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	Motions Seek Damages from Chicago Archdiocese By Matt C. Abbott Renew America [Chicago IL] May 12, 2006 http://www.renewamerica.us/columns/abbott/060513 The following is most of the text of two motions filed May 11, 2006 in Illinois. They involve lawsuits against the Rev. Daniel McCormack, a priest of the Chicago archdiocese who is charged with molesting five boys. PLAINTIFFS' MOTION TO ADD PRAYER FOR RELIEF SEEKING PUNITIVE DAMAGES NOW COMES the Plaintiffs, Jane Doe for herself and on behalf of her minor son, John Doe, by and through their attorneys, Kerns, Pitrof, Frost and Pearlman and Jeff Anderson & Associates, and move this Court to allow them leave to allow the Plaintiffs to add a claim for punitive damages. In support of this motion, the Plaintiffs submit the following Memorandum of Law and the accompanying affidavits. INTRODUCTION As set forth in the Complaint, this case arises out of the recent childhood sexual abuse of Plaintiff John Doe 100, a young boy, by Fr. Dan McCormack ("McCormack"). The actions and inactions of the Archdiocese with regard to McCormack are outrageous and have devastated numerous children and families. The Archdiocese received at least four separate reports of McCormack sexually abusing young boys before he molested John Doe 100. Yet, somehow, the Archdiocese now states that it does not have documentation about some reports of the abuse even though its employees insist that they documented some of the reports. Moreover, numerous Archdiocesan employees violated the Illinois criminal laws by failing to report McCormack's suspected sexual abuse of children. Based on this evidence alone there is a reasonable likelihood that Plaintiffs will be able to show that the Archdiocese was utterly indifferent to the rights of countless children and families. Accordingly, Plaintiffs should be allowed to amend their complaint to add a claim for punitive damages. ARGUMENT I. Standard for Punitive Damages. A Plaintiff may not include a prayer for punitive damages in the original complaint. 735 ILCS 5/2-604.1 (2005). However, a plaintiff may, pursuant to a pretrial motion and after a hearing before the court, amend the complaint to include a prayer for relief seeking punitive damages. The court shall allow the motion to amend the complaint if the plaintiff establishes at such hearing a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages. 735 ILCS 5/2-604.1 (2005) On a motion to amend to add a claim for punitive damages, all evidence is viewed in the light most favorable to the plaintiff. Stojkovich v. Monadnock Bldg., 281 Ill.App.3d 733, 666 N.E.2d 704 (Ill. Ct. App. 1996). "It has long been established in this State that punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others." Barton v. Chicago and North Western Transp. Co., 325 Ill.App.3d 1005, 757 N.E.2d 533, 554 (Ill. Ct. App. 2001) (quotations omitted). Willful and wanton misconduct "approaches the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it." Loitz v. Remington Arms Co., Inc., 138 Ill.2d 404, 414-16, 563 N.E.2d 397 (1990)). "Willful and wanton misconduct" means a course of action which shows an utter indifference to or conscious disregard for the safety of others. Poole v. City of Rolling Meadows, 167 Ill.2d 41, 656 N.E.2d 768, 771 (Ill. 1995) (citations omitted). The issue on appeal in Hartman was whether the trial court properly permitted a claim for punitive damages to go to the jury. Hartman v. Pittsburgh Corning Corp., 261 Ill.App.3d 706, 634 N.E.2d 1133, 1143 (Ill. Ct. App. 1994). The appellate court affirmed the punitive damages award, based on evidence that: defendant had knowledge of the harmful effects of asbestos, destroyed documents containing such information, and continued to manufacture and sell the product without affixing any warnings about its dangers, [meaning that] defendant's actions clearly rise to the level of deliberate infliction of a 'highly unreasonable risk of harm upon others in conscious disregard of it.' Id. (citations omitted) (emphasis added). Like Hartman, the Archdiocese had a dangerous condition, McCormack, on its hands, possibly destroyed documents about McCormack's dangers, and failed to warn any of the minor children about McCormack's past sexual abuse of children. Accordingly, Plaintiffs should be permitted to add a punitive damages claim to their Complaint. II. Plaintiffs Should Be Permitted to Add a Punitive Damages Count Because the Archdiocese Received at Least Four Separate Reports That McCormack Sexually Molested Boys Before McCormack Molested John Doe 100, the Archdiocese Repeatedly Violated Illinois Criminal Statutes By Not Reporting Suspected Child Abuse to Law Enforcement, and Defendants Allowed McCormack to Have Virtually Unlimited Access to Children. Even at this stage of this litigation, there is overwhelming evidence that Plaintiffs will be able to introduce facts sufficient to support an award of punitive damages. As detailed below, the Archdiocese allowed McCormack to have unlimited access to vulnerable children despite numerous reports that he had sexually abused children in the past. The Archdiocese violated Illinois law by failing to report McCormack's suspected child abuse. Additionally, the Archdiocese does not have documents that its own employees say were created which documented reports of child abuse involving McCormack. Finally, and incredibly, the Archdiocese used an "honor system" whereby McCormack was supposed to monitor his own actions thereby allowing numerous children to be in harms way. Each of these reasons independently would permit Plaintiffs to add a prayer for punitive damages. See Hartman, 261 Ill.App.3d 706, 634 N.E.2d at 1143. Collectively, these events provide overwhelming support establishing that Plaintiffs have met their burden under Section 5/2-604.1 of the Code of Civil Procedure. A. The Archdiocese received numerous reports of McCormack sexually molesting children. 