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DOE v. Roe No. 1

April 7, 1995

DOE, PLAINTIFF-APPELLANT,

v.

ROE NO. 1, DEFENDANT-APPELLEE,

AND

ROE NO. 2, DEFENDANT



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 93 C 46--Larry J. McKinney, Judge.

Before COFFEY and EASTERBROOK, Circuit Judges, and MCDADE, District Judge. *fn*

MCDADE, District Judge

ARGUED JANUARY 18, 1995

DECIDED APRIL 7, 1995

In this case premised upon diversity jurisdiction, Appellant Doe, *fn1 appeals from a final judgment entered on an order of the district court granting summary judgment in favor of Defendant/Appellee Roe No. 1. Because Roe No. 1 is one of two defendants in this case, Doe sought and was granted an order pursuant to Rule 54(b) of the Federal Rules of Civil Procedure directing the entry of a final judgment in favor of Roe No. 1 and against Doe on all counts or claims made by Doe against Roe No. 1. For the reasons set forth in this opinion, we affirm the decision of the district court.

BACKGROUND

Doe, who was born on October 20, 1960, is a thirty-four year old woman who purportedly suffers from a condition known as Multiple Personality Disorder ("MPD"). MPD is, apparently, characterized by the existence of multiple personalities within a single individual, one of which is considered the host personality. Doe, or her host personality, commenced the present action by filing a complaint on January 13, 1993. In her Complaint, Doe names as defendants Roe No. 1, her brother, and Roe No. 2, her mother. Doe alleges that Roe No. 1, who is six years her senior, engaged in a non-consensual, incestuous relationship with her from the time she was eight years old until she was fourteen years of age. This corresponds, approximately, to the time period of 1968 to 1974. The Complaint seeks both compensatory and punitive damages from Roe No. 1 based upon assault and battery, intentional infliction of emotional distress, and invasion of privacy.

As one might expect, Roe No. 1 filed a motion for summary judgment arguing that Doe's claims were barred by the Indiana statutes of limitations applicable to Doe's claims, Indiana Code 34-1-2-2(1) and 34-1-2-5. In pertinent part, Indiana Code 34-1-2-2(1) states:

Sec. 2. The following actions shall be commenced within the periods prescribed after the cause of action has accrued, and not afterwards:

(1) For injuries to person or character, for injuries to personal property, and for a forfeiture of penalty given by statute, within two years.

However, Indiana law prescribes a different statute of limitations for those persons who are under a legal disability at the time their cause of action accrues. Indiana Code 34-1-2-5 states that:

Any person being under legal disabilities when the cause of action accrues may bring his action within two (2) years after the disability is removed.

In Indiana, a person under eighteen years of age is considered to be under a legal disability. Ind. Code 1-1-4-5(21).

Indiana case law has, however, recognized that the statutory grace period allowing the filing of a cause of action two years after attaining the age of majority as contained in Indiana Code 34-1-2-5 would be of no avail to a new adult who has no memory or knowledge of an early childhood trauma or injury. The Supreme Court of Indiana addressed this problem in Fager v. Hundt, 610 N.E.2d 246 (Ind. 1993). In Fager, the Indiana Supreme Court refused to apply a ...


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