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COMMONWEALTH HAMPDEN, ss.

OF MASSACHUSETIS

SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT HAMi:JDEN COU~¥IL ACTION NO. HDCV2010-0037-B
SUPERIOR

--

FIL~D
)

COURT

ANDREW NICASTRO, Plain.tiff vs.

.~,~o.~ -. I
) ) ) )

DEC 1 5) 2010

C'r.:~K'MAGIS;RA~OTION

DEFENDANT, THOMAS L. DUPRE'S

FOR

SUMMARY JUDGMENT

------~-------------------)
Now comes the defendant Thomas L. Dupre and respectfully requests that this Honorable Court enter Judgment in his favor pursuant to Massachusetts Rule of Civil Procedure 56 against the plaintiff AndrewNicastro, As grounds therefore, Thomas L.

JOSEPH F. MAGUIRE, THOMAS L. DUPRE AND RICHARD S. SNIEZYK, Defendants

Dupre contends that on the undisputed record of material facts, he is entitled to Judgment as a matter of law against Andrew Nicastro, and without a trial. In support of this Motion, Thomas L.' Dupre submits his Memorandum of Law in Support of Motion for Summary Judgment and Statement of Undisputed Material Facts Pursuant to Superior Court Rule 9A with supporting exhibits. WHEREFORE, in his favor. Thomas L. Dupras hereby moves that this Court enter Judgment

Dated: November 2, 2010

Michael O. Jen in 880# 251340 73 Chestnut Street Springfield, MA 01103

413-737-7349 Fax 413-731-1302

2-lfJ-1D CaHf.ri in 01ultk. u.c.

J&

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COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT
Hampden, SS. ) )
)

SUPERIOR COURT CIVIL ACTION NO. I-IDCV2010-00037-B

ANDREW F. NICASTRO,

Plaintiff

V.

JOSEPH F. MAGUIRE, THOMAS L. DUl'REAND RICHARD S. SNIEZYK, ) ) Defendants

) ) )

HAMPDEN COUNTY SUPERIOR COURT

FILED

APR 2 6 2011

! c~~';:;:;.nlSTR.rE~

~-:-.O?;: ..

PLAINTIFF'S EMERGENCY MOTION TO IMPOUND PROTECTED PSYCHOLOGICAL RECORDS AND REPORT The Plaintiff, by his attorney, moves this Court for an order directing the Clerk to seal and impound the expert report of Dr. John Daignault attached to the Plaintiff's Opposition to Defendants Dupre's and Maguire's Motion for Summary Judgment. The Plaintiff also moves to impound the Plaintiffs confidential psychological records which are included in the Defendants' Exhibits connected with their Motions for Summary Judgment. In support of this Motion to Impound, the plaintiff submits an Affidavit, attached hereto. The reason and grounds for this Motion are that the underlying lawsuit concerns the sexual abuse of the plaintiff when he was a minor. The expert report and psychological records contain details of the sexual abuse as well as intimate and personal details of the plaintiff's mental and emotional h'lstory and condition. The plaintiff's confidential psychological records were provided during discovery and would not be part of a court record but for the Motion for Summary Judgment. Similarly, the expert psychologist report was prepared for purposes of responding to the Motion for Summary Judgment.

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COMMONWEALTH HAMP])EN, ss.

OF MASSACHUSETTS SUPERIOR COURT HDCV2010-00037B

HAMPDEN COUNTY

ANDREW NICASTRO

supeRIOR

FILED JUN - 6 2011

COURT

JOSEPH F. MAGUIRE & others' MEMORANDUM OF DECISION AND ORDER ON DEFENDANT THOMAS L. DUPRE'S MOTION FOR SUMMARY IDDGMENT AND MOTION OF DEFENDANT JOSEPH F. MAGUIRE FOR SUMMARY JUDGMENT INTRODUCTION Plaintiff Andrew Nicastro filed this lawsuit against the defendant church officials, alleging that they negligently failed to protect him against pedophile priest Alfred Graves. before the
COUlt

This matter is

on two defendants's motions for summary judgment pursuant to Mass. R- Civ. P. Also before the court: is the Motion of Defendant Joseph

56 on statute of limitations grounds.

