By MATTHEW FABISCH
Plaintiff Nicholas Alahverdian files this Supplemental Brief in response to Defendant’s Responses to Plaintiff’s Objection.
For reasons set forth in detail below, Plaintiff Nicholas Alahverdian submits this supplemental brief to demonstrate that several new arguments were raised by Defendants by the Defendants in support of their initial Motion to Dismiss. The Defendant’s Reply Briefs also contain several factual misrepresentations relating to the Plaintiff.
II. STATUTE OF LIMITATIONS AND ACCRUAL
Plaintiff Nicholas Alahverdian was in the custody of the Defendant DCYF from 2002 through 2005. However, Plaintiff remained within the scope of services of DCYF in that he received funds under the John. H. Chafee Foster Care Independence and Educational and Training Voucher Program until December of 2010. Defendants Michael S. Burk and Jorge Garcia administrated the funds of these programs.
Plaintiff Nicholas Alahverdian hereby represents that assaults, abuse and negligence was perpetrated from 2002 through December of 2010. Defendants continued their tortious and assaultive conduct unabated upon Plaintiff Nicholas Alahverdian up to and including December 2010. Plaintiff Nicholas Alahverdian asserts that this Court should consider the continuing violations doctrine, which tolls the statute of limitations in situations where a continuing pattern forms due to discriminatory acts occurring over a period of time, as long as at least one incident of discrimination occurred within the limitations period.
Plaintiff Nicholas Alahverdian believes that the situation involving DCYF agents visiting the home deserves further anatomical description. Plaintiff Nicholas Alahverdian married [[name redacted]] in November 2010. [[Name redacted]] has a child from a previous relationship, who was 15 months at the time of their marriage. Upon the marriage of the Plaintiff Nicholas Alahverdian and [[name redacted]], they decided that the minor child, who was living with [[name redacted]]’s mother and stepfather in South Kingstown, would be living with the newlyweds at home. Unfortunately, [[name redacted]]’s mother and stepfather became jealous, irrational, and threatened Plaintiff and [[name redacted]] that they would call Defendant DCYF to report “abuse and neglect.”
Plaintiff and [[name redacted]] had their lives threatened by [[name redacted]]’s stepfather, who has a lengthy criminal record of assault and battery upon multiple persons, including [[name redacted]]’s mother. Plaintiff Nicholas Alahverdian and [[name redacted]] requested a restraining order against [[name redacted]]’s stepfather, which was denied by the Rhode Island Family Court. Days later, Defendant agents from Defendant DCYF appeared at Plaintiff’s home, where the Plaintiff was watching the minor child. The agents were DCYF child protective investigators Bridget Crooke and Jennifer Silva, two agents who Plaintiff knew from 2003.
Immediately upon seeing Crooke and Silva, Plaintiff suffered flashbacks and painful memories of the last time he saw Crooke and Silva. Following the publication of Bob Kerr’s 2002 Providence Journal article where Kerr mentions two foster parents, namely [[names redacted]], where Plaintiff Nicholas Alahverdian was placed for a short time from 2002–2003, they indicated that they would be willing to be the foster parents for the Plaintiff again. Plaintiff, then an employee of the Rhode Island House of Representatives, arranged for the [[name redacted]] to be honored with a citation and an introduction to the House of Representatives for their service to the State of Rhode Island as foster parents.
Shortly following the honor by Representative Aubin in the House of Representatives Chamber, Crooke and Silva appeared at Plaintiff’s high school to apprise him of the foster family’s inability to care for him. The visit in 2010 triggered the Plaintiff’s painful memories of specific instances of abuse and negligence from 2002–2005. Plaintiff at the Rhode Island Plaintiff was at the [[name redacted]] home for approximately two weeks and saw his family situation destroyed, after his biological family was destroyed. Following Crooke and Silva’s visit, he realized that the his new family was at risk of being destroyed.
Crooke and Silva waited for Plaintiff’s wife to return home while Plaintiff remained in a state of shock and fear. Plaintiff’s wife returned, and Crooke and Silva informed Plaintiff and wife that the Plaintiff was not being investigated yet there were allegations that [[name redacted]] was “smoking pot and living out of her car.” Obviously, that wasn’t the case. However, Crooke and Silva immediately requested a letter from the Plaintiff’s physicians outlining his “current state of mental health” and whether “[[Plaintiff was]] able to adequately care for a child.” Crooke and Silva had no objectively legal reason to ask for the confidential medical documents. Further, they determined that the minor child was not at risk, nor did they have to remove the child when they saw that the home was safe.
