Scarborough v. Altstatt

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1248

September Term, 2015

ROBIN ALTSTATT SCARBOROUGH, ET AL.

v.

LESLIE B. ALTSTATT

Krauser, C.J.,
Meredith,
Berger,

JJ.

Opinion by Berger, J.

Filed: June 30, 2016
This case involves an appeal of an order of the Circuit Court for Montgomery County

granting a motion to dismiss filed by appellee Leslie Altstatt (“Altstatt”). Robin Altstatt

Scarborough, Alice L. Altstatt, and Carol E. Altstatt, appellants (collectively, “the

Appellants”),1 filed the complaint giving rise to the present appeal, raising various claims

relating to injuries allegedly suffered due to childhood sexual abuse perpetrated by their

father, Altstatt. Altstatt filed a motion to dismiss, arguing that the Appellants’ claims were

barred by the applicable statute of limitations. The circuit court agreed with Altstatt and

dismissed the Appellants’ complaint with prejudice.

On appeal, the Appellants present a single question for our review, which we have

rephrased as follows:

Whether the circuit court erred by ruling that the Appellants’
complaint was barred by the statute of limitations.

Altstatt has moved to dismiss this appeal, arguing that the Appellants failed to file a

timely notice of appeal. For the reasons explained herein, we shall deny Altstatt’s motion

to dismiss this appeal and hold that the circuit court did not err by ruling that Appellants’

claims were barred by the statute of limitations.

FACTS AND PROCEEDINGS

On December 4, 2014, the Appellants filed a complaint in the Circuit Court for

Montgomery County alleging one count each of intentional infliction of emotional distress,

1
When necessary to identify the Appellants individually, we refer to them using their
first names for purposes of clarity and out of no disrespect.
assault and battery, and negligence as a result of sexual abuse by Altstatt while the

Appellants were minor children. The alleged abuse occurred between 1964 and 1984.

On January 20, 2015, Altstatt filed a motion to dismiss the complaint, arguing that

the Appellants’ claims were barred by the statute of limitations. The Appellants opposed the

motion to dismiss. The Appellants argued that they suffered from dissociative amnesia

which, they alleged, should toll the statute of limitations until the time they began to

remember the abuse in early 2014. The circuit court held a hearing on the motion to dismiss

on April 22, 2015. At the conclusion of the hearing, the circuit court granted Altstatt’s

motion to dismiss because the claims were barred by the statute of limitations. The court

reduced its judgment to a written order which was docketed on April 24, 2015.

On May 4, 2015, the Appellants filed a motion to alter or amend the order granting

Altstatt’s motion to dismiss. Altstatt filed an opposition on May 21, 2015. On June 9, 2015,

the circuit court issued the order that forms the basis for Altstatt’s motion to dismiss the

extant appeal. The June 9, 2015 order provides:

UPON CONSIDERATION of Plaintiffs’ Motion to
Alter or Amend This Court’s Order Granting Defendant’s
Motion to Dismiss Complaint, it is this 9th Day of June 2015,
by the Circuit Court of Maryland for Montgomery County, it is
hereby

ORDERED: That Defendant’s Motion to Dismiss
Complaint is DENIED.

(Emphasis added.)

2
The June 9 order was docketed on June 12, 2015. The docket entry provided:

ORDER OF COURT (SALANT, J.) THAT PLAINTIFFS’
MOTION TO ALTER OR AMEND THIS COURT’S ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
COMPLAINT IS DENIED, ENTERED. (COPIES MAILED)

On July 16, 2015, the circuit court issued a subsequent order titled “AMENDED

ORDER.”2 The order provided:

Upon consideration of Plaintiffs’ Motion to Alter or
Amend, filed May 4, 2015 (docket entry #28), and Defendant’s
Opposition thereto, filed May 21, 2015 (docket entry #29), and
pursuant to Maryland Rule 2-535(d), it is . . .

ORDERED that Plaintiffs’ Motion to Alter or Amend
(docket entry #28) shall be, and hereby is, DENIED.

