CAMDEN, N.J. – Counsel for comedian Bill Cosby have lost out on an attempt to appeal a New Jersey federal judge’s ruling, one which denied the dismissal of a lawsuit connected to Cosby’s alleged sexual assault of an up-and-coming actress in 1990.
Back on Jan. 3, a ruling from U.S. District Court for the District of New Jersey Judge Noel Hillman disagreed with the argument presented by Cosby’s counsel, which suggested that the plaintiff Lili Bernard was outside the auspices of a New Jersey law which extended the statute of limitations for sexual assault injuries.
That statute has also been cited in sexual assault-related litigation against clergy from the Roman Catholic Church and officials from the Boy Scouts of America.
But in Hillman’s view, the law did in fact apply since Bernard 26 years old, a full-fledged adult, when the alleged assault took place and Cosby was not the subject of a criminal charge from the incident.
Bernard alleged in 1990, Cosby drugged and sexually assaulted her in an Atlantic City hotel room.
In October 2021, Bernard brought suit against Cosby under a New Jersey law which extended the statute of limitations for filing sexual assault claims that would otherwise be time-barred, by two years.
According to lawyers for Cosby, the New Jersey law’s tenets pertaining to “sexual abuse” and “prohibited sexual acts” were only intended to mean relating to those under the age 18, and thus, it would not apply to Bernard.
Further citing a 2006 ruling from the Supreme Court of New Jersey in Hardwicke v. American Boychoir School, Cosby argued that since Bernard did not connect a criminal conviction against him to the assault in question, she would not have grounds to sue Cosby for injuries and damages related to that same assault.
Simply stated, Hillman did not agree.
“The revival statute unambiguously provides the two-year revival window for an action at law for an injury resulting from the commission of a sexual assault or other crime of a sexual nature. Therefore, the Court finds that the plain, unambiguous language of the statute supports the interpretation that the revival window is triggered by the commission of, rather than conviction for, a sexual assault or other sexual offense,” Hillman said.
“Had the New Jersey Legislature intended to require conviction, rather than commission, to trigger the revival window, the court finds that it surely would have done so in plain and simple language. Instead, it chose the broader term – ’commission’ – over the narrower one – conviction’. In the absence of some ambiguity – and there is none – we assume the Legislature intended the meaning of the words it used. The fact that the Legislature utilized the word ‘commit’ in the state criminal code to define a criminal act does not usurp the use of that common and ordinary word in the other legal contexts, such as here common law tort, nor does it require the Court to ascribe more meaning to it than that context would otherwise require.”
Additionally, Hillman stated that the defendant mistook “commission” for “conviction”, which “further ignores the differences between criminal and civil matters – including different objectives, evidentiary burdens, and penalties.”
Hillman also opined that Cosby’s defense argument missed a crucial point that amendments to the Child Sexual Abuse Act were intended to provide grounds for suit under an extended statute of limitations to both children and adults.
“The Court holds that this statement provides evidence of legislative intent for the revival statute to apply to adults and, logically, not be limited by the language of the CSAA. As defendant appears to understand, ‘As written, the reviver statute requires a claim to be tethered to a statutory cause of action either ‘based on sexual abuse’ or ‘resulting from’ the commission of a crime.’ The Court is not alone in finding that causes of action defined within the CSAA are not required to trigger the revival window,” Hillman said.
In December 2022, Bernard joined four other plaintiffs in filing another sexual assault suit against Cosby in Manhattan Supreme Court. That case is connected to an alleged sexual assault by Cosby upon Bernard at his apartment in 1991 – an allegation the comedian denies – and cites a New York law similar in spirit to the one named in the New Jersey case.
UPDATE
One week after Hillman’s January ruling was issued, on Jan. 10, Cosby’s counsel sought to appeal it through interlocutory appeal.
However, Hillman denied this move in a subsequent ruling issued on Aug. 17.
Though Hillman found that without the benefit of the revival statute, Bernard’s claims would be barred by the statute of limitations (which would satisfy the first and third prongs of the certification for interlocutory appeal analysis) – Hillman further found that the second prong, whether there is substantial ground for a difference of opinion, remained unsatisfied.
“Defendant contends that the Court’s Jan. 3, 2023 decision is the first of its kind and immediate review is important because it would potentially inform the drafting and interpretation of similar laws in other states – creating national impact. Substantial ground for disagreement exists as to the fairness of stripping away a defendant’s statute-of-limitations defense, according to defendant, and the public-interest considerations present for the revival window as applied to minor victims may not exist for adult victims – setting a ‘slippery slope’ for the revival of other types of untimely claims, including domestic abuse. Defendant cites state high courts that have found a vested right in a statute of limitations and questions whether the New Jersey Legislature circumvented ex post facto principles by giving punitive effect to civil law. The Court is unpersuaded,” Hillman said.
“First, the state supreme court opinions cited by defendant are not binding on this Court. To the extent that they may possess persuasive value, the Court finds these decisions to be at large distinguishable from the present matter or reliant on state constitutions and legal precedent inapplicable – and in some ways contradictory – to the case at bar. Second, defendant’s appeal to fairness and policy considerations and the ‘slippery slope’ that might result from further legislative revival of expired claims are not proper matters of consideration for the Court. Even if the Court were sympathetic to these arguments, and it does not state so here, ‘judicial intervention is generally unwarranted no matter how unwise a court considers a policy decision of the legislative branch.’ The Court’s task in its Jan. 3, 2023 opinion was to interpret the intent of the New Jersey Legislature consistent with principles utilized within New Jersey and the Third Circuit. Defendant does not contend that the Court erred in doing so.”
Hillman concluded that a decision being “one of first impression does not itself inform whether a substantial ground for difference of opinion exists.”
“Finally, the Court does not find that the relative uniqueness of the revival statute or its broader implications necessitate certification. Though defendant asserts that this case turns on an ‘unprecedented statute that raises serious constitutional questions on which reasonable jurists may disagree,’ whether there is ‘substantial ground for a difference of opinion’ is not an academic exercise that turns on whether a hypothetical judge or law professor would agree with the Court’s ruling. The Court therefore holds that defendant’s arguments amount to a disagreement with the Court’s Jan. 3, 2023 decision, which is insufficient to warrant certification,” Hillman said.
U.S. District Court for the District of New Jersey case 1:21-cv-18566
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com