Plaintiff was discriminated against (violating RIGL 42–112–1) when state agents asked for confidential medical information from the Plaintiff even though he was not under investigation, nor did he give investigators any cause to request said information. Plaintiff believes and hereby alleges that Defendants are under civil liability for discrimination against disability under RIGL 42–112–2.
Furthermore, Defendants caused Plaintiff to be in fear for his life, continued to harass him upon receipt of his physician’s approval, intentionally inflicted emotional distress upon Plaintiff and his wife, assigned state cars to conduct surveillance outside Plaintiff’s home and activities, and exhibited conduct consisting of misjudgment, invasion of privacy, discrimination, and a deliberate conspiracy to disrupt Plaintiff’s life.
Plaintiff was under such pressure and tension that he began to have daily flashbacks and nightmares, and an eventual loss of consortium with his wife. Defendant DCYF even encouraged [[name redacted]] to get a restraining order against Plaintiff, which was granted by the Family Court, lest she have her child removed from her custody.
Plaintiff began to recover memories that were repressed or lost because of a combination of post-traumatic stress disorder and toxic levels of Thorazine proscribed by Defendant’s contractors from 2003 to 2005, in violation of the freedom from restraint act. Upon the visit of Crooke and Silva, Plaintiff began to be able to connect the dots from 2002 until 2010.
In December 2010, Plaintiff had another experience that caused him to recover further memories when he saw Defendant Ellen Balasco at a restaurant in Narragansett with her husband. Defendant, who did not recognize Plaintiff, began to recall in the days to come that Defendant Balasco refused to file litigation based on the torture he was experiencing. Defendant Balasco was responsible for filing litigation regarding causes of action that occurred until 2007 when he was released from State care.
Unfortunately, Plaintiff already repressed the memories of abuse and neglect until 2010 when he saw her again. Plaintiff asserts that he continuously asked Defendant Balasco to file suit against perpetrators of abuse from 2002 until 2005, but she repeatedly refused to do so, thus resulting in the gradual repression or loss of memories of abusive or negligent incidents, yet the unsubstantiated theme of abuse remained.
Plaintiff experienced incidents that represented a continuing course of conduct constituting a breach of duty, such that the limitations period does not begin to run, or is tolled, until that conduct terminates, which, in the instant case, was December 2010 (and can also be considered to be continuing based on the loss of consortium and the disruption and dismantling of his family).
The abuse and negligence suffered by the Plaintiff transcended many years and across state lines (the Nebraska Supreme Court has held that the application of a discovery rule is determined by focusing on when the discovery of the injury occurs and not on when the injured party recognizes whose conduct is responsible for the injury), even when a letter recommending in-home services was written by a contractor of Defendant DCYF.
The claims presented in the Plaintiff’s complaint are not stale because of the continued involvement with the department and the continuing abuse and negligence by Defendants Michael S. Burk, Garcia, Aucoin, and others. The statute of limitations was tolled because of fraudulent concealment of a conspiracy and prejudice, as well as the Plaintiff’s repressed memories that came roaring back upon the onset of worsened PTSD. Plaintiff realized that the causes of his many injuries in November of 2010, and also recognized that the defendants caused the injuries.
Defendants gained an advantage by wrongfully concealing his injuries, plaintiff was not aware of his injuries until after the statute of limitations had run. When plaintiff discovered the recovered memories, plaintiff established that the concealment of fraud was of such character as to prevent inquiry, or to elude investigation, or to mislead the plaintiff claiming the cause of action. Defendants concealed acts, breaches of duty, and engaged in wrongful conduct which caused plaintiff to repress memories of the abuse, thereby preventing discovery of the cause of action within the statutory period. Plaintiff suffered emotional distress and a mental breakdown following the events of November 2010.
