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	Justices Hear Church Appeal By Sam Hemingway Burlington Free Press March 26, 2009 http://www.burlingtonfreepress.com/article/20090326/NEWS02/903260309/-1/NEWS05 SOUTH ROYALTON -- The jury in a 2008 clergy sexual abuse trial was misled by a Burlington judge into awarding nearly $8 million in punitive damages to the victim, a lawyer for the state's Roman Catholic diocese told the Vermont Supreme Court on Wednesday. "The threshold concern here is what did the trial judge charge the jury," Rutland lawyer Kaveh Shahi told the five justices during a hearing on the church's appeal that lasted an hour, twice the time usually allotted for oral arguments before the high court. Shahi said Judge Matthew Katz, who presided over the trial involving claims the Rev. Edward Paquette molested a Burlington altar boy in the late 1970s, did not follow the law when he allowed the jury to consider punitive damages in the case. Of the $8.7 million awarded to the plaintiff in the case, $7.75 million was in punitive damages. Shahi said under Katz's interpretation of when punitive damages are applicable, a parking lot owner could be held liable if a canopy wasn't constructed to keep ice off the lot and prevent injury to customers. "The trial court erred in not directing the jury to find 'bad motive' before it could assess liability," Shahi argued in an appeal brief filed with the high court. "It misstated the basis for imposing punitive damages." Elizabeth Miller, a Burlington lawyer hired to represent the victim at the Wednesday hearing, told the justices that Katz had instructed the jury properly. The victim, an altar boy at Burlington's Christ the King Church from 1976 to 1978, claims Paquette fondled him 20 to 50 times at the church. Miller said Katz correctly told the jury it could award punitive damages if it found the diocese was "reckless" in its supervision of Paquette. "This diocese had actual knowledge this priest had abused boys," Miller said. "We didn't have just inaction or inattention here." The Free Press does not publish the identity of victims of sexual abuse without consent. The five justices pelted both lawyers with questions during the hearing, asking Miller to explain why the victim waited until 2005 to file his case and challenging Shahi's claim that their past rulings on punitive damages apply in this case. Miller said her client thought he was the victim of a "bad seed" and had not realized the diocese's complicity with his abuse until he saw a newspaper article in 2005 that described how the diocese knew Paquette was a pedophile when it hired and retained him. "It would be an injustice to have a standard where a victim is expected to presume an employer facilitated illegal conduct on behalf of an employee," Miller said. Shahi urged the Vermont Supreme Court to follow its ruling in a Norwich University student hazing case, comparing the handling of the Paquette incidents by then-Bishop John Marshall to the conduct of Norwich administrators in the hazing case. The lower court in the Norwich case had allowed the jury to award $1.75 million in punitive damages to the student on grounds the school hadn't done enough to prevent the hazing from occurring. The high court disagreed and threw out the award in 1999, allowing only $488,600 in compensatory damages. Then-Chief Justice Jeffrey Amestoy said Norwich's handling of the students' complaints, although indifferent, did not constitute the "degree of malice required" to award punitive damages. "We believe there is a lack of evidence showing that Bishop Marshall really understood the potential harm this action would cause," Shahi said. Wednesday's hearing was conducted in an auditorium at the Vermont Law School and watched by more than 200 students, faculty and observers. The high court's ruling in the case, when it is made, is likely to have a major impact on how the ongoing clergy sex abuse scandal in Burlington is resolved. Many of the 22 pending clergy sex abuse cases at Chittenden Superior Court involve long-ago molestations of altar boys by Paquette.
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