IN THE SUPREME COURT OF APPEALS OF THE STATE OF WEST VIRGINIA

JANE DOE-1, et a!.,

Plaintiffs-Petitioners,

v. No. 16-0008

CORPORATION OF THE PRESIDENT OF

THE CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS, et al.,

Defendants-Respondents.

RESPONDENTS CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS

CHRIST OF LATTER-DAY SAINTS, CORPORATION OF THE PRESIDING BISHOP
OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, STEVEN GROW,
AND DONALD FISHEL'S RESPONSE BRIEF

Allen M. Gardner Thomas J. Hurney, Jr. (W.Va. Bar No. 1833)

Sarah M. Gragert JACKSON KELLY PLLC
Marissa R. Boynton 500 Lee Street East
LATHAM & WATKINS LLP Suite 1600
555 Eleventh Street, NW, Suite 1000 Charleston, WV 25301
Washington, DC 20004-1304
William J. Powell (W.Va. Bar No. 2961)
Derek J. Linkous JACKSON KELLY PLLC
LATHAM & WATKINS LLP Post Office Box 1068
330 North Wabash Avenue Martinsburg, WV 25402
Suite 2800
Chicago, IL 60611
 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................ .. ................................................................................. 4

RESPONSE TO ASSIGNMENT OF ERRORS .................... .................... ...................................... I

STATEMENT OF THE CASE ........................................................................................................ 5

I. PROCEDURAL HISTORY .... .............. .. .............................. .. .................................... ......... 5

II. FACTUAL BACKGROUND .............................................................................................. 7

A. Church Membership and Organization .................................................................... 7

B. The Church Teaches that Child Abuse Cannot be Tolerated and Has
Implemented Policies to Prevent Abuse and Comply with Reporting Laws ......... I 0

C. The Church Did Not Learn About Michael's Abuse of the Minor Plaintiffs
Until 2012, at Which Time It Notified the Authorities ............ .. ................ .. .......... 12

D. Prior to the Doe-Is' 20I2 Disclosure, No Other Event Gave Notice of

Michael' s Pedophilia or Demonstrates a Conspiracy ..................... ....................... I5

I. 2004- Michael Briefly Gropes Two Same-Age Classmates in

Utah ............................................................................................................ I5

a. Michael Was "Adjudicated Delinquent" of Misdemeanors ........... l6

b. The Church Did Not Influence the Outcome of Michael's

Juvenile Proceedings ... ......... .. ............... ................................. ........ 17

c. Bishop Swensen Did Not Impose Ecclesiastical Discipline

on Michael or Annotate His Record ......... ..................................... 19

2. Whitcomb Calls SandraLee as Relief Society President and

Advances Michael in the Aaronic Priesthood to the Office of
"Teacher." ............................. ....... ... .. ...................................................... .. . 19

3. Michael's Developmentally Challenged Sister, R.J., Removes Her

Skirt One Time on a Dare ......... ....................................................... ........ .. 20

4. 2006 or 2007 Purported High Council Meeting ........................................ 21

E. No Event After the Doe-Is' 20I2 Disclosure Demonstrates a Conspiracy ........... 22

SUMMARY OF THE ARGUMENT ............................................................................................ 24

I
STATEMENT REGARDING RULE 19/20 POSITION CONCERNING ORAL
ARGUMENT ................. ......................... ....... ... ................................ ... ...... ... ................. .... 26

ARGUMENT .. .... ...... .. ........................ .................................. .................. ..................................... ..27

PART I: THE CIRCUIT COURT'S GRANT OF THE CHURCH DEFENDANTS'

SUMMARY JUDGMENT MOTION ON CONSPIRACY SHOULD BE
AFFIRMED .......... ... .. ....... ... .... .... .... ....... .... .... ... ....... ... .... .... ... .. .. ....... ........ ....... .. ....... ... ..... 27

I. DESPITE THE CIRCUIT COURT'S RULE 54(B) ORDER, PLAINTIFFS'

CONSPIRACY COUNT IS NOT AMENABLE TO AN INTERLOCUTORY
APPEAL . .... ...... ....... ........... .................. ....... .. ... ...................... .......... ................................. 27

II. THE CIRCUIT COURT CORRECTLY GRANTED THE CHURCH

DEFENDANTS ' SUMMARY JUDGMENT MOTION ON CONSPIRACY
(RESPONSE TO ALLEGED ASSIGNMENT OF ERROR 2) ..... .. ...... ....... ............ ... ..... .31

A. Plaintiffs' Conspiracy Theory Is Implausible on its Face ........... .... ....... ... .......... .. .32

B. There Is No Evidence From Which a Reasonable Jury Could Infer a

Conspiracy of Silence or a Conspiracy to Facilitate Abuse ........ ........................... 34

PART II: THE CIRCUIT COURT'S RULINGS ON THE MOTIONS IN LIMINE

SHOULD BE AFFIRMED ................... ................................... .. .............................. .......... 45

I. PLAINTIFFS IMPROPERLY INVOKE THIS COURT'S JURISDICTION TO

ADDRESS MOTIONS IN LIMINE THROUGH AN INTERLOCUTORY
APPEAL .. .... .......... ....... ....... ..... ....... ...... .. .. ..... ..... ... .......... .......... ...... .......... ........ .... .... ...... .45

II. THE CIRCUIT COURT PROPERLY CONSIDERED THE MOTIONS IN

LIMINE AND APPLIED THE CORRECT LEGAL STANDARD ............................ ..... .48

A. Rule 403 Requires "Weighing" the Probative Value of Evidence Against

Other Factors, Including Waste of Time. (Response to Alleged
Assignment of Errors la & 2a) ................................. .. ........................... .... ............ 49

B. " Wasting Time" is One of the Express Factors to be Weighed in a Rule

403 Analysis. (Response to Alleged Assignment of Error 1b) .. ............ ... .. .......... 51

III. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN

EXCLUDING VARIOUS PIECES OF EXTRANEOUS EVIDENCE .................. .......... 53

A. 2006 or 2007 Mythical High Council Meeting (Response to Alleged

Assignment ofError l(iii)) ....... ..................... ........ .... ....................... ...... .... ........... 53

B. Michael's 2004-2005 Provo, Utah Juvenile Proceedings (Response to

Alleged Assignment ofError l(i)) .... ............. ..... ... ... ...... ................. ..... ................ .57

2
 1. Exclusion ofthe SBRA .............................................................................. 57

2. Exclusion of Allegations that the Church Influenced Michael's

Juvenile Proceedings .. .............................. ................. ................................. 60

3. Exclusion of All Arguments Relating to the Church's Annotation

System ..................................... ................................................................... 64

a. Relevant Background ..................................................................... 65

b. Constitutional Concerns Warrant Exclusion.................................. 66

c. Annotation Has No Probative Value for Plaintiffs' Claims ........... 67

C. 2007 Juliana Menendez Incident (Respo~se to Alleged Assignment of

Error 1(iv)) ............................................... ..... ........................... ......... ..... ............. ... 68

D. Plaintiffs' 1999 Purported Helpline Form (Response to Alleged

Assignment of Error 1(v)) ...................................................................................... 70

E. R.J. Abuse Allegations (Response to Alleged Assignment of Error 1(iv)) ........... 73

CONCLUSION .............................................................................................................................. 74

3
 TABLE OF AUTHORITIES

Page(s)
CASES

Agere Sys., Inc. v. Advanced Envtl. Tech. Corp.,

602 F.3d 204 (3d Cir. 201 0) .......... ..... ..... .. ........... .................. ..................... ... ...... ............ ..55, 63

Ash v. Allstate Ins. Co.,

No. 12-1533,2013 WL 5676774 (W. Va. Oct. 18, 2013) .................. ...................... ............... 35

Att y Gen. of Md. v. Dickson,

914 F.2d 247, 1990 WL 135727 (4th Cir. 1990) ..................................................................... 29

Bd. of Church Extensions v. Eads,

159 W.Va. 943,230 S.E.2d 911 (1976) ................................................................................... 66

Bell Atl. Corp. v. Twombly,

550 u.s. 544 (2007) ... .................. .. ......................................................... .......... ............. .. ... ..... 44

Bohrer v. DeHart,
943 P .2d 1220 (Colo. App. 1996) ........................................................................ .. .................. 66

Coleman Estate ex rei. Coleman v. R.M Logging, Inc.,

226 W.Va. 199,700 S.E.2d 168 (2010) .......................... .... .. ................ .. ................................ 32

Coleman v. Sopher,
194 W.Va. 90, 459 S.E.2d 367 (1995) ................................................................................... .45

Collins v. Union Fed. Sav. & Loan Ass 'n,

662 P.2d 610 (Nev. 1983) ........................................................................................................ 35

Curtiss- Wright Corp. v. Gen. Elec. Co. ,

446 U.S. 1 (1980) ............. .......... ........ .. .... .. ........ .. ......... ... ...... ......................... ........................ .28

Daniel v. Stevens,
183 W.Va. 95, 394 S.E.2d 79 (1990) ...................................................................................... 50

Dickens v. Sahley Realty Co.,

233 W.Va. 150,756 S.E.2d 484 (2013) ............................................................................ ...... 32

Dunn v. Rockwell,
225 W.Va. 43, 689 S.E.2d 255 (2009) ........................................................................ 28, 35, 40

Ebrahimi v. City of Huntsville Bd. of Educ.,

114 F.3d 162 (11th Cir. 1997) .......................................... .. ............................................... 29, 30

4
 Page(s)
Gentry v. Magnum,
195 W.Va. 512,466 S.E.2d 171 (1995) ........................................................................... .48, 49

Hinkle v. City of Clarksburg,

81 F.3d 416 (4th Cir. 1996) .................... ........ ........ ......... ... ........................... ... ....... .. .... .. ........ 44

James M B. v. Carolyn M,
193 W.Va. 289,456 S.E.2d 16 (1995) ............................................................................. .45, 48

Johnson v. Killmer,
219 W.Va. 320,633 S.E.2d 265 (2006) ......... .. ... ... .... ..... ........................................ .... ...... 44-45

Lloyd Noland Found., Inc. v. Tenet Health Care Corp.,

483 F.3d 773 (11th Cir. 2007) ...... ..... ......................... ..................... ...... ....... ........................... 30

Lloyd v. Kyle,
26 W.Va. 534 (1885) .............................................................................................................. 46

Lauzon v. Ford Motor Co.,

718 F.3d 556 (6th Cir. 2013) ................................................................................................... 50

Marting v. Neb. Liquor Control Comm 'n,

548 N.W.2d 326 (Neb. 1996) ................................................................................................... 63

McKenzie v. Carroll Int '1 Corp.,

216 W.Va. 686, 610 S.E.2d 341 (2004) ..... ............ ...................... ........ .................................. .48

Meyer Intellectual Props., Ltd. v. Bodum, Inc.,

690 F.3d 1354 (Fed. Cir. 2012) ................................................................................................ 50

Mid-American Tablewares, Inc. v. Magi Trading Co.,

100 F.3d 1353 (7th Cir. 1996) ................. .. ... ......... ........... .. .. ............ .... ......................... ... ....... 50

Pattermann v. Pattermann,
496 N.W.2d 613 (Wis. Ct. App. 1992) .................................................................................... 63

Presbyterian Church v. Mary Elizabeth Blue Hull Mem 'I Presbyterian Church,
393 U.S. 440 (1969) .. ....... ............... ......... .................... ................ ........... ............ .. ................ ... 66

Province v. Province,
196 W.Va. 473,473 S.E.2d 894 (1996) ... ......... ................. ............................. 27, 28, 29, 30,48

Riffe v. Armstrong,
197 W.Va. 626, 477 S.E.2d 535 (1996 ................................................................. 27, 30, 47, 53

5
 Page(s)
River Riders, Inc. v. Steptoe,
223 W. Va. 240, 672 S.E.2d 376 (2008) .................................................................................. 46

Serbian E. Orthodox Diocese v. Milivojevich,

426 U.S. 696 (1976) ........ ..................................................... .... ................................................ 66

Skaggs v. Elk Run Coal Co.,

198 W.Va. 51,479 S.E.2d 561 (1996) .................................................................................... 51

St. Clair v. Chambers,

178 W.Va. 393,359 S.E.2d 622 (1987) .................................................................................. 27

State v. Derr,
192 W.Va. 165,451 S.E.2d 731 (1994) .................................................................................. 48

State v. Helmick,
201 W.Va. 163, 495 S.E.2d 262 (1997) .................................................................................. 63

State v. Sutphin,
195 W.Va. 551,466 S.E.2d 402 (1995) ............................................................................ 55, 63

Swint v. Chambers Cty. Comm 'n,

514 U.S. 35 (1995) ................................................................................................................... 46

Tennant v. Marion Health Care Found., Inc.,

194 W.Va. 97,459 S.E.2d 374 (1995) .................................................................................... 45

Thomas v. Barnett,
131 S.E.2d 818 (Ga. Ct. App. 1963) ........................................................................................ 63

Thornsbury v. Thornsbury,
147 W.Va. 771, 131 S.E.2d 713 (1963) .................................................................................. 63

Turner v. Church ofJesus Christ of Latter-day Saints,

18 S.W.3d 877 (Tex. App. 2000) ............................................................................................. 66

United States v. Gossett,

877 F.2d 901 (11th Cir. 1989) ................................................................................................. 63

United States v. Siegal,

536 F.3d 306 (4th Cir. 2008) ...................................................................... , ........................... 52