In Treanor v. MCI, the justices ruled that:
“The MHRA’s statute of limitations may be avoided by a legal theory known as the continuing violations doctrine. See Giuliani v. Stuart Corp., 512 N.W.2d 589, 595 (Minn.Ct.App. 1994). This doctrine tolls the statute of limitations in situations where a continuing pattern forms due to discriminatory acts occurring over a period of time, as long as at least one incident of discrimination occurred within the limitations period. See id. The doctrine is available when “the unlawful employment practice manifests itself over time, rather than as a series of discrete acts.” Id. (internal quotations omitted). This manifestation, however, must be more than the mere consequences of past discrimination — “the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.” Sigurdson v. Isanti County, 448 N.W.2d 62, 67 (Minn. 574*5741989).”
Thus, because DCYF and co-defendants committed a series of illegal and discriminatory acts against Plaintiff, the period of limitation may begin to run from the last act of the series. In short, actions from 2005 through 2010 when DCYF’s acts of harassment and emotional abuse following the initial call to the DCYF abuse hotline [[name redacted]]’s mother, and other acts including the unjustified request for letters from medical professionals vouching for his ability to take care of a baby, continuing to harass and emotionally abuse Plaintiff Nicholas Alahverdian even after the letters were received, not disbursing funds to the school of Plaintiff’s choice (Harvard University), the verbal abuse from DCYF administrators, etc. all amounted to continuing, unending acts that exhibited a continuity of purpose. It should also be noted that in Gillette v. Tucker, the court held that the statute of limitations does not begin to run until the relationship of physician-patient (professional and client) is terminated. Interpreting that through the lens of this case, the relationship with DCYF ended in August 2010 when the educational funding — controlled by Defendant Mike Burk — was last disbursed, or in December 2010, when the funding was used up. This was used as bait to make Plaintiff respect DCYF and allow the abuse and neglect to be further shrouded by the fact that they were giving him money for school.
In the First Circuit case Genereux v. American Beryllia, the justices noted that “the limitations period commences after the cause of action accrues.” Normally, a cause of action for personal injury will accrue at the time of injury. Koe v. Mercer, 450 Mass. 97, 876 N.E.2d 831, 836 (2007); Riley v. Presnell, 409 Mass. 239, 565 N.E.2d 780, 784 (1991). However, under the discovery rule, “a cause of action does not accrue until the plaintiffs know or reasonably should have known that they were injured as a result of the defendant’s conduct.” Cornell v. E.I. Du Pont de Nemours & Co., 841 F.2d 23, 24 (1st Cir.1988) (citing Olsen, 445 N.E.2d at 611–12). Actual knowledge is not the standard, but “what a reasonable person in [the plaintiff’s] position would have known or on inquiry would have discovered.” Bowen v. Eli Lilly & Co., 408 360*360 Mass. 204, 557 N.E.2d 739, 743 (1990). The Supreme Judicial Court has analyzed this rule as having two components: “a plaintiff [must] have (1) knowledge or sufficient notice that he was harmed and (2) knowledge or sufficient notice of what the cause of harm was.” Bowen, 557 N.E.2d at 742; see also Fidler, 714 F.2d at 198 (“Such notice [to start the statute of limitations] includes not only knowledge that one has been injured but knowledge of its cause — that plaintiff `has been harmed as a result of the defendant’s conduct.’” (quoting Olsen, 445 N.E.2d at 611)); Riley, 565 N.E.2d at 784–85.
Further in the Genereux case, it is ruled that application of the discovery rule ordinarily involves questions of fact and therefore “`in most instances will be decided by the trier of fact.’” In re Mass. Diet Drug Litig., 338 F.Supp.2d 198, 204 (D.Mass. 2004) (quoting Riley, 565 N.E.2d at 783); see also Wolinetz v. Berkshire Life Ins. Co., 361 F.3d 44, 49 (1st Cir.2004) (same). In particular, application of the discovery rule involves determining “what the plaintiff knew or should have known [, which] is a factual question that is appropriate for the trier of fact.” Koe, 876 N.E.2d at 836; see also Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 376 (1st Cir.1991) (characterizing the determination of whether the plaintiff should have known of an injury as “a fact-dominated enterprise”); Castillo v. Mass. Gen. Hosp., 38 Mass.App.Ct. 513, 649 N.E.2d 788, 790 (1995). Determining when a plaintiff had notice of the likely cause of her injury is one example of such a determination. See Riley, 565 N.E.2d at 786 (“A reasonable fact finder… could find that Riley did not make the causal link….”).
