JAG v. Schmaltz

682 So. 2d 331, 95 La.App. 4 Cir. 2755, 1996 La. App. LEXIS 2326, 1996 WL 608572
CourtLouisiana Court of Appeal
DecidedOctober 23, 1996
Docket95-CA-2755
StatusPublished
Cited by11 cases

This text of 682 So. 2d 331 (JAG v. Schmaltz) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
JAG v. Schmaltz, 682 So. 2d 331, 95 La.App. 4 Cir. 2755, 1996 La. App. LEXIS 2326, 1996 WL 608572 (La. Ct. App. 1996).

Opinion

682 So.2d 331 (1996)

J.A.G.
v.
Bernard SCHMALTZ, The Roman Catholic Church of the Archdiocese of New Orleans, Inc., St. Clement of Rome Church, Presentation Sisters, Inc.

No. 95-CA-2755.

Court of Appeal of Louisiana, Fourth Circuit.

October 23, 1996.
Rehearing Denied November 22, 1996.

*332 Richard Ducote, Fine and Associates, New Orleans, for Plaintiff/Appellant, J.A.G.

Vincent T. LoCoco, New Orleans, for Defendant/Appellee, Bernard Schmaltz.

C. William Bradley, Jr., Dwight C. Paulsen, III, Lemle & Kelleher, L.L.P., New Orleans, and Don M. Richard, Denechaud and Denechaud, New Orleans, for Defendants/Appellees, The Roman Catholic Church of the Archdiocese of New Orleans, the Congregation of St. Clement of Rome Roman Catholic Church and the Presentation Sisters, Inc.

Before LOBRANO, LANDRIEU and MURRAY, JJ.

MURRAY, Judge.

J.A.G., a thirty-two-year-old male claiming a recent recovery of certain childhood memories, filed this suit in December 1992, seeking damages for alleged sexual abuse committed in 1974 by Father Bernard Schmaltz, a Roman Catholic priest. In addition to Father Schmaltz, the named defendants included the Roman Catholic Church of the Archdiocese of New Orleans, the Congregation of St. Clement of Rome Roman Catholic Church and The Presentation Sisters, all of whom excepted to the suit based upon prescription. After extensive discovery, an evidentiary hearing was held, resulting in a judgment maintaining the defendants' exceptions and dismissing J.A.G.'s claims with prejudice. J.A.G. now appeals; we affirm.

FACTS

J.A.G. asserts that in October 1973, while he was an eighth-grade student at St. Clement of Rome Elementary School, Father Schmaltz took him, his brother and another boy on a fishing trip to Slidell. During the night, while sharing a bed in a motel room, Father Schmaltz fondled J.A.G.'s genitals and slightly penetrated his anus with his fingers.[1] J.A.G. told his brother and the other boy the next morning about this incident, which was his first sexual encounter. They dismissed it. Over the next month or so, Father Schmaltz continued to occasionally *333 touch J.A.G. inappropriately during chance encounters in church or the hallways, but there were no additional overt sexual acts. However, during this same period, J.A.G. began having sexual encounters with an older man on his paper route.

Sometime shortly before Christmas 1973, apparently based upon `talk around the schoolyard', one of the Presentation Sisters approached J.A.G. and asked if Father Schmaltz had ever touched him in an unusual way. He told her yes and briefly described what had happened in Slidell. The nun set up a meeting with the Parish Pastor, J.A.G., and two or three other boys, and the students' allegations of Father Schmaltz's conduct was discussed. No parents were notified of this meeting; the boys were told not to tell their parents, and "not to let it leave this room." After the meeting with the Pastor and the other boys, J.A.G. testified, the schoolyard talk about "Father Bernie" continued, but no action was taken.

