anderson. Mr. Anderson, of course, represents the plaintiff Bale Scheffler. Now, I am not going to have the opportunity to address you again after Mr. Anderson talks with you. and I mentioned a few moments before you came in here that's one of the most frustrating things about being a lawyer for a defendant is the fact that you don't get the last word. so in essence I will not be able to respond to Mr. Anderson's final remarks. He, of course, will be able to and is likely to respond to some of the things that 1 am going to tell you, but one of the reasons that the plaintiff goes last is because the plaintiff has the burden of proof. Now. 1 will talk more about the burden of proof a number of times here this morning, and again it's part of this repetition that we keep repeating things over and over again but I think it's important to emphasize the things that are important about the burden of proof that a plaintiff has in a case like this. ?49 Now, as I said some of the things that I want to address how are the facts and the law. The facts will have come through witnesses who testified in this case, but it's the judge basically who will instruct you in the law. Following all of our remarks as His Honor indicated, the judge will instruct you on the law applicable to the claims and defenses being made in this lawsuit. He is also going to define for you certain things including your duties as jurors. He will tell you for example that you must follow the law as he gives it to you. and he will indicate that you have got to follow that law whether you agree with it or not. He also will tell you that you have got to do your duty as jurors and I am certain you have heard some about that already, but what he will tell you is that you have to do your duty regardless of any likes or dislikes you might hays, regardless of any opinions you might have, regardless of any prejudices you might have or regardless of any sympathy you might have. How, we all know that this case involves sexual abuse and it certainly is a topic that makes us sympathetic to Dale Scheffler and his allegations that he was sexually abused. but the judge will tell you that you must decide the case solely on the evidence .T50 before you. That you are not to permit sympathy, prejudice or emotion to influence your verdict. so that*s one thing that I will ask you as you begin your deliberations is to decide the case as the judge tells you the law requires, solely on the evidence and not on sympathy for the plaintiff. because of the horrendous nature of the kind of claim that brings us to court. Hos. His Honor in giving you the instructions on the law will also tell you that the questions you must decide as jurors will he submitted to you in the form of a special verdict. You will have when you begin your deliberations a special verdict form. and you are going to see this, it will be in the jury room with you. and you will find that the verdict form consists really of ten questions. How. a couple of them have subparts but basically it's ten questions. or those ten questions. seven of them can he answered yes or no. That's all you will he required these seven questions. Of the other three questions that can't he answered yes or no, one of them will require you to determine a date and the two others will ask you to calculate the amount of any money damages in this case. How, I am going to talk later about those ?51 three questions, but to begin with what I want to talk about is these seven yes or no questions. again, the plaintiff Dale Sohaffler has the burden of proof. The judge is going to instruct you when he instructs you on the law that in order to answer any question yes on this verdict form, any one of these seven questions. in order to answer one of those questions yes, the greater weight of the evidence must support such an answer. Dtherwise you should answer the question no. That's the law. The judge will so instruct you. That's what's known as the burden of proof. Now. the greater weight of the evidence means that all of the evidence, and the judge will tell you this. that all of the evidence must lead you to believe that it is more likely that the claim is true than not true. Let me repeat that. It must lead you to believe it is more likely true than not true. If the evidence does not lead you to believe it is more likely that the claim is true than not true. than the claim has not been proved by the greater weight of the evidence. Now, as I said, the plaintiff has the burden of proof. If he has not proved that it is more likely that a claim is true than not true, than you must answer those questions no. So on each of the seven .-752 questions the plaintiff has the burden of proving that it*s more likely true than not true. Let's talk about your verdict form and I am going to tell you. you certainly don't have a copy now, but as I said it will be in the jury room when you deliberate, but I want to just tell you what those questions are going to be and I am going to take them really one at a time from the very beginning until the very end of that verdict form, and I want to discuss with you each one of those questions and my suggestions on how you answer those questions, but ultimately. of course, the decision is yours as jurors in this case, following the law as the judge gives it and applying the facts as you have heard them testified to in this case. Question number one on the special verdict form. The question is, "Did Father Kapoun sexually abuse Dale Soheffler?" Yes or no is what you answer. as I said in my opening statement to you last Monday I guess it was, or Tuesday, it will be up to you as jurors to decide whether Father Kapoun did or did not abuse Hr. Scheffler. I further stated in my opening statement that I did not intend to argue or present evidence on that question and I haven't. If you answer question number 1 no, that Father Hapoun did not abuse Dale Scheffler, then guite obviously my fl"iLFT53 client the archdiocese cannot be liable. If. however, you answer question number 1 yes that Father Kapoun did sexually abuse Dale Soheffler, you will then be asked to answer question number 2, so question number 2 on the verdict form is did, "Dale Seheffler sustain any injury as a result of the sexual abuse by Father flapoun?" Here again as I said in my opening statement some time ago. if Dale Seheffler was abused as he has alleged, it's not the position of my client or myself that he was not left with some effect as a result. In other words. if he was abused, we are not saying he wasn't harmed by that to some extent. as I indicated in my opening remarks. the extent to which he might have been harmed by that is what's being disputed here, and we will talk about that more later. Now. if you answer question number 2 yes, that bale soheffler sustained injury as a result of the sexual abuse by Father Kapoun. you will be asked to answer question number 3 and question number 4. Now, the question number 3 is a question that is not answered yes or no. This is the one that you have got to select a date and I will read that question. It says, "when should a reasonable person in Dale Sehef?ler's situation have known that he was sexually T54 abused and that he sustained injury as a result of the sexual abuse?" I am going to talk a bit more about that but your answer will be in the form of indication of the month, the day and the year. That's what you will be asked, and we each of us will give you a suggestion as to what date we believe you should put in there. Now. Mr. $oheff1er's attorney in suggesting that date to you will be expected to argue that Mr. Scheffler did not know that he was sexually abused and that he sustained injury as a result of that abuse until he talked to Pastor vanselder in October of 1993, but I want to look at some of the facts in this case that bear on that question. How. the abuse as you have heard repeatedly is alleged to have occurred in June 1981. Now, Mr. Scheffler admits that a couple of days later after this single two--day period over which the abuse occurred he admits that a couple of days later he mentioned something to his mother about what had happened. now, or. Gonsiorek who is plaintiff's expert witness in their case, said he asked Mr. scheffler to recollect his reactions during and immediately after the abuse and I think this is important. You will recall that I made sure by asking LI-1 DI ?55 hr. Gonsiorek questions. I made sure that Dr. Gonsiorek was asking Dale scheffler for his reactions at the time, not what he now believes but what his reactions were at the time. Dr. Gonsiorek in testifying about asking Dale Scheffler of that clearly identified that Dale Scheffler felt awkward, confused, weird, and that it didn*t feel right. Later according to Dr. Gonsiorek Dale Scheffler felt embarrassed, further confused and he just wasn't confident anymore. Now. Mr. Scheffler himself says that following the abuse he didn*t feel right about himself and as a result began hanging around with the wrong crowd and eventually began using drugs and alcohol. when you go into the jury room, you are also going to have some exhibits, one of which is Exhibit No. 4 which is the chart of Dr. Beta. Dr. Here as you know is the plaintiff's therapist, and in that chart you are also going to see Dr. Esra in a chart note dated September 15, 1994 where Dr. Bera quotes Dale Scheffler during a therapy session as saying after Father Kapoun didn*t feel liked or wanted anymore turned to alcohol and drugs. Now, Dr. Gonsiorek also talked about Dale Scheff1er's mother, and whatever Dale Scheffler may T55 have said to his mother, she preceiued, according to Dr. Gonsiorex who talked with her, that Father Kspoun had attempted to sexually abuse her son, and that's what her perception was at the time in 1991 shortly after the events occurred. as part of his instructions. His Honor is going to define and describe certain damages being claimed by Mr. scheffler in this case. How, I am going to talk about damages later. but it's important to recognise that these damages as they are going to be defined by the judge, are going to include terms such as shame, fright, worry, embarrassment, etc.. which are the very type of reactions experienced by Dale Scheffler at or shortly following the alleged abuse in June T931. Now, the judge will also instruct you that the question is when should a reasonable person, not Dale Scheffler, but a reasonable person in Dale Scheff1er*s situation have known that he sustained injury as a result of sexual abuse. So the question as I state is not what Dale Scheffler realised in terms of his having been sexually abused and then he sustained injury, but what would a reasonable person in Dale 5cheffler's situation have realized. what that means, of course, is you decide this date based upon what a reasonable person in that situation would have known in terms of when they were sexually abused and when they sustained injury as a result of that abuse. Now, hy the time he graduated from high school on May 30, 1935, and I want to emphasise that date. by that time a reasonable person in Dale 5cheffler*s situation would have known that what Father Kapoun did to him was sexual in nature. They would have known that it was wrong and they would have known that it made them feel unworthy and abuse alcohol and drugs. A reasonable person in Dale Scheffler's situation would have known by the time they graduated from high school that they had dropped out of school and that they had experienced injury, the same kind of embarrassment, shame, guilt, that the judge is going to find as damages and injury, and that these things all related to the events with Father Kapoun. For these reasons when answering question number 3 which asks you for a date of when should a reasonable person in Dale scheffleris situation have known that he was sexually ahused and that he sustained injury as a result of the sexual abuse, I would suggest that you determine a date no later than date of graduation from high school which is May 30, 1986. This date is going to he set forth in the .--T53 material that you will have in the jury room, Exhibit which is his educational record. Right at the top of Exhibit is his date of graduation, May 3U, 1935. Dale Scheffler testified repeatedly and you have heard other witnesses testify repeatedly about the fact that he had dropped out of high school for a period of time because he felt unworthy as a result of these experiences, that he turned to alcohol and drugs, that he began hanging around with the wrong crowd, and all of these other feelings including the feelings that he conveyed to his mother. and there certainly has been some question about what exactly he did convey to his mother, whether he told her Kapoun was weird or whether he told her he didn't like Kapoun. whatever he might have told her. and even he. of course. is not certain what he told her, but whatever it was, she perceived it as an attempt on Father Kapoun to sexually abuse him. For that reason I would suggest in determining this date that you use the date of May 30, 1988. Now, counsel for the plaintiff is going to suggest a later date. he I indicated he is likely to suggest october of I don't know exactly what he is going to suggest to you but that*s my expectation is that*s the date that he will suggest. he I said, I ?59 don't have the opportunity to respond to him but knowing that he may ohoose that date, I am going to ask you to determine whether a reasonable person would not have known until that date that they had been sexually abused and that they had sustained some injury as a result. Now, question number 4. Question number 4 is onoe again a yes no question. This question reads. "was Father Kapoun acting within the scope of his employment with the archdiocese of St. Paul and Minneapolis when he sexually abused Dale Scheffler?" Because this is another yes no question, plaintiff has the burden of proving it is more likely true than not true. How. the judge will instruct you in the law regarding this question of scope of employment, the question being of course was Hapoun acting within the scope of his employment when he sexually abused Dale scheffler. In order to be within the scope of employment. you will find from the law first an employee must be performing services for which he is employed or doing an act reasonably incidental to the employment. Now, I would argue that at the time of any sexual abuse of Dale Soheffler it was clear that Kapoun was not performing services for which he was employed or doing anything incidental to that -.4 --I --$60 employment. Now, second. in order to be within the scope of employment, and again the judge is going to give you the law and you will he allowed to take the judge's instructions into the jury room with you so you will see that in the instructions, but another requirement to be within the scope of employment is that the act must occur at a place and during a time related to the employment. Let's talk about that. It is quite clear that the abuse of Dale Scheffler if it occurred, if you find that it occurred, was not at a place or during a time related to Father Kapounis employment by the church. There shouldn't be any question about this. The evidence is clear that Kapoun took Dale Scheffler and Russell Braith up to the family cahin, up to the Kapoun family cabin. There has been some discussion that they went up there to pick up sticks or to do whatever it was. It wasn't a ohurch--sponsored trip. You have heard no evidence of anything of that nature. It didn*t relate to any church activity. You haven't heard any reference or evidence that the trip up there related to any church activity, and it certainly had no religious purpose whatsoever. No evidence has indicated that it had .--.I i 1| -4 J- _aII-13- Ll'! T51 anything to do with the church. How, you should not answer this question yes merely because Kapoun was the parish priest. what Kapoun did in bringing bale Bcheffler wasn*t incidental to that employment as a priest and it certainly didn't occur at a place or during a time related to his employment. Again, the place was Kapoun's own private cabin, not a church or a church--re1ated place, and the time was his time off. as he said it couldn't have been a weekend because he would have been serving mass and doing other things in church. so he was his time off. It was not a time for religious worship. religious training or any other church--related activity. For these reasons when asked whether Hapoun was acting within the scope of his employment at the time he abused Dale Scheffler. I would suggest that you answer the question no and here again is a question that in order to answer it yes the plaintiff has the burden of proof to prove that it's more likely true than not true. That brings us to question number 5. Question number 5 reads, "Did the Archdiocese of St. Paul and Minneapolis negligently retain Father Kapoun as a parish priest?" Now, I also want to talk at the same time about special verdict question number and that --uh?62 question reads. "Did the Archdiocese of St. Paul and Minneapolis negligently supervise Father Kapoun?" Se this is question 5 and question Both of these questions involved the question of negligence. The judge will instruct you that negligence is the failure to use reasonable care. In order to prove that the Archdiocese was negligent, the plaintiff must lead you to believe it is more likely true than not true. The judge will further define the terms in these two questions. Question number 5 deals with negligent retention. Says negligently retain. Did the archdiocese negligently retain Father Kapoun as a parish priest? The judge in defining negligent retention will tell you that where during the course of employment if the employer becomes aware of problems with an employee and fails to take reasonable action, they can he found negligent. The judge will further define negligent supervision. Negligent supervision is where the employer fails to exercise ordinary care in supervising an employee so as to prevent foreseeable misconduct of the employee from causing harm to others. again, you will have these instructions and these definitions and the instructions with you in the T63 jury room. How, in this case of course the allegation is that in august of 19?3 Monsignor Stanley Srnec, and it seems a long time ago that he testified. but you recall that the allegation is that in august of 1913 Monsignor Ernec took a statement from a young person by the name of Mark Toma. Mark Tums stated that Father Kapoun touched him on a number of occasions. That statement that Monsignor Srnec took is Exhibit 3. You will have Exhibit 3 with you in the jury room. How, the further allegation is that the archdiocese is negligent as it relates to Father Kapoun, and this allegations of negligence rests on the testimony that in September 19?3 Monsignor Srnec reported the Tuma matter to then Bishop Reach, the priest personnel director. Now, you have heard both Monsignor Srnec and Bishop Roach testify to that. The plaintiff must prove then that Monsignor Srnec reported the Tums matter to the archdiocese. In other words. the plaintiff must prove that it is more likely true than not true that Monsignor Srnec reported that. How, it's evident that without knowledge of Kapoun's misconduct with Tuma, the archdiocese could 164 not have been negligent in their employment of Kapoun. Other people whe have testified about abuse situations of Father Kapeun, specifically Michael nearing, and unfortunately I have forgotten one of the names but Mark Schuts, and the other gentleman and I am sure I will recall his name in a moment. they all testified, cf course. that they tee were sexually abused by Kapeun, but you will recall that none of their testimony indicated that any of these matters relating te their abuse came to anyene's attention until the late 1980s, leng after the plaintiff in this case was abused. So the important thing is if Dale Scheffler was abused in June 1931, what was the state of the knowledge of the archdiocese in June 1931, because that's what's important to determine whether it was negligent. either negligently retained Father Kapoun or that it negligently supervised Father Kapoun. The only evidence in this case of anything that may have come to the attention of the Archdiocese before June of '31 regarding Father Kapeun was this question ef whether or not the Tuma report was made to the archdiocese before that time. How, that of course leads us to examine the question of whether it is more likely true than not true that Monsignor Srnec reported the Tums matter. If it is not more likely true. then plaintiff has not met his burden of proof. How, certainly Monsignor Srnec says he reported the Tuma matter to Bishop Roach in September of 1913. That was his testimony. Yet as you have been told the Archdiocese file does not reflect any such report. an archdiocese file on Father Kapoun is Exhibit No. 1. It's many pages of documents from his church file from its inception up through 1951 which is the year that Dale Scheffler alleges he was abused. how, each of these pages, although it's Exhibit No. 1 in its totality, each of these pages is separately numbered, and I will be referring to a couple of those pages in my remarks, but I will tell you the page numbers so that when you deliberate you are able to find those pages. How, Monsignor Srnec says he only recalls one meeting, only one meeting with Bishop hoach to discuss Father Kapoun and what to do about him. Now, if we look at that Exhibit No. 1 and specifically if we look at page P0064. you will see on that page a memorandum prepared by Bishop Roach. It is dated July JD, 1974. and that memorandum says in part. "Honsignor Srnec came in to talk about Father Robert Kapoun." Now, 166 this memo is almost a year after Monsignor Srnec recalls he talked with Bishop Roach. Yet at the same time Monsignor Srnec recalls only one such meeting. If Monsignor srnec recollects only one meeting about Kapoun and there was a meeting on July 3d. 1914, then the question exists and the possibility exists, therefore. that Monsignor srnec is mistaken and that he may never have conveyed the Tums matter to Bishop Roach or anyone at the Archdiocese. as I said the question is is this possible. First, of course. is the testimony of Bishop Roach himself. He says he never got the Tuma report from Srnec and that he recalls the discussion in 1914 about Kapoun's back injury and Kapoun's request for a transfer. Let's look again at Exhibit 1. and specifically again the same page 64, July 30, 1974 memo from Archbishop Roach and it's a memo to the personnel file of Father Kapoun. Now, in this he also quotes Monsignor Srnec as finding it quote, "hard to understand that Father Kapoun appeared to get along well for over two years and now finds a change of assignment necessary." close quote. Describing Kapoun as having gotten along well for over two years would be an odd description if there had been serious charges of sexual misconduct leveled against him. Again, it raises the question is it possible that Monsignor Srnec did not report this to the archdiocese. How, Exhibit 1 at page 65 also reflects a letter from Monsignor Srnec dated September 1c, 19?4, and you will see from the file that this letter comes after Kapoun hes been assigned out of st. Raphael's which is the parish where Monsignor Srnec was the pastor. You will see on page 55 of Exhibit 1 an assignment letter dated august 19?4 by archbishop Leo Byrne the then presiding archbishop where he appoints Father Hapoun chaplain at the Home of the Good Shepherd effective September 12, 1914. He goes on in this letter to say, make this appointment on the basis of your request, father, and I hope that these next months will be beneficial for your recovery to full health," and you will see in this file numerous descriptions of the back injuries and surgeries and treatment that Father Kapoun received for that back injury, but following archbishop Byrne*s assignment of Father Kapeun out of St. Raphael's and to the Home of the Good Shepherd in august of 1914 actually effective September 12, 1974, Monsignor srnec writes in response to receiving a copy of that. fl-'Lilliwas Here again that's page 63 of Exhibit 1 and Monsignor Ernec says in his letter in part quote would have preferred to have father stay and recover his health here but he did not wish to." period close quote. now, other matters are going to warrant some discussion regarding whether Monsignor Srnec is simply mistaken in his belief regarding whether he reported this Tuma matter. Recall if you will certain testimony by other witnesses in this case. Dale Scheffler testified at one point in this case that up at Kapoun's cabin Russell Braith, he, and Kapoun took showers. Russell Eraith testified that he didn't take a shower. Father Kapoun said there was not a bathroom in the cabin at the time for anyone to take a shower. Dale scheffler also testified in this case that Russell slept on or in a sleeping bag at the cabin, but Dale Scheffler