Abels & Annes

In Dan McCormack Sex Abuse Lawsuit Against Archdiosese, Judge Denies Punitive Damages Motion – Willing To Reconsider Issue After Further Discovery

David Abels & Associates, P.C. is currently acting as co-counsel with the firm of Hilfman, Martin & Barr P.C. in a lawsuit against the Archdiosese of Chicago relating to the sexual misconduct of Father Daniel McCormack. Last week the Court heard the Plaintiff’s Motion To File an Amended Complaint Seeking Punitive Damages against the defendants. This motion was argued by Bill Martin. The Honorable Jeffrey Lawrence denied the motion, but Judge Lawrence said that he would be willing to hear the motion again after the parties complete some discovery.

The Court focused on the information contained in the report of the Archdiocese’s consultant, Defenbaugh, and specifically commented on 1999 reports from Sister Mary Therese Cusack to the Archdiocese relating to improper conduct by McCormack. The court indicated that the allegations in the plaintiff’s motion may be sufficient to allow the plaintiff to pursue punitive damages, but that these allegations required additional legal evidence in the form of depositions or affidavits. Plaintiff’s counsel intends to take the depositions of Archdiocesan personnel and to resubmit this motion to the court.

Daniel McCormack has plead guilty in criminal court to abusing five boys. He is serving a five year prison sentence.

The plaintiff’s entire motion for punitive damages reads as follows:

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION
JOHN DOE, a minor, by and through
his mother and next friend, Jane Doe,

Plaintiffs,

vs.

THE ARCHDIOSESE OF CHICAGO,
THE CATHOLIC BISHOP OF CHICAGO,
a corporation sole, and
CARDINAL FRANCIS GEORGE,

Defendants

Case No. 07 L 001504

PLAINTIFF’S MOTION TO FILE AMENDED
COMPLAINT SEEKING PUNITIVE DAMAGES
The plaintiff, John Doe, a minor, by and through his mother and next friend, Jane Doe, by their attorneys, Hilfman, Martin & Barr, P.C., moves pursuant to 735 ILCS 2-614.1 for leave to file an amended complaint adding a count seeking punitive damages against the defendants and state:
a. Introduction Victims of childhood sexual abuse are victimized for life. Persons who commit such abuse must be criminally punished; persons and entities whose conduct facilitates the abusers or the abuse must be civilly punished. In this case, John Doe, a young boy, was one of multiple boys sexually abused by his parish priest, Fr. Daniel McCormack. Though discovery is at an early stage, there is clear, cogent evidence that the defendants in this matter had knowledge for a long time prior to the instant abuse of McCormack’s history of sexual abuse of minors; that these defendants had an opportunity and responsibility to protect the plaintiff from McCormack; and that instead, these defendants, by not timely informing any legal authority or parent of McCormack’s conduct and by not meaningfully barring McCormack from having access to children in Archdiocesan facilities and activities, chose a course of conduct which benefited themselves at the expense of victim boys. Then these defendants “lost” incriminating documents and information about their knowledge of McCormack and their failure to act.
There is significant evidence to establish a reasonable likelihood that the plaintiff will prove facts at trial sufficient to support an award of punitive damages against these defendants, and thus, the plaintiff seeks leave to file a complaint seeking that relief.
b. Facts To date, the evidence about the defendants’ knowledge, conduct, and inactivity exists from the following sources:
a. report by Defenbaugh & Associates prepared for the Archdiocese of Chicago and published on the Archdiocese’s web page (see attached Ex. A);

b. report by Terry Childers to the Archdiocese of Chicago and published on the Archdiocese’s web page (attached as Ex. B);

c. documents provided by the defendants in discovery in July, 2007 (Ex. C) ;

d. defendants’ interrogatory responses of August, 2007 (see attached Ex D); and,

e. newspaper articles (investigation and interviews) (see attached Ex. E).

This evidence establishes that for many years prior to Doe’s abuse, the defendants, including the Archdiocese of Chicago, The Catholic Bishop of Chicago, a corporation, and Cardinal Francis George (hereinafter defendants), had knowledge of multiple incidents of childhood sexual victimization by McCormack; failed to timely report any of these incidents to any legal authority or to any parent; failed to remove McCormack and/or effectively bar him from continuing access to children; and, “lost” (or destroyed) documents establishing their knowledge and culpability. This evidence includes:
a. From 1988 to 1991, while a seminarian under the defendants, McCormack was involved in 3 separate occasions of “sexual interaction and/or suspicious sexual activity”, including two involving adult males and one involving a minor male (Ex. A, Defenbaugh report, pgs.3-4, 25);