Maguire to Strike Affidavit of Expert Witness Dr. John Daignault. For the reasons discussed below,
Maguire's motion to strike is DENIED and Maguire's motion for sununary judgment is DENrED. In addition, defendant Dupre's motion for summary judgment is DENIED.

BACKGROUND Viewed in the light most favorable to the plaintiff as the non-moving party, the undisputed facts as revealed by the summary judgment record are as follows. Plaintiff Andrew Nicastro

("Nicastro") was born on April 4, 1971. In 1982, Nicastro was an altar boy and the paper boy for 'Thomas L- Dupre and Richard S_ Sniezyk

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Father Alfred Graves ("Graves"), a priest of the Roman Catholic Diocese of Springfield assigned to St. Patrick's Church in Williamstown, Massachusetts. Several times a week, when Nicastro was

on his paper route, Graves would pin Nicastro to the floor in the rectory and forcibly kiss him. Graves would force his hands down the front and back of Nicastro ' s pants and fondle or masturbate his genitals. Graves would also tickle him to the point where Nicastro could barely breathe. In 1984, Graves was transferred to St. Matthew Parish in the Indian Orchard section of Springfield. Graves invited Nicastro for an overnight visit to

st. Matthew's

rectory, and Nicastro' S

parents drove him there. Graves forced his hands down Nicastro's pants and masturbated him. At bedtime, Graves fully disrobed and exposed his erect penis. He then got into the bed with Nicastro and fondled him. Nicastro ran to the bathroom, locked himself inside, and stayed there all night, He came out the next morning when his parents arrived to pick him up.

crying himself to sleep.

That was the last time he saw Graves. Nicastro turned 18 on April 4. 1989. Nicastro testified during his deposition that he had always known the abuse had happened but he tried not to think about it. Following the abuse, he changed from an extrovert to an introvert,
and had a persistent fear of being the victim of a violent crime. During his high school and college

years, Nicastro suffered from rage which he did not fully understand and turned to alcohol and marijuana to escape thinking about the abuse. In his early 20s, he began to exhibit obsessivecompulsive behavior, suffer from bouts of depression, and objectify women and use them as sexual objects, He also had difficulty dealing with male authority figures and was fired from several jobs. Nicastro testified that aside from the abuse, he had a happy and stable childhood, and there was no other event in his life which could have caused his problems. In 1996, when Nicastro was 25 or 26 years old, he had an argument with his parents about his refusal 10 ever go to church. His mother made a comment to the effect of, "Why? Were you

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touched by a priest or something?"

Nicastro replied, "You guessed it!" and stormed out of the Nicastro's father was very angry

room. Nicastro's sister Lisa was present during this exchange.

but left it to Nicastro to determine a course of action. Nicastro had no further discussion with his
parents about the issue. In March of 1999, shortly before his May 5 marriage, Nicastro told his future wife, Leigh Ann, that he had been molested, but did not provide any other details.

This disclosure occurred

during a conversation on the way home from pre-cana classes in which they agreed to start off their marriage by being completely honest and telling each other their secrets. deposition that he has no independent memory of this conversation. Nicastro testified in his

In 2006, Nicastro and Leigh

Ann saw a marriage counselor for several months to deal with conflict they encountered from running their restaurant business together. The subject of sexual abuse never surfaced during this

therapy. Through the years, Nicastro was aware of media accounts of clergy abuse. When he read

these accounts, he felt disgust and anger.
In October of2008, at the age of37, Nicastro discussed the abuse with a pastor, Father Mark Burke ("Burke)'), who was extremely supportive. When Nicastro stated that he had always been

afraid of being a victim of a violent crime, Burke commented that he already was a victim. Burke

asked Nicastro if he knew how he had been affected by the sexual abuse and Nicastro replied that
he did not. After Burke informed Nicastro about the possible ways victims may be affected, Nicastro felt "like a ton of bricks" was dropped on him as he realized that all his problems were traceable to the abuse by Graves and that the abuse had been "an invisible controlling hand" affecting all the choices he had made in his life. Immediately after this conversation with Burke, Nicastro broke

down in tears and told his wife the details of the abuse for the first time, stating that his whole life

had fallen apart and was a lie.