said he didn't sleep in a sleeping bag. Kapoun testified, of course, that both of the boys slept in a sleeping bag. Russell Braith testified quite adamantly I might remark that if anyone says someone was sleeping in the sleeping bag they are lying, but yet Dale Soheffler acknowledged that someone was sleeping on or in the sleeping bag. How, Dale soheffler also acknowledged some T59 helief that Father Kapounis mother may have been at the cabin over those two days. Kapoun and Russell sraith both said she wasn't there. Dale Scheffler testified that Kapoun drove them up to and back from the cabin. Yet Russell Braith testified that his mother Mrs. eraith brought them home. Recall also that or. Hera said during his treatment and therapy with Dale Scheffler he discussed with Dale Soheffler the idea of taking a break from therapy. Yet when I asked Dale Scheffler about that. he said they didn't discuss that. Now, in each of these other instances that I have just referred to of the testimony that you have heard here, there is two different things that have been testified to. Neither one of them they both can't be correct. In order words. in each of these instances someone is mistaken. one person says one thing. another person says another thing. In trying to determine the truth, you cannot be led to believe one is more likely true than not true. The same can he said for Monsignor Srnec and the Tuma matter. Monsignor Srnee says he have the report to Bishop Roach. Bishop Roach said he did not. Monsignor Srnec said he had just the one meeting with Bishop Roach. and the records. records prepared TTO over 20 years ago when the memories were fresh, reflect that this meeting was the July EG. 19?4 meeting which came as a result of Kapoun asking for a transfer from St. Raphael's. Now, if the evidence about this does not lead you to believe it is more likely that the claim is true than not true, in other words, if the evidence does not lead you to believe that it is more likely true that Monsignor Srnec reported the Tums matter to Bishop Roach than net true. then that claim has not been proved by a greater weight of the evidence. The plaintiff has the burden of proof on that question, and that relates directly to the questions 5 and 1 on the verdict form of whether the Archdiocese either negligently retained Father Kapoun or negligently supervised Father Kapoun. How. in his opening Statement. the attorney for Scheffler said that the archdiocese turned their back and swept it under the rug. You, however. have heard the testimony of both Monsignor Ernec and Bishop Roach. Between them they have over a century of service as Catholic priests. he to the special verdict questions number 5 and then, negligent retention and negligent supervision, I would suggest that you answer each question no. 711 However, if you find that the archdiocese knew about this and failed to do anything, then you will he required to answer that question yes or questions yes. Remember in answering that as I said that they have the burden of proof. It has to he more likely true than not true. If you can't say it's more likely true than not true, then you have to answer those questions no. new, depending on your answers to those you will also he asked to answer two other questions if you find an answer of yes to either of the negligence questions. Questions 6 and are the corresponding questions you would be answering and the verdict form tells you which questions you answer so that won't be difficult, but they are the direct cause questions and those questions are if you find negligence on the part of the Archdiocese. you will he asked to determine if that negligence had a substantial part in bringing about any of plaintiff's injuries. Now. once again I hayen*t suggested by anything I have presented in this case or argument that if Dale Scheffler was abused as he alleges that he didn*t suffer some injury or damage as a result of that. and that gets us to questions number 9 and number 1fl on the verdict form. Those questions 9 and I2D-Jonutua-L-.1-tare the damages questions. Eon are going to he asked to answer these questions regardless of your answers to any of the foregoing questions, so no matter how you answer the first eight questions you are going to he told that you must answer questions 9 and 10. 9 and we each have three parts and I have written that up on the board here and we are going to talk about that in a moment, but I want to tell you about what 9 and 1B are all about. Question number 9 is a question about the sum of money to fairly compensate Dale Soheffler for his damages up to the date of trial so up to the present time. Itis going to ask you what sum of money might be awarded to fairly compensate Dale Soheffler for his damages up to the date of trial. as I said you are going to he asked to answer that no matter how you answer the other questions. Question number 10 is similar except it's a question of the sum of money to fairly compensate Dale Scheffler for his damages reasonably certain to occur in the future. That means from the present time forward, and in terms of present time forward you will he told as part of the instructions how old Dale scheffler is and what kind of life expectancy Dale Soheffler has as a result of his current age, and you 713 will find that figure in the verdict form. How, the judge again is going to instruct you on the law regarding damages, and this is extremely important. He is going to tell you that a party seeking damages. and that's what Dale Scheffler is in this lawsuit, he is a party seeking flamages. The judge when he instructs you is going to tell you that a party seeking damages must prove the nature of those damages, they must prove the extent of those damages, they must prove the duration of those damages, how long is it going to occur in the future, is it two years, five years, is it for the rest of his life, and he is going to instruct you that a party seeking damages must prove the consequences of his injury. Again, the plaintiff has the burden of proof, if he seeks damages to prove those damages. Now. also very important is the judge's instruction that in determining those damages you as jurors must not base the determination of those damages on speculation or guess. rou have got to have the proof. You can't guess and vou can't speculate as to what those damages might be or how much they might be. How, the judge is also going to talk to you about something called aggravation of a pre--esisting --I. -.1 .--?74 injury, condition. I want to talk about that for a moment. The judge is going to instruct you on aggravation of a pre--eristing condition. He is going to tell you that a person who has a defect or a disability of some sort is entitled to damages for any aggravation of that pre-existing condition. How. you recall testimony in this case. It has been discussed repeatedly. It was testified to by Ms. Rice from Learning Disability associates. it was testified by Dr. John Gonsiorek, plaintiff's expert. and it was testified by Dr. Walter Beta who is plaintiff's therapist. They all testified that Dale seheffler has a learning disability that preexisted any abuse by Kapoun. That it likely existed from birth. If you find that this learning disability was exacerbated by the abuse or aggravated. damages are limited according to the judge's instruction to those that result over and above those from the pre-existing condition. That's the law. In other words, damages may be given only for the aggravation of that pre-existing condition, not for the pre-existing condition itself. so if as you find and the evidence certainly supports the fact that Dale Scheffler had a learning disability. if you decide that his learning disability has been exacerbated or aggravated as the law recall it. then you are entitled to award him damages for that but only for the aggravation. not for the underlying pre-existing condition itself. now. I want to talk a bit about these questions number 9 and 1D. and to do that, we are going to use what I have written up here which you will see is the same in essence as what is going to be on the verdict form. How, the verdict form is going to ask the questions. It will have a description of the question and then it will have blanks just as I have filled in up here. as 1 have said. this first one is question number 9 and that's the damages to the date of trial. damages that Dale Scheffler is seeking or entitled to from the past up to the present time. The question is. "What sum of money will fairly compensate Dale Scheffler for his damages up to the date of trial?" and they will be broken down into three categories, medical, therapy and counseling. loss of earnings, disability, emotional distress and embarrassment. and then you will he asked to do the same thing on question number 10 which asks the same question but only with respect to damages reasonably certain to occur in the future, so this is past damages, future damages that you might determine. Again you are going to be asked to determine these damages regardless of your answers to any of the other eight questions. You will have to fill in these blanks with something no matter how you answer the other eight questions, so I want to talk and of necessity I have to talk about what numbers you should fill in here. Let's start with really the easiest one, medical. therapy and counseling expenses up to today's date, up to the date of trial. we know what those are. You will see in the exhibits, exhibits that list all of those expenses. specifically they are Dr. Bera's expenses and this is Exhibit No. 7. It*s Dr. Bera*s expenses for his therapy of Dale Scheffler. The amount of that is $2,125. You will also see there billing from Learning Disability associates for the learning disability assessment they did. That amount is $360. You will finally see the bill from Park Nicollet and you will recall Park Hicollet is where Dale Scheffler went for a very brief time to get some medication that he stopped using after a couple of weeks so their bill is $53. Now, the total of those three items is $2,543. and that's what I am going to suggest that you put in that first plan. $2.543, because those are the damages that have been proved for medical therapy and counseling expenses that Dale Scheffler has incurred from the past up to the present time. The next blank you can see is a blank for loss of earnings. again, this is loss of earnings that he is actually it's less of earnings that you would determine would fairly compensate Dale Scheffler for loss of earnings up to the time of trial. how, no loss of earnings has been proven by Mr. Scheffler in this case. Recall his testimony of his employment since he was in high school. In fact while he was in high school he talked about how he worked in high school, that he eventually went to work for Dwatonna Tool after he completed his vocational education. You will recall he graduated in 1936. He worked for a period of time, then he dropped out of school in the 11th grade, and then he continued working while he was in the 12th grade until he graduated. and upon hie graduation he went to cwatonna Tool and began working while he was going to the vocational school and continued working for Dwatonna Tool for some period of time. He talked about then going to work for kreuser roofing, for working with Bryan Red Rock. working with Soheffler Roofing which $75 was his original company and then ultimately his work with allied Exterior. In all of that he has had virtually no period of lost work that he claims is due or in any way related to Father Kapoun. How, he did of course take some time off for therapy sessions. rou will be given as part of the exhibits as I mentioned earlier Exhibit which is Dr. Bera*s billing for his therapy sessions. You will see that there is approximately 20 in all therapy sessions that he has attended. In 1995 as Dr. Hera testified Dale Soheffler attended 11 therapy sessions. He had four that were scheduled but he failed to appear at those appointments, and you will see on here too. Each time he failed an appointment that's indicated on Dr. Bera's bill, but you will also hear that there was a break in therapy. Since last September Dale Scheffler has not been in therapy. Now, again 1 want to remind you of the Court's instruction that damages must not be based on speculation or guess- The question then is what loss of earnings is Mr. Soheffler entitled to. There has been no proof of the kinds of loss of earnings that he may have incurred here. In fast I am suggesting to you that there is no proof of any loss of past earnings on the part of Mr. Scheffler. Now, also introduced into evidence are various tax returns of Mr. Scheffler, and you will see in Exhibit 12 through I believe it's 15 his tax returns. The tax returns reflect that beginning in 1990 which is the first exhibit, he was making 14,6Dfl some dollars and that by *93 his income was Now, '94 is a little different because he has his own company, and certainly there has been nobody testified about these tax returns. They were submitted into evidence without any discussion of them, and you will certainly see that in his '94 tax return he shows a loss of income, but if one bothers to look at the exhibit itself, and that's Exhibit 16, you will see that from his se1f--emp1oyment -- and that's his own business, as he describes he has his own rooting company -- and you will see that this exhibit reflects that the gross receipts in that roofing company were over $30,000 for 1994. In essence, on these questions of loss of earnings, the plaintiff has the burden of proof, and as I have indicated they can't be based on speculation or guess and in order to fill a dollar amount in there, we would simply have to sgeculate or guess what that amount is, Therefore, it*s my suggestion that the amount that be out in there be zero. ID-lDm'-lflihfl-hhihj Now. if you choose to put some small amount of money in there for the 20 therapy sessions attended and presumably he missed work. although I am not certain there has been much testimony about how much work he missed or what the value of that would be. you certainly can consider some amount of money to be placed in that spot for loss of earnings, because he has attended as I said approximately 11 therapy sessions in 1995. The nest blank. the next blank is damages for disability, emotional distress and embarrassment. Now, here again those amounts are going to be indicated excuse me. Those terms are going to be defined for you in the Court's instructions. the instructions you are going to have with you. It will define the terms disability, emotional distress and embarrassment. rou will be then asked to determine based upon these definitions what amount should be awarded to Dale scheffler for each of those items up to the present time. Now. there is no special yardstick, there is no special magic in terms of what amount should be awarded for that. I would suggest that you approach it in this fashion. Between this loss of earnings and the disability. emotional distress and embarrassment. I think you should pick a T31 number as to what those two things should total, and what I am going to suggest to you is that you award $Bfl,flDU as your determination of what amount will fairly compensate Dale Scheffler for his disability. emotional distress and embarrassment up to the present time. How. you are only half done with those blanks obviously at that point. so the necessity then is to do the same thing with respect to the future damages. and as the verdict form will say, "damages reasonably certain to occur in the future." How, once again the judge will tell you in order to award damages for future injury or future damages, it must be proved that such future injury is reasonably certain to occur. again, is the greater weight of the evidence more likely true than not true about what future injury, so let's talk for a moment about the testimony thatis come in and the evidence that has come in this case about whatever future damages Dale scheffler might have and what sum of money will fairly compensate him for those future damages. Recall if you will or. Bera's testimony. Dr. Bera's recommendation is that Dale Scheffler attend 30 therapy sessions per year for the next five years. He testified that that would be 15G therapy sessions in 132 total, and he testified that his current rate is $95 an hour. Now, you will see on Dr. Bera's billing that last year his bill was $35 an hour. How he says his rate 595, but let's use that figure. JD sessions for five years is lfifi sessions times $95 is And I am going to write some numbers on the board here in a moment, but the kind of therapy that Halter Bera was talking about individual therapy, 30 sessions a year for five years. the total cost of that is $14,25fi. Now. Dr. Hera also recommended that Dale Scheffler attend weekly group therapy with other male victims of sexual abuse for two years. That's another hundred sessions and he indicated that the current cost of those therapy sessions is $55 an hour. That totals Now, you will also recall that Dr. Esra said that Dale Scheffler is possibly going to need therapy at various times for the rest of his life, and he used a life expectancy of 30 years for Dale Scheffler, and said that he would possibly need five therapy sessions a year for 30 years which is another 15D sessions. and using Dr. Hera*s figure of today of $95, that too would he $14.25fl. so totaling all of those up. 39 sessions a year for five years, group therapy for two years, once a week. and then therapy for the next 30 years, five --I _e -4 clip --763 times a year, the total amount there is Now, let's add something to that. Remember the report from the woman. Ms. Rice from Learning Disability Associates. She talked about Dale Soheff1er's need for individualized instruction. She talked about the suggestion and recommendation that they made to him that he have 12D hours er individualized instruction and that the cost of that is $35 per hour. That amount totals $4,200. so adding that $4,230 to the $34,000 for all the therapy that Dr. Beta testified is a total amount for future medical. therapy and counseling expenses of $3B,2flU. flow. remember this is full expense, this isn't just for aggravation of his learning disability and any problems associated with that. This is the full expense of what they have testified those items would include. $3E.2Dfl. Now. let's remember also that Dr. Here is suggesting that Dale scheffler attend 3U individual therapy sessions a year and that he attend weekly group therapy sessions which is approximately -- given two weeks off for vacation, that's about ED sessions a year, so that totals about 30 therapy sessions a year. Now. as we have heard bale Scheffler last year went to 11 therapy sessions. Missed another four 734 because as he says pressures of work and those kinds of things, so there is some serious questions certainly about his ability to attend therapy in the fashion that Dr. Bern would recommend, but even at that the amount of that is 533,200. How, let*s again turn our attention to loss of earnings, loss of future earnings. Here again no loss of future earning has been shown. Plaintiff testified that he is keeping busy with his company, Allied Exterior, even with the bitterly cold weather. Now or. Gonsiorek testified that he found that Dale soheffler has suffered some occupational diminishment, but as bale Scheffler said he is keeping busy working on his job. He has his wife and two other employees working for him and at times he has indicated he has four other employees doing the work of his company. Last summer as he indicated he was able to take a vacation to the Black Hills and recently he took a trip to Haiti for ten days. I remind you again plaintiff must prove his damages. If you are forced to speculate or guess as to his loss of future earnings. he hasn't proven those damages, so my suggestion in terms of loss of future earnings is that this amount as well be zero. There is simply no evidence in this case upon which you can 735 base any award of loss of future earnings in order to quantify that. In fact, Dr. Gonsiorek when he talked about that says that he didn't feel competent to even make a determination of that. Now, Dr. Gonsiorek testified to another thing that I want to talk about a hit and that is this global assessment of functioning and Dr. Hung explained that a little bit more thoroughly yesterday, but in essence an axis 5 under the Diagnostic and Statistical Manual for mental disorders they are suggested to apply a global assessment of functioning number to him, and Dr. Hung says it was about 55 and that was pretty similar to what Dr. Gonsiorek said. Dr. Gonsiorek went on to say that without the abuse he believes that it would have been higher, somewhere in the 80s, and there is going to be perhaps some suggestion that somehow you can use this global assessment of functioning to somehow determine what Dale 5cheffler's loss of future earnings are. I havenit heard that testimony that would allow you to make that computation to fill in a number in that blank. I simply don't know how you would do it using those two figures of 55 and SD or whatever it is. again, I want to emphasise the plaintiff must prove his damages. If he has been unable to prove to uuln --.I. -1 4 (A786 your satisfaction by the greater weight of the evidence more likely true than not true that he suffered lost of future earnings, then you put zero in that blank. Now, the question also becomes of what amount to award Dale scheffler. and again the question is what amount of money or what sum of money will fairly compensate Dale Scheffler for his damages reasonably certain to occur in the future as it relates to disability, emotional distress and embarrassment. as I told you in my opening statement, if you find that Dale Scheffler is entitled to damages, you should compensate him fully and fairly and that's what the question says. what sum of money will fairly compensate Dale scheffler? as I discussed with you during jury selection. it would be unfair to Mr. Scheffler and to the archdiocese to award him more damages than he is able to prove, just as unjust to award him less. Dr. Bera described what Dale Scheffler has is a moderate case of the blues. That's Dr. Bera*s term. not mine. In his chart notes, Dr. Bera in seeing Dale Soheffler, and that's Exhibit 4, has at times indicated what his condition was. In July and August of 1995 he described Dale Scheff1er's condition as stable. expect Hr. Scheff1er*s attorney will suggest you award him damages of many hundreds of thousands of dollars. but what you each must ask yourself is has he met his burden of proof of damages of that magnitude and is that fair compensation. Damages are awarded not to punish a party but to fairly compensate an injured party. nothing less but nothing more. For that reason I would suggest that for future damages. disability. emotional distress and embarrassment you place in your verdict form the sum of $40.000. Damages. as Judge Larson will instruct you. means a sum of money that will fairly compensate a person injured. Not a sum of money to punish anyone, not a sum of money out of sympathy hut only to compensate a person injured. In making your determinations, you will he expected to follow the law. as I told you the judge will instruct you on your duties and that you must decide the case solely on the evidence. You must not permit sympathy. prejudice or emotion to influence your verdict. We would ask nothing more of you nor nothing less. In deciding what amounts to include. in response to questions number 9 and number 10, you should he guided hy those instructions of the court and award only the amount that's fair to all the 1| -u-Iin.) L11 735 parties here, not to punish but what is fair to compensate Dale Scheffier for his damages, past and future. Nothing more, nothing less. Thank you. THE COURT: We are going to take a ten--minuto break and I am going to keep it to ten minutes. [Recess taken.) THE COURT: You may proceed, Mr. Brown. HR. BROWN: Thank you, Your Honor. tour Honor, counsel, members of the jury panel, this is not a case about Michael hearing and Father Kapoun. This is a case about Dale scheffier and Father Kapoun. This is a case about Dale Scheffler making accusations against my client. This is a case in which Father Hapoun has told you two times from the witness stand there was no sexual abuse. There was no improper conduct on his part. He has told you that he abused Michael nearing. He has told you he is sorry about that. But that's history. Today we have to talk ahout Dale Scheffler. That's tough stuff. Tough stuff for you, tough stuff for us. out that's our job. There is an old book, Trouble with Lawyers, and I shouldn't say old but it seems like it's 10, 15 years ago some detail to mimic, criticise and say some things about lawyers that we In739 lawyers probably didn't like to hear. and I am sure there are other books like that. My wife tells me she could write a book about lawyers. She could tell you many stories having lived with me for 2D, 25 years. and some of her favorites, and I try to keep these in mind when I give final arguments, one of the best ones that she tells me is that lawyers can take anything that's simple and turn it into something so oomplioated and so convoluted that it gets everybody lost. I will try not to do that in this closing argument. This is a simple case. My wife says that lawyers talk gohhledygook more than our kids talk gohhledygook. She says just talk English. just say what you are going to say and then sit down. and I am going to try to do that. She says you lawyers are kind of like politicians. and maybe we are and that one there is a reason for it. but she says you talk out of hoth sides of your mouths and she is right. we stand up here and say on the one hand suoh and suoh and suoh and such but then on the other hand something else. That's lawyers. The best advise that all of us can I think learn from some of these books is that we should be honest. we should be direct, and we should be up front --?9fl with our cases. we should tell you what happened. tell you what happened in English, not not Latin, not legalese. and tell you what you are supposed to do when you go into the jury room and help you decide the case as the advocacy system was designed to he used. and that's what 1 am going to do today, and I will be right up front. be as blunt as I possibly can and I will tell you again Father Hapoun abused Michael bearing. Father Kapoun now faces accusations from another youth, no longer a youth. accusations from someone now 15 years stale. Because of Michael Dearing, because he was and is the polka padre, because he has been in the news media from time to time, both for good things and for bad things, because he is a Catholic priest, he has got his work cut out for him with you. He knows that. He knows that he brought some of this on himself. He deserves it. but he also welcomes the opportunity to have this case heard by you. He welcomes the opportunity to use this court system to look at the accusations which have been made against him. The accusations in one case and only one case. the case of Dale Scheffler. Itis much easier to follow the rules of the judicial system and the rul- 1| nulT91 adversary system than any other rules. He feels comfortable telling his story to you. I only hope he feels comfortable using me to tell his story to you. The law does not require that my client, Reverend Kapoun, disprove these accusations. The law does not say that he has a burden of convincing you that - this is a double negative and now I am getting into the gobbledygook -- but he does not have to prove that he did not abuse Dale It's just the opposite. The burden, the job, the proof must be presented by Dale Scheffler. He is the accuser. That's our system. any one of you would welcome such a system where he who accuses must prove his case. He who has been accused need not disprove his case. That's the beauty of our judicial system. This is my last opportunity to speak with you. I don't know what Mr. Anderson is going to present. I had no knowledge of what Mr. Eisenzimmer was going to tell you. Now that I know I can try to at least not repeat some of what he has told you, and I will promise to do that. when I stood before you at the beginning of the trial I said this is a case where we have to cross examine witnesses. where the evidence that you hear comes from the people who sat in that witness chair, --I .