United States District Court, D. Hawaii
ORDER GRANTING THE SOUTHDOWN INSTITUTE’S MOTION FOR SUMMARY JUDGMENT
SUSAN OKI MOLLWAY UNITED STATES DISTRICT JUDGE
In the Complaint filed on April 11, 2014, Plaintiff David Husted, Jr., alleges that between 1979 to 1982, while he was a minor, he was sexually abused by Father James A. Spielman of The Diocese of Buffalo, New York. The legislature of Hawaii has reopened the statute of limitation for such claims, and no party is arguing at this time that the present action is time-barred.
In addition to suing Spielman, Husted sues The Diocese of Buffalo, the Roman Catholic Church in the State of Hawaii, Southern Tier Catholic School Archbishop Walsh Academy, and The Southdown Institute. Before the court is Southdown’s motion for summary judgment on all claims asserted against it. Husted claims that Southdown negligently treated Spielman for a psycho-sexual disorder before the alleged abuse, and claims that Southdown is legally responsible for having allowed Spielman to go back to work as a priest, giving Spielman the opportunity to sexually abuse Husted.
Southdown argues that the only admissible evidence shows that it did not treat Spielman until after the period in which Husted was allegedly abused. Southdown also argues that this court lacks personal jurisdiction over it. This court determines that Southdown is entitled to summary judgment because Husted fails to raise a genuine issue of fact as to whether Southdown treated Husted before the alleged abuse of Husted ended.
II. FACTUAL BACKGROUND.
The Complaint alleges that Husted was sexually abused from 1979 to 1982 by Spielman while Spielman, an ordained Roman Catholic priest, was on the faculty of Archbishop Walsh High School and Husted was a teenaged student there. ECF No. 1, PageID #s 2, 3-4, 9. Husted says that Spielman abused and molested him “at churches, rectories, schools and retreat centers, ” and that some of the abuse occurred in Hawaii, where Spielman allegedly accompanied Husted in or around 1982. Id., PageID #s 12-13.
According to Husted, Spielman was treated by Southdown, an organization in Ontario, Canada, that provides support for members of the clergy with addiction and mental health issues. Id., PageID #s 4, 10. Husted alleges that “sometime between 1970 and 1993 Perpetrator Spielman was assigned to The Southdown Institute in Ontario, Canada specifically to address his issues with addiction and mental health relating to the sexual abuse of minors.” Id., PageID # 10. Plaintiff contends that Southdown “knew and/or should have known the Perpetrator was not fit to serve in ministry involving interactions with children yet released him back into ministry.” Id., PageID # 5.
Southdown did not have a records retention policy until 2000. See Affidavit of Dorothy Heiderscheit, ECF No. 156-1, PageID # 1465. Since then, Southdown has maintained patient records for a fourteen-year period after patients cease treatment at Southdown. Id. Southdown only keeps accounting records for seven years. Id. Southdown’s admission that it did not keep old records comports with the opinion of Husted’s alleged expert, who opines that records about Husted’s treatment are missing. See Aff. of Thomas P. Doyle ¶ 14, ECF No. 160-3, PageID # 1587 (“Spielman’s file should contain various reports from Southdown but it does not.”). There is no evidence in the record establishing that, before discarding Spielman’s records, Southdown had reason to think that it should maintain or was required to maintain the records. No evidence suggests that Southdown knew or should have known that the Hawaii legislature would reopen the limitations period for the type of claims Husted asserts.
For an individual whose treatment at Southdown ended more than fourteen years before Southdown had reason to retain records, Southdown’s only record of the individual’s treatment is a one-page summary showing that individual’s name and dates of treatment, and the identity of the person who referred the individual for treatment. Id., PageID #s 1465-66. Southdown’s one-page summary of Spielman’s attendance indicates that Spielman was treated at Southdown from December 26, 1989, to May 25, 1990, and was “Reactivated” on August 18, 1993. ECF No. 156-3, PageID # 1469. Thus, according to Southdown’s normal business records, Spielman was treated at Southdown after Spielman allegedly sexually abused Husted from 1979 to 1982.
In contending that Spielman may have been treated at Southdown prior to the abuse, Husted relies on a log of allegedly privileged documents. That privilege log lists as a document withheld during discovery a letter dated June 5, 1972, that pertained to “Personal Private Medical Information.” ECF No. 160-2, PageID # 1575. It also describes other documents dated after 1982 that Husted says might reference pre-1982 treatment of Spielmen at Southdown for a sexual disorder. Husted’s attorney asserts in her declaration that Spielman had a “long history of entering into and out of treatment facilities and medical treatment for psycho-sexual disorders including pedophilia.” ECF No. 160-1, PageID # 1569.
On August 3, 2015, the Magistrate Judge held a discovery conference regarding The Diocese of Buffalo’s privilege log. Ultimately, he ordered The Diocese of Buffalo “to produce documents which describe or refer to Fr. James A. Spielman having problems with or treatment for pedophilia prior to Plaintiff Husted’s alleged abuse from 1979 to 1982 regardless of when the document itself was created.” ECF No. 132, PageID #s 1355-56. The Diocese of Buffalo has represented to the court that none of the documents on the privilege log fell into that category.
In the eight months since the Magistrate Judge’s order, Husted has apparently not obtained any document from The Diocese of Buffalo showing or even suggesting that Spielman was treated at Southdown prior to the period from 1979 to 1982 during which Husted was allegedly abused. The record contains no evidence that The Diocese of Buffalo has violated the court order regarding production of documents indicating that Spielman was treated at Southdown.
At the hearing on the present motion, counsel for The Diocese of Buffalo confirmed that none of the documents on the privilege log fell within the court order. Counsel also specifically addressed the letter dated June 5, 1972, a date preceding the start of the abuse Husted allegedly suffered. According to counsel, that letter did not ...