On August 6, 2015, Appellants filed a notice of appeal. On August 17, 2015, Altstatt

filed a motion to strike the Appellants’ notice of appeal, which was denied by the circuit

court on September 16, 2015.

On November 2, 2015, Altstatt filed a motion to dismiss the appeal in this Court,

arguing that the Appellants’ notice of appeal was untimely. The Appellants filed an

opposition on November 16, 2015. On November 30, 2015, this Court denied Altstatt’s

motion to dismiss the appeal with leave to raise the issues in the briefs. In his brief, Altstatt

2
This order appears to have been entered sua sponte. Other than a certificate
regarding discovery docketed July 13, 2015, there is no indication in the record of any
communication between the parties and the court between the court’s June 12 order and the
court’s July 16 order.

3
subsequently moved to dismiss the Appellants’ appeal as untimely. We, therefore, address

the motion to dismiss the appeal herein.

DISCUSSION

I. Motion to Dismiss Appeal

Altstatt asserts that the Appellants’ appeal must be dismissed as untimely. Altstatt

argues that the Appellants’ notice of appeal was due within thirty days of the circuit court’s

June 12, 2015 order. Because the Appellants’ notice of appeal was not filed until August 6,

2015, Altstatt asserts that the notice of appeal was untimely filed. As we shall explain, we

are unpersuaded.

Altstatt maintains that the trial court’s June 12 order “contained a clerical error.” As

set forth supra, the June 12 order provided that the order was being entered “UPON

CONSIDERATION of [the Appellants’] Motion to Alter or Amend.” The order, however,

did not expressly issue a ruling on the motion to alter or amend. Rather, the order provided

that Altstatt’s “Motion to Dismiss Complaint is DENIED.” Altstatt argues that the order

“should have read ‘Plaintiff’s Motion to Alter or Amend is DENIED’” and that the reference

to the motion to dismiss rather than to the motion to alter or amend was an obvious mistake.

Altstatt asserts that the circuit court clerk “correctly understood the [o]rder to mean that the

[Appellants’] Motion to Alter or Amend was denied and entered the denial on the docket.”

The Appellants respond that the June 12 order did not actually rule upon the Motion

to Alter or Amend. The Appellants further assert that the instant appeal “was timely made

4
from the only order to which the Plaintiffs/Appellants could appeal -- the July 16 Order.”

The Appellants further argue that there is no factual support or evidence to support Altstatt’s

position that the June 12 order contained a “clerical error.”

Maryland Rule 8-202 provides that, with exceptions not relevant here, a “notice of

appeal shall be filed within 30 days after entry of the judgment or order from which the

appeal is taken.”3 Pursuant to Rule 8-201, with exceptions not relevant here, “the only

method of securing review by the Court of Special Appeals is by the filing of a notice of

appeal within the time prescribed in Rule 8-202.” The 30-day filing requirement is

“jurisdictional, and if the appeal is not timely noted, we must dismiss the appeal.” Carter v.

State, 193 Md. App. 193, 206 (2010).

Whether a final judgment has been entered “turns on whether the court indicated

clearly that it had fully adjudicated the issue submitted and had reached a final decision on

the matter at that time. In other words, the trial court’s ruling must be an unqualified, final

disposition of the matter in controversy.” Davis v. Davis, 335 Md. 699, 710-11 (1994). We

have explained:

In order for that moment of final judgment to arrive, the judge’s
order must 1) be intended as an unqualified and final
disposition of the matter in controversy, 2) adjudicate all claims
entirely unless certified pursuant to Md. Rule 2-602(b), and 3)
the clerk must make a proper record of the judgment.

3
Indeed, the 30-day requirement for filing an appeal is tolled if a timely motion is
filed pursuant to Maryland Rule 2-532, 2-533 or 2-534. See Md. Rule 8-202(c).

5
Jenkins v. Jenkins, 112 Md. App. 390, 402 (1996) (footnote omitted), superceded by rule

as stated in Bussell v. Bussell, 194 Md. App. 137, 152-54 (2010) (relating to savings

provision for a prematurely filed appeal).