United States v. Watkins,

960 F .2d 148, 1992 WL 79529 (4th Cir. 1992) ....................................................................... 63

Wenmoth v. Duncan,
No. 3:08-cv-182, 2009 WL 2707579 (N.D.W. Va. Aug. 26, 2009) .................................. 35, 42

6
 Page(s)
Williams v. Johnson ,
747 F. Supp. 2d 10 (D.D.C. 2010) ............................................. .... ...... :................................. ..49

Williams v. Precision Coil, Inc.,

194 W.Va. 52,459 S.E.2d 329 (1995) ........................................................................ 32, 34,60

Wise v. S. Pac. Co.,

35 Cal. Rptr. 652 (Ct. App. 1963) ................ .. ..... .............................. ....... .... .... ... .... ...... ........... 35

STATUTES

Utah Code 76-9-702.5 ..... ....... .. .. ........................................................... ............................. ......... 16

Utah Code 78-3a-117 (2005) ...................................................................................................... 16

OTHER AUTHORITIES

15A C.J.S. Conspiracy 13 ............ ......... ...... ................................ .... ................ ................... ......... 35

22A Kenneth A. Graham, Jr., Federal Practice & Procedure: Federal Rules of
Evidence 5214.1 .................................................................................................................... 49

Handbook on Evid. for W.Va. Lawyers 403 .04[3] ............................................................. .48, 49

Handbook on Evid. for W. Va. Lawyers 403.04[5] ..... ................ .. ............................... ........ ..... .49

Handbook on Evid. for W. Va. Lawyers 403.05[3]. ................................................................... 52

Handbook on Evid. for W.Va. Lawyers 801.06[3][f][ii] ..................................................... 56, 63

1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence 4:15 ............... ....... .......... 51

Victor E. Schwartz & Leah Lorber, Defining the Duty of Religious Institutions to
Protect Others: Surgical Instruments, Not Machetes, are Required, 74 U.
Cinn. L. Rev. 11 (2005) ............. ................. ................................. ........ ................. ... .... .. .. .......... 9

Utah R. of Judicial Admin. 4-202.03(5)(M) .. .. .... .. ...... ............... ........................ .. .. ... ....... ...... .... 17

W.Va. R. App. P. 19(a) .......... ...... ..... .............................................. ................ .................. .. .. ........ 26

W.Va. R. App. P. 3l(a) ... .............. .... ............................................. .................... .... .... ............. ... ... 27

W.Va. Rule ofCiv. P. 54(b) ........ .... ....... .... ................................... ........ ................................. 27-31

W.Va. R. Evid. 403 ....... .. ... .................... ............................. ............................ .. ...... ...... ...... .......... 26

2-401 Weinstein's Federal Evidence 40 1.04[1 ]. .. ............. ................. .... ............... ......... ............ .49

7
 RESPONSE TO ASSIGNMENT OF ERRORS

The "assignments of error" section of Plaintiffs' brief is a long, summary narrative

argument followed by bullet-point "errors." Responding to the narrative, let us be clear from the

outset about four things.

First, despite Plaintiffs' misleading rhetoric, this is not a clergy-abuse case. There is no

correlation between this case and the terrible clergy-abuse scandals that have dominated the

headlines. Rather, this case involves a mere teenage congregant of The Church of Jesus Christ of

Latter-day Saints (the "Church" or "LDS") who committed sexual abuse in settings with no

connection to the Church.

Plaintiffs open by telling this Court that the Church "knew that it had a sex offender in its

midst by as early as December 2004." Pet'rs' Br. 1. This statement is misleading. By "sex

offender," Plaintiffs mean 13-year-old Michael Jensen who, while at school, briefly groped two

girls his age over their clothes. And by "in its midst," Plaintiffs mean that Michael attended

church on Sundays with his family. Plaintiffs' brief is filled with such misdirection, which is

intended to portray the Church and its congregants in the most sinister light possible. In what

follows , Corporation of the President of The Church of Jesus Christ of Latter-day Saints,

Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints, and two

local Church leaders, Donald Fishel and Steven Grow ("Church Defendants") will endeavor to

set forth the facts straightforwardly so the Court can fairly evaluate them.

Second, this appeal is not about whether Plaintiffs should have a chance to prove that the

Church made mistakes in dealing with a teenage congregant who allegedly abused children.

Plaintiffs' four causes of action for negligence remain pending in the court below. Regardless of
the outcome of this appeal, they will have a full and fair opportunity to prove those claims and

seek an appropriate recovery.

Rather, this appeal is about whether the Church engaged in a more than eight-year-long

conspiracy, spanning two states, and engulfing more than thirty people-none with any

discernible motive-to not only cover up but actually facilitate Michael's sexual abuse of young

children. It would be shocking if there were evidence of such an appalling conspiracy. What

possible motive could the Church have for covering up and facilitating abuse by a mere teenage

congregant? Not surprisingly, there is no evidence. As the circuit court held, Plaintiffs instead

rely on pure speculation.

The alleged conspiracy began in 2004, according to Plaintiffs' speculation, when Michael

groped two classmates at school. This had nothing to do with the Church. But Plaintiffs say that

the Church responded by using its influence to improperly convince the Utah prosecutors and

judge to go easy on Michael. Why the Church would do such a thing is beyond

comprehension-and Plaintiffs never offer a reason. The supposed evidence for such a

conspiracy is pure conjecture. Plaintiffs say it was unusual that Michael's charges were dropped

from felonies to misdemeanors. Except the evidence is undisputed that the outcome was not

unusual at all and that the Church did absolutely nothing to influence the outcome. Plaintiffs'

naked speculation runs counter to the actual evidence.

Three years later, in 2007, Michael committed his first act of child sexual abuse-at least

the first that anyone is now aware of. But that abuse remained completely hidden until 2012.

Indeed, nearly all of the abuse alleged in this case remained hidden from everyone's view-

including the Church's-until after Michael was arrested in 2012.

2
 Plaintiffs cannot point to a single piece of evidence from which a jury could reasonably

infer that there was a preconceived plan, an agreement, or concerted action, to cover up,

minimize, or deny abuse committed by Michael, and even less so from each of the thirty people

they claim were a part of the conspiracy. Pet'rs' Br. 1. Of the nine remaining minor Plaintiffs,

there was only one (hotly disputed) instance in which a Church leader may have learned of abuse

before 2012, but no evidence associated with that alleged report suggests any sort of conspiracy.

And when abuse was undisputedly reported to a local Church leader in 2012 by the mother of

another victim, that Church leader's immediate response was, "This is a crime and you need to

call the police." JA02609. He even gave her the number for the police. JA02609. That is the

opposite of a conspiracy of silence.

Plaintiffs' conspiracy theory goes beyond mere silence. They allege that the Church and

its co-conspirators not only concealed Michael's dangerous proclivities, they actually

"provide[d] him access to young children" and "facilitated his abuse." Pet'rs' Br. 62. That is a

heinous, inflammatory accusation without foundation. The evidence is undisputed that, prior to

2012 (when the abuse was discovered), the Church Defendants had nothing to do with and were

not even aware of the private babysitting or living arrangements that Michael took advantage of

to abuse children. Plaintiffs do not point to any contrary evidence.

In short, Plaintiffs' attempt to depict a conspiracy relies on unreasonable inferences piled

upon more unreasonable inferences. The circuit court faithfully applied Rule 56 in rejecting

their meritless conspiracy claim.

Third, let us also be clear that despite Plaintiffs' conspiracy allegations, this Court need

not wade into the 12,000-page record to dispose of this appeal. Plaintiffs' interlocutory appeal

does not meet the requirements of Rule 54(b) of the West Virginia Rules of Civil Procedure

3
because their conspiracy cause of action is not actually an independent "claim for relief."

Conspiracy is not a stand-alone tort, but a means of extending liability for an underlying tort.

Plaintiffs have improperly invoked this Court's appellate jurisdiction to review a claim that is not

ripe for appeal.

Accordingly, this Court should exercise its discretion to dismiss this appeal. Plaintiffs'

conspiracy claim is a negligence claim dressed up as conspiracy. Duty, failure to warn, and

foreseeability are all part of Plaintiffs' conspiracy theory. But Plaintiffs have four pending

negligence causes of action that seek the same relief as their conspiracy claim based on the same

facts. This appeal is unnecessary, therefore, because if Plaintiffs prevail on their negligence

claims they will also get the relief they seek on conspiracy. And if they cannot prove their

negligence claims, then they cannot prove conspiracy either.

Finally, let us be clear that Plaintiffs are exploiting this appeal to prematurely challenge

the circuit court's evidentiary rulings before a trial has even been held. Indeed, they seem to care

little about their conspiracy claim, not even addressing the issue until page 61 of their brief.

Under this Court's longstanding jurisprudence, evidentiary rulings are not subject to

interlocutory appeal. To avoid unleashing an avalanche of interlocutory appeals from

evidentiary rulings, this Court should adhere to its established jurisprudence and refuse

Plaintiffs' demand to prematurely review the circuit court's pre-trial evidentiary rulings.

In reference to the specific errors assigned by Plaintiffs, see Pet'rs' Br. 5-6, the Church

Defendants state:

December 31 Summary Judgment and Predicate Evidentiary Rulings

1. The evidentiary rulings of which Plaintiffs complain are not properly before this
Court as they are not final rulings and this Court does not consider interlocutory
appeals of such issues. Nonetheless, the circuit court committed neither of the
"legal errors" asserted by Plaintiffs with respect to the evidentiary rulings.

4
 a. The circuit court did not improperly weigh evidence, evaluate credibility,
or draw inferences in the Church Defendants' favor. Pursuant to Rules
104 and 403 of the West Virginia Rules of Evidence, the circuit court
properly evaluated the Plaintiffs' proffered evidence.

b. The circuit court properly evaluated the danger that the proffered evidence
would waste time, as expressly authorized by West Virginia Rule of
Evidence 403 and this Court's cases, as a factor in excluding Plaintiffs'
proffered evidence.

Each of the challenged in limine rulings was correctly decided by the circuit court,
and Plaintiffs certainly cannot show any of them to be an abuse of discretion.

2. This Court should dismiss for lack of refuse to entertain Plaintiffs' interlocutory
appeal from the circuit court's grant of summary judgment on civil conspiracy
under West Virginia Rule of Civil Procedure 54(b), or alternatively, it should
dismiss the appeal under its inherent authority to decline the exercise of its
discretionary jurisdiction. Nonetheless, summary judgment was appropriate on
Plaintiffs' conspiracy claim. Even accounting for the excluded evidence, no
reasonable jury could find that the Church Defendants conspired to conceal and
facilitate abuse by Michael Jensen, and Plaintiffs failed in their burden to produce
admissible evidence of material fact to support their conspiracy allegations.

STATEMENT OF THE CASE

I. PROCEDURAL HISTORY

Plaintiffs initiated this case on September 16, 2013. JA11871. They brought numerous

causes of action all arising out of the allegation that teenager Michael Jensen sexually abused

twelve children in five families. They named as defendants the Church Defendants, Michael

Jensen, and his parents, SandraLee and Chris Jensen.

On January 31 , 2014, Plaintiffs filed an Amended Complaint adding the Doe-6 family as

plaintiffs and Unnamed Defendant-1 ("UD-1") as a defendant. See JA10534 (Am. Compl.).

5
Plaintiffs took 43 depositions and issued 98 requests for production, 66 interrogatories, and 259

requests for admission. Over time, several Plaintiffs withdrew their claims without prejudice.'

On June 30, 2015, the Church Defendants collectively filed eleven motions for partial

summary judgment and Plaintiffs filed two, followed on August 25, 2015 by numerous motions

in limine filed by all parties. See JAOO 167 (Aug. 31, 2015 Hr' g Tr. at 7). See generally

JA11917-28.

On December 3, 2015, the circuit court denied some of the summary judgment motions,

took many of them "under advisement," and granted UD-1 's motion for summary judgment on

civil conspiracy. JA00001-17. The Church Defendants' and the Jensens' motions on civil

conspiracy were taken under advisement. JA00002-03. On December 30, the court granted

several motions in limine, denied others, and took some under advisement. See JA00020-26.

On December 31, 2015, the circuit court granted the Church Defendants' and the

Jensens' previously deferred motions for summary judgment on civil conspiracy. JA00027-31.

The circuit court concluded that Plaintiffs' "claim is the type of speculation and conjecture that

summary judgment is intended to forestall." JA00030. "No reasonable juror could conclude

[based on the undisputed evidence] that local leaders and members of the LOS Church in two

different states would not only conspire with Michael Jensen and his parents to conceal his

abuse, but actively facilitate his pedophilia by trumpeting his moral worthiness to the

congregation and obstructing a criminal investigation." !d. Plaintiff had, at most, identified

"multiple people [that had] happened to do the same thing," but they had failed to show that the

See Docket Sheet entries at JA 11898 (Minor-Plaintiff C.B., Stipulation of Dismissal Without
Prejudice (Oct. 3, 2014)), JA11916 (Minor-Plaintiffs S.C., R.B., and C.S., Order Granting Pis.' Mot. for
Voluntary Dismissal Without Prejudice (Apr. 16, 20 15)), JA 11942 (John Doe-2, Stipulation of Dismissal
(Dec. 17, 2015)).

6
parties "reach[ed] a unity of purpose or common design and understanding." !d. (citation and

emphases omitted).

On January 11, 2016, at Plaintiffs' request, the circuit court certified under Rule 54(b) of

the West Virginia Rules of Civil Procedure the December 3 and December 31 civil conspiracy

orders. JA00034-35. The court did not certify the in limine rulings, contrary to Plaintiffs'

representation. Pet' rs' Br. 21; see JA00034-35 (referring to appellate review of "any necessary

evidentiary rulings," without determining that any rulings were, in fact, necessary).