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Nicastro reported the abuse by Graves to Patty McManamy of the Office of Counseling, Prevention, and Victim Services of the Diocese of Springfield. The Diocese Investigator, Kevin

Murphy, told Nicastro that he was familiar with Graves and that his allegations against Graves were credible.

Murphy knew that Graves had been defrocked in 2006. Nicastro met with the Diocese

Review Board, at which time Murphy stated that he had confronted Graves, who admitted the abuse. In December of 2008, Nicastro began seeing a psychiatrist, Jesse Goodman) to discuss the abuse. The Diocese pays for one weekly visit with Goodman but has refused to pay for a Since beginning therapy, Nicastro's anger has grown

recommended second weekly session. considerably.

Although he had always experienced rage and other emotional problems, he never

sought professional help prior to 2008 because he "never really put it all together, It could very well be just finally coming to terms and realizing that something has to be done to get better." Nicastro testified that following therapy with Goodman, in hindsight, he is beginning to understand the choices he made in his life and the paths he followed. Nicastro filed this action on September 11, 2009, at the age

on 8.

His complaint alleges that

between 1982 and 1984, when Graves molested him, defendant Joseph Maguire ("Maguire") was the Bishop of Springfield. In his answer, Maguire admits that in 1976, he became aware that Graves had attempted to sexually molest a teenage boy while serving at Our Lady of Hope in Springfield. Maguire confronted Graves, "admonished him, told him that such conduct was intolerable,

instructed him not to let it occur again in the future, and warned him that he would be mindful of any further complaints of such conduct." Nicastro's complaint further alleges that between 1982 and

1984, defendant Thomas Dupre ("Dupre") was Chancellor of the Diocese and had supervisory power over Graves, and defendant Richard Sniezyk was Vicar for Priests and charged with supervising and monitoring priests. Count I of Nicastro's complaint alleges negligence against Maguire, Count II

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alleges negligence against Dupre, and Count III alleges negligence against Sniezyk. Nicastro has proffered a December 9, 2010 Opinion Letter by forensic psycholo gist Dr. John Daignault ("Daignault')), who examined Nicastro at counsel's request. 'Daignault opines to a

reasonable degree of psychological certainty that Nicastro suffers from obsessive-compulsive disorder, post-traumatic stress disorder, generalized anxiety disorder, panic disorder, major Daignault opines that

depressive disorder, and polysubstance abuse disorder (in remission).

although Nicastro maintained factual knowledge that he was sexually abused as a child by Graves, he was unaware of and did not appreciate the causal connection between the abuse and his numerous emotional and psychological problems until his conversation with Burke in the fall of2008. In the Opinion Letter, Daignault addresses the question of "when a reasonably objective person, who had been subjected to the same reported misconduct as Mr. Nicastro, should have made the casual connection between the misconduct and his injury].]" awareness prior to the fall of 2008: is consistent with the expectable [sic] reaction of a reasonable and ordinary person under similar traumatic circumstances and is well-known and accepted in the psychological community. Similar to the body, the human mind tries to immunize itself from overwhelming stress in order to protect itself and preserve its ability to function. Faced with irreconcilable conflict, an ordinary and reasonable person relies on unconscious defense mechanisms to bar subject matter from consciousness and prevent its associated underlying emotional pain ... A reasonably objective person may proceed through their entire life without any appreciation of harm under such circumstances unless an extraordinary stimulus occurs that fosters or forces a lifting of the defense mechanism such that the appreciation is realized. He opines that Nicastro's lack of

In response

to Maguire's motion to strike this Opinion Letter, Daignault has filed an affidavit

elaborating that the average eleven to fourteen year old boy is immature and would not likely recognize that his emotional problems stemmed from sexual abuse by a priest but rather, would view his problems as having always been present. He further opines that the abusive nature of the

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conduct was masked by Graves's exploitation of his position of authority over his congregants and that a reasonable pre-teen would not recognize that the conduct was wrong and harmful.