1. 1988-1991 — McCormack's Sexual Misconduct in Seminary. From 1988 to 1991, McCormack was involved in three separate occasions of sexual misconduct, two involving adults and one involving a minor while McCormack was at Niles Seminary. (Defenbaugh Audit, p. 25, attached as Ex. A to the Affidavit of Jeffrey R. Anderson.)1 In 1992, the Vice Rector of the Archdiocese's seminary, St. Mary's of the Lake at Mundelein, found out about the three distinct allegations of sexual misconduct by McCormack. (Defenbaugh Audit, p. 26.) 2. 1999 — Holy Family Principal Discovers McCormack's abuse of children. In October 1999 the principal of Holy Family School, an Archdiocesan school, received a report that Fr. Dan McCormack told a fourth grade male student at the school to pull down his pants so that Fr. McCormack could measure the boy after the boy asked if he could be an altar server. (Defenbaugh Audit, p. 24.) The principal questioned McCormack about this report and McCormack would only repeat that he had "used poor judgment." (Defenbaugh Audit, p. 24.) The principal reported this matter to an official at the Office of Catholic Schools. (Defenbaugh Audit, p. 24.) The principal was told by the official at the Office of Catholic Schools that "[i]f the parents aren't pushing it, let it go." (Defenbaugh Audit, p. 24.) The principal also hand-delivered a letter describing what McCormack had done with the fourth grade boy to the front desk at the Archdiocese. (Defenbaugh Audit at 24.) 3. 1999-2005 — Office of Catholic Schools allegations and suspicions regarding McCormack. From 1999 to 2005, officials of the Office of Catholic Schools, an Archdiocesan organization, received numerous allegations of suspicious activities involving McCormack with children. (Defenbaugh Audit, p.24) These allegations were credible enough to cause the teachers to do their own "informal monitoring" of their minor students when McCormack was in the school. (Defenbaugh Audit, p.24) 4. 2003 — Report to the Archdiocese that McCormack had molested another child. On September 5, 2003, the Archdiocese received a report of possible misconduct by McCormack with children. (Defenbaugh Audit, p. 22.) The female who reported this left a telephone number for a return call to make sure that the Archdiocese responded appropriately to this complaint. (Defenbaugh Audit, p. 22.) The Archdiocese took no action on this complaint for more than two years until January of 2006, when McCormack was arrested for a second time. (Defenbaugh Audit, pp. 21-22.) There was no action taken on this 2003 complaint when McCormack was arrested for the first time by law enforcement in August of 2006. Nor was any follow through action taken on this 2003 complaint when the Archdiocese received a different report of McCormack molesting children in August or September of 2005. "Had a complaint of misconduct on the part of Fr. McCormack in September 2003 been properly dealt with at the time, it would have identified another alleged sexually abused minor by Fr. McCormack." (Defenbaugh Audit, p. 3.) Had such a proper investigation occurred in August or September 2005, the subsequent abuse of Plaintiff John Doe 100 could have been prevented. B. The Archdiocese violated Illinois Law when it failed to report the suspected abuse of children by McCormack to law enforcement, thereby endangering countless children. Numerous Archdiocesan officials failed to report suspected child abuse by McCormack to law enforcement as required by Illinois law. In 1999, after the principal of Holy Family received the report that McCormack had sexually molested a child and notified other officials within the Archdiocese, neither she, the school officials, nor Archdiocesan personnel reported the accusation to law enforcement. (Defenbaugh Audit, p. 24.) From 1999 to 2005, several officials with the Archdiocese's Office of Catholic Schools received numerous allegations or had suspicions about McCormack's misconduct with children. (Defenbaugh Audit, p. 24.) Not one of these allegations or suspicions was reported to Illinois law enforcement, as required by law. (Defenbaugh Audit, p. 24.) It appears that almost all of the Archdiocesan Office of Catholic Schools personnel were not familiar with the Illinois laws requiring them to report suspected child abuse. (Defenbaugh Audit, pp. 24-26.) The Archdiocese's own audit concluded that this "[f]ailure to report allegations of clerical sexual abuse of minors on the part of numerous individuals within the Archdiocesan staff and the Office of Catholic Schools since October 1999 only exacerbated this state of affairs to the point of violating Illinois Criminal Statute — Abused and Neglected Child Reporting Act." (Defenbaugh Audit, p. 2.) Had