--?92 the evidence that you must use. and that's all you can use, to decide this case must come from those witnesses and from these exhibits. My job in representing Father Kapoun is to cross examine and in this case to present my witness, Father Kapoun. My job is to polk around with the testimony. My job and I only hope I have not offended any but that's my job. I have to get at the truth. The only way we can get at the truth is to polk those questions. and what I try to do is ask those questions that I would ask if I was seated in the jury hos. Is that believable? Does that make sense? Does my common sense every day logic tell me that what this person said, much of which was gobbledygook, much of which was not, does that fit together? That's my role. That's all of our roles, Mr. Anderson, Hr- Eisenzimmer and my own. so if there is anything I have said or any questions that I have asked that you thought gee, I don't know if you should have asked that Brown, please bear in mind I am doing my job as best I can to follow the rules that we have to follow and to bring out the truth to defend my client within the rules of a trial of this nature, of a civil trial involving monetary A --T93 damages. The lawyers are not on trial. Sometimes you might wonder the way we carry on. and I have to say that Mr. nnderson is an excellent lawyer. I think Dale Scheffler is very privileged to have him as his attorney. He knows his stuff and I am sure vou all saw that. He knows his stuff and he works well with his expert witnesses. He handles many of these cases and you can tell that. He has worked well with Dr. Hera. He has worked well with Dr. Gonsiorek. They have had other cases together and that*s no secret. In fact. Dr. Hera said I thought that upwards of half or more of the cases in which welter Here is treating a sex abuse victim who has a claim or a lawsuit pending that they also are using Jeff Anderson as an attorney. But this is Dale 5cheffler*s case. It's not anyone else's case. This is Father Kapoun'5 day in court. The verdict form will have I believe ten questions and I snuck up here while you were out and put a question that I am going to be discussing. This is question 1. "Did Father Kapoun sexually abuse Dale Scheffler? Yes, no." I will focus on that question first. Mr. Anderson if I counted right. and if you .--.I .--I. Id 4 'Lil ?94 recall it differently and have something different in your notes, what you heard certainly is what you must go with, but I counted 11 separate witnesses that Mr. Anderson called on behalf of Dale Scheffler and one of those was Father Kspoun in an effort to produce evidence to answer question number 1. Question number 1 needs evidence from those who were at the cabin in June of 1931. There were only three people there. Not 11. Three. and only two of those three can speak to the issue of whether or not there was sexual abuse. That's the problem that Father Kapoun as a priest. as someone accused of abusing a youth, someone accused of abusing a youth that occurred 15 years ago, that's a problem he has. But 11 witnesses were called. or those 11 witnesses, only two produced evidence of what happened on the evening in June of 1931. Mark Tuna, Michael nearing, Curt Raymond, and Mark Schuts or Schutr can add nothing to your understanding of what happened on that evening in June 1931. or those four, three have made accusations themselves against Father Kapcun. but they are only accusations. Of those three, two have lawsuits against Father Kapoun. Father Kapoun has denied all sexual abuse with three of those four. The two seek '195 recovery of monetary damages themselves from the Archdiocese and from Father Kapoun, but they were not at the cabin in June of 1931. or the 11 witnesses there were Dr. Hera. Dr. Gonsiorek, Ms. Rice, and Pastor Vanfielder. What did they tell us about what happened in June of 1931? Think about that. what did they tell us about what happened on that day 15 years ago? What they told us is what they heard from Dale Scheffler. They told us what they wrote down, and they have in their notes some of which will be in exhibits, or what they remember hearing from Dale Scheffler, and they didn't hear this until 1932, 1933 and some cases 1934. It's obvious they werenit there. what they told us is what they wrote down, what they remembered hearing and didn't write down, what they perhaps heard from each other, what they saw in writing so that they had obtained documents and records and depositions and all sorts of things that were supplied by Mr. Scheffler or by Mr. Anderson or by one of the others, but all they know is what they learned for the first time in 1932, 1933. and 1934. and what did they learn? what did they learn that would help you to answer question number 1? I know one thing they said that would help to you answer T95 question number 1. They said that Russell sraith, that Dale Scheffler and Father Kapoun woke up in the morning and they took a shower, and they said this was almost a ritual sort of deal that based upon what they saw Father Kapoun encouraged all three of them to take a shower after they had been at a lake home in the summer. They said that Father Hapoun or that this was now what they are reporting from the sources that I have described that Russell Braith went in first to the shower. and he said that Dale Scheffler went in next and that Father Kapoun went in nest, and then they relayed even more about that as far as what Dale scheffler felt. saw, heard from Father Kapoun while he was in the shower. But do you know what? They are all wrong. All those witnesses reported something that was wrong. They were mistaken. We know the well digger has told us indirectly that there was no bathroom, there was no shower. There was not a well in the summer of 1931. There was not a well in the summer of 1952. The well came in September of 1992. So this shower, this almost a ritual of going into the shower so Father Kapoun could observe, where did that come from? It didn't come from Russell Hraith because he IGIIQCB-JDI 79? agrees. He didn't go in the shower. That's stupid. I didn*t go in the shower. I was in the lake. It didn't come from Father Kapoun. So of those 11 witnesses we are back down to where we started. we are back down to Father Kapoun and Dale Scheffler. Now, how are you going to answer that question. one other thing that I should tell you about that. One of Mr. Scheffleris own witnesses. Dr. Gonsioreh. said yesterday when we were picking away at him and trying to get him to say something that would help us, he did say something that would help us at long last. He said this. He could not render an opinion now he rendered a lot of opinions but he could not render an opinion on whether or not Dale scheffler was accurately or truthfully reporting what happened back in June of 1951. Those were his words. He said that*s not my role. an expert in a case cannot do that and should not do that and I did not do that, and I don*t know whether or not Dale Scheffler accurately reported, truthfully reported to me in 1994 what had happened in 1951. Dr. John Hung was asked that same question and without question he said no, we experts, we we therapists. we cannot answer that question. too won't let us answer that question. You .4 --193 have got to answer that question and that's why we have the jury system. How. so where does that leave us? That leaves us with Father Kapoun who says it did not happen and that leaves us with Dale Scheffler who says it did. Does that mean you are going to have to sit here and say well, Dale Scheffler you are a liar or vou are not telling the truth? or Father Kapoun, you are a liar. I do not believe you. That's hard to do. Human nature is such that we don't like to think anyone is not telling the truth. and more often than not people are telling the truth and trying to tell the truth and trving to be accurate and trying to remember what happened. I suggest that you can answer that question without saving to Dale Scheffler we don't believe you. I suggest that you can also answer that question without looking at Father Kapoun and saying we don't believe you. one of the ways that you can answer that question without calling either one of them untruthful is to look at the instructions that the Court is going to give you of what Mr. Eisenrimmer and I am sure Mr. Anderson will describe, the burden of proof. The fact that the accuser must come forward with the greater weight of the evidence. The accuser must convince you .--.?99 that it is more likely than not, more likely than not that it happened the way the accuser says it happened. Dnly, if and only you are convinced that that's the case, can you put an on yes. If you are not convinced, if it's a tie, you know we talk about the scales of justice. if the scales are tipped ever so in favor of Father Kapnun because of questions you may have, you must put in a no. If itis even a dead heat, it doesn't tip one way or the other. the law requires you to put in a no. You are not permitted to put in a yes unless you are convinced that the greater weight of the evidence suggests a yes. how. 1et*s talk about how we should evaluate or you should evaluate that evidence and we go back to the only two witnesses. Dale Scheffler is remembering now something that happened 15 years ago. Dale Scheffler was then 13 or 14 years old. one of the experts with some opinion that he was naive ahout sexual matters. Those are facts. Remember that Dale Scheffler has had some rocky times over the past let's say ten years or ten years up until 1991. Tough times. He has had chemical dependency problems, he has had learning .-I .--BED disabilities problems from birth, he has had job changes, he has had on again, off again relationships and fortunately now has found a wife, seems to be getting along very well with that, but over those times it has been tough for him. Tough for any of us that have gone through that. but it was tough for him, and we are asking him now to go back and recall one incident 15 years ago. He may have been mistaken. I think he was confused. Let's talk about that the sleeping bags. Maybe wonder why I get into some of these details and I told you at the beginning that my job was to kind of clear up details. I told you too and the Court will tell you that you are not to lose your good common sense. your everyday logio when you are oarrying out your function here as jurors. Common sense. What happens? What makes sense? sleeping bags. There is a disagreement hut Father Kapoun clearly has told us there were two sleeping bags at the cabin. Russell Braith has told us that he wasn't in a sleeping bag. that he didn*t use a sleeping bag. Dale Seheffler says yeah. there was a sleeping bag, but as he thinks back he d1dn*t use it so Russell must have used it. well, somebody is wrong. but if we can assume that there were two a.L..alB31 sleeping bags and somebody was using them and if we can assume common sense everyday logic, we have a situation with a house. a cabin under construction. a wood floor . Father Kapoun with his bad back has a mattress, pulls off of a cot and puts that in the middle. He is concerned about where the two youth will sleep. He is concerned about his back but he is also concerned about these youth, so he pulls out the sleeping bags. That makes sense. That's logical. Now. there were two sleeping bags in the cabin and one of them at least one of them had a sleeping bag. but if you have two sleeping bags beside the cot, doesn't it make sense that it would be physically impossible for the abuse to occur that male Scheffler describes. sleeping bags. You are inside a sleeping beg and Father Kapoun is on a mattress. whether it's five feet or five inches away, it's physically impossible for Father Kapoun to have assaulted bale scheffler in the manner that he describes. He would have to even if he was asleep he would have to roll off that or get off that mattress and somehow get on to the sleeping bag and then inside the sleeping bag. I suggest Dale scheffler could be confused and certainly he is mistaken. --They talked about eating. and maybe I didn't bring this out as artfully as I could have. but again Dale scheffler believes they came in and they ate. Father Kaboun says they couldn't have. There was no facility for eating. They all agree, however, that they stopped to eat on the way up there and that would make common sense. That would be logical. If they weren*t going to eat when they got up there, they would stop and eat and that's what they did. but again, and we all would have trouble going back 15 years remembering these kinds of details. but they all remember that they ate on the way up there. Dale Scheffler though is mistaken or confused as to whether or not they ate again. Talk about a game room. There was no game room. The cabin was just a mess. In fact they were in an area I thought Father sapoun said that used to be the bathroom and the bedrooms. The walls were down and they were constructing the rest of it. That's consistent with what Russell Eraith remembers. Remember he says there was some kind of an odd deal, because there were parts of the cabin he couldn't go to. He probably didn*t go to the other rooms because there weren*t other rooms or maybe they were behind sheetrock or building materials or what have you. 303 That makes sense. Thst*s common sense. That's logical. And then we get to the shower. I am trying to do I am trying to keep it simple. Don't make it complicated, Brown. It's simple. It is simple. There was no bathroom. There was no water. There couldn't have been a shower, but if you will look at Exhibit 4. and that will be one of the exhibits that you will have, Exhibit 4 are the notes that Halter Hera made when he took this history from Dale seheffler on September 22, 1994. This is Exhibit 4 and you will find it here and he says this. He is describing now what happened. It's kind of hard to read but if you will look on September 22 you can get to this. He says this is Dale seheffler in the treatment, this is the nest morning. He wanted, he being Father Kapoun. to take a shower with me. Remember I tried to shower and get out before he got in. Father Kapoun got in just before I got out. did get out, was pretty sure he had an erection. he told me I was quote very special quote. He didn't feel right. Now, that is a lot of detail for someone thinking back to an incident, a lot of detail about things that if he was naive, raised some questions. sad But more importantly a lot of detail about something that absolutely couldn't have happened because there were no showers. In order to answer that question, you can certainly look at those inconsistencies. You can look at the rule that the Court is going to give you, whether or not there is more evidence than not that Dale Scheffler is telling the truth. Now, is there any other way that I can give you to help answer that question. and now I am going to violate a rule. I am going to start getting into the gohhledegook a little bit, but think about what was going on in hale 5cheffler's life when he started to tell Dr. Hera and Pastor vanfielfier and Dr. Gonsiorek what he remembered occurring 12 or 13 years before that. Think about that. Put yourself in Dale Scheffleris position. He had by that time been sober for two or three vears. and he was fighting, hut he was staving sober. He was Going a good job. He was now starting to remember back about the wasted years in his life. the times when he for whatever reason didn*t work up to his potential. and he is starting to come through that and to work through those problems. He is going back to religion. to the Friendship Church. He is starting to get into this how can I put the pieces together, how can 1 make Li -1 {Jul JiB95 sense of what's going on. How can I prepare myself for the future and there were some bumps even in that role. Remember he moved in or Ellen moved in with him in it was in 1991. In August of 1991. Things were going well for a year and then we get to august of 1992 and all of a sudden things weren*t going so well. and he was concerned because his relationship was pretty fragile and it was starting to fall apart again and Ellen has been through as because of her former husband. Then we get into 1993 and the Friendship Church situation shows up, and he again is trying to keep it together now. It has been since March 31, 1991 and he is doing it to his credit. He gets into the Friendship church setting and he starts to counsel with Pastor Uanfielder, and if you will remember. this is very important from Pastor vandelder, when he first saw him he wasn't depressed. Remember I asked this question I said was be depressed in July. No, no. Because if he would have been depressed he would have sent him down to Park Hicollet or some other doctor to get medication but he didn't do that. when did he become depressed? The first time that he counseled with him after the meh*s prayer breakfast. What was happening there? Well; he stood --I h.'started to say that he had some problems with the Catholic church, he was no longer in ohuroh. and people came up, people oame up who had also been at St. Patrioks. some people who arguably had some knowledge of Father Kapoun. and then Pastor Vanfielder said you know. think about this because once you start this process off, you know he wanted to write a letter. he wanted to go public. Ones that snowball starts to roll there is no stopping it. and it didn't. He waited. He waited many months before he sought out an attorney. He waited many months before he went to see Dr. Hera and started to put this thing all together. Now. where is all of that getting us? That's getting us to the point of he thought about Father Kapoun, he had known about the polka padre. He had known about other abuses and publicity and all of a sudden he knew he had spent an evening with Father Kapoun, he and Russell Braith together with Father Kapoun on one June of 1981. at this therapy he was starting to pick away at different things and starts to rationalize and we all do that. we all look for excuses. we look for people, for things, for situations we can blame. It's therapeutic, it makes us feel better. Maybe it's not right but we do it. :are now into 1993 and how can he put all of this together? He can put this together and this is done subconsciously. I am not saying this is plotting and scheming and working up things, but our minds rationalise, our minds put things together. He is saying well, I have lost a lot of my life. What are some of the things that I remember befiore I lost a lot of my life, before I got into two-and--a~half quarts of Jack Daniels a day, before I got into all of this drug abuse. He is dealing with a very fragile. extremely fragile relationship with Ellen. He is becoming active in the Friendship Church and the group is upset as he is that Father kapoun is still a pastor in a church not too far from Prior Lake and there could be a monetary recovery. That is the secondary gain. That is the explanation that Dr. Hera has told us about that there are times when people come forward and they make accusations that are not true. They make accusations that may be motivated by things that we would all be motivated by. By preserving a relationship, by money. one last thing on this question. one of the last instructions that the Court will give you I say the last in terms of what's on the written pages 503 that you will receive is one that will tell you in no uncertain terms. sympathy or prejudice. sympathy and emotion may not influence your decisions in this case. That's the law. You are not to permit in any way prejudice. sympathy or emotion when you move Yeur pen and take your vote on that*s going to be a yes or a no. Those words mean something. They are very important words. very important words for this jury trial. Prejudice. Let*s talk about it. You have heard a lot about the Catholic church. You have probably heard more bad about the Catholic church than good both in this courtroom and outside of this courtroom. You have heard and it may upset you. You may be sitting here saying this is terrible. This is just terrible. I am madthe Catholic church. You have heard a lot about the archdiocese of St. Paul and Minneapolis where they are kind of going like this as far as the Tuma statement, and I am sure you are sitting here sayinq gee. that's not right. I am mad. I don't like that archdiocese. I don't like that Catholic church. That's prejudice. You may look at Father Kapoun ano you are going to say that's terrible. EDS Michael nearing is no excuse. I have no time for you Father Kapoun when you do something like that. This is prejudice. too are all going to have that in your minds. and you should. It's human, it's right, but you have got to think about it, you have got to deal with it, and when it comes time to make your decision, it can't have any part to play in it. The way to deal with it is to talk it out, to get mad, to say all of the had things and then say okay, we have done it. we are not going to talk about that anymore, it has nothing to do with this case and then go on. That is going to he the single most difficult thing that you are going to do in that jury room in my opinion is to put aside prejudice, sympathy and emotion when you make your decision. Sympathy. If there is any truth at all to what Dale Scheffler has said. we should all be sympathetic to him. Even if there is not, he is an individual that deserves our sympathy. He deserves a lot of it. He deserves our praise. He is coming out of a difficult time of his life. of