DISCUSSION Summary judgment shall be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesw v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat'! Bank v . Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of affirmatively

demonstrating the absence of a triable issue and that the summary judgment record entitles the moving party to judgment as a. matter of law. Pe'derson v. Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy this burden either by submitting affirmative evidence that negates an essential element of the opposing party's case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805,809 (1991); Kourouvacilis v. General Motors Com., 410 Mass. 706, 716 (1991). Maguire and Dupre contend that Nicastro's negligence claims are barred by the relevant statutes of limitations. Statutes of limitations are "vital to the welfare of society .... They promote [and] encourage plaintiffs to bring

repose by giving security and stability to human affairs ....

actions within prescribed deadlines when evidence is fresh and available." Olsen v, Bell Telephone LaborEttories. Inc., 388 Mass. 171, 175 (1983) (citations omitted). See also Koe v. Mercer, 450

Mass. 97, 106 (2007); Doe v. Harbor Schools, Inc., 446 Mass. 245, 256 (2006). General Laws Chapter 260, section 2A provides that actions in tort shall be commenced within three years after the cause of action accrues. This statute of limitations applies to a negligence claim against one who

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is not the actual perpetrator Morgan,

of sexual abuse. Koe v. Mercer,

450 Mass. at 100 n. 8; Phinney v.
The general rule in tort

39 Mass. App. Ct. 202, 203, rev. den., 421 Mass. 1104 (1995).

actions is that a cause of action accrues when the plaintiff'is injured. rd. at 101; Riley: Mass. 2:19,243 (1991). by Graves occurred. Under this rule, Nicastro's

v . Presnell, 409

claim accrued in 1984, when the last act of abuse

However,

because Nicastro was a minor, his claim was tolled until he reached

the age of eighteen in April of 1989. See G.L. c. 260, § 7.

I_The Discovery Rule in Sexual Abuse Cases
The parties agree that accrual of Nicastro's claim is governed by the so-called "discovery

rule" under which a cause of action for an inherently unknowable discovers, or reasonably should have discovered,

wrong accrues when the plaintiff
Or may

that he has been harmed

have been harmed

by the defendant's

conduct.

See Koe v. Mercer, 450 Mass. at 101; Riley v. Presnell, 409 Mass. at Nicastro argues that under the discovery rule, a conversation with Burke, he first 'When a

243; Phinney v. Morgan, 39 Mass. App. Ct. at 204. his negligence connected

claim did not accrue UIlti12008 when, following problems

the sexual abuse to his longstanding

including

anger and depression.

plaintiff invokes the discovery recognize knowledge at 101~ Doe

rule by claiming that his delay in filing suit stems from a failure to both an actual lack of causal Koe v. Mercer, 450 Mass. what the

the cause of his injury, he bears the burden of proving and the objective reasonableness

of that lack of knowledge. Generally,

v, Creighton, 439 Mass. 281, 283 (2003).
01'

an issue concerning

plaintiff knew

should have known is a factual question for ajury; however. motion, the plaintiff must demonstrate a reasonable

in order to survive a of proving that

summary judgment

expectation

his claim was timely filed. Koe v. Mercer, 450 Mass. at 101; Doe v. Creighton,

439 Mass. at 284.

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II. Motion to Strike Expert Opinion Maguire moves to strike Daignault's Opinion Letter from the summary judgment record on the ground that it is not based on the proper legal standard. One method by which a plaintiff can prove the objective reasonableness of his lack of causal knowledge is through affidavits or testimony from competent experts. Koe v. Mercer, 450 Mass. at 105·106; Doe v. Creighton, 439 Mass. at 286. However, an expert report must be based on the hypothetical member of the general population required by the law, and not on the plaintiff s subjective ability to make a causal connection. See Koe v. Mercm;, 450 Mass. at 106 (court disregarded affidavit which stated that plaintiffs explanation of the manner in which he made causal connection was in conformity with accepted principles of psychology but did not address whether benchmark reasonable person would have failed to make

connection once therapist suggested that symptoms were caused by abuse); Doe v. Creighton, 439
Mass. at 286 (expert report did not raise genuine issue of material fact where it focused on subj ective traits that made plaintiffuniquely vulnerable in connection with failure to connect injuries to abuse).