In the instant case, the circuit court did not render an “unqualified, final disposition”

with respect to the Appellants’ motion to alter or amend until July 16, 2015. Indeed, the

circuit court’s issuance of an “amended order” strongly suggests that the circuit court itself

recognized that the June 12 order had failed to rule on the Appellants’ motion to alter or

amend. Furthermore, as we explained in Jenkins, in order for a judgment to be final, “the

clerk must make a proper record of the judgment.” Id. In this case, the clerk of the circuit

court did not enter a proper record of the June 12 order. The circuit court’s June 12 order

provided that Altstatt’s motion to dismiss complaint was denied, but the corresponding

docket entry provided that the Appellants’ motion to alter or amend was denied. Because

the June 12 order failed to render a judgment on the motion to alter or amend, and because

the clerk failed to enter a proper record of the June 12 order, the June 12 order was not a

final judgment from which an appeal could be taken. Rather, the July 16 order, which issued

an unqualified, final disposition on the motion to alter or amend, constituted a final

judgment, and it is from this judgment that Appellants noted a timely appeal. Accordingly,

we hereby deny Altstatt’s motion to dismiss Appellants’ appeal.

6
II. Statute of Limitations

We next turn our attention to whether the circuit court erred by determining that the

Appellants’ claims against Altstatt were barred by the applicable statute of limitations. The

facts which Appellants’ allege as the basis of their claims all occurred when the Appellants

were minors. Pursuant to the applicable three-year statute of limitations in effect at the

relevant time, the Appellants were required to bring their claims within three years of

reaching majority. The general civil statute of limitations applicable at the time Appellants

reached the age of majority provided:

A civil action at law shall be filed within three years from the
date it accrues unless another provision of the Code provides a
different period of time within which an action shall be
commenced.

Md. Code (1974, 1995 Repl. Vol.), § 5-101 of the Courts and Judicial Proceedings Article.4

The Appellants reached the age of majority in 1972, 1976, and 1984, respectively.5 Pursuant

to the general civil statute of limitations, the Appellants were required to pursue their claims

by the applicable dates in 1975, 1979, and 1987, respectively.

4
As we shall explain infra, the General Assembly modified the statute of limitations
for claims of child sexual abuse in 2003 and extended the time to file a complaint to seven
years after achieving the age of majority. This was long after the Appellants’ reached the
age of majority. The statute currently in force provides that “[a]n action for damages arising
out of an alleged incident or incidents of sexual abuse that occurred while the victim was a
minor shall be filed within 7 years of the date that the victim attains the age of majority.”
Md. Code (2006, 2013 Repl. Vol.), § 5-117 of the Courts and Judicial Proceedings Article
(“CJP”).
5
Alice reached the age of majority on December 7, 1972, Carol reached the age of
majority on July 28, 1976, and Robin reached the age of majority on June 14, 1984.

7
The Appellants assert that they have dissociative amnesia which, they allege, was

caused by childhood sexual abuse perpetrated by their father. The Appellants define

dissociative amnesia as a condition that “involves a reversible memory impairment in which

memories of personal experience cannot be retrieved in a verbal form (or, if temporarily

retrieved, cannot be wholly retained in consciousness).” The Appellants assert that they

were each unable to recall “the details of the abuse” by Altstatt until January 2014, when

Robin was hospitalized in an inpatient trauma disorders unit for a ten-day period. According

to the Appellants, during Robin’s hospitalization, Robin “realized for the first time the wide

and deep effects of the sexual abuse” by Altstatt. Robin’s sisters assert that Robin’s

hospitalization rekindled their own memories of the abuse. Carol reported that when Robin

was hospitalized, “the whole mess was revived in frightening dimension” and the “incident

brought back the horror I endured as a child.” Alice reported that “[i]t was only upon the

recent hospitalization of my sister, Robin, for depression and suicidal ideation that I started

to comprehend what had occurred.”

