Date: 06-27-2015

Case Style: Jacob Doe v. Hartford Roman Catholic Diocesan Corporation

Case Number: SC 19131, SC 19132

Judge: Robinson

Court: Supreme Court of Connecticut

Plaintiff's Attorney: Hugh D. Hughes, with whom were Thomas McNamara
and, on the brief, William F. Gallagher, for the
appellee (plaintiff).

Brenden P. Leydon filed a brief for the Connecticut
Trial Lawyers Association as amicus curiae.

Defendant's Attorney: John W. Sitarz and Wesley W. Horton, with whom
was Lorinda S. Coon, for the appellant (defendant).

Description: A jury found that the defendant, the
Hartford Roman Catholic Diocesan Corporation, acted
negligently and recklessly when it assigned Father Ivan
Ferguson, an alcoholic whose admitted acts of child
molestation were understood to be linked to his drinking,
to serve as the director of Saint Mary’s Elementary
School in Derby (Saint Mary’s School), where he sexually
abused the plaintiff, Jacob Doe,1
from 1981 through
1983. The defendant now appeals from the judgment
of the trial court, rendered in accordance with the jury’s
verdict, which awarded the plaintiff $1 million in damages
plus punitive damages in the form of attorney’s fees
and costs.2 On appeal, the defendant raises a plethora
of claims challenging the judgment of the trial court,
including that: (1) there was insufficient evidence to
support the jury’s verdict that the defendant had acted
negligently and recklessly from 1979 through 1983; (2)
the trial court made numerous improper evidentiary
rulings, particularly when it precluded expert testimony
that would have provided a historical perspective about
the public’s perception of pedophilia3
from 1979 through
1983; (3) the trial court improperly struck the special
defense of laches; and (4) the retroactive application
of certain amendments to the applicable statute of limitations,
General Statutes § 52-577d,4 which had the
effect of reviving the plaintiff’s otherwise time barred
claims, violated the defendant’s substantive due process
rights under article first, §§ 8 and 10, of the Connecticut
constitution.5 We disagree with all of these
claims. Accordingly, we affirm the judgment of the
trial court.
The record reveals the following facts, which the jury
reasonably could have found, and procedural history.
In the early morning of March 7, 1979, Father Gene
Gianelli, a priest who was serving as secretary to Archbishop
John Whealon, received a telephone call from
Ferguson, who at that time was a priest at Saint Bernard’s
Parish in Tariffville and a teacher at Northwest
Catholic High School in West Hartford (Northwest).
Ferguson informed Gianelli that a woman had reported
to Father Joseph Donahue, another priest at Saint Bernard’s
Parish, that Ferguson had molested two boys in
the parish, and that the accusation was in fact true.
Ferguson also told Gianelli that he was experiencing
an alcohol problem, and asked for help.
Laterthat day, Whealon met with Donahue and Ferguson
in Whealon’s office; Gianelli did not attend that
meeting. Whealon, however, memorialized that meeting
in a handwritten memorandum to Gianelli, stating that
Ferguson had been struggling with his sexuality since
childhood, and ‘‘[n]ow alcohol has entered the picture.’’
Whealon noted specifically that Ferguson had molested
the two boys ‘‘in a way that showed his abject weakness,’’
but was now ‘‘totally contrite,’’ acknowledging
he needed help, and had claimed that he was not in
‘‘immediate danger of touching others . . . .’’ Whealon
communicated the decisions made during the meeting,
namely, that: (1) they would arrange for Ferguson to
be treated at the House of Affirmation, an inpatient
facility; (2) Donahue would inform the woman who had
reported the molestation about their solution and ‘‘will
ask them to tell no one’’; and (3) Ferguson would ‘‘tell
no one’’ of what happened. Whealon noted his ‘‘hope
[that Ferguson] can get help [and] control it permanently.
Otherwise we have a real problem.’’6
Subsequently, on March 16, 1979, Donahue reported
to Gianelli that Ferguson had not gone to the House of
Affirmation, and did not want to leave Saint Bernard’s
Parish. Gianelli brought this to Whealon’s attention.
After following up on this report, Whealon stated in a
memorandum that there ‘‘is more at [Northwest] than
we know of,’’ and that the mother of one of the boys
who had been molested was seeing a counselor with
him. Whealon observed further that the counselor was
a mandated reporter under state law, and the ‘‘entire
matter seems to be blowing up’’ as the ‘‘mother is not
satisfied that anything is being done.’’ With respect to
additional victims, Whealon noted specifically that
‘‘there were [four] older boys, last summer. These last
[two] were in [November] 1978. Seemingly nothing has
happened at [Northwest].’’ Whealon directed Gianelli
to call Ferguson and tell him to leave Saint Bernard’s
Parish, or else Whealon ‘‘who [is] liable,’’ would order
him out personally.
Subsequently, Gianelli discussed Ferguson’s alcoholism
and acts of child molestation with Father Michael
Peterson, a priest and physician who was the director
of the Saint Luke Institute in Holliston, Massachusetts.
Gianelli then reported to Whealon that he had arranged
for Ferguson to enter the inpatient program at the Saint
Luke Institute on March 26, 1979, which would first
‘‘work with [his] chemical dependence’’ and then his
‘‘emotional and psychological problems’’ over a four to
six month period. Gianelli did not know whether or
how the Saint Luke Institute specifically would address
Ferguson’s pedophilia. Gianelli further advised
Whealon that he would inform Northwest, through the
defendant’s superintendent of schools, that Ferguson
would be leaving the teaching assignment to ‘‘get ‘some
help’ ’’ because of ‘‘some pressures [Ferguson]is experiencing,’’
in order to ‘‘keep this thing quiet and help
[Ferguson]’’ who ‘‘agrees with this procedure. It can
and will save him from [an] embarrassing situation.’’
Gianelli noted that it ‘‘will be recommended that [Ferguson’s]
next assignment be away from the area he is
presently assigned to.’’ Gianelli then stated that he
would direct Donahue to ‘‘inform the [woman] in Tariffville
that [Ferguson] is away and being treated. I will
not let this woman know where [Ferguson] is receiving
treatment. She could become a pest if she knew.’’
Ferguson was treated as an inpatient at the Saint
Luke Institute from March 26 through July 12, 1979.
Whealon visited Ferguson at the Saint Luke Institute,
and, after consultation with Peterson, arranged for Ferguson
to be reintegrated into the ministry by assigning
him to serve, upon his discharge, as the chaplain of
Lauralton Hall, an all girls school, and to reside in a
nearby rectory. Whealon summarized the details of the
transition plan in a handwritten memorandum to Gianelli
dated June 17, 1979, stating ‘‘it is OK to say that
[Ferguson] is an alcoholic and is now completing his
rehabilitation in a new alcoholism program.’’ Whealon
then directed Gianelli to arrange for: (1) Ferguson to
reside in a ‘‘nearby rectory which has an open dialoguing,
priestly spirit’’; (2) Peterson to brief the rectory
priests and school administrators about Ferguson’s
treatment for alcoholism; and (3) Father Leonard
Kvedas, a local priest, to help Ferguson join a clergy
oriented Alcoholics Anonymous group.7 Peterson’s
briefing was held on July 22, 1979. Ferguson’s sexual
proclivities were not discussed at that meeting. On July
27, 1979, Whealon formally appointed Ferguson to serve
part-time as chaplain at Lauralton Hall; in November,
1979, Ferguson began to serve part-time as assistant
pastor of Saint Mary’s Parish in Derby, where he resided
in the rectory.
On June 8, 1981, Ferguson was assigned to serve fulltime
as assistant pastor of Saint Mary’s Parish. Ferguson
later requested a new teaching assignment, which
Peterson had supported as clinically appropriate with
respect to Ferguson’s ‘‘other issues . . . as long as the
disease of alcoholism is in control.’’8 Father Richard
Bollea, the pastor of Saint Mary’s Parish, then appointed
Ferguson to serve as director of Saint Mary’s School,
rather than grant Ferguson’s initial request to work at
an all boys school. Gianelli testified that he did not
know, however, whether Whealon had ever warned Bollea
about Ferguson’s pedophilia, and Gianelli had not
done so personally. Gianelli also did not know of any
restrictions placed on Ferguson’s ability to be around
minors following his release from the Saint Luke Institute.
Donna Dougherty, the plaintiff’s eighth grade
teacher at Saint Mary’s School, testified that she had
never been advised that Ferguson had been treated for
the sexual abuse of young boys, or to keep an eye on
him around students.9
The plaintiff and his best friend, R, attended Saint
Mary’s School while Ferguson was the priest-director
there.10 Ferguson had befriendedR by taking him ‘‘under
. . . his wing’’ after the death of his mother, and met
the plaintiff, then a thirteen year old seventh grader,
through R. At the time, both the plaintiff and R considered
Ferguson’s friendship to be a privilege because he
was younger and more ‘‘hip’’ than the ‘‘stuffy’’ older
priests; Ferguson was interested in the music that the
students liked, and he let them call him by his first
name. Ferguson often pulled the boys from their classes
for errands or to help him as altar servers at daily
masses, and would then take them for a soda or a snack
before they returned to class. The plaintiff described
Ferguson as ‘‘the man’’ at Saint Mary’s School, and
stated that, ‘‘if he liked you, you were held in high
esteem . . . .’’
Ferguson then began to molest the plaintiff and R
both on and off the grounds of Saint Mary’s School.
Ferguson would step in for the female gym teacher to
supervise the male students in the communal shower
after physical education classes, where he would soap
the boys’ backs and make comments about their genitals.
Other molestations took place in the basement
of Saint Mary’s School, where the plaintiff would be
summoned from class to help Ferguson retrieve
supplies.
Ferguson’s relationship with the plaintiff and R deepened
as they entered eighth grade, and he often took
them to restaurants and for sleepovers at the rectory.11
Other students were frequently present during the
sleepovers. Bollea, the pastor of the parish who also
lived in the rectory, was downstairs in the building
during these sleepovers; on one occasion he greeted R
in the rectory’s kitchen when R went to get breakfast
after a sleepover.12 Frequent molestations occurred during
these sleepovers.13 Eventually, these events culminated
in an episode during which Ferguson sodomized
the plaintiff in the basement of Saint Mary’s School.
The plaintiff and R did not tell anyone about the molestations
because, despite their feelings of shame, they
enjoyed the social popularity that resulted from Ferguson’s
attention to them.
As they moved into high school, the plaintiff and R
never discussed their molestations or told anyone else
about them; as adults, they initially agreed not to say
anything aboutthem. The plaintiff keptthe molestations
a secret for more than twenty years14 and moved on to
marry,15 have two sons, and work as a fire marshal
and investigator. Thereafter, Thomas McNamara, the
attorney who represented the plaintiff at trial in this
case, contacted him as a potential witness in connection
with a separate lawsuit that R had brought against the
defendant. At that point, after receiving counseling to
address anxiety and despair caused by the molestations
and his secret becoming public, the plaintiff brought
this action against the defendant.
In his two count complaint, the plaintiff claimed that
the defendant’s actions with respect to its assignment
and supervision of Ferguson were negligent and reckless,16
and caused him serious and debilitating emotional
injuries, and sought money damages, punitive
damages, exemplary damages, and attorney’s fees and
costs. In response, the defendant filed an answer and
pleaded numerous special defenses, including laches
and the statute of limitations.
The trial court granted the plaintiff’s motion to strike
the special defense of laches. The defendant later filed
a motion for summary judgment on the ground that the
action was time barred under § 52-577d, and that, under
the due process clauses of the federal and state constitutions,
the ‘‘cause of action cannot be revived by retroactive
application of a lengthened limitation period
enacted after the time allowed for bringing claims had
already expired.’’ The trial court disagreed with these
claims and denied the defendant’s motion for summary
judgment.
The case was tried to a jury, which returned a verdict
finding that the plaintiff had proven by a preponderance
of the evidence that the defendant’s conduct was a
proximate cause of the plaintiff’s injuries insofar as it
had negligently and recklessly failed to: (1) supervise
Ferguson adequately in ‘‘his interaction and conduct
toward minors with whom he would have contact’’; (2)
‘‘immediately remove . . . Ferguson from any position
within the [defendant] when it knew or had reason to
know that he was a danger to minors’’; and (3) ‘‘warn or
advise its congregations, parishioners and employees,
which would have included the plaintiff’s mother and
father, of the threat which . . . Ferguson posed to
minor children, including the plaintiff.’’ The jury
awarded the plaintiff $1 million in compensatory damages,
and the trial court awarded punitive damages in
the form of attorney’s fees and costs on the recklessness
count. The trial court subsequently denied the defendant’s
motion to set aside the verdict.17 This appeal
followed. See footnote 2 of this opinion.
On appeal, the defendant challenges numerous
aspects of the trial court proceedings, contending that:
(1) the evidence was insufficient to support the jury’s
negligence and recklessness verdicts; (2) the trial court
made several improper evidentiary rulings; (3) the trial
court improperly struck the defendant’s special defense
oflaches; and (4)the revival ofthe plaintiff’s time barred
cause of action through the retroactive application of
§ 52-577d violated the defendant’s substantive due process
rights under the Connecticut constitution. We
address each claim in turn, and set forth additional
relevant facts and procedural history where necessary.
I
SUFFICIENCY OF THE EVIDENCE CLAIMS
We begin with the defendant’s claims challenging the
sufficiency of the evidence in this case, specifically
that: (1) expert testimony was necessary to support the
plaintiff’s claims by establishing what was commonly
known about pedophilia during the late 1970s and early
1980s; (2) the jury could not reasonably have found
that the defendant had failed to supervise Ferguson
adequately; and (3) the jury’s recklessness finding lacks
support because there was no evidence that Whealon
had consciously disregarded a known danger.
‘‘A party challenging the validity of the jury’s verdict
on grounds that there was insufficient evidence to support
such a result carries a difficult burden. In reviewing
the soundness of a jury’s verdict, we construe the evidence
in the light most favorable to sustaining the verdict.
. . . Furthermore, it is not the function of this
court to sit as the seventh juror when we review the
sufficiency of the evidence . . . rather, we must determine
. . . whether the totality of the evidence, including
reasonable inferences therefrom, supports the jury’s
verdict . . . . [I]f the jury could reasonably have
reached its conclusion, the verdict must stand, even if
this court disagrees with it.’’ (Citation omitted; internal
quotation marks omitted.) Broadnax v. New Haven,
294 Conn. 280, 299, 984 A.2d 658 (2009).
Moreover, with respect to the trial court’s refusal to
set aside the verdict, ‘‘we accord great deference to
the vantage of the trial judge, who possesses a unique
opportunity to evaluate the credibility of witnesses.
. . . The concurrence of the judgments of the [trial]
judge and the jury . . . is a powerful argument for
upholding the verdict.’’ (Citation omitted; internal quotation
marks omitted.) Gaudio v. Griffin Health Services
Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999).
‘‘Two further fundamental points bear emphasis.
First, the plaintiff in a civil matter is not required to
prove his case beyond a reasonable doubt; a mere preponderance
of the evidence is sufficient. Second, the
well established standards compelling great deference
to the historical function of the jury find their roots in
the constitutional right to a trial by jury.’’ (Footnote
omitted.) Id., 534–35.
A
Whether Expert Testimony Was Necessary
The defendant first claims that, because of the age
of the allegations in the present case relative to the
time of trial, expert testimony was necessary to support
the jury’s finding of negligence. The defendant relies
heavily on this court’s decision in LePage v. Horne, 262
Conn. 116, 809 A.2d 505 (2002), and argues in its brief
that expert testimony was necessary to establish the
lay standard of care because of the complex nature of
the subject matter of pedophilia ‘‘combined with the
thirty-year gap between the conduct and the judging of
it,’’ insofar as ‘‘[s]ociety’s understandings about child
sexual abuse have changed significantly over time.’’18
(Emphasis in original.) The defendant contends that
expert testimony about the ‘‘prevailing understanding
about the nature of pedophilia and prospects for treatment
thirty years before’’ was necessary, and posits
that the plaintiff had urged the jury to view the evidence
in this case, in particular the report from the Saint Luke
Institute indicating Ferguson’s desire to teach at an all
boys school, ‘‘through the distorting lens of hindsight.’’
In response, the plaintiff contends that the trial court
properly determined that expert testimony was not necessary
because this was not a professional malpractice
case centered on curing pedophilia, but rather, concerned
the defendant’s failure to apply a ‘‘minimal level
of care’’ insofar as Ferguson ‘‘should have been in jail,
not director of Saint Mary’s School. If the defendant
had shown a minimal level of concern for the obviously
foreseeable future victims of a six time child molester
and called the police, none of this would have happened.’’
The plaintiff further argues that ‘‘[e]xpert testimony
has never been required in Connecticut to prove
a negligent supervision claim where there has been past
intentional conduct of the same kind perpetrated in the
pending case,’’ observing that the ‘‘gravity of the harm
alone, child rape, indicates that the defendant’s plan
for secrecy was a violation of its duty to supervise and
inform parents and teachers of Ferguson’s history and
obvious propensity to molest minor boys.’’19 On the facts
of this case, given the defendant’s actual knowledge
that Ferguson had molested multiple children, along
with that destructive behavior being closely linked to
his alcoholism and risk of relapse, we agree with the
plaintiff and conclude that expert testimony was not
required to establish the lay standard of care.
‘‘As an initial matter, we note that the [trial] court’s
determination of whether expert testimony was needed
to support the plaintiff’s claim of negligence against the
defendant was a legal determination, and, thus, our
review is plenary.’’ Vanliner Ins. Co. v. Fay, 98 Conn.
App. 125, 136–37, 907 A.2d 1220 (2006); accord LePage
v. Horne, supra, 262 Conn. 125–26; Santopietro v. New
Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996).
‘‘We begin by setting forth the relevant parameters
under our negligence jurisprudence. The essential elements
of a cause of action in negligence are well established:
duty; breach of that duty; causation; and actual
injury. . . . Contained within the first element, duty,
there are two distinct considerations. . . . First, it is
necessary to determine the existence of a duty, and
[second], if one is found, it is necessary to evaluate the
scope of that duty. . . . The issue of whether a duty
exists is a question of law . . . which is subject to
plenary review. We sometimes refer to the scope of
that duty as the requisite standard of care. . . .
‘‘[O]ur threshold inquiry has always been whether the
specific harm alleged by the plaintiff was foreseeable to
the defendant. . . . By that is not meant that one
charged with negligence must be found actually to have
foreseen the probability of harm or that the particular
injury which resulted was foreseeable, but the test is,
would the ordinary [person] in the defendant’s position,
knowing what he knew or should have known, anticipate
that harm of the general nature of that suffered
was likely to result? . . . The idea of risk in this context
necessarily involves a recognizable danger, based upon
some knowledge of the existing facts, and some reasonable
belief that harm may possibly follow. . . . Accordingly,
the fact finder must consider whether the
defendant knew, or should have known, that the situation
at hand would obviously and naturally, even though
not necessarily, expose [the plaintiff] to probable injury
unless preventive measures were taken.’’ (Citations
omitted; internal quotation marks omitted.) LePage v.
Horne, supra, 262 Conn. 123–24.
‘‘[E]xpert testimony . . . serves to assist lay people,
such as members of the jury and the presiding judge,
to understand the applicable standard of care and to
evaluate the defendant’s actions in light of that standard.
. . . Expert testimony is required when the question
involved goes beyond the field of the ordinary
knowledge and experience of judges or jurors.’’ (Citation
omitted; emphasis omitted; internal quotation
marks omitted.) Id., 125. Typical cases where expert
testimony is required are those that ‘‘are akin to allegations
of professional negligence or malpractice.’’ Santopietro
v. New Haven, supra, 239 Conn. 226.
Guided by the content of the parties’ summations,
we agree with the plaintiff’s characterization of the
central question submitted to the jury in the present
case, namely, whether it was reasonable for the defendant
to rely on Peterson’s opinion that Ferguson’s continued
sobriety was the key to maintaining the
behavioral inhibitions that would keep him from molesting
more boys. See footnote 8 of this opinion and accompanying
text. The plaintiff correctly observes that the
jury was not required to determine as a scientific matter
whether pedophilia was at some point in history ever
considered curable, or whether Ferguson was treated
properly by Peterson and the clinical staff at the Saint
Luke Institute. Rather, the issue forthe jury boiled down
to whether, given the gravity of the harms caused by
child molestation, it was reasonable to take a chance
on Ferguson’s continued success in his alcoholism
treatment. Accordingly, the question we must answer
in this appeal is whetherthe possibility that an alcoholic
might relapse is a subject within the ordinary juror’s
common knowledge and experience.20
We conclude that the risk that a person under treatment
for addiction to alcohol could relapse into that
addiction is not, and historically has not been, a subject
outside the common knowledge and experience of an
ordinary juror. ‘‘Jurors are not expected to lay aside
matters of common knowledge or their own observation
and experience of the affairs of life, but, on the
contrary, to apply them to the evidence or facts in hand,
to the end that their action may be intelligent and their
conclusions correct.’’ (Internal quotation marks omitted.)