the Archdiocese reported everything that it knew about McCormack's abuse of children to law enforcement, many children would not have been abused. Because the Archdiocese endangered the lives of these children, punitive damages are appropriate. C. The Archdiocese's lack of documentary evidence of McCormack abusing children despite its employees' insistence that they documented these reports shows a blatant disregard for the rights of children. There are missing documents regarding McCormack's abuse of children. Had these been kept or found these documents may have saved children from being molested. In 1999 the principal of Holy Family School hand-delivered a letter to the front desk at the Archdiocese informing it that McCormack had sexually abused a fourth grade boy. (Defenbaugh Audit, p. 24.) Archdiocesan officials were not able to find this letter after extensive review in 2006. (Defenbaugh Audit, p. 24.) From 1988 to 1991, McCormack was involved in three separate occasions of sexual misconduct, two involving adults and one involving a minor while McCormack was at Niles Seminary. (Defenbaugh Audit, p. 25.) These allegations were documented and placed in McCormack's file. (Defenbaugh Audit, p. 26.) When investigated in 2006, McCormack's file did not contain any documentation of McCormack's sexual misconduct in the seminary. (Defenbaugh Audit, p. 26.) These missing documents are evidence of a disregard for the well being of children. See Hartman, 261 Ill.App.3d 706, 634 N.E.2d at 1143. D. The Archdiocese's monitoring of McCormack was unsubstantial and allowed him to have virtually unlimited access to vulnerable children. The Archdiocese's monitoring system did nothing to prevent McCormack from abusing children and allowed him to have unlimited access to children, despite numerous complaints that he molested children in the past. The Archdiocese's monitoring system is insubstantial due to the almost total dependence of the accused priest abusers' self reported activities, lack of corroboration of those activities. In this current "honor" system, the accused priest abusers are essentially self monitored. They may choose whether or not to be in treatment, choose the type of treatment, choose the treatment provider, choose when, where and with whom they travel, choose where they work and choose what to report on their daily logs. . . . This current "honor" system of monitoring allows the accused priests to remain relatively anonymous. Sex offenders strive for and thrive on anonymity. It is anonymity that allows them to offend against many victims, and offend over very long periods of time. (Childers Report, pp. 16-17, attached as Ex. B to Affidavit of Jeffrey Anderson.)2 (emphasis added). "A major and profound weakness in this monitoring system is the lack of communication among the parties who have some direct responsibility for the accused priest abuser." (Childers Report, p. 17.) "The potential consequence of this failure to communicate effectively is well illustrated in the case of Father Dan McCormack." (Childers Report, p. 17.) In August/September of 2005 McCormack was orally given restrictions to not be alone with children, not to have children in the rectory and not to teach his assigned algebra class. (Defenbaugh Audit, p. 20.) The Archdiocese designated a priest at St. Agatha to "monitor" McCormack. (Defenbaugh Audit, p. 20.) McCormack's monitor "had received no direction regarding his monitoring responsibilities, other than to ensure that McCormack was not alone in the rectory with minors." (Childers Report, p. 18.) The monitor told the Archdiocese that he was rarely in the rectory. (Childers Report, pp. 17-18.) The monitor also told the Archdiocese that he would not be able to actively monitor McCormack's activities because the monitoring priest was assigned full time at a different parish in the Archdiocese and was a teacher and coach at a different school. (Defenbaugh Audit, p. 21.) The monitor asked for details about McCormack's offensive behavior, but was told by the Archdiocese that the information could not be revealed to him. (Childers Report, p. 18.) McCormack immediately ignored and violated the oral instructions given to him. (Defenbaugh Audit, p. 21.) For example, McCormack — unsupervised — traveled with three male minors to Minnesota over the 2005 Labor Day weekend. (Defenbaugh Audit, p. 21.) There is no evidence that McCormack's activities as a boy's basketball coach were restricted or monitored in any way. (Defenbaugh Audit, p. 20.) This was after the Archdiocese had over four reports of McCormack's sexual misconduct. "Archdiocese policy on monitoring is inadequate and ineffective and does not accomplish the primary goals of protecting children and the integrity of the Church." (Defenbaugh Audit, p. 40.) "So long as the monitoring of accused priests is based on an "honor system," and does not ensure effective communication among all parties, it is likely that situations similar to those of Father McCormack will reoccur." (Childers Report, p. 18.) E. Jane Doe's son was sexually abused by McCormack after the Archdiocese had at least three separate complaints of abuse against McCormack. Moreover, once Jane Doe found out about the abuse, she repeatedly reported the sexual abuse of her son to the Archdiocese in order to protect other children from McCormack. Unlike