On December 4, 2014, within a year of Robin’s hospitalization, the Appellants filed

the complaint giving rise to the present appeal.6 The Appellants assert that the application

of Maryland’s discovery rule, which the Appellants assert should toll the statute of

limitations due to the Appellants’ dissociative amnesia, renders their complaint timely filed.

6
In February 2014, the Appellants reported the alleged abuse to the police.
Following an investigation, Altstatt was indicted on criminal charges. The criminal matter
against Altstatt is pending in the Circuit Court for Montgomery County.

8
Historically, under Maryland law, causes of action “‘accrued on the date of the

wrong.” Doe v. Maskell, 342 Md. 684, 689 (1996) (citing Hahn v. Claybrook, 130 Md.

179, 182 (1917)). Under the traditional rule, claims that were not discovered until after the

expiration of the limitations period were automatically barred. Id. The historical rule “did

not distinguish between a blamelessly ignorant plaintiff and one who had acted negligently

and slumbered on his rights.” Id. at 690 (internal quotations and citations omitted). It was

in response to this harsh application of the historical rule that the Court of Appeals

developed the “discovery rule,” under which “a cause of action ‘accrues’ when [a] plaintiff

knew or should have known that actionable harm has been done to him.” Id.

Although originally applied in the context of cases involving medical malpractice,

the discovery rule was ultimately made applicable to all civil matters. Poffenberger v.

Risser, 290 Md. 631, 637 (1981). The Court of Appeals has explained:

We held [in Poffenburger] that in order to “activate the running
of limitations [it must be proven that the plaintiff had] actual
knowledge-that is express cognition, or awareness implied from
‘knowledge of circumstances which ought to have put a person
of ordinary prudence on inquiry [thus, charging the individual]
with notice of all facts which such an investigation would in all
probability have disclosed if it had been properly pursued.’”

Maskell, supra, 342 Md. at 690 (quoting Poffenberger, supra, 290 Md. at 637 (quoting

Fertitta v. Bay Shore Dev. Corp., 252 Md. 393, 402 (1969))).

9
A. The Decision of the Court of Appeals in Doe v. Maskell

Nearly twenty years ago, the Court of Appeals addressed the application of the

discovery rule to a case involving repressed memories of childhood sexual abuse in Maskell,

supra, 342 Md. 684. The Court identified the issue before it as “whether the ‘discovery

rule’ applicable to the time-bar of the statute of limitations on civil actions at law . . . applies

to cases of allegedly ‘repressed’ and ‘recovered’ memories.” Id. at 686.7 The Court found

that “the critical question to the determination of the applicability of the discovery rule to

lost memory cases is whether there is a difference between forgetting and repression.” Id.

at 691. The Court explained this distinction as follows:

It is crystal clear that in a suit in which a plaintiff “forgot” and
later “remembered” the existence of a cause of action beyond
the 3-year limitations period, that suit would be time-barred.
Dismissal of such a case reflects our judgment that the potential
plaintiff had “slumbered on his rights,” should have known of
his cause of action, and was blameworthy. To permit a forgetful
plaintiff to maintain an action would vitiate the statute of
limitations and deny repose for all defendants.

Id. at 692.

In order to determine whether there was a difference between forgetting and

repression, the Court examined “expert testimony provided at the summary judgment

hearing” and “numerous scientific journals submitted by the parties.” Id. The Court

7
As we shall explain infra, the phenomenon previously referred to as “repressed” and
“recovered” memories is now referred to as “dissociative amnesia” by the relevant scientific
community.

10
observed that “[e]ven defining the term [of repression] is not easy.” Id. The Court provided

the following definition of repression set forth by David S. Holmes in The Evidence for

Repression: An Examination of Sixty Years of Research, in REPRESSION AND

DISASSOCIATION: IMPLICATIONS FOR PERSONALITY, THEORY, PSYCHOPATHOLOGY AND

HEALTH 85, 85-86 (J. Singer, ed. 1990):

It is my belief that in its general use the concept of repression
has three elements: (1) repression is the selective forgetting of
materials that cause the individual pain; (2) repression is not
under voluntary control; and (3) repressed material is not lost
but instead stored in the unconscious and can be returned to
consciousness if the anxiety that is associated with the memory
is removed. The assertion that repression is not under voluntary
control differentiates repression from suppression and denial,
with which it is sometimes confused . . . .