State v. Padua, 273 Conn. 138, 157, 869 A.2d 192
(2005). To this end, it has long been established that
‘‘sobriety and intoxication are matters of common
knowledge’’; State v. Adams, 2 Conn. Cir. Ct. 481, 484,
202 A.2d 262 (1964); meaning that expert testimony is
not required to explain their effects. State v. Folson, 10
Conn. App. 643, 653, 525 A.2d 126 (1987); accord State
v. Padua, supra, 157 (expert testimony not necessary
to sustain risk of injury conviction because ‘‘the effects
of orally ingesting marijuana are within the common
knowledge of the average juror’’); State v. Clark, 260
Conn. 813, 824, 801 A.2d 718 (2002) (‘‘We recognize
that, because it is an illegal substance, it may be that
many jurors may have no firsthand knowledge regarding
the effects of marijuana on one’s ability to perceive
and to relate events. At the same time, we cannot blink
at the reality that, despite its illegality, because of its
widespread use, many people know of the potential
effects of marijuana, either through personal experience
or through the experience of family members or
friends. The ability to draw inferences about the
impairing effects of marijuana, like alcohol, however,
is based upon common knowledge, experience and
common sense, not necessarily on personal experience.’’);
see also, e.g., State v. Means, 115 Ariz. 502, 504,
566 P.2d 303 (1977); People v. Paro, 283 App. Div. 2d
669, 670, 724 N.Y.S.2d 531, appeal denied, 96 N.Y.2d
922, 758 N.E.2d 666, 732 N.Y.S.2d 640 (2001); State v.
Smissaert, 41 Wn. App. 813, 815, 706 P.2d 647, review
denied, 104 Wn. 2d 1026 (1985).
Akin to the effects of alcohol, it has been held to be
‘‘a matter of common knowledge that addicts often
relapse, going back and forth between substance abuse
and sobriety.’’21 Jones v. Valdez, United States District
Court, Docket No. 1:09CV00132 (MHW)(D. Idaho March
23, 2012), aff’d sub nom. Jones v. Ellis, 586 Fed. Appx.
344 (9th Cir. 2014); accord Zenor v. El Paso Healthcare
Systems, Ltd., 176 F.3d 847, 858 (5th Cir. 1999) (The
defendant hospital was ‘‘entitled to considerthe relapse
rate for cocaine addiction in determining that [the plaintiff]
was not qualified to work as a pharmacist. . . .
As noted, cocaine addiction has a very high relapse
rate, and the risk of harm from a potential relapse was
great.’’ [Citation omitted.]); D’Amico v. New York, 132
F.3d 145, 151 (2d Cir. 1998)(‘‘[the firefighter’s] history of
cocaine addiction, together with the [fire department’s]
judgment as to the possibility of, and the risks inherent
in, a relapse, justified the [fire department’s] decision
to terminate [the firefighter’s] employment’’).
Contrary to the defendant’s claims, this case is not
analogous to the more subtle intersection of common
knowledge and medicine presented to the jury in
LePage, which required us to consider whether an ordinary
person would be aware, given then recent
advances in research, that the risk of sudden infant
death syndrome is not merely present, but ‘‘appreciably
greater’’ when an infant is left sleeping in a prone position.
LePage v. Horne, supra, 262 Conn. 126. Rather,
the present case presented the jury with the far simpler
question of whether it was reasonable for the defendant
to put Ferguson—who was known to the defendant
as a child molester whose pedophilic tendencies were
exacerbated by alcohol—back in a position where he
was in contact with minors and, thus, roll the proverbial
dice about whether Ferguson would ever drink alcohol
and revert to his dangerous sexual proclivities.22 It was
not about the scientific aspects of pedophilia, but
rather, the evaluation of a risk well within the ken of
the average juror, namely, alcoholism and its attendant
risk of relapse. Cf. Bader v. United Orthodox Synagogue,
148Conn. 449, 454, 172 A.2d 192 (1961)(‘‘[e]xpert
testimony was not required to support the claim of the
plaintiff that the absence of a proper or suitable porch
railing was a structural defect and therefore constituted
corporate negligence’’). Accordingly, we conclude that
the plaintiff was not required to provide expert testimony
in order to sustain his case.
B
Negligent Supervision
The defendant next claims that there was insufficient
evidence that it did not adequately supervise Ferguson
because there was no evidence of how the defendant’s
personnel supervised him, insofar as the witnesses to
the relevantfacts are either dead or very elderly.Relying
heavily on this court’s decision in Paige v. St. Andrew’s
Roman Catholic Church Corp., 250 Conn. 14, 734 A.2d
85 (1999), the defendant contends that the jury’s finding
of negligent supervision was, therefore, based on
improper speculation and conjecture. The plaintiff contends
otherwise, citing evidence of the secretive nature
of the defendant’s conduct vis-a´-vis Ferguson and drawing
an inference, from Bollea’s inaction during the
sleepovers in the rectory and Dougherty’s testimony
that Whealon and his aides had not advised anyone at
Saint Mary’s School to take precautions given Ferguson’s
history of child molestation. We agree with the
plaintiff, and conclude that the jury’s verdict of negligent
supervision was supported by sufficient evidence.23
Specifically, we disagree with the defendant’s claim
that the jury’s conclusion that the defendant had not
provided adequate supervision of Ferguson, a priest
that it knew had molested children, was founded solely
on the kind of sympathy driven ‘‘creative guesswork’’
that led this court to overturn a jury’s verdict of negligence
in Paige v. St. Andrew’s Roman Catholic Church
Corp., supra, 250 Conn. 30. Proof of the defendant’s
failure to supervise was readily accomplished by reasonable
inference from the evidence admitted at trial.
In particular, we agree with the plaintiff that the jury’s
verdict of negligent supervision is supported by R’s
testimony that Bollea had not questioned his presence
in the rectory with Ferguson, and by the testimony of
Dougherty that she was never advised by her superiors
of Ferguson’s proclivities, or told to safeguard her students
in any way. The inferences to be drawn from this
direct testimony are buttressed by evidence of
Whealon’s numerous directives urging discretion and
silence with respect to Ferguson’s acts.24
To the extent the defendant urges us to conclude
otherwise through its reliance on the monitoring of
Ferguson’s sobriety, and occasional reports from the
Saint Luke Institute to Whealon, it is asking us to sit
as the ‘‘seventh juror’’ and retry the facts on appeal,
which contravenes ourlong-standing reluctance ‘‘to disturb
jury verdicts, and we accord great deference to
the vantage of the trial judge, who possesses a unique
opportunity to evaluate the credibility of witnesses.’’
Gaudio v. Griffin Health Services Corp., supra, 249
Conn. 534. Accordingly, we decline to disturb the jury’s
verdict finding that the defendant had negligently supervised
Ferguson.
C
Recklessness
The defendant next claims that there was no evidence
from which the jury properly could have found that
Whealon had consciously disregarded a known danger,
thus, meaning that its recklessness finding is not supported
by sufficient evidence. The defendant argues
that the evidence in this case, specifically, Whealon’s
memorialized hope that Ferguson ‘‘ ‘can get help and
control it permanently’ ’’ or ‘‘ ‘[o]therwise we have a
real problem,’ ’’ ‘‘showed . . . the opposite of conscious
disregard,’’ namely, Whealon’s ‘‘desire and intent
to do the right thing both for the people of the Archdiocese
[of Hartford] and for . . . Ferguson.’’ The defendant
contends that its decision to send Ferguson for
inpatient treatment and evaluation at the Saint Luke
Institute, and to impose a slow, carefully monitored
return to service, demonstrates that it proceeded cautiously
in light of Whealon’s then reasonable ‘‘understanding
that Ferguson’s condition needed to be and
could be permanently controlled.’’ (Emphasis omitted.)
In response, the plaintiff contends that the defendant’s
recklessness is demonstrated by its ‘‘total lack
of concern forthe victims and theirfamilies,’’ as evinced
by Whealon’s commitment to secrecy in furtherance of
the ‘‘defendant’s sole concern [being] to protect itself,
its reputation, and its priests.’’ Noting Whealon’s knowledge
of six prior molestations by Ferguson, the plaintiff
emphasizes that, ‘‘[e]ven if [Whealon] believed, in defiance
of common sense which existed in 1981 as it does
today, that alcoholism was the cause of sexual molestation,
it remained reckless to toss the wolf into the sheep
pen and not warn a soul.’’ (Emphasis in original.) We
agree with the plaintiff, and conclude that the jury reasonably
could have found that the defendant’s actions
rose to the level of recklessness.
‘‘Recklessness requires a conscious choice of a
course of action either with knowledge of the serious
danger to others involved in it or with knowledge of
facts which would disclose this danger to any reasonable
man, and the actor must recognize that his conduct
involves a risk substantially greater . . . than that
which is necessary to make his conduct negligent. . . .
More recently, we have described recklessness as a
state of consciousness with reference to the consequences
of one’s acts. . . . It is more than negligence,
more than gross negligence. . . . The state of mind
amounting to recklessness may be inferred from conduct.
But, in order to infer it, there must be something
more than a failure to exercise a reasonable degree
of watchfulness to avoid danger to others or to take
reasonable precautions to avoid injury to them. . . .
Wanton misconduct is reckless misconduct. . . . It is
such conduct as indicates a reckless disregard of the
just rights or safety of others or of the consequences
of the action.’’ (Citations omitted; internal quotation
marks omitted.) Matthiessen v. Vanech, 266 Conn. 822,
832–33, 836 A.2d 394 (2003); see also Dubay v. Irish,
207 Conn. 518, 533, 542 A.2d 711 (1988) (‘‘The result is
that [wilful], wanton, or reckless conduct tends to take
on the aspect of highly unreasonable conduct, involving
an extreme departure from ordinary care, in a situation
where a high degree of danger is apparent. . . . It is
at least clear . . . that such aggravated negligence
must be more than any mere mistake resulting from
inexperience, excitement, or confusion, and more than
mere thoughtlessness or inadvertence, or simply inattention
. . . .’’ [Internal quotation marks omitted.]).
We agree with the plaintiff that, given the vulnerability
of the children attending the defendant’s churches
and schools, the jury reasonably could have viewed
Whealon’s commitment to secrecy with respect to Ferguson’s
treatment and reassignment as indicative of the
defendant’s recklessness. This was particularly so given
that Whealon held in great confidence the fact that
Ferguson had molested six other boys before being sent
for alcohol treatment. Whealon’s consciousness of the
risk is further demonstrated by his statement that Ferguson
needed to ‘‘get help and control it permanently.
Otherwise we have a real problem.’’ Accordingly, we
view the defendant’s arguments to the contrary, including
its emphasis on Whealon’s ‘‘reasonable, good faith
reliance on the professional advice’’ of Peterson, as
nothing more than attempts to retry this case.25 See,
e.g., Gaudio v. Griffin Health Services Corp., supra,
249 Conn. 534–35.
II
CHALLENGES TO EVIDENTIARY RULINGS
We next address the defendant’s challenges to several
of the trial court’s evidentiary rulings, specifically those:
(1) precluding the expert testimony of John Philip Jenkins,
a social historian; and (2) relating to Ferguson’s
treatment at the Saint Luke Institute, including the
admission of Ferguson’s 1997 deposition testimony and
the preclusion of Gianelli’s testimony about Peterson’s
statements to him.
A
Jenkins’ Expert Testimony
The defendant claims that the trial court improperly
precluded the expert testimony from Jenkins, who
would have testified that:(1)in the 1970s, child molestation
was commonly believed to be incidental to causes
such as alcoholism or senility, rather than an independently
compulsive or persistent behavior; and (2) the
defendant’s response to what it learned about Ferguson
was consistent with the practices considered appropriate
in that period. The defendant argues that Jenkins’
testimony would have provided the jury with a helpful
‘‘temporal contextthat would have reduced the problem
of hindsight reasoning,’’ given that this case concerned
the lay standard of reasonable care from 1979 through
1983, rather than 2012 when this case was tried. In
response, the plaintiff contends that the trial court did
not abuse its discretion in excluding Jenkins’ testimony
because it was irrelevant to the issues in the case, and,
further, as a historian and not a mental health professional,
Jenkins was not qualified to testify about mental
health practices in the 1970s. We agree with the plaintiff,
and conclude that the trial court did not abuse its discretion
by precluding Jenkins’ expert testimony.
We note that the record reveals the following relevant
facts and procedural history. The defendant disclosed
that it intended to call Jenkins, who at the time of
trial was a distinguished professor of history at Baylor
University and professor emeritus at Pennsylvania State
University, to testify as an expert witness about ‘‘the
historical context of the issue of sexual abuse at the
time that the offenses allegedly occurred in this case,’’
including with regard to the Roman Catholic Church.
Consistent with the defendant’s expert disclosure under
Practice Book § 13-4, Jenkins testified during voir dire
that his extensive scholarship concerns the history of
social problems such as crime, including child molestation,
and his studies attempt to document changing
attitudes about these issues during different periods in
history, by surveying opinion polls, newspaper articles
and opinion pieces, and scholarly journal articles. Jenkins
has written a book about a ‘‘cultural intellectual
revolution’’ with respect to child sexual abuse that took
place ‘‘suddenly’’ during the 1980s regarding the proper
way to respond to incidents of the sexual abuse of
minors, in both religious and secular organizations. He
testified that one of the ‘‘sharpest differences’’ between
the 1970s and today was the perceived harmfulness of
abuse to children and young people, along with a belief
that such abuse was far less common than is perceived
today. Jenkins further noted that, at that time, the vast
majority of religious and secular institutions lacked formal
policies for addressing instances of child sexual
abuse. Jenkins also testified that there was an ‘‘extraordinarily
limited’’ amount of literature on the crime of
child sexual abuse available to nonexpert audiences
prior to the 1980s, consistent with the view that it was
not considered to be a ‘‘widespread threat.’’
Jenkins then testified that, in responding to incidents
of sexual abuse, the consensus recommendation of the
pre-1980s professional literature, consisting of psychiatric,
psychological, and criminological journals and
texts, was that ‘‘harm chiefly results from what is seen
as a heavy-handed medical or official response,’’ with
many recommending against outreach to victims or
offering them counseling. He stated that attitudes in
the 1970s were ‘‘radically different to those prevailing
today,’’ insofar as the common perception was that
the ‘‘offender was much less likely to be a compulsive
individual and was much more likely to be a . . .
casual or incidental offender who committed perhaps
one act in particular circumstances, but in such a way
that did not necessarily mark him as being . . . a lifelong
or career or persistent offender.’’ Jenkins also testified
that, in the 1960s and 1970s, experts attributed
sexually abusive behavior as secondary to personal
immaturity, senility, or alcoholism, and the professional
literature of the time ‘‘veer[ed] very strongly . . .
towards therapy and treatment as opposed to punishment
as a solution for molesters,’’ and was ‘‘extremely
optimistic about the potential of cure and prevention
of reoccurrence, especially where the victim of the
offense is a teenager as opposed to a prepubescent
child.’’ Jenkins found, however, that the changes in
this field were occurring ‘‘rapidly and swiftly’’ by the
mid-1980s.
The plaintiff filed a motion in limine to preclude,
on relevance grounds, Jenkins’ testimony ‘‘that public
awareness of sexual abuse in society was not known to
the public as it is now and that the defendant’s conduct
regarding . . . Ferguson should be viewed in light of
the same.’’ The trial court granted this motion and disagreed
with the defendant’s arguments in support of the
admission of Jenkins’ testimony, stating that although
Jenkins ‘‘is an expert historian with an emphasis on
church history,’’ virtually none of his authored peer
reviewed articles related to child sexual abuse and ‘‘less
than [10] percent of his published books touch on anything
that could possibly be related to his testimony in
court today.’’ The trial court also observed that the
substance of Jenkins’ proffered testimony that related
to whether the defendant had or should have had notice
was rendered irrelevant because ‘‘notice is no longer
an issue in this case,’’ given the stipulations and the
evidence. The trial courtfurther concluded that Jenkins’
testimony was inadmissible insofar as it related to the
‘‘reasonableness of [the defendant’s]response’’ because
it was ‘‘impermissible opinion evidence’’ given the lay
standard of care applicable in this case. Thus, the trial
court concluded that Jenkins’ expert testimony would
not be helpful to the jury.
‘‘[T]he trial court has wide discretion in ruling on
the admissibility of expert testimony and, unless that
discretion has been abused orthe ruling involves a clear
misconception of the law, the trial court’s decision will
not be disturbed. . . . In determining whether there
has been an abuse of discretion, the ultimate issue is
whether the court could reasonably conclude as it did.
. . . Even if a court has acted improperly in connection
with the introduction of evidence, reversal of a judgment
is not necessarily mandated because there must
not only be an evidentiary [impropriety], there also must
be harm. . . .
‘‘This courtrecently articulated the test forthe admission
of expert testimony, which is deeply rooted in
common law. Expert testimony should be admitted
when: (1) the witness has a special skill or knowledge
directly applicable to a matter in issue, (2) that skill or
knowledge is not common to the average person, and
(3) the testimony would be helpful to the court or jury
in considering the issues. . . . In other words, [i]n
order to render an expert opinion the witness must be
qualified to do so and there must be a factual basis for
the opinion. . . .
‘‘It is well settled that [t]he true test of the admissibility
of [expert] testimony is not whether the subject
matter is common or uncommon, or whether many
persons or few have some knowledge of the matter;
but it is whether the witnesses offered as experts have
any peculiar knowledge or experience, not common to
the world, which renders their opinions founded on
such knowledge or experience any aid to the court or
the jury in determining the questions at issue. . . .
Implicit in this standard is the requirement . . . that
the expert’s knowledge or experience must be directly
applicable to the matter specifically in issue.’’(Citations
omitted; footnote omitted; internal quotation marks
omitted.) Sullivan v. Metro-North Commuter Railroad
Co., 292 Conn. 150, 157–59, 971 A.2d 676 (2009); see
also Conn. Code Evid. § 7-2.26
We conclude that the trial court did not abuse its
discretion in precluding Jenkins’ testimony. Once the
discrete factual issue of whether the defendant had, or
should have had, notice of the fact that Ferguson was
a child molester was eliminated by stipulation, the trial
court reasonably determined that Jenkins’ testimony
became irrelevant and would have confused the jury
in determining whether the defendant’s actions in
response to that knowledge constituted negligence.27
Further, with the propriety of the defendant’s actions
in this case being decided under a lay standard of care,
the trial court properly determined that Jenkins’ opinion
approached impermissible ultimate issue testimony.28
See, e.g., Conn. Code Evid. § 7-3 (a) (‘‘[t]estimony in
the form of an opinion is inadmissible if it embraces
an ultimate issue to be decided by the trier of fact,
except that . . . an expert witness may give an opinion
that embraces an ultimate issue where the trier of fact
needs expert assistance in deciding the issue’’). Thus,
we disagree with the defendant’s claim that the trial
court abused its discretion by precluding Jenkins’ testimony.
B
Hearsay Issues
The defendant’s next two evidentiary claims, namely,
that the trial court improperly: (1) admitted the deposition
testimony of Ferguson; and (2) sustained the plaintiff’s
objection to Gianelli’s testimony about whether
Peterson had informed him that Ferguson was treated
for sexual problems at the Saint Luke Institute, implicate
the residual exception to the hearsay rule.
By way of background, we note that ‘‘[o]ut-of-court
statements offered to establish the truth of the matter
asserted are hearsay. Such statements generally are
inadmissible unless they fall within an exception to the
hearsay rule. A hearsay statement that does not fall
within one of the traditional exceptions to the hearsay
rule nevertheless may be admissible under the residual
exception to the hearsay rule provided that [1] the proponent’s
use of the statement is reasonably necessary
and [2] the statement itself is supported by equivalent
guarantees of trustworthiness and reliability that are
essential to other evidence admitted under traditional
exceptions to the hearsay rule.’’ (Internal quotation
marks omitted.) In re Tayler F., 296 Conn. 524, 536,
995 A.2d 611 (2010); see also Conn. Code Evid. § 8-9.
‘‘We previously have identified several factors that
bear upon the trustworthiness and reliability of an outof-court
statement, including: (1) whether the circumstances
are such that a sincere and accurate statement
would naturally be uttered, and no plan of falsification
[could] be formed . . . (2) the closeness of the relationship
between the declarant and recipient . . . (3)
whether the statement was made spontaneously and
in confidence or obtained in response to government
questioning conducted in anticipation of litigation . . .
(4) the temporal proximity between the alleged statement
and the events to which the statement refers . . .
and (5) whether the declarant testifies at trial and is
subject to cross-examination.’’(Citations omitted; internal
quotation marks omitted.) State v. Skakel, 276 Conn.