Allegedly with no recollection of any other incidents involving Father Schmaltz, J.A.G. continued his education at a Catholic high school and university. He testified that he was sexually active, if not promiscuous, with both men and women throughout this period. In the fall of 1982, J.A.G. enrolled in law school but was dismissed after the spring 1983 semester due to poor academic performance. His petition for readmission, which detailed a number of recent personal and emotional problems, was denied. In the fall of 1988, he was accepted into medical school, but voluntarily resigned in the middle of the next semester, citing personal and psychological difficulties. He was readmitted in the fall of 1990, however, based upon his representation that he was seeing a psychiatrist to work through some longstanding psychological problems.

In fact, J.A.G. had begun intermittent psychiatric treatment in May 1983, when he consulted Dr. Daniel K. Winstead at Tulane University Medical Center, asserting that he was having difficulty dealing with the loss of a girlfriend, his failure in law school and a recent automobile accident. In the initial session with Dr. Winstead, J.A.G. disclosed that he had had a "sexual incident" with a priest when he was 13 years old. No details of the incident appeared in the doctor's notes. J.A.G. last saw Dr. Winstead in August 1983 after only eight visits; the doctor's notes do not reflect any further discussion of sexual matters.

In December 1984, J.A.G. began a limited course of treatment with Dr. Jose M. Pena, who was also on the psychiatry staff at Tulane University Medical Center. On his fifth visit, in March 1985, J.A.G. told Dr. Pena that he had been sexually abused by a priest when he was in the eighth grade, but that his parents did not believe him at first. According to the doctor's notes, J.A.G. associated the sexual abuse by the priest with his subsequent promiscuity, indicating he "knew something was wrong." On the next visit, in April 1985, Dr. Pena wrote that "his rape + molestation" contributed to J.A.G.'s emotional difficulties, and the notes from the following session indicate discussion of watching a show about a child molester and opening up to his father about his "molestation." Dr. Pena explained, however, that these session notes were not a verbatim transcript, but only his written record of matters discussed during each visit. Therefore, J.A.G. may have used the word "rape" or Dr. Pena may have written it as a brief expression for abuse in general. Because he last saw J.A.G. in June 1985, Dr. Pena had no independent recollection of the details of abuse that had been provided.

J.A.G. testified that he also saw psychiatrist Dr. Charles G. Steck for about eight weeks in 1986 or 1987, and consulted with Dr. Carl Balson before he resigned from medical school in 1988. Dr. Balson referred J.A.G. to Dr. Howard J. Osofsky of the LSU Medical Center, with whom a five-year course of psychoanalysis, with four sessions per week, was begun November 16, 1988. J.A.G. testified that although he sought treatment because of his poor performance in school, Dr. Osofsky was the first psychiatrist with whom he was comfortable enough to fully discuss his homosexual encounters, not just his sexual promiscuity. In J.A.G.'s words, his homosexual relationships were "just something I didn't want to talk about or have come to the light of day."

*334 J.A.G. testified that in December 1992, after several years of psychotherapy and while up late studying for a medical school exam, he saw a local news story on a cable TV channel regarding sexual misconduct by a Roman Catholic priest. He watched the broadcast three times, unable to turn it off, then went to bed "feeling very, very uncomfortable." He awoke suddenly with the physical sensation of Father Schmaltz on top of him, and gradually remembered being anally raped by the priest. Over an unstated period of time, with Dr. Osofsky's help, J.A.G. recalled that in May 1974, while the rest of his class was on a field trip, he was made to remain at school and was sent to work in the rectory by one of the nuns. Father Schmaltz saw J.A.G. stapling programs there and invited him upstairs `to talk' while the priest changed clothes. It was then that the priest allegedly raped J.A.G.

Dr. Osofsky testified that J.A.G. revealed the initial Slidell incident with Father Schmaltz soon after their sessions began, and it was discussed frequently in his further treatment. Then, several years later, J.A.G.

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Bluebook (online)
682 So. 2d 331, 95 La.App. 4 Cir. 2755, 1996 La. App. LEXIS 2326, 1996 WL 608572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jag-v-schmaltz-lactapp-1996.