Onward, they state: “Instead, we hold that, on this record, a reasonable juror could conclude that Genereux first had sufficient notice of the cause of her injury after June 22, 2001. In light of Genereux’s asthma diagnosis and the low probability of developing chronic beryllium disease, deciding when Genereux had notice that her symptoms were likely caused by beryllium “involves a decisional process fraught with resolution of factual issues,” Castillo, 649 N.E.2d at 790, such as how confident a reasonable person would have been during June 2001 of Genereux’s previous asthma diagnosis, see Bowen, 557 N.E.2d at 743. Resolution of such factual issues is “peculiarly within the province of the trier of fact.” Castillo, 649 N.E.2d at 790. The district court should not have resolved the statute of limitations issue against Genereux on this summary judgment record.”
Most importantly, the court ruled that “knowledge that she had sustained substantial physical harm” is not at issue. See Bowen, 557 N.E.2d at 741. Rather, the question is when Genereux had sufficient notice that her lung disease was caused by the appellees’ conduct.” In Bowen, the question before the court was when the plaintiff had sufficient notice that her tumor was caused by diethylstilbestrol to trigger the statute of limitations. Id. at 741. Citing the plaintiff’s possession of materials suggesting “the prospect of a significant causal connection” between diethylstilbestrol and her “exceedingly rare” condition, the court concluded that the plaintiff acquired sufficient notice of the cause of her injury outside the limitations period. Id. at 743. Yet it was argued that Genereux’s asthma diagnosis is relevant to determining when she had sufficient notice that her lung disease was “related” to beryllium exposure.
The district court did not mention asthma in its analysis of the limitations issue. Nor have appellees addressed the matter, outside a footnote, in their briefing to this court. We agree with the appellants that Genereux’s asthma diagnosis is significant. At the time Genereux first learned of chronic beryllium disease, she had long suffered from asthma symptoms. In fact, Genereux was diagnosed with asthma as a child, years before she was exposed to beryllium. This diagnosis was confirmed on repeated occasions when Genereux was an adult. She was treated for asthma during her employment at Raytheon and afterwards, at times by a specialist. No reasonable jury could conclude that Genereux lacked notice, even after June 19, 2001, that her symptoms were “likely caused” not by asthma, but by another disease. A reasonable jury could conclude that Genereux’s common-law claims were timely. Thus there exists a genuine issue of material fact about the timeliness of those claims.”
Similar to the Genereux case, the acknowledgement that Plaintiff has post traumatic stress disorder and depression is significant because he was diagnosed in ~1993, long before DCYF involved themselves in his life in 1999. The diagnoses were confirmed on repeated occasions. Plaintiff was treated for these disorders during DCYF care and after DCYF care, and to this very day. The cause of worsening, continuing, and increase of symptoms including flashbacks, nightmares, and depression was unclear until the visit of November of 2010. Thus, Plaintiff lacked notice that his symptoms were likely caused by the abuse and negligence of the Department of Children, Youth, and Families and its co-defendants.
Additionally, in Depetrillo v. Dow Chemical, the court found that because the plaintiff did not suspect dangerous consequences from exposure to toxic chemicals between certain years, the argument that the causes of action accrued before Plaintiff became ill was rejected, relying on the Anthony ruling. Similarly, in Wilkinson v. Harrington, the court ruled that “a person should have reasonable opportunity to become cognizant of an injury and its cause before the statute of limitations begins to run.” The day the DCYF investigators came to Plaintiff’s house was the day that he finally discovered the cause of the injury — DCYF was the cause of the abuse and negligence due to their lack of vigilance and blatant ignorance while in their care — and this was later confirmed to Plaintiff by flashbacks and nightmares. They were needlessly involving themselves in his life at a time that he needed them the least, a time when there was in fact no abuse or neglect taking place (which they acknowledged); they were only there because of the false call by [[name redacted]]’s mother to the DCYF abuse hotline.
Thus, the bona fide injury manifested itself to the plaintiff in November 2010. In Wilkinson v. Harrington, the court cited Silvertooth v. Shallenberger where that court ruled that the statute of limitations should be deemed to have begun to run at the point in time when the injury became apparent — in the Plaintiff’s case, the injury became apparent when, in November of 2010, he began questioning Defendant’s practices, and also the increased amount of flashbacks, nightmares, and episodes of depression that he was suffering.