633, 728–29, 888 A.2d 985, cert. denied, 549 U.S. 1030,
127 S. Ct. 578, 166 L. Ed. 2d 428 (2006). We review
the trial court’s determinations regarding reasonable
necessity and the statement’s trustworthiness underthe
abuse of discretion standard. In re Tayler F., supra,
296 Conn. 536.
1
Ferguson’s Deposition Testimony
The defendant claims that the trial court improperly
admitted the deposition testimony of Ferguson, which
was taken in 1997 during the litigation of another case,
in which Ferguson testified that he was treated only
for alcohol abuse at the Saint Luke Institute, and nothing
else. The defendant argues that the trial court
improperly determined that the deposition testimony
was ‘‘supported by equivalent guarantees of trustworthiness
and reliability’’ because the factual issues in the
1997 case were distinct from those presented here, and
it also was ‘‘riddled with self-serving omissions, halftruths,
and falsehoods,’’ along with Ferguson’s repeated
invocations of his privilege against self-incrimination
underthe fifth amendment to the United States constitution.29
In response, the plaintiff contends that the trial
court did not abuse its discretion because Ferguson’s
statement that he was treated only for alcohol abuse
was ‘‘reliable’’ and ‘‘accords with every other admissible
piece of documentary and testimonial evidence,’’
including marketing materials from the Saint Luke Institute,
letters from Peterson to Whealon, and the treatment
plan that the Saint Luke Institute devised for
Ferguson. The plaintiff also argues that this testimony
is consistent with Peterson’s theory that controlling
Ferguson’s alcoholism would control his pedophilia.30
We agree with the plaintiff, and conclude that the trial
court did not abuse its discretion by admitting Ferguson’s
1997 deposition testimony into evidence under
the residual exception.
The record reveals the following additional relevant
facts and procedural history. The plaintiff offered a
transcript of Ferguson’s 1997 deposition testimony to
prove that Ferguson was ‘‘never treated for sexual
abuse; that he was only treated for alcohol . . . .’’ The
defendant objected to the admission of the 1997 deposition
as hearsay not subject to any exception. In
response, the plaintiff contended that the deposition
testimony was appropriately obtained and used under
Practice Book § 13-331 because Ferguson was dead, it
was relevant to rebut the defendant’s claim that Ferguson
had been treated for pedophilia, and that it was
subject to the formertestimony and residual exceptions
to the hearsay rule. In particular, the plaintiff contended
that the residual exception applied because there was
‘‘absolute necessity’’ and it was ‘‘trustworthy because
it was under oath and it is consistent.’’ The plaintiff
emphasized the reliability of the deposition testimony
and the fact that not all questions of a sexual nature
were met with an invocation of the fifth amendment
privilege. Ultimately, the trial court admitted the 1997
deposition transcript as ‘‘clearly’’ within the residual
hearsay exception.
Numerous portions of the 1997 deposition transcript
were then read into evidence. That deposition testimony
indicated that Ferguson had received treatment
only for alcoholism at the Saint Luke Institute, and had
not been treated for his sexual attraction to minors.32
Ferguson then invoked his fifth amendment right
against self-incrimination when questioned about his
sexual attraction to minor males generally, and specifically
about his relationship with an underage male, K.
The defendant does not dispute that Ferguson’s death
rendered the use of the hearsay statement reasonably
necessary, and confines its arguments to whether the
statement had the requisite guarantees of trustworthiness
and reliability. We conclude that the trial court did
not abuse its discretion in concluding that Ferguson’s
statements had equivalent guarantees of trustworthiness
and reliability, notwithstanding the fact that the
legal issues in the 1997 civil action were not congruent
with those in the present case, insofar as that case
concerned whether the defendant had notice of Ferguson’s
propensities during an earlier time period. First,
the deposition was taken under oath, which is ‘‘a critical
component of the trustworthiness and reliability calculus.’’
State v. Faison, 112 Conn. App. 373, 384, 962 A.2d
860, cert. denied, 291 Conn. 903, 967 A.2d 507 (2009);
see id. (Guarantees of trustworthiness and reliability
did not exist when the declarant was friendly with the
defendant and ‘‘did not make his statements under oath,
a critical component of the trustworthiness and reliability
calculus. . . . Second, [he] made his statements to
a private investigator rather than law enforcement personnel.
As such, [he] did not face the prospect of prosecution
should his statements prove to be false.’’
[Citation omitted.]); State v. Henry, 72 Conn. App. 640,
663, 805 A.2d 823 (written statement lacked sufficient
reliability and trustworthiness when given to private
investigator, rather than police officer, and was not
under oath), cert. denied, 262 Conn. 917, 811 A.2d
1293 (2002).
Second, as the plaintiff points out, Ferguson’s testimony
that he was not treated for any sexual disorders
is consistent with the marketing materials provided by
the Saint Luke Institute, which do not mention that the
availability of such therapy, and the correspondence
between Whealon and Peterson, which addresses Ferguson’s
alcohol treatment in detail, and is silent about
the provision of treatment for any sexual disorder. This
corroboration provides further support for the reliability
of Ferguson’s deposition testimony. See State v.
Mourning, 104 Conn. App. 262, 280, 934 A.2d 263 (trial
court did not abuse its discretion by declining to admit
statement that declarant’s cellmate was shooter when
police officers could not corroborate that version of
events), cert. denied, 285Conn. 903, 938 A.2d 594 (2007).
Accordingly, we conclude that the trial court did not
abuse its discretion by admitting Ferguson’s deposition
into evidence under the residual exception.
2
Peterson’s Statements to Gianelli
The defendant’s final evidentiary claim is that the
trial court improperly sustained the plaintiff’s hearsay
objection to Gianelli’s testimony with respect to
Peterson’s statements to him about the nature of Ferguson’s
treatment at the Saint Luke Institute. The defendant
contends that this testimony was admissible under
the residual exception because it was necessary, given
that Peterson is dead, and his statements were sufficiently
trustworthy and reliable since they were made
in the context of Ferguson’s medical treatment. The
defendant also contends that this statement was not
hearsay because it was not admitted for the truth of
the matter asserted, namely, that Ferguson had in fact
been treated for his sexual problems, but rather, to
support the defendant’s reasonable belief that he had
received such treatment. In response, the plaintiff contends
that the trial court did not abuse its discretion
in sustaining his objection, and further, that any error
in the exclusion of this testimony was harmless. We
agree with the plaintiff and conclude that, even if we
assume without deciding that this testimony was not
hearsay, its exclusion nevertheless was harmless error
not requiring reversal.
The record reveals the following additional relevant
facts and procedural history. While cross-examining
Gianelli, the defendant informed the court of its desire
to inquire about whether Peterson had informed him
that Ferguson had been treated for sexual disorders at
the Saint Luke Institute. The plaintiff objected on the
ground that the proffered testimony was hearsay that
‘‘is offered . . . to prove that . . . Ferguson was
indeed treated for sexual problems.’’ The defendant
argued that it was admissible under the residual exception
to the hearsay rule and, alternatively, as nonhearsay
‘‘evidence of what . . . Gianelli was told. And whether
. . . it was true or not true, it’s still what he was told
by . . . Peterson.’’ The trial court then questioned Gianelli
about whether, if ‘‘Peterson told you that . . .
[Ferguson] received treatment for his sexual problems,
as well as alcoholism while he was at [the Saint Luke
Institute], did you share that information with anyone?’’
Gianelli responded that ‘‘I think I used a different term,
but . . . I think it’s in one of these memos. But I don’t
remember that. I wouldn’t want to answer that either
way.’’ The plaintiff observed that Gianelli had said no
when questioned similarly on direct, and Gianelli stated,
‘‘I’m not sure what I said, to be—it’s a vague thing
for me.’’ The trial court then sustained the plaintiff’s
objection without further elaboration.
Even if we assume, without deciding, that this testimony
was not hearsay because it was not offered to
prove the truth of the matter asserted, namely, that
Ferguson had in fact been treated for his sexual disorder
at the Saint Luke Institute; see, e.g., State v. Saucier,
283 Conn. 207, 223, 926 A.2d 633 (2007); this impropriety
does not necessarily require reversal. ‘‘When a court
commits an evidentiary impropriety, we will reverse
the trial court’s judgment only if we conclude that the
trial court’s improper ruling harmed the plaintiffs. . . .
In a civil case, a party proves harm by showing that
the improper evidentiary ruling likely affected the outcome
of the proceeding.’’ (Citation omitted.) Weaver v.
McKnight, 313 Conn. 393, 417, 97 A.3d 920 (2014); see
also, e.g., Duncan v. Mill Management Co. of Greenwich,
308 Conn. 1, 20–21, 60 A.3d 222 (2013) (factors
for assessing harm from evidentiary error). The defendant
has failed to establish that the exclusion of this
hearsay testimony affected the verdict. The defendant
does not point to any evidence that Gianelli communicated
Peterson’s claimed statement to his superiors,
and Gianelli’s own testimony is hazy on that point, as
he testified that he did not remember what had been
said. Thus, we conclude that any impropriety with
respect to this evidentiary ruling is harmless error not
requiring reversal.
III
LACHES
We next address the defendant’s claim that the trial
court improperly granted the plaintiff’s motion to strike
its special defense of laches.33 The defendant contends
that the Appellate Court’s decision in Giordano v. Giordano,
39 Conn. App. 183, 215–16, 664 A.2d 1136 (1995),
which held that laches was not an available defense
when a plaintiff had brought a claim for damages for
personal injuries arising from sexual abuse that was
timely under § 52-577d, was improperly decided. Specifically,
the defendant argues that Giordano, in holding
that laches was not an available defense because the
plaintiff’s claims were legal, rather than equitable, in
nature, improperly relies on an ‘‘archaic’’ distinction
between law and equity that no longer exists as a practical
matter. Instead, the defendant urges us to follow,
inter alia, Teamsters & Employers Welfare Trust of
Illinois v. Gorman Bros. Ready Mix, 283 F.3d 877,
880–81 (7th Cir. 2002), in support of its contention that
laches can be applied to shorten the statute of limitations
period in ‘‘appropriate cases,’’ when it is ‘‘equitable’’
to do so because of a ‘‘ ‘culpable delay in suing’ ’’
that has caused the defendant to suffer harm. Although
the plaintiff’s brief fails to respond to this claim, we
disagree with the defendant and conclude that the trial
court properly struck the defendant’s laches special
defense.
‘‘Because a motion to strike challenges the legal sufficiency
of a pleading and, consequently, requires no
factual findings by the trial court, our review of the
court’s ruling on [a motion to strike] is plenary. . . .
A party wanting to contest the legal sufficiency of a
special defense may do so by filing a motion to strike.
The purpose of a special defense is to plead facts that
are consistent with the allegations of the complaint
but demonstrate, nonetheless, that the plaintiff has no
cause of action. . . . In ruling on a motion to strike,
the court must accept as true the facts alleged in the
special defenses and construe them in the manner most
favorable to sustaining theirlegal sufficiency.’’(Internal
quotation marks omitted.) TD Bank, N.A. v. M.J. Holdings,
LLC, 143 Conn. App. 322, 326, 71 A.3d 541 (2013);
see also, e.g., Mueller v. Tepler, 312 Conn. 631, 646–47,
95 A.3d 1011 (2014).
‘‘Laches consists of an inexcusable delay which prejudices
the defendant. . . . We have said on other occasions
that [t]he defense of laches does not apply unless
there is an unreasonable, inexcusable, and prejudicial
delay in bringing suit. . . . Delay alone is not sufficient
to bar a right; the delay in bringing suit must be unduly
prejudicial.’’ (Citations omitted; internal quotation
marks omitted.) Cummings v. Tripp, 204 Conn. 67, 88,
527 A.2d 230 (1987); see also, e.g., State v. Lombardo
Bros. Mason Contractors, Inc., 307 Conn. 412, 417 n.3,
54A.3d 1005 (2012). The defense oflaches has, however,
only limited applicability. ‘‘Laches is purely an equitable
doctrine, is largely governed by the circumstances, and
is not to be imputed to one who has brought an action
at law within the statutory period.’’ (Internal quotation
marks omitted.) State v. Lombardo Bros. Mason Contractors,
Inc., supra, 417 n.3, quoting A. Sangivanni &
Sons v. F. M. Floryan & Co., 158 Conn. 467, 474, 262
A.2d 159 (1969).
The Appellate Court’s decision in Giordano v. Giordano,
supra, 39 Conn. App. 183, is a paradigmatic example
of the application of the principle that laches does
not apply when a plaintiff has brought an action seeking
legal relief within the statutory limitations period. In
Giordano, the Appellate Court rejected the defendant’s
claim that § 52-577d ‘‘unfairly abrogates his right to
assert the equitable defense of laches’’ because the
plaintiffs’ delay in bringing an action against him had
‘‘severely prejudiced’’ his ability to defend against the
plaintiffs’ allegations of childhood sexual abuse. Id.,
212–13. Relying on A. Sangivanni & Sons v. F. M.
Floryan & Co., supra, 158 Conn. 474, the Appellate
Court determined that the ‘‘defendant misunderstands
the nature of a laches defense,’’ holding that laches is
‘‘not . . . a substantive right that can be asserted in
both legal and equitable proceedings,’’ and only ‘‘is an
equitable defense allowed at the discretion of the trial
court in cases brought in equity.’’ (Emphasis omitted.)
Giordano v. Giordano, supra, 214. Thus, the Appellate
Court concluded that the ‘‘defendant’s claim . . . that
the legislature has abrogated his right to assert a
defense of laches in this case, is simply incorrect. The
plaintiffs’ claim against the defendant sounds in tort,
which is a legal, not equitable, action.’’34 Id., 216.
Agreeing with the defendant’s argument that Giordano
was wrongly decided would require us to overrule
the well established principle that laches ‘‘is purely an
equitable doctrine, is largely governed by the circumstances,
and is notto be imputed to one who has brought
an action at law within the statutory period.’’ A. Sangivanni
& Sons v. F. M. Floryan & Co., supra, 158 Conn.
474. This would require us to jettison a lengthy body
of precedent35 that is consistent with the ‘‘overwhelming
majority’’ of jurisdictions that have considered this
issue. See Naccache v. Taylor, 72 A.3d 149, 154 and
n.9 (D.C. 2013) (collecting cases). Doing so, however,
would not be supported by ‘‘the most cogent reasons
and inescapable logic’’ that is required by the doctrine
of stare decisis. Perry v. Perry, 312 Conn. 600, 615, 95
A.3d 500 (2014). As the District of Columbia Court of
Appeals recently observed, ‘‘[e]ven if we were to come
to this issue on a clean slate, we see little to gain and
much to lose by applying the equitable defense of laches
to cut off claims at law. . . . [S]uch claims are already
governed by statutes of limitations that have been
decided upon by the legislature. An express limitations
period reflects a legislative value judgment striking the
appropriate balance between the interests promoted by
the statute and countervailing interests of repose. . . .
The legislature determines the point at which the interests
in favor of protecting valid claims are outweighed
by the interests in prohibiting the prosecution of stale
ones. . . . In some special cases, as here, the legislature
has decided, based on fairness concerns, that a
plaintiff may have an additional or indefinite amount
of time to file suit. . . .
‘‘To import laches as a defense to actions at law
would pit the legislative value judgment embodied in
a statute of limitations . . . against the equitable determinations
of individual judges. Judges could disallow
claims that the legislature had already determined were
timely brought. Yet [m]odern statutes of limitations
. . . embody the notion that fixing the periods for
bringing damages actions is a legislative function. . . .
Thus, to import laches as a defense to actions of law
would alter the balance of power between legislatures
and courts regarding the timeliness of claims.’’ (Citations
omitted; emphasis omitted; footnotes omitted;
internal quotation marks omitted.) Naccache v. Taylor,
supra, 72 A.3d 155–56, quoting Ivani Contracting Corp.
v. New York, 103 F.3d 257, 260 (2d Cir. 1997). Thus,
based on these ‘‘separation of powers and administra-
tive concerns . . . we conclude that the line between
legal and equitable claims vis-a´-vis laches is still sound,
and we decline to disturb it. In cases at law, where the
legislature has determined through a statute of limitations
that the door for bringing suit should remain open
for a predetermined period of time, it should not be
left to a judge’s discretion to close that door early.’’36
Naccache v. Taylor, supra, 157. Accordingly, we conclude
that the trial court properly granted the plaintiff’s
motion to strike the defendant’s laches defense.
IV
STATE CONSTITUTIONAL CLAIM
Finally, we turn to the defendant’s claim that the
retroactive application of the extended sexual abuse
statute of limitations, § 52-577d, to revive the plaintiff’s
time barred action violated its substantive due process
rights under article first, §§ 8 and 10, of the Connecticut
constitution because the defendant had a vested right
to a defense under the lapsed statute of limitations.37
Acknowledging that such revival is permissible under
the due process clause of the fourteenth amendment
to the United States constitution; see, e.g., Chase Securities
Corp. v. Donaldson, 325 U.S. 304, 311–13, 65 S.
Ct. 1137, 89 L. Ed. 1628 (1945); Campbell v. Holt, 115
U.S. 620, 629, 6 S. Ct. 209, 29 L. Ed. 483 (1885); the
defendant furnishes a comprehensive analysis in accordance
with State v. Geisler, 222 Conn. 672, 684–86, 610
A.2d 1225 (1992), and contends that the state constitution
affords it greater protection against retroactive
revival than does the federal constitution. In its Geisler
analysis, the defendant points to, inter alia: (1) constitutional
language in article first, § 10, guaranteeing ‘‘right
and justice administered without . . . delay’’ as indicating
that ‘‘undue delay in the administration of justice
is unconstitutional’’; (2) decisions from this court, starting
with Goshen v. Stonington, 4 Conn. 209 (1822),
suggesting that infringements on vested rights, such as a
statute of limitations defense, are subject to heightened
constitutional scrutiny; (3) numerous decisions from
sister state courts rejecting the Supreme Court’s decisions
in Chase Securities Corp. and Campbell as a matter
of state constitutional law; (4) the historical fact
that statutes of limitations existed well before the state
constitutional convention in 1818; and (5) economic and
sociological considerations establishing thatreviving an
expired cause of action does ‘‘enormous . . . harm,’’
by interfering with persons’ and businesses’ right to
plan their affairs and complicating the defense of very
old cases such as this one, wherein many of the witnesses
and actors are dead or extremely elderly, and
many of the relevant records have long since been
destroyed subject to routine document retention
policies.
In response, the plaintiff contends that there is no
constitutional defect because under Roberts v. Caton,
224 Conn. 483, 619 A.2d 844 (1993), ‘‘no vested or substantive
rights are at stake in revival of expired claims
brought pursuant to . . . § 52-577d.’’ The plaintiff then
contends that, because § 52-577d does not implicate
any fundamental rights, our review of that statute’s
constitutionality is limited to determining whether the
legislature had a rational basis for enacting it, noting
thatthe statute serves a legitimate purpose by ‘‘help[ing]
minor victims of sexual abuse come to terms with what
has happened to them,’’ often many years later. The
plaintiff then provides additional support for rational
basis review, rather than heightened scrutiny, of § 52-
577d by supplying his own Geisler analysis that relies
primarily on Chase Securities Corp. v. Donaldson,
supra, 325 U.S. 304, and Campbell v. Holt, supra, 115
U.S. 620, and sister state decisions following them in
holding that the revival of a nonstatutory cause of action
is not a due process violation. The plaintiff further
emphasizes that the state court decisions that support
the defendant are distinguishable because they are
based on independent principles of state law, such as
state constitutional provisions barring the enactment
of retroactive legislation of any kind, which differ from
those long followed in Connecticut. Finally, the plaintiff
contends that, as a policy matter, he was equally disadvantaged
by the loss of witnesses and documents occasioned
by the passage of time. We agree with the
plaintiff, and conclude that the application of § 52-577d
retroactively to revive a time barred cause of action
does not violate a defendant’s substantive due process
rights under the Connecticut constitution because it is
a rational response by the legislature to the exceptional
circumstances and potential for injustice faced by
adults who fell victim to sexual abuse as a child.
Determining the ‘‘constitutionality of a statute presents
a question of law over which ourreview is plenary.
. . . It [also] is well established that a validly enacted
statute carries with it a strong presumption of constitutionality,
[and that] those who challenge its constitutionality
must sustain the heavy burden of proving its
unconstitutionality beyond a reasonable doubt. . . .
The court will indulge in every presumption in favor of
the statute’s constitutionality . . . . Therefore, [w]hen
a question of constitutionality is raised, courts must
approach it with caution, examine it with care, and
sustain the legislation unless its invalidity is clear.’’
(Internal quotation marks omitted.) Kerrigan v. Commissioner
of Public Health, 289 Conn. 135, 155, 957
A.2d 407 (2008).