anyone's life. He could have just as easily gone the other way, and he told you how he was scared to death that he might not be around if he didnit deal with his chemical dependency problem, but he did. Just as with 310 prejudice, sympathy is something you have to deal with. Feel sorry for him, feel sorry for him for a long time. Shed a tear and say gee, we are fortunate we are happy you have made it and sure hope you can continue to make it out then put that out of your mind. That can not have anything to do with the manner in which you answer this question or the manner in which you decide those issues that have to he decided in this trial. If you were on trial. wouldn't you want it that way. That's the way our system is. Quit stalling, Brown. I have got to ask you to answer that question. I don't think that the evidence that you have heard would permit you to answer that question yes, I don't think the greater weight of the evidence in any way to permit you to put a yes in that box. Now. I think you know you are going to have written instructions so a lot of these things we are telling about you will see that in writing and I urge you to read those words on the burden of proof and what the evidence must show in order for you to answer yes as you approach that question. I also snuck in and out question 3 before you. That question reads. "When should a reasonable person in Dale Scheff1er's situation have known that -1. Ianwas sexually abused and that he sustained injury as a result of that abuse?" Let me just be sure I didn't skip any of the words. "when should a reasonable person in Dale $oheff1er*s situation have known that he was sexually abused and that he sustained injury as a result of the sexual abuse?" I just put dots there rather than writing it all out. Then it gives a month, day and year. Mr. Eiseneimmer has talked to you about that, and I won't rehash it too much except to say the reasonable person standard. tqain, those are words that you have to think about and words that you have to pay attention to. when would a reasonable person have known that he had been abused and that he had been injured? A reasonable person is any one of us. It's you, it's me, it*s a person on the street. That's the reasonable person standard. Using common sense, using logic, using your everyday experiences when would it seem reasonable to you that somebody would have become aware of, would have known, those two things. that he had been abused and that he had been harmed by it. I arm wrestled with Dr. Gonslorek a little bit on that question. If you remember. and I hope I didn't offend you by doing it, but he had said well, 312 it's pretty clear that he was distressed. He was distressed immediately after coming back from the episode at the cabin. He was distressed because -- Gonsiorek now saying because he went to his mother and he said you know that guy is weird. and I am concerned and let me just see if Hera wrote it down exactly. Stayed far away from him after that. I just said to my mom that he is weird and I don't want to be around him. and than Dr. Gonsiorek had spoken with his mother as well and his mother said yeah. she remembered something. She didn't remember all of the words, but there was conversation about Father Hapoun and about something happening and it just made sense. common sense. Just think. tour child comes back 13, 1d years old and comes in the door and says mom. that guy is weird and he is so weird I don't want to be around him anymore. How. going that far you wouldn't think anything about it. but then there must have been more discussion. Wouldn't a mother say well, what do you mean, son? well. he is weird. well, he a little more descriptive. whatever they said she told Dr. Gonsiorek I didn't want my son to be around Father Hapoun anymore. and he didn't want to be around --B13 Father Kapoun anymore and Dr. Gonsiorek said that that showed that there had been some distress and that the mother understood that there had been some distress and I said isn't that harm. well, he really didn't know whether it was harm or not but it was distress. If you put all of those pieces together and you think about a reasonable person who comes and talks about that. that would suggest that a reasonable person is early, and I would disagree with Mr. Eiseneimmer. Mr. Eisenzimmer talks about when he dropped out of school or when he graduated. because during that period of time he started to become more mature in sexual matters. he became so mature that he was into alcohol and drugs and some of those things, so he is suggesting a date May 30. 1936. I don't think it*s that complioated. I think it's simple. Very simple. He came home and he told his mother enough for both of them to decide that this was a problem. Now, why didn't the mother do anything. Remember, we are talking 15 years ago. We are talking 1981. we are talking a point in time when the publicity about priests had not hit the newspaper. we are talking about a time when you know people were still nervous about talking about these things to anyone let alone to suggest that perhaps a --E14 priest, the one that's on the altar every day, is the one. so when you come to this question, I would suggest if we are using June 1931 as the date of this incident. now I am talking out of both sides of my mouth. You know if there was an incident and it was in June of 1931, then I would suggest to say approximately July 1, 1951. Don*t worry. I am not going to talk a lot about damages. Those are the final questions on your verdict form. I am going to tell you one thing that impressed me about the lack of evidence in this case. The first question relates to medical. therapy. counseling services and I believe the number was $2,534. 52.545. 1 am sorry. Fay particular attention to the jury instructions when they come to damages. because in that area of your deliberations. again the burden of the proof rests with the plaintiff. It's not as easy because it's just not at all yes or no. You can*t take the scale and say does this feel like $50 or a hundred dollars. You know you can't do it that way. It's more difficult. but in those instructions there is a check on this. the check says whatever you decide. whatever you think the plaintiff has proved and whatever you out down it cannot be 815 based upon speculation or guess. You must be convinced by the evidence which has been produced and you cannot permit an answer to be based upon speculation or guess. The only numbers that have come in in evidence with the exception of the tax returns, which haven't been discussed at all, would he the expenses. Those $2,543. and those are expenses that were incurred in 1994 and 1995. and I am not going to quarrel with Mr. Eisensimmer. He has checked the numbers and he feels comfortable that that has been proved. so when you answer that question, 2,543 is probably an appropriate answer assuming well. I have got to back up. I forgot to tell you this. The jury verdict form says this. The jury verdict form asks you to answer eight questions. You don't have to write this down because you will have it. and then it says regardless of your answers to any of the other questions. regardless of your answers to question 1, question 3. question 5. 3, what have you. you must answer the following questions. what sum of money will fairly compensate Dale scheffler for his damages up to the date of trial? Number 9 and number 1D is future so you are instructed regardless of how you answer the other A _nJ :1 .-.vh- 316 questions that you must talk about damages. so now I am talking out of both sides of my mouth again. There are reasons for that. rou are your not to be concerned about that but you must answer those questions. 2,543 sound like an appropriate number because there were bills and everything there and there is no speculation, there is no guess. I agree 10d percent with Mr. Eisenrimmer when he says there has been no proof, absolutely no proof on lost earnings. so how do you prove lost earnings. rou come in and you say gee. I missed two weeks from work. I don't care it you have a document or not, but at least testify that I missed two weeks of work and at the time of work I was making $3dD a week or $10 an hour or what have you and you add those up, or if you come in and you say well, I couldn't work for two months, you have got numbers and you can prove it. Remember during this period of time there was a car accident. There was a car accident in February of 1995. and in that car accident Mr. Scheffler was injured and he has another lawsuit or at least another claim for monetary damages pending. No questions were asked whether or not he missed any time from work because of that accident but he said or there were one of the experts said this was a disability and he was hurting from these injuries. That has to be factored in, so there is just no way to get into the lost earnings. There was a trip. There are other things. so to meet the burden, to meet the rules, to follow the rules or this Court. there should be a zero. and then we talk about past disability. past emotional distress, past embarrassment. too have seen me disagree from time to time with Mr. Eisensimmer during the trial. well, that's one area where I do disagree here. He talks about $30,000. You know I guess at this point in time we are dealing with something that should not be speculation, it should not be guess, but I would suggest $50,000 for that component, and 1 will just show you what I am talking about. we talk about future damages. This number this is a total of every possible damage or expense that oould be incurred. We have got to bear in mind that the learning disability was there before any other problems. we have to remember that there may be other medical problems with this aooident that could have some need for oounseling and need for therapy. That there was some counseling for the family. I don't think that 100 percent of $33,200 has been B13 proyen and will be inourred and I say that for another reason. remember he had only 11 session in 1995 and I think it was ten in 1994, and Mr. Eisensimmer is using numbers of Sfl, 60 sessions per year, and I am not saying Hr. soheffler is inappropriate. I wouldn't want him to go into therapy once a week for five years or whatever that comes out to either. I think it's realistic to do what Dr. Gonsiorek and Dr. Hung had said let's spoon feed it a little bit. Let's go six months and see what happens. It may be you don't need as much or there may be other ways to deal with it, and with the pre-existing learning disability there should be more effort spent dealing with learning disability at different times. I would just say take 25,fiDfl, roughly two--thirds of it. Future loss of earnings. 1 agree with Mr. Eisenrimmer. Disability, emotional distress and embarrassment in the future. I disagree and I hate to be a hard nose but it sounded to me like Mr. Soheffler is getting better. He is dealing with his problems. He is going to continue to deal with his problems. This trial in and of itself is a way for him to deal 1| --319 with his problems. and I think over the future a fair number is $25,003 so take &fl.flUfl. 25.DDfl. 25.flflO and then the $2.543 on top. Your role in this case is extremely important. extremely difficult. It's tough job. Your role is to dispense justice. without juries. this system would not work. without a jury of our peers. people would not have the ability to litigate the cases in the way that we are doing in this trial for the past week. Now, what is justice? Justice is fairness. Fairness is what is right. After you answer these ten questions or those of the ten that you are required to answer, then some back in open court and present your answers- Dale Scheffler is going to have to live with whatever answers you put down. Father Kepoun is going to have to live and think about and deal with the answers that you put down. They will both remember your answers in this trial for the rest of their lives. They will remember whether or not justice was served. and you know who else is going to remember this? Each and every one of you. I can assure you you will remember this trial for the rest of your lives and it will hit you at funny times. You may read an article in the paper and say gee, I remember that trial. or you may see somebody on the street and say use that looks like Catholic priest. Believe me. whatever you decide you are going to remember and you are going to think about a lot for the rest of your lives. This is an important case. It's an important case for Father Kapoun. It's an important case for Dale Scheffler. and it's an important case for you. whatever you decide, think about what you are going to think about your decision in yeers to come. Are you going to be comfortable with the way that you answered these questions? are you going to be able to say we dispensed justice, we did what was right? we did what was fair. That's tough. It would be tough to put an 0 on that form. But the instructions that you are going to get might well suggest to you as you put this evidence together that that's the right answer, that's fair, that's just. and then you must do it. whatever you decide, I suggest to you you will be comfortable with if you follow each and every rule of the jury instructions as they are given to you by the Court. I suggest you will be comfortable with your decision. Most importantly. if you can remember that last one of the last jury instructions which says that you may not 1| Cfli-Um-JGWU1-uh-lflfid --J- as .1 allII-J In} In} In DJ ii- In} 521 permit prejudice, sympathy, or emotion to influence your decision or any decision in this case. If you follow those rules, you will be making the right decision, you will be comfortable with the decision and you will have dispensed justice. Thank you very much. THE COURT: Approach the bench please. [Discussion at the bench out of the hearing of the jury.) THE CUURT: we are going to proceed at this time and Mr. Anderson is going to start his opening statement. He has agreed that he will stop by 12 o'clock noon and then we will come back at 1:30 this afternoon. rou may proceed, counsel. HR. ANDERSON: May it please the Court. counsel, ladies and gentlemen, I am going to begin by telling you that as I address you I will not he eloquent but I will be honest. You have heard Dr. Hera testify that when I called him in August of 1994 I was mad and I was upset and I am. But what you think about what I think is not what's important here and it's not what should guide you. If my anger and upset creeps into my comments to you. it's not by my design and disregard it please. Bringing this case to you this last week, now eight 322 days, not sis, has been and is one of the gravest responsibilities I have ever taken or undertaken as a person and as a lawyer. and it is a burden that I bear and properly so in our law to bring to you the evidence through the witnesses, and when I say I bear this burden I don't seek sympathy from you. It is a burden that is properly on my shoulders. But it is a burden that I in a couple hours am going to pass to you. and I don't say that to burden you further than the obligation you already bear as jurors, but it is a burden that I will pass to you to achieve justice. a burden that will pass to you to return a verdict in this courtroom that will and does reflect the magnitude of the terrible wrong that has been done and the magnitude of the harm that has been done. Now, I don't say this to you to sermoniae to you on the eolemnity of your obligation. I know, we know. you all each individually and collectively fully appreciate it. and we are grateful to you for it and the attention you have given us and the attention you will give it in your deliberations. I will tell you what is not your duty to do, however. It*s not your duty to render your ultimate verdict in this courtroom based on sympathy or bias. 523 Don't provide one nickel to Dale Scheffler because you feel sorry for him, but don't take away one nickel because of who the defendants are in this case and because this is a priest and the priest's church. We are all equal under the law. at least here. How, I just noticed that was still up. This is a civil case. You all know that. It's not a criminal case. Mr. Eiseneimmer is correct when he says this case is not about punishment, it's about compensation. But it's also about consequences. Legal responsibility. It's not a criminal case, and because of that and because it's a civil case, there are different rules that apply than those that apply in a criminal case. First the burden of proof. The burden of going forward with the evidence in a civil case is different than that in a criminal case and the burden is, and as you will be instructed, upon the plaintiff to prove by the greater weight of the evidence the simple preponderance of the evidence. the fact or the facts that they are more likely true than not. Let me illustrate. In a criminal case we will call these the scale of justice. The burden falls upon the state or the plaintiff to prove beyond a reasonable doubt by the evidence their case to tip the B24 skills heavily. It is a heavy indeed fer reason burden of In a civil case the burden is prcperly upcn the plaintiff. but it is to prcve by the preponderance cf the evidence that the fact is more likely true than not and it is then to tip the scale. We have met cur burden and we have met our burden in all respects. How. we call this a civil case because it is civilised. It is ncnviclent and it is under the rules of law. It is unlike ether systems of justice. It is unlike, Ecr example. the Ancient Code of Hammcrabi wherein under the ancient cede there were laws that perhaps were less civilised than those under which we operate, and it provided for example that if an architect were to build a building and the architect in so dcing made mistake in designing or constructing the building and the building later on fell and it caused death cf a child in the building. under the ancient cede the arch1tect's child would be taken and put tn death. This is civilised. New, under the ancient code they didn't have building codes and they didn*t have a number of things, but the pcint is is that the only means for doing justice in this instance is by and through ccmpensaticn and that is mcney damages and 325 that is our American system of justice and it is the only means through your verdict for doing justice. and ladies and gentleman. you are the judges. You are the judges, and it is your verdict that will do justice. How. you are going to be asked to fill out what we call a special verdict form and you have already been told that consists of ten questions, and the verdict form is really broken down into three areas. The first is liability or legal responsibility. The second is damages. what sum of money can compensate Dale Scheffler for what has happened to him, and the third area is a time question, when in time, so those are the three areas the verdict form addresses and which you will be asked and required to answer after your deliberation and based upon your collective judgment and based on what you have heard unfold in this courtroom for now eight days. The verdict form looks like this and we have enlarged the verdict form that you will be getting. and this is wrong because the caption of this case has been changed to Dale Scheffler versus the Archdiocese of St. Paul and Minneapolis and Father Robert Kapoun. And the first question that you are required to answer B25 is, "bid Father Robert Kapoun sexually abuse Dale scheffler?" Yes or no. I am tempted to say. so I will. that based upon the evidence you were presented. that we presented in this courtroom, if it takes you more than five minutes to answer this question I would be surprised. But having said that and giving in mind the gravity of this matter I cannot take that for granted. and so I intend to outline the evidence going to this issue and other issues. and I will tell you right now I will not be brief and the reason I won't be brief is because there is a substantial amount of evidence that has been produced in this courtroom from that witness stand that is credible and that is compelling and that is true. and it leads to the inescapable and inalterable conclusion that you must reach that Father Kapoun, that Catholic priest, abused sexually bale Scheffler. and that will lead you to mark the bow and I want to talk about it. This is a liability question and it is about consequences. rou heard evidence and I think perhaps Hr. brown is correct about this. Maybe in my judgment the only thing that's correct about what he said. but we did call 11 witnesses to testify in this courtroom to give evidence of facts pertinent to and probative this question as well as others. We called Dale Scheffler to the witness stand to give his testimony under oath. In sexual abuse it is an offense of secrecy. when it is done under circumstances like it was done in this case, there are no witnesses besides the victim and the perpetrator. That's the way it is. and there usually is no physical evidence, particularly in cases of abuse like this. Fingerprints. other kinds of things that can be used to show that it happened- so most often in cases like this it is the word and the truth of the victim, but in cases like this it's a 13~year-old boy standing against and pointing a finger at an adult who is trusted, who is effective, who is powerful, who is articulate, who is intelligent. How can it be then that you could ever prove that this had happened? well, here is how you do it and here is how we did it. we called Dale Scheffler to tell you and to speak truthfully. He was oross~esamined by two very effective lawyers. He was unimpeached and he was shown -- and he showed himself to be telling the truth. and on his testimony alone and without anything else brought into this courtroom. we proved that it*s more likely true than not that that priest to 11-inch 1fl E23 violated him. But in this case there is more and other competent evidence. First, the circumstances of Dale Scheffler's disclosure, of what the priest had done. You heard Pastor vandelder tell you about Da1e's testimonial where he made mention in reference to his falling the Catholic church, and then shortly after that Dale seeking his counsel and for problems he was having, and when Pastor vandelder probed, he began to draw out of Dale some of what had happened to this child years before, and when he made this reluctant disclosure, he had told no one. He had heard nothing of Father Kapoun or anything about him that suggested anything like this had ever happened before to anybody else. He had not seen the newspaper article that appeared in 1959. He doesn*t even read the newspapers, and he had not seen or heard anything about what Father Kapcun had done to anybody when he told his pastor in confidence. and when he told his pastor this, it is his pastor that said, "Dale, this is sexual abuse." and it was his pastor that hegan to talk to Dale about his life and this event and it is in the contest of that that Dale through his pastor told his pastor. at this point in time all Dale knew was that Kapoun had done this and he was still in a parish, so --I: czamulmmnuu --wanted to go to the parish and protest and expose him, but the pastor said, "Dale, that*s not the way. we will get you a lawyer." He didn't know there were other victims. He didn't have a clue. and you know to this day all he knows is that there are. He has never been told by me or anybody else what Father Kapoun has done to so many others. His testimony and his truth speaking is totally uncontaminated and the circumstances of his disclosure both what he said and how he said it and why he said it are totally trustworthy. Let's talk about some of the other beyond what Dale has told you and the circumstances that make it so real. so true and so believable. He reports conduct by Father Kapoun with him that weekend in the cabin that is similar to if not identical to that which was reported by others. The swimming. Going with the priest after the priest gained his and his parents' trust because he was their priest and only because he was the priest did Mrs. Scheffler and these other parents let their kid go with him. The overnight. some excuse Father Kapoun would always have if he could to give to have the boys overnight. The pretest. and in this case it was to clean the cabin or the yard or pick up sticks. and in 33d the night and over night. you know what he did and you heard it. I need not repeat that. Contrast that for a moment. contrast that to what Father Kapoun has told you under oath. He denies. He says I totally deny it, the abuse of Dale Scheffler, and these others, but that Qenial and you are the judge of the facts. You saw him. His denial when he makes it is hollow. it's shallow and it's sick. and he has no clue how sick he is. and itis as hollow as his apology and how he has prayed for Michael Bearing every day since he did what he did to Michael nearing, and it's as insincere as that. and