II. FACTUALBACKGROUND

A. Church Membership and Organization

Michael Jensen was born to Chris and SandraLee Jensen in September 1991, the third of

their six children. JA06392-93 (S. Jensen Aff. ~~ 3-7). The Jensens are congregants of The

Church of Jesus Christ of Latter-day Saints ("the Church"). Some background on the structure

of the Church will help the Court understand this case and the various ecclesiastical titles and

positions that are mentioned.

The Church, headquartered in Salt Lake City, Utah, has approximately 15 million world-

wide members, 6.4 million in the United States. 2 JA06310 (2014 P. Rytting Aff. ~ 3). The

Church is led by 15 "apostles," the most senior of which is the President of the Church.

JA06384 (2015 P. Rytting Aff. ~ 4). He selects two other apostles as counselors and together

this "First Presidency" is the highest governing body of the Church. !d. The other twelve

apostles form the Quorum ofthe Twelve-the second-highest governing body. !d.

The Church has over 28,000 congregations, known as "wards." JA06310

(2014 P. Rytting Aff. ~ 3). Wards encompass defined geographic territories, and each

2
Congregants of the Church are referred to as "members."

7
congregant belongs to the ward associated with his or her residence. !d. Five to twelve wards

constitute a "stake," covering the combined geographical territories of its wards. !d.

There is no paid or professionally trained clergy in the Church. !d. (id. '1!4). The

clergyman of each ward is the "bishop" and the clergyman of each stake is the "stake president,"

and both are selected from the local congregation. !d. Bishops and stake presidents are unpaid

volunteers who are married and typically have children. !d. They continue to work their "day"

jobs while simultaneously devoting many hours each week to their clergy responsibilities.

JA0631 0-11 (id. 'II 4). A bishop typically serves for about five years and a stake president for
about nine before being replaced by another local congregant. JA06311 (id. '1!4).

At the local level, bishops and stake presidents are the only Church clergy. JA06385

(20 15 P. Rytting Aff. 'II 7). But nearly 7very congregant in the Church fulfills some volunteer
responsibility, known as a "calling." !d.; JA07425, JA07427-28 (2010 Handbook 2:

Administering the Church 19.1.1, 19.1.2, 19.6). For example, each bishop and stake president

has two advisors, called "counselors," who provide administrative assistance. JA06385 (2015

P. Rytting Aff. '1!9). Each stake president appoints twelve other lay congregants to serve on a

"high council," an advisory group that delivers the stake president's messages to wards and

assists in certain ecclesiastical disciplinary hearings. !d.; JA04826 (2010 Handbook 2 15.3.1).

Other congregants teach classes, prepare programs, lead music, or, under the direction of the

bishop or stake president, help supervise auxiliary programs for the women (Relief Society),

children (Primary), youth (Young Women and Young Men), and men (Elders Quorum and High

Priests). JA06385 (2015 P. Rytting Aff. '1!9); JA07425, JA07427-28 (2010 Handbook 2

19.1.1, 19.6). By design, these callings change often. A congregant could be the bishop one

year and a Primary teacher the next. See, e.g., JA01110-11 (Jane Doe-5 Dep. 385:16-386:11).

8
 The Church has something akin to the Protestant notion of the priesthood of all believers.

Virtually all young men who are congregants in the Church progress through stages of

"priesthood" according to their age. See JA02999-3000 (S. Grow Dep. 252:15-253: 15); see also

JA05074-75 (1998 Handbook 2: Priesthood and Auxiliary Leaders at 175-76). 3 At age twelve,

young men may generally join the "Aaronic Priesthood" and become "deacons." JA05074 (id. at

175). At age fourteen, they may become "teachers," and at sixteen they become "priests."

JA05075 (id. at 176). At age eighteen, men receive the "Melchizedek Priesthood" and be

ordained as "elders." JA04891 (1998 Handbook 1: Stake Presidencies and Bishoprics at 31 ). 4

Adult women in the Church belong to their local ward's Relief Society, i.e., the adult

women's group. One woman is selected by the bishop as the Relief Society president, and she

works with the bishop to seek out and care for the poor and needy within the congregation.

JA03032 (2010 Handbook 2 9.2.1, 9.2.2). Among other things, she visits with congregants in

need of welfare 5 assistance, evaluates those needs, and suggests how to respond to them. !d. at

9.2.2.

3
There are corresponding advancements for female congregants, but those positions are not
relevant to the present appeal. See JA05116 ( 1998 Handbook 2 at 217).
4
These titles have no legal significance. As explained by Victor Schwartz, coauthor of a
preeminent hornbook on torts:
In the Mormon faith . . . the titles "priest," "elder," and "high priest" imply no
ecclesiastical authority or prestige. The Mormon Church has a lay priesthood where
virtually every male over the age of twelve holds an essentially honorific priesthood title
of some sort. ... At the local level, real clerical authority is vested in "bishops" and "stake
presidents" who are selected by higher priesthood authorities from the local pool of
faithful elders and high priests. Without an additional ordination to the position of bishop
or stake president, an elder or high priest is merely an ordinary member of the Mormon
Church.
Victor E. Schwartz & Leah Lorber, Defining the Duty of Religious Institutions to Protect Others: Surgical
Instruments, Not Machetes, are Required, 74 U. Cin. L. Rev. 11, 53-54 (2005).
The Relief Society Presidency, with other leadership groups, "share the following welfare
responsibilities: They teach principles of temporal and spiritual self-reliance. They care for the poor and

9
 B. The Church Teaches that Child Abuse Cannot be Tolerated and Has
Implemented Policies to Prevent Abuse and Comply with Reporting Laws.

Child sexual abuse is an appalling sin under Church doctrine. 6 Over the last several

decades, Church leaders have often publicly condemned abuse of any kind. JA06311

(2014 P. Rytting Aff. ~ 6). In 1994, for example, the Church President, Gordon B. Hinckley,

denounced the "terrible, vicious practice of sexual abuse." JA01979 (Hinckley, "Save the

Children," The Ensign (Oct. 1994)). He declared it to be "beyond understanding," and "an

affront to the decency that ought to exist in every man and woman." !d. He called it

"reprehensible and worthy of the most severe condemnation." !d.

The Church's Handbook, which contains official Church policies, makes clear that, upon

learning of possible abuse, the first responsibility is to help those who have been abused and

protect those who may be vulnerable to future abuse. JA07419-20 (20 10 Handbook 1: Stake

Presidents and Bishops 7.5, 17.3.2). The Handbook says that "abuse cannot be tolerated in

any form" and authorizes excommunication for those guilty of child abuse. !d. "Those who

abuse or are cruel to their spouses, children, other family members, or anyone else violate the

laws of God and man. All members, especially parents and leaders, are encouraged to be alert

and diligent and do all they can to protect children and others against abuse and neglect."7

JA07420 (2010 Handbook 1: Stake Presidents and Bishops 17.3.2).

needy and encourage members to give service. They help individuals and families become self-reliant and
find solutions to short-term and long-term welfare concerns." JA03037 (2010 Handbook 2 9.6); see
also generally JA03030-40 (20 I 0 Handbook 2, ch . 9).
6
It would be better for the offender "that a millstone were hanged about his neck, and that he were
drowned in the depths of the sea." Matthew 18:6 (King James).
Plaintiffs ask the Court to "infer[]" that the Church does not really believe these things and that
the Church somehow has hidden teachings that require covering up abuse committed by teenage
congregant. Pet'rs' Br. 64-65. But they point to no evidence whatsoever to support such an absurd and
offensive notion and offer nothing to rebut the undisputed evidence regarding the Church ' s beliefs and
teachings.

10
 In 1995, the Church established a national Helpline (an 800 number) to assist bishops and

stake presidents when they learn about abuse. JA06312 (20 14 P. Rytting Aff. ~ 11 ). The

Helpline is staffed by licensed mental health professionals who ensure that appropriate

counseling and other assistance is made available to the victims and their families. !d. (id. ~ 12).

The Helpline also puts Church clergy in contact with attorneys who ensure that they fulfill any

reporting obligations, which vary from state to state. 8 JA06313 (id. ~ 13). In addition, in all

cases of child abuse, the Church Handbook says that the perpetrator should be instructed to turn

himself in and accept the consequences of his crime as part of repenting for his sins. JA07420

(201 0 Handbook 2 17.3.2).

In addition to the Helpline, the Church has other policies in place to minimize the risk of

child sexual abuse during Church activities or on Church property. When the Church becomes

aware that a congregant has engaged in conduct that puts children at risk, the congregant's

8
Plaintiffs argue that they are entitled to an "inference" that the Helpline "was implemented to
shield the Church from potential liability, by deleting the instruction [in earlier versions of the Handbook
of Instructions] to comply and report, and instead transferring the compliance decision from the
mandatory reporter to a lawyer whose ethical obligation is to protect the Church as an institution (and
therefore not necessarily to report and shine a light on abuse)." Pet'rs' Br. 59-60. That is not a
reasonable inference. The change in policy was a result of the implementation of the Helpline, which
gave lay, volunteer Church clergy access to lawyers who were experts in reporting laws so the clergy no
longer had to figure out how to comply with varying reporting obligations on their own.
Plaintiffs further assert that the Helpline exists to protect the Church from liability by advising
local Church leaders not to report abuse even when the Jaw requires it. Pet'rs' Br. 59-60. This is an
offensive and unsupported allegation. To be sure, one purpose of the Helpline is to protect the Church
from liability by making sure local leaders comply with the law, although the primary purpose remains
the protection of victims. Plaintiffs have no evidence of a single call to the Helpline that did not result in
compliance with the Jaw, and they offer no testimony from anyone familiar with how the Helpline works.
And it is undisputed that in this case, the call to the Helpline resulted in a report to the authorities. In
short, Plaintiffs' requested inferences are based on pure conjecture and paranoid speculation, not
evidence.
Finally, Plaintiffs seek to find nefarious intent from the Church's document retention policy,
codified in its Handbook. See Pet'rs' Br. 65 n.45. But this is a standard document retention policy, much
like that maintained by many organizations and corporations. See JA07436 (2006 Handbook I: Stake
Presidencies and Bishoprics at 151 ).

11
Church record is "annotated" or flagged and that congregant is prohibited from serving in any

position that would put him in contact with children or youth. JA09165-66 (R. van Komen Decl.

~~ 4-5). Additionally, the Church follows what is dubbed the "two-deep policy," which means

that "[w]hen men are assigned to teach children, at least two responsible adults should be present

at all times." JA01959 (2010 Handbook 2 11.8.1); JA06386 (2015 P. Rytting Aff. ~ 19).

These policies cannot, however, prevent abuse that occurs in the private lives of congregants,

which are of course beyond the control of any church.

C. The Church Did Not Learn About Michael's Abuse of the Minor Plaintiffs
Until 2012, at Which Time It Notified the Authorities.

Plaintiffs are nine children from six families and one or both of the children's parents

who claim that Michael molested the children. 9 With only one exception, the undisputed

evidence is that no Defendant-not Michael's parents, any Church Defendant, or the children's

own parents-ever knew or suspected that they had been sexually abused until at least 2012.

And in all but one case, the Church Defendants did not know Michael was in the Plaintiffs'

homes until after the fact. The following are the facts regarding the alleged abuse.

In April 2007, Michael sexually abused John and Jane Doe-6's daughter P.C. (age four)

as he babysat the Doe-6 children in their private home while their parents were away for a

business conference. See JA10559-60 (Am. Compl. ~~ 79, 81). This is now the first known

instance of Michal sexually abusing any child. P.C. did not disclose any abuse-to anyone-

until 2012, five years later, JA10256 (Jane Doe-6 Dep. 103:7-11), and, in fact, denied to her

mother in 2007 that she had been touched inappropriately. JA06862 (id. at 77: 13-16). P.C. 's

parents never suspected sexual abuse until 2012. JA06860, JA06868, JA06871-72 (id. at 56:10-

9
It is undisputed that Michael molested several of the children, but it is disputed whether he
molested certain ofthem. Resolution ofthose disputes is not necessary for purposes of this appeal.

12
24, 102:13-16, 112:22-113:19); JA06880-81 (John Doe-6 Dep. 78:12-79:20). It is undisputed

that no Church Defendant knew that Michael babysat for P.C.

On November 10, 2007, Michael molested two boys, J.T. (age three) and W.T. (age four),

while babysitting for them in the Doe-1 home. JA I 0562 (Am. Compl. ~ 87). 10 It was not until

2012, over four years later, that W.T. and J.T. disclosed the abuse. JA02608 (Jane Doe-1 Dep.

93:5-9); JA10569 (Am. Compl. ~ 105). They were the first of Michael' s child victims to

disclose the abuse. It is undisputed that no Church Defendant knew that Michael had babysat for

W.T. or J.T. until the disclosure in 2012.

Plaintiffs allege that in April 2009, Michael abused a three-year-old boy, C.H., while

babysitting him at the Jensens' home. See Pet'rs' Br. 13 . It was not until February 8, 2013, after

Michael had been arrested, that anyone knew that C.H. had possibly been abused, when C.H.

purportedly disclosed sexual abuse to his mother. JA04000 (Jane Doe-3 Dep. 64:10-12).