i. No one on behalf of any defendant reported the above allegation involving the minor to any civil authority (DCFS, police, States Attorney);
ii. The Archdiocese, via Fr. Kicanas, focused at that time on McCormack’s alcohol abuse problem as opposed to his sexual abuse with a minor (see Exhibit E, newspaper article of 11/14/07)

b. In spring, 1992, while McCormack continued to reside and study under the defendants, seminarian officials documented the above allegations (par. a) in McCormack’s Archdiocese file. (Ex. A, pg. 25-26). However, this documentation cannot now be located (Ex. A, pg. 4, 26);

c. After McCormack’s ordination in May, 1994, the defendants assigned him to various Archdiocese parishes and positions without restricting his access to children or otherwise protecting the children.

d. In October, 1999, while McCormack was a priest at the Archdiocese’s Holy Family facility, the school principal, Sister Mary Therese Cusak, received a report that McCormack instructed a 4th grade boy, who wanted to be an altar boy, to pull down his pants so that McCormack could measure him (Ex. A, pg. 24; Ex D, defendants’ Answers to Interrogatories No. 3, pg. 3); Sister Cusak confronted McCormack about this report, and McCormack admitted that he used poor judgment. Sister Cusak orally reported this incident to the office of Catholic Schools and hand delivered a written report to the Archdiocese. (Ex. A, pg. 24; Ex. C, pg. CB5 00052) In response, she was told by the office of Catholic Schools that “[I]f the parents aren’t pushing it, let it go”. (Ex. A, pg. 24, 28);

i. No one on behalf of any defendant reported the above incident to the civil authorities (Ex. A, p. 24);
ii. no restriction was placed by any defendant on McCormack’s access to children;
iii. no one on behalf of any defendant informed the parents of children at risk about this incident/ McCormack;
iv. Sr. Cusak’s hand delivered written report of McCormack’s sexual abuse cannot be discovered. (Ex. A, pg. 24);

e. From October, 1999 through December, 2005, while McCormack was pastor of the Archdiocese’s St. Agatha’s Church and a teacher and basketball coach at Our Lady of the Westside School (OLWS), the Office of Catholic Schools, an Archdiocese organization, received “numerous” allegations of and/or suspicious activities involving McCormack with children. These allegations and/or suspicions were deemed credible so as to cause OLWS teachers to perform informal monitoring of their students when McCormack was in the school. (Ex. A, pg. 24);

i. No one on behalf of any defendant, in violation of Illinois law, reported any of the above incidents to DCFS or to any other civil legal authority (Ex.A, pg. 24);
ii. no parish or school parent was informed by any defendant of these incidents/McCormack;
iii. no meaningful restriction was placed by any defendant on McCormack’s access to children.

f. In September, 2003, the Archdiocese received a telephone report of possible misconduct by McCormack relating to children. (Ex. A., pg. 21-22; Ex. D, No. 3, pg. 3) The female caller (grandmother of a basketball player victim) left her telephone number, but the Archdiocese took no meaningful action to respond to her complaint or to address her concerns until after McCormack was arrested (December 2005) for abusing more boys. (Ex. A, pg. 3, 21-22; see also Ex. C. pg. CB3, 22, 24); One of the concerns raised by this caller was the “number of teenage boys that are always in the rectory”. (Ex. C, pg. CB3, 00129);

i. No one on behalf of any defendant reported the above allegation to any legal authority until January, 2006 (Ex. A, pg.22, 28);
ii. no defendant informed the parents of other basketball players about this report;
iii. no restriction was placed on boys being in the rectory with McCormack or with McCormack’s access to children in Archdiocesan facilities activities.

g. In August-September, 2005, a mother of a child reported to the Archdiocese about her son being sexually abused by McCormack. (Ex. A, pg. 3) McCormack was then arrested by the police regarding these allegations. (Ex. A, pg. 25; Ex. D, pg. 4) In response, the Archdiocese took “token” action to restrict McCormack’s activities with children at OLWS. (Ex. A, pg. 20). In this regard, the defendants assigned another priest to monitor McCormack, but the defendants knew that that priest was rarely present; they failed to inform the administrators at OLWS of McCormack’s history, and they allowed McCormack to continue coaching basketball. (Ex. A, pg. 3) There is evidence that in this time frame McCormack took three boys on a trip to Minnesota (See Ex. A, pgs. 3, 20-21; Ex. B, Childers report, pgs. 17-18);

h. In spite of the above, on August 29, 2005 (effective 9/1/05), Cardinal George promoted McCormack within the Archdiocese (Dean of Deanery III-D) (Ex.A, pgs. 3, 27; Ex. C, pg. CB3, 00126);