Here, Daignault's Opinion Letter, coupled with his clarifying affidavit, sufficiently addresses the objective reaction of a reasonable person to the abuse suffered by Nicastro to be relevant and admissible on the statute of limitations issue. See Riley v. Presnell, 409 Mass. at 246-247 (court considered expert testimony that a reasonable person exploited by a therapist in the way plaintiff was would have been unable to draw causal connection between improper therapy and psychological problems); Palermo v. Brennan, 41 Mass. App. Ct. 503,509, rev. den., 424 Mass. 1103 (1996) (summary judgment foreclosed by expert affidavit that, given unique relationship between patient and therapist, person in plaintiff s position could not have been expected to recognize that improper treatment caused harm); Martin v. Sullivan, 2008 Mass. Super. LEXIS 68 at * 14-15 (Jan. 23, 2008) (Mcl.aughlin, 1.) (factual issue created in part by expert affidavit stating that based on clinical and

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forensic; experience, appreciating

many

adolescents

appreciate

that sexual abuse

is inappropriate

without

that they were harmed by the behavior).

Many of the objections of Daignault's

to the Opinion Letter and the weight

raised in the motion to strike involve the credibility his opinion, matters which cannot be determined that the Opinion Letter, coupled with Daignault's characteristics

conclusions

of

on summary judgment.

This Court cannot conclude

affidavit, relies solely on Nicastro , s individualized Accordingly, this Court

and utterly fails to address the proper legal considerations.

must deny Maguire'S motion to strike.

III. Defendants's
Maguire

Entitlement

to Judgment

as a Matter of Law
record establishes

and Dupre argue that the summary judgment knowledge that he was harmed by Graves's

that Nicastro

subj ectively possessed

abuse mare than three years prior the full

to the filing of this action on September

11,2009.

A plaintiff need not fully comprehend

extent or nature of an injury in order for a cause of action to accrue. Koe v. Mercer, 450 Mass. at

102; Phinneyv.

Moman,

39 Mass. App. Ct. at 208. Rather, it is only required that the plaintiff have
or sufficient notice of the cause Nicastro testified

sufficient knowledge

or notice that he was harmed and knowledge

of the harm, Koe v. Mercer, 450 Mass. at 102; Rileyv. Presnell, 409 Mass. at243. that he has always been aware of the abuse and that it was wrong. he confirmed being "touched"
to

The record shows that in 1996, being "molested" the equi valent by

by a priest to his parents and in 1999, he disclosed that the abuse occurred, however, harmed by that abuse.

his future wife. An awareness

is not necessarily Nonetheless,

of awareness the defendants,

that he had been emotionally

as emphasized

a year or two after the final incident of abuse, when he was in high school, Nicastro and using drugs and womanizing to avoid painful memories of the abuse. conduct. This

began drinking could he viewed

as evidence

that he knew he had been harmed by Graves's

See Phinnex

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v. Morg?ill, 39 Mass. App. Ct. at 208 (plaintiff had sufficient causal knowledge where she
experienced emotional distress at mother's failure to protect her from sexual abuse by father and ran away from home several times to avoid further injury); Laconte v. Devlin, 2006 Mass. Super. LEXIS 515 at *' 10-11 (Oct. 13,2006) (Locke, J.) (plaintiffs turning to drugs and alcohol shortly after abuse suggests causal connection). During his college years, he also experienced for the first time in his life extreme anger, depression, obsessive-compulsive impulses, and difficulty with male authority figures. However, Nicastro testified that until Burke told him in 2008 that he was a victim and that sexual abuse can affect victims in many ways, he never connected his emotional and social problems to the abuse. There is also evidence in the record that according to Burke, Nicastro showed little

emotion when mentioning the sexual abuse and seemed not to realize that it might have affected him emotionally or behaviorally. Thus, the summary judgment record raises a genuine issue of material

fact with respect to when Nicastro subjectively connected the harm he suffered to the sexual abuse by Graves. See Ross v. Garabedian, 433 Mass. 360, 362-364 (2001) (factual issue existed as to plaintiff s ability to connect his harm to sexual misconduct where 13 year old plaintiff who had three year consensual sexual relationship with 27 year old man immediately experienced shame but posttraumatic stress disorder and unconscious coping or blocking mechanisms prevented him for making connection until he began psychotherapy).