Jane Doe, the Archdiocese chose not to protect children and allowed McCormack to have continued access to children until his second arrest in 2006. In August of 2005, when Jane Doe's family was getting ready to come back to the Chicago area, her son, John Doe, who was 10 years old at the time, broke down in tears. (Jane Doe Aff. at ¶ 8.)3 John Doe told his mother that Dan McCormack repeatedly touched his private parts. (Jane Doe Aff. at ¶ 8.) John Doe said that McCormack would come out onto the playground after Jane Doe had to drop John Doe off early for school and tell John Doe that he needed help with some of the church related things inside. (Jane Doe Aff. at ¶ 9.) John Doe told his mother that McCormack would then take John Doe to a storage area inside St. Agatha's school where McCormack molested him. (Jane Doe Aff. at ¶ 9.) In August of 2005, Jane Doe contacted the Archdiocese of Chicago to inform them of what happened to her son and to make sure that McCormack was not abusing other children. (Jane Doe Aff. at ¶ 11.) Jane Doe talked to Leah McCluskey. (Jane Doe Aff. at ¶ 11.) Around the same time, the Archdiocese knew that McCormack had been arrested on an allegation of sexual abuse of a minor. (Defenbaugh Audit, p. 37.) Jane Doe told the Archdiocese officials that McCormack had sexually abused her son in 2003 when her son was only eight years old. (Jane Doe Aff. at ¶ 11.) In September of 2005, Jane Doe again spoke with representatives of the Archdiocese of Chicago, including Leah McCluskey. (Jane Doe Aff. at ¶ 12.) Jane Doe again told her that McCormack had molested her son. (Jane Doe Aff. at ¶ 12.) Jane Doe told them that she wanted to make sure that McCormack was not at St. Agatha's and that he didn't have access to children. (Jane Doe Aff. at ¶ 12.) Leah McCluskey indicated that the Archdiocese was already aware that the police were investigating McCormack and that the Archdiocese was doing something to take McCormack out of the parish and away from kids. (Jane Doe Aff. at ¶ 12.) In September of 2005, Jane Doe met with officials at St. Agatha's. (Jane Doe Aff. at ¶ 13.) The principal of St. Agatha's was at the meeting. (Jane Doe Aff. at ¶ 13.) Jane Doe told them that McCormack repeatedly sexually molested her son, John Doe, in 2003. (Jane Doe Aff. at ¶ 13.) Jane Doe also told them she was concerned about other children being abused by McCormack. (Jane Doe Aff. at ¶ 13.) Despite these reports and warnings from Jane Doe, the Archdiocese continued to provide McCormack with access to children, thereby endangering the lives of numerous children. One child that was abused as a result of the Archdiocese's failure to remove McCormack was John Doe 100. In late January, Mother Doe 100's son reported to her that Fr. Dan had touched him in ways that were inappropriate. (Mother Doe 100 Aff. at ¶ 3.) Mother Doe 100 asked her son what Fr. Dan had done to him and it was clear to her that it was sexual abuse. (Mother Doe 100 Aff. at ¶ 3.) John Doe 100 began to spend time with Fr. Dan in the fall of 2005 through January of 2006. (Mother Doe 100 Aff. at ¶ 2.) The Archdiocese's actions and inactions with regard to McCormack showed an utter indifference to the rights of John Doe 100, a vulnerable ten year old child as well as countless other children who were endangered despite Jane Doe's efforts to get the Archdiocese to remove McCormack from a position where he had access to children. CONCLUSION As specified above, the Archdiocese received at least four separate reports that McCormack sexually molested boys before McCormack molested John Doe 100, the Archdiocese repeatedly violated Illinois criminal statutes by not reporting suspected child abuse to law enforcement, and they allowed McCormack to have virtually unlimited access to children. The Archdiocese's own audit concluded that "[t]here were times when these concerns and non-action on the part of the Archdiocesan personnel created situations whereby children were placed at risk." (Defenbaugh Audit, p. 25.) Accordingly, Plaintiff should be permitted to seek punitive damages in this case. Dated: May 11, 2006 ____________________________________________ Attorneys for Plaintiffs Jane Doe and her minor son John Doe KERNS, PITROF, FROST & PEARLMAN, LLC Marc J. Pearlman Michael L. Brooks Debra Goldberg Three First National Plaza 70 West Madison Suite 5350 Chicago, IL 60602 Atty No.: 38766 (312) 261-4550 Jeffrey R. Anderson JEFF ANDERSON & ASSOCIATES, P.A. E-1000 First National Bank Building 332 Minnesota Street St. Paul, MN 55101 Atty No. 6281587 (651) 227-9990 ATTORNEYS FOR PLAINTIFFS PLAINTIFF'S MOTION TO ADD PRAYER FOR RELIEF SEEKING PUNITIVE DAMAGES NOW COMES the Plaintiffs, Mother Doe 100 for herself and on behalf of her minor son, John Doe 100, by and through their attorneys, Kerns, Pitrof, Frost and Pearlman and Jeff Anderson & Associates, and move this Court, pursuant to 735 ILCS 2-604.1, for leave to add a prayer for relief seeking punitive damages. In support of this motion, the Plaintiffs state: INTRODUCTION As set forth in the Complaint, this case arises out of the recent childhood sexual abuse of Plaintiff John Doe 100, a young boy, by Fr. Dan McCormack ("McCormack"). The actions and inactions of the Archdiocese with regard to McCormack are outrageous and have devastated numerous children and families. The Archdiocese received