Hoult v. Hoult

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-2000



                         DAVID P. HOULT,



                      Plaintiff, Appellant,



                                v.



                         JENNIFER HOULT,



                       Defendant, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Reginald C. Lindsay, U.S. District Judge]


Before



                     Torruella, Chief Judge,

                                

                 Aldrich, Senior Circuit Judge,

                                

                   and Boudin, Circuit Judge.


Edward J. Collins for appellant.

     Kevin P. O'Flaherty with whom Adrienne M. Markham and Goulston

& Storrs, P.C. were on brief for appellee.


October 9, 1998


BOUDIN, Circuit Judge.  In July 1988, when she was 27

years old, Jennifer Hoult brought suit in the district court

against her father, David Hoult, alleging assault and battery,

intentional infliction of emotional distress, and breach of

fiduciary duty.  To support these claims, she alleged that her

father had sexually abused, raped and threatened her from the time

that she was about four years old until she was about sixteen years

old.

  The statute of limitations presented an obvious obstacle. 

Jennifer Hoult sought to overcome it by showing that the alleged

abuse caused her to repress her memory of the events until she

began to recapture those memories during therapy sessions in

October 1985.  See M.G.L. 260  4C.  The claim of repressed memory

was supported at trial by testimony from a psychiatrist, Dr. Renee

Brandt, who appeared as an expert witness on repression caused by

traumatic abuse.

  In June 1993, the district court conducted an eight day

jury trial in which Jennifer Hoult testified at length, giving

detailed descriptions of extensive alleged abuse by her father; in

addition to other forms of abuse, she testified to five specific

episodes of rape.  Supporting testimony was provided by her former

therapist and by Dr. Brandt.  In defense, David Hoult testified on

his own behalf, flatly denying the allegations, but presented no

other witnesses.

  On July 1, 1993, the jury returned a verdict in favor of

Jennifer Hoult and ordered damages in the amount of $500,000.  This

verdict was preceded by a separate finding by the jury accepting

the statute of limitations defense; in effect the jury found that

Jennifer Hoult had repressed memory of the abuse until it was

rediscovered within the limitations period.  David Hoult appealed

both from the judgment against him and the denial of a motion for

a new trial, but both appeals were ultimately dismissed for lack of

prosecution.

     Later, Jennifer Hoult wrote letters to several

professional associations in which she repeated the charge that her

father had raped her.  David Hoult then brought the present action

in the district court against Jennifer Hoult, claiming that her

charge of rape against him was defamatory.  Jennifer Hoult moved to

dismiss on the ground that the jury verdict in her earlier assault

action had determined that David Hoult had raped her and that David

Hoult was barred by collateral estoppel from relitigating this

finding.

     Initially, the district court denied the motion to

dismiss, saying that the evidence adduced at the trial could have

led the jury to impose liability because David Hoult had sexually

abused Jennifer Hoult "in ways that did not amount to rape" or

could even have done so on the basis of Jennifer Hoult's testimony

that David Hoult had "threatened her with murder, chased her around

the house with a knife, and fondled her in a sexual manner, among

other incidents of violence and assault."

     By motion for reconsideration, Jennifer Hoult argued that

the jury's finding of repression, in rejecting the statute of

limitations defense, was necessarily based on Dr. Brandt's expert

opinion that the repression required "repeated acts" of sexual

abuse; and the only repeated acts of sexual abuse (Jennifer Hoult

argued) were her descriptions of five separate incidents of rape. 

Accepting this argument, the district court allowed Jennifer

Hoult's motion to dismiss the action, and David Hoult now appeals.

     The governing legal doctrine of collateral estoppel,

which we briefly summarize, is largely undisputed; the problem is

one of applying the doctrine to this case.  Because the prior

judgment was a federal court judgment, we look to federal law for

its preclusive effect.  See Johnson v. SCA Disposal Servs., 931

F.2d 970, 974 (1st Cir. 1991).  Subject to certain exceptions, the

general rule on "issue preclusion" is as follows:

     When an issue of fact or law is actually

     litigated and determined by a valid and final

     judgment, and the determination is essential

     to the judgment, the determination is

     conclusive in a subsequent action between the

     parties, whether on the same or a different

     claim.



Restatement (Second) Judgements  27 (1982).  Neither side disputes

that this formulation sets forth the governing law.

     David Hoult does not invoke any of the various

exceptions, see Restatement (Second), supra,  28, but instead

says--as did the district judge in his original order refusing to

dismiss--that there is no proof that the jury ever determined that

David Hoult had committed the alleged rapes.  The burden is upon

Jennifer Hoult, as the party invoking collateral estoppel, to

establish that the jury did so determine in the original action. 

See Commercial Associates v. Tilcon Gammino, Inc., 998 F.2d 1092,

1098 (1st Cir. 1993).