The emotional trauma and toxic levels of Thorazine had suppressed all memory and/or recollection of specific conduct until November of 2010. Plaintiff argues that discovery of incidents of abuse and negligence were delayed due to impaired cognition and memory loss generated by the trauma as well as the toxic levels of Thorazine. The causes of action did not accrue until plaintiff discovered that he would never be able to have a normal life and would always be a product of intense and illegal DCYF scrutiny. Factual issues should be determined at trial. The causes of action accrued and the statute of limitations begins to run when the plaintiff knew or, in the exercise of ordinary diligence, should have discovered that an injury had been sustained as a result of the tortious acts of the defendants.
To quote further from Anthony v. Abbott Laboratories, 490 A. 2d 43 — RI: Supreme Court 1985: “This court has, in certain cases and circumstances in the past, rejected the general rule that a cause of action accrues at the time of the injury.” “To require a man to seek a remedy before he knows of his rights, is palpably unjust.” “Thus the present petitioner should have her day in court to show, if she can, that her suit was timely brought and that she is entitled to relief. Whether or not she will prevail must await a hearing on the merits in the superior court.” “In defining the word “accrue,” we noted that three possible interpretations existed. Strict construction would find the statute running from the time the negligent action occurred.
A more liberal interpretation would define “accrue” as the time the injury first became apparent. Finally, a third possibility suggests that the statute would start running when the plaintiff discovered the injury or, through the exercise of reasonable diligence, should have discovered it. Id. at 231, 243 A.2d at 749–50.”
“On the contrary, we believe the rule is compatible with the statute of repose. It would, in our opinion, be manifestly unjust to bar the enforcement of injury claims brought by a plaintiff who was not, nor could not have known that he was, the victim of tortious conduct because the consequent harm was unknowable within two years of the negligent act.” Wilkinson v. Harrington, 243 A. 2d 745 — RI: Supreme Court 1968
“This court has, in certain cases and circumstances in the past, rejected the general rule that a cause of action accrues at the time of the injury.” See Lee v. Morin, R.I., 469 A.2d 358 (1983); Romano v. Westinghouse Electric Co., 114 R.I. 451, 336 A.2d 555 (1975); Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968).
“The reasoning behind Wilkinson and Lee is that a person should have reasonable opportunity to become cognizant of an injury and its cause before the statute of limitations begins to run.” Id., 469 A.2d at 361. See Kennedy v. Cumberland Engineering Company Inc., R.I., 471 A.2d 195 (1984). CitingAnthony v. Abbott Laboratories, 490 A. 2d 43 — RI: Supreme Court 1985.
“To construe the statute narrowly so as to preclude a person from obtaining a remedy simply because the wrong of which he was the victim did not manifest itself for at least two years from the time of the negligent conduct, is clearly inconsistent with the concept of fundamental justice. To require a man to seek a remedy before he knows of his rights, is palpably unjust.” in Wilkinson v. Harrington, 243 A. 2d 745 — RI: Supreme Court 1968
“A person should have reasonable opportunity to become cognizant of an injury and its cause before the statute of limitations begins to run,” Therefore, we reject defendant’s contention that any causes of action accrued before Terry became ill and could have discovered Dow’s allegedly wrongful conduct.” DiPetrillo v. Dow Chemical Co., 729 A. 2d 677 — RI: Supreme Court 1999.
III. FRAUDULENT CONCEALMENT
Plaintiff hereby alleges that the Defendants fraudulently concealed that there were placements available of a less restrictive nature, in violation of RI Gen. Laws 14–1–36.2. Further, Defendants concealed the departmental conspiracy to disrupt and dismantle Plaintiff’s family and living situations across many years. Defendants have and had a clear prejudice against Plaintiff, which they also concealed. Plaintiff discovered that he was in the crosshairs of a conspiracy due to the abuse and neglect perpetrated by the Defendants Burk and Garcia from 2005–2010 and ultimately upon the revelatory events of late 2010. Defendants concealed an abuse of discretion in the events from 2002 to 2010. Defendants also concealed a conspiracy to prevent Plaintiff from his right to petition the government for a redress of grievances, as well as a conspiracy to intrude into his life at any time, exhibiting abuse of discretion and prejudice. Plaintiff also discovered the course of action exhibited a continuity of purpose that had existed since 2002. Defendants also acted under color of law throughout each conspiratorial act. When Plaintiff was forced to confront the cause of the conspiracy, he realized that the encroachment of his daily life activities, blatant disregard for privacy, mass prejudice, and discrimination had been perpetrated by Defendants and existed in some form or another since 2002.