I will conceal my disdain for his words and his denial. all right. Let's look as what else has been produced that's credible and believable evidence that comes from that witness stand. His Honor Judge Larson will tell you that when you have a denial or a question of fact and witnesses testify differently about certain facts, there are measures for weighing the credibility and helievability of witnesses. and one of those factors is the interest or lack of interest in the outcome. and when considering Kapounis denial in this case, think of the interest that he has in getting you to believe that he didn*t do this, 331 because if he did and if he does. he keeps his job, he keeps his parish, he keeps his collar, he keeps his prestige, he keeps everything that he has enjoyed for 32 years as a priest. Darn right he has an interest in convincing you that he didn't do these things that he did, so think about that when you are weighing what this guy said to you after he took that oath. Think about this. He -- the first question I asked Father Kapoun is. "Father Kapoun. do you have a compulsive sesual interest in bays?" He was startled that I would ask that question but he had to answer that and he did and he says yes. Then I asked him. "Father Kapoun, well how long have you had this compulsive sexual interest in hove?" and he said. "well. up until the last time I was moved out of my last parish." And then he looked at the board I had and looked at this board. He wasn't sure about the date but he was able to look at the board. He said I think '32. well, he is in St. scholastiea now. The last time he was moved out of a parish was St. Patricks so it would have heen '84. so I said, "So, father, hv your account it's '52. That makes it 13 years." But in point of fact. he is admitting to vou that he has compulsive sexual interest in boys for 15 years but that somehow in 1934 he stopped having it. You heard the testimony of Doctors Hera and Gonsiorek. They treat victims and they have treated and do in the past work with offenders. and I asked them what do you call an adult who has a compulsive sexual interest in boys and what do they call that? They call that pedophilia. The priest is a pedophile. and compulsive means he can*t control it. and Dr. Hera and Dr. Gonsiorek, they told you that you can't cure these people. They told you that what we can do is keep them from repeating it, and the way we do that is three things. we remove them from the position that gives them access to the boys. number one. Then they told you we treat them. we treat their disease, their disorder. And then we give them consequences. consequences for what they did in the past, and so when you answer this question, it's about consequence because when you do it will he the first, it will he the first and only time he has or will experience consequence for what he did to sale scheffler. to Michael nearing. to Curt Raymond, to Mark Schutz, for he has suffered none to this date and will have suffered none to the date of your true verdict. that's not enough, let me tell you about - talk a little bit about more credible and believable evidence that came from that witness stand that we brought to you in the last eight days. Father Kapoun's own statements to you and on cross~esamination were inconsistent. We lawyers call that impeachment but they were inconsistent. Sometimes they didn*t make sense. sometimes he contradicted himself. For example, he says that he admits that during that 15 years he was this -- or had this compulsive interest in boys, that he acted out on those urges with boys, but you only heard him admit to one and only one hey. hey. Michael nearing. singular. Now, what does that tell you and what does that tell us? You also have a pattern offender. and we called as our first witness Curt Raymond to tell you what happened to him in 1969. Identical circumstance. Their priest at St. Kevin*s, raised in a Catholic family. taught to revere and trust the priest and the priest gained his parents' trust as a priest and the priest is allowed to take their son who is 13 years old and the priest molests the altar boy. He breaches the trust. Took him to the seminary B34 swimming, had him in the sauna nude. brought him to the cabin where he would fondle with him as he wrestled with him, and you will Curt Raymond talking about how Father Kapoun ejaculated upon his arm. Mr. Brown said when he started, "Father Kapoun has been under a black cloud, a false accusation and this case is about lawsuits," suggesting that Dale scheffler. suggesting the audacity to suggest that he brought this case and made this claim that is false because he wanted money. For God sake. Curt Raymond didn't make any claim. Curt Raymond hasn't hrought any suit. Curt Raymond was subpoenaed to testify here to tell the truth of what happened to him and it showed you the identical thing that happened to Dale Scheffler. Think of the courage it took for that man to testify in a Hennepin County courtroom. He is think of the courage it took for that man knowing what you know he does to testify in this courtroom and speak the truth, because there is a lot of shame associated to it with what happened to him, and in part it stems from the fact that Father Kapoun is a priest but in part it stems from the fact that he is a male and look at the circumstance of the disclosure of Curt Raymond- He told the first person in the world was his wife in counseling in 1939. fi .-I i IN.) -1 luluto.) la} ah- IU- 335 Never told a soul so is he lying too? No. Your Honor, I am prepared to take a break. THE CDUHT: okay. see you back here at 1:30. (Recess tahen.} THE COURT: Good afternoon. You may proceed. counsel. HR. ANDERSON: Thank you. Your Honor. after Mr. Raymond the next witness that we called was Michael nearing. You heard that testimony that he was accessed in the same way and fashion that Mr. Raymond was accessed, Father Kapoun under the pretext of first giving advice. and you will recall that Michael nearing sought him out because he was his priest. He was a teacher and a priest in his parish, and it is the parish where he was raised to trust and revere a priest. and when he had a problem he souqht out his priest. and Mr. hearing was 13, he was an altar boy and when he turned to Father Kapoun. Father Kapoun used his position to -- as a priest to access Michael in the same way that he did Mr. Raymond. Certainly Father Kapoun admits some of what he did to Michael Dearingr hut you heard Michael Bearing testify and speak his truth and you heard him say Father Kapoun admits very little of what he did to me. These were 335 his words and he was speaking the truth, so while that Father Kapoun admits something. when it comes to Michael nearing he continues to deny and minimize and blame. Father Kapoun for example denies having engaged Hichael hearing in sexual abuse at the parents* home. You will recall the testimony where I oross--examined him about how and why he got him to his parents' home, that is Kapoun's parents' home, and you recall Father Kapoun's testimony where he said, "well, we were at the seminary swimming and there was no shampoo." So I said, "Father Hapoun, that's the purported reason you gave to get Michael nearing to your parents' home." and that was the purported reason, but the real reason was he wanted to get him there, because he knew if he could get him alone he could use his position, his power, his age, his trust and his collar to exercise his predatory fantasies on this boy. and he did even though flapoun denies he had a sexual interest in him. and he got him at the cabin and the rectory. we then called Marx schuts to tell you about his experience and Mark Schute you will recall was -- family was a member of St. Raphael*s and he is one of large Cathclic family and Father Kapeun was their priest. and Father Kapcun insinuated himself into their lives and their practice cf their faith in the same way he did Tums and Dearing, and yen will recall in this case Father Kaccun was assigned cut cf St. Raphael*s in 19?4 hut he continued tc have ccntact with the Schultz family and was ever there after he had been assigned to the Heme cf Shepherd back in 1974, and you will recall Hark Schuts' truth and testimony tc be that that night Father Kapeun invited him tc ceme tn the Heme cf Good Shepherd, again ancther pretext. Dc vcu want tn see my new recterv and heme, Mark, and he went and he was allowed tn go because this was their priest and he were that cellar. and sc that night he get Mark Schutz there and in the same fashion and in the same way he had before get him tc get in bed, told him to stay evernight and Mark Schutz did. Father Kapcun laid next to him, and vcu will recall his testimony about this. and Father Kapcun did tc this confused vcuth what he had done before and did the very same thing and same kind cf thing that he did tc Dale Scheffler. we called and get testimony from Mark Tums and B33 you will recall Mark Tuma to he or then was a youth of the parish where Father Kapoun served. His father was a devout Catholic. Father Kapoun was his father's priest and was his own priest. and his father had died in January of 19?3, and Father Kapoun as the priest eeremoniously presided that funeral. and Mark Tums didn't Father Kapoun personally before that other than his priest and his father's priest, and after Father Kapoun knew that Mark Tuma's father was gone and passed, Father Kapoun insinuated himself into this boy's life. hsing his same oollar, his same means, under the pretext that he would step into the father's shoes. The mother thought he was ministering to her son, and she was delighted that the priest would do this and of course, she let her son go, entrusted her son to this priest like all the others before. and since, and he did that which he had done to others hefore, and you know that and he testified to it, and Mark Tums told Monsignor Srneo about it. Mark Tuma didn't know when he did disclose this that he wasn't the only one. He just knew what Father Kapoun had done to him. and Mark Tuma knows that truth and he spoke that truth and when he told Monsignor Srneo in august 1973. he wasn't thinking about lawsuit. He had no idea what this was. He was confused by it. and he was accessed in the same pretest under the same guise, and through the same position, power, trust and authority that Father Kapoun used. we then called - he is not on this board. but you will remember his name. Russell Braith, and we called Russell Braith because he was at the cabin with Dale scheffler the weekend that Kapoun brought Russell and Dale there. You will recall the testimony of Russell. why did you go to the cabin? Because my priest. father, asked me to. You will recall the testimony that Russell's mom allowed him to go because she knew him. She was a member of the parish. Russell was also an altar boy and of course she let him go and Russell like all of these other boys had never been trusted to any adult male outside the family other than their priest, because they could trust him and they did because of who he was and what he was and the collar that the Archdiocese placed upon him at the time of ordination, and we called Russell Braith to tell you about what he knew and remembered, and Russell sraith's memory about that weekend isn't perfect any more than Dale Scheffleris memory would be. anymore than anybody's B40 memory would be, because a lot of the ordinary things that happened 14 years ago or 16 years ago don*t get remembered, but he does remember some things. and one of the things he remembers is that Father Kapoun swan with them, that Father Kapoun end Dale swam in that lake, and Father Kapoun had been swimming like he had been with so many boys before, and that he remembers bale playing on the inner tube or with it end Father Kapoun being among them and Father Hapoun grabbing him. He would get away from Father Kapoun but Father Kapoun would swim after him and grab him some more and put his legs around him. Russell remembers that. That was a little weird. He remembers Father Kapoun that night telling them and arranging the sleeping arrangements saying we are going to sleep on the floor. and he remembers laying down on the floor, Father Kapoun beside him and Dale Soheffler just beside him on the other side. The last question I asked Father Kapoun on oross--esamination. and I think you know when I am asking questions of a witness like Father Kanoun we sell it oross--ekamination. The last question I asked Father Kapoun when I cross-examined him called as a witness the first time, I said was, "where was Russell B41 Braith in relationship to you?" He says, "six feet away." Where was Scheffler in relationship to you as you arranged this sleeping arrangement? six feet on the other side. Yeah, right. He had them sleep right by him. He lied about that. He lied about everything. and Russell Braith testified to the truth and why would he lie about that? In fact. Father Kapoun Russell Braith remembers Father Kapoun sleeping so close to him he was even able to put his hairy leg upon him. all right. Mark the because this is the first and only opportunity for adjudication, a determination, and a finding of fact by you, the judges. that he abused Dale Scheffler. Second, mark the because when Father Kapoun takes the stand and testifies, he is calling Dale Scheffler a false accuser and a liar. and the Archdiocese by keeping Father Kapoun in that position has agreed by implication of doing the same. willingly or unwillingly. and don*t let them do that anymore. Mark the box. Third, mark the hos, and when you do place the know that you are placing an upon Robert Kapoun. an that will be forever for others to see and to know what he did to Dale. B42 and finally, when you mark this know that you are telling Dale that you believe him, because I will tell you that he needs to know that you believe him. Mark the The next question is did Dale soheffler sustain any injury as a result of the sexual abuse -- can you all see this? The type. The next question is. "Did Dale soheffler sustain any injury as a result of the sexual abuse by Father Hapoun?" Well, there is no argument and there has been no suggestion by anybody that sexual abuse does not cause injury and that Dale soheffler has not been injured, and I don't think I need to say anything more to you about what has been said in this courtroom for eight days for you to mark this question yes. The next question is the timing question we have talked about. It calls for instead of a yes or no answer, a date and time. and let's talk a little about that. It says, "when should a reasonable person in Dale Scheffler's situation have known that he was sexually abused and," this is an and. not an or. it's an and. "that he sustained injury as a result of the sexual abuse?" There is really three elements there to this one question, and then it calls for a month, a day and a year. 343 The first element is when should a reasonable person in Dale 5cheffler*s situation -- Dale 5cheffler*s situation is a 13-year-old devout Catholic naive innocent bov. Dale 5cheffler's situation is that he was taught to trust and revere and he did, and that when Father Kapoun brought him to his cabin and got his mom's permission to, he was honored, and when Father Kapoun grabbed and fondled him in the water. he didn*t know what this priest was doing and he had no way to process that, and when this priest arranged the sleeping arrangements that he did where he slept between the boys, he had no way of knowing what the priest was going to he doing to him and when he did he didn't know what he was doingknow because as you heard his therapist Dr. Hera say, it was totally confusing. There is just no place in a child's mind like this child, like Dale $cheff1er's situation to process this. so what he did as so many victims of abuse like this do is nothing and not know what to do, and so the first element there is what would a reasonable person in Dale Scheff1er's situation as a 13 year old in 1931 and what he did and what Dr. Gonsiorek told you and Dr. Hera told you about this kind of sexual abuse is he did what any reasonable person under that xi LI-I a -9 U1 a -5 'Infin- IU U1 344 circumstance would do and that is to be confused and to be silent and to suffer and endure this in secrecy. silence and shame. and that's what he did for years. The second element here is in Dale 5cheffler*s situation have known that he was sexually abused. we are asking when should Dale, somebody or a reasonable person in Dale Scheff1er's situation, have known he was sexually abused. Now. he processed this as a child. He had no way of knowing and he began a process unconsciously, but we know from what Dr. Gonsiorek has told us and what Dr. Hera has told us and what is simply common sense and sensible that he began a process unknowingly and unwittingly where he used a very a variety of coping mechanisms. This was so outside the range of his experience and normal experience. he had no way of understanding itdealing with itbegin to think there was something wrong with him without knowing why he began to think that, and he began the words that Drs. Here and Gonsiorek used was to cope by avoidance and denial. Do you remember those words? That's what they the terms that they use for this dynamic that was going on is. Dale had no clue. How could or would he know, but that*s 345 what they know and that's what they told you because they know about that stuff. And so he did not know that what his priest was doing or had done with him was sexual abuse and could not have known it was sexual abuse until years later. The third element here in answering this question is when did he realize or when would a reasonable person realize under Dale's circumstance that sexual abuse caused him injury? so you have three elements in answering this question as to time for the discovery of his injuries are made. and the third element of that is that he knew this was sexual abuse. I asked Dr. Gonsiorck about this, and in his opinion based upon his training and education and all of that experience, and if you want to see somebody with experience, look at his T9~page resume and curriculum vitae, and he told us or he told you. My question is did Dale Scheffler discover injury by reason of sexual abuse before 1993? His answer was no. He couldn't have. because of what we know happened to him and what we know happens in these cases. The second part to my question, and there are a lot of objections you will recall when I was asking 846 these questions, but the second part to my question was answered by Dr. Gonsiorek and corroborated by or. Esra, he had no reason to know and he had no way to know and the way he processed this was reasonable and was classic and was typical. and he did not know nor did he discover that his injuries were caused by reason of abuse until when? You know the date. You all do. I can't ask you but you know the date and there is a date. when this person for the first point in time discovered his injuries andfor any of his problems were caused by reason of what the priest did to him as a child. and you know the next date. The day and you know the year. and you vividly remember Pastor vanGelder's testimony about this and you vividly remember how and why it took so long for this abused child to utter to any other human being that the priest had done something sexual to him, and you will recall the testimony of Pastor Vanaelder. It was yesterday. He said, Dale, I had to draw out of him. You will recall the sequence of events and that*s also important. Dale after the abuse began a descent into hell and there is no question about that. He began these processes of burying and coping and without a clue why 1| .3 .--34? his life was so messed up. He isolated, he changed his friends, he began to use drugs and alcohol- all the while thinking there is something wrong with him and not knowing or having a way to know why this is. and you will recall Pastor vanGe1der's testimony about this vividly 1 am sure when he said I had seen Dale for some relationship difficulties with Ellen and he sought my counsel and Dale had begun the process of finding his way back to a church here. You will recall the Friendship Church in Prior Lake, and there was a testimonial the pastor was at and Dale at this time was just going through his fourth and fifth step in his step process in AA, and one of the things in the step process in AA he told you requires you to do is to take an inventory on his life, and he was beginning to think about these things. He had come out now of his alcoholic abyss if you will and begun to start to have some clarity for the first time about where he had been and what he had been doing, and than at the time he was doing that he goes to the Friendship church for a testimonial and he is asked to talk about how he was finding his way back to Christ. and he said in his testimonial words to the effect, and Pastor vandelder told you what they were, that he had lost his Catholicism and something having with a priest and nothing more. It was days after that. too will recall the day of that testimonial was October 13, 1993. we know it because Pastor vandelder went back and checked his calendar and that's the date. We know a few days after the testimonial bale sought Pastor vanfielder and he was talking to him because he was having a lot of problems to do with his relationships. and in that Pastor vancelder, remember the testimony began to draw some things out of Dale, and he said, "Dale, what happened?" and you recall Pastor vanfielder telling us bale was not wanting to or able to talk about it and Pastor vanflelder drew out of this man for the first time what the priest had done and Dale told Pastor vancelder. the first human being, what this priest had done. And Pastor Vanfielder said, "Dale, that's sexual abuse." and that is the date that bale Scheffler or any reasonable person under the circumstances that he experienced this knew or had any reason to know he was sexually abused by a priest and that he was caused injury by it. Now, attorneys for the defendants have suggested for you other dates other than this date. but look at the evidence. Look at the evidence. 