     Admittedly, the jury made no explicit finding that rapes

occurred.  Nevertheless, "[a]n issue may be 'actually' decided [for

collateral estoppel purposes] even if it is not explicitly decided,

for it may have constituted, logically or practically, a necessary

component of the decision reached."  Dennis v. Rhode Island

Hospital Trust National Bank, 744 F.2d 893, 899 (1st Cir. 1984). 

The court in the second case may examine the full record in the

earlier one to decide "whether a rational jury could have grounded

its verdict upon an issue other than that which the [moving party]

seeks to foreclose from consideration."  Ashe v. Swenson, 397 U.S.

436, 444 (1970).

     Whether the jury did find, or must have found, rape in

the earlier trial is perhaps a question of fact.  But where (as

here) the question is answered by looking only at the paper record

of the earlier trial, appeals courts tend to review the district

court ruling de novo.  The more difficult threshold issue is how

clear it must be that the jury found the fact in question.  The

maxim of Lord Coke which is sometimes quoted by courts is that "an

estoppel must 'be certain to every intent.'" Russell v. Place, 94

U.S. 606, 610 (1876).

     This is more demanding than the "more likely than not"

standard commonly applied in civil matters, but sensibly so. 

Telling a party that it cannot prove or contest a fact of

importance in the case at hand is a severe measure.  Courts have

been willing to take that step only where it is certain that the

issue has already been decided in a prior case (normally one

involving the same parties), and even then there are numerous

escape hatches).  Restatement, supra,  27.

     Confronted with a general verdict in the earlier case,

courts commonly ask whether a finding was "necessary" to the

judgment, and answer the question by looking primarily to the

instructions and the result.  But a finding is "necessary" if it

was central to the route that led the factfinder to the judgment

reached, even if the result "could have been achieved by a

different, shorter and more efficient route."  Commercial

Associates v. Tilcon Gammino, Inc., 998 F.2d 1092, 1097 (1st Cir.

1993).  And in deciding whether the jury did make and rest

centrally upon a finding not expressly made, it is proper to

consider--as Dennis said--not only what was "logically" but also

what was "practically" a "necessary component of the decision

reached."  Dennis, 744 F.2d at 899.

     Here, the rape charges were the centerpiece of Jennifer

Hoult's case.  In the opening statement, her counsel said that

Jennifer Hoult would have to live with her "memories of the rape,

torture, and sexual abuse" by her father and that her father had

had "intercourse" with her.  Defense counsel answered that Jennifer

Hoult could not have been "raped by her father some 3,000 times,"

as she had once claimed, and he promised evidence to show  the

unlikelihood that numerous rapes could have occurred without

detection by other family members.

     Jennifer Hoult then testified specifically to five

incidents of rape and said that there were other like rapes whose

details she could not recollect.  On cross-examination by defense

counsel, she said:

          I know based on the specific memories

     that I have of him attacking me and based on

     my perceptions, and memories of my life as a

     whole that he assaulted me regularly, and that

     rape, even the narrower definition [simple

     sexual intercourse] was a regular part of the

     way that he assaulted me.



     In closing argument, defense counsel--who argued first--

said at the outset:

     Specifically, Jennifer alleges that her father

     sexually abused her.  More specifically,

     Jennifer claims that her father raped her, and

     I will call your attention now, as I did in my

     opening statement, that Jennifer describes

     rape as forcible vaginal intercourse.



In response, Jennifer Hoult's counsel said: "And this is not about

hugging and kissing.  She is claiming he assaulted her.  He raped

her.  It's not inappropriate hugging and kissing."

     A further consideration, stressed by the district court,

is Dr. Brandt's testimony and the jury's finding on the statute of

limitations.  Dr. Brandt testified that repeated sexual abuse can

cause repression of memory of the abuse and that Jennifer Hoult"s

symptoms "correlated" with such a syndrome.  In finding that the

statute of limitations had run, the only plausible explanation is

that the jury accepted Jennifer Hoult's testimony as to the rapes,

which were the salient and specific acts of repeated abuse to which

she testified.

     Theoretically, the jury could have concluded that

Jennifer Hoult had made up or imagined the rapes, and it could then

have found repressed memory and awarded the $500,000 judgment

because of improper sexual fondlings and threats or acts of

violence.  But this is a wholly unrealistic assessment of a trial

in which the rapes were the central and pivotal issue, the

fondlings were the preface to the rapes, and the violence was

connected to the rapes (either as part of the rapes or to encourage

silence).  In our view the jury necessarily decided that rapes had

occurred.

     The present law suit seeks, in the guise of a defamation

action, to retry the central issue in the prior assault case

between the same litigants.  That issue--ultimately a credibility

contest between the two opposing parties--was resolved by the jury

at the first trial.  Whether the jury was right or wrong, its

decision about what happened is not now open to relitigation.

     Affirmed.