In examining the constitutionality of § 52-577d under
our state constitution, we recognize that, ‘‘[a]lthough
earlier case law indicated that the due process provisions
of both constitutions have the same meaning and
the same limitations . . . more recent case law has
suggested that our state constitution may, in certain
instances, afford greater substantive due process rights
than the federal constitution. For example, in Fair
Cadillac-Oldsmobile Isuzu Partnership v. Bailey, [229
Conn. 312, 316, 640 A.2d 101 (1994)], a case involving
a substantive due process challenge brought under the
state constitution, we stated: It is beyond dispute that
we are not bound by federal precedents in interpreting
our own state constitutional provisions. [F]ederal decisional
law is not a lid on the protections guaranteed
under our state constitution.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Ramos v. Vernon, 254 Conn. 799, 836–37, 761 A.2d
705 (2000).38
It is ‘‘axiomatic’’ that article first, § 10, of the Connecticut
constitution ‘‘not only guarantees fair procedures
in any governmental deprivation of life, liberty, or property,
but also encompasses a substantive sphere . . .
barring certain government actions regardless of the
fairness of the procedures used to implement them
. . . . This basic protection embodies the democratic
principle that the good sense of mankind has at last
settled down to this: that [due process was] intended
to secure the individual from the arbitrary exercise of
the powers of government, unrestrained by the established
principles of private right and distributive justice.
. . .
‘‘Despite the important role of substantive due process
in securing our fundamental liberties, that guarantee
does not entail a body of constitutional law imposing
liability whenever someone cloaked with state authority
causes harm. . . . Rather, substantive due process has
been held to protect against only the most arbitrary
and conscience shocking governmental intrusions into
the personal realm . . . .’’ (Internal quotation marks
omitted.) Id., 835–36.
‘‘[O]ur jurisprudence has identified a starting point
for discovering fundamental rights guaranteed protection
under our state constitution from arbitrary and
conscience shocking governmental intrusions into the
personal realm . . . .’’ (Internal quotation marks omitted.)
Id., 838. ‘‘In determining the scope of our state
constitution’s due process clauses, we have taken as a
point of departure those constitutional or quasi-constitutional
rights that were recognized at common law
in this state prior to 1818.’’ (Internal quotation marks
omitted.) Id.
‘‘The analytical framework by which we determine
whether, in any given instance, our state constitution
affords broader protection to our citizens than the federal
constitutional minimum is well settled. In State v.
Geisler, [supra, 222 Conn. 684–86], we enumerated the
following six factors to be considered in determining
that issue: (1) persuasive relevant federal precedents;
(2) the text of the operative constitutional provisions;
(3) historical insights into the intent of our constitutional
forebears; (4) related Connecticut precedents;
(5) persuasive precedents of other state courts; and (6)
contemporary understandings of applicable economic
and sociological norms, or as otherwise described, relevant
public policies. . . .
‘‘The Geisler factors serve a dual purpose: they
encourage the raising of state constitutional issues in
a manner to which the opposing party—the state or the
defendant—can respond; and they encourage a principled
development of our state constitutional jurisprudence.
Although in Geisler we compartmentalized the
factors that should be considered in order to stress that
a systematic analysis is required, we recognize that they
may be inextricably interwoven. . . . [N]ot every
Geisler factor is relevant in all cases. . . . Moreover,
a proper Geisler analysis does not require us simply to
tally and follow the decisions favoring one party’s state
constitutional claim; a deeperreview of those decisions’
underpinnings is required because we follow only persuasive
decisions.’’ (Citations omitted; internal quotation
marks omitted.) State v. Jenkins, 298 Conn. 209,
261–62, 3 A.3d 806 (2010).
Finally, our determination of whether the state constitution
affords greater protection than does the federal
constitution will dictate the level of judicial review
that we ultimately apply to § 52-577d. See, e.g., Contractor’s
Supply of Waterbury, LLC v. Commissioner of
Environmental Protection, 283 Conn. 86, 98–101, 925
A.2d 1071 (2007); Kerrigan v. Commissioner of Public
Health, supra, 289 Conn. 174–75. Like the federal constitution,
substantive due process analysis under the state
constitution ‘‘provides for varying levels of judicial
review to determine whether a state statute or regulation
passes constitutional muster in terms of substantive
due process.’’ Fair Cadillac-Oldsmobile Isuzu
Partnership v. Bailey, supra, 229 Conn. 317–18. Similar
to the analysis followed to determine equal protection
challenges, statutes that ‘‘[impair] a fundamental constitutional
right [or target] a suspect class . . . require
that this court apply strict scrutiny to determine
whether the statute passes muster under our state constitution.’’
Id., 318. Constitutional challenges to ordinary
‘‘economic or social welfare legislation’’ require us to
employ a rational basis test to ‘‘[ascertain] whether the
legislature has acted arbitrarily or irrationally.’’ (Internal
quotation marks omitted.) Id. To determine the
applicable level of judicial review, we now turn to the
Geisler analysis.
A
Constitutional Language
We begin with the relevant constitutional language.
Article first, § 8, of the Connecticut constitution provides
in relevant part: ‘‘No person shall . . . be
deprived of life, liberty or property without due process
of law . . . .’’ Its civil counterpart, which is set forth
in article first, § 10, of the Connecticut constitution
provides: ‘‘All courts shall be open, and every person,
for an injury done to him in his person, property or
reputation, shall have remedy by due course of law,
and right and justice administered without sale, denial
or delay.’’39 This Geisler factor does not favor either
party, as this generally phrased constitutional language
is at best ambiguous with respect to the constitutional
issue presented in this appeal.
Although, the language in article first, § 10, of the
Connecticut constitution that addresses the right to the
administration of justice ‘‘without . . . delay’’ reasonably
could be read as supporting the defendant’s argument
that an extended limitations period reviving a
decades old cause of action runs afoul of that constitutional
guarantee,40 that is not the only plausible reading
of the provision. Other language in the section assures
a ‘‘remedy by due course of law,’’ which implicitly supports
the constitutionality of revisions to statutes of
limitations providing parties with more time to seek
damages in cases wherein their injuries either were not
readily apparent when suffered, or other factors, such
as psychological trauma, kept them from coming forward
with their claims.41 See part IV F of this opinion.
Accordingly, we conclude that the constitutional language
factor is neutral.
B
Constitutional History
As the parties acknowledge, there is no constitutional
history on point from the proceedings of the 1818 or
1965 constitutional conventions. Nevertheless, we conclude
that our state’s constitutional history provides
support for the plaintiff, given ‘‘the historical record of
the period before and at the time of the adoption of
the provision[s]’’ at issue. State v. Ayala, 222 Conn. 331,
349, 610 A.2d 1162 (1992). First, statutes of limitations
are long rooted in Connecticut’s legal history, some
predating the enactment of the 1818 constitution. See
Sanborn v. Greenwald, 39 Conn. App. 289, 300, 664 A.2d
803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995);
see also Lombard v. Edward J. Peters, Jr., P.C., 79
Conn. App. 290, 298, 830 A.2d 346 (2003) (‘‘genesis’’ of
personal injury statute of limitations, General Statutes
§ 52-584, ‘‘can be found in 1853 legislation providing for
recovery in negligence against railroad companies’’);
Sanborn v. Greenwald, supra, 300–301 (noting that General
Statutes § 52-577, general tort statute of limitations,
has existed since 1821).
It is significant then, that in the years leading to the
adoption of our first constitution in 1818, that the legislature
had acted to revive time barred actions in a way
that affected vested rights, in particular by adopting a
1795 resolution that set aside a 1793 probate court
decree, which otherwise could not be appealed because
the eighteen month statute of limitations had lapsed.
See Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L. Ed. 648
(1798). That 1795 resolution had the effect of disturbing
rights to real property that otherwise had vested under
the 1793 probate court decree. Id., 386–87; see also id.,
401 (establishing that ex post facto clause applies only
in criminal cases). That the framers of the 1818 constitution
did not act to preclude retroactive revival of time
barred claims, in the face of a dispute centered on that
point that went to the United States Supreme Court,
suggests that the right claimed by the defendant did
not exist in the 1818 constitution, which ‘‘did not create
a government but gave to that which had already been
established the sanction of the people and, in very general
language, formulated its framework.’’ Dowe v.
Egan, 133 Conn. 112, 119, 48 A.2d 735 (1946). Accordingly,
we conclude that the constitutional history factor
favors the plaintiff in the present case.
C
Federal Case Law
The relevant federal case law strongly favors the
plaintiff, and virtually begs the state constitutional question
presented in the present appeal. Specifically, the
two leading decisions from the United States Supreme
Court, Campbell v. Holt, supra, 115 U.S. 620, and Chase
Securities Corp. v. Donaldson, supra, 325 U.S. 304, hold
that a defendant does not have a vested property right
in a statute of limitations defense such that a legislative
change reviving an otherwise time barred cause of
action violates the defendant’s rights under the due
process clause of the fourteenth amendment to the
United States constitution.
Campbell, the leading federal case in this area, was
a contracts case from the reconstruction era in which
the United States Supreme Courtrejected a due process
challenge to a provision of the Texas state constitution
that had been interpreted to revive actions that had
become time barred between the end of the Civil War
and the reinstatement of Texas to the union by the
Congress of the United States. Campbell v. Holt, supra,
115 U.S. 621–22. Distinguishing a defense to a cause of
action from title to real or personal property derived
by the passage of time, such as by adverse possession,
the Supreme Court rejected the defendants’ claim that
the statute of limitations defense ‘‘is a vested right, and
a right of property which is protected by the provisions
of the [f]ourteenth [a]mendment.’’ Id., 628; see also id.
(‘‘the word[s] vested right [are] nowhere used in the
[c]onstitution, neither in the original instrument nor in
any of the amendments to it’’). The Supreme Court
characterized statutes of limitations as restrictions only
on the remedy, and emphasized that ‘‘[t]he authorities
. . . show that no right is destroyed when the law
restores a remedy which had been lost.’’ Id.42
The United States Supreme Court unanimously reaffirmed
the holding of Campbell in Chase Securities
Corp. v. Donaldson, supra, 325 U.S. 304, which was a
challenge to a revised Minnesota ‘‘Blue Sky’’ law that
had the effect of reviving certain lapsed securities civil
actions. See id., 307–308. Endorsing Campbell’s constitutional
‘‘hypothesis’’ that ‘‘statutes of limitation go to
matters of remedy, not to destruction of fundamental
rights,’’ the court described them as ‘‘practical and pragmatic
devices to spare the courts from litigation of stale
claims, and the citizen from being put to his defense
after memories have faded, witnesses have died or disappeared,
and evidence has been lost. . . . They are
by definition arbitrary, and their operation does not
discriminate between the just and the unjust claim, or
the voidable and unavoidable delay. They have come
into the law not through the judicial process but through
legislation. They represent a public policy about the
privilege to litigate. Their shelter has never been
regarded as what now is called a ‘fundamental’ right
or what used to be called a ‘natural’ right of the individual.
He may, of course, have the protection of the policy
while it exists, but the history of pleas of limitation
shows them to be good only by legislative grace and
to be subject to a relatively large degree of legislative
control.’’ (Citation omitted; emphasis added; footnote
omitted.) Id., 314. Thus, the Supreme Court held that
the ‘‘[f]ourteenth [a]mendment does not make an act
of state legislation void merely because it has some
retrospective operation. What it does forbid is taking
of life, liberty or property without due process of law.
Some rules of law probably could not be changed retroactively
without hardship and oppression, and this
whether wise or unwise in their origin. Assuming that
statutes of limitation, like other types of legislation
could be so manipulated that their retroactive effects
would offend the [c]onstitution, certainly it cannot be
said that lifting the bar of a statute of limitation so
as to restore a remedy lost through mere lapse of time
is per se an offense against the [f]ourteenth [a]mendment.’’43
(Emphasis added.) Id., 315–16.
The rule of Campbell and Chase Securities Corp.,
namely, that there is no absolute vested right in a statute
of limitations defense absent entry of a final judgment,
remains controlling as a matter of federal due process.44
See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,
229, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995); Johnston
v. Cigna Corp., 14 F.3d 486, 492–93 (10th Cir. 1993).
Thus, the federal courts review constitutional challenges
to statutes that revive otherwise time barred
actions using the rational basis test applicable to economic
regulation, under which the ‘‘relevant inquiry
is whether or not the legislation serves a legitimate
legislative purpose that is furthered by rational means.’’
Shadburne-Vinton v. Dalkon Shield Claimants Trust,
60 F.3d 1071, 1076 (4th Cir. 1995); see also, e.g., Campa-
nelli v. Allstate Life Ins. Co., 322 F.3d 1086, 1100 (9th
Cir. 2003) (challenge to statute reviving time barred
insurance claims arising from major earthquake is ‘‘retrospective
economic legislation [that] must only pass
rational basis review’’); Shadburne-Vinton v. Dalkon
Shield Claimants Trust, supra, 1077 (amendment of
state statute of repose that revived time barred claims
for injuries caused by use of intrauterine devices was
‘‘rationally related to a legitimate legislative purpose’’
because decade had passed between injuries and discovery
of their cause); Wesley Theological Seminary
v. United States Gypsum Co., 876 F.2d 119, 122 (D.C.
Cir. 1989) (The court rejected a due process challenge
to the amendment of a statute of repose that revived
time barred actions against an asbestos manufacturer
because ‘‘[w]e cannot say it is irrational for the [trial
court] to decide that the losses due to defects in building
materials discovered long after installation should fall
on the supplier rather than the building’s owner’’ and
the ‘‘defendant’s equities are not especially powerful;
the statute of repose became law only in 1972 . . .
about 12 years after the last building at issue was completed.
Thus [the] defendant made the sales without
reliance on the statute.’’ [Citation omitted.]). The federal
case law factor, therefore, strongly supports the
plaintiff.
D
Connecticut Case Law
We conclude that Connecticut case law supports the
plaintiff, both with respect to cases concerning § 52-
577d and other statutes of limitations specifically, and
also as to the constitutionality of retroactive legislation
affecting existing legal rights as a more general matter.
1
Section 52-577d and Other Statutes of Limitations
With respect to § 52-577d itself, we deem particularly
instructive this court’s construction of that statute in
Roberts v. Caton, supra, 224 Conn. 483. In Roberts, this
court considered, as a matter of statutory construction,
whether the legislature intended the 1991 amendments
to § 52-577d, which expanded the statute of limitations
from two to seventeen years, to apply retroactively to
revive the plaintiff’s otherwise untimely cause of action
against her grandfather. Id., 485–88; see also footnote
37 of this opinion. Relying on the distinction between
substantive and procedural legislation discussed in,
inter alia, Moore v. McNamara, 201 Conn. 16, 513 A.2d
660 (1986), Andrulat v. Brook Hollow Associates, 176
Conn. 409, 407 A.2d 1017 (1979), and Jones Destruction,
Inc. v. Upjohn, 161 Conn. 191, 286 A.2d 308 (1971), this
court concluded that the legislature intended the 1991
amendments to § 52-577d to apply retroactively.Roberts
v. Caton, supra, 488. In so concluding, this court emphasized
the ‘‘general proposition that statutes of limitation
are presumed to apply retroactively,’’ insofar as they
are typically considered procedural, rather than substantive,
legislation; thus, ‘‘unless specifically tied to a
statutory right of action or unless a contrary legislative
intent is expressed, the statute of limitations in effect
at the time an action is filed governs the timeliness of
the claim.’’45 Id., 488–89. In declining to depart from the
presumption of retroactivity, this court observed that
neither the statute’s language nor the legislative history
supported an interpretation of prospective application
only. Id., 489.
This court then rejected, inter alia, the defendant’s
argument that ‘‘§ 52-577d as amended altered [his] substantive
rights by expanding the period of liability by
fifteen years,’’ and disagreed with his ‘‘suggest[ion] that
a new liability is imposed by the mere fact that a preexisting
liability is no longer barred by the passage of
time.’’ Id., 492. Observing that ‘‘[s]ubstantive rights are
those that can be identified as existing between the
parties at the time the cause of action accrued’’; id.,
490; this court rejected the defendant’s argument that
‘‘§ 52-577d as amended imposed new liabilities’’; id.;
emphasizing that it ‘‘has never recognized a vested right
in the lapsing of a statute of limitations. Although
changes in the statute of limitations may not retroactively
bar actions already pending . . . they do govern
actions brought subsequent to the effective date of the
amended statute. . . . We have consistently interpreted
the limitations period to be part of the remedy alone,
unless the statute in which the period of limitations is
found itself creates the right. . . . Therefore, the
expansion or reduction alone of the period of limitations,
if the statute in which the limitations period is
fixed does not also create the right of action, does
not by itself alter a substantive right. We conclude,
therefore, that § 52-577d as amended did not create a
substantive change in the law that would preclude its
retroactive application.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Id., 492;
accord Gilbert v. Selleck, 93 Conn. 412, 418, 106 A.
439 (1919) (following Campbell in rejecting federal due
process challenge to statute thatrevived otherwise time
barred action for contractual indemnity, observing that
‘‘statute was the creation of the legislative will, and its
repeal did not affect the debt; it merely again permitted
the enforcement of an existing obligation’’); Skidmore,
Owings & Merrill v. Connecticut General Life Ins. Co.,
25 Conn. Supp. 76, 87, 197 A.2d 83 (1963) (citing Gilbert
for proposition that there is ‘‘no vested right in the
bar of the statute’’). We acknowledge, however, that
Roberts does not state a doctrinal basis for its observation
that this court ‘‘has never recognized a vested right
in the lapsing of a statute of limitations’’; Roberts v.
Caton, supra, 224 Conn. 492; thus suggesting that the
defendant’s state constitutional claim is not squarely
barred by this court’s precedent.
Further, and of additional import under the Geisler
factor addressing public policy considerations; see part
IV F of this opinion; the court in Roberts rejected the
defendant’s claim that, ‘‘even if we find that § 52-577d as
amended is procedural, it should not apply retroactively
because considerations of good sense and justice dictate
otherwise.’’ Roberts v. Caton, supra, 224 Conn. 492.
The court acknowledged that the ‘‘retroactive application
of § 52-577d as amended to this case subjects the
defendant to a lawsuit for acts that occurred, most
recently, thirteen years ago’’; id., 493; but went on to
observe that, ‘‘[a]lthough statutes of limitation generally
operate to prevent the unexpected enforcement of stale
claims . . . one object of § 52-577d is to afford a plaintiff
sufficient time to recall and come to terms with
traumatic childhood events before he or she must take
action. The defendant’s assertion that he is now unexpectedly
exposed to liability was an express purpose of
the statute. We see no injustice in retroactively applying
§ 52-577d as amended so as to effect that purpose.’’
(Citation omitted; footnote omitted.) Id., 493–94; see
also Giordano v. Giordano, supra, 39 Conn.App. 190–92
(rejecting federal equal protection and procedural due
process challenge to 1991 amendments to § 52-577 [d]
under rational basis review because of state’s ‘‘legitimate
interest’’ in ‘‘ allow[ing] victims to recall sexual
abuse that had been repressed, and to bring an action
against the perpetrators of that abuse as part of the
victim’s healing process,’’ particularly given that plaintiffs
and defendants were affected equally by passage
of time); Almonte v. New York Medical College, 851 F.
Supp. 34, 37–38 (D. Conn. 1994) (noting ‘‘[l]egislature’s
intent to broaden the remedies available to victims of
sexual abuse through the extended limitations period’’
and that it ‘‘recogniz[ed] that it may take years for a
victim to come to terms with the sexual abuse’’ or
‘‘identify those responsible’’).
In its reply brief and at oral argument before this
court, the defendant relied heavily on our recent decision
in Investment Associates v. Summit Associates,
Inc., 309 Conn. 840, 74 A.3d 1192 (2013), which concluded,
as a matter of statutory construction, that General
Statutes § 52-598 (c) is ‘‘not substantive’’ and
applied retroactively to ‘‘revive’’ an unexpired Connecticut
judgment to enable its enforcement in other states
that have shorter statutory enforcement periods. Id.,
868–69. In so holding, we observed in a footnote that
certain sister state ‘‘cases indicate thatretroactive application
is proper if the period for enforcing the underlying
judgment has not yet expired,’’ and we
acknowledged the defendant’s argument against retroactive
application, founded on State v. Skakel, supra,
276 Conn. 670, and State v. Crowell, 228 Conn. 393,
398–99, 636 A.2d 804 (1994), namely, that ‘‘§ 52-598 (c)
is not akin to a statute of limitations, but, ‘even if the
statute were viewed as related to a statute of limitations,
a statute that would modify an expired statute of limitations
cannot be applied retroactively.’’ (Emphasis
altered.) Investment Associates v. Summit Associates,
Inc., supra, 869 n.17.
Although we declined to consider this argument in
Investment Associates because it was not properly preserved;
see id.; the defendant argues that what we did
say about the merits in Investment Associates is ‘‘suggestive,’’
and that there is, therefore, some significance
in the plaintiff’s failure to address Skakel in his brief.
