2005 Regular Session
To: Judiciary B
By: Representative Hines
AN ACT TO ALLOW THE FILING OF ACTIONS OF CHILDHOOD SEXUAL ABUSE CASES THAT MAY HAVE BEEN TIME BARRED; TO PROVIDE PROCEDURES FOR SUCH CASES; TO AMEND SECTION 99-1-5, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight (8) years of the date the plaintiff attains the age of majority or within three (3) years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later, for any of the following actions:
(a) An action against any person for committing an act of childhood sexual abuse.
(b) An action for liability against any person or entity who owed a duty or care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff.
(c) An action for liability against any person or entity where an intentional act by that person or entity was a legal cause of the childhood sexual abuse which resulted in the injury to the plaintiff.
(2) (a) No action described in paragraph (b) or (c) of subsection (1) may be commenced on or after the plaintiff's twenty-sixth birthday.
(b) This subsection does not apply if the person or entity knew or had reason to know, or was otherwise on notice, of any unlawful sexual conduct by an employee, volunteer, representative, or agent, and failed to take reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person, including, but not limited to, preventing or avoiding placement of that person in a function or environment in which contact with children is an inherent part of that function or environment. For purposes of this subdivision, providing or requiring counseling is not sufficient, in and of itself, to constitute a reasonable step or reasonable safeguard.
(3) Notwithstanding any other provision of law, any claim for damages described in paragraph (b) or (c) of subsection (1) that is permitted to be filed pursuant to paragraph (b) of subsection (2) that would otherwise be barred as of July 1, 2004, solely because the applicable statute of limitations has or had expired, is revived, and, in that case, a cause of action may be commenced within one (1) year of July 1, 2004. Nothing in this subsection shall be construed to alter the applicable statute of limitations period of an action that is not time barred as July 1, 2004.
(4) Subsection (3) does not apply to either of the following:
(a) Any claim that has been litigated to finality on the merits in any court of competent jurisdiction prior to July 1, 2004. Termination of a prior action on the basis of the statute of limitations does not constitute a claim that has been litigated to finality on the merits.
(b) Any written, compromised settlement agreement which has been entered into between a plaintiff and a defendant where the plaintiff was represented by an attorney who was admitted to practice law in this state at the time of the settlement, and the plaintiff signed the agreement.
(5) "Childhood sexual abuse" as used in this section includes any act committed against the plaintiff that occurred when the plaintiff was under the age of eighteen (18) years and that would have been proscribed by Sections 97-5-39, 97-5-23, 97-3-95(1)(c) or (d), or 97-5-33; or any prior laws of this state of similar effect at the time the act was committed. "Childhood sexual abuse" also includes rape. Nothing in this subsection limits the availability of causes of action permitted under subsection (1), including causes of action against persons or entities other than the alleged perpetrator of the abuse.
(6) Nothing in this section shall be construed to alter the otherwise applicable burden of proof that a plaintiff has in a civil action subject to this section.
(7) Every plaintiff twenty-six (26) years of age or older at the time the action is filed shall file certificates of merit as specified in subsection (8).
(8) Certificates of merit shall be executed by the attorney for the plaintiff and by a licensed mental health practitioner selected by the plaintiff declaring, respectively, as follows, setting forth the facts which support the declaration:
(a) That the attorney has reviewed the facts of the case, that the attorney has consulted with at least one (1) mental health practitioner who is licensed to practice and practices in this state and who the attorney reasonably believes is knowledgeable of the relevant facts and issues involved in the particular action, and that the attorney has concluded on the basis of that review and consultation that there is reasonable and meritorious cause for the filing of the action. The person consulted may not be a party to the litigation.
(b) That the mental health practitioner consulted is licensed to practice and practices in this state and is not a party to the action, that the practitioner is not treating and has not treated the plaintiff, and that the practitioner interviewed the plaintiff and is knowledgeable of the relevant facts and issues involved in the particular action, and has concluded, on the basis of his or her knowledge of the facts and issues, that in his or her professional opinion there is a reasonable basis to believe that the plaintiff had been subject to childhood sexual abuse.
(c) That the attorney was unable to obtain the consultation required by paragraph (a) because a statute of limitations would impair the action and the certificates required by paragraphs (a) and (b) could not be obtained before the impairment of the action. If a certificate is executed pursuant to this paragraph, the certificates required by paragraphs (a) and (b) shall be filed within sixty (60) days after filing the complaint.