In 201 0 and 20 11, Michael (who by then was eighteen years old) would frequently stay

with the Doe-4 family because Jane Doe-4' s oldest son (not a Plaintiff here) was a close friend of

Michael' s. JA02211-14 (Jane Doe-4 Dep. 403:3-406:15). In the spring of 2011, Michael

vacationed with the Doe-4 family. See JAI0568 (Am. Compl. ~ 103). Plaintiffs allege that

Michael sexually abused A.B. , Pet'rs' Br. 14, because on two occasions he momentarily touched

A.B. over the clothes, which she described as accidental. JA01867-68 (CAC Interview Tr. 12:8-

10
Throughout their brief, Plaintiffs argue that SandraLee acted in specific instances in her alleged
capacity as an agent of the Church, rather than as Michael's mother. See, e.g., Pet'rs' Br. 10 (arguing that
SandraLee arranged Michael to babysit in her capacity as the local Relief Society president).
Determining whether she was acting as an agent of the Church has no bearing on Plaintiffs' conspiracy
claim. Indeed, for Plaintiffs to establish that SandraLee acted as an agent of the Church would be to
refute their own conspiracy claim because an entity cannot conspire with its own agents. Cook v. Heck 's
Inc., 176 W.Va. 368, 375, 342 S.E.2d 453, 460 (1986); see also infra pp. 42-43 . In any event, in each of
those allegations, SandraLee allegedly was acting alone; there is no evidence that she ever communicated
any of the relevant information to any third party and cannot, therefore, be acting in a conspiracy.

13
1,3:22); JA00818-20 (A.B. Dep. 28:12-20, 31:12-23). It is undisputed that no Church Defendant

knew that Michael was staying with the Doe-4 family.

There is only one instance in which there is some dispute as to whether any local Church

leader had any inkling of Michael's crimes before 2012. In early 2008, sixteen-year-old Michael

and his mother babysat Plaintiffs Z.W. (age four) and A.W. (age six), the sons of John and Jane

Doe-2, in the Jensens' private home. JA10563-64 (Am. Compl. ~ 90).

Plaintiffs allege that the Doe-2 parents informed Bishop Fishel that Michael molested

Z.W., but that Fishel did not believe there was abuse, having accepted Michael's explanation,

and "counseled the Doe-2s against taking any action." Pet'rs' Br. 12, 38. Accepting Plaintiffs'

allegations, as this Court likely must for present purposes, it does not matter. Plaintiffs have no

evidence (nor do they argue) that Fishel shared what he learned with any other Church leader.

Moreover, neither ofZ.W.'s own parents believed Z.W.'s account enough to report the abuse to

the authorities. John Doe-2 testified that, at the time, he and his wife "[n]ever even considered

the possibility" of "reporting [Z.W.'s] allegations to the police or some other authority."

JA06744-45 (John Doe-2 Dep. 133:20-134:3) (emphasis added). He also testified that (like the

bishop) he himself "did not believe that [Z.W.] had been sexually abused," JA06739-40 (id. at

108:9-1 09:2), and that both he and his wife "agreed that there wasn't a good reason to believe

that [Z.W.] had been sexually abused by Michael Jensen." JA06745 (id. at 134:14-19); see also

JA06727-28 (Jane Doe-2 Dep. 107:24-108:22).

In contrast, the first time that child sexual abuse was indisputably disclosed to local

Church leaders, those leaders immediately treated the information as the crime that it was. That

disclosure did not occur until January 22, 2012. On that day, Plaintiffs W.T. and J.T. revealed to

their mother, Jane Doe-1, that Michael had sexually abused them years earlier. JA02605

14
(Jane Doe-1 Dep. 82:5-15). Jane Doe-1 tried to call Bishop Chris Vincent, but he was not

available, so she called one ofhis counselors, Joe Kerner. JA02608-09 (id. at 95:14-96:6, 97:14-

99:23). Kerner told Jane Doe-1 "to call the police" and gave her the phone number for the

police. JA02609 (id. at 100:2-11 ). The next day, Vincent visited Jane Doe-1 with Kerner.

JA02612 (id. at 110:16-111: 17). Vincent, like Kerner, urged Jane Doe-1 to report her sons'

abuse to the authorities. JA07346-47 (C. Vincent Dep. 178:21-179:9). Vincent then called the

Church's Helpline, which resulted in the attorney he spoke with contacting the West Virginia

authorities on Vincent's behalf to confirm the report. JA07325-26 (id. at 69:18-70:10);

JA07146, JA07149-50, JA08485 (J. Osmond Dep. 38:15-39:13, 152:17-153:2, 156:3-7).

Jane Doe-1 testified that Vincent never told her to withdraw her report or to not cooperate with

the police. JA02614 (Jane Doe-1 Dep. 119:15-120:3).

D. Prior to the Doe-ls' 2012 Disclosure, No Other Event Gave Notice of

Michael's Pedophilia or Demonstrates a Conspiracy.

Even though the Church Defendants never knew that Michael had molested any of the

minor Plaintiffs until 2012, Plaintiffs allege that they nonetheless knew that Michael was a

pedophile and spearheaded a grand conspiracy to not only cover up but actually facilitate his

abuse. They rely on speculative inference piled on speculative inference drawn from various

alleged events to arrive at this conclusion. Although they throw in the proverbial kitchen sink by

referencing every possible "fact" that they can, we focus here on the principal events.

1. 2004- Michael Briefly Gropes Two Same-Age Classmates in Utah.

Plaintiffs first point to a juvenile delinquency action brought against Michael in Provo,

Utah in 2004 when Michael was thirteen years old, arguing that the conspiracy "began in late

December 2004, when Chris and SandraLee Jensen enlisted the Church to influence a criminal

prosecution in Provo, Utah against their son, Michael." JA04351 (Pls.' Consol. Opp'n to Defs.'

15
Mots. For Summ. J. Regarding Civil Conspiracy at 4 ("Pls.' Consp. Opp'n")). But the

undisputed facts say otherwise.

a. Michael Was "Adjudicated Delinquent" o[Misdemeanors.

In November 2004, thirteen-year-old Michael "touched" (over her clothes) the buttocks

of a twelve-year-old classmate in the hall at school. See JA06646 (Juvenile Court Petition); see

also JA04164 (Police Report). A month later, he forcibly grabbed (over the clothes) the buttocks

and chest of another thirteen-year-old classmate at school. See JA06646 (Juvenile Court

Petition); see also JA04164 (Police Report). Michael was charged with two felony counts of

sexual abuse of a child. See JA06646 (Juvenile Court Petition); see also JA06338 (R. Moore

Aff. ~ 10). He ultimately pleaded guilty to, and was "adjudicated delinquent" of, two

misdemeanor charges of lewdness involving a child. See JA 10419 (Juvenile Court Minutes,

Findings, and Order).

Plaintiffs infer from these facts that Michael's parents and the Church had notice that

Michael was a pedophile and a repeat sex offender. 11 See, e.g., Pet'rs' Br. 36. However,

Plaintiffs provided no expert testimony or any other evidence that anyone would reasonably

expect that a teenager who gropes peers his age would later sexually molest very young children.

Indeed, although the court-ordered and professionally conducted Sexual Behavior Risk

Assessment ("SBRA") stated that Michael "displays significant thinking errors regarding

sexuality" and "does not yet appreciate the seriousness of his actions," JA06302, it concluded

that Michael was "a low to moderate risk to reoffend with any peer aged female if an opportunity

II
Plaintiffs' allegation that Michael was a "repeat sex offender" is legally false. See Utah Code
78-3a-117 (2005) Guveniles are "adjudicated delinquent," which expressly "is not considered a
conviction of a crime"); Utah Code 76-9-702.5 ("A person is guilty of lewdness involving a child if the
person under circumstances not amounting to ... sexual abuse of a child ... intentionally or knowingly
does ariy of the following .... " (emphasis added)); Utah Code 78-3a-117 (2005) Guvenile adjudication
did not qualify Michael as a "sex offender").

16
presents itself and if he does not participate in intensive sex offender treatment." JA06304

(emphasis added). The SBRA also said that Michael was not a risk to his young sisters and that

he could return to live at home. JA06303. It said nothing at all about him posing a risk to boys

of any age.

Nor is there evidence that anyone in Michael's family or any Church Defendant ever saw

the SBRA. The SBRA was provided to Michael's parole officer and his attorney, JA09257;

JA06297, bearing the stamp "CONFIDENTIAL I FOR PROFESSIONAL USE ONLY I

UNAUTHORIZED USE, RELEASE OR DUPLICATION BY RECIPIENT IS

PROHIBITED," JA06297. And Utah law prohibits Michael ' s parole officer and his attorney

from disclosing the SBRA. Utah R. of Judicial Admin. 4-202.03(5)(M); JA00943-44 (C.

Yannelli Dep. 321: 13-322:2).

Michael was ultimately placed on probation and ordered to complete therapy

recommended in the SBRA and provide proof of completion to the court by May 24, 2005,

which he provided. JA06308-09 (C. Yannelli Expert Rpt.); JA06344-53 (C. Yannelli Decl.);

JA07264-66 (C. Yannelli Dep. 28:2-30:20).

b. The Church Did Not Influence the Outcome of Michael 's Juvenile
Proceedings.

Plaintiffs also assert that the Church must have influenced Michael's judge (who is not a

Church member, JA06316 (K. Willis Decl. ~ 17)) and two prosecutors because they reduced his

charges and gave him a lenient sentence. See Pet'rs' Br. 45. This assertion is baseless. Michael

was a first-time offender and only thirteen years old. Chris Yannelli, a Utah County supervising

prosecutor for crimes against children (also not a Church member) testified that the outcome was

typical for such a case. JA06308-09 (C. Yannelli Expert Rpt.); JA07267-68 (C. Yannelli Dep.

33 : 19-34:5). He testified that reducing the charges to misdemeanors was consistent with the

17
facts and that "[t]hat type of behavior among young people ... is very common in the schools."

JA07282-84 (C. Yannelli Dep. 225:3-227:14). The prosecutor who handled the case, Kent

Willis, also testified that "the kind of behavior described in [Michael' s] police report was very

common behavior with boys his age. Several reports of similar behavior were filed with our

court every month." JA06315 (K. Willis Decl. ~ 7). Willis testified that it was his decision to

reduce the charges and that based on the "actual severity of the incident," he "would still reduce

[Michael's] charges to Class A misdemeanors today." JA06315-16 (id. ~~ 6, 9-11).

Similarly, Plaintiffs argue that Michael's grandfather, Blaine P. Jensen, influenced the

proceedings based on an alleged hearsay statement that Michael purportedly made years later to

the oldest son of Jane Doe-4 that his grandfather "helped take care of whatever needed to be

taken care of'' with respect to Michael's legal trouble in Utah. See Pet'rs' Br. 46. But the

unrebutted evidence precludes this inference. Prosecutor Willis never spoke to Michael's

parents or grandparents about the case, did not know that Michael was Mormon, and had no idea

that Michael ' s grandfather held any position in the Church. JA06316 (K. Willis Decl. ~~ 13-14).

Willis testified, " [I]n the course of my career, no Church official ever contacted me to try and

influence the decisions I made as a prosecutor, nor did any Church official ever discuss any of

my decisions as a prosecutor with me." !d. (id. ~ 15). Likewise, Robert Moore, the prosecutor

who originally charged Michael, testified, "No one from [the Church] has ever tried to influence

me in any case I have ever prosecuted." JA06338 (R. Moore Aff. ~ 11). He had no interaction

with Michael's grandfather. JA06339 (id. ~ 12).

Michael' s grandfather' s role was simply that of a grandfather assisting his grandson. He

testified that he accompanied SandraLee to a meeting with Michael' s attorney and attended

Michael ' s dispositional hearing. See JA05644-45 , JA02867 (B.P. Jensen Dep. 102:19-105:6,

18
118:3-119:12); see also JA07443 (B.P. Jensen Aff. ~~ 7-9). There is no evidence that he ever

spoke to any Utah court official or had any other involvement.

c. Bishop Swensen Did Not Impose Ecclesiastical Discipline on

Michael or Annotate His Record.

Plaintiffs argue that as part of the alleged conspiracy Michael's Utah bishop, Dale

Swensen, did not "annotate" Michael's membership record or institute any disciplinary

proceeding against Michael. JA04376-77 (Pls.' Statements of Facts in Supp. of Consp. Claim

~~ 36-41 ("Pls.' Consp. SOF")). But the undisputed evidence is that the Church rarely annotates

the records of children, and even less so where the misconduct does not indicate a danger to

much younger children. See JA07455 (R. van Komen Decl. ~~5-6).

In sum, events connected to the Provo groping do not provide evidence of conspiracy.

2. Whitcomb Calls SandraLee as Relief Society President and Advances

Michael in the Aaronic Priesthood to the Office of "Teacher."

In the summer of2005, the Jensens moved to West Virginia. JA04378 (Pls.' Consp. SOF

~ 43). Their home was within the boundaries of the Mill Creek Ward, which was a part of the

Martinsburg West Virginia Stake. !d. The bishop of the Mill Creek Ward at the time was

Matthew Whitcomb, who is not a defendant in this case. JA06030 (Church Defs.' Resp. to Pls.'

Interrog. No. 2). The stake president of the Martinsburg Stake was Steven Grow, who is a

defendant. JA06028 (id. ).

