Judge's Ruling Is Big Victory to Y.U. in $380M Sex Abuse Suit, Experts Say

Without Discovery, School Has Little Reason To Settle


By Anne Cohen

Published August 16, 2013, issue of August 23, 2013.

A federal judge’s recent decision barring discovery to 31 adults who say they were sexually abused as students at Yeshiva University High School for Boys years ago bodes poorly for the plaintiffs’ case, say two legal experts who have been following the case.

The August 6 decision by United States District Judge John G. Koeltl will effectively deny the plaintiffs’ attorney, Kevin Mulhearn, access to internal records from Y.U. as he seeks to counter a motion by Y.U. attorneys to dismiss the case.

That was a crucial tool in his surprise success in overcoming the state’s statute of limitations in a similar child sexual abuse case against Poly Prep Country Day School.

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“You know what I would say [to Y.U.] … I’d say, ‘Let’s not do anything,’” to settle the case, said Karen Burstein, a former judge. “Let’s make the strongest motion [to dismiss the case] that we can.’”

Indeed, in an accompanying ruling, Koeltl agreed to consider a motion from Y.U. to dismiss the case on the grounds that the plaintiffs had filed their suit long after the state’s statute of limitations for such misconduct had passed. He ordered Y.U. attorneys to submit written arguments supporting their motion by September 13, after which he will hear counterarguments from the plaintiffs before issuing a decision.

But meanwhile, said Burstein, a Democratic nominee for New York State attorney general in 1994, the judge’s decision not to allow discovery has removed all impetus on Y.U. to consider a settlement.

The 31 plaintiffs, all of them now adults, allege that they were abused from the late 1970s through the mid-1990s by two senior staff members at the high school, and by an outsider allowed into their dorm rooms. They charge also that Y.U. officials ignored repeated complaints about their abuse over many years and failed to report their allegations to law enforcement authorities.

New York State’s controversial statute of limitations law mandates that civil suits for child sexual abuse be filed before an alleged victim turns 23.

Mulhearn surprised many observers last December, when he overcame this legal hurdle in a similar suit filed by adults who were abused while they were students at Brooklyn’s prestigious Poly Prep Country Day School many years earlier. According to some experts on sexual abuse, this success owed much to the judge’s ruling in that case to allow Mulhearn to conduct discovery even as the judge considered Poly Prep’s motion to dismiss the case. This gave Mulhearn access to internal school records that he could use as evidence in his arguments against the dismissal motion on the grounds that the school had engaged in a cover-up of the allegations.

“I think [the former students] are going to have a very hard burden here,” Burstein said, referring to the current case.



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