(9) Where certificates are required pursuant to subsection (7), the attorney for the plaintiff shall execute a separate certificate of merit for each defendant named in the complaint.
(10) In any action subject to subsection (7), no defendant may be served, and the duty to serve a defendant with process does not attach, until the court has reviewed the certificates of merit filed pursuant to subsection (8) with respect to that defendant, and has found, in camera, based solely on those certificates of merit, that there is reasonable and meritorious cause for the filing of the action against that defendant. At that time, the duty to serve that defendant with process shall attach.
(11) A violation of this section may constitute unprofessional conduct and may be the grounds for discipline against the attorney.
(12) The failure to file certificates in accordance with this section shall be grounds for a demurrer or a motion to strike.
(13) In any action subject to subsection (7), no defendant may be named except by "Doe" designation in any pleadings or papers filed in the action until there has been a showing of corroborative fact as to the charging allegations against that defendant.
(14) At any time after the action is filed, the plaintiff may apply to the court for permission to amend the complaint to substitute the name of the defendant or defendants for the fictitious designation, as follows:
(a) The application shall be accompanied by a certificate of corroborative fact executed by the attorney for the plaintiff. The certificate shall declare that the attorney has discovered one or more facts corroborative of one or more of the charging allegations against a defendant or defendants, and shall set forth in clear and concise terms the nature and substance of the corroborative fact. If the corroborative fact is evidenced by the statement of a witness or the contents of a document, the certificate shall declare that the attorney has personal knowledge of the statement of the witness or of the contents of the document, and the identity and location of the witness or document shall be included in the certificate. For purposes of this section, a fact is corroborative of an allegation if it confirms or supports the allegation. The opinion of any mental health practitioner concerning the plaintiff shall not constitute a corroborative fact for purposes of this section.
(b) Where the application to name a defendant is made prior to that defendant's appearance in the action, neither the application nor the certificate of corroborative fact by the attorney shall be served on the defendant or defendants, nor on any other party or their counsel of record.
(c) Where the application to name a defendant is made after that defendant's appearance in the action, the application shall be served on all parties and proof of service provided to the court, but the certificate of corroborative fact by the attorney shall not be served on any party or their counsel of record.
(15) The court shall review the application and the certificate of corroborative fact in camera and, based solely on the certificate and any reasonable inferences to be drawn from the certificate, shall, if one or more facts corroborative or one or more of the charging allegations against a defendant has been shown, order that the complaint may be amended to substitute the name of the defendant or defendants.
(16) The court shall keep under seal and confidential from the public and all parties to the litigation, other than the plaintiff, any and all certificates of corroborative fact filed pursuant to subsection (14).
(17) Upon the favorable conclusion of the litigation with respect to any defendant for whom a certificate of merit was filed or for whom a certificate of merit should have been filed pursuant to this section, the court may, upon the motion of a party or upon the court's own motion, verify compliance with this section by requiring the attorney for the plaintiff who was required by subsection (8) to execute the certificate to reveal the name, address and telephone number of the person or persons consulted with pursuant to subsection (8) that were relied upon by the attorney in preparation of the certificate of merit. The name, address and telephone number shall be disclosed to the trial judge in camera and in the absence of the moving party. If the court finds there has been a failure to comply with this section, the court may order a party, a party's attorney, or both, to pay any reasonable expenses, including attorney's fees, incurred by the defendant for whom a certificate of merit should have been filed.
SECTION 2. Section 99-1-5, Mississippi Code of 1972, is amended as follows:
99-1-5. (1) A person shall not be prosecuted for any offense, with the exception of murder, manslaughter, aggravated assault, kidnapping, arson, burglary, forgery, counterfeiting, robbery, larceny, rape, embezzlement, obtaining money or property under false pretenses or by fraud, felonious abuse or battery of a child as described in Section 97-5-39, touching or handling a child for lustful purposes as described in Section 97-5-23, sexual battery of a child as described in Section 97-3-95(1)(c), (d) or (2) or exploitation of children as described in Section 97-5-33, unless the prosecution for such offense be commenced within two (2) years next after the commission thereof, but nothing contained in this section shall bar any prosecution against any person who shall abscond or flee from justice, or shall absent himself from this state or out of the jurisdiction of the court, or so conduct himself that he cannot be found by the officers of the law, or that process cannot be served upon him.
(2) Actions involving childhood sexual abuse may be filed as provided in Section 1 of this act.
SECTION 3. This act shall take effect and be in force from and after July 1, 2005.