at least four separate reports of McCormack sexually abusing young boys before he molested John Doe 100. Yet, somehow, the Archdiocese now states that it does not have documentation about some reports of the abuse even though its employees insist that they documented some of the reports. Moreover, numerous Archdiocesan employees violated the Illinois criminal laws by failing to report McCormack's suspected sexual abuse of children. Based on this evidence alone there is a reasonable likelihood that Plaintiffs will be able to show that the Archdiocese was utterly indifferent to the rights of countless children and families. Accordingly, Plaintiffs should be allowed to amend their complaint to add a claim for punitive damages. ARGUMENT I. Standard for Punitive Damages. A Plaintiff may not include a prayer for punitive damages in the original complaint. 735 ILCS 5/2-604.1 (2005). However, a plaintiff may, pursuant to a pretrial motion and after a hearing before the court, amend the complaint to include a prayer for relief seeking punitive damages. The court shall allow the motion to amend the complaint if the plaintiff establishes at such hearing a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages. 735 ILCS 5/2-604.1 (2005) On a motion to amend to add a claim for punitive damages, all evidence is viewed in the light most favorable to the plaintiff. Stojkovich v. Monadnock Bldg., 281 Ill.App.3d 733, 666 N.E.2d 704 (Ill. Ct. App. 1996). "It has long been established in this State that punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others." Barton v. Chicago and North Western Transp. Co., 325 Ill.App.3d 1005, 757 N.E.2d 533, 554 (Ill. Ct. App. 2001) (quotations omitted). Willful and wanton misconduct "approaches the degree of moral blame attached to intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of it." Loitz v. Remington Arms Co., Inc., 138 Ill.2d 404, 414-16, 563 N.E.2d 397 (1990)). "Willful and wanton misconduct" means a course of action which shows an utter indifference to or conscious disregard for the safety of others. Poole v. City of Rolling Meadows, 167 Ill.2d 41, 656 N.E.2d 768, 771 (Ill. 1995) (citations omitted). The issue on appeal in Hartman was whether the trial court properly permitted a claim for punitive damages to go to the jury. Hartman v. Pittsburgh Corning Corp., 261 Ill.App.3d 706, 634 N.E.2d 1133, 1143 (Ill. Ct. App. 1994). The appellate court affirmed the punitive damages award, based on evidence that: defendant had knowledge of the harmful effects of asbestos, destroyed documents containing such information, and continued to manufacture and sell the product without affixing any warnings about its dangers, [meaning that] defendant's actions clearly rise to the level of deliberate infliction of a 'highly unreasonable risk of harm upon others in conscious disregard of it.' Id. (citations omitted) (emphasis added). Like Hartman, the Archdiocese had a dangerous condition, McCormack, on its hands, possibly destroyed documents about McCormack's dangers, and failed to warn any of the minor children about McCormack's past sexual abuse of children. Accordingly, Plaintiffs should be permitted to add a punitive damages claim to their Complaint. II. Plaintiffs Should Be Permitted to Add a Punitive Damages Count Because the Archdiocese Received at Least Four Separate Reports That McCormack Sexually Molested Boys Before McCormack Molested John Doe 100, the Archdiocese Repeatedly Violated Illinois Criminal Statutes By Not Reporting Suspected Child Abuse to Law Enforcement, and Defendants Allowed McCormack to Have Virtually Unlimited Access to Children. Even at this stage of this litigation, there is overwhelming evidence that Plaintiffs will be able to introduce facts sufficient to support an award of punitive damages. As detailed below, the Archdiocese allowed McCormack to have unlimited access to vulnerable children despite numerous reports that he had sexually abused children in the past. The Archdiocese violated Illinois law by failing to report McCormack's suspected child abuse. Additionally, the Archdiocese does not have documents that its own employees say were created which documented reports of child abuse involving McCormack. Finally, and incredibly, the Archdiocese used an "honor system" whereby McCormack was supposed to monitor his own actions thereby allowing numerous children to be in harms way. Each of these reasons independently would permit Plaintiffs to add a prayer for punitive damages. See Hartman, 261 Ill.App.3d 706, 634 N.E.2d at 1143. Collectively, these events provide overwhelming support establishing that Plaintiffs have met their burden under Section 5/2-604.1 of the Code of Civil Procedure. A. The Archdiocese received numerous reports of McCormack sexually molesting children. 1. 1988-1991 — McCormack's Sexual Misconduct in Seminary. From 1988 to 1991, McCormack was involved in three separate occasions of sexual misconduct, two involving adults and one involving a minor while McCormack was at Niles Seminary. (Defenbaugh Audit, p. 25, attached as Ex. A to the Affidavit of Jeffrey R. Anderson.)1 In 1992, the Vice Rector of the Archdiocese's seminary, St. Mary's of the Lake at Mundelein, found out about the three distinct allegations of sexual misconduct by McCormack. (Defenbaugh Audit, p. 26.) 2. 