Maskell, supra, 342 Md. at 693.

The Court commented that the petitioners had “provided [the Court] with several

studies purporting to validate the diagnosis of repression.” Id. (citing various articles). The

Court noted, however, that the respondents “ha[d] also offered significant scientific

information tending to discredit the concept of repression and its application in this setting,”

noting that the “arguments against repression take several forms.” Id. The Court observed

that “[f]irst, the adversaries of repression stress that there is no empirical, scientific evidence

to support the claims that repression exists.” Id. The Court further noted that “critics of

repression theory point out that the scientific, and specifically, the psychological community

has not embraced repression theory, and that, in fact, serious disagreement exists.” Id. at 694.

11
Finally, the Court emphasized that concern existed relating to the accuracy and reliability

of recovered memories, explaining:

Finally, critics of repression theory argue that the “refreshing”
or “recovery” of “repressed” memories is more complicated
than repression proponents would have us believe. This
argument takes two forms: (1) that memories refreshed with the
assistance of a mental health professional are subject to
manipulations reflecting the biases of the treating professional;
and (2) that a repressed memory cannot be retrieved whole and
intact from the cold storage of repression.

Id. at 695.

After having reviewed the arguments on both sides of the issue, the Court was

“unconvinced that repression exists as a phenomenon separate and apart from the normal

process of forgetting.” Id. As such, because the Court concluded that repression and the

normal process of forgetting were “indistinguishable scientifically,” the Court reasoned “that

they should be treated the same legally.” Id. Accordingly, the Court held that “the mental

process of repression of memories of past sexual abuse does not activate the discovery rule.”

Id. Notably, the Court observed that “[i]f the General Assembly should wish to rewrite the

law, that is its prerogative and responsibility.” Id.

B. The Appellants’ Challenge to the Underlying Rationale of Maskell

The Appellants do not dispute that Maskell involved similar facts and a similar statute

of limitations issue to that presented in this appeal. Nor do the Appellants dispute that the

Court of Appeals in Maskell held that “repression of memories is an insufficient trigger to

compel the application of our discovery rule.” 342 Md. at 686. The Appellants urge,

12
however, that “the scientific community and empirical evaluation regarding the mental

condition of memory alteration in sexual abuse victims has changed significantly” in the

years since Maskell was decided. The Appellants assert that, due to the “significant change

and growth of empirical evidence” in this area, the rationale behind the Court’s holding in

Maskell is no longer applicable. The Appellants point to changes in four areas: (1) the

Diagnostic and Statistical Manual of Mental Disorders (“DSM”),8 (2) various peer-reviewed

scientific studies and evaluations published in the past nineteen years, (3) expert testimony,

and (4) decisions from courts of other jurisdictions.

With respect to the DSM, the Appellants emphasize that two new editions of the

DSM have been published since the Court of Appeals issued its decision in Maskell, both

of which provided updated definitions for “sexual-abuse-related memory alterations.”9 The

Fourth Edition of the DSM was published in 2006 and the Fifth Edition of the DSM was

published in 2012. Both of the two most recent editions of the DSM recognize a mental

disorder called “dissociative amnesia,” which is defined as “an inability to recall important

autobiographical information that 1) should be successfully stored in memory and 2)

ordinarily would be readily remembered.” DSM-5, § 300.12 at 298-302 (2012). The

Appellants point out that the DSM provides that dissociative amnesia is “inconsistent with

8
The DSM “is the standard classification of mental disorders used by mental health
professionals in the United States.” Diagnostic and Statistical Manual of Mental Disorders
(DSM), AMERICAN PSYCHIATRIC ASSOCIATION, https://www.psychiatry.org/
psychiatrists/practice/dsm (last visited May 10, 2016).
9
“Sexual-abuse-related memory alterations” is a term used by Appellants.