i. From prior to 2000 to after 2006, the instant plaintiff, John Doe, was a minor who attended St. Agatha’s parish/OLWS. During that time, he was inappropriately sexually touched, rubbed, and/or abused by McCormack. (See plaintiff’s Amended Complaint, pars. 69,70, attached as Exhibit F). Based on preliminary investigations, it appears that Doe was victimized by McCormack at least in 4th grade (2002-03), 5th grade (2003-04), and in 6th grade (2004-05) and possibly 7th grade (2005-06), investigation is continuing (Exhibit F, pars. 69, 70);

j. On August 30, 2005, McCormack was arrested by Chicago police for sexual abuse of a minor (Ex. A, pg. 25) On advice of the Archdiocese, McCormack refused to answer questions and he was released (Ex. C., pg. CB3, 104);

k. On October 15, 2005, the defendants’ Archdiocese Review Board recommended that McCormack be removed from ministry (See Ex A., pg. 3);

l. On January 18, 2006, a minor reported to the OLWS assistant principal that McCormack had abused him over 4 years (Ex. D, pg. 4). Since January, 2006, DCFS has received reports that 13 other children were abused by McCormack. (Ex. D, p. 5);

m. On January 23, 2006, Director of the Archdiocese’s Office for Child Abuse Investigations and Review (Leah McGlusky), finally responded to the grandmother’s September, 2003 report of abuse (see (f) above) (Ex. D, pg. 3);

n. On February 1, 2006, after McCormack had been arrested a second time for sexual abuse of boys, the defendants obtained McCormack’s resignation as pastor of St. Agatha (Ex. C, CB3, 0007);

o. In or about March, 2006, John Doe reported to his school counselor that McCormack had sexually abused him (Ex. D., pg. 4);

p. On June, 2007, McCormack plead guilty to 5 counts of sexual abuse of minors; the plea includes 1 count for 5 separate boys, including Doe.

c. Argument i. Illinois Law
Under Illinois law:
A plaintiff may, pursuant to a pretrial motion and after a hearing before the court, amend the complaint to include a prayer for relief seeking punitive damages. The court shall allow the motion to amend the complaint if the plaintiff establishes at such hearing a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages. 735 ILCS 5/2-604.1 (2005).