1999 — Holy Family Principal Discovers McCormack's abuse of children. In October 1999 the principal of Holy Family School, an Archdiocesan school, received a report that Fr. Dan McCormack told a fourth grade male student at the school to pull down his pants so that Fr. McCormack could measure the boy after the boy asked if he could be an altar server. (Defenbaugh Audit, p. 24.) The principal questioned McCormack about this report and McCormack would only repeat that he had "used poor judgment." (Defenbaugh Audit, p. 24.) The principal reported this matter to an official at the Office of Catholic Schools. (Defenbaugh Audit, p. 24.) The principal was told by the official at the Office of Catholic Schools that "[i]f the parents aren't pushing it, let it go." (Defenbaugh Audit, p. 24.) The principal also hand-delivered a letter describing what McCormack had done with the fourth grade boy to the front desk at the Archdiocese. (Defenbaugh Audit at 24.) 3. 1999-2005 — Office of Catholic Schools allegations and suspicions regarding McCormack. From 1999 to 2005, officials of the Office of Catholic Schools, an Archdiocesan organization, received numerous allegations of suspicious activities involving McCormack with children. (Defenbaugh Audit, p.24) These allegations were credible enough to cause the teachers to do their own "informal monitoring" of their minor students when McCormack was in the school. (Defenbaugh Audit, p.24) 4. 2003 — Report to the Archdiocese that McCormack had molested another child. On September 5, 2003, the Archdiocese received a report of possible misconduct by McCormack with children. (Defenbaugh Audit, p. 22.) The female who reported this left a telephone number for a return call to make sure that the Archdiocese responded appropriately to this complaint. (Defenbaugh Audit, p. 22.) The Archdiocese took no action on this complaint for more than two years until January of 2006, when McCormack was arrested for a second time. (Defenbaugh Audit, pp. 21-22.) There was no action taken on this 2003 complaint when McCormack was arrested for the first time by law enforcement in August of 2006. Nor was any follow through action taken on this 2003 complaint when the Archdiocese received a different report of McCormack molesting children in August or September of 2005. "Had a complaint of misconduct on the part of Fr. McCormack in September 2003 been properly dealt with at the time, it would have identified another alleged sexually abused minor by Fr. McCormack." (Defenbaugh Audit, p. 3.) Had such a proper investigation occurred in August or September 2005, the subsequent abuse of Plaintiff John Doe 100 could have been prevented. 5. August 2005 — Police arrest McCormack for suspected child abuse. In August of 2005, the Archdiocese knew that McCormack had been arrested on an allegation of sexual abuse of a minor. (Defenbaugh Audit, p. 37.) 6. August/September 2005 — Jane Doe reports to the Archdiocese that McCormack sexually molested her minor son. In August of 2005, when Jane Doe's family was getting ready to come back to the Chicago area, her son, John Doe, who was 10 years old at the time, broke down in tears. (Jane Doe Aff. at ¶ 8.) John Doe told his mother that Dan McCormack repeatedly touched his private parts. (Jane Doe Aff. at ¶ 8.) John Doe said that McCormack would come out onto the playground after Jane Doe had to drop John Doe off early for school and tell John Doe that McCormack needed help with some of the church related things inside. (Jane Doe Aff. at ¶ 9.) John Doe told his mother that McCormack would then take John Doe to a storage area inside St. Agatha's school where McCormack molested him. (Jane Doe Aff. at ¶ 9.) In August of 2005, Jane Doe contacted the Archdiocese of Chicago to let them know what happened to her son and to make sure that McCormack was not abusing other children. (Jane Doe Aff. at ¶ 11.) Jane Doe talked to Leah McCluskey, an Archdiocese employee. (Jane Doe Aff. at ¶ 11.) Jane Doe told her that McCormack had sexually abused her son in 2003 when her son was only eight years old. (Jane Doe Aff. at ¶ 11.) In September of 2005, Jane Doe again spoke with representatives of the Archdiocese of Chicago, including Leah McCluskey. (Jane Doe Aff. at ¶ 12.) Jane Doe again told her that McCormack had molested her son. (Jane Doe Aff. at ¶ 12.) Jane Doe told them that she wanted to make sure that McCormack was not at St. Agatha's and that he didn't have access to children. (Jane Doe Aff. at ¶ 12.) Leah McCluskey indicated that the Archdiocese was already aware that the police were investigating McCormack and that the Archdiocese was doing something to take McCormack out of the parish and away from kids. (Jane Doe Aff. at ¶ 12.) 7. September 2005 — Jane Doe reports to the principal at St. Agatha that McCormack sexually molested her minor son. In September of 2005, Jane Doe met with officials at St. Agatha's, including its principal. (Jane Doe Aff. at ¶ 13.) Jane Doe told these officials that McCormack repeatedly sexually molested her son, John Doe, in 2003. (Jane Doe Aff. at ¶ 13.) Jane Doe also told them she was concerned about other children being abused by McCormack. (Jane Doe Aff. at ¶ 13.) 