cr. Koe

v. Mercer, 450 Mass. at 102-103 (plaintiff

deemed to have actual knowledge where therapist explicitly suggested to him causal connection between abuse and emotional problems). Maguire and Dupre further contend that Nicastro cannot demonstrate that any lack of casual knowledge prior to September 11,2006 was objectively reasonable. The standard for accrual of a tort action is an objective one, under which the statute oflimitations begins to run when a reasonable

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person who has been subjected to the conduct which forms the basis for the complaint would have been able to discern the cause of the harm. Koe v. Mercer, 450 Mass. at 103; Doe v. Creighton, 439 Mass. at 284; Riley v. Presnell, 409 Mass. at 245. Individual variations in judgment, intellect, or psychological health which are unrelated to the alleged tortious conduct are not considered in determining when a plaintiff should have known of his cause of action, nor are personal character traits
Or

cultural background. Koe v. Mercer, 450 Mass. at 103; Riley v. Presnell, 409 Mass. at 245.

Instead, the relevant factors to be considered are the timing of the abuse, the perpetrator's attempt to disguise it, and whether the abuse was a "watershed event" in the plaintiff'S life. Koe v. Mercer, 450 Mass, at 103; Doe v, Creighton, 439 Mass. at 284. Our courts have recognized that where a person is abused at an early age over a prolonged period of time, he or she might have difficulty later in life linking psychological problems to the abuse. See Koe v. Mercer, 450 Mass. at ]03. See also Doe v. Creighton, 439 Mass. at 284 (noting that in some instances, sexual abuse victims may develop coping mechanisms that obscure source of their injuries). Here, Nicastro was 13 or 14 at the time of the last sexual assault and immediately knew it was wrong. The abuse was not a distant memory when he reached his eighteenth birthday. Nonetheless, preteens are not particularly mature, Indeed, Dr. Daignault opines that the average eleven to fourteen year old boy is immature and would not likely recognize that his emotional problems stemmed from sexual abuse by a priest. The summary judgment record presents a factual issue with respect to whether age and timing played a significant role in concealing the causal relationship between the abuse and Nicastro's injuries. Cf. Koe v. Mercer, 450 Mass. at 103 (where 14 year old victim knew abuse was wrong, complained to parents, and thought about killing defendant, his age did not impede his ability to connect his emotional problems to the abuse); Doe v. Creighton, 439 Mass. at 285 (where 17 year old victim had reached maturity and was graduating

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from high school when abuse occurred, timing of abuse and age did not impede ability to connect abuse and symptoms), With respect to the second relevant factor, our courts have acknowledged that evidence of cloaking
01'

attempts to disguise abuse may impede a plaintiff s ability to reco gnize that he has been

harmed, See Koe v, Mercer, 450 Mass. at 104. In this case, defendants Maguire and Dupre were not perpetrators of abuse. In any event, there is no evidence in the record that either they or Graves took any action
to

disguise the abuse which would have hindered Nicastro 1 s ability to connect the

abuse to his psychological symptoms. See Koe v, Mercer, 450 Mass. at 104-105 (noting lack of evidence that priest attempted to disguise wrongful nature of sexual contact from plaintiff although he told plaintiff s parents that it was mere horseplay); Doe v, Harbor Schools, Inc., 446 Mass. at 260 (noting lack of evidence that defendant attempted to persuade victim that sexual contact was appropriate aspect of their relationship). Cf. Riley v. Presnell, 409 Mass. at 246 (noting that

