On Certification from the United States Court of Appeals for the District of Columbia Circuit.
Before Wagner, Chief Judge,* Schwelb, Associate Judge, and Mack, Senior Judge.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: On June 19, 1991, Sara Fellez, now forty-nine years old, and her sister, Fredericka Farris, now forty-six, filed suit in the United States District Court against their brother, Dr. John W. Compton, now fifty-three, seeking compensatory and punitive damages for repeated acts of incestuous sexual abuse allegedly perpetrated upon them by Compton during their childhood and youth in Washington, D.C. in the 1950's and 1960's. *fn1 The women claimed that each of them had repressed her recollection of the abuse for more than twenty years and contended that because of this repression, which was itself allegedly induced by Dr. Compton's wrongful acts, the statute of limitations was tolled until their memories were reawakened in 1990 as a result of therapeutic intervention. The district court granted Dr. Compton's motion to dismiss the complaint as time-barred. Farris v. Compton, 802 F. Supp. 487 (D.D.C. 1992) (Farris I).
The plaintiffs appealed to the United States Court of Appeals for the District of Columbia Circuit, and that court has certified to us, pursuant to D.C. Code § 11-723 (1989), the question whether
the discovery exception to the District of Columbia statute of limitations, D.C. Code § 12-301 [(1993)], extend to a suit, brought twenty to forty years after alleged acts of sexual abuse, in which plaintiffs claim that they had repressed their memories of the acts of an older sibling which allegedly took place beginning at age four and during the teenage years for one plaintiff and beginning at age twelve and through the teenage years for another plaintiff.
It is not easy to defend against allegations of events said to have taken place a great many years ago. Nevertheless, accepting the allegations of the complaint as true for the purpose of the certified question, we hold that the complaint is not time-barred. If, as a result of the defendant's wrongful conduct, either plaintiffs recollection of the relevant events has been repressed, and if she has thus been effectively precluded during the period of repression from seeking legal redress, then that plaintiff's right of action did not accrue until the date that she recovered her memory of the wrongful conduct.
The plaintiffs in this case have alleged a long and sordid history of incestuous sexual abuse. Both women claim to have been raped and sodomized by their older brother, who is alleged to have been in a dominant position over them. The complaint alleges that he threatened to kill each of them if she reported his conduct. It is further alleged that Compton and his friends gang-raped the female plaintiffs during their pre-adolescent and teen years, and that he charged his friends money for allowing the friends to participate in the gang-rapes.
Dr. Compton's molestation of Ms. Fellez is alleged to have begun when she was twelve years old and he was sixteen, and it is said to have continued through her teens. The abuse of Ms. Farris, the younger of the two sisters, allegedly began when she was approximately four years old (Compton was then twelve). The complaint alleges that Compton continued to molest Ms. Farris until she was about eight, that he then apparently stopped, and that he subsequently resumed the wrongful activity during her teens. Although the complaint does not disclose precisely when the abuse is claimed to have ended, there appears to be no allegation that any of it occurred after Ms. Farris reached her twenty-first birthday in October 1969. We are therefore dealing with events which, if they happened at all, took place more than a quarter of a century ago.
The complaint alleges that Compton's wrongful conduct caused Ms. Farris and Ms. Fellez to develop severe psychological problems, including denial, repression, and accommodation and disassociation. They claim, in essence, that they were forced to separate themselves from the acts being performed against their will to their bodies. Consequently, each woman is alleged to have "repressed the existence" and "denied the most significant impact" of the alleged sexual abuse for many years. In 1990, however, each of the female plaintiffs, who were living two thousand miles apart, allegedly became able, as a result of "psychological evaluation and therapy," to "express those acts performed by the defendant which she had repressed since her childhood." The alleged realization that their brother had raped and sodomized them, and that his conduct accounted for a variety of physical and psychological conditions which are allegedly continuing to afflict each of them, led to the institution of this suit.
The complaint is somewhat hazy with respect to whether the repression of the events by Ms. Farris and Ms. Fellez over a period of more than twenty years is alleged to have been partial or total. *fn2 Because the question certified to us by the United States Court of Appeals apparently assumes that the plaintiffs have alleged total repression, we make the same assumption for purposes of this opinion.