349 Every piece of evidence offered in this courtroom without exception points to this as the date of discovery and points to the fact that this data while it is delayed and years later is both reasonable under the circumstances and reasonable under Dale Scheffler's circumstances and is in fact the data. Now. my recollection is that Mr. Eisenzimmer suggested that the date of graduation from high school would be the date. I don't know where he got that. well. I guess I do. He got it from an exhibit that says that*s his date of graduation from high school, but look at the testimony and the evidence putting his argument aside for a minute. what did his evidence tell you? Nothing happened when he graduated from high school that would cause him to know or have reason to know that his myriad problems related back to the priest. Nobody told him anything like that. By the time he graduated from high school, and it's a surprise to all of us that he did. he was mired in chemical abuse, self abuse and alcoholism, and he had coped by burying this for years, and it was irretrieyahle in his soul. in his and in his mind, and there is nothing that happened when he graduated from high school that would cause him to discover or know that this was sexual abuse, and so I 35fl don't know where he got that date but you know it came from that witness stand and so when you answer that question rely on what you know the evidence is. Now, Mr. Brown suggested something else and so I need to talk about that. Mr. Brown suggested that the date that you are to fill in here was the date of the abuse or the day or two after it. You heard no evidence from any source, expert, lay or otherwise, from male, or anybody else that even remotely suggests that he could or should know this was sexual abuse where injury was caused by it, and he I might add flimsily relies upon a comment made by Dale to his mother to advance this assertion, and I will say to you that's simply what it is, an assertion not based upon fact and not based on a shred of evidence presented, not a shred. But we lawyers are given some license and he has licensed to make the assertion. You ladies and gentlemen don't have license to reach a conclusion based on assertions. You don't have license to base your conclusion on anything other than the evidence. And the evidence is uncontroverted and unequivocal that there is a date in time, and it*s October 23, 1993, that this man knew or should have known injury was caused by reason of abuse because his pastor told 851 him. and what he said to his mother. just think about that. You heard Dr. Gonsiorek testify. He talked to the mother. He is the one doing the forensic assessment. He called the mother up. The mother told him, and Dale doesn't even remember this, but the mother said after the priest took him to the cabin. Dale mentioned something to me about sleeping on the floor or the priest had put his leg on him or something like that and thatis it. How could anybody knowing what you all know now if you didn't before about sexual abuse of a child by an adult who is trusted and revered ever think that that child at the age of T3 in 1981 could recognize this as sexual abuse or even begin to recognize that his injuries or emotional distress or anything else going on in his life had anything to do with this. He is incapable and the suggestion is even offensive. The assertion is offensive but that's not what's important. What's important is the evidence and the state of it and the finding you make in connection with this answer that you give, that is what is important. and I am confident that the evidence and every piece of evidence offered in this courtroom and in this trial 352 points to one inescapable conclusion and to one date in time and no other, and you have got it right there. His Honor will tell you when it comes to this business about the mother and some veiled comment made by Dale at the age of 13, His Honor will tell you in the instructions that he reads to you and ultimately you will get a copy of that, the knowledge of a parent or a guardian, the knowledge of a parent or a guardian is not imputed to the child or the minor, so if in your mind based upon what Dr. Gonsiorek told you, you are thinking maybe the mother suspected something because she said stay away from the priest. Her knowledge is not imputed to her son and that is the law, and I know and I am confident that each of you understand why that would be the law. Nothing more was said after that, and nothing more could be said. Mr. Eiseneimmer argued to you that well, gee, he was experiencing his mother said that after that point in time, now keep in mind the mother is looking back, she said after that point in time Dale's life took a turn. He was a healthy happy hay. and now looking back she sees -- can see it took a traumatic turn and a tragic one. He changed friends. Lost 853 interest in school. Found his way to drugs and alcohol. to numb the pain, the source of which he had no idea. all he knew is that he felt bad. all he knew is that he didn't like himself and he turned. and his first time used alcohol to a steady but real descent, and that continued for years, and you heard how it got worse and never got better. You heard how Dale never got any help and how Dale didn't know why his life was so bad but that he hated himself and almost killed himself with alcohol and drugs. so when it's suggested that because he was having problems throughout these years, that means he knew or should have known that he was injured by reason of sexual abuse belies the evidence and I, therefore, urge you and I demand that you apply the evidence when you answer this question and nothing more. Because that*s your job as the judge and that's the answer based on it. All right- The next question that you are to deal with and answer is was Father Kapoun, and these questions now you will recall are more what we call liability or legal responsibility questions. "was Father Kapoun acting within the scope of his employment with the archdiocese of st. Paul and Minneapolis when he sexually abused Dale Soheffler?" .--sad The answer to this question is yes and let me tell you why the evidence has been offered to prove it. Here is the instruction His Honor Judge Larson is going to read to you in guiding you or assisting you in answering this question. Because at first blush you look at this question and say well, gees, a Catholic priest. it's not a part of his job to abuse kids. Hell. of course not. and so if it's not a part of his job to abuse kids, the first impression is to say well, then itis not within the scope of his employment. But that's not what the law is. So I want to walk you through what the law is and what Judge Larson is going to tell you about that so you understand why it is that when Father Kapoun did sexually abuse Dale Soheffler it was within the scope of his employment. even though at first blush that sounds incongruous, but I am confident when you answer this question and these questions you won't base it on first impression, you will based it upon the evidence that has been presented and the guidance that His Honor gives you when he reads you the law and instructs you on the law and sends these instruction with you into the jury room. okay. An employee is acting within the scope .--I gal --his employment when performing services for which the employee has been employed, or this is not an and. this is an or. while doing an act or anything. anything means anything which is reasonably incidental to the employment. Reasonably incidental to the employment. To be reasonably incidental to the employment an not need not have been specifically authorized and may in fact have been forbidden by the employer. In other words an act such as sexual abuse may be forbidden by the employer, and in this case and in all cases it is. at least I don't know of any employers that don't forbid it. but in any case, to be reasonably incidental to the employer set not be specifically authorized and may in fact have been by the employer. What is required for it to be reasonably incidental is two things. First. the employer should have reasonably foreseen the act from the nature of the employment and the duties relating to it. Let's talk about that for a moment. In other words, is the not reasonably foreseen? In this case the act gave rise to the wrongful act. was Father Kapoun taking parish youth who are members of his parish and who have been taught to and do trust priests. 555 That act is a part of his job. It was a part of his job and at all times is a part of a ministry, a Reyerena ministering to the community of faithful, the parishioners and their children. Second, should it have been foreseen that he would take youth to places other than minister to them on the premises of the church? Of course. and you have heard the testimony of Father Kapoun how he would take these perish youth to a variety of locations unabashecly without reservation, without attempting to conceal it and so itis forseeable that a priest and in this case this priest would do that. That clearly is a part of who he was and what he was to do as a priest. Not only that. In this case in 19?} the Tums report to Monsignor was made and Monsignor srnec brought the report to Bishop Roach, and so you not only have a foreseeable that a pastor in a Catholic parish recreate with youth, take youth on outings, take them to a number of places using their position of trust, but you have a priest abusing that position of trust by sexually abusing Hark Tums, so when Father Kapoun took Dale Scheffler to that cabin after garnering the trust of his parents and him by reason of his position, the evidence is that it was forseeahle and that had already been foreseen and should have been foreseen. The second part to this two part and this is an and is the act occurred at a place and during a time related to the employment. Doesn't have to he the place of employment. Has to be related to it, and again this was clearly related to it because it arose out of his position as a priest, as a Catholic priest, as a man of God. And his mother, that means Dale Scheff1er's mother, never would have nor did she ever just like all of these other mothers and fathers trusted their sons to Father Kapcun. Did it only for one reason and that was who he was, what he was and where he was. Who? He is a priest ordained wearing a collar. He is a man of God speaking the word of God that can be trusted. what he was was their priest. Not just a priest, their priest, the man they worshipped. The man they were taught to worship God through. The man who would anoint, the man who would baptize them, the man who would confirm, the man who would supervise and train their youth as altar servers. The man who they would hear their confession and absolve them. That's more than a man to them. Each of these kids were abused while they were --B53 entrusted to his care, and whether it happened at the cabin, in the car, in the rectory, or his parents* home. each and every time they were entrusted to his care because of who he was, and that makes it related hoth in time and place to the employment where it doesn't have to he at the rectory because the priest's duties do not just pertain to the rectory. A judge that presides here his duties are graphically restricted to the courthouse in presiding matters. It's geographically restricted. A priest and this priest was not geographically restricted when he went to the home of the Schefflers to, you know, preside this thing in 1973. He was acting as a priest and it was incidental to his job created duties. This was a ceremony of some kind where Dale's brother-in--1aw you will recall was introduced and brought into the Catholic church, and this was celebration of that and this was incidental to and a part of, so when he was in the Scheffler home he was incidental to his joh--crested duties and a Catholic priest, and you remember archbishop Roach telling you this. He is a priest 24 hours a day. He said it is a life. He didn*t say it was a job. He said it is a life, and at ordination a priest is called to serve that life, to preach the n-I .nJ 1| 1| IU U1 fil359 gospel and to lead the people and to grow in holiness. and so when this priest was taking these youth and accessing them, he was doing just that but doing something more, that which is forbidden but nonetheless recently related and incidental to that job. How does a priest minister? He ministers by words, he ministers by his grace and he ministers by his example, and even though he wasnit preaching. praying, or doing anything like that when he got into the beds and violated the bodies of these boys, he was there and only there because of who he was, what he does. because of who, what and where he was, and that was a priest ministering to the community of faithful. So that's all you need to know about that to answer well, here it is -- this question yes. And if you have any question about that, look at the instructions that His Honor is going to give you end they will guide you in reaching that conclusion. The next question is did the Archdiocese of st. Paul and Minneapolis negligently retain Father Rapoun as a parish priest? Now, first, in answer to this question you need to know and consider that the Archdiocese is a religious corporation. and a SEE corporation in our law and His Honor will tell you can act only through its employees and its officers. A corporation can act only through its employees and its officers. You will recall the testimony is and that of archbishop Roach is that the archbishop is responsible for ordaining, for assigning a priest to the parish, for removing him, for retaining him. How, you will recall that Archbishop Roach testified that that's a large task. There are hundreds of priests and he can't and doesn't do that alone although he is responsible ultimately for that retention, and the way he does that is through the assistance of first the auxiliary bishops, then the priest personnel board and through the pastors in each of the parishes. How, in answering question number 5. negligent retention is defined or His Honor will tell you occurs when an employer becomes aware of or should have become aware of problems with an employee that indicated his unfitness and the employer fails to take further reasonable action such as investigating, discharging or reassigning. I am not going to reread it but if you have any question about what that says, look at the instructions. In this case the report of Mark Tuma was made .-J i 1| .4 MI .1 LI-J rh- 1| hi hi! LI-I uh- IU -U1 361 in 19?3. There is no question or contention that it was made to Monsignor Srnec, and Monsignor Srnec, whether it went to Roach or didn't, and I will deal with that in a minute, whether it went to Roach or didn't. the report was made to the pastor, and we know nothing was done. we know the priest remained in the parish at st. Raphael's for a year and was moved again and again. We know nothing was done. we know that that alone under these circumstances is a failure to exercise reasonable care. we know that*s negligence and we know the evidence shows nothing otherwise. and so to this question on that simple fact alone. we know that this priest was unfit in 1973. He knew that he was retained and we know that the Archdiocese retained him so there can be but one answer to that question on the state of the evidence. Or at least that part of the evidence. That is what I would call the first inquiry. was a report made? res. was he retained? fee. was it a report of unfitness? Yes. and you have got the original in evidence and you will have a chance to review it, but if you have any doubt of what I am talking about, this is the report. Mark Tuma*s report to Monsignor Srnec. Negligence is simply the failure to exercise 1| --362 reasonable care for the safety of another. The negligence in this case is the retention of Father Kapoun. But let's take it a little further. Let's look at the second inquiry to the evidence. We not only have a report to Monsignor Srnec. it gives rise to a finding of negligent retention. We have a report to the auxiliary bishop. now Archbishop John Roach. In 1913 Monsignor Srnec took that report from Mark Tums. You heard hark Tuma tell you that and you know Monsignor Srnec told you that. He took that report. He took that exhibit which is now in the courtroom today called Exhibit 3. Back in 1973 it was a report and attested to report of sexual abuse by Father Kapoun. That's what it was and that's what it is and now we call it Exhibit 3. And what did they do with that report? Nothing. nothing and nothing. They turned their back. To find negligence here you don*t have to find or even believe that they turned their back and slipped it under the rug. All you have to find is that they exercised or failed to exercise reasonable care. And negligence, ladies and gentlemen, is mistakes. They don*t have to be mistakes of evil. Negligence is simply failing to exercise reasonable care for the safety of another. 1| _i -4- IU I.nyou drive a little fast or go through a red light when you are driving your car or weren't paying attention, it's simply negligence. You don't have to intend the harm. It*s just fair to exercise reasonable care. Father Kapcun continued as a parish priest because they did nothing. and he not only continued at St. Raphael's for a year after this report, he ultimately left on his volition or on his initiative and you will see that in the records. He was sent to the Home of Good Shepherd where he served for a period of time, and then in 19?? he was promoted by the archbishop, because at that time Archbishop Roach was the archbishop. not the auxiliary bishop, so when he assigned him to the pastorate in he was not only retained. he was promoted to a parish St. Patrick outside of New Prague, and there as pastor he enjoyed even more unfettered access because there weren*t any other priests around there and he enjoyed and continued to enjoy increased access to whatever youth of the parish he could engender trust on and he was good at that. How, the archdiocese through Hr. Eiseneimmer has said to you and I wrote it down because it's important. If they got the report and retained Kapoun, they are negligent. and it's obvious. Let's --I- 1| .4. Ed 9-1 allB54 look at the evidence on that. Monsignor Srnec takes it from Mark Tums- This is an alarming thing. Monsignor srnec does not take it as soon as Mrs. Lesko mentions this to him he goes to the home of Tome and he talks to the boy. The boy tells him in detail what the priest had done after his father died. Honsignor Srnec has the boy attest to his truthfulness. and then he makes an appointment with the auxiliary bishop. the person to whom this should go. then Bishop Roach. He is the head of the priest personnel board. he is the auxiliary bishop and he is the one that Monsignor Ernec knows should deal with this and he does, and he makes that appointment two weeks later. The report is dated august JD. That puts it September the middle of September 1973. and he makes that appointment and he goes there and he goes to the office of the bishop and be giving him Exhibit 3. He gives them the statement. we have the original here now, and archbishop then Bishop Roach reads the statement and Monsignor srnec watches him read it. and after the bishop reads the statement. he hands it back to Monsignor Srnec and he says maybe he did it and maybe he didn*t. Maybe he did it and maybe he didn't. -B65 Monsignor Srnec took that report and took the original. The bishop didn't bother to make a copy. He didn't bother to make an inquiry of Monsignor Srnec how he got this or the circumstances under which he did. He didn't do anything. He didn't do anything. How, Archbishop Roach was called by us to testify about this. and you are aware that I asked him questions about this before and he has given testimony under oath about this before. and by the argument of Mr. Eisenzimmer, I am inferring that the archdiocese is suggesting that Monsignor Srneo is mistaken about this. But that's not what the evidence shows. Ladies and gentlemen, you are the judges of the credibility of the witness. First you saw Monsignor testify to this. He remembers it like it was yesterday. because this is no ordinary event. when you get a report of sexual abuse of a kid by a priest in your parish and you go to the bishop over it. you don't forget and he hasn't. Contrast that to what archbishop Roach said about that. How. again you are the judges of credibility and believability, and His Honor will give you some yardsticks for measuring credibility, and one of those is their interest or lack of interest in the outcome or in the facts. In this case Monsignor Srnec. It E66 cannot be said that Monsignor Srnec has an interest in the outcome of this. In fact, it can be said that he is contradicting his superior, the archbishop to whom he has made a vow of obedience. now, why would he do that? Because it didn't happen? why would he take the witness stand and testify to this with absolute clarity and certainty if it didn't happen? Why would he lie? He wouldn't and he didn't. was he mistaken? No. Particularly when you contrast that to archbishop Roach. A second factor in weighing or judging the credibility or belieyability of testimony is the ability or the opportunity of the witness to know and remember and relate the facts. Contrast srnec to Roach. At that time Roach was a busy auxiliary bishop. at that time the Archdiocese was under times of trouble by reason of a shortage of their priests. at that time he could not and did not supervise all those priests individually, and at that time dealt with. however, a lot of matters of -- pertaining to priests. archbishop Roach testified that he has no memory of Monsignor Srnec coming up there, Hg dgagnrt remember. He didn*t say Monsignor Srnec is mistaken or lying. He said I just don't remember. In fact, when I asked him I said archbishop, Monsignor Srnec he has been priest longer than you. distinguished in fact as a monsignor. anything wrong with his mind or memory? Absolutely not. He has an excellent memory. Any reason to believe him not to be credible and believable? absolutely not. Roach doesn't remember. Keep in mind that at that time keep in mind the time that it was. Who is more likely to remember under these circumstances than Monsignor Srnec? why would Monsignor srneo produce this statement now or recently? why would he keep it for all of these years if he didn't produce it then and bring it to the bishop? It doesn't make any sense that he would have if he hadn't then. another yardstick for measuring the helievability of a witness's version or their memory of the events is impeachment or inconsistent statements. and you will recall that asked archbishop Roach about testimony that he had given earlier in connection with his conversation with Monsignor srneo. You will recall there is testimony that Father Kapoun ultimately was removed from st. Raphael*s in 1974, and the oircumstanoes of his removal were that he was having health problems, and you will see he was having back problems and he was having some emotional mo-B63 problems as a result of whatever was going on in his life and there are some letters from Monsignor srnee, some memos from archbishop Roach. and a letter from Monsignor Srneo to then archbishop Byrne. what's important about that is that when I asked archbishop Roach about his memory of a conversation with Monsignor Srneo that is reflected in a memo dated 19?4, not when he gave testimony about that under oath five years ago now or more, he said at that time he had no memory, no independent memory of the conversation with Monsignor Srnec that that memo refers to in 1974. But when he came into this courtroom and I oross--examined him in this trial, he began testifying about his memory of this conversation. I stopped him and I said archbishop. didn't you testify earlier that you had no memory of this. That all you know is that the memo exists. It didn't make any sense. His memory today about the oonyersation in 1966 is better than his memory was when he gave testimony about this under oath five years or so ago, and it doesn't make sense and it's inconsistent, and that's just one basis for evaluating the testimony of these witnesses as it pertains to these questions that you are required to answer that vital . There is also a memo in their personnel file, and we know that the report didn't make it into the file. The reason it didn't make it into the file is Roach gave it back to Srnec and Srnec kept it for years. You will see in the file, however, there is a correspondence in 19?d and a letter from Monsignor Srnec in that file and it*s Exhibit No. GB in the packet. Monsignor Srnec in that in a veiled fashion refers hack to what he told Reach a year earlier. The letter to archbishop Eyrne that says the matter is complicated as you surely know from Bishop Roach. In other words. he was referring hack to the fact that he had had a conversation with Roach and makes this whole Kapoun situation very complicated. He didn*t want to say or did he say directly what it was but this refers directly back to that. The fact is the report was made to the busy auxiliary bishop and for whatever reasons he doesn't remember it, but the fact is he didn't do anything about it and that makes the archdiocese negligent in their retention of this priest, Father Kapoun. and the evidence that has been produced compels but one conclusion and that is that yes, is the answer to question 5. 