Shortly after moving to West Virginia, Whitcomb asked SandraLee to be the Relief

Society president of the Mill Creek Ward, and he advanced Michael from the office of "deacon"

to "teacher" in the Aaronic Priesthood when Michael turned fourteen. Pet'rs' Br. 7, 18, see also

JA04379 (Pls.' Consp. SOF ~50). Plaintiffs imply these decisions were a part of the conspiracy,

which had now made its way to West Virginia. Pet'rs' Br. 7, 18. But Plaintiffs admit that

Whitcomb knew nothing about the Provo incident at that time. See Pet'rs' Br. 30 (Swensen

19
"failed to .. . provide notice to West Virginia Church leaders that a repeat sex offender had moved

to their area."); JA04375-76, JA04379 (Pis.' Consp. SOF ~~ 35-36, 51). It is also undisputed

that essentially all Mormon boys who attend church regularly are advanced to "teacher" at age

fourteen. See JA05075 (1998 Handbook 2 at 176).

3. Michael's Developmentally Challenged Sister, R.J., Removes Her

Skirt One Time on a Dare.

Plaintiffs allege that the Church Defendants were on notice that Michael was a child

molester because his youngest sister, R.J., supposedly exhibited signs of molestation. See, e.g.,

Pet'rs' Br. 55-56. Their basis for this conclusion? Plaintiffs argue simply that R.J. was "overly

affectionate" and, on one occasion when she was a young girl (six or seven years old), on a dare

by other children, she took off her skirt in the church nursery. Pet'rs' Br. 8, 55-56; see also

JA11063 (J. Mitchell Dep. 9:9-17, 11:13-19); JA03084 (R. Mitchell Dep. 25:2-14). Plaintiffs

omit that R.J. "suffers from developmental disabilities and has a limited full scale I.Q. of 68."

JA11260 (Rec. Order ~ 8), adopted by JA11256-57 (Feb. 17, 2015 Order); see also JA06641

(L. Holtzapple Dep. 91:8-12); JA06974 (B. Jensen Dep. 221:3-8); JA06965-68 (B.P. Jensen Dep .

.150:12-153:8). As a result, "[e]specially socially[,] ... [s]he's more free than you'd like her to

be, I think. She just doesn't discern what we would call the normal way of, I think, to react to

things." JA07009 (Clarice Jensen Dep. 22:7-22); see also JA06967 (B.P. Jensen Dep. 152:12-

15) (R.J. can "act socially inappropriate."). It is undisputed that no local Church leader was

aware of the incident in the nursery or of any other improper behavior by R.J. Plaintiffs' expert,

Kathleen Faller, said she could not testify to a reasonable degree of medical or professional

certainty that R.J. has ever been sexually abused. JA06913-14 (K. Faller Dep. 309:20-310:11).

And nothing connects these behaviors to Michael.

20
 4. 2006 or 2007 Purported High Council Meeting

Plaintiffs allege that in 2006 or 2007, the Martinsburg Stake high council (an advisory

body to the stake president) discussed Michael Jensen's abuse of his youngest sister and

"perhaps another girl." Pet'rs' Br. 8, 56-57. The circuit court properly excluded references to

this purported high council meeting discussion. JA00024 (Order on Mots. in Limine at 5).

Why? Because the discussion never happened. Every participant in 2006 and/or 2007

high council meetings who was asked under oath swore that no such discussion occurred. 12

Plaintiffs rely on inadmissible statements from two people: (1) self-serving, hearsay testimony

from Plaintiff John Doe-5, see infra pp. 56-57, and (2) UD-1 's self-proclaimed hearsay, in which

he allegedly relayed to Plaintiffs and their counsel rumors he had heard, see infra pp. 54-55. But

it is undisputed that neither participated in high council meetings in 2006 or 2007. See, e.g.,

JA04382 (Pls.' Consp. SOF ~ 62); JA02440 (John Doe-5 Dep. 164:5-15). Indeed, UD-1

cautioned Plaintiffs' counsel that his information was "hearsay" as he lacked firsthand

knowledge. See, e.g., JA07357 (Kosnofflnterview Tr., pt. 1, at 3:11-12); JA07364 (id. at 10:22-

23). Under oath, UD-1 denied actual knowledge of any such event. See, e.g. , JA07183 (UD-1

Dep. 300:8-16); JA07182 (id. at 204: 11-17). Nor could any such discussion have taken place.

P.C. was the first child to be abused, which did not occur until mid-2007, and no one knew about

it until 2012. See Pet'rs' Br. 9 & n.l4; supra p. 12-13. Plaintiffs argued below that the high

council also discussed Michael's abuse of his sister K.J. , see JA10803, JA10823 (Compl. ~~ 3,

12
JA07321-23 (S. Grow 30(b)(7) Dep. 644:21-646:7); JA06682 (R. Barnes Dep. 70:15-19);
JA07354 (0. Motter Dep. 48:14-16); JA06950-51 (D. Fishel Dep. 488:17-489:3); JA06961 (J. Fugate
Dep. 140:12-19); JA07203-04 (L. Spears Dep. 78:8-79:7); JA06395 (A. Huntley Decl. ~~ 3-4); JA06396
(J. Farr Decl. ~~ 3-4); JA06397 (R. Summers Decl. ~~ 3-4); JA06398 (R. Crawford Decl. ~~ 3-4).

21
74), but discovery revealed that the incident with K.J. did not occur until much later in 201 0, see,

e.g., JA04397 (Pls.' Consp. SOF ~ 132). 13

Plaintiffs also allege that after that supposed meeting, Stake President Grow enlisted UD-

1 to monitor Chris Jensen. Pet'rs' Br. 8. Grow denies that any such arrangement was made.

JA07318 (S. Grow Dep. 581: 11-14). 14 Regardless, this is a non-sequitur. Whether UD-1 was to

monitor Chris Jensen has nothing to do with alleged concealment of abuse by his son, Michael

Jensen. This evidence, therefore, lacked probative value and the circuit court properly excluded

it.

E. No Event After the Doe-ls' 2012 Disclosure Demonstrates a Conspiracy.

When the Doe-1 family reported that Michael had abused W.T. and J.T., the Church

returned Michael from his Church mission to West Virginia to face the investigation. JA04088

(R. Eshbaugh Dep. 127:17-19).

Plaintiffs allege that Grow arranged a meeting upon Michael's return in which the

"Church" advised Michael not to cooperate with the police, purportedly to obstruct the

investigation. Pet'rs' Br. 16; JA04442 (Pis.' Consp. Opp'n at 15) ("The Church and its co-

conspirators agreed that Michael would not cooperate with the State Police," and "[t]he Church

... urged John Doe-5 to stop advising Michael's victims to contact law enforcement .... "). That

is a serious misstatement of the record. In actuality, Michael (naturally) had some legal

13
Plaintiffs have since changed course and asserted that UD-1 informed them that the high council
discussed Michael's alleged abuse of his younger sister, R.J. See JA02498 (Pis. Mot. Demonstrating
Prima Facie Entitlement to Punitive Damages at 18). But Plaintiffs have made up out of whole cloth the
idea that R.J. may have been molested. See supra p. 20. Further, as previously noted, UD-1 has no
firsthand knowledge of high council meetings during that time. JA07182-3 (UD-1 Dep. 204:11-17, 300:8-
16); JA043 82 (Pis.' Consp. SOF 1 62). Further, no Plaintiff testified that UD-1 actually said R.J. was the
affected sister. Rather, one person recalled simply that he may have said Michael's "youngest" sister.
See JA02423 (Jane Doe-2 Dep. 237:9-21 ); JA02423 (Jane Doe-2 Dep. 239: 19-23).
14
Plaintiffs' counsel did not ask UD-1 about the alleged monitoring during his deposition.

22
questions, so Grow asked Don Wrye, a criminal defense lawyer, to meet with Michael.

See JA04136 (D. Wrye Dep. 109:1-11 0:5). Wrye met with Michael in private, where Wrye gave

Michael the unassailably appropriate legal advice to exercise his Fifth Amendment rights and not

speak to the police. See id. (id. at 110:8-111 :6). Citing testimony from Grow and Wrye,

Plaintiffs similarly allege that at that meeting, Grow, Wrye and Bishop Whitcomb agreed to keep

it a secret that Michael was under investigation. Pet'rs' Br. 15. That was not their testimony.

Rather, Wrye simply said that, before he knew anything about the allegations against Michael,

Michael's parents called him-in his capacity as a defense lawyer-and told him that the police

wanted to talk to Michael about some allegations from several years prior. JA05844-45

(D. Wrye Dep. 95:20-96:16, 98:3-100:1). Wrye gave them the general legal advice that Michael

should not talk to the police. !d. For his part, Grow testified that because he had so little

firsthand information at that point (it was still very early in the process) about what Michael

might have done, it would have been improper for him as stake president to publicly discuss why

Michael was home, and he did not want to interfere with a criminal investigation. JA01632,

JA03016 (S. Grow Dep. 369:3-14, 468:17-470:10).

Additionally, Plaintiffs allege that Whitcomb later placed Michael in the home of the

Doe-5 family, where he proceeded to abuse the Doe-5s' sons, M.S. and T.S. Pet'rs' Br. 16-17.

The undisputed evidence precludes that inference. Jane Doe-5 and her oldest son, MS.-2,

testified that it was M.S.-2 who suggested that Michael live with the Doe-5 family. JA071 06-07

(M.S.-2 Dep. 153:24-154:2); JA01117 (Jane Doe-5 Dep. 392:12-21). Even before Michael went

to live with the Doe-5 family, he frequently stayed there. JA07247-48 (M. Whitcomb Dep.

249:11-250:10); JA01555-56 (M.S.-2 Dep. 28:20-23, 59:6-18); JA01117 (Jane Doe-5 Dep.

392:3-21 ). As for the abuse allegations, M.S. testified at his deposition that Michael briefly

23
touched him "several times" over the clothes while play wrestling. JA07095-96 (M.S. Dep.

17: 1-18:2). Another son, T.S., testified that Michael touched him twice for "[o]ne second" over

his clothes while "play wrestling." JA07219-21, JA07224-25 (T.S. Dep. 18:18-20:9, 23:12-24:6).

Both M.S. and T.S. thought this touching was accidental until John Doe-5 told them otherwise.

JA07095-99 (M.S. Dep. 17:16-18:11, 21:23-23:24); JA07221-23, JA07225-26, JA07227

(T.S. Dep. 20:16-22:1, 24:10-11, 24:24-25:2, 36:11-18). Neither recalls saying anything to

anyone at the time about Michael possibly abusing them. JA07223 (T.S. Dep. 22:2-11 );

JA03399 (M.S. Dep. 20:5-10). 15

* * *
In short, through conjecture and layers of unreasonable inferences, Plaintiffs have alleged

a vast and unbelievably dark conspiracy-which is precisely that, not believable. The actual

record contradicts Plaintiffs' speculative inferences at every tum. Just as the circuit court held,

this is exactly "the type of speculation and conjecture that summary judgment is intended to

forestall." JA00030 (Dec. 31 , 2015 Order).

SUMMARY OF THE ARGUMENT

The first issue that must be resolved is whether the circuit court's dismissal of Plaintiffs'

conspiracy cause of action is subject to certification under Rule 54(b) of the West Virginia Rules

of Civil Procedure. This Court has never entertained an interlocutory appeal of a conspiracy

claim, and with good reason. Civil conspiracy is not a stand-alone tort, but merely extends

15
Even at its current length, this statement of facts is necessarily truncated. The Church Defendants
encourage the Court to review the more thorough discussion contained in Church Defendants' Addendum
to their Memorandum in Opposition to Plaintiffs' Motion Demonstrating a Prima Facie Showing of
Entitlement to Punitive Damages (July 27, 2015) (JA06229-92). Plaintiffs raise numerous allegations in
abbreviated form, which results in a distorted picture. The referenced addendum memorandum contains a
detailed analysis ofthese allegations.

24
liability for an underlying tort. As such, it is inseparable from the merits of the underlying torts

and is not amenable to interlocutory appeal under Rule 54(b).

If the conspiracy ruling was properly certified, the second issue is whether the circuit

court erred in granting summary judgment on conspiracy. Plaintiffs' conspiracy claim is built on

layers of unreasonable inferences. They allege that for more than eight years, over thirty people

in two states conspired together to not only cover up sexual abuse by Michael Jensen-a rank-

and-file teenage congregant-but to actively facilitate and create opportunities for abuse. On its

face, the claim is implausible and no reasonable jury could conclude otherwise.

Likewise, there is no evidence from which a jury could reasonably infer that any of the

alleged conspirators had a preconceived common agreement to cover up or minimize any abuse,

and there is no evidence of any concerted action in furtherance of this conspiracy. Plaintiffs'

allegation of a conspiracy of silence is baseless. At worst, there were unrelated incidents of

ordinary negligence by individual actors, for which (if proven) Plaintiffs may recover under the

remaining negligence claims, or even their fraud claims, pending in the trial court, but Plaintiffs

have no evidence they were acting pursuant to a common conspiratorial plan.

Nor is there any evidence that the Church Defendants conspired with anyone to facilitate

and create opportunities for Michael to abuse children. The undisputed evidence shows that the

Church Defendants had nothing to do with-and with only one possible exception, did not even

know about-the babysitting and living arrangements that resulted in the abuse.

Plaintiffs spend much of their brief arguing over evidentiary rulings. The third issue

before the court is whether, assuming the conspiracy ruling was properly certified under Rule

54(b), Plaintiffs can raise the evidentiary rulings as well. The law is clear that they cannot-

25
evidentiary rulings are not subject to interlocutory appeal and do not get to tag along with a

claim that is. This case presents no reason to disregard this well-settled law.