In their seven-count complaint, the plaintiffs alleged that Dr. Compton's conduct constituted seven separate torts, namely gross negligence, assault and battery, incestuous abuse, intentional infliction of emotional distress, negligent infliction of emotional distress, false imprisonment, and invasion of privacy. The female plaintiffs alleged that Compton's abuse directly and proximately caused them extensive physical, psychological and economic injury. Each woman sought $2,000,000 in compensatory damages and $2,000,000 in punitive damages with respect to each count, for a total of $56,000,000. George Fellez requested damages in the amount of $500,000 for loss of consortium.
Dr. Compton filed a motion to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(6), contending that the action was time-barred. On September 4, 1992, the district Judge granted the motion. Farris I, supra, 802 F. Supp. at 490. The Judge stated that unless the discovery rule applied, the complaint was plainly untimely. Reviewing this court's precedents, he concluded that in those cases in which the discovery rule has been successfully invoked, the plaintiff justifiably relied on the defendant's superior skill or knowledge, and the claimed injury was objectively verifiable. The Judge thought that neither of these circumstances was present here, and wrote that
the sexual abuse of which these plaintiffs accuse the defendant continued far beyond their childhood years when it might be reasonable to assume that they were unaware of its wrongful character or how to stop it. It was, moreover, being perpetrated by a sibling not much older than they, not a person in loco parentis. Finally, the resultant injury for which damages are sought is psychic alone. Expert testimony might prove the existence of the plaintiffs' subjective beliefs as to the cause of their distress, but it can give no assurance that those beliefs are grounded in reality. Evidence to that effect, if it exists at all today, is of doubtful reliability.
802 F. Supp. at 490. The Judge therefore concluded that the action had been brought "many years out of time," and dismissed the complaint. The plaintiffs appealed, and the federal appellate court has asked us to resolve the potentially dispositive question of District of Columbia law.
A. Accrual of the Claims.
A civil action "may not be brought after expiration of [the period specified in the statute] from the time the right to maintain the action accrues." D.C. Code § 12-301 (1989). *fn3 The statute does not define "accrues," and the task of identifying the moment of accrual has been left to the courts. Ehrenhaft v. Malcolm Price, Inc., 483 A.2d 1192, 1198 (D.C. 1984).
"Where the fact of an injury can be readily determined, a claim accrues for purposes of the statute of limitations at the time the injury actually occurs." Colbert v. Georgetown University, 641 A.2d 469, 472 (D.C. 1994) (en banc) (citation omitted). If the existence of an injury is not readily apparent, however, the claim does not accrue until the plaintiff, exercising due diligence, has "discovered or reasonably should have discovered all of the essential elements of her possible cause of action, i.e., duty, breach, causation and damages." Id. at 473 (quoting Bussineau v. President & Directors of Georgetown College, 518 A.2d 423, 434 (D.C. 1986) (citations omitted)). In the present case, the last wrongful act is alleged to have occurred approximately twenty-five years ago. Accordingly, but for any legal consequences of the alleged repression of the complainants' recollection, the action is time-barred.
The plaintiffs have placed their reliance on the discovery rule. This court initially adopted that rule in the context of an action for medical malpractice. Burns v. Bell, 409 A.2d 614, 615-17 (D.C. 1979); *fn4 see also Jones v. Rogers Memorial Hosp., 143 U.S. App. D.C. 51, 442 F.2d 773 (1971). The discovery rule has, however, been successfully invoked in this jurisdiction in a number of different kinds of cases, including actions for legal malpractice, see, e.g., Knight v. Furlow, 553 A.2d 1232, 1234 (D.C. 1989), litigation involving a claim of professional negligence and breach of contract by an architect, see Ehrenhaft v. Malcolm Price, Inc., 483 A.2d at 1201-04, and product liability actions in which the plaintiff allegedly contracted a latent disease. See, e.g., Wilson v. Johns-Manville Sales Corp., 221 U.S. App. D.C. 337, 342-43, 684 F.2d 111, 116-17 (1982); Dawson v. Eli Lilly & Co., 543 F. Supp. 1330, 1337-38 (D.D.C. 1982). See also Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677, 680 (Md. 1981), in which the court held
the discovery rule to be applicable generally in all actions, and the cause of action accrues when the claimant in fact knew or ...