You'd have to be living under a rock not to have heard or read about the conga line of women who have come forward this past month to accuse Bill Cosby of sexual assault. Similar allegations been made over the last decade. In fact, Cosby settled a civil case involving allegations of sexual assault in Pennsylvania in 2006. Court papers in that case reveal that 12 anonymous women with similar allegations were prepared to come forward. That case ended in a settlement, so we didn't hear from those women, or any others, for almost 10 years - not until a comedian Hannibal Buress repeatedly called Cosby a rapist during a show in Philadelphia in October. Then the floodgates opened wide.
The 26 women who have come forward so far are telling stories that are materially the same that it's easy to conclude there must be some truth to the accusations. But it's important to remember that we are a nation that believes someone is innocent until proven guilty. To that point - and up until last week - none of these women had filed suit, which has meant that none of their stories have been supported with hard evidence or had their veracity tested via cross-examination.
Now, however, alleged victim Judith Huth has filed a civil suit against Cosby accusing him of sexual battery and intentional infliction of emotional distress, and there are those who've hoped that such allegations would finally be examined under the legal microscope. But after reviewing the complaint - and Cosby's response to it - it's likely this case will be dismissed swiftly due to the statute of limitations.
Simply put, a "statute of limitations" can be defined as the time period in which a legal action must be brought. The alleged acts at issue in this case occurred in California in 1974, so that state's statute of limitations would apply. Section 340.1 of the California Code of Civil Procedure sets the statute of limitations at eight years after the age of majority or three years after the emotional harm is discovered.
Given that Huth is now 55 years old, she has no choice but to claim that she only realized her emotional harm within the last three years. However, even that claim will fail since, under California law, Huth needed to obtain a Certificate of Merit co-signed by her attorney and a licensed medical professional that attests to her claim of recent emotional harm [See Ca Code Civ Pro Sec 340.1]. Huth has failed to produce such a document, and Cosby's response to the suit makes note of this shortfall in making the request that her claim be dismissed, which, under the circumstance, the proper remedy under the law. Cases can and often will be dismissed when they fail to state facts sufficiently enough to constitute a cause of action [See CA Code of Civil Proc 430.10].
Cosby's lawyers have further pointed out that since Huth attempted to sell her story to a tabloid 10 years ago, she will be hard pressed to prove the claim that she only recently realized emotional harm.
Could this be the reason she did not obtain the Certificate of Merit?
Beyond all that, Huth and her attorney might have courted trouble.
The nature of Huth's allegations can be damaging to a person's reputation and, by extension, his ability to make a living. To prevent this issue, many states, including California, maintain court rules that state the accused is to be identified as "John Doe" [See CA Code of Civil Proc 340.1(m)] until the court has reviewed the Certificates of Merit - and have found that, within the bounds of reason, a plaintiff has a case.
Huth and her attorney violated this critical rule by naming Cosby publicly and prematurely as the defendant. In response, and in addition to a request for dismissal, Cosby has asked to be reimbursed for attorney fees. Given the numerous deficiencies of the complaint - and strictly from a legal perspective - it certainly seems he's entitled to both.
Heather Hansen is a partner in the O'Brien and Ryan law firm who has been named one of the 50 top female lawyers in the state by Pennsylvania Super Lawyers. Heather is also a national television and radio legal analyst and journalist who has appeared extensively on CBS News, Fox News, Fox Business Channel, Fox.com, CNN, HLN and Sirius XM radio. Her writing has appeared in Law360 and she has co-authored two chapters in medical texts regarding medical malpractice litigation. Follow her on Twitter at @imheatherhansen.