If this Court decides to consider the evidentiary rulings, the fourth issue is what standard

of review applies. Plaintiffs argue for de novo review, arguing that evidentiary rulings that affect

a summary judgment ruling should be reviewed under the same standard of review as summary

judgment. But that is not the law, and Plaintiffs cite nothing to support that view. Plaintiffs also

argue that legal errors in the evidentiary rulings require de novo review. But there were no legal

errors. The court faithfully applied the factors in Rule 403(b), weighing the probative value of

the disputed evidence against the possibility that its admission would cause unfair prejudice,

confuse the issues, mislead the jury, cause undue delay, waste time, or be needlessly cumulative.

See W.Va. R. Evid. 403.

The final issue is whether the circuit court abused its discretion in any of the evidentiary

rulings. It did not, and Plaintiffs hardly make an attempt to show otherwise. Instead, Plaintiffs'

primary argument is that the circuit court applied the wrong standard.

STATEMENT REGARDING RULE 19/20 POSITION CONCERNING ORAL

ARGUMENT

Oral argument under Rule 19 is appropriate because Plaintiffs' assignments of error

involve the application of settled law and because they argue that the challenged circuit court

judgments were an abuse of discretion and were against the weight of the evidence. See W.Va.

R. App. P. 19(a).

26
 ARGUMENT

PART I: THE CIRCUIT COURT'S GRANT OF THE CHURCH DEFENDANTS'

SUMMARY JUDGMENT MOTION ON CONSPIRACY SHOULD BE
AFFIRMED.

I. DESPITE THE CIRCUIT COURT'S RULE 54(B) ORDER, PLAINTIFFS'

CONSPIRACY COUNT IS NOT AMENABLE TO AN INTERLOCUTORY
APPEAL.

The circuit court granted Plaintiffs' request for Rule 54(b) certification of its summary

judgment dismissing Plaintiffs' conspiracy claim--one of twelve claims 16-as a final judgment.

See JA00034 (Order of Final J. Pursuant to W. Va. Rule of Civ. P. 54(b)). The Church

Defendants did not object to Plaintiffs' Rule 54(b) request. Nevertheless, this Court is one of

"discretionary jurisdiction" and must independently determine whether a case is suitable for

appeal. See Riffe v. Armstrong, 197 W.Va. 626, 637, 477 S.E.2d 535, 546 (1996), overruled on

other grounds by Moats v. Preston Cty. Comm 'n, 206 W.Va. 8, 521 S.E.2d 180 (1999); e.g.,

Province v. Province, 196 W. Va. 473, 478, 473 S.E.2d 894, 899 (1996) (sua sponte examining

jurisdiction to review a W.Va. R. Civ. P. 54(b) appeal where "[t]he parties assume[d this Court]

ha[d] jurisdiction"). On further reflection, the Church Defendants now believe this Court lacks

jurisdiction over this appeal. 17

Because "this Court will not decide cases piecemeal," St. Clair v. Chambers, 178 W. Va.

393, 395, 359 S.E.2d 622, 623 (1987) (citations and internal quotation marks omitted), it has

16
Ten claims of the Amended Complaint remain pending before the circuit court. The final count
(negligence per se) was dismissed on summary judgment but has not been appealed. JA00002 (Dec. 3,
2015 Order).
17
The timing of the Church Defendants' objection is legally irrelevant, of course, because a party
may move this Court to "to dismiss the appeal" for "lack of jurisdiction" "(a]t any time after the filing of
an appeal." W. Va. R. App. P. 31(a) (emphasis added).

27
admonished that Rule 54(b) "[c]ertification should not ... be routinely granted." 18 Province, 196

W. Va. at 479, 473 S.E.2d at 900. "It should be granted only if there exists some danger of

hardship or injustice through delay .... " !d. Plaintiffs' brief, which expansively bootstraps

challenges to various evidentiary rulings to the single certified summary judgment ruling on

conspiracy, makes it strikingly clear that this is not the "infrequent harsh case" for which Rule

54(b) exists. !d. 19

The Church Defendants are not aware of any case in which this Court has previously

allowed a Rule 54(b) appeal on a conspiracy claim. This is not surprising because it is not an

independent, separable claim-it is not a "stand-alone cause of action." Syl. Pt. 9, Dunn v.

Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009). It is, rather, a "combination to commit a tort,"

id. at 56, 689 S.E.2d at 268 (citation omitted), and is therefore necessarily intertwined with that

underlying tort. It requires consideration of the "underlying conduct on which the claim of

conspiracy is based." See id. at 57, 689 S.E.2d at 270. For purposes of this Court's required

"scrutin[y of] the circuit court's evaluation of the interrelationship of the claims,"20 this means

that conspiracy claims will always be "interrelate[ed]" to other claims in the lawsuit and

18
As this Court has previously stated in Province, 196 W. Va. at 480, 473 S.E.2d at 899:
Although it might be easier to decide each appeal in a series of multiple appeals in the
same case than would be an appeal from a final judgment disposing of the entire lawsuit,
the greater simplicity will usually be outweighed by the burden on this Court of having to
reacquaint itself again and again with at least the basic facts of the case. Thus, in
reviewing disputed or questionable Rule 54(b) certifications, we will keep in mind the
purpose and practical implications ofthe rule.
19
This Court "appl[ies] a two-prong test to review a circuit court's Rule 54(b) certification":
(I) separability; and (2) whether there is a just reason for delay. /d. at 4 78, 4 73 S.E.2d at 900 (citing
Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10 (1980)).
20
This Court reviews the circuit court's evaluation of the first prong (separability) under an
essentially de novo standard of review. Province, 196 W.Va. at 478-79,473 S.E.2d 899-900.

28
therefore not separable as required for certification under Rule 54(b). See Syl. Pt. 1, Province,

196 W.Va. at 478-79,473 S.E.2d at 899-900.

Federal courts evaluating conspiracy claims on Rule 54(b) appeals have reached the same

conclusion. See, e.g., Att'y Gen. of Md. v. Dickson, 914 F.2d 247, 1990 WL 135727, at *1 (4th

Cir. 1990) (Rule 54(b) certification of the conspiracy rejected because "the relationship between

the adjudicated and unadjudicated claims is so close that this Court would review many, if not

most, of the same facts now that it would be forced to consider again following appeal of a

decision on the unadjudicated claims."). Here, Plaintiffs' conspiracy claim is based on the same

facts as their unadjudicated negligence and fraud claims. The alleged conspiracy began three

years before the first Plaintiff was abused and continued for at least a year after the last alleged

abuse-more than eight years. The facts related to what the Church Defendants knew, when

they knew it, how they responded, and so forth, are the same for conspiracy as they are for

negligence and alleged fraud. 21

Not only is the conspiracy claim based on the same facts as the remaining claims, it seeks

precisely the same recovery. See Province, 196 W. Va. at 479, 473 S.E.2d at 900 ("Claims are

separable when there is more than one possible recovery[] or if different sorts of relief are

sought." (citations and internal quotation marks omitted)); see also Ebrahimi v. City of

Huntsville Bd. of Educ., 114 F .3d 162, 167 (11th Cir. 1997) ("the similarity of the relief sought"

in the conspiracy claim was "intertwined with and inseparable from" the relief on the unresolved

claims.). The relief Plaintiffs seek on their negligence claims and their conspiracy claim is

identical in every respect. Compare JA10605-06 (Am. Compl. ~~ 207-08) (harm alleged from

21
Accepting this interlocutory appeal would require the Court to wade through a 12,000 page
record that recites all of the same facts on which Plaintiffs' other claims are based, before those facts have
been developed at trial.

29
Defendants' alleged conspiracy), with JA10580 (Am. Compl. ~~ 140, 142) (harm alleged from

Defendants' alleged negligence).

The inseparability of Plaintiffs' conspuacy claim from their other claims mandates

dismissal of the appeal for lack of jurisdiction. Cf Province, 196 W. Va. at 480, 473 S.E.2d at

901 (requiring both prongs to be "satisfied" to entertain jurisdiction); see also, e.g., Lloyd Noland
2
Found., Inc. v. Tenet Health Care Corp., 483 F.3d 773, 781 (11th Cir. 2007)?

Additionally, this Court can-and should-decline to entertain this appeal for prudential

reasons. As "a court of discretionary jurisdiction," this Court "may elect to defer consideration

of the appeal until an appeal is taken from the order terminating the entire action." Syl. Pt. 3,

Riffe, 197 W. Va. 626, 477 S.E.2d 535. Deferring consideration is appropriate here. Reviewing

the case now would require consideration of Plaintiffs' case on a cold, incomplete factual record,

whereas dismissing the appeal does not foreclose Plaintiffs' ability to recover the equivalent

relief from their remaining claims. And as discussed below, Plaintiffs are plainly--even

primarily-using this appeal of their conspiracy claim to obtain pretrial review of unappealable

22
Consideration of the second prong of the Rule 54(b) analysis Gust reason for delay) further
supports dismissing Plaintiffs' appeal. See Province, 196 W.Va. at 479, 473 S.E.2d at 900. The circuit
court gave two reasons for certifying an immediate appeal of the conspiracy ruling. First, immediate
appeal "maximize[es] the chance that this ... case is tried only once." See JA00035 (Order of Final J.
Pursuant to W. Va. Rule of Civ. P. 54(b)). That is not a proper basis for certification. See Province, 196
W. Va. at 480, 473 S.E.2d at 901; see also Ebrahimi, 114 F.3d at 167-68 ("[T]he district court's
preference for pretrial appellate review of its dismissal decisions constitutes an improper basis for
issuance of a partial final judgment" and that due to the interrelatedness of the claims, "the interests of
judicial administration would not be served by allowing immediate appeal."). Second, the circuit court
said that immediate appeal might prevent the minor Plaintiffs from having to testify twice. See JA00035
(Order of Final J. Pursuant toW. Va. Rule of Civ. P. 54(b)). The court's concern is valid, but the risk is
not significant. Because the conspiracy claim is so interrelated with the remaining claims, trial on the
non-conspiracy claims should moot the conspiracy claim. The unadjudicated claims seek the same relief
as the conspiracy claim. If Plaintiffs prevail on any of their unadjudicated claims, there will likely be no
reason for an appeal or a second trial on the conspiracy claim. Additionally, all of the minor Plaintiffs
were deposed and there is no indication that this experience was traumatic for any of them. Further, three
of them testified in Michael's criminal proceedings, they have all recounted their story to Plaintiffs'
expert witnesses, and they have talked to law enforcement and therapists. See SJA0008 (Church Defs.'
Opp'n to Pis.' P.O. Mot. at 7).

30
in limine rulings. See infra pp. 45-48. Dismissing the conspiracy appeal would prevent that

improper use of Rule 54(b) certification, allowing those evidentiary issues to fully ripen at trial.

In sum, the dismissed conspiracy claim is not separable from the negligence and fraud

claims still pending before the circuit court and thus not properly subject to Rule 54(b)

certification. Retaining jurisdiction is ill-advised for the further reason that Plaintiffs seek to use

the Rule 54(b) certification primarily to challenge a host of otherwise non-appealable,

discretionary evidentiary rulings. Allowing Rule 54(b) to be used in this manner risks an

avalanche of piecemeal interlocutory appeals on a host of claims and issues best left for review

after trial court proceedings have resulted in a final judgment. For these reasons, this Court

should dismiss the entire appeal and remand the case to the circuit court.

II. THE CIRCUIT COURT CORRECTLY GRANTED THE CHURCH

DEFENDANTS' SUMMARY JUDGMENT MOTION ON CONSPIRACY
(RESPONSE TO ALLEGED ASSIGNMENT OF ERROR 2).

Plaintiffs allege not only a "conspiracy of silence"-i. e., that the conspirators "minimized

and denied Michael Jensen's abuse and dangerous proclivities"-but also that the conspirators

"facilitated" and "created opportunities" for Michael to have access to children that he could then

sexually abuse. Pet'rs' Br. 1, 62?3 This theory lacks any evidentiary support and is utterly

unreasonable and unbelievable on its face.

23
Though Plaintiffs have hewed closer to the "conspiracy of silence" argument for purposes of this
appeal, their argument before the circuit court was decidedly one of facilitation: "[T]he Church, through
its officers (including MJ's Church officer parents) took affirmative steps to harbor and protect MJ and
enable and facilitate MJ 's continued predation. Through its officers, the Church placed MJ in the homes
of five Plaintiffs' families ... and provided MJ with other unsupervised access to potential victims .... "
JA02483 (Pis.' Mot. Demonstrating Prima Facie Showing for Punitive Damages at 3 (emphases added));
see also JA I 0602 (Am. Compl. ~ 203) (conspiracy to "promote and create opportunities for Michael
Jensen to babysit and live in homes with small children"); JA04352 (Pis.' Consp. Opp'n at 5) (alleging
the conspirators not only "covered up, denied, and minimized instance after instance of Michael's violent
and disgusting sexual abuse of children in the Church community, but also affirmatively protected
Michael, promoted him to the Church community as a morally worthy and trustworthy person, and took

31
 According to this Court, "[t]o survive a motion for summary judgment, the party

opposing summary judgment must satisfy the burden of proof 'by offering more than a mere

"scintilla of evidence" and must produce evidence sufficient for a reasonable jury to find in a

nonmoving party's favor. " ' Dickens v. Sahley Realty Co., 233 W.Va. 150, 156, 756 S.E.2d 484,

490 (2013) (emphasis added) (quoting Williams v. Precision Coil, Inc., 194 W. Va. 52, 60,

459 S.E.2d 329, 337 (1995)). Plaintiffs, as the non-moving parties, are entitled to inferences in

their favor, but "[p ]ermissible inferences must still be within the range of reasonable probability"

and "must be grounded on more than flights of fancy, speculations, hunches, intuition, or

rumors." Williams, 194 W.Va. at 60, n.lO, 61 n.14, 459 S.E.2d at 337 n.10, 338 n.14 (citation

omitted). Plaintiffs cannot defeat summary judgment "through mere speculation or the building

of one inference upon another." Coleman Estate ex rei. Coleman v. R.M Logging, Inc.,

226 W. Va. 199, 213, 700 S.E.2d 168, 182 (2010) (citation omitted). But that is exactly what

Plaintiffs do here.