8. December 2005 — DCFS indicates McCormack for suspected child molestation The Illinois Department of Children and Family Services investigates reports of child abuse. (Defenbaugh Audit, p. 22.) On or before December 14, 2005, DCFS investigated McCormack for sexual molestation with a child. (Defenbaugh Audit, p. 22.) These reports were known only to the Archdiocese and its staff. The public did not know about McCormack's abuse of children, because the Archdiocese did not inform the public of these credible allegations. The Archdiocese left McCormack in his position of trust and authority where he was able to remain anonymous and perpetrate many other children. The Archdiocese's knowledge of this problem and failure to warn children and their families about it warrants the imposition of punitive damages. See Hartman, 261 Ill.App.3d 706, 634 N.E.2d at 1143 (noting knowledge and failure to warn as key factors in affirming punitive damages award). B. The Archdiocese violated Illinois Law when it failed to report the suspected abuse of children by McCormack to law enforcement, thereby endangering countless children. Numerous Archdiocesan officials failed to report suspected child abuse by McCormack to law enforcement as required by Illinois law. In 1999, after the principal of Holy Family received the report that McCormack had sexually molested a child and notified other officials within the Archdiocese, neither she, the school officials, nor Archdiocesan personnel reported the accusation to law enforcement. (Defenbaugh Audit, p. 24.) From 1999 to 2005, several officials with the Archdiocese's Office of Catholic Schools received numerous allegations or had suspicions about McCormack's misconduct with children. (Defenbaugh Audit, p. 24.) Not one of these allegations or suspicions was reported to Illinois law enforcement, as required by law. (Defenbaugh Audit, p. 24.) It appears that almost all of the Archdiocesan Office of Catholic Schools personnel were not familiar with the Illinois laws requiring them to report suspected child abuse. (Defenbaugh Audit, pp. 24-26.) The Archdiocese's own audit concluded that this "[f]ailure to report allegations of clerical sexual abuse of minors on the part of numerous individuals within the Archdiocesan staff and the Office of Catholic Schools since October 1999 only exacerbated this state of affairs to the point of violating Illinois Criminal Statute — Abused and Neglected Child Reporting Act." (Defenbaugh Audit, p. 2.) Had the Archdiocese reported everything that it knew about McCormack's abuse of children to law enforcement, many children would not have been abused. Because the Archdiocese endangered the lives of these children, punitive damages are appropriate. C. The Archdiocese's lack of documentary evidence of McCormack abusing children despite its employees' insistence that they documented these reports shows a blatant disregard for the rights of children. There are missing documents regarding McCormack's abuse of children. Had these been kept or found these documents may have saved children from being molested. In 1999 the principal of Holy Family School hand-delivered a letter to the front desk at the Archdiocese informing it that McCormack had sexually abused a fourth grade boy. (Defenbaugh Audit, p. 24.) Archdiocesan officials were not able to find this letter after extensive review in 2006. (Defenbaugh Audit, p. 24.) From 1988 to 1991, McCormack was involved in three separate occasions of sexual misconduct, two involving adults and one involving a minor while McCormack was at Niles Seminary. (Defenbaugh Audit, p. 25.) These allegations were documented and placed in McCormack's file. (Defenbaugh Audit, p. 26.) When investigated in 2006, McCormack's file did not contain any documentation of McCormack's sexual misconduct in the seminary. (Defenbaugh Audit, p. 26.) These missing documents are evidence of a disregard for the well being of children. See Hartman, 261 Ill.App.3d 706, 634 N.E.2d at 1143. D. The Archdiocese's monitoring of McCormack was unsubstantial and allowed him to have virtually unlimited access to vulnerable children. The Archdiocese's monitoring system did nothing to prevent McCormack from abusing children and allowed him to have unlimited access to children, despite numerous complaints that he molested children in the past. The Archdiocese's monitoring system is insubstantial due to the almost total dependence of the accused priest abusers' self reported activities, lack of corroboration of those activities. In this current "honor" system, the accused priest abusers are essentially self monitored. They may choose whether or not to be in treatment, choose the type of treatment, choose the treatment provider, choose when, where and with whom they travel, choose where they work and choose what to report on their daily logs. . . . This current "honor" system of monitoring allows the accused priests to remain relatively anonymous. Sex offenders strive for and thrive on anonymity. It is anonymity that allows them to offend against many victims, and offend over very long periods of time. (Childers Report, pp. 16-17, attached as Ex. B to Affidavit of Jeffrey Anderson.)2 (emphasis added). "A major and profound weakness in this monitoring system is the lack of communication among the parties who have some direct responsibility for the accused priest abuser." (Childers Report, p. 17.) "The potential consequence of this failure to communicate effectively is well illustrated in the case of Father Dan McCormack." (Childers