87b The next question is 6. "If your answer to question 5 was yes, then was such negligence a direct caution of Scheff1er*s injuries?" How, His Honor is going to define for you what a direct cause is, and he will tell you that a direct cause is a cause. that is a cause, not the cause. a cause which had a substantial part in bringing about the injury. Tou will see that that is a substantial part. Let me tell you what I mean and why that's important. There can be more than one cause in law. The law recognises multiple causation or concurring cause. More than one thing. and the instructions will tell you this. more than one direct cause of an injury happens when the effects of fault of each of two or more persons actively work at substantially the same time. Each may be a direct cause. So what we have here and what the law provides for is a recognition of the reality in life that more than one thing can bring about a result. and there can be more than one direct cause of anything. There can be multiple causes. and in this case because there is more than one cause. there is more than one direct cause of injury. In this case both the abuse by Kapoun was a direct cause and the negligence and the negligent retention of the priest by the Archdiocese was a direct cause. because each played a part and it was a substantial part in bringing about the injury. Let me give you an example. In a baseball game the batter there is a runner on first and the batter hits the ball- Hits to third base. The third base man picks up the ball, throws to second. Runner out at second. second base man throws to first. Runner out at first. You have got a double play. In that baseball game. both the third--base man and the second--base man and the first-base man all get credit for the out, because each were a direct cause or played a substantial part in bringing about the out. How, in this case we are not talking about a game and certainly not talking about a baseball game. we are talking about is legal causation. It is simply the notion that causation or legal responsibility can be shared and that's what we have here. we have shared legal responsibility. first by the priest. nest by his buddy archdiocese of St. Paul Minneapolis. and so the negligent retention of this priest was and did play a substantial part in bringing about the injury because if they had not retained him as a parish he - parish priest. he never could have accessed Dale Scheffler or the other youth either, and they did then play a substantial part in bringing about the injury. call that shared legal responsibility. and you don't have to be concerned about how it is we share it in the law and how you answer this question other than the evidence that has been produced clearly shows that the negligent retention of the priest played a substantial part in bringing about the harm. You notice it doesn't say the substantial part, because if it said the substantial part, that would be singular causation, not multiple causation. More than one thing that brought the harm. The next question is negligent supervision. Now, negligent supervision is similar to but different from negligent retention, and the instructions will tell you that negligent supervision happens if an employer fails to exercise reasonable care in supervising the employment relationship so as to prevent the foreseeable misconduct of the employee from causing harm to others. A little different than retention. It is different from retention, and so when you answer this question yes, you can also answer yes to retention. It's not an either or so when you are scrutinizing the evidence as it retains to retention, it's a different inquiry than it is as to supervision, but it's not an either or proposition. In other words, the conduct in this case or the misconduct has to be foreseeable. we know that it was by reason of the report and Kapoun's continued access to youth, unabashedly I might say. and he made no attempt to conceal that he was bringing youth all over the place, to the seminary, swimming nude. I mean it was just well, we know they took no steps to keep him away from those kids. we know they took no steps to keep him away from those kids, and we know continue to take them, and we know this is negligent supervision, and we know they could have and we know they should have and we know they didn*t and we know for that reason they were negligent in their supervision of this unfit priest, and we know that that negligent supervision played a substantial part in the priest accessing the youth because they didn't supervise him in his parish of St. Raphael, in his parish at the Home of Good Shepherd or at St. Patricks even after Roach had gotten this report. so the their negligence played a substantial part in bringing about the harm, and to answer number 3 your answer would be yes for all the same reasons it's yes in number 5. THE EDURT: How long are you going to be, counsel? MR. ANDERSON: I am going to be long enough so .would request that a break be taken. THE: CDURT: Okay. We are going to take a break at this time. It will be about ten minutes. (Recess taken.) THE COURT: You may proceed, counsel. HE. AHDEESQH: Thank you, Your Honor. Damages. The damage questions. Before I begin on this question you should be aware or I should tell you you should be aware that the nature and extent and the cause of the damages and the injuries in this case are not contested or seriously an issue. You heard several witnesses testify about the nature and extent of his injuries and these witnesses were Ms. Rice, the tea person, Dr. Walter Esra, his therapist, Dr. John oonsiorek. the forensic expert retained by us, and finally Dr. Hung, retained by the Archdiocese, and you may have taken note that none of them disagreed about how and in what way Dale Scheffler had been harmed by reason of what was done to him, so as I address you and discuss with you what sum of money can fully and fairly compensate him based on the evidence. I don't intend to repeat what they have said. You were attentive, you heard it and it was not seriously in contest or controversy. Obviously, BT5 the attorneys in representing their respective clients have a different view on that in concluding what fully and fairly compensates, but ultimately it's your job. and mine is to suggest to you what the evidence shows and to suggest to you what the law allows and ultimately what the law requires. The first in medical therapy and counseling expense. That's an easy one. we are talking a no brainer. It's 2,545. Easy. Loss of earnings is the next one. Dr. Gonsiorek told you that bale Scheffler has been impaired in all areas of his functioning includes his vocational functioning. when he was sexually abused by the priest, he was already learning disabled. we know that. He has a learning disability. a low verbal IQ. They didn't know it maybe back then but we do know that, so he was already by reason of that impaired by where and what he could do occupationally. That*s a given. But what we do know is that that learning disability, and all the experts told us this, that was made worse, exacerbated or aggravated by reason of the sexual abuse, so that further limited his occupational opportunities, because if you can*t read and you can't communicate verbally. there is a certain kind of jobs aren't atom-amma-tum Blfi available to you. so we have a kid vocationally impaired by learning disability, abused by a priest who is further impaired in the area of learning disability and that in part counts for why Dale Scheffler has had limited vocational capacity and has lost earnings. Now, Mr. Eisenzimmer has said there is no way you could compute what the loss of earnings in the past have been and his first question is past loss of earnings, but there is. And you do it by following the guidelines given you by His Honor Judge Larson. and you take the evidence that has been presented and use your common sense. Here is how you do it. Dr. Gonsiorek told you that Dale Scheffler has a global assessment of functioning of 50 to 55 on a scale of one to a hundred. You heard him and Dr. Hung talk about how use that to assess how well somebody does in all area of their functioning including vocationally. Dr. Gonsiorek went on to tell you also that Dale Scheff1er*s global assessment of functioning would have been an to 35 had he not been sexually abused. In other words. he would have done better vocationally. He told you that by reason of the sexual abuse --I --I i ti .4 ILdeveloped problems in chemical dependency and with chemical dependency, and those problems contributed significantly to his vocational ability to work up to his vocational capacity. and by reason of that you have a man. and we heard a great deal of testimony about this man Dale Scheffler and how he has been affected in all areas of functioning. If you take his tax returns which are in evidence you can see what he has earned for the last four or five years and you can see that he has earned an average income for those years, I am taking averages here, of $14.95fl a year. Last year he showed a loss for example, but years before that he showed other income. But using that you can see what his earnings have been. Then you know by reason of the global assessment of functioning that Dale Scheffler has been working at 64 percent of his capacity. In other words, his global assessment of functioning vocationally was impaired by 36 percent. If you take his work life since the age of 20, and I use 20 because you will recall he graduated from high school at age of 1B and then went to vocational school for two years. so if you compute his work life to begin at the age of 20 and extrapolate that to the present, he has suffered during that period of time a --percent impairment vocationally, a diminution of his earnings and his ability to earn, and that has been contributed to by the sexual abuse and its aftermath. He has then using those numbers lost income comparative or proportionate to the income he has earned. Had he not been sexually abused and given his learning disability, it is very evident that bale Scheffler would not have gone into the occupations that require high learning and verbal skills and would indeed be working in many same or similar areas that he has in trades where he has mechanical aptitude, but it is also evident from the evidence and the testimony and the records that he has done poorly in all areas and vocationally at least less well than he would have otherwise. The evidence is that he would have earned 35 percent more had he not suffered this impairment and then would have earned an average of for the last eight years 28 now -- $23,359, so he has lost per year using that calculation 53,499. Taking his past work life from the age of Efl to the present, that computes to The next item of damages. disability. The disability is defined by His Honor and it is the loss physical or mental impairment. Physical or mental, remember the law doesn't distinguish between physical or mental impairment. Now, when Father Kapoun accessed this youth it was I mean it was an assault on the identity, so he in effect twisted his development of his personality so be affected who he is and what he can be. and he affected what he has been since he did that in some way every day of Dale's life from the time of the abuse in June of '31 to the present. He didn*t totally disable him, but what he did do was bring about a constellation of and problems that includes depression with anxiety and a host of other problems that you have heard a great deal about. There is no dispute that he has suffered depression and as a result of this and that there are many manifestations of other problems. not just anxiety. and it is the abuse that by this priest that in effect and in reality robbed Dale of some things. Major depression or is a mental illness, and this mental illness robs Dale of joy and of pleasure and happiness and even sometimes his will to live. and it impairs his ability to love, his ability to trust, because his trust was betrayed, and if you are going to love you have to be able to B80 trust before you can love. It impairs his ability to be intimate. It impairs his ability to life himself. It impairs his ability to be happy and get happy. so every day since Father Kapoun violated him to the present he has suffered some impairment in his ability to do all of the things that are important to all of us in our lives. How then do you calculate or compute what sum of money can fully and fairly compensate him for that? tou will see on this form there are three items, the first is disability, emotional distress, and embarrassment. on the verdict form that you will receive they will be on one line with one line over here. but you should know and you will see that these items of damage are each different and distinct so that when you are calculating what these items of damages are and what sum of money can fully and fairly compensate him. you need to calculate them separately because they are different. all of them real but all of them distinct and under the law requires you to reach individual calculation with a sum total entered in this line right here and the first of those three is the disability. 331 Now, he has it has been 14 years and seven months since the abuse. That*s months and every day in some may very real he has suffered an impairment of his ability to do all of those things. what sum of money can compensate him for that fairly? That's 5.25D days. at a minimum - at a minimum $2fl a day comes to $105,000. You are free to reach any other calculation that you think based on your common sense and the evidence is fair and full but at a minimum $105,300. The next item is emotional distress and that is distinguished from disability. That is mental suffering, mental anguish or nervous shock including a reaction such as fright, horror, grief, humiliation, anger, disappointment and worry. You heard a lot about all of those things in Dale's life, and the demons caused in his and soul by abuse cannot be exercised. I asked Walter Bera what can he do to get rid of these demons of emotional distress that he feels every day, in fact every moment in some way every day of his life to the present. and the answer 15 he Gan set better but we can*t exorcise demons, so what sum of money can compensate him for these feelings. for this distress that is so real and that everybody that testified in this case recognised and 23 24 25 332 diagnosed? That's 1?9 months if you use a calculation. and you don't have to use a or a daily or a yearly. You are free to use your own with the guidelines given to you by this Court, but if you use a calculation of a minimum of $500 a month that comes to $B9.5d0. The next item is embarrassment. Embarrassment is defined as being synonymous with shyness. unworthiness. shame, loss of self confidence and self esteem and self pride. In Dale 5cheff1er's case all of those things have been acute, acute and severe since the abuse, and what sum of money can fairly compensate him for that? Well, there is no sum of money that can give him back that which has been taken, but you and your task is to place a value on this based on the evidence. It has been 14 years that he has suffered this acute loss of sense of self. many of those years mired in alcoholic and drug dependency abuse. But you also know that the experts and all of them testified that the sexual abuse played a substantial part in bringing about that alcoholism and chemical dependency. There was no controversy about that either. In 1991 he get straight and sober but it -.--E53 hasn't the alcoholism hasn*t gone away. He has been straight and sober and he has been doing good. but all of the other problems he was suffering continue to exist, the source of them unknown, so what sum of money can fully and fairly compensate him for that which you know he has been through? $ID.fl0fl a year at a minimum. and while I am talking minimums here. ladies and gentlemen. I am telling you what I believe the evidence justifies and compels as a minimum. You are free as judges of the facts to reach your own conclusion. at a minimum that's s14e,cua and at a minimum that translates to There is nobody in this world that would ever go through what he has gone through for any amount of money much less that, but that's not what the question is. what sum of money can fully and fairly compensate him for what he has been through, and through no fault of nale's, and nobody has said that this was his fault because it isn't and it wasn't. The next question that you are required to answer is what sum of money will fairly compensate Dale Scheffler for his damages reasonably certain to occur in the future? Reasonably certain to occur in the future. all of the experts and all of the testimony agree that the harm that has been done is nw.DItn~.Imu1.n.w1u B34 permanent in nature. That means he takes it to the prays. Indeed through therapy and even more intensive therapy his and his problems oan ameliorate, in other words he oan improve, but he has been indelibly harmed and inalterably injured, and it cannot be undone and there is no sure for that which he suffers and that which he suffered by reason of the sexual abuse, and it is the same as if he was in a wheelchair or if he was with the loss of a leg which you can see in this case he has suffered real and permanent and lasting impairment of his soul, his his mind and his personality. and he can't undo and all the kino*s horses and all the king's men and all the good work by waiter Here and like oannot put him back together. It can make it better but it can't undo it and it oan't cure it. So what do you do? The first question you have to answer is future medical therapy and oounseling expense. There is various testimony on that out if you listen to Dr. Hung he says he might need some medication. He says that that could he a hundred dollars a month but he is not sure about that. If you listen to what he said about that, that could be sa.ooa in the future. Doctor you heard the testimony about the --I --I --I .4: fil- _a H4 -E MIDI ILI 15.3 .1 HI hi la] uh>> IHJ U1 385 Lna, the Learning Disabilities association, and indeed Kapoun didn't cause that learning disability but he aggravated it, and so in answering this question you are to answer this question as it pertains to the learning disability for expenses and cost by reason of the aggravation having made it worse and that*s d.20D. Dr. bera believes and he is uncontroverted that he is in need of intensive future therapy, and you recall he outlined the five--part plan that includes pastoral counseling that doesn't cost any money, learning disabilities which Dale is going to go to and he told you. and an intensive individual therapy and then later in a group. Bern's estimate of all of those future expenses is $34,220, and Gonsiorek talked about what the future need for medical and therapy costs are and he gave you a range of to $23,?5fl, and so if you take all of those numbers and all of that testimony on the low end, it is s2s.2nn. on the high end it is 44,42n, and you as the judges of the facts in reviewing the evidence will be free to make your determination in filling in this line anywhere within that range. Hr. Eisensimmer suggested 38 but you are free to use the ranges, and there is nobody that has said 536 that he doesn't need this, and I am just going to fill in the range. How, let me say something about future damages. There is but one time in which Dale Scheffler can receive compensation for the harm that has been done. The way it works is that we cannot come back here in two years. in five years. in ten years, Efl or 3D or even 50 years and say look. here is what's going on. He needs therapy, counseling. or he is worse than what we thought, so you have to take the evidence that is presented in answering these questions and nobody has ever said this was easy because you have to look at the evidence, but the experts have told you we can expect certain things to happen and they told you what we know about what happened to him and how it's likely to play out in the future and his life. How, in answering the next question. His Honor will tell you that a white Caucasian male who is 23 years old has a life expectancy of 42 years. That's just statistical. Insurance companies and those people figure out our statistical life expectancy and for a male Caucasian it's 42 years. He may live longer. he may not. but you have to figure out for purposes of calculation the future damages and wait until I get the discount of this. It doesn't get easy but this is the task that you have at hand. and because it's not easy doesn't make it any less important, because this is the one and only time compensation can be provided for the harm that has been done into the future and that's why we asked these witnesses about the future herm so that you can do what the law requires you to do and provide full and fair compensation. and you have got to project that into the future using the life expectancy table for Dale Scheffler of 42 years. How do you compute future loss of earnings? I will tell you how. Just like you did the past loss of earnings. Let me tell you about that. If a machine has been disabled partially. and we all know a machine has a work life, just like a human, and if a machine is damaged or partially damaged or disabled by a wrong deer, and the machine before that could make ten widgets a day, but now by reason of the wrongdoing can only make five widgets. the owner of that machine in our law is entitled to the yalue of the widgets for the work life of the machine. A human being is entitled in our system to no less, so how do you compute the future loss of earnings and earning capacity? You do it by looking what the experts told you about the vocational impairment he has suffered by reason of the sexual abuse, and you use the global assessment of functioning that you know is currently and has been by Dr. Hung's opinion 55, by Dr. Gonsiorek, 50 to 55. you know that even with the therapy and the improvements and advances that can be made through the therapy that he is going to get it still can't be undone. and he will continue to suffer impairment in his vocation and in his ability to work the way he had in jobs that he would have had he not been sexually abused. because his personality and his ability, his motivation. his mood has been disordered and cannot be unordered. It's a mood disorder. Depression. with features of anxiety. So if he has a work life of 42 years statistically, you extrapolate that 35 in percent impairment to his average earnings that he has made to date, and I have already told you what they are for the last five years. You assume and because we believe and we hope that he will get better, and I am confident and the testimony is clear that he can and will improve and that Dale Scheffler is motivated to improve his life and he will get better, and we all hope this makes him better, and if we assume the heat 839 scenario that he will benefit from all of these things and from your verdict, he will, and let's assume a 50 percent improvement from where he is now. and if he makes that 50 percent improvement and he makes these strides and he gets his learning disabilities, what are they called, that program. and he works in therapy and he works on these issues and he does intensive therapy and does all of these things that they say he should and he says he will do and wants to. he is going to get better. The prospect of him not is very sad. but he is going to get better. and for purposes of this answering this question I think the evidence tells you he will. so what sum of money can fully and fairly compensate him for that if he does improve 50 percent from where he is today from where he has been in the past? It calculates to a yearly annual loss of impairment and earnings of $4.2fiD. If you extrapolate that to the end of his work life which 65. but extrapolate to what you think is a reasonable work life for a 23-year-old man who is Dale scheffler. if you extrapolate to EU, that's $4.2fifi a year which translates to future loss of earnings. That's how you do Basad evidence that has been presented in this courtroom and my suggestion is that is that how you do do it if you feel he will not, however. suffer excuse me -- enjoy as much as I have suggested that being a 50 percent improvement that number is higher. Keep in mind nobody has said from that witness stand or offered any evidence that the effects of this yooationally or otherwise can be undone, ameliorated or cured. The next item is disability. I have already talked about disability and it's impairment of his ability to enjoy live and every aspect of it and that is permanent and that is real, and how then do you extrapolate what sum of money can compensate him for that? If you use it to his life expectancy, that is another 42 years into the future. If you use it to his life expectancy and you are optimistic that he will have a 50 percent improvement by reason of this and your yerdict. that comes to $153,500. The minimum emotional distress is and will be worse at times than others. If you look back at Dale's history of emotional distress including depression, you will see sometimes he is in major depression or major depressive disorders. other times it's but there are no times where it isn't IKJ 391 both or either. he times. There has never been a time since Dale Scheffler suffered this indelible horror that he hasn't suffered the effects of depression and mood disorder. No time and there is no time in the future that he won't to the grave. That*s a fact, that's the evidencecould undo that. we would, but there is none of us and none of them and those therapists that oan cure it, so he has got emotional distress every day in some way for the rest of his life, and it's now your job and your duty and your obligation to come up with a sum of money that fully and fairly compensates him for it. If you calculate that to be on a basis. that comes to 42 years. and if you use and assume as I have said the improvements that were likely to come forth at $250 a month, that comes to -- at 250 a month that comes to Embarrassment. we have already defined embarrassment for you and the embarrassment in this case is the self esteem. the self loathing, the shame, the quilt, all the things you have heard so much about, and based on what Drs. Here and Gonsioreh have told us, I think the evidence suggests that he is going to show the most improvement in that area. He has made the disclosure. He has made the discovery 392 that he was sexually abused. He has gotten some insight into the source of these problems over the years and he now knows that he has problems, he knows that they are caused or brought about by reason of sexual abuse and he can work on them and he can work on himself. and I think the evidence suggests clearly that that is where he is going to make the strides, through therapy and through your verdict, and I think the evidence suggests that while he will never totally like himself and be happr. his confidence, his guilt. his sense of shame and his sense of efficacy can get much better. and I think your verdict should reflect that he will based upon the evidence. But it should also reflect that he will never be as happy with himself or happy in his life and ever rid himself of the sense of shame and guilt and stigma that he has suffered. and if you take the scenario that lies ahead for him based upon the evidence you have shown is a year compensation for that which you know he has suffered and is going to suffer in the future. at a minimum that's and if you take these numbers and add them up and calculate them separately. at a minimum the future disability, emotional distress and embarrassment is $459,500. You as the judges of the facts should view the E93 evidence minimum that is full, that is fair. That is nothing more. I am concluding. A few years ago if any of you saw a movie called it was an Dscar--winning movie actually called the scent of a woman. It would have been about five years ago. It was nominated and you will recall that Colonel Frank Slade played the lead in that and he gave a speech. He was a war veteran and it was played by A1 I forget the name. A1 well. it's not important who the actor was. what's important is what he said. and you may remember in that speech what colonel Slade said. In said in speaking of his days back in the war and the terrible injuries that it had caused, he said. and I will never forget what he said. I may forget the actor's name. He said there is nothing like the sight of an amputated spirit. There is no prosthetic for that. well, yes, the amputation of a slaying of a human spirit is tragic, because it is our spirit that determines whether or not we succeed in life and its endeavors and personal relationships and marriage and in jobs and the things that life confronts us all with, and the abuse of Dale Scheffler has in some way crippled his spirit, because it was an assault on his .