A. Plaintiffs' Conspiracy Theory Is Implausible on its Face.

Before demonstrating that it lacks any evidentiary support, it is worth considering

Plaintiffs' conspiracy theory at a general level to show how implausible it is on its face.

Plaintiffs allege that over the course of more than eight years, approximately thirty individuals in

two states-including two prosecutors, a judge, several bishops, a stake president, various

Church members, the Church's litigation counsel, and the adoptive parents of a disabled

other steps that repeatedly enabled him to have unsupervised access to potential victims." (citation
omitted)); JA04442 (id. at 15) ("The Church and its co-conspirators agreed that Michael would not
cooperate with the State Police," and "[t]he Church ... urged John Doe-S to stop advising Michael's
victims to contact law enforcement.").

32
child24-agreed to not only conceal Michael's abuse, but facilitate it. And for what purpose?

For what motive? Why would local Church leaders and congregants act in such an unthinkable

manner, contrary to everything the Church teaches?

At every step, Plaintiffs urge the Court to indulge unreasonable and factually unsupported

inferences to fill in gaping evidentiary holes. For example, Plaintiffs allege that the conspiracy

was hatched when the Church supposedly conspired with a local Utah judge and prosecutors to

fix the outcome of Michael's juvenile proceeding when Michael was only thirteen years old. See

Pet'rs' Br. 45-47. Why would a worldwide church with 15 million members conspire to do that?

Michael was not clergy or an employee, and his groping of two classmates had nothing to do

with the Church. And why would a judge (who was not Mormon) and two prosecutors

participate in a conspiracy to help a teenager to whom they had no connection?

Similarly, Plaintiffs allege that in 2006 or 2007 the fifteen participants of a Martinsburg

Stake high council meeting learned of and then agreed to conceal and facilitate Michael Jensen's

abuse of children. See Pet'rs' Br. 8, 56-57. The Jensens had only lived in the stake a short time.

See Pet'rs' Br. 7 (Jensens moved to West Virginia in summer 2005). Why would fifteen Church

volunteers agree to aid and abet Michael's tragic abuse of other congregants? And then why

would they agree in this lawsuit to perjure themselves by denying any knowledge or discussion

of Michael's abuse? Moreover, how could the conspiracy spread to West Virginia when

Plaintiffs admit that Bishop Swensen (Michael's clergy in Utah) never communicated with his

24
Plaintiffs have alleged that the following individuals participated in the conspiracy: Utah juvenile
court judge; two Utah prosecutors; Bishops Dane Swensen, Matthew Whitcomb, Don Fishel, and Chris
Vincent; Stake President Grow and his two counselors; twelve high council members and the stake clerk
(who attended high council meetings); UD-1 and his wife; Chris, SandraLee, and Blaine P. Jensen; three
of the Church's outside attorneys; Don Wrye; and Michael Jensen. See, e.g., JA04352-53 (Pis.' Consp.
Opp'n); JA04373, JA04375, JA04380, JA04389, JA04398, JA04411 (P1s.' Consp. SOF ~~ 27, 34, 54, 94,
136-37, 197).

33
clergy in West Virginia? See Pet'rs' Br. 30; JA04375-76, JA04379 (Pis.' Consp. SOF ~~ 35-36,

51).

But the absurdity continues. Plaintiffs allege that UD-1 and his wife, S.P., knew that

Michael had molested their young son, C.P., but intentionally withheld medical treatment for

their own son and chose not to report the abuse in order to protect Michael. 25 See Pet'rs' Br. 11.

Why would parents who adopted a young disabled boy then withhold medical treatment for their

son? And why would local leaders after more than eight years of conspiring to cover up

Michael's abuse then suddenly decide in 2012 to report the abuse to authorities and encourage

the mother oftwo of Michael' s victims to do so also?

In short, Plaintiffs' far-fetched conspiracy theory is utterly implausible. No reasonable

jury would draw the outlandish inferences necessary to find in Plaintiffs' favor. The circuit court

correctly concluded that Plaintiffs' "claim is the type of speculation and conjecture that summary

judgment is intended to forestall." JA00030 (Dec. 3, 2015 Order at 4).

B. There Is No Evidence From Which a Reasonable Jury Could Infer a

Conspiracy of Silence or a Conspiracy to Facilitate Abuse.

Summary judgment is appropriate simply from the facial absurdity of the claim. See

Williams, 194 W. Va. at 60 n.lO, 61 n.l4, 459 S.E.2d at 337 n.lO, 338 n.l4 ("Permissible

25
Plaintiffs misrepresent the record when they assert that in 2008 or 2009, UD-1 and his wife
"susp[ected] that their son C.P. was sexually abused." Pet'rs' Br. 64. Until2013 , both UD-1 and his wife
thought that C.P.'s injuries were caused by R.J.(youngest daughter of Chris and SandraLee Jensen)
playing doctor with him, and even in late 2013 (at the time of their depositions), neither UD-1 nor his
wife had concluded that M.J. had abused C.P. JA07180 (UD-1 Dep. 198:13-20); JA07190-91 (S .P. Dep.
10 I :5-I 02 :7). UD-1 's wife explicitly denied under oath that she and her husband were avoiding a
mandatory report by not seeking treatment for C.P. See JA03671 (S.P. Dep. 146:11-14); JA02320 (S.P.
errata sheet) (The written transcript incorrectly states that S.P. responded "yes" to a question regarding
whether she was concerned that a medical provider would be required to report to authorities if she took
C.P. in for treatment. She corrected this mis-transcription in her errata sheet (which Plaintiffs ignore,
even though the Church Defendants have repeatedly noted it). It is clear from the video recording of her
deposition that she responded, "No.").

34
inferences must ... be within the range of reasonable probability" and "must be grounded on

more than flights of fancy, speculations, hunches, intuition, or rumors."). But should this Court

wish to specifically evaluate the many inferences and "evidence" from which Plaintiffs have

built their conspiracy theory, it becomes further evident from such scrutiny that no reasonable

jury could find for Plaintiffs and, thus, summary judgment was appropriately granted.

Plaintiffs' "conspiracy of silence" is that the Church Defendants allegedly conspired

with, among others, Michael, his parents, and UD-1, and "covered up, minimized and denied

Michael Jensen's abuse and dangerous proclivities." Pet'rs' Br. 1. To demonstrate this

conspiracy, Plaintiffs must prove "a combination of two or more persons by concerted action to

accomplish an unlawful purpose or to accomplish some purpose, not in itself unlawful, by

unlawful means." Syl. Pt. 8, Dunn, 225 W.Va. 43, 689 S.E.2d 255. Part of that proof demands

"at least circumstantial evidence that each member of the alleged conspiracy shared the same

conspiratorial objective and mutual agreement." Ash v. Allstate Ins. Co., No. 12-1533,2013 WL

5676774, at *5 (W.Va. Oct. 18, 2013) (emphases added) (citing Wenmoth v. Duncan, No. 3:08-

cv-182, 2009 WL 2707579 (N.D.W. Va. Aug. 26, 2009)). As the circuit court noted, "[t]he

essence of a conspiracy is an agreement that demonstrates a meeting of the minds between

conspirators." JA00030 (Dec. 3, 2015 Order at 4 (quoting 15A C.J.S. Conspiracy 13)).

Additionally, Plaintiffs must demonstrate that the Church conspired with someone who

was not one of its agents. It is blackletter law that a principal cannot conspire with its agent.

Cook v. Heck's Inc., 176 W. Va. 368, 375, 342 S.E.2d 453, 460 (1986); see also, e.g., Wise v.

S. Pac. Co., 35 Cal. Rptr. 652, 665 (Ct. App. 1963), overturned on other grounds by Applied

Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454 (Cal. 1994); Collins v. Union Fed. Sav. &

LoanAss 'n, 662 P.2d 610,622 (Nev. 1983).

35
 Plaintiffs' conspiracy "claim" amounts to little more than the cobbling together of a

series of discrete alleged events from which they then ask this Court to infer that the Church

Defendants were engaged in a vast conspiracy to promote child sexual abuse. But on closer

inspection, not one of the alleged facts or events demonstrates the requisite agreement between

the Church and one or more non-Church agents to accomplish a conspiratorial objective.

Provo Proceedings. As explained, Plaintiffs' conspiracy allegedly began in Utah in

2004 when the Jensens "enlisted the Church to influence a criminal prosecution in Provo, Utah

against their son, Michael." JA04351 (Pis.' Conspiracy Opp'n at 4). The uncontradicted

evidence refutes this allegation. There is no direct evidence of any kind that the Church did

anything to influence the outcome of Michael's juvenile adjudication. The evidence from

multiple juvenile prosecutors from that jurisdiction is that the slight leniency that the juvenile

system showed Michael, a thirteen-year old first-time offender, was not unusual. See JA08111

(K. Willis Dec I. ~~ 8, 11 ); JA081 08 (R. Moore Aff. ~ 15). Indeed, both of Michael's prosecutors

testified that neither then-nor ever-have they been influenced by the Church in their work.

JA08112 (K. Willis DecI. ~ 15); JA081 07 (R. Moore Aff. ~ 11 ).

Moreover, there is no evidence that this allegedly unusual outcome was so unusual as to

raise a reasonable inference of a successful conspiracy to subvert Utah's criminal justice system.

See supra pp. 17-19. Plaintiffs point to the involvement of Michael's grandfather and Bishop

Swensen. Pet'rs' Br. 6. But there was nothing remotely unusual about what they did. As his

pastor, Swensen met with Michael once or twice and attended a hearing. See JA09192

(D. Swensen Dep. 63:3-6); JA10423 (id. at 41:2-9); JA10426-27 (id. at 91:20-92:17). Michael's

grandfather met with Michael and his attorney. See supra p. 18. The testimony is undisputed

that neither Michael's grandfather nor Swensen spoke to either of the prosecutors. See supra

36
p. 18-19. Plaintiffs' theory implicates the juvenile courtjudge as well-who is not a member of

the Church-because she allegedly reduced his sentence and did not adhere to all of the

recommendations in the SBRA. But they offer no evidence of any attempt to contact the judge

or otherwise influence her decision. See supra p. 18. Nor do Plaintiffs even speculate about why

the judge and the prosecutors would bend to the will of Michael's grandfather or Swensen,

except to say that there "is a church on every comer in Utah," as though some inference could be

drawn from that. Pet'rs' Br. 48.

Nor could the Provo incident have triggered a conspiracy to conceal and facilitate child

sexual abuse. Nothing about thirteen-year-old Michael's misconduct with two same-age girls in

Utah put anyone on notice that Michael might be a pedophile. Plaintiffs point to the SBRA, but

the undisputed evidence is that the Church Defendants never saw the SBRA, and there is nothing

in the SBRA that would make a reasonable person believe that Michael would become a risk to

small children. See supra p. 16-17.

In short, there is no evidence of a conspiracy to influence the outcome of Michael's

juvenile adjudication.

SandraLee's and Michael's Callings in West Virginia. According to Plaintiffs, local

Church leaders in West Virginia allegedly continued the "conspiracy of silence" as soon as the

Jensens moved to West Virginia. See Pet'rs' Br. 7, 63-64. Specifically, Plaintiffs imply that

Bishop Whitcomb joined and furthered the conspiracy by calling SandraLee as the Relief Society

president and advancing Michael to the office of a "teacher" in the Church, supposedly with the

purpose of "inspiring trust in him by other Church members." See Pet'rs' Br. 1, 7, 18. But

Plaintiffs' acknowledge that Bishop Whitcomb was not aware of Michael's juvenile adjudication

in Utah or of any other misconduct by Michael when he took these actions. See Pet'rs' Br. 30;

37
JA04375-76, JA04379-80 (Pls.' Consp. SOF ~~ 35-36, 51). And it is essentially automatic that a

fourteen-year old boy will be made a "teacher" within the Church's lay priesthood. See JA05075

(1998 Handbook 2 at 176). In any event, these "facts" simply demonstrate isolated independent

acts by an individual, not any type of agreement with others.

Alleged Abuse of Michael's Sister, R.J. Plaintiffs next argue that the Church

Defendants should have been suspicious of sexual abuse within the Jensen family because R.J.

was exhibiting "signs" of having been abused. Pet'rs' Br. 8. Plaintiffs point to only a single

instance of socially odd conduct and a generally "overly affectionate" demeanor by this

developmentally disabled little girl, and there is no allegation that the Church Defendants were

aware of the one incident. See id. SandraLee, R.J.' s own mother, testified that she has never

suspected R.J. was abused by Michael, much less abused at all. JA06394 (S. Jensen Aff. ~ 14).

Even Plaintiffs' own expert cannot say that R.J. was even abused in the first place. JA08378-79

(K. Faller Dep. 309:20-310:11 ). Plaintiffs' allegations concerning R.J. do nothing to further their

conspiracy claim.