In order to demonstrate that there has been fraudulent concealment on the part of a defendant, a plaintiff must show: (1) that the defendant made an actual misrepresentation of fact; and (2) that, in making such misrepresentation, the defendant fraudulently concealed the existence of plaintiffs causes of action. Kelly, 187 F.3d at 200 (applying Rhode. Island law); see also Renaud v. Sigma-Aldrich Corp., 662 A.2d 711, 714 (R.I.1995)
Rather, the plaintiff must demonstrate that the defendant made an “express representation or [engaged in] other affirmative conduct. amounting in fact to such a representation which could reasonably deceive another and induce him [or her] to rely thereon to his [or her] disadvantage.” Caianiello, 78 R.I. at 476–77, 82 A.2d at 829; see also State v. Wilkins, 267 Kan. 355, 985 F.2d 690, 696 (1999) (“In order to constitute concealment of the fact of a crime, there must be a positive act done by the accused calculated to prevent the discovery that the offense has been committed. Mere silence, inaction, or nondisclosure does not constitute concealment.”). The key consideration is whether or not the defendant fraudulently misrepresented material facts, thereby misleading the plaintiff into believing that no cause of action existed. See Kelly, 187 F.3d at 200.
Legislative inaction as to malpractice should not be ignored in determining legislative intent but such inaction is not necessarily determinative in the face of the ordinary meaning of “accrued” as it is used in relation to a cause of action. The word “accrue” is derived from the Latin “ad” and “creso” to grow to. When applied to independent or original demands it means to arise, to happen, to come into force or existence.*312 When used with reference to a cause of action it means when an action may be maintained thereon. It accrues whenever one person may sue another. Black’s Law Dictionary, 4th ed and cases cited therein. The cause of action must necessarily accrue to some person or legal entity. To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic. She cannot maintain an action before she knows she has one. To say to one who has been wronged, “You had a remedy, but before the wrong was ascertainable to you, the law stripped you of your remedy,” makes a mockery of the law. Rosane v. Senger, 112 Colo 363, 149 P2d 372, 375 (1944). In the absence of an expressed statutory direction to that effect, to ascribe to the legislature any such intention by their use of the word “accrue” seems to us unreasonable. Berry v. Branner, 421 P. 2d 996 — Or: Supreme Court 1966
“In order to demonstrate that there has been fraudulent concealment on the part of a defendant, a plaintiff must show: (1) that the defendant made an actual misrepresentation of fact; and (2) that, in making such misrepresentation, the defendant fraudulently concealed the existence of plaintiff’s causes of action.” Ryan v. Roman Catholic Bishop, 941 A.2d 174, 182 (R.I. 2008). Here, Plaintiffs have sufficiently alleged actual misrepresentation and concealment on the part of the Defendants. See Renaud v. Sigma-Aldrich Corp., 662 A.2d 711, 714 (R.I. 1995) (finding that “[i]n order to toll the running of the statute of limitations . . . there would have to be a showing that . . . the party asserting the statute-of-limitations defense attempted by fraud or misrepresentation to conceal the existence of the cause of action”) (citing Benner v. J.H. Lynch & Sons, Inc., 641 A.2d 332, 337–38 (R.I. 1994)). Plaintiffs have alleged fraud and have indicated facts that, if proven, would support their claim. See Bragg, 102 R.I. at 12, 227 A.2d at 584. If taken as true, Plaintiffs’ allegations would result in a tolling of the statute of limitations under § 9–1–20. See Renaud, 662 A.2d at 714. Therefore, the statute of limitations does not present an insuperable bar to Plaintiffs’ recovery. Hulslander, 633 A.2d 263 (R.I. 1993). citing Blouin v. SURGICAL SENSE, INC., RI: Superior Court 2008)
It should be noted that the fraudulent concealment exception does not establish a new date for the commencement of the statute of limitations, but rather creates an equitable exception. Burks, 534 N.E.2d at 1104–05; Spoljaric, 466 N.E.2d at 45. Under this exception, instead of a full statutory limitations period within which to act, a plaintiff must exercise due diligence in commencing her action after the equitable grounds cease to operate [**14] as a valid basis for causing delay. Burks, 534 N.E.2d at 1105. When the fraudulent concealment exception applies, the equitable grounds cease when a person, once becoming an adult, knows or should have discovered that a childhood injury was sustained as a result of the defendant’s tortious conduct (statute of limitations should be deemed to have begun to run at the point in time when the injury first became apparent. Silvertooth v. Shallenberger, 49 Ga. App. 133, 174 S.E. 365. adopted the view that in these cases the statute of limitations should not begin to run until the patient has discovered that he has suffered an injury or, by the exercise of reasonable diligence, should have discovered it. Johnson v. St. Patrick’s Hosp., 148 Mont. 125, 417 P.2d 469; Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788.)
