LAWYER for Sexual Abuse Victims Blasts Panel for Denying Appeal in $680m Lawsuit Filed against Yeshiva University

By Michael O'keeffe
New York Daily News
September 9, 2014

http://www.nydailynews.com/sports/i-team/lawyer-sexual-abuse-victims-blasts-appeals-panel-yeshiva-case-article-1.1933414

The lawyer for 34 men who claim Yeshiva University covered up decades of sexual abuse picked a fight on Tuesday with the appeals panel that shot down a $680 million lawsuit last week, accusing the three judges who denied his appeal of being in the tank for the Washington Heights school.

Attorney Kevin Mulhearn didn't pull any punches in papers filed on Tuesday asking the full Second Circuit Court of Appeals to rehear the case.

"The panel decision mocks the law, ignores the facts, insults the survivors of childhood sexual abuse and diminishes the dignity and integrity of this court," Mulhearn wrote. "The panel decision is grossly flawed, intellectually dishonest and antithetical to well-settled Supreme Court and Second Circuit jurisprudence."

Mulhearn called out three Second Circuit judges who upheld U.S. District Court Judge John G. Koeltl's decision to toss the case, accusing them of acting as attorneys and advocates for Yeshiva rather than as objective jurists.

"If the Second Circuit Court upholds the panel decision, it will diminish its own honor and prestige," Mulhearn said, accusing the panel of acting like a "a kangaroo court."

Mulhearn told the Daily News that the panel's decision will encourage schools, religious institutions and other organizations to continue to cover up sexual abuse until the statute of limitations expires.

"All they have to do is beat the clock," Mulhearn said. "If they do that, they face no accountability whatsoever."

A Yeshiva spokesman declined to comment.

Mulhearn had argued that the clock on the statue of limitations should have started running in December 2012, when the Jewish Daily Forward reported that school officials had for years ignored sex abuse complaints leveled against two teachers, Rabbi George Finkelstein and Rabbi Macy Gordon.

Mulhearn said the school deliberately turned a blind eye to the abuse reports and held them out as exceptional educators, even awarding scholarships in their names. The administration named Finkelstein as principal even though multiple students had complained he had assaulted them.

At an Aug. 28 hearing in Manhattan, a panel made up of three Second Circuit Court of Appeals judges — Denny Chin, Reena Raggi and Guido Calabresi — scoffed when Yeshiva University attorney Karen Bitar argued that the clock on the statute of limitations should begin when the abuse occurred.

The panel rejected both sides’ theories, and instead ruled that the three-year statute of limitations began once the students had left the school. By that point, the judges argued, the victims should have known that Yeshiva University officials were indifferent to their complaints.

Mulhearn said the panel went out of its way to adopt a legal theory that Yeshiva's own attorneys had rejected — and argued against.

"They bent over backwards to find a way to dismiss the case against Yeshiva University based on an argument waived and rejected by Yeshiva University's own attorneys," Mulhearn said. "I've never seen a more egregious abuse of judicial authority."

Nearly three dozen former students filed suit in Manhattan federal court last year, claiming that Yeshiva officials covered up sexual abuse that began at a university-affiliated high school in the 1970s and continued through the 1990s. One plaintiff said administrators ignored his protests when he told them that Gordon, a Judaic studies teacher, sodomized him with a toothbrush.

Other victims — the children of Holocaust survivors — said Finkelstein persuaded them not to tell their parents after he abused them because their parents had already suffered enough.

Koeltl dismissed the suit in January, saying the statute of limitations had expired on the lawsuit. Mulhearn, who helped 12 men who filed a lawsuit that accused Poly Prep Country Day School of covering up sexual abuse overcome statute of limitations issues, appealed Koeltl's ruling.

At an Aug. 28 hearing, Calabresi signaled that the panel would attempt to provide peace to the 34 former Yeshiva high school students: "Any decent court is going to be interested, if it possibly can, in giving redress," Calabresi said at the hearing.

Instead, Mulhearn said, the panel bent over backwards to develop its own theory to dump the lawsuit. He is asking the entire Second Circuit Court of Appeals, comprised of 13 active judges and one senior judge, to hear his arguments and reverse their colleagues' decision.

"What kind of atrocious signal does this send to schools and churches?" Mulhearn asked. "If you cover up abuse long enough and well enough, you can run out the clock and escape any and all potential legal liability."