13
ordinary forgetting.” Altstatt concedes that the current edition of the DSM recognizes the

condition known as dissociative amnesia.

The Appellants urge this Court to rely upon the DSM with respect to the “empirical

nature of the mental-health condition at issue before this court” and conclude that the

holding of the Court of Appeals in Maskell is no longer valid. The Appellants emphasize

that the DSM has been relied upon by both this Court and the Court of Appeals in a wide

variety of contexts. Indeed, we have cited to the DSM in a myriad of cases. See, e.g., Black

& Decker Corp. v. Humbert, 189 Md. App. 171, 190 (2009) (citing the DSM-IV for the

definition of somatization disorder); Pettit v. Erie Ins. Exch., 117 Md. App. 212, 228 (1997)

aff’d 349 Md. 777 (1998) (taking judicial notice of the definition of pedophile provided in

the DSM-IV). The Court of Appeals has similarly relied upon the DSM. See, e.g., Menefee

v. State, 417 Md. 740, 745 (2011) (citing the DSM for the definition of posttraumatic stress

disorder); MAMSI Life & Health Ins. Co. v. Callaway, 375 Md. 261, 264 (2003) (citing the

DSM for the definition of hypoxyphilia). The Appellants further point to multiple

references to the DSM in the Code of Maryland Regulations (“COMAR”) as additional

support of the importance of the DSM, commenting that COMAR “references the DSM

thirty-six (36) times as an authoritative source for mental disorders.” Because the DSM now

recognizes the mental health condition of dissociative amnesia, and because Maryland

appellate courts have repeatedly relied upon the DSM as an authoritative source, the

14
Appellants urge us to conclude that the reasoning behind the Maskell decision is no longer

compelling.

The Appellants additionally point this Court’s attention to various scientific research

on dissociative amnesia over the past nineteen years. The Appellants assert that the “literally

hundreds” of articles on dissociative amnesia demonstrate that “dissociative amnesia (1) is

a distinct mental condition, (2) is suffered as a direct result of sexual abuse, and (3) is not

merely forgetting.” The Appellants note that empirical evidence exists now which did not

exist at the time Maskell was decided. The Appellants further urge that the current empirical

evidence compels a holding that the discovery rule should be applied to claims of childhood

sexual abuse involving dissociative amnesia.

Altstatt responds that there is nothing in the record to support the Appellants’

assertions with respect to the validity of dissociative amnesia or the changes in the scientific

community’s view of that disorder. Altstatt asserts that it was only after the circuit court

dismissed the Appellants’ complaint that the Appellants submitted journal articles and DSM

excerpts for the circuit court’s consideration, as attachments to the motion to alter or amend.

Altstatt emphasizes that the circuit court never reopened the judgment to admit any

additional evidence.

The Appellants assert that, had this case not been dismissed, they would have

presented expert testimony which would have demonstrated that the Appellants suffered

from dissociative amnesia. Prior to the circuit court dismissing the complaint with prejudice,

15
the Appellants designated Dr. Joyanna Silberg, Ph.D., as an expert witness. The Appellants

contend that Dr. Silberg is “unequivocally certain that a sexual abuse victim’s inability to

recall abuse due to dissociative amnesia is empirically different and separate from the normal

process of forgetting,” and that Dr. Silberg would have testified accordingly. The

Appellants further assert that Dr. Silberg would have testified that the Appellants’ inability

to recall the abuse by Altstatt prior to January 2014 was due to dissociative amnesia and was

not due to the normal mental process of forgetting. Altstatt responds that Dr. Silberg never

prepared an expert report and that there is nothing in the record indicating the nature of Dr.

Silberg’s testimony if she were permitted to testify.