IV. UNSOUND MIND
Plaintiff Nicholas Alahverdian also has several mental incapacities, including severe post-traumatic stress disorder and depression, incurred as a result of the conduct of the Defendants, perpetrated from from 2002 through 2010. Plaintiffs urges the Court that this should serve to equitably toll the three year statute of limitations. See Johnson v. Newport County Chapter for Retarded Citizens, 700 A.2d 289, 291 (RI 2002).
Statute of limitations were also suspended due to Plaintiff’s loss and/or repression of memory from Thorazine and PTSD.
Further, in the 2011 Kerr article, DCYF administrator Stephanie Terry notes that “[DCYF is] in the midst of trying to get away from residential care […] It doesn’t normalize; it makes things more difficult. If you tell a child when to eat, when to go to bed, how can they come out of that and know how to deal with life?”
Plaintiff Nicholas Alahverdian, as he was in night-to-night placement, was implicitly unable to “manage his day-to-day affairs,” especially when the defendants continuously interrupted his inherent desire to lead a stable lifestyle as a teenaged student, as evidenced by his employment at the State House, participation in the Providence Urban Debate League, relentless effort to remain in one school, and many other talents conceded by the Defendants and referenced by the Plaintiff. His day-to-day affairs were interrupted at a crucial time when he was exhibiting his ability to manage them. Every success was thwarted by Defendants, who relentlessly sought to portray him as unstable, even when Plaintiff was leading a stable lifestyle. Moreover, Plaintiff even took a leave of absence from his State House job to lobby for a stable day to day lifestyle, something the Defendants were unwilling to provide. Plaintiff could not be responsible for his day to day affairs because that power was usurped by defendants upon execution of the beginning elements of a conspiracy to disrupt his life and lobbying activities. Evidence of this is the Defendant’s act of sending him to out of state facilities where he was refused contact with anyone.
Plaintiff Nicholas Alahverdian also asserts that he never made an umbrella statement of unconsciousness — he remembered the underlying theme of abuse throughout his life — but remembered piercing facts, times, and places of abuse upon the tragic resurgence of pain in November 2010. The grace period for those of unsound mind, age of minority, etc. allow a reasonable opportunity to assess and assert his legal rights. This opportunity was never afforded to Plaintiff who lacked knowledge the trauma and injuries, and the causes thereof… due to fraudulent concealment of abusive treatment. Defendants represented to plaintiff that they protected him from abuse, saved him from abusive out of state placements, etc. disadvantaged plaintiff because of their convincing.
The actions for injuries to plaintiff was to be maintained by his CASA attorney (guardian ad litem). Plaintiff asserts that because of the legal obligations of defendants to protect and care for plaintiff, discovery of a cause of action by defendants, even absent actual cognition or memory of the plaintiff, shall be imputed to the plaintiff and conclusively constitute the accrual of an action within the meaning of the age of majority (or unsound mind) statute, thus allowing plaintiff two years after reaching majority within which to commence suit. However, this general rule must be subject to an exception when, as in the present case, the plaintiff’s claim asserts childhood/adolescent injury from the intentional, conspiratorial, abusive, and negligent acts of those who were required by law to care for him.
Under such circumstances, the Court must not presume that defendants informed plaintiff of childhood events, but the doctrine of fraudulent concealment should be available to estop defendants from asserting the statute of limitations when defendants were, either by deception, or by violations of duty, concealed from the plaintiff material facts thereby preventing the plaintiff from discovering a potential cause of action. Burks, 534 N.E.2d at 1104;