We disagree. The constitutional considerations
informing the statutory construction analysis in Skakel
and Crowell are unique to the criminal context, wherein
‘‘a law enacted after expiration of a previously applicable
limitations period violates the [e]x [p]ost [f]acto
[c]lause [of the federal constitution] when it is applied
to revive a previously time barred prosecution . . .
because it deprives the defendant of a fully vested
defense to prosecution, the constitution does not prevent
the [s]tate from extending time limits . . . for
prosecutions not yet time barred.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
State v. Skakel, supra, 276 Conn. 681, quoting Stogner
v. California, 539 U.S. 607, 632–33, 123 S. Ct. 2446, 156
L. Ed. 2d 544 (2003); see also Weaver v. Graham, 450
U.S. 24, 28, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981). Put
differently, nothing in footnote 17 ofInvestment Associates,
including the citations therein, should be read to
reflect our understanding of the constitutional implications
of the retroactive revival of time barred civil
actions, given the United States Supreme Court’s decisions
in Campbell v. Holt, supra, 115 U.S. 620, and Chase
Securities Corp. v. Donaldson, supra, 325 U.S. 304,
which are not cited in Investment Associates. See also
State v. Skakel, supra, 682 (The court cites Roberts and
concludes that ‘‘subject to the limitations of the ex post
facto clause, criminal statutes of limitation . . . should
be accorded a presumption of retroactivity. Indeed, we
long have held that civil statutes of limitation are presumed
to apply retroactively because they do not affect
or alter substantive rights.’’).
Nevertheless, we remain cognizant that statutes of
limitations ‘‘represent a legislative judgment46 about the
balance of equities in a situation involving the tardy
assertion of otherwise valid rights: [t]he theory is that
even if one has a just claim it is unjust not to put
the adversary on notice to defend within the period of
limitation and that the right to be free of stale claims
in time comes to prevail over the right to prosecute
them.’’ (Footnote added; internal quotation marks omitted.)
Id. ‘‘The purpose of a statute of limitations is to
prevent stale claims and unnecessary delays in the presentation
of issues. . . . A plaintiff’s timely filed action
provides notice to the defendant and ensures that the
defendant does not find itself in a situation where,
because of the lapse of time, [the defendant] is unable
to gather facts, evidence, and witnesses necessary to
afford . . . a fair defense. . . . Statutes of limitations
also allow persons, after the lapse of a reasonable time,
to plan their affairs with a reasonable degree of certainty,
free from the disruptive burden of protracted and
unknown potential liability . . . .’’ (Citations omitted;
internal quotation marks omitted.) Electrical Contractors,
Inc. v. Ins. Co. of the State of Pennsylvania, 314
Conn. 749, 768–69, 104 A.3d 713 (2014). Thus, we
acknowledge that statutes of limitations have an
important place in our civil justice system, and defendants
have a strong interest in their lapse.
2
Connecticut Constitutional Case Law concerning
Retroactive Legislation
This court’s construction of § 52-577d in Roberts v.
Caton, supra, 224 Conn. 483, accords with its approach
to retroactive legislation more generally, beginning
nearly two centuries ago with Chief Justice Stephen
Hosmer’s opinion in Goshen v. Stonington, supra, 4
Conn. 209. In Goshen, this court upheld 1820 legislation
that retroactively validated marriages in order to help
determine the towns’ support obligations to their poor
residents. Id., 223; see id., 209–10.Addressing a constitutional
challenge to the retroactive effect of the 1820
legislation, the court observed that the ‘‘retrospection
of the act is indisputable, and equally so is its purpose
to change the legal rights of the litigating parties,’’
giving rise to the question of ‘‘[w]hether in doing this
there has been injustice . . . .’’47 (Emphasis added.)
Id., 221. The court noted that ‘‘[i]t is universally admitted,
and unsusceptible of dispute, that there may be
retrospective laws impairing vested rights, which are
unjust, neither according with sound legislation, nor
the fundamental principles ‘of the social compact.’ If,
for example, the legislature should enact a law, without
any assignable reason, taking from A. his estate, and
giving it to B., the injustice would be flagrant, and the
act would produce a sensation of universal insecurity.’’
Id. Nevertheless, the court went on to conclude that
‘‘laws of a retroactive nature, affecting the rights of
individuals, not adverse to equitable principle, and
highly promotive of the general good, have often been
passed, and as often approved.’’ (Emphasis added.) Id.
Applying this standard, this court held that the 1820
legislation, ‘‘thus far directly operating on vested rights,
is admitted to be unquestionably valid, because it is
manifestly just.’’ (Emphasis added.) Id., 222. Observing
that Connecticut’s constitution, unlike that of other
states, lacks an express prohibition of retroactive legislation;
id., 223; Chief Justice Hosmer emphasized his
disagreement with ‘‘those, who deny the power of the
legislature to make laws, in any case, which, with entire
justice, operate on antecedent legal rights. A retrospective
law may be just and reasonable; and the right of
the legislature to enact one of this description, I am
not speculatist enough to question.’’ Id., 226. Ultimately,
the court upheld the 1820 legislation because it ‘‘was
intended to quiet controversy, and promote the public
tranquility.’’ Id., 226; accord Welch v. Wadsworth, 30
Conn. 149, 155 (1861) (following Goshen and emphasizing
that constitution lacks provision ‘‘restrain[ing] the
legislature from passing retrospective laws,’’ and therefore
legislature may do so unless ‘‘particular retrospective
act . . . is shown to the court, with entire
clearness and certainty, to be so unreasonable and
unjust in its operation upon antecedent legal rights,
thatthe action ofthe legislature can not be vindicated by
any reasonable intendment or allowable presumption’’
[emphasis added]); Mechanics’ & Working-Men’s
Mutual Savings Bank & Building Assn. v. Allen, 28
Conn. 97, 102 (1859) (following Goshen and rejecting
‘‘the broad ground that a retroactive law is of course
and under all circumstances to be treated as a nullity
. . . for healing enactments are found absolutely necessary,
continually, and under all governments, to remedy
the evils arising from human imperfections’’).
As the defendant argues, Goshen and its progeny
embody principles of substantive due process review
as applied prior to the enactment of the fourteenth
amendment to the United States constitution, particularly
given Goshen’s reference to the ‘‘ ‘social compact.’
’’ Washington v. Glucksberg, 521 U.S. 702, 756–57,
117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997) (Souter, J.,
concurring). Thus, it is significant that this court has
rejected constitutional challenges under Goshen v.
Stonington, supra, 4 Conn. 222, to the retroactive application
of numerous statutes that ‘‘directly operat[e] on
vested rights.’’ See, e.g., Sanger v. Bridgeport, 124 Conn.
183, 186, 198 A. 746 (1938) (upholding validity of statute
curing defective notice of highway defect claim and
noting that ‘‘[r]emedial statutes may be retrospective
in operation provided they do not impair contracts or
disturb absolute vested rights, but only go to confirm
rights already existing and in furtherance of the remedy,
and by curing defects afford or add to the means
of enforcing existing rights or obligations’’ [emphasis
added]); F.H. Whittelsey Co. v. Windsor Locks, 90 Conn.
312, 315, 97 A. 316 (1916) (Rejecting a challenge to
retroactive legislation validating defective property tax
liens because ‘‘[n]o vested right can be predicated by
one who was an owner or mortgagee during the valid
existence of the tax lien upon an irregularity of this
character. Such a defense would be a purely technical
one; it bears no relation to a defense in protection of
a vested right.’’); Welch v. Wadsworth, supra, 30 Conn.
156–58 (The court rejected constitutional challenge to
retroactive legislation intended broadly to validate
loans that previously had been deemed usurious under
prior statutes).
Thus, we conclude that the Connecticut case law
factor, which significantly informs our state constitutional
analysis, favors the position of the plaintiff.
Although our state’s case law recognizes the defendant’s
interest in the protection against stale claims
afforded by statutes of limitations; see, e.g., State v.
Skakel, supra, 276 Conn. 682–83; it nevertheless
embraces the constitutional permissibility of ‘‘manifestly
just’’ retroactive legislation affecting existing
legal rights and obligations; see Goshen v. Stonington,
supra, 4 Conn. 222; and has interpreted § 52-577d
accordingly in Roberts v. Caton, supra, 224 Conn. 483.
E
Sister State Case Law
The courts of the forty-four states that have considered
the issue presented in this appeal take divergent
approaches to whether an extended statute of limitations
may constitutionally be applied retroactively to
revive otherwise time barred claims.48 Because of the
sheer volume of case law addressing this issue, this
Geisler factor in particular calls for a more rigorous
analysis than simply tallying holdings, but rather,
requires us to determine which sister state courts’
approaches provide a genuinely persuasive framework
for resolving this state constitutional question. See, e.g.,
Kerrigan v. Commissioner of Public Health, supra, 289
Conn. 240–41; see also id., 246 (‘‘[a]lthough the decision
oftheCalifornia Supreme Court and the dissenting opinion
of Chief Judge Kaye reflect the minority position,
we believe that they nevertheless represent the most
persuasive sister state precedent’’). Although both parties
can claim support from the sister state factor, we
conclude that the more persuasive cases ultimately
favor the position of the plaintiff.
The courts of eighteen states follow the federal
approach embodied in Campbell v. Holt, supra, 115 U.S.
620, and Chase Securities Corp. v. Donaldson, supra,
325 U.S. 304, and allow the retroactive expansion of the
statute of limitations to revive otherwise time-lapsed
claims—seemingly without limitation. Of those states,
three, namely, Iowa, West Virginia, and New Mexico,
do not squarely ground their decisions in any particular
state or federal constitutional provision.49 One, Georgia,
grounds its leading decision, Canton Textile Mills, Inc.
v. Lathem, 253 Ga. 102, 105, 317 S.E.2d 189 (1984), in
an interpretation of that state’s constitutional provision
prohibiting retroactive legislation.50 Finally, fourteen
states, namely, Arizona, California, Delaware, Hawaii,
Idaho, Kansas, Massachusetts, Michigan, Minnesota,
Montana, New Jersey, North Dakota, Washington, and
Wyoming, hold that the retroactive expansion of the
statute of limitations to revive time barred claims is
not a violation of a defendant’s substantive due process
rights because there is no vested right to a statute of
limitations defense as a matter of state constitutional
law. See Chevron Chemical Co. v. Superior Court, 131
Ariz. 431, 440, 641 P.2d 1275 (1982); 20th Century Ins.
Co. v. Superior Court, 90 Cal. App. 4th 1247, 1263–64,
109 Cal. Rptr. 2d 611 (2001), cert. denied, 535 U.S. 1033,
122 S. Ct. 1788, 152 L. Ed. 2d 648 (2002); Sheehan v.
Oblates of St. Francis de Sales, 15 A.3d 1247, 1258–59
(Del. 2011); Roe v. Doe, 59 Haw. 259, 263, 268–69, 581
P.2d 310 (1978); Peterson v. Peterson, 156 Idaho 85, 91,
320 P.3d 1244 (2014); Harding v. K.C. Wall Products,
Inc., 250 Kan. 655, 668–69, 831 P.2d 958 (1992);51 Boston
v. Keene Corp., 406 Mass. 301, 312–13, 547 N.E.2d 328
(1989); Pryber v. Marriott Corp., 98 Mich. App. 50,
56–57, 296 N.W.2d 597 (1980), aff’d, 411 Mich. 887, 307
N.W.2d 333 (1981) (per curiam); In re Individual 35W
Bridge Litigation, 806 N.W.2d 820, 830–31 (Minn. 2011);
Cosgriffe v. Cosgriffe, 262 Mont. 175, 180, 864 P.2d 776
(1993); Panzino v. Continental Can Co., 71 N.J. 298,
304–305, 364 A.2d 1043 (1976);52 In re Interest of W.M.V.,
268 N.W.2d 781, 786 (N.D. 1978); Lane v. Dept. of
Labor & Industries, 21 Wn. 2d 420, 426, 151 P.2d 440
(1944); Vigil v. Tafoya, 600 P.2d 721, 724–25 (Wyo.
1979).
In contrast, the courts of twenty-four states support
the position that legislation that retroactively amends
a statute of limitations in a way that revives time barred
claims is per se invalid. Of those states, seven, namely,
Alabama, Colorado, Missouri, New Hampshire, Oklahoma,
Tennessee, and Texas, ground their holdings in
independent state constitutional provisions prohibiting
retroactive legislation.53 One, Vermont, grounds that
holding in a state statute prohibiting retroactive legislation.54
Five, namely, Indiana, Kentucky, Maine, Oregon,
and Pennsylvania, do not cite a source for the vested
right or otherwise perform a constitutional analysis in
support of this holding.55 This leaves eleven states,
Arkansas, Florida, Illinois, Louisiana, Nebraska, North
Carolina, Rhode Island, South Carolina, South Dakota,
Utah, and Virginia, which have rejected the United
States Supreme Court’s approach to this issue in Campbell
v. Holt, supra, 115 U.S. 620, and Chase Securities
Corp. v. Donaldson, supra, 325 U.S. 304, and held, as
a matter of state constitutional law, that the retroactive
expansion of the statute of limitations, which revives
an otherwise time-lapsed claim, is an incursion on a
vested property right that amounts to a per se violation
of substantive due process. See Johnson v. Lilly, 308
Ark. 201, 203–204, 823 S.W.2d 883 (1992); Wiley v. Roof,
641 So. 2d 66, 68–69 (Fla. 1994); Doe A. v. Diocese of
Dallas, 234 Ill. 2d 393, 409, 917 N.E.2d 475 (2009); Henry
v. SBA Shipyard, Inc., 24 So. 3d 956, 960–61 (La. App.
2009) (en banc), writ denied, 27 So. 3d 853 (La. 2010);
Givens v. Anchor Packing, Inc., 237 Neb. 565, 571–72,
466 N.W.2d 771 (1991); Colony Hill Condominium
Assn. v. Colony Co., 70 N.C. App. 390, 394, 320 S.E.2d
273 (1984); Kelly v. Marcantonio, 678 A.2d 873, 883
(R.I. 1996);56 Doe v. Crooks, 364 S.C. 349, 351–52, 613
S.E.2d 536 (2005); State of Minnesota ex rel. Hove v.
Doese, 501 N.W.2d 366, 370 (S.D. 1993); Roark v.
Crabtree, 893 P.2d 1058, 1062–63 (Utah 1995); Starnes
v. Cayouette, 244 Va. 202, 212, 419 S.E.2d 669 (1992).57
Finally, the courts of Wisconsin and New York navigate
between the poles ofthe broadly permissive federal
approach embodied in Campbell v. Holt, supra, 115 U.S.
620, and Chase Securities Corp. v. Donaldson, supra,
325 U.S. 304, and the absolute bar analysis followed
by those state courts that have rejected the Supreme
Court’s reasoning in those cases. The New York Court
of Appeals has held that the legislature ‘‘may constitutionally
revive a personal cause of action’’ if it reasonably
determines that ‘‘the circumstances are
exceptional and are such as to satisfy the court that
serious injustice would result to plaintiffs not guilty of
any fault if the intention of the [l]egislature were not
effectuated.’’58 Gallewski v. Hentz & Co., 301 N.Y. 164,
174–75, 93 N.E.2d 620 (1950). The Wisconsin Supreme
Court recognizes that there is a vested right in the lapse
of statutes of limitations, but nevertheless has utilized
the rational basis standard to analyze the constitutionality
of a revival statute amending the workers’ compensation
statute of limitations by balancing (1) ‘‘the private
interests overturned by this retroactive legislation,
including any unfairness inherent in its application’’;
and (2) ‘‘the public interest served by retroactive application’’
of the statutes at issue. Society Ins. v. Labor &
Industrial Review Commission, 326 Wis. 2d 444, 472–
76, 786 N.W.2d 385 (2010); cf. In re Individual 35W
Bridge Litigation, supra, 806 N.W.2d 833 (recognizing
constitutionally protected property right in statute of
repose, but applying rational basis review to uphold
revival statute authorizing state to seek indemnity from
third parties for compensation it had paid to victims of
major bridge collapse because ‘‘protectable property
right’’ is ‘‘not absolute and must be balanced against
the [s]tate’s legitimate interest in addressing . . . a
‘catastrophe of historic proportions’ ’’).59
Although both parties can claim some support from
the sister state case law factor, we conclude that, on
balance, it ultimately favors the position of the plaintiff.
The decisions that follow the federal approach embodied
in Campbell v. Holt, supra, 115 U.S. 620, and Chase
Securities Corp. v. Donaldson, supra, 325 U.S. 304, are
most consistent with our own body of case law in this
area; see part IV D of this opinion; and our constitutional
history. See part IV B of this opinion.
F
Contemporary Economic and Sociological
Public Policies
Although both parties’ public policy arguments are
well taken, this factor favors the plaintiff because of
the actions of our legislature, which has the primary
responsibility for formulating the public policy of our
state. The defendant points out, however, in arguing
that ‘‘[a]llowing a cause that expired in 1988 to be
broughtin 2008 does enormous economic and sociological
harm,’’ that it is well settled that statutes of limitations
‘‘prevent stale claims and unnecessary delays in
the presentation of issues,’’ and serve the salutary purpose
of ‘‘allow[ing] persons, after the lapse of a reasonable
time, to plan their affairs with a reasonable degree
of certainty, free from the disruptive burden of protracted
and unknown potential liability . . . .’’ (Internal
quotation marks omitted.) Electrical Contractors,
Inc. v. Ins. Co. of the State of Pennsylvania, supra, 314
Conn. 768–69. Put differently, statutes of limitations
‘‘prevent the unexpected enforcement of stale claims
concerning which the persons interested have been
thrown off their guard by want of prosecution.’’60 (Internal
quotation marks omitted.) Daily v. New Britain
Machine Co., 200 Conn. 562, 584, 512 A.2d 893 (1986);
accord State v. Skakel, supra, 276 Conn. 682–83.
On the other hand, the plaintiff emphasizes the ‘‘legitimate
legislative purpose’’ of § 52-577d, as explained in
Roberts v. Caton, supra, 224 Conn. 493–94, namely, ‘‘to
afford a plaintiff sufficient time to recall and come to
terms with traumatic childhood events before he or
she must take action,’’ with a defendant being ‘‘now
unexpectedly exposed to liability . . . an express purpose
of the statute.’’ Indeed, Senator Anthony Avallone,
reflected on ‘‘ ‘substantial testimony before the [Judiciary]
Committee that minor victims of sexual assault
often do not understand or recognize the damage which
they have sustained until a substantial number of years
after they attain majority. In fact, it is not just two or
three years, but can be substantially longer than that.
. . . So the [Judiciary] Committee in recognition of that
extends the statute of limitations on which one can
bring an action.’ ’’ Id., 493 n.8, quoting 34 S. Proc., Pt.
7, 1991 Sess., p. 2495.
The public policy objective argued by the plaintiff
finds support from numerous commentators. In one
significant example, Professor Marci Hamilton
observes that ‘‘[l]egislation that eliminates the civil
[statute of limitations] or includes a discovery rule is
supported by various studies on the long-term effects
of child molestation and the likely delay in disclosure.
Researchers in various studies have found—specifically
in men who were sexually abused as children—that
long-term adaptation will often include sexual problems,
dysfunctions or compulsions, confusion and
struggles over gender and sexual identity, homophobia
and confusion about sexual orientation, problems with
intimacy, shame, guilt and self-blame, low self-esteem,
negative self-images, increased anger, and conflicts
with authority figures. There is also an increased rate
of substance abuse, a tendency to deny and delegitimize
the traumatic experience, symptoms of [p]ost [t]raumatic
[s]tress [d]isorder, and increased probability of
fear and depression for all victims. Often, it is not until
years after the sexual abuse that victims experience
these negative outcomes. As clinician Mic Hunter has
observed: ‘Some of the effects of sexual abuse do not
become apparent until the victim is an adult and a major
life event, such as marriage or birth of a child, takes
place. Therefore, a child who seemed unharmed by
childhood abuse can develop crippling symptoms years
later . . . .’ ’’ (Footnotes omitted.) M. Hamilton, ‘‘The
Time Has Come for a Restatement of Child Sex Abuse,’’
79 Brook. L. Rev. 397, 404–405 (2014). Another salutary
effect of revival statutes like § 52-577d is that ‘‘lawsuits
filed under window legislation have led to the public
identification of previously unknown child predators,
which reduces the odds that children will be abused in
the future.’’61 Id., 405.
In our view, the public policy Geisler factor favors
the plaintiff. Given the reasonable policy concerns that
support the parties’respective state constitutional arguments,
in interpreting our state’s constitution, we must
deferto the legislature’s ‘‘primary responsibility’’ in pronouncing
the public policy of our state.62 Thibodeau v.
Design Group One Architects, LLC, 260 Conn. 691, 715,
802 A.2d 731 (2002); see also State v. Lockhart, 298
Conn. 537, 574, 4 A.3d 1176 (2010) (This court declined
to adopt the state constitutional rule requiring the
recording of custodial interrogations because, although
that rule would likely be beneficial, ‘‘[d]etermining [its]
parameters . . . requires weighing competing public
policies and evaluating a wide variety of possible rules.
. . . In our view, such determinations are often made
by a legislative body because it is in a better position to
evaluate the competing policy interests at play . . . .’’
[Citation omitted.]). Such factual matters within the
legislative purview include the balancing of interests
that are accommodated by statutes of limitations. See,
e.g., Daily v. New Britain Machine Co., supra, 200
Conn. 582–84 (rejecting claim that products liability
repose period violates plaintiffs’ due process rights by
‘‘bar[ring] a cause of action even before it accrues’’
because oflegislative finding that‘‘occasional hardship’’
to plaintiffs ‘‘is outweighed by the advantage of outlawing
stale claims’’ [internal quotation marks omitted]).