Report, p. 17.) In August/September of 2005 McCormack was orally given restrictions to not be alone with children, not to have children in the rectory and not to teach his assigned algebra class. (Defenbaugh Audit, p. 20.) The Archdiocese designated a priest at St. Agatha to "monitor" McCormack. (Defenbaugh Audit, p. 20.) McCormack's monitor "had received no direction regarding his monitoring responsibilities, other than to ensure that McCormack was not alone in the rectory with minors." (Childers Report, p. 18.) The monitor told the Archdiocese that he was rarely in the rectory. (Childers Report, pp. 17-18.) The monitor also told the Archdiocese that he would not be able to actively monitor McCormack's activities because the monitoring priest was assigned full time at a different parish in the Archdiocese and was a teacher and coach at a different school. (Defenbaugh Audit, p. 21.) The monitor asked for details about McCormack's offensive behavior, but was told by the Archdiocese that the information could not be revealed to him. (Childers Report, p. 18.) McCormack immediately ignored and violated the oral instructions given to him. (Defenbaugh Audit, p. 21.) For example, McCormack — unsupervised — traveled with three male minors to Minnesota over the 2005 Labor Day weekend. (Defenbaugh Audit, p. 21.) There is no evidence that McCormack's activities as a boy's basketball coach were restricted or monitored in any way. (Defenbaugh Audit, p. 20.) This was after the Archdiocese had over four reports of McCormack's sexual misconduct. "Archdiocese policy on monitoring is inadequate and ineffective and does not accomplish the primary goals of protecting children and the integrity of the Church." (Defenbaugh Audit, p. 40.) "So long as the monitoring of accused priests is based on an "honor system," and does not ensure effective communication among all parties, it is likely that situations similar to those of Father McCormack will reoccur." (Childers Report, p. 18.) E. Mother Doe 100's son was sexually abused by McCormack after the Archdiocese had received at least four separate complaints that McCormack had sexually abused children and while McCormack was supposedly being "monitored." In 2005, Mother Doe 100 began to know Fr. Dan McCormack through his work as a priest at St. Agatha Parish. (Mother Doe 100 Aff. at ¶ 2.)3 He showed a great deal of interest in Mother Doe 100's minor son and she felt that it would be helpful for Fr. Dan to spend time with her son, John Doe 100. (Mother Doe 100 Aff. at ¶ 2.) John Doe 100 was then 10 years old. (Mother Doe 100 Aff. at ¶ 2.) Mother Doe 100 allowed her son to spend time with Fr. Dan on a number of occasions. (Mother Doe 100 Aff. at ¶ 2.) John Doe 100 began to spend time with Fr. Dan in the fall of 2005 through January of 2006. (Mother Doe 100 Aff. at ¶ 2.) In late January 2006, Mother Doe 100's son told her that Fr. Dan had touched him in ways that were inappropriate. (Mother Doe 100 Aff. at ¶ 3.) Mother Doe 100 asked her son what Fr. Dan had done to him and it was clear to her that McCormack had sexually abused her son. (Mother Doe 100 Aff. at ¶ 3.) On January 30, 2006, Mother Doe 100 and her son reported the abuse to law enforcement authorities. (Mother Doe 100 Aff. at ¶ 4.) From this Mother Doe 100 understood that her son had been sexually molested more than once between the fall of 2005 and January of 2006. (Mother Doe 100 Aff. at ¶ 4.) If Mother Doe 100 had ever been told that Fr. Dan McCormack was not fit and holy or warned that he had any history or suspicions of being inappropriate with children, Mother Doe 100 never would have allowed her son to spend any time with Fr. Dan under any circumstances. (Mother Doe 100 Aff. at ¶ 5.) The Archdiocese's actions and inactions with regard to McCormack showed an utter indifference to the rights of John Doe 100, a vulnerable ten year old child. CONCLUSION As specified above, the Archdiocese received at least four separate reports that McCormack sexually molested boys before McCormack molested John Doe 100, the Archdiocese repeatedly violated Illinois criminal statutes by not reporting suspected child abuse to law enforcement, and they allowed McCormack to have virtually unlimited access to children. The Archdiocese's own audit concluded that "[t]here were times when these concerns and non-action on the part of the Archdiocesan personnel created situations whereby children were placed at risk." (Defenbaugh Audit, p. 25.) Accordingly, Plaintiff should be permitted to seek punitive damages in this case. Dated: May 11, 2006 ____________________________________________ Attorneys for Plaintiff Mother Doe 100 on behalf of John Doe 100, a minor KERNS, PITROF, FROST & PEARLMAN, LLC Marc J. Pearlman Michael L. Brooks Debra Goldberg Serena E. Pollack Three First National Plaza 70 West Madison Suite 5350 Chicago, IL 60602 Atty No.: 38766 (312) 261-4550 Jeffrey R. Anderson JEFF ANDERSON & ASSOCIATES, P.A. E-1000 First National Bank Building 332 Minnesota Street St. Paul, MN 55101 (651) 227-9990 ATTORNEYS FOR PLAINTIFFS Matt C. Abbott is a Catholic journalist and commentator. He is a columnist for and/or contributor to RenewAmerica.us, TheConservativeVoice.com, MichNews.com, Catholic.org, Opeds.com, and Speroforum.com. He can be reached at mattcabbott@gmail.com.
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