Purported 2006 or 2007 High Council Meeting. Plaintiffs rely heavily on an alleged

high council meeting in 2006 or 2007 as evidence of a conspiracy. Pet'rs' Br. 8, 56-57. There is

no admissible evidence that such a meeting even occurred. All eleven participants of high

council meetings during that timeframe who were asked under oath denied that any such

discussion took place. See supra p. 21 n.l2. Plaintiffs rely solely on hearsay from individuals

with no firsthand knowledge. See supra pp. 21-22. Nor could such a discussion have taken

place. Supposedly the high council discussed the possibility that Michael had abused one of his

sisters, Pet'rs' Br. 13-but Plaintiffs made up the idea that R.J. was abused, and the instance of

misconduct with K.J. did not occur until2010. See supra pp. 20-22.

38
 In any event, this purported meeting cannot be evidence of a conspiracy because it does

not involved anyone outside of the Church. Only high councilors, the stake president and his

counselors, and the stake clerk attend high council meetings-and they are all congregants acting

in their capacity and callings as Church agents. No conspiracy is possible in a meeting of

Church agents.

Monitoring of Chris Jensen. Based exclusively on statements by John Doe-5, Plaintiffs

allege that President Grow requested that UD-1 "keep an eye" on Chris Jensen-not Michael-

and report back whether Chris was being a good father and a good Church member. Pet'rs' Br.

8, 68. But monitoring Chris would not be part of a conspiracy to cover up or facilitate abuse by

Michael. As the circuit court explained, "even if UD-1 received the assignment described by

John Doe-5, the assignments pertained solely to Chris Jensen and it is unreasonable and

improper to draw the inference that such an assignment is evidence of a conspiracy of silence to

facilitate and cover up Michael Jensen's abuse of children." JA00006 (Dec. 3, 2015 Order).

Juliana Menendez. Plaintiffs next point to Michael's assault on Juliana Menendez, who

was approximately Michael's age. Pet'rs' Br. 9-10. The undisputed facts show that no one,

including Juliana's own mother, imagined this incident may have been anything but consensual

until Juliana was deposed. See infra pp. 68-70. Certainly no Church leader understood that

anything improper may have occurred. Plaintiffs assert that SandraLee informed Matthew

Whitcomb about the incident with Juliana. Pet'rs' Br. 37. That is not what she said. SandraLee

testified only that she thought she had mentioned in "a passing comment" to Whitcomb that

Michael Jensen was "making out" with Juliana at the movie theater when she thought he was

with his male friends. JA07020-22 (S. Jensen Dep. 133:8-21, 134:4-135:13). SandraLee does

not recall providing Whitcomb "any detail." JA07023-24 (id. at 137:20-138:5). Nor could this

39
event involving one of Michael's peers provide notice that Michael posed a threat to very young

children, much less demonstrate a Church conspiracy to conceal that Michael posed such a

threat.

Doe-2 Conversation with Fishel. By the beginning of 2008, there is still no evidence of

any kind that any Church leader was aware of even a possibility that Michael had sexually

abused a child. Then in early 2008, John and Jane Doe-2 allegedly told Bishop Fishel that Z.W.

claimed Michael was sexually abusing him. Pet'rs' Br. 12-13. 26

Accepting Plaintiffs' story, perhaps Fishel should have reported, and perhaps he was

negligent in failing to do so. But there is no evidence that his actions were part of a

preconceived plan or that there was any concerted action to minimize or cover up the abuse. At

most, relying only on Jane Doe-2's testimony, Plaintiffs can allege that after Fishel allegedly

spoke with the Doe-2s, he spoke with the Jensens to learn more, and concluded that nothing had

happened. See Pet'rs' Br. 12. That is no more evidence of a conspiracy than Jane and John Doe-

2s' own failure to report. At most, these allegations may be relevant to Plaintiffs' remaining

negligence and fraud claims, but they cannot be used to establish "a combination of two or more

persons by concerted action to accomplish an unlawful purpose or to accomplish some purpose,

not in itself unlawful , by unlawful means." Syl. Pt. 8, Dunn, 225 W.Va. 43, 689 S.E.2d 255.

Possible Abuse of C.P. Plaintiffs point to the possible abuse of UD-1 's handicapped

son, C.P. Pet'rs' Br. 11 , 64. C.P. is not a plaintiff. His dad is a defendant. Plaintiffs named

UD-1 as a conspirator after his deposition testimony was not what they hoped for. See id. at 18.

26
Fishel denies ever being told this, and his story is consistent with the actions of everyone
involved, including Z.W. ' s own parents. See JA06918-21 , JA06928 (D. Fishel Dep. 35:15-37:6, 37:19-
38:16, 91 :5-9). But for purposes of this appeal, the Church Defendants do not dispute their story. It
simply does not matter in this setting because it provides no evidence of a conspiracy.

40
Plaintiffs make unfounded and disgusting allegations that UD-1 allowed his son C.P. to be

abused and then covered it up, even refusing to seek medical treatment for him. There is no

evidence to support these outrageous assertions. See supra p. 34 and note 25. Regardless, this

cannot demonstrate a conspiracy because there is no allegation that UD-1 ever told the Church

Defendants about the swollen penis and bruises that gave rise to the suspicion years later that

Michael may have abused C.P.

K.J. Incident. Plaintiffs claim that after SandraLee and Chris Jensen learned that

Michael had lain on top of his sister, K.J., and kissed her, they went to see Bishop Vincent and

told him about the incident. Pet'rs' Br. 13-14. But the undisputed testimony is that they told

Vincent only part of the story. The Jensens omitted the attempted kissing and the fact that it

occurred in K.J.'s bed, JA07328, JA07332 (C. Vincent Dep. 105:2-13, 117:11-13); JA07042

(S. Jensen Dep. 313:1-6), and at the same time, they described Michael's juvenile conviction in

Utah as an incident of "hitting a girl," JA07328 (C. Vincent Dep. 105:1-13). Accordingly,

Vincent thought Michael had a physical altercation with K.J. and did not know it was sexual in

nature. See JA07328, JA07330-31 (C. Vincent Dep. 105:1-13, 107:16-108:14). This was the

first time Vincent heard about any misconduct by Michael. There is no evidence or allegation

that he was aware of the earlier alleged report to Bishop Fishel-the only other alleged report of

abuse to the Church Defendants. Even viewed in the light most unfavorable to the Church

Defendants, the incident provides no evidence of a conspiracy to conceal child sexual abuse.

Grow's 2013 Communications with UD-1. Plaintiffs also try to ascribe nefarious intent

to the fact that UD-1 had conversations in 2013 with both Grow and John Doe-5 about Michael's

crimes after his arrest. Pet'rs' Br. 17, 64. It was a topic of significant concern and frequent

conversation in their small, local LDS community, and one that personally affected both UD-1

41
and John Doe-5. As the circuit court found (prior to ruling on the motions in limine), "none of

these actions were unlawful or improper. Indeed, the record shows that John Doe-5 invited UD-

1 to the meeting, knew that UD-1 would report back to President Grow, and [John Doe-5] also

encouraged Plaintiff parents to 'forgive and move forward."' JA00010 (Dec. 3, 2015 Order at

10) (emphasis added). The undisputed testimony and contemporaneous documentary evidence is

that Grow communicated through UD-1 not because they were both part of a conspiracy but

because the other victims' families did not want to speak with Grow. JA03017 (S. Grow Dep.

563:5-564:6). Grow asked UD-1 to inform the families that the Church would provide

counseling to all affected families. JA07291-92 (S. Grow Dep. 212:9-213:12). Further, none of

this matters. No conversation that occurred in 2013 could have caused any of the Plaintiffs'

mJunes. By then Michael was locked away in jail.

* * *
These are the principal "speculative assertions" upon which Plaintiffs ground their

conspiracy claim and which the circuit court rightfully held to be "too implausible to survive

summary judgment." JA00031 (Dec. 31, 2015 Order at 5); see also, e.g., Wenmoth, 2009 WL

2707579, at *5 (dismissing conspiracy claim for lack of evidence "which would lead to even an

inference" of a conspiracy, and holding that "[a]t best, the plaintiff offers speculation and

conjecture, which is not sufficient to state a claim for conspiracy").

None of these alleged facts demonstrate an agreement among someone acting on behalf

of the Church and a third party to conceal and facilitate Michael's abuse. First, there is no third

party. There is certainly no evidence of anyone conspiring with Michael to promote his abuse.

Instead, many of Plaintiffs' allegations center on conduct by or knowledge of UD-1 or Michael's

parents, SandraLee and Chris. In order to strengthen their negligence claims, which remain

42
pending below, Plaintiffs repeatedly argue that UD-1 and Michael's parents were acting as

agents ofthe Church. See, e.g., Pet'rs' Br. 8 (alleging Chris was an agent ofthe Church when on

the high council); id. at 10 (SandraLee purportedly arranged for babysitting in capacity as Relief

Society President); id. at 11 (UD-1 acted as a "Church officer" when he allegedly withheld

medical treatment for C.P.). 27 By Plaintiffs' own argument, then, the conduct of UD-1 , Chris,

and SandraLee cannot demonstrate a conspiracy because they were supposedly acting as Church

agents. See Cook, 176 W. Va. at 375, 342 S.E.2d at 460. And if they were not Church agents,

then their conduct would be relevant only if it demonstrated a conspiratorial agreement with the

Church. However, nearly every alleged incident involves independent action, without involving

the Church Defendants, such as SandraLee's arranging for Michael to babysit and UD-1

allegedly withholding treatment for his son C.P.

Second, none of these alleged facts or events demonstrates a combination of people.

Indeed, many of the allegations involve isolated independent actions by individual people, such

as Bishop Swensen not annotating Michael ' s membership record, Pet'rs' Br. 6-7; Bishop Fishel

not reporting what he allegedly learned about Z.W., id. at 12; Fishel naming Michael and his

brother as youth assistants to the bishop, id. at 18; and Bishop Vincent allowing Michael to stay

in the Church, id. at 14. And like the allegations about Fishel, at most these allegations may be

relevant to Plaintiffs' remaining negligence claims. They cannot be used to prove a conspiracy.

And just because events purportedly involved multiple people does not evince the

requisite intent and agreement to accomplish a conspiratorial objective. For example, assume

27
The Church strongly denies that UD-1, Chris, or SandraLee were acting as its agents at any
relevant time, but this does not need to be resolved for present purposes. SJA0026 (Church Defs. '
Omnibus Mots. in Limine Opp' n at 5); see also, e.g., JA00727-30 (Church Defs.' Mem. in Supp. of Mot.
For Partial Summ . J. Dismissing Claims 1-5 at 16-19; JA06218-25 (Church Defs.' Opp' n to Pis.' Mot. for
Summ. J. on Relief Society President Agency & Scope of Duties).

43
despite the lack of any evidence that the high council discussed Michael's alleged abuse back in

2006 or 2007, that is all Plaintiffs would have-that a group of people discussed what may have

happened with Michael and his sister. Plaintiffs have no evidence that the fifteen people in the

room then took the additional step of agreeing to cover up that information.

Said another way, Plaintiffs' claim rests on a "pattern of conduct" from a host of

individuals, Pet'rs' Br. 62, which demonstrates nothing but coincidental parallel conduct; i.e.,

that multiple people happened to do, or failed to do, the same thing. Quasi-parallel conduct,

without any evidence of an agreement, does not permit a reasonable conspiracy inference.

See, e.g., Bell At!. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007) ("[A]llegations of parallel

conduct .. . must be placed in a context that raises a suggestion of a preceding agreement, not

merely parallel conduct that could just as well be independent action."); see also, e.g., Hinkle v.

City of Clarksburg, 81 F.3d 416, 421-22 (4th Cir. 1996) ("The problem with Appellants'

evidence is not merely that each act alleged is capable of an innocent interpretation. Rather, the

problem is that Appellants' evidence amounts to nothing more than rank speculation and

conjecture. It does not reveal that any member of this alleged conspiracy possessed an intent to

commit an unlawful objective.").

The circuit court correctly explained that "[i]t is insufficient for Plaintiffs to show that

multiple people happened to do the same thing, or refrained from doing the same thing."

JA00030 (Dec. 31, 2015 Order at 4). Independent acts of negligence are not a sufficient basis to

infer the existence of a conspiracy to conceal and facilitate sexual abuse, especially when no one

has any conceivable motive for doing so. Summary judgment is appropriate where, as here,

"the nonmoving party rests merely upon conclusory allegations, improbable inferences, and

unsupported speculation." Johnson v. Killmer, 219 W.Va. 320,323,633 S.E.2d 265,268 (2006)

44
(citation omitted). The circuit court's grant of the Church Defendants' motion for summary

judgment on conspiracy should be affirmed.

PART II: THE CIRCUIT COURT'S RULINGS ON THE MOTIONS IN LIMINE

SHOULD BE AFFIRMED.

I. PLAINTIFFS IMPROPERLY INVOKE TIDS COURT'S JURISDICTION TO

ADDRESS MOTIONS IN LIMINE THROUGH AN INTERLOCUTORY APPEAL.

This interlocutory appeal of the circuit court's in limine rulings is a thinly-veiled end-run

around the concrete rule that only final judgments are appealable. Coleman v. Sopher,

194 W.Va. 90, 94,459 S.E.2d 367, 391 (1995). "This rule, commonly referred to as the 'rule of

finality,' is designed to prohibit 'piecemeal appellate review of trial court decisions which do not

terminate the litigation."' James MB. v. Carolyn M, 193 W.Va. 289, 292, 456 S.E.2d 16, 19

(1995) (citation omitted). This Court has commented on the multiple important reasons for the

rule of finality:

The "finality rule" preserves the autonomy of the trial court by minimizing
appellate interference, ensuring that the role of the appellate court will be one of
review rather than