Accordingly, we conclude that this Geisler factor
favors the plaintiff, given that § 52-577d effectuates a
clearly established legislative policy.
G
Conclusion
Having reviewed the wealth of persuasive and relevant
materials revealed by our Geisler analysis, we conclude
that the retroactive application of § 52-577d to
revive the plaintiff’s otherwise time barred claims does
not violate the defendant’s substantive due process
rights under our state constitution. Consistent with our
observation in Roberts v. Caton, supra, 224 Conn. 492,
that this court ‘‘has never recognized a vested right in
the lapsing of a statute of limitations,’’ more than one
century ofConnecticut case law, beginning with Goshen
v. Stonington, supra, 4 Conn. 221–22, has sustained
retroactive legislation that affects significant legal interests.
Our constitutional history following Calder v. Bull,
supra, 3 U.S. (3 Dall.) 386, suggests that the retroactive
revival of time barred claims did not offend the drafters
of our 1818 constitution. This significant legal background,
unique to Connecticut, does not support the
defendant’s claim that we should follow the decisions
of our sister states that have rejected the United States
Supreme Court’s decisions in Campbell v. Holt, supra,
115 U.S. 620, and Chase Securities Corp. v. Donaldson,
supra, 325 U.S. 304, and have adopted an approach
imposing an absolute constitutional bar on changes to
statutes of limitations that would operate retroactively
to revive time barred actions.
Thus, because our Geisler analysis indicates that the
state constitution does not provide greater protection
to the defendant’s interest in the lapse of the statute
of limitations than is afforded under the federal constitution,
we analyze the defendant’s substantive due process
challenge to the constitutionality of § 52-577d
under the ‘‘rules that normally govern constitutional
challenges of economic or social welfare legislation,’’
which require us to employ a rational basis test to
‘‘[ascertain] whetherthe legislature has acted arbitrarily
or irrationally.’’ (Internal quotation marks omitted.)
Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey,
supra, 229 Conn. 318; accord Daily v. New Britain
MachineCo., supra, 200Conn. 577–83 (considering right
of access and equal protection challenges to products
liability statute of limitations under rational basis standard);
see also Contractor’s Supply of Waterbury, LLC
v. Commissioner of Environmental Protection, supra,
283 Conn. 108 (rejecting state constitutional due process
challenge to statute that prevented plaintiff from
constructing new asphalt plant, despite its property
interest in holding permit to do so, because statute ‘‘is
rationally related to a legitimate state purpose, protecting
the environment and public health’’).
This court previously has determined that‘‘considerations
of good sense and justice’’ support the retroactive
application of the extended statute of limitations of
§ 52-577d as a matter of statutory construction. Roberts
v. Caton, supra, 224 Conn. 493. Consistent with the
public policy objectives discussed in part IV F of this
opinion, the legislature, in extending § 52-577d and
applying it retroactively, balanced the fact that some
defendants may be exposed to ‘‘unexpected’’ liability;
id., 494; with a recognition that ‘‘it may take years for
a victim to come to terms with the sexual abuse,’’ and
an implicit understanding ‘‘that it may take as much
time to identify those responsible for the abuse . . . .’’
Almonte v. New York Medical College, supra, 851 F.
Supp. 37–38. Given the unique psychological and social
factors that often result in delayed reporting of childhood
sexual abuse, which frustrated the ability of victims
to bring an action under earlier revisions of the
statute of limitations, we cannot say that the legislature
acted unreasonably or irrationally63 in determining that
the revival of child sexual abuse victims’ previously
time barred claims serves a legitimate public interest
and accomplishes that purpose in a reasonable way.
‘‘[A]lthough [the] rational-basis standard is not a toothless
one . . . it does not allow us to substitute our
personal notions of good public policy for those of [the
legislature] . . . .’’ (Citation omitted; internal quotation
marks omitted.) Schweiker v. Wilson, 450 U.S. 221,
234, 101 S. Ct. 1074, 67 L. Ed. 2d 186 (1981). Accordingly,
we conclude that the retroactive application of § 52-
577d, which revived the plaintiff’s otherwise time
barred claims, did not violate the defendant’s substantive
due process rights under the Connecticut constitution.
The judgment is affirmed.
In this opinion ROGERS, C. J., and PALMER, EVELEIGH
and McDONALD, Js., concurred.
1 On June 23, 2008,the trial court, Tyma, J., granted the plaintiff permission
to proceed under the pseudonym Jacob Doe. On February 9, 2012, the trial
court, Dubay, J., vacated that order with the consent of the parties. At oral
argument before this court, the plaintiff’s counsel indicated that the plaintiff
did not wish to remain anonymous, and referred to the plaintiff by his given
name. Although, in a civil case, we ordinarily would respect the wishes of
a victim of sexual abuse to use his given name, doing so in the present case
may help to identify at least one other victim of Ferguson’s sexual abuse.
Consistent with our policy of protecting the privacy interests of the victims
of sexual abuse and the crime of risk of injury to a child; see General
Statutes § 54-86e; in the absence of evidence indicating that the other victim
would also wish to be identified, we decline to identify the plaintiff or other
individuals through whom that victim may be identified.
2 The defendant filed two appeals from the judgment of the trial court to
the Appellate Court, one following the denial of its motion to set aside the
jury’s verdict, and the other following the trial court’s award of punitive
damages. See Hylton v. Gunter, 313 Conn. 472, 487, 97 A.3d 970 (2014). Those
appeals were then consolidated for purposes of argument and decision. We
subsequently transferred the consolidated appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
3 We note that the American Psychiatric Association defines ‘‘pedophilic
disorder’’ in a manner that requires sexual attraction to, or engaging in
sexual behaviors with, ‘‘a prepubescent child or children (generally age
[thirteen] years or younger).’’ (Emphasis added.) American Psychiatric
Assn., Diagnostic and Statistical Manual of Mental Disorders (5th Ed. 2013)
p. 697. Because the record does not indicate that the acts of molestation
described in this case all involved prepubescent children, the numerous
references in this opinion to pedophilia encompass sexual attraction to, or
engaging in sexual behaviors with, all individuals who are ‘‘legally considered
to be children.’’ K. Lanning, Child Molesters: A Behavioral Analysis for
Professionals Investigating the Sexual Exploitation of Children (5th Ed.
2010) p. 21, available at http://www.missingkids.com/en_US/publications/
NC70.pdf(last visited June 22, 2015). We note that this definition is consistent
with the record, the arguments presented by the parties, and common usage.
See Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003).
4 General Statutes § 52-577d provides: ‘‘Notwithstanding the provisions of
section 52-577, no action to recover damages for personal injury to a minor,
including emotional distress, caused by sexual abuse, sexual exploitation
or sexual assault may be brought by such person later than thirty years
from the date such person attains the age of majority.’’ For the legislative
genealogy of § 52-577d, see footnote 37 of this opinion.
5 Article first, § 8, of the Connecticut constitution provides in relevant
part: ‘‘No person shall . . . be deprived of life, liberty or property without
due process of law . . . .’’
Article first, § 10, of the Connecticut constitution provides: ‘‘All courts
shall be open, and every person, for an injury done to him in his person,
property or reputation, shall have remedy by due course of law, and right
and justice administered without sale, denial or delay.’’
6 Gianelli testified that Whealon never discussed with him any plan to get
help for the boys who Ferguson had molested, and he did not know whether
Whealon or anyone else affiliated with the defendant had ever reached out
to the mother who made the report. Gianelli also testified that he never
personally reported the allegations of molestation to state authorities, and
he did not know whether anyone else affiliated with the defendant had
so reported.
7 Kvedas testified that he was aware of Ferguson’s alcohol problems, but
was never told that Ferguson had molested boys.
8 On June 22, 1981, Peterson sent Whealon a letter supporting Ferguson’s
request for ‘‘a more exciting teaching assignment,’’ noting that he ‘‘has made
a great deal of progress over the two-year period of sobriety.’’ Peterson
stated that it was his ‘‘professional opinion that the other issues that brought
. . . Ferguson to us for treatment will be in control as long as the disease
of alcoholism is in control,’’ thus indicating his ‘‘support for any change
that would include a change in teaching assignment, as well as his continued
participation in parochial ministry.’’
Thereafter, on August 26, 1981, Peterson and a therapist from the Saint
Luke Institute issued a report to Whealon indicating that Ferguson: (1) had
been alcohol and drug free for the preceding two years, and had been
attending weekly Alcoholics Anonymous meetings; (2) was successfully
working as a grade school principal, despite the fact that he had not received
his preferred assignment of working in an all boys school; and (3) had mild
neuropsychological impairments that ‘‘may be the residual effect from a
more severe previous brain involvement.’’ To aid Ferguson in maintaining
his ‘‘sustained sobriety and improved ministry and life,’’ they recommended
continued after care, monthly telephone contact with the Saint Luke Institute,
and regular participation in Alcoholics Anonymous.
9 Dougherty did not know whether anyone else at Saint Mary’s School or
Saint Mary’s Parish was ever informed about Ferguson being a danger
to young boys. She never, however, personally witnessed Ferguson doing
anything improper or heard of any complaints to that effect.
10 The plaintiff’s family members were observant Catholics who participated
in a variety of church activities. His father was a deacon and the
plaintiff served as an altar boy at the Good Shepherd Parish in Seymour,
where they lived. The plaintiff’s parents, who had befriended numerous
priests in Saint Mary’s Parish, taught him to give priests a high level of
respect.
11 Unaware of any inappropriate activity, the plaintiff’s parents gave permission
for at least one of these sleepovers to occur, and did not recall
whether they had given permission for the others.
12 The plaintiff, however, testified that he did not know whether Bollea
had ever seen him at the rectory during the sleepovers.
13 These molestations included voyeurism, oral sex, and fondling. Other
molestations took place during sleepovers at the home of Ferguson’s friend,
Michael Hunter, who was a music teacher at an all boys school; at those
sleepovers, Ferguson and Hunter gave the plaintiff and R wine before inviting
them to watch pornographic movies and molesting them.
14 At one point, prompted by news coverage of other incidents involving
Ferguson, the plaintiff’s parents asked him as an adult whether he had ever
been molested by Ferguson.Atthattime, the plaintiff denied any molestation.
15 The plaintiff testified that he and his wife divorced in 2011, largely
because of stress occasioned by the present action.
16 Specifically, the plaintiff claimed that the defendant: (1) knew or should
have known of Ferguson’s proclivities to sexually abuse minors; (2) failed
to supervise him adequately; (3) failed to report Ferguson’s conduct to
authorities; (4) retained him, despite the fact that it should have known that
he was a danger to young boys; (5) failed to remove him from any position
despite knowing or having reason to know that he was a danger to minors;
(6)failed to conduct an adequate investigation of Ferguson and other priests;
(7) failed to establish and maintain a sexual abuse reporting policy; (8)
failed to take remedial actions to protect minors; (9) failed to warn its
congregations, parishioners, and employees of the threat Ferguson posed;
and (10) failed to promulgate policies against having children in private
quarters or taking them on unchaperoned trips.
In a subsequent amended complaint, the plaintiff, inter alia, relied specifi-
cally on Bollea’s failures to prevent Ferguson from being alone with the
plaintiff and R behind closed doors at the rectory, and to alert Whealon or
other officials of these events. The plaintiff also contended that the fact
that Whealon and other officials affiliated with the defendant knew in March,
1979, that at least four boys had been sexually abused by Ferguson, ‘‘should
have given [the defendant] a reasonable basis to believe that . . . Ferguson’s
sexual attraction to young boys and his acting upon such attraction
was of such a serious and dangerous psychological problem to compel
[Whealon’s] forbidding of . . . Ferguson to have contact with minor
children.’’
17 Previously, the defendant had filed a motion for a directed verdict
challenging the action as time barred and lacking sufficient evidence of
negligence and recklessness, upon which the trial court had reserved
judgment.
18 The defendant questions how ‘‘jurors in 2012, applying only their common
knowledge and experience, [could] fairly conclude that a reasonable
person in 1981 should have realized that a priest who had a drinking problem
and who had engaged in sexual misconduct with adolescent males could
not safely be returned to parish service even though he had received evaluation
and treatment at a mental health facility, had stopped drinking, and
his psychiatrist and other therapists supported his return and assured the
[arch]bishop that the priest could safely be placed in a parish ministry.’’
(Emphasis in original.)
19 The plaintiff posits that Ferguson’s ‘‘alleged medical condition’’ and the
curability of pedophilia is ‘‘irrelevant to the reasonable steps necessary to
protect others,’’ observing colorfully that ‘‘[n]o matter how ‘medical’ the
cause of an alcoholic [axe] murderer’s actions in murdering six victims, no
reasonable person obtains a favorable psychiatric report, hands the man an
[axe], hides his prior conduct from the weakest, most vulnerable members
of the defendant’s community, and says, ‘don’t drink!’ ’’
20 Thus, we disagree with the defendant’s characterization in its reply brief
of the plaintiff’s argument as resting on ‘‘nothing more than assumption,
that Ferguson’s relapse was ‘obviously foreseeable’ and that ‘everybody’
knows pedophilia [cannot] be cured. While some courts might agree with that
proposition today, how can it be assumed that it was common knowledge in
1979–1983 that a person with those tendencies could not be cured or controlled
by psychological/psychiatric treatment?’’ (Footnote omitted.) The
defendant posits that it was the plaintiff’s ‘‘obligation . . . to provide the
jury with some evidence upon which they could properly conclude that
reasonable people in 1979–1983, knowing what . . . Whealon knew, including
the advice [from] Peterson, would have realized that Ferguson had not
been rehabilitated but was likely to reoffend.’’ As the parties’ summations
indicate, this case boiled down to the reasonableness of assuming that
Ferguson would not relapse, given Whealon’s understanding that alcohol
triggered Ferguson’s pedophilic behaviors—not that those behaviors had in
fact been ‘‘cured.’’
21 That relapse is a matter of common knowledge is embodied in the usage
of the idiom, for more than one century, characterizing one’s recovery status
as being ‘‘on’’ or‘‘off the wagon.’’ See Urban Dictionary, ‘‘Fell Off the Wagon,’’
available at http://www.urbandictionary.com/define.php?term=
fell+off+the+wagon (last visited June 22, 2014) (defining ‘‘fell off the wagon’’
as ‘‘[w]hen one resumes an addictive/compulsive behavior that they are
trying to control’’ and stating that phrase ‘‘[o]riginally referred . . . to drinking’’);
see also E. Partridge, A Dictionary of Slang and Unconventional
English (4th Ed. 1951) p. 941 (noting that ‘‘on the water-waggon’’ means
‘‘tee-total for the time-being,’’ and has been used in United States since
1904); H. Wentworth & S. Flexner, Dictionary of American Slang (1960) p.
566 (defining ‘‘on the wagon’’ as ‘‘[n]ot drinking alcoholic beverages, either
for a short or long period’’ and noting that wagon idioms have been ‘‘universally
popular’’ since 1905).
22 This case is distinguishable from the Florida and Illinois cases on which
the defendant relies, wherein historical testimony about prevailing understandings
was admitted to show that the defendant should have been aware
of certain risks. Those cases are not persuasive because they merely mention
the fact that expert testimony from historians was admitted; they did not
hold that expert testimony was required to establish the standard of care,
or even discuss its admissibility more generally. See Philip Morris USA,
Inc. v. Kayton, 104 So. 3d 1145, 1148–49 (Fla. App. 2012) (plaintiff presented
testimony of historian who was expert on tobacco industry to establish that
tobacco companies had formed ‘‘Tobacco Institute’’ to ‘‘create a doubt that
there was a causal link between cigarettes and disease,’’ which supported
verdict of conspiracy to commit fraudulent concealment); Rodarmel v.
Pneumo Abex, LLC, 957 N.E.2d 107, 126 (Ill. App. 2011) (describing expert
testimony offered by plaintiff, including discussion of texts from 1913 and
1924 about danger of bringing ‘‘ ‘poisonous dust’ from the workplace into
the home,’’ in support of proposition that asbestos company should have
known of risk to workers of carrying asbestos dust home on their clothing),
appeal denied, 968 N.E.2d 1072 (Ill. 2012). In contrast, the central question
before the jury in the present case was not whether the defendant should
have known of the risk of sexual abuse and accommodated that potentiality
by adopting certain practices and procedures. Rather, it concerned how the
defendant reacted to what it actually knew, namely, that it had in one of
its schools a known sex offender whose tendencies were triggered by the
consumption of alcohol.
23 The plaintiff also relies on Paiva v. Vanech Heights Construction Co.,
159 Conn. 512, 271 A.2d 69 (1970), and contends that this claim is moot
because of the defendant’s failure to challenge two independent factual
bases forthe jury’s negligence verdict as demonstrated in the interrogatories,
namely its failure to inform parents and teachers of Ferguson’s propensities
and its failure to remove Ferguson from any position with the defendant.
The plaintiff is correct that ‘‘where alternative grounds found by the
reviewing court and unchallenged on appeal would support the trial court’s
judgment, independent of some challenged ground, the challenged ground
that forms the basis of the appeal is moot because the court on appeal
could grant no practical relief to the complainant.’’ Green v. Yankee Gas
Corp., 120 Conn. App. 804, 805, 993 A.2d 982 (2010). We disagree, however,
with the plaintiff’s understanding of the record and the defendant’s briefing
of this claim. We view the defendant’s expert testimony claim; see part I A
of this opinion; as encompassing a challenge to the jury’s failure to remove
finding, and we read the defendant’s briefing of this claim as encompassing
both negligent supervision and failure to warn, which are conceptually
related matters on the facts of this case.
24 Thus, we disagree with the defendant’s reliance on Paige v. St. Andrew’s
Roman Catholic Church Corp., supra, 250 Conn. 14. In Paige, this court
concluded that there was insufficient evidence beyond speculation to prove
that one of the agents, servants or employees of the defendant, a church, had
activated a large heating boiler by operating circuit breakers and emergency
switches while the plaintiff was inside the boiler to clean it, severely injuring
him. See id., 16–17. The court determined that the jury’s verdict could not
have been supported by the evidence ‘‘given the lack of any factual support
for the inference that any of [the defendant’s agents, servants, or employees]
was even in the church on the morning of the accident’’; id., 31; and given
that the jury specifically had found that the church’s maintenance supervisor,
its only employee ‘‘placed near the boiler room on the morning of the
accident, had not activated the controls that caused the boiler to ignite.’’
(Footnote omitted.) Id., 29. Most significantly, this court determined that
the jury’s finding that the maintenance supervisor was negligent when he
‘‘failed to deactivate the boiler that the plaintiff was cleaning,’’ had no
‘‘causal connection’’to the plaintiff’s injuries because the plaintiff’s coworker
‘‘testified that priorto commencing the cleaning of the boilers on the morning
of the accident, he had made sure that all of the switches and the controls
to the boilers were off. Thus, the jury properly could not have based their
findings on a disbelief of [the maintenance supervisor’s] testimony . . . .’’
Id.; see also id., 29–30 (‘‘[b]ecause [the maintenance supervisor] was the
only employee of the defendant placed near the boiler room on the morning
of [the accident], this break in the chain of events connecting his conduct
to the plaintiff’s injuries is fatal to the plaintiff’s claim’’). That specific set
of jury findings, which combined to undermine the jury’s verdict, render
Paige distinguishable from the present case.
25 The defendant also relies on an ‘‘irregularity in connection with the
delivery of the verdict [that] suggests that the jury may not have given the
question of reckless misconduct proper consideration,’’ namely, that the
jury had failed to complete the interrogatory form when it first delivered
its verdict, and then took only five minutes to complete the form upon being
sent back to deliberate. Given that there is no challenge to the trial court’s
jury instructions, and ‘‘[o]ur jurisprudence is clear . . . that unless there
is a clear indication to the contrary, a jury is presumed to follow the court’s
instructions’’; PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267
Conn. 279, 335, 838 A.2d 135 (2004); we decline to join the defendant in
speculating on whetherthe jury ‘‘appreciate[d] the significance of the distinc-
tion between negligence and recklessness as explained to them in the
charge.’’
26 Section 7-2 of the Connecticut Code of Evidence provides: ‘‘A witness
qualified as an expert by knowledge, skill, experience, training, education
or otherwise may testify in the form of an opinion or otherwise concerning
scientific, technical or other specialized knowledge, if the testimony will
assist the trier of fact in understanding the evidence or in determining a
fact in issue.’’
27 The defendant cites four cases in support of its contention that, in
‘‘unusual cases where a fact finder must put itself back in time to properly
review and evaluate evidence, courts permit the type of expert evidence
. . . Jenkins was offering.’’ See Walden v. Chicago, 755 F. Supp. 2d 942,
947–53 (N.D. Ill. 2010) (historian qualified to testify to establish city police
department’s practices in 1952 in support of plaintiff’s claim of constitutional
injury arising from false confession occasioned by coercive interrogation);
Waterhouse v. R.J. Reynolds Tobacco Co., 368 F. Supp. 2d 432, 437 (D.
