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September 10, 1998



Before Farrell and KING[fn*], Associate Judges, and Belson, Senior Judge. [fn*] Judge King was an Associate Judge at the time of argument. His status changed to Associate Judge, Retired, on September 1, 1998.

The opinion of the court was delivered by: Belson, Senior Judge:

[717 A2d Page 348]

Appellants Tierney McCracken and her husband Stephen McCracken appeal the trial court's orders dismissing their complaint against appellee David Walls-Kaufman as barred by the statute of limitations and denying their motion for reconsideration. The appellants' complaint alleged that appellee tortiously engaged in sexual acts with appellant Tierney McCracken during the time he was treating her as a chiropractor. The McCrackens contend that the trial court erred in concluding that their complaint stated only a claim for assault, to which a one-year period of limitations applies, and in ruling as a matter of law that Mrs. McCracken was not non compos mentis at relevant times and that thus the statute of limitations was not tolled until she was capable of pursuing her claim. In addition, they contend that the trial court abused its discretion in denying their motion for reconsideration. We reverse and remand for further proceedings.


In a complaint filed on September 3, 1996, appellants Tierney and Stephen McCracken alleged that appellee David Walls-Kaufman, while serving as Mrs. McCracken's chiropractor during a period of time beginning in December 1994, "sexually assaulted" her on several occasions. *fn1 During this time, appellants alleged, Mrs. McCracken "discussed numerous personal matters with [appellee] affecting her psychological well-being, and was counseled by him in connection therewith." According to appellants, Dr. Walls-Kaufman was aware at that time that Mrs. McCracken was taking medication "which limited her ability to prevent the behavior described." Appellants' complaint asserted that these "sexual assaults" violated applicable standards of care and ethical considerations as well as District of Columbia law, "constituted acts of malpractice, breach of fiduciary duty, and/or negligence," and caused Mrs. McCracken to suffer emotional distress for which she required both in-patient and out-patient psychiatric care.

Dr. Walls-Kaufman responded to this complaint not only with an answer denying the [717 A2d Page 349]

allegations, but also with a motion to dismiss in which he contended that because the McCrackens' claims arose from sexual assaults that occurred in December of 1994 they were barred under the one-year statute of limitations for assault claims under D.C.Code § 12-301(4) (1995). He argued that their complaint described only "knowing, intentional" actions, but failed to "describe any negligent act or characterize any duty whose breach may have resulted in negligence," and therefore failed to state a negligence claim upon which relief could be granted.

The McCrackens filed an opposition to the motion to dismiss, along with attached affidavits of both appellants. They argued that a three-year statute of limitations applied because the complaint contained allegations of breach of fiduciary duty, malpractice, and negligence. They posited that D.C.Code § 22-4115 (1981), which makes it a crime under specified circumstances for an individual who purports to provide professional medical or counseling services to engage in a sexual act with a client or patient, provides a standard of care to which appellee failed to adhere. In a footnote, the McCrackens stated that although they used the term "assault" in the complaint, the actual conduct described in Mrs. McCracken's affidavit "may not fit the ordinary legal definition of assault." In addition, they argued that even if the one-year statute of limitations applied, Mrs. McCracken was non compos mentis at the time the cause of action arose, and therefore the statute of limitations was tolled until "Spring, 1996," when she began "to function as a normal individual."

Mrs. McCracken's attached sworn affidavit stated that during the course of Dr. Walls-Kaufman's chiropractic treatment she discussed personal matters with him and that he in turn offered advice and counseling, that she had been addicted to Valium previously and became addicted again following her first sexual encounter with appellee, and that Dr. Walls-Kaufman sodomized her for the first time in December of 1994, then again on approximately a half dozen occasions through August 10, 1995. During the first encounter, Mrs. McCracken stated, she "froze up, and disassociated [herself] from the situation," although she had initially "pushed his hands away," and afterwards "told [him] that this was never to happen again." During the subsequent sexual encounters, Mrs. McCracken stated, she "did not know how to deal with this situation, [she] believe[d] in part because of the excessive doses of valium [she] was taking." The affidavits of both Mr. and Mrs. McCracken indicated that Mrs. McCracken's ability to live a normal life was impaired significantly for a period of time following her final sexual encounter with appellee.

In his reply to appellants' opposition to the motion to dismiss, Dr. Walls-Kaufman argued that appellants could not avail themselves of the non compos mentis exception to the statute of limitations because they could not prove that Mrs. McCracken was non compos mentis at the time of the assaults, and because they had failed to prove her lack of capacity to sue. He also argued that Mrs. McCracken's claimed disability did not meet the legal definition of non compos mentis. In a subsequently submitted affidavit, filed December 31, 1996, Dr. Walls-Kaufman stated that on August 11 or 12, 1995, an officer of the Metropolitan Police Department informed him that Mrs. McCracken had reported that he had raped her. In that affidavit, Dr. Walls-Kaufman denied raping or sexually assaulting Mrs. McCracken. Id. His reply to the opposition to the motion to dismiss pointed to this report of rape by Mrs. McCracken as indicating that she was aware of her legal rights at the time of the alleged sexual assaults and therefore could not have been non compos mentis.

On January 3, 1997, the trial court granted Dr. Walls-Kaufman's motion to dismiss, concluding that the McCrackens' sole claim was for assault, a claim that was barred by a one-year statute of limitations under D.C.Code § 12-301(4) (1995). The trial court concluded that the McCrackens had failed to state a claim for negligence because the allegations of sexual assault "in no way relate[d] to the services provided by a chiropractor," and because they had failed to allege that Dr. Walls-Kaufman "breached any duty regarding the care of her back or any medical [717 A2d Page 350]

service provided by a chiropractor." The trial court rejected appellants' non compos mentis claim, finding that Mrs. McCracken's August 1995, report of rape demonstrated she was "able to assert her legal rights" at the time of the alleged assault.

The McCrackens filed a timely motion for reconsideration under Super.Ct.Civ.R. 59. The trial court concluded that, although the correct approach was to consider the motion as filed under Super.Ct.Civ.R. 60(b) rather than Rule 59, the McCrackens' motion ...

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