Punitive damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others. Kelsay v. Motorola, Inc., 74 Ill.2d. 172, 186, 384 N.E.2d 353, 359 (1978); Barton v. Chicago Northwestern Transportation Company, 325 Ill.App.3d 1005, 1030-31, 757 N.E.2d 533, 554, (1st Dist. 2001). Willful and wanton misconduct includes a course of action which shows an utter indifference to or a conscious disregard for the safety of others. Poole v. City of Rolling Meadows, 167 Ill.2d 41, 49, 656 N.E.2d 768, 771 (1995); Winfrey v. Chicago Park District, 274 Ill.App.3d 939, 944-45, 654 N.E.2d 508 (1st Dist. 1995). A willful and wanton injury is one which is intentional or which the act is committed under circumstances which exhibit a reckless disregard for the safety of others, such as a failure after knowledge of impending danger, to exercise ordinary care to prevent it, or failure to discover the danger through recklessness or carelessness when it could have been discovered by ordinary care. American National Bank & Trust Co. v. City of Chicago, 192 Ill.2d 274, 285, 735 N.E.2d 551, 557 (2000); Lynch v. Board of Education, 82 Ill.2d 415, 429, 412 N.E.2d 447, 457 (1980); Conoway v. Hanover Park Park District, 277 Ill.App.3d 896, 661 N.E.2d 528 (1st Dist. 1996).
Even at this early stage of discovery, there is sufficient evidence to establish a reasonable likelihood that the plaintiff will prove facts to support an award of punitive damages against these defendants. 735 ILCS 5/2-604.1. There is significant evidence that the defendants’ conduct was willful, grossly negligent, exhibited a wanton disregard of the plaintiff’s rights, demonstrated an utter indifference to the plaintiff’s safety, and/or exhibited a reckless disregard for the safety of Doe. This evidence includes that before Doe’s abuse, the defendants had knowledge of multiple other incidents of sexual abuse of children by McCormack; they failed to timely report McCormack’s abuses (in violation of Illinois law) to civil authorities, and they failed to inform other critical persons, including parents (parish, school, basketball) and school officials of McCormack; they failed to timely remove McCormack from access to children; and, they exhibited an overall callous disregard for the welfare of the boys, including Doe.
Regarding the defendants’ knowledge, there is evidence that the defendants had actual and/or constructive knowledge of at least four separate reports of McCormack sexually abusing boys prior to and/or during Doe’s abuse, including: 1) the seminarian abuse reports to the defendants from 1988-91 (see, above pg. 3, pars. a and b); 2) Sr. Cusak’s oral and written abuse reports in October, 1999 (see above pg. 4, par. d); 3) the “numerous” abuse reports to the Office of Catholic Schools and the informal OLWS monitoring of McCormack from 1999 through 2005 (see above pg 4, par. e); and, 4) the grandmother’s report of September, 2003 (see above pg.4-5, par. g). It appears that from the outset, the Archdiocese was less concerned about McCormack’s sexual abuse(s) (see above pg. 3, pars. a and b) than with his alcohol abuse. (See Ex. A, pg. 26; Ex. E)
Evidence regarding the defendants’ course of inactivity includes their failure to timely report McCormack (civil authorities/parents/OLWS, general public) and their failure to timely remove McCormack from access to children. (See the above incidents (pars. a, d, e, f, g; see also, Ex. A, pg. 2-3, 20, 28-29; Ex. B, pg. 17-18). Simply, the defendants effectively informed no one about McCormack until about the time he was arrested a second time for childhood sexual abuse (December, 2005). The defendants’ failures to report McCormack to a legal authority give rise to violation(s) of Illinois’ Abused and Neglected Child Reporting Act (ANCRA), 325 ILCS 5/4 (2007), which requires mandatory reports to DCFS. (See ANCRA; see also, Ex. A, pg. 2) Arguably, the defendants’ failures to report and/or inform key officials and parents amount to concealment which facilitated Doe’s abuse. Additionally, the defendants’ knowledge and failure to meaningfully respond give rise to breaches of their fiduciary duties. As noted by Defenbaugh, the defendants’ own consultant, the [defendants’] “non-action” created situations whereby children were placed at risk. (Ex. A, pg. 25)
The defendants not only failed to act, they affirmatively acted inappropriately. For instance, in the face of the above knowledge and incidents, they allowed McCormack to continue to coach basketball to young boys. (Ex. A, pg. 20) This allowed him access to boys in the defendants’ rectory since he directed boys to pick up and return basketball equipment there. These defendants additionally represented to the public that they were spiritual leaders and educators, and that all pedophilic priests had been removed from access to children, when, in fact, they knew this was not true relative to McCormack.
In sum, there is significant evidence that the defendants’ knowledge, inactivity, activities, and silence allowed McCormack unfettered, continued access to boys, including the plaintiff, in the defendants’ facilities and activities. (See Exhibit F, plaintiffs’ Amended Complaint, pars. 69, 70) Then, these defendants at best “lost”, and at worse, destroyed, critical documents about their knowledge of (and “response” thereto) of McCormack’s abuses, including portions of McCormack’s seminary file and Sr. Cusak’s written report. (See above pgs. 3-4, pars. b, d; Exhibit A, pg. 25-26). Under Illinois law, the defendants’ knowledge (of prior abuses) and their deliberate course of conduct, coupled with their loss of critical records, gives rise to willful and wanton conduct, gross negligence, and/or to a course of action which shows an utter indifference to and/or a conscious disregard for the safety of Doe. (See above authority, pg. 6-7) As such, the plaintiff seeks leave to file an amended complaint seeking punitive damages. 735 ILCS 5/2-604.1.
ii. Other Jurisdictions Other states, which have specifically addressed awarding punitive damages against a church/church official in similar cases as the instant one have allowed punitive damages. See, Hutchison v. Luddy, 896 A.2d 1260, 206 PA Super 59 (Penn. 2006) (Pennsylvania; punitive damages awarded); Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286 (Kentucky 1998) (Kentucky, punitive damages awarded); Martinelli v. Bridgeport Roman Catholic Diocese and Corporation, 196 Fed.3d 409 (1999) (Connecticut; punitive damages awarded; case reversed on other grounds); Mrozka v. Archdiocese of St. Paul & Minneapolis, 48 N.W.2d 806 (1992) (Minnesota; punitive damages awarded); Scheffler v. Archdiocese of St. Paul & Minneapolis, 563 N.W.2d 767 (1997) (Minnesota; punitive damages awarded; reversed on other grounds).

CONCLUSION For all of the above reasons, pursuant to §2-604.1, the plaintiff seeks leave to file an Amended Complaint adding a Count for punitive damages against the defendants in this matter.

Respectfully submitted,

HILFMAN, MARTIN & BARR, P.C.

BY:_____________________________ William F. Martin