psychotherapist masked misconduct by persuading plaintiffthat use of drugs and alcohol and sexual acts were necessary part of therapy). Finally, there is some evidence in the record suggesting that the abuse was a watershed event in Nicastro's life. He testified that he had a stable and happy childhood until the abuse and that there was no other traumatic event in his life that could have caused his emotional problems. In addition, within a year or two of the last incident of abuse, Nicastro began abusing alcohol and drugs and womanizing to avoid painful memories, and within several years, experienced for the first time anger, fear of victimization, depression, and obsessive-compulsive tendencies. See Koe v. Mercer, 450 Mass. at 105 (abuse was watershed event where prior to abuse, plaintiff was good student, but afterwards, he ran away from home, dropped out of school, and consumed alcohol and drugs); Doe v. Creighton, 439 Mass. at 285 (abuse was watershed event where it produced obvious injury as

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plaintiff reached age of maturity and she immediately developed feelings of depression, self-hatred, and shame). Nonetheless, Dr. Daignault opines that ordinary people rely on unconscious defense mechanisms to prevent emotional pain and may proceed through their entire Jives without any appreciation of harm under such circumstances, and that the average eleven to fourteen year old boy would not likely recognize that his emotional problems stemmed from sexual abuse by a priest. Nicastro's drug and alcohol problems began as he entered high school, commonly a time of rebellion and experimentation among boys. The record thus presents a factual issue as to whether the abuse was such a watershed event in Nicastro's life that a reasonable preteen in his position would have recognized an obvious connection between that abuse and his emotional and behavioral problems. See Ro~ v, Garabedian, 433 Mass. at 366 (factual issue existed as to objective reasonableness of plaintiff s failure to connect symptoms to abuse where there were other factors which could have been source of his emotional problems, including an alcoholic father, raging and explosive discord between his parents, and his own drug and alcohol use); Riley v. Presnell, 409 Mass. at 246.247 (factual issue created by expert testimony that reasonable person exploited by therapist as was plaintiff would have been unable to draw causal connection between improper therapy and psychological problems); Palenno v. Brennan, 41 Mass. at 509 (summary judgment foreclosed by expert affidavit that, given unique relationship between patient and therapist, person in plaintiffs position could not have been expected to recognize that improper treatment caused harm); Martin v. Sullivan, 2008 Mass. Super. LEXIS 68 at *14-15 (Jan. 23, 2008) (Mcl.aughlin, 1.) (factual issue created in part by expert affidavit stating that based on clinical and forensic experience, many adolescents appreciate that sexual abuse is inappropriate without appreciating that they were harmed by the behavior). Although much of the evidence in the record supports a conclusion that a reasonable 14 year

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old in Nicastro's position would have connected his emotional problems to the abuse by Graves prior to 1998, this Court cannot conclude that Nicastro's failure to do so was objectively unreasonable as a matter of law. The issue is a close one which must be resolved by the trier of fact upon

consideration of the credibility of the witnesses. See Koe v. Mercer, 450 Mass. at 101; Doe v. Crei~h1on, 439 Mass. at 284 (what abuse victim knew or should have known is generally factual question for a jury). See also Ross v. Garabedian, 433 Mass. at 363 (noting that courts are reluctant to grant summary judgment on statute of limitations grounds where it is unclear whether or to what extent a plaintiff perceived or should have perceived a causal connection between sexual abuse and alleged psychological harm). The defendants have failed to meet their heavy burden to show that

no reasonable jury could conclude that Nicastro's September 11, 2009 complaint was timely filed. Accordingly, the defendants are not entitled to judgment as a matter of law on Counts I and II of the complaint.

ORDER
For the foregoing reasons, it is hereby ORDERED that the Motion of Defendant Joseph
Maguire to Strike Affidavit

of Expert Witness Dr. John Daignault

be

DENIED.

It is further

ORDERED that the Motion of Defendant Joseph F. Maguire for Summary Judgment be DENIED.

In addition, defendant Thomas L. Dupre's Motion for Summary Judgment is DENTED.

DATE]): June 6, 2011

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