Md. 2005) (requiring competent historians’ testimony to establish ‘‘common
knowledge’’ of dangers of cigarette smoking from 1940s through 1960s),
aff’d, 162 Fed. Appx. 231 (4th Cir. 2006); Philip Morris USA, Inc. v. Kayton,
104 So. 3d 1145, 1148–49 (Fla. App. 2012) (not considering admissibility,
but noting that plaintiff presented testimony of historian to establish that
tobacco companies had formed Tobacco Institute ‘‘to create a doubt that
there was a causal link between cigarettes and disease,’’ which supported
verdict of conspiracy to commit fraudulent concealment); Rodarmel v.
Pneumo Abex, LLC, 957 N.E.2d 107, 126 (Ill. App. 2011) (not considering
admissibility, but describing expert testimony offered by plaintiff, including
discussion of texts from 1913 and 1924 about danger of bringing ‘‘ ‘poisonous
dust’ from the workplace into the home,’’ in support of proposition that
asbestos company should have known ofrisk to workers of carrying asbestos
dust home on their clothing), appeal denied, 968 N.E.2d 1072 (Ill. 2012); see
also Krik v. Crane Co., United States District Court, Docket No. 10CV7435
(JZL) (N.D. Ill. October 21, 2014) (expert qualified to testify about historical
development of knowledge of health hazards of asbestos in support of
toxic tort element of what manufacturer knew or should have known about
dangers of its product). We agree with the plaintiff’s argument that these
cases are inapposite because whether the defendant knew or should have
known of Ferguson’s conduct was not a contested issue in the present case,
and none of these cases supported the use of historical testimony to establish
the standard of care.
28 We acknowledge the plaintiff’s argument, also made before the trial
court, that Jenkins’ testimony was ‘‘demonstrably false,’’ insofar as ‘‘[p]eople
at the time were well aware that sexual molesters could be repeat offenders
and that it resulted in permanent harm,’’ as shown by the fact that, in 1981,
child molestation was a felony under Connecticut law and also was the
subject of mandatory reporting laws. We conclude that these points do not
affect the admissibility of Jenkins’ testimony, given his reasonable qualifications
as a historian, butrather, go to its weight. See, e.g., Weaver v. McKnight,
313 Conn. 393, 408–409, 97 A.3d 920 (2014).
29 The defendant makes a similar argument in contending that the deposition
testimony was similarly inadmissible under the former testimony exception
to the hearsay rule. See Conn. Code Evid. § 8-6 (1). Because of our
conclusion with respect to the residual exception, we need not address the
defendant’s former testimony arguments.
30 The plaintiff further contends that any error in admitting this evidence
was harmless because whether Ferguson was actually treated for pedophilia
is not dispositive in this case, insofar as a ‘‘reasonable jury could have found
that Ferguson had received state of the art ‘treatment’ for pedophilia and
still reached the same result.’’
31 Practice Book § 13-3 provides in relevant part: ‘‘(a) Subject to the provisions
of Section 13-4, a party may obtain discovery of documents and tangible
things otherwise discoverable under Section 13-2 and prepared in anticipation
of litigation or for trial by or for another party or by or for that other
party’s representative only upon a showing that the party seeking discovery
has substantial need of the materials in the preparation of the case and is
unable without undue hardship to obtain the substantial equivalent of the
materials by other means. . . .’’
32 We note that the relevant deposition begins with Ferguson recounting
a conversation that he had with Whealon upon the 1979 decision to remove
Ferguson from teaching at Northwest; Ferguson stated that the ‘‘substance
[of that conversation] was that we will send you to treatment for alcoholism.’’
The questioning continued:
‘‘Q. Besides alcoholism, was there anything else discussed regarding treatment,
besides treatment for alcoholism . . . was there treatment for anything
else discussed in that conversation.
‘‘A. No.
‘‘Q. And what arrangements were made, do you recall?
‘‘A. Arrangements were made for me to enter [the Saint Luke Institute]
in Holliston, Massachusetts, for treatment.
‘‘Q. And what kind of institute is [the Saint Luke Institute]?
‘‘A. [The Saint Luke Institute] is a treatment facility for priests, nuns, and
brothers who are in trouble with alcohol or drugs. . . .
‘‘Q. And does the name Michael Peterson ring a bell?
‘‘A. Yes.
‘‘Q. Who is he?
‘‘A. He was the director.
‘‘Q. Did you get any treatment for sexual disorders there?
‘‘A. No.
‘‘Q. Did [Whealon] order you to leave Northwest . . . ?
‘‘A. Well, no, he told me that I needed treatment for alcoholism and that
the [defendant] would provide that.’’
The deposition continued:
‘‘Q. Did you ever have support group meetings at [the Saint Luke Institute]?
‘‘A. Oh, yes.
‘‘Q. Was sexual attraction to minors ever discussed in [these] meetings
by anybody?
‘‘A. No.’’
33 In its sixth special defense, the defendant asserted that the ‘‘court should
exercise its power in equity to bar [the] plaintiff’s claim on the basis of
laches in that the plaintiff failed to exercise due diligence and inexcusably
delayed bringing his lawsuit to the great prejudice of the defendant in that
many important and material witnesses have passed away, most notably
. . . Whealon and . . . Ferguson.’’
34 The Appellate Court also discussed this court’s decision in Dunham v.
Dunham, 204 Conn. 303, 326–27, 528 A.2d 1123 (1987), and observed that,
‘‘in equitable actions, where the defense of laches is asserted, courts may
look by analogy to the statute of limitations on the underlying legal action,
courts may not, as the defendant attempts to do here, commingle the legal
concept of a statute of limitations and the equitable doctrine of laches.’’
Giordano v. Giordano, supra, 39 Conn. App. 215–16.
35 Examples of the application of this well established principle abound
in the case law of this state. Compare DaimlerChrysler Ins. Co., LLC v.
Pambianchi, 762 F. Supp. 2d 410, 424 (D. Conn. 2011) (laches not available
defense to indemnification claim because plaintiff filed action ‘‘within the
relevant four-year statute of limitation to enforce an indemnification clause
in a lease agreement’’ and ‘‘[t]he [c]ourt is not persuaded that there is
anything exceptional about this case that would permit [the defendant] to
assert laches as a defense’’), aff’d, 469 Fed. Appx. 65 (2d Cir. 2012), Florian
v. Lenge, 91 Conn. App. 268, 282, 880 A.2d 985 (2005) (laches unavailable
because ‘‘the plaintiff’s complaint was one for the collection of payment
due on a promissory note, which is an action at law’’ and request in complaint
for ‘‘ ‘[s]uch other and further relief as the Court deems just and proper’ is
not a specific demand for equitable relief’’), John H. Kolb & Sons, Inc. v.
G & L Excavating, Inc., 76 Conn. App. 599, 612–13, 821 A.2d 774 (laches
not available, despite defendant’s claimed prejudice because its ‘‘records
regarding the dispute were lost and [it] was unable to recall the circumstances
of the dispute,’’ because breach of contract action was ‘‘an action
at law . . . filed within the applicable statute of limitations’’), cert. denied,
264 Conn. 919, 828 A.2d 617 (2003), and Torringford Farms Assn., Inc. v.
Torrington, 75 Conn. App. 570, 576, 816 A.2d 736 (‘‘For actions for breach
of contract, it is the legislature that has determined the time period in
which a cause of action must be brought. Only in actions that fairly can be
characterized as invoking equitable considerations may a court consider
the applicability of concepts of fairness and equity, usually by invoking the
doctrine of laches.’’), cert. denied, 263 Conn. 924, 823 A.2d 1217 (2003), with
Sean O’Kane A.I.A. Architect, P.C. v. Puljic, 148 Conn. App. 728, 740–41,
87 A.3d 1124 (2014) (laches available because plaintiff sought equitable
remedy of unjust enrichment), and Cifaldi v. Cifaldi, 118 Conn. App. 325,
335 n.8, 983 A.2d 293 (2009) (laches available because ‘‘court order designed
to protect the integrity of the original judgment, which is what the plaintiff
has requested here, is an exercise of the court’s equitable power’’).
36 Accordingly, we decline the defendant’s invitation to follow the reasoning
of cases such as Teamsters & Employers Welfare Trust of Illinois v.
Gorman Bros. Ready Mix, supra, 283 F.3d 880–81, and Dept. of Banking &
Finance v. Wilken, 217 Neb. 796, 802, 352 N.W.2d 145 (1984), which give
courts the discretion to permit a defendant to pursue a laches defense
regardless of whether the plaintiff’s action is characterized as legal or
equitable.
37 By way of background, we note the legislative genealogy of § 52-577d,
which the defendant concedes, as a matter of statutory interpretation,
revives the plaintiff’s time-lapsed claims against it. Section 52-577d, was
first enacted by the legislature in 1986. See Public Acts 1986, No. 86-401,
§ 6; see also Public Acts 1986, No. 86-403, § 104. That statute, as set forth
in the 1987 revision of the General Statutes, provides: ‘‘Notwithstanding the
provisions of section 52-577, no action to recover damages for personal
injury to a minor, including emotional distress, caused by sexual abuse,
sexual exploitation or sexual assault may be brought by such person later
than two years from the date such person attains the age of majority, except
that no such action may be brought more than seven years from the date
of the act complained of.’’ General Statutes (Rev. to 1987) § 52-557d.
In 1991, the legislature passed an amendment to § 52-577d that extended
the two year limitations period to seventeen years and struck the seven
year repose period. See Public Acts 1991, No. 91-240. In Roberts v. Caton,
224 Conn. 483, 492, 619 A.2d 844 (1993), this court held that the 1991
amendment applied retroactively, thus reviving otherwise time barred
claims.
Subsequently, in 2002, the legislature amended § 52-577d to the seventeen
year limitations period to thirty years. Public Acts 2002, No. 02-138, § 2. The
legislature explicitly stated that the 2002 amendment was ‘‘[e]ffective from
passage and applicable to any cause of action arising from an incident
committed prior to, on or after said date . . . .’’ See Public Acts 2002, No.
02-138, § 2. For the text of the current revision of § 52-577d, see footnote
4 of this opinion.
38 ‘‘Furthermore, we are mindful that state [c]onstitutional provisions must
be interpreted within the context of the times. . . . We must interpret the
constitution in accordance with the demands of modern society or it will
be in constant danger of becoming atrophied and, in fact, may even lose
its original meaning. . . . [A] constitution is, in [former United States
Supreme Court] Chief Justice John Marshall’s words, intended to endure
for ages to come . . . and, consequently, to be adapted to the various crises
of human affairs. . . . In short, the [state] constitution was not intended
to be a static document incapable of coping with changing times. It was
meant to be, and is, a living document with current effectiveness. . . . The
Connecticut constitution is an instrument of progress, it is intended to stand
for a great length of time and should not be interpreted too narrowly or
too literally so that it fails to have contemporary effectiveness for all of our
citizens.’’ (Citation omitted; emphasis omitted; internal quotation marks
omitted.) Kerrigan v. Commissioner of Public Health, supra, 289 Conn.
156–57.
39 As the defendant notes, in civil cases, this court has treated our state
constitution’s due process clauses coextensively; see Giaimo v. New Haven,
257 Conn. 481, 498, 778 A.2d 33 (2001); Ramos v. Vernon, supra, 254 Conn.
835 n.30; and has never determined that one is exclusively controlling in
the civil context. We similarly need not do so here, although we agree
with the defendant’s observation that article first, § 10, of the Connecticut
constitution contains language that is more specifically suited to the civil
context. See W. Horton, The Connecticut State Constitution (2d Ed. 2012)
p. 71 (‘‘[l]ess violence will be done to the English language in context if
the Supreme Court were to state explicitly that [article first, § 10, of the
Connecticut constitution] generally applies in civil cases’’); id., p. 78 (discussing
civil due process cases under article first, § 10, of the Connecticut
constitution because, ‘‘[i]n context, the due process clause in [article first,
§ 8, of the Connecticut constitution] seems to refer only to criminal cases’’).
40 Our previous cases contemplate article first, § 10, of the Connecticut
constitution as establishing the Judicial Branch’s governmental obligation
to provide expedient and fair justice in cases that have been brought to the
courts for resolution. See, e.g., Pellegrino v. O’Neill, 193 Conn. 670, 684–85,
480 A.2d 476 (1984) (plurality opinion).
41 This court’s decision in Gentile v. Altermatt, 169 Conn. 267, 363 A.2d
1 (1975), which the defendant relies upon, does not dictate a contrary result.
In Gentile, this court held that the 1818 adoption of article first, § 10, of the
Connecticut constitution ‘‘recognized all existing rights and removed from
the power of the legislature the authority to abolish those rights in their
entirety. Rather, the legislature retains the power to provide reasonable
alternatives to the enforcement of such rights. Where such reasonable alternatives
are created, the legislature may then restrict or abolish the incorporated
common-law or statutory rights.’’ Id., 286. The defendant contends
that Gentile must be read to apply to defendants as well as plaintiffs, meaning
that the ‘‘courts must also be open to defenses that existed in 1818 absent
a reasonable alternative, and one of those defenses is the statute of limitations,
as the historical prong [of Geisler] will show.’’ See part IV B of this
opinion. We agree with the plaintiff, however, that an assumption that Gentile
applies to defenses as well as causes of action simply begs the question of
whether the expanded statute of limitations for sexual abuse injuries in
§ 52-577d is a ‘‘reasonable alternative’’ to shorter statutes of limitations.
42 Justice Bradley dissented in Campbell, concluding that, ‘‘when the statute
of limitations gives a man a defense to an action, and that [defense] has
absolutely accrued, he has a right which is protected by the [f]ourteenth
[a]mendment of the [c]onstitution from legislative aggression.’’ Campbell v.
Holt, supra, 115 U.S. 630. Justice Bradley adopted a broader construction
of the term property, observing that ‘‘an exemption from a demand, or an
immunity from prosecution in a suit, is as valuable to the one party as the
right to the demand or to prosecute the suit is to the other,’’ and that ‘‘[m]y
property is as much imperiled by an action against me for money, as it is
by an action against me for my land or my goods. It may involve and sweep
away all that I have in the world. Is not a right of [defense] to such an
action of the greatest value to me?’’ Id., 630–31. Justice Bradley noted further
that: ‘‘The immunity from suit which arises by operation of the statute of
limitations is as valuable a right as the right to bring the suit itself. It is a
right founded upon a wise and just policy. Statutes of limitation are not
only calculated for the repose and peace of society, but to provide against
the evils that arise from loss of evidence and the failing memory of witnesses.’’
Id., 631. He concluded that ‘‘[r]emedies are the life of rights, and
are equally protected by the [c]onstitution. Deprivation of a remedy is equivalent
to a deprivation of the right which it is intended to vindicate, unless
another remedy exists or is substituted for that which is taken away.’’ Id.
43 The United States Supreme Court may well, however, have left the door
open for future due process challenges to specific revivals, insofar as it
observed that the defendant had not ‘‘pointed out special hardships or
oppressive effects which result from lifting the bar in this class of cases
with retrospective force.’’ Chase Securities Corp. v. Donaldson, supra, 325
U.S. 316. The court emphasized that the case was not one ‘‘where [the]
appellant’s conduct would have been different if the present rule had been
known and the change foreseen.’’ Id.; see also id. (noting that defendant
‘‘does not say, and could hardly say, that it sold unregistered stock depending
on a statute of limitation for shelter from liability’’).
44 When, however, the limitations period is part of the cause of action
itself, and thus qualifies the plaintiff’s right to avail himself of the action,
‘‘a retroactive extension of the period after its expiration amounted to a
taking of property without due process of law.’’ Chase Securities Corp. v.
Donaldson, supra, 325 U.S. 312 n.8, discussing William Danzer & Co. v.
Gulf & S.I.R. Co., 268 U.S. 633, 636–37, 45 S. Ct. 612, 69 L. Ed. 1126 (1925).
There is no claim that the present case falls into the category of those
concerning a statutory cause of action with an integral time limitation,
insofar as it concerns liability arising at common law.
45 We note that the defendant contends that ‘‘Roberts itself relies on cases
that support giving § 52-577d a substantive due process/vested rights content,’’
citing specifically Moore v. McNamara, supra, 201 Conn. 16, Andrulat
v. Brook Hollow Associates, supra, 176 Conn. 409, and Diamond National
Corp. v. Dwelle, 164 Conn. 540, 325 A.2d 259 (1973). See Roberts v. Caton,
supra, 224 Conn. 488–92. We disagree with the defendant’s characterization
of these cases.
As the defendant notes,Roberts citesAndrulat v.Brook Hollow Associates,
supra, 176 Conn. 412–13, for the proposition that ‘‘changes in the statute of
limitations may not retroactively bar actions already pending [but] they do
govern actions brought subsequent to the effective date of the amended
statute.’’ (Internal quotation marks omitted.) Roberts v. Caton, supra, 224
Conn. 492. The defendant posits that this ‘‘must be because the plaintiff has
a due process or vested right in bringing an action that cannot be cut off
by a retroactively applied shorter statute of limitations,’’ and ‘‘if a plaintiff
has a right to bring a cause of action that is vested within the existing statute
of limitations, a defendant should have a due process or vested right to
defeat a cause of action once the plaintiff is outside the existing statute.’’
The fatal flaw in this argument is that Andrulat v. Brook Hollow Associates,
supra, 412–13, does not state a constitutional due process basis for the cited
proposition, but rather, relies on cases that are founded on the rule of
presumed legislative intent embodied in General Statutes § 1-1 (u), which
provides that ‘‘[t]he passage or repeal of an act shall not affect any action
then pending.’’ (Emphasis added.)
The defendant then notes that ‘‘Roberts cites Diamond National Corp.
. . . for the proposition that a statutory cause of action that includes the
limitations period is substantive rather than procedural, implying that the
legislature could not revive such a cause once it has expired.’’ See Roberts
v. Caton, supra, 224 Conn. 489. We disagree, however, with the defendant’s
next point, which is that this ‘‘must be because the defendant would have
a due process or vested right not to have the cause revived,’’ particularly
because article first, § 10, of the Connecticut constitution ‘‘treats statutory
and common-law actions alike.’’ The defendant’s reliance on Diamond
National Corp. for this broad proposition is misplaced, as it fails to take
into account the long-standing distinction between substantive statutory
rights and procedural remedies affecting common-law rights, which also is
recognized for due process purposes as a matter of federal law. See authorities
cited in footnote 44 of this opinion.
Finally, in Moore, this court held that the 1985 amendment to the limitations
period on paternity actions, which expanded it from three years to
eighteen years, applied retroactively against the defendant, relying on the
unrebutted presumption that procedural statutes apply retroactively and
that it did not ‘‘appear that retroactive application of the new statute of
limitations would work an injustice on the defendant.’’ Moore v. McNamara,
supra, 201 Conn. 25. The defendant argues that, but for that fact that the
action in Moore was already pending, ‘‘Moore might well have ruled that
‘the new statute of limitations would work an injustice on the defendant,’
which hardly preserves the public peace, health and morals.’’ We view the
defendant’s argument regarding Moore as speculation, particularly given
the fact that, in that case, this court upheld a statutory amendment with
revival effect.
46 As the amicus curiae notes, this court has shown deference to the
legislature’s judgment in rejecting a state constitutional challenge to the
products liability statute of repose in General Statutes § 52-577a. Daily v.
New Britain Machine Co., 200 Conn. 562, 583–84, 512 A.2d 893 (1986).
Despite the fact that the challenged ten year repose period might cut off
claims before they even accrue, the court reasoned that the ‘‘purpose of
the statute of repose contained in § 52-577a is . . . to provide an orderly,
equitable process by which the products liability crisis could be eased
without unreasonably depriving individuals of their right of redress,’’ and
deferred to the legislature’s finding that the repose period might ‘‘bar the
assertion of a just claim’’ and ‘‘causes hardship’’ is ‘‘outweighed by the
advantage of outlawing stale claims.’’ (Internal quotation marks omitted.)
Id., 583.
47 The court first considered resolving the case as a matter of statutory
interpretation, but concluded that the presumption that statutes affecting
substantive rights apply prospectively was inapplicable because the legislature
had used ‘‘inconvertibly clear and definite’’ language of retroactivity.
Goshen v. Stonington, supra, 4 Conn. 220.
We note that this principle of statutory construction has been codified
in General Statutes § 55-3, which we ‘‘have uniformly interpreted . . . as
a rule of presumed legislative intent that statutes affecting substantive rights
shall apply prospectively only,’’ while ‘‘procedural or remedial statutes are
intended to apply retroactively absent a clear expression of legislative intent
to the contrary . . . .’’ (Internal quotation marks omitted.) Investment Associates
v. Summit Associates, Inc., supra, 309 Conn. 867–68; see, e.g.,
D’Eramo v. Smith, 273 Conn. 610, 622–23, 872 A.2d 408 (2005); see also
D’Eramo v. Smith, supra, 633 (Zarella, J., concurring) (relying on Goshen
and stating that, ‘‘in light of our continued reliance on the principle that no
statute affecting substantive rights shall be construed to have a retrospective
effect in the absence of an unequivocal expression of legislative intent to
the contrary, it is impermissible to construe a statute’s terms by seeking
guidance from the legislative history’’).