--B94 dignity and his identity. and the perpetrator of it sent him a message that this is what you are good for. However, I disagree with Colonel Blade and the statement that he made in that movie when he said there is no prosthetic for that. I don*t believe that. and that is why I am here today before you and that is why I do what I do and that is this. I represent Dale Scheffler. I believe in a triumph of the human spirit. In fact, I believe that is an essential part of his recovery, and it is over the terrible acts of abuse that were done to him that we are here, and I submit to you that the verdict you return in this courtroom and in open court and the decision you reach will help him walk through life with a sense of empowerment. some measure of victory. and even renewed in a struggle to face and deal with the road that lies ahead, and it aint a pretty one. and I ask you now taking the evidence and the law and nothing more to share in the rage and to be a part of his recovery and how he walks that road ahead, because in a way you hold the prosthetic in your hands and in the verdict that is read in this courtroom. and I ask each of you to reach out and to return in your verdict that which he deserves under the law E95 and nothing more. And do justice. THE COURT: Counsel, would you move the podium, please, or the easel. HR. ANDERSON: Yes, Your Honor. THE COURT: Members of the jury, now that the evidence in this case has been presented, the time has come for me to instruct you on the law. My instructions will cover three areas. First, some instructions on general rules that define and control your duties. second. the instructions that supply the law applicable to the claims and the defenses in this case, and third. some guidelines and rules for your deliberations. A copy of these instructions will be available for you in the jury room to consult if you find it necessary. In defining the duties of the jury let me first give you few general rules. It is your duty to find the facts from all the evidence in this case. To the facts as you find them you must apply the law as I give it to you. The questions that you must decide will he submitted to you in the form of a special verdict consisting of ten questions. You must answer these questions by the facts as you find them to be. I shall give to you the rules of law 395 that apply to these questions and you must apply them in arriving at your answers. It is my duty to order judgment according to the law and the answers that you have returned. You must follow the law as I give it to you whether you agree with it or not and you must do your duty as jurors regardless of any personal likes. dislikes. opinions. prejudices or sympathy. That means that you must decide the case solely upon the evidence presented to you. In following my instructions you must follow all of them and not single out some and ignore others. They are all equally important and you must not read into these instructions or anything that I may have said or done any suggestions from me as to what the verdict should he and how you should answer the questions in your special verdict form. Deciding the questions of fact is your exclusive responsibility. In doing so you must consider all of the evidence that you have heard and seen in this trial and the reasonable inferences to be drawn from that evidence, and you must disregard anything that you may have heard or seen elsewhere about this case- Whether or not a particular answer is U1 DVDE-JU1 B91 favorable to one party or the other should not concern you. You must consider these instructions as a whole and regard each instruction in light of all the others. The order in which I give you the instructions is of no significance. whenever the word he or she is used in these instructions, you may consider it as applying to a men, a woman or an entity such as a corporation. In a like manner, the use of the singular of a word may be taken to mean the plural. The plural may be taken to mean the singular. Attorneys are officers of the Court. It is their duty to present evidence on hehalf of their clients. to make such ohiections as they deem proper. to argue fully their client's cause. However, the arguments or other remarks of the attorneys are not evidence in this case. If the attorneys have made or I have made or should make any statement as to what the evidence is which differs from your recollection of the evidence, then you should disregard that statement and rely solely upon your own memory. If the attorney*s argument contain any statement of law which differs from the law as I give it to you, then you should disregard their statements and fellow the law as I give it to you. .--393 During this trial I have ruled on objections to certain testimony and exhibits. You must not concern yourselves with the reasons for my rulings since they are controlled by rules of law. Objections to questions are not evidence. Lawyers have an obligation to their clients to make an objection when they believe evidence being offered should not be admitted under the rules of evidence. If the objection is sustained. ignore the question. If it*s overruled. treat the answer like any other. By receiving the evidence to which an objection was made. I did not intend to indicate the weight to be given to such evidence. You are to disregard all evidence which I ordered stricken. A fact may be proved by either direct or circumstantial evidence or both. The law does not prefer one form of evidence over another. A fact is proved by direct evidence when for example it is proved by a witness who testifies to what they saw, heard or experienced or by physical evidence of the fact itself. a fact is proved by circumstantial evidence when its existence can be reasonably inferred from the other facts proved in the case. You are the sole judges of whether a witness is to be believed and the weight to be given to the B99 testimony of each. There are no hard and fast rules to guide you in this respect. In determining helieyahility and weight you should take into consideration as to the witnesses the following- Their interest or lack of interest in the outcome of the case. Their relationship to the parties. Their ability and opportunity to know, remember and relate the facts. Their manner and appearance, their age and experience. their frankness and sincerity or lack thereof, the reasonableness or unreasonahleness of their testimony in light of all the other evidence in the case, any impeachment of their testimony. and any other factors that bear on believahility and weight. You should in the last analysis rely upon your own experience, good judgment and common sense. A witness who has special training, education and experience in a particular science, profession or calling is allowed to express an opinion. In determining the helieyahility and weight to be given to such opinion evidence. you may consider among other things one. the education and training and experience and knowledge and ability of the witness. the reasons given for the witness*s opinion. the source of the witness's information, and factors that I have just given you for evaluating the testimony of a witness. Such opinion evidence is entitled to neither more nor less consideration by you and the other fact evidence presented. In deciding helievahility and weight to be given to the testimony of a witness, you may consider evidence of a statement by or conduct of the witness on some prior occasion which is inconsistent with the witness's present testimony. The evidence may he considered by you only for the purpose of testing helievahility and weight of the witness's testimony and for no other purpose. If. however. the statement was given under oath or the witness is a party or an agent of the party in the case, the evidence of the prior inconsistent statement or the conduct of a party or an agent of a party may be considered as evidence bearing on the issues in this case as well as for testing believahility and weight. There are two defendants in this lawsuit. Answer the special questions as each -- as to each defendant as though the lawsuits are being tried separately. Each defendant is entitled to a fair and separate consideration of his case and is not to he prejudiced hy the answers with respect to the other. These instructions govern the case as to each defendant so far as they apply to each defendant. order to answer any question yes, the greater weight of the evidence must support such an answer. Otherwise you should answer the question no. The greater weight of the evidence means that all of the evidence by whomever produced must lead you to believe that it's more likely that the claim is true than not true. If the evidence does not lead you to believe that it's more likely that the claim is true than not true. then the claim has not been proved by the greater weight of the evidence. The greater weight of the evidence does not necessarily mean the greater number of witnesses or the greater volume of testimony. Any believable evidence may be a sufficient basis to prove a fact. An affirmative defense must be proved in the same way that a claim must be proved. For special verdict question number 3 the defendants have the burden of proof. A person may assume that every other person will use reasonable care and will obey the law until the contrary reasonably appears. Negligence is the failure to use reasonable care. Reasonable care is that care which a reasonable person would use under like circumstances. Negligence is the doing of something which a reasonable person would not do or the failure to do something which a 9D: reasonable person would do under like circumstances. when an act or emission is not negligence if no risk of injury could have reasonably been anticipated or foreseen. Negligent retention occurs if during the course of employment the employer becomes aware or should have become aware of problems with an employee that indicate his unfitness and the employer fails to take reasonable action such as investigating, discharge or reassignment. Negligent supervision occurs if the employer fails to exercise ordinary care in supervising the employment relationship so as to prevent the foreseeable misconduct of an employee from causing harm to others. in employee is acting within the scope of employment when performing services for which the employee has been employed or while doing an act or anything which is reasonably incidental to the employment. To be reasonably incidental to the employment. an act need not have been specifically authorized and may in fact have been forbidden by the employer. What is reasonable what is required is that one, the employer should have reasonably foreseen the act from the nature of the employment and the duties relating to it, and two, the act occurred at a place or during time related to the employment. A direct cause is a cause which had a substantial part in bringing about the injury either immediately or through the happenings which follow one from another. There may be more than one direct cause of an injury. when the effects of a fault of each of two or more persons actively work at substantially the same time cause the injury, each may he a direct cause of the injury. The Archdiocese of St. Paul and Hinneapolis is a corporation and can act only through its officers and employees. Negligence of an officer or an employee acting within the scope of his employment is the negligence of the corporation. Sexual abuse is defined as sexual conduct -- contact or sexual penetration when the complainant is at least 13 hut less than 16 years of age and the actor is more than 48 months older than the complainant or is in a position of authority over the complainant and uses that authority to cause the complainant to submit. Neither mistake as to the complainant's age or consent to the act by the complainant is a defense. Sexual contact includes any of the following acts committee with sexual or aggressive intent. fine, 904 the intentional touching by the actor of the complainant's intimate parts. Two. the touching by the complainant of the actor's intimate parts affected by coercion or the use of a position of authority. Three. in any of the cases above touching of the clothing covering of the immediate area of the intimate parts. Intimate parts include the primary genital area, groin, inner thigh, buttocks or breast of a human being. Sexual penetration means sexual intercourse, anal intercourse or any intrusion however slight into the genital or anal openings of the complainant's body or any part of the actor's body or any object used by the actor for this purpose. Emission of semen is not necessary. Position of authority includes but is not limited to any person who is a parent or acting in the place of a parent and in charge with any of the parental rights, duties or responsibilities to a child or a person who is charged with any duty or responsibility for the health, welfare or supervision of a child either independently or through another no matter how brief at the time of the act. Question number 3 asks, "When should a reasonable person in Dale 5cheffler's situation have 905 known that he was sexually abused and that he sustained injury as a result of the sexual abuse?" You must fill in the month, day and year. when answering this question you must apply a reasonable person's standard. You must consider what a reasonable person in Dale Sohe?fler's situation should have known. a person has reason to know a fact when a reasonable person under the same or similar circumstances would know that fact. The knowledge of a parent or a guardian may not be imputed to a minor. Questions 9 and 10 on the verdict form are damage questions. You must answer these questions regardless of your answers to the other questions in the verdict. You are not to consider the possible effect of your answers to the other questions when you determine damages. Your verdict is not complete until the questions are answered. The term damages means a sum of money that will fairly compensate an injured person a person injured. Damages may include past or future injury. However, it must be proved that such future injury is reasonably certain to occur. A party seeking damages must prove the nature. extent. duration and consequence of his injury. 936 Determination of damages must not be based upon speculation or guess. In answering questions number 9 and 10, you are to determine the amount of money which will fairly and adequately compensate Dale Scheffler for his past and future harm, giving consideration only to such of the following items as shown by the evidence to have resulted from the incident. any pain, disability, embarrassment or emotional distress experienced by reason or Dale Scheffler's injuries up to the time of the trial. There is no yardstick by which you can yalue these items exactly. They are not necessarily determined on a per diem or a per hour basis. You should consider the nature and extent and severity of the injuries. how painful they were, what the treatment was and the pain connected with it. how long the injury persisted and such other factors as in your judgment bear upon the matter. Embarrassment. The term embarrassment is synonymous with the term such as shyness, unworthiness, shame, loss of self confidence and loss of self pride. Emotional distress. Emotional distress is mental suffering, mental anguish or nervous shock including mental reaction such as fright, horror, grief, humiliation, anger, disappointment, worry and nausea. Disability. Disability means a loss of physical or mental function andfor the inability to engage in substantially a person's usual and customary daily activity, the reasonable value of medical therapy and counseling services of every kind necessary for treatment, the value of earnings lost as a result of the injury from the time of injury to date. Such pain, disability, embarrassment or emotional distress as Dale Scheffler is reasonably certain to experience in the future, the reasonable value of the necessary medical, therapy and counseling services that are reasonably certain to be required in the future. If future disability is reasonably certain to occur, you may take into consideration the effect of that disability on Dale Scheff1er's future earning capacity. If Dale 5cheff1er's future earning capacity has been destroyed or reduced by his injuries, you may determine damages for such loss or reduction of future earning capacity. In determining the amount of such future damages, you should take into consideration the age, health, skill, training, experience, and industry of Dale Scheffler. whether the loss of future earning 9GB capacity is for a limited period of time or is permanent and whether the number of years of Dale Scheff1er's earning expectancy is equal to or less than his life expectancy. according to the life expectancy tables, life expectancy of a male person 23 years of age is 42 years of age 42 years. This figure is to assist you in determining the probably life expectancy of Dale Scheffler. It is not conclusive proof of his life expectancy and you are not bound by it. It's only an estimate based upon average experience. You may find that Dale Scheffler might live a longer or shorter period than that given in these tables. This figure should be considered by you along with other evidence of health, physical condition, habits. occupation and surroundings of Dale Scheffler and other circumstances bearing upon his life expectancy. After finding the dollar value of future damages for loss of future earning capacity and future medical and therapy and counseling services, you must then find the present cash value of such amount and award only the present cash value of such future damage. This simply means that if you find that Dale Scheffler is entitled to recover any elements of damage which require you to determine their present 909 value. you must take into consideration the fact that money if invested will earn interest until the time -- until the time in the future when these losses will actually occur. Therefore, you must reduce any award of such damages to compensate for the reasonable earning power of money. A person who has a defect. disability at the time of an accident is nevertheless entitled to damages for any aggravation of such pre-existing condition even though the particular results would not have followed if the injured person had not been subject to such pre~ex1stinq condition. oamages are limited. however, to those results which are over and above those which normally follow from the pre-existing condition had there been no incident. In determining the amount of damages you should consider that one who is injured has a duty to act reasonably in obtaining treatment and caring for his harm. He is limited to those damages which he would have suffered if he had acted reasonably in obtaining treatment and care. When you retire to the jury room you will select one of your number to act as a foreperson to preside over your deliberations. You must not permit sympathy; prejudice or emotion to influence your lull"-910 verdict. If you return a verdict during the first six hours of your deliberation, it must be agreed to by all of you. If after deliberating six hours or more you are unable to arrive at a unanimous verdict, five of you may return a verdict. The same five jurors must concur in the answers to all of the questions. If the verdict is unanimous, it need be dated and signed only by your foreperson. If after six hours of deliberation it is agreed to by five of you, the verdict must be dated and signed by the five who agree. The final test of your quality of your service will he in the verdict which you return to this court. You will make a definite contribution to the efficient administration of justice if you arrive at a just and proper verdict. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so consistent with your individual judgment. Each of you must decide the case for yourself but do so only after a full consideration of the evidence with your fellow jurors. In the course of your deliberations re--ewamine your views and do not hesitate to change your mind if you find that you are mistaken. However, do not 911 surrender your honest conviction as to the weight or effeot of the eyidenoe solely because of the opinion of your fellow jurors or merely for the purpose of returning a yerdiot. after you have returned this special yerdiot form, you may be required to hear some additional testimony approximately one day, additional argument and you may be required to do some additional deliberation. Anything to bring to my attention, counsel? MR. ANDERSON: No. Your Honor. HR. EISENZIMHER: No, Your Honor. HR. BROWN: No, Your Honor. THE COURT: I caught one little type which 1 want to talk to you about. 1 want to have the deputy step forward and be sworn. (Deputy sworn.) THE COURT: Mr. Uolk and He. Gust. you are the alternates in this oase. If you would just remain seated here for a moment I will talk to you. The rest of you should take your personal belongings and go with the deputy at this time. Do you have an idea whether you want to start tomorrow morning at 9 o*o1ock or a few minutes earlier? Maybe you can talk to-the deputy about that. I think we oan probably get deputy at 8:30- THE SHERIFF: we might be able to. THE COURT: You can talk to the deputy about that before you leave today. and the exhibits and instructions and the verdict form will be in in just a few moments. actually by the time I am looking new -- they won*t be in until tomorrow morning. so what you need to do is elect your foreperson. tell the deputy whether you are going to return at 8:30 or 9:09 and then he will ewcuse you for the night. He sure not to listen to watch any coverage of this case. There may be news coverage in tomorrow's paper. There have been news people in this courtroom this afternoon. [Jury goes to jury room.J [The following discussion was held out of the hearing of the jury.} THE COURT: Hr. volt and Ma. Gust. because there may be some future deliberations in this case and I don't know that yet. I am not going to send you back to the jury room. I am going to keep you under my control at this time. You should go home. You should not discuss the case with anybody. allow anybody to discuss it with you. Do not watch any news media coverage concerning this case and make sure that 913 Tammy has your phone numbers and she will call you tomorrow afternoon and let you know what's happening. If we eventually release you, you will get a letter from me thanking you for your service, and if you want to know what happens you can just call Tammy and she will give number you can call her and she will tell you what happens- If we need you back here she will let you know that and you will come back and I will give you further instructions. I usually have a little more debriefing. but I am not going to do that because we may need you yet. I emphasize do not discuss this with other people. with yourselves. do not listen to any of the news media reports. if you are interested in that have a friend or significant other tape that, cut out the newspaper or whatever. those things I told you when we started this case. I need you to stay available for us for another day or so, and you can call Tammy sometime. You will not be needed tomorrow. You can go to work tomorrow but you will not be needed tomorrow I can tell you that. [Recess.l