The Appellants also direct this Court’s attention to various rulings addressing related

issues from courts of other jurisdictions. The Appellants assert that there is a “clear trend”

in the United States of permitting victims of childhood sexual abuse to bring their claims

“within the statute of limitations once their memories are finally accessible.” The Appellants

cite to cases from Arizona, see Doe v. Roe, 955 P.2d 951, 960 (Ariz.1998) (“Application of

the discovery rule to tort sexual abuse cases is . . . the majority rule in this country.”),

Massachusetts, see Clark v. Edison, 881 F. Supp. 2d 192, 201-02 (D. Mass. 2012)

(permitting expert testimony on dissociative amnesia after applying the analysis set forth in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)), South Carolina, see

Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 331-32 (2000) (expressing the

view that “equating a repressed memory to merely ‘forgetting’ ignores advances in the

16
understanding of the human mind”) aff’d, 341 S.C. 320 (2000), overruled on other grounds

by State v. Cherry, 361 S.C. 588 (2004), Florida, see Hearndon v. Graham, 767 So. 2d

1179, 1186 (Fla. 2000) (holding that “the delayed discovery doctrine applies to the accrual

of the instant cause of action based on a claim of childhood sexual abuse accompanied by

traumatic amnesia”), Oregon, see State v. Gherasim, 985 P.2d 1267 (Or. 1999) (holding that

the trial court erred by excluding expert testimony about dissociative amnesia), and Indiana,

see Doe v. Shults-Lewis Child & Family Servs., Inc., 718 N.E.2d 738 (Ind. 1999) (holding

that the equitable doctrine of fraudulent concealment would toll the statute of limitations

when a victim could demonstrate that a defendant’s conduct caused the repression of

memories of abuse).

The Appellants advocate that “[i]t is time for Maryland courts to recognize what

many other courts (and scientists) across the United States have already come to realize since

1996, that memory alteration through dissociative amnesia in child sexual abuse cases is

different from the normal process of forgetting, and when applicable, dissociative amnesia

should activate the discovery rule and toll the statute of limitations for sexual abuse civil

claims.” We note, however, that Maryland courts have not always adopted the reasoning of

the majority of other jurisdictions, even when the consensus among other courts is nearly

overwhelming. See Coleman v. Soccer Ass’n of Columbia, 432 Md. 679, 694 (2013)

(declining to adopt a comparative negligence standard and instead maintaining the strict

contributory negligence standard, a position taken by only four other jurisdictions).

17
Furthermore, as discussed supra, the Maskell Court indicated that any modification of the

statute of limitations for claims relating to childhood sexual abuse was a decision for the

General Assembly, not for the courts. Maskell, 342 Md. at 695 (“If the General Assembly

should wish to rewrite the law, that is its prerogative and responsibility.”).

Indeed, following the Court of Appeals’ decision in Maskell, the General Assembly

addressed the issue of the statute of limitations for claims relating to child sexual abuse. In

2002, the General Assembly extended the applicable statute of limitations for civil claims

arising out of childhood sexual abuse to seven years after the victim reaches the age of

majority. 2003 Md. Laws Ch. 360 (S.B. 68), codified at CJP § 5-117. Prior to enacting

Senate Bill 68, the legislature considered a different version of the bill which would have

extended the time for filing claims even further. The original bill -- which was not enacted

by the legislature -- would have extended the time for filing an action for damages arising

out of childhood sexual abuse to “within 12 years of the later of . . . the victim’s 21st

birthday; or the date on which the victim knew or reasonably should have known that the

alleged abuse was actionable.” S.B. 68, 2003 Leg., 417th Sess. (1st Reading, Jan. 20, 2003).

Moreover, this issue has also been considered more recently by the Maryland General

Assembly. Bills were introduced in both chambers of the General Assembly during the 2016

Session which would have extended the time for filing civil claims arising out of childhood

sexual abuse to twenty years after the victim reached the age of majority. S.B. 69, 2016

Leg., 436th Session; H.B. 1215, 2016 Leg., 436th Session. Neither bill proceeded to a floor

18
vote. The Court of Appeals has emphasized that when the General Assembly has

“repeated[ly] fail[ed] to pass [particular] legislation,” such a failure “is very strong evidence

that the legislative policy in Maryland is to retain the” current law. Coleman, supra, 432

Md. at 694.