48 Our independent research and the parties’ briefs do not disclose any
on point case law from the courts of Alaska, Maryland, Nevada, Ohio, and
Mississippi. See, e.g., Catholic Bishop of North Alaska v. Does, 141 P.3d 719,
725 (Alaska 2006) (interpretation of statute against retroactive application
‘‘makes it unnecessary for us to consider the . . . argument that retroactive
application of this statute would violate any rights of repose that vested
once the original statute of limitations had expired’’).
We note in particular our disagreement with both parties’ reliance on
Pratte v. Stewart, 125 Ohio St. 3d 473, 929 N.E.2d 415 (2010), as that case
did not concern a defendant’s challenge to a statute of limitations that had
the effect of reviving a time-lapsed action. See id., 481 (rejecting plaintiff’s
challenge, under state constitution open courts provision, to change in
statute of limitations that abrogated state supreme court decision imposing
discovery tolling rule because plaintiff had no ‘‘vested right in the commonlaw
discovery rule . . . and we would offend the separation-of-powers doctrine
by invalidating the legislature’s decision to impose a reasonable statute
of limitations for claims of childhood sexual abuse’’).
Finally, although there is no decision squarely on point in Maryland, that
state’s existing case law appears to favor the defendant’s position. Compare
Doe v. Roe, 419 Md. 687, 703–707, 20 A.3d 787 (2011) (The court held that
the statute extending the limitations period for tort claims arising from child
sexual abuse is procedural or remedial, and may be applied retroactively
to cases not yet time barred, but noted that ‘‘[w]e would be faced with a
different situation entirely had [the defendant’s] claim been barred under
the three-year limitations period . . . . Because we are not presented with
that scenario, we express no holding regarding the applicability of [the
extended limitations statute] to child sexual abuse claims barred under the
three-year statute as of . . . the effective date of the new statute.’’), with
Dua v. Comcast Cable, 370 Md. 604, 633, 805 A.2d 1061 (2002) (‘‘[t]his [c]ourt
has consistently held that the Maryland [c]onstitution ordinarily precludes
the [l]egislature [1] from retroactively abolishing an accrued cause of action,
thereby depriving the plaintiff of a vested right, and [2] from retroactively
creating a cause of action, or reviving a barred cause of action, thereby
violating the vested right of the defendant’’); but see Allstate Ins. Co. v.
Kim, 376 Md. 276, 296–98, 829 A.2d 611 (2003) (legislature did not violate
defendant’s vested rights by retroactively abrogating defense of parentchild
immunity).
49 See Schulte v. Wageman, 465 N.W.2d 285, 287 (Iowa 1991); Orman v.
Van Arsdell, 12 N.M. 344, 350, 78 P. 48 (1904); Pnakovich v. SWCC, 163 W.
Va. 583, 589–91, 259 S.E.2d 127 (1979).
50 The Georgia Supreme Court has followed Campbell v. Holt, supra, 115
U.S. 620, and Chase Securities Corp. v. Donaldson, supra, 325 U.S. 304, in
concluding that ‘‘the legislature may revive a workers’ compensation claim
which would have been barred by a previous limitation period by enacting
a new statute of limitation, without violating our constitutional prohibition
against retroactive laws.’’ Canton Textile Mills, Inc. v. Lathem, supra, 253
Ga. 105; see also Vaughn v. Vulcan Materials Co., 266 Ga. 163, 164, 465
S.E.2d 661 (1996) (‘‘[t]here is no vested right in a statute of limitation’’).
51 We note the somewhat nuanced nature of the Kansas Supreme Court’s
decision in Harding, namely, that under the Kansas [c]onstitution, ‘‘[t]he
legislature has the power to revive actions barred by a statute of limitations
if it specifically expresses its intent to do so through retroactive application
of a new law. The legislature cannot revive a cause of action barred by a
statute of repose, as such action would constitute the taking of property
without due process.’’ (Emphasis omitted.) Harding v. K.C. Wall Products,
Inc., supra, 250 Kan. 669; see also id., 668 (‘‘[W]e consider it important to
explain the difference between the two theories. A statute of limitations
extinguishes the right to prosecute an accrued cause of action after a period
of time. It cuts off the remedy. It is remedial and procedural. A statute of
repose limits the time during which a cause of action can arise and usually
runs from an act of a defendant. It abolishes the cause of action after the
passage of time even though the cause of action may not have yet accrued.
It is substantive. Thus, Kansas constitutional protection applies only to
statutes of repose because they pertain to substantive rights.’’).
52 New Jersey’s case law addressing this issue contains some inconsistency.
Specifically, in State by Parsons v. Standard Oil Co., 5 N.J. 281, 74
A.2d 565 (1950), aff’d, 341 U.S. 428, 71 S. Ct. 822, 95 L. Ed. 1078 (1951),
the New Jersey Supreme Court rejected the federal approach embodied in
Campbell v. Holt, supra, 115 U.S. 620, and Chase Securities Corp. v. Donaldson,
supra, 325 U.S. 304, with respect to claims arising from contracts,
stating that, ‘‘[u]nder our law, the right to interpose the bar of the statute
of limitations to actions in contract of this class is a vested property right
which the law-making body may not abrogate or impair. It is fundamental
that the denial of the remedy affects the substance of the right in the
constitutional sense. . . . When the remedy is taken away, the right ceases
to exist.’’ (Citation omitted.) The New Jersey Supreme Court subsequently
declined ‘‘to accord this statement [in Standard Oil Co.] comprehensive
amplitude,’’ holding that ‘‘it should be confined to the particular issue before
the [c]ourt in that case, i.e., the effect of lapse of time upon a claim sounding
in contract. The plaintiff’s [workers’ compensation] claim in the case before
us does not spring from contract; it is a right born of statute.’’ Panzino v.
Continental Can Co., supra, 71 N.J. 305.
Numerous New Jersey lower court decisions establish that Panzino limited
Standard Oil Co. to contracts, insofar as they have rejected state and
federal due process challenges to the legislative revival of a variety of lapsed
tort actions. See, e.g., Short v. Short, 372 N.J. Super. 333, 338–39, 858 A.2d
571 (App. Div. 2004) (statutory wrongful death claims arising from certain
homicide crimes that have resulted in criminal conviction), cert. denied,
182 N.J. 429, 866 A.2d 985 (2005); D.J.L. v. Armour Pharmaceutical Co.,
307 N.J. Super. 61, 84–85, 84 n.20, 704 A.2d 104 (Ch. Div. 1997)(claims against
manufacturers of proprietary blood products by persons who contracted HIV
or AIDS).
53 See Johnson v. Garlock, Inc., 682 So. 2d 25, 28 (Ala. 1996); Jefferson
County Dept. of Social Services v. D.A.G., 199 Colo. 315, 317–18, 607 P.2d
1004 (1980); Doe v. Roman Catholic Diocese, 862 S.W.2d 338, 341–42 (Mo.
1993); Gould v. Concord Hospital, 126 N.H. 405, 408, 493 A.2d 1193 (1985);
Wright v. Keiser, 568 P.2d 1262, 1267 (Okla. 1977); Ford Motor Co. v. Moulton,
511 S.W.2d 690, 696–97 (Tenn.), cert. denied, 419 U.S. 870, 95 S. Ct. 129, 42
L. Ed. 2d 109 (1974); Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d
1, 4 (Tex. 1999).
We observe, however, that notwithstanding Ford Motor Co. v. Moulton,
supra, 511 S.W.2d 690, Tennessee state law appears unsettled on this point.
Curiously, the United States Court of Appeals for the Sixth Circuit, noting a
change in the membership of the Tennessee Supreme Court, and subsequent
decisions quoting from the dissent in Moulton, declined to follow the state
high court’s decision in Moulton, concluding that the Sixth Circuit’s ‘‘knowledge
of the careful and progressive character of the Tennessee Supreme
Court, make[s] it clear to us that the old vested rights doctrine as applied
to statutes of limitations in Moulton is no longer the law in Tennessee
and will be overruled when the occasion arises.’’ Murphree v. RaybestosManhattan,
Inc., 696 F.2d 459, 462 (6th Cir. 1982). Subsequent Tennessee
lower state court decisions have noted the Sixth Circuit’s holding in
Murphree, but continued to follow the vested rights approach dictated by
the highest state court in Moulton. See, e.g., Wyatt v. A-Best Products Co.,
924 S.W.2d 98, 104 (Tenn. App. 1995) (‘‘[W]e hold that the 1979 asbestos
exception cannot be applied retroactively to revive [the defendant’s already
time barred] cause of action. This result is not pleasant, for it means that
[the defendant’s] claim was barred . . . before he could be rationally
expected to have been aware that he suffered an injury.’’); see also id., 104
n.8 (expressly disagreeing with prediction in Murphree).
54 See Murray v. Luzenac Corp., 175 Vt. 529, 530–31, 830 A.2d 1 (2003);
Capron v. Romeyn, 137 Vt. 553, 555–56, 409 A.2d 565 (1979).
55 See Green v. Karol, 168 Ind. App. 467, 477, 344 N.E.2d 106 (1976);
Johnson v. Gans Furniture Industries, Inc., 114 S.W.3d 850, 854–55 (Ky.
2003); Dobson v. Quinn Freight Lines, Inc., 415 A.2d 814, 816 (Me. 1980);
Nichols v. Wilbur, 256 Or. 418, 419–20, 473 P.2d 1022 (1970); Maycock v.
Gravely Corp., 352 Pa. Super. 421, 427, 508 A.2d 330 (1986), appeal denied,
514 Pa. 618, 521 A.2d 932 (1987).
56 The case law of our neighbor to the east on this issue bears special
mention, given the parties’ apparently divergent understanding of it. In
Twomey v. Carlton House of Providence, Inc., 113 R.I. 264, 270–71, 320 A.2d
98 (1974), the Rhode Island Supreme Court followed the federal approach
and upheld the constitutionality of an expanded statute of limitations that
applied retroactively to revive a time barred personal injury action. In so
concluding, the court noted its preference for Justice Bradley’s dissenting
opinion in Campbell v. Holt, supra, 115 U.S. 620; see footnote 42 of this
opinion; but deemed itself constrained to follow the majority’s opinion in
Campbell because the Rhode Island state constitution lacked a civil due
process clause at the time. Twomey v. Carlton House of Providence, Inc.,
supra, 271. Following the 1986 amendment ofthe state constitution to include
a civil due process clause, the Rhode Island Supreme Court adopted Justice
Bradley’s approach as a matter of state constitutional law, to preclude
‘‘legislation with retroactive features permitting revival of an already timebarred
action that would impinge upon a defendant’s vested and substantive
rights . . . .’’ Kelly v. Marcantonio, supra, 678 A.2d 883. Thus, we agree with
the defendant that Kelly represents current Rhode Island law on this issue.
57 We note that Virginia law presents an interesting treatment of this issue.
In Starnes v. Cayouette, supra, 244 Va. 202, the Virginia Supreme Court
considered the constitutionality of a statute that extended the accrual time
of a cause of action arising from injuries caused by sexual abuse, and also
provided a limited revival period for otherwise time barred actions. Id.,
204–205. The court held that this revival provision violated the due process
clause of the Virginia state constitution, relying on centuries old decisions
in the area of statutory construction restricting the legislature’s power to
‘‘remove the bar [of the lapsed statute of limitations] by retrospective legislation.’’
(Internal quotation marks omitted.) Id., 208. Citing Justice Bradley’s
dissent in Campbell v. Holt, supra, 115 U.S. 620; see footnote 42 of this
opinion; the court held that there was ‘‘no constitutionally significant distinction
between the two rights of defense,’’ namely, a vested right to a commonlaw
defense and a ‘‘statute imposing time limits on a right to bring action
on a common law cause of action such as those she has pleaded,’’ stating
that ‘‘[b]oth are rights to a valuable property interest, and such rights are
substantive in nature.’’ Starnes v. Cayouette, supra, 211.
Thereafter, the Virginia constitution was amended to overrule Starnes
specifically, with a provision that: ‘‘ ‘The General Assembly’s powerto define
the accrual date for a civil action based on an intentional tort committed
by a natural person against a person who, at the time of the intentional tort,
was a minor shall include the powerto provide forthe retroactive application
of a change in the accrual date. No natural person shall have a constitutionally
protected property right to bar a cause of action based on intentional
torts as described herein on the ground that a change in the accrual date
for the action has been applied retroactively or that a statute of limitations
or statute of repose has expired.’ ’’(Emphasis added.) Kopalchick v. Catholic
Diocese of Richmond, 274 Va. 332, 337, 645 S.E.2d 439 (2007), quoting Va.
Const., art. IV, § 14; see also Kopalchick v. Catholic Diocese of Richmond,
supra, 340 (concluding that diocese is not ‘‘natural person’’ subject to amendment,
and ‘‘[w]ith respect to a defendant that is not a ‘natural person,’ the
[preexisting] state of the law, as interpreted in Starnes, continues in effect’’).
58 The New York Court of Appeals has stated that, unlike a final judgment,
‘‘the running of a [s]tatute of [l]imitations creates no . . . vested or property
right. To the contrary, although it bars a remedy on the claim so long as it
remains effective, it does not destroy the right or foreclose a change in
the legislative policy which resulted in imposition of the bar.’’ Thomas v.
Bethlehem Steel Corp., 63 N.Y.2d 150, 162, 470 N.E.2d 831, 481 N.Y.S.2d 33
(1984). Thus, New York’s state and federal courts have applied the exceptional
circumstances rule of Gallewski to uphold statutes reviving causes
of action in a variety of cases wherein the plaintiff could not have brought
an action in a timely manner. See Hymowitz v. Eli Lilly & Co., 73 N.Y.2d
487, 514, 539 N.E.2d 1069, 541 N.Y.S.2d 941 (1989) (upholding legislature’s
adoption of discovery rule for‘‘ ‘latent effects of exposure to any substance’ ’’
and simultaneous one year revival of lapsed actions because operation of
‘‘the exposure rule prevented the bringing of timely actions,’’ and ‘‘an injustice
has been rectified’’); Raquet v. J.M. Braun Builders, Inc., 273 App. Div.
2d 850, 709 N.Y.S.2d 292 (revival clause in statute abrogating common-law
firefighters’ rule), appeal dismissed, 95 N.Y.2d 902, 739 N.E.2d 1147, 716
N.Y.S.2d 642 (2000); Matter of McCann v. Walsh Construction Co., 282 App.
Div. 444, 450, 123 N.Y.S.2d 509 (1953) (upholding statute reviving time barred
claims for workers’ compensation arising from compressed air illness
because it was ‘‘a disease of an insidious character, the effects of which
might be latent or long delayed, the right to compensation might be barred
by the operation of the [s]tatute of [l]imitations even before the claimant
was aware of the fact that he had the disease’’), aff’d, 306 N.Y. 904, 119 N.E.2d
596 (1954); see also In re Agent Orange Products Liability Litigation, 597
F. Supp. 740, 812 (E.D.N.Y. 1984) (servicepersons injured by Agent Orange);
but see In re World Trade Center Lower Manhattan Disaster Site Litigation,
United States District Court, Docket No. 07-CV-00060 (AKH) (S.D.N.Y.
December 8, 2014) (invalidating ‘‘Jimmy Nolan’s Law,’’ which revived time
barred claims arising from cleanup of ground zero following terrorist attacks
of September 11, 2001, because injured workers had already enjoyed protection
of New York’s discovery rule, ‘‘which protected [them] against the
unjust consequences imposed by the prior statute of limitations rule, which
calculated the limitations period from the date of exposure,’’ meaning that
‘‘there was no lingering injustice that Jimmy Nolan’s Law had to correct’’).
59 See also Liebig v. Superior Court, 209 Cal. App. 3d 828, 834–35, 257
Cal. Rptr. 574 (1989) (The court stated, in dicta, after declining to adopt
the federal approach as a matter of California law, that ‘‘[e]ven if we were
to assume arguendo that a vested right exists in repose of a cause of action,
the law is clear that vested rights are not immune from retroactive laws
when an important state interest is at stake. . . . In this case the important
state interest espoused by [the statute of limitations amendment reviving
lapsed actions] is the increased availability of tort relief to plaintiffs who
had been the victims of sexual abuse while a minor.’’ [Citations omitted.]),
review denied, California Supreme Court, Docket No. S006295 (June 22,
1989).
60 Along these lines, the defendant posits that ‘‘[l]aw-abiding people and
organizations need to know when they can safely dispose of mountains of
records, and insurance companies need to know how long claims can be
asserted when they are setting premiums. On the latter point, reviving an
expired claim gives insurance companies no opportunity to recoup the
expenses of such a claim through premiums. . . . In any event, all of us
at some point need to know when we can and should move on.’’ (Citation
omitted.)
The defendant argues that these concerns are of particular significance
in child sexual abuse cases, given the already lengthy statute of limitations
and the fact that ‘‘the potential defense witnesses typically are much older.
By 2008, [Ferguson] was dead, his supervising priest was dead, [Whealon]
was dead, and the psychiatrist to whom [Whealon] sent [Ferguson] was
dead. Medical records from 1979 through 1983 were routinely destroyed in
1996. Societal standards about dealing with sex offenders have certainly
changed dramatically over the past [thirty] years. Much earlier disclosure
of the misconduct surely would have served societal interests better.’’
61 Thus, such commentators endorse revival statutes as part of the solution
to this problem, and argue in support of their constitutionality, even under
heightened scrutiny. See M. Hamilton, supra, 79 Brook. L. Rev. 404; see also
E. Khorram, ‘‘Crossing the Limit Line: Sexual Abuse and Whether Retroactive
Application of Civil Statutes of Limitation are Legal,’’ 16 U.C. Davis J. Juv.
L. & Policy 391, 425 (2012) (arguing that ‘‘immunity from civil suit is a vested
property right, and a deprivation of such is a violation of the [f]ourteenth
[a]mendment without a compelling state interest,’’ but contending that
‘‘[p]rotecting children through granting legal access is a compelling state
interest that should be trumpeted as such’’); W. Gray, ‘‘A Proposal for Change
in Statutes of Limitations in Childhood Sexual Abuse Cases,’’ 43 Brandeis
L.J. 493, 509 (2004–2005) (noting that ‘‘revival statutes . . . help in cases
where the applicable statute of limitations has already passed,’’ and urging
states to ‘‘endeavor to permanently solve the problem of statutes of limitations
in childhood sexual abuse cases by drafting forward-thinking legislation
designed to confront the myriad facets of the childhood sexual abuse
problem’’); J. Miller, ‘‘The Constitutionality of and Need for Retroactive Civil
Legislation Relating to Child Sexual Abuse,’’ 17 Cardozo J.L. & Gender 599,
624 (2010–2011) (‘‘state courts that interpret their state constitutions as
protecting an individual’s reliance on statutes of limitations should either
alter this interpretation or consider amending their state constitution for
the sake of child sexual abuse victims’’).
62 The concurring opinion criticizes our analysis ofthe public policy Geisler
factor as ‘‘internally inconsistent,’’ contending that we ‘‘[purport] to undertake
an independent review of the sociological and economic considerations
at stake, in accordance with Geisler, but then [fail] to do so’’ by ‘‘defer[ring]
to the legislature’s primary responsibility in pronouncing the public policy
of our state.’’ (Internal quotation marks omitted.) The concurrence further
states, that if ‘‘we were to defer to the legislature when considering the
sociological and economic implications of a statute under Geisler . . . then
that factor always would support the constitutionality of a statute.’’ (Emphasis
added.) We respectfully disagree with the concurrence’s view of our
approach to the public policy factor in Geisler. Beyond the deference inherent
in the use of the reasonable doubt burden that a party seeking to strike
a statute must carry; see, e.g., Kerrigan v. Commissioner of Public Health,
supra, 289 Conn. 155; we defer in this case to the legislature’s judgment
because the parties have advanced competing reasonable policy concerns,
and the legislative record reveals that the legislature made a considered
decision that reflects those issues. Such deference would not be appropriate
in deciding a state constitutional claim wherein the record lacks a similarly
considered legislative judgment.
63 In applying the rational basis standard, our ‘‘function . . . is to decide
whether the purpose of the legislation is a legitimate one and whether the
particular enactment is designed to accomplish that purpose in a fair and
reasonable way. If an enactment meets this test, it satisfies the constitutional
requirements of due process . . . . In determining whether the challenged
classification is rationally related to a legitimate public interest, we are
mindful that [t]he test . . . is whether this court can conceive of a rational
basis for sustaining the legislation; we need not have evidence that the
legislature actually acted upon that basis. . . . Rational basis review is
satisfied so long as there is a plausible policy reason for the classification
. . . . [I]t is irrelevant whether the conceivable basis for the challenged
distinction actually motivated the legislature. . . . To succeed, the party
challenging the legislation must negative every conceivable basis which
might support it . . . .’’ (Citations omitted; internal quotation marks omitted.)
Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 381–82, 957 A.2d 821 (2008).

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