In this appeal, the Appellants maintain that the underpinnings of the Maskell decision

are less persuasive today than twenty years ago, when the case was decided by the Court of

Appeals.10 Nevertheless, we must be cognizant of our role as an intermediate appellate

court. Regardless of whether one agrees or disagrees with the Court of Appeals’ decision

in Maskell, it is the law of the State unless and until the Court of Appeals revisits this issue

or the legislature acts to change the law. Accordingly, pursuant to the Court of Appeals’

decision in Maskell, the discovery rule does not apply to toll the statute of limitations in

cases involving memory impairment relating to alleged childhood sexual abuse. 342 Md.

at 695.11

10
We note, however, that this Court was not presented with any evidence which
would refute the Appellants’ assertions with respect to the validity of dissociative amnesia.
Rather than challenge the Appellants’ various arguments with respect to the empirical basis
for dissociative amnesia, Altstatt argued that Maskell mandates the result in this case. It may
be that there are compelling criticisms of dissociative amnesia and counter-arguments to
those asserted by the Appellants. The determination of whether dissociative amnesia is, in
fact, a generally accepted phenomenon supported by empirical evidence is not before this
Court in this appeal.
11
At oral argument, counsel for the Appellants argued that Maskell is controlling law,
but that dissociative amnesia, which Appellants allege tolls the statute of limitations in this
case, is distinguishable from repression, which the Court of Appeals held did not trigger the
discovery rule to toll the statute of limitations in Maskell. We read Maskell as holding that
(continued...)

19
We have explained that even when a party presents “criticisms which logic,

semantics, policy and history permit to be directed against” a ruling adopted by the Court

of Appeals, the ruling of the Court of Appeals remains the law of this State until and

“[u]nless those decisions are either explained away or overruled by the Court of Appeals

itself.” Loyola Fed. Sav. & Loan Ass’n v. Trenchcraft, Inc., 17 Md. App. 646, 659 (1973).

Accordingly, this Court is compelled to “follow what a majority of its members discern to

be the precept to be drawn” from the decisions of the Court of Appeals. Id. See also

Halliday v. Sturm, Ruger & Co., 138 Md. App. 136, 169 (2001), aff’d, 368 Md. 186 (2002)

(“We do not believe that the Court of Appeals could have spoken with any greater clarity

than it did in its decision in Kelley [v. R.G. Industries, Inc., 304 Md. 124 (1985)]. Until and

unless the Court of Appeals revisits the issue, we are bound by stare decisis.”).

It may very well be that the Court of Appeals ultimately determines that it would be

appropriate to reconsider its holding in Maskell. Nevertheless, that determination is solely

within the province of the Court of Appeals. We do not intend to minimize the seriousness

of the allegations in the present case. Cases involving claims of childhood sexual abuse are

among the most disturbing encountered by this Court, and we recognize that victims of

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(...continued)
the discovery rule does not apply to toll the statute of limitations in cases involving memory
impairment relating to alleged childhood sexual abuse, regardless of whether the memory
impairment is characterized as “repressed” or as “dissociative amnesia.” Furthermore, we
emphasize that, given that this case is before us on an appeal from an order granting a
motion to dismiss, there is nothing in the record which would enable us to assess whether
dissociative amnesia is indeed a separate phenomenon from repression.

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childhood sexual abuse often suffer lifelong consequences. Nonetheless, Maskell clearly

holds that the discovery rule does not toll the statute of limitations for claims arising out of

childhood sexual abuse. As such, the circuit court did not err by dismissing the Appellants’

complaint as untimely filed. Accordingly, we affirm.

MOTION TO DISMISS APPEAL DENIED.
JUDGMENT OF THE CIRCUIT COURT FOR
MONTGOMERY COUNTY AFFIRMED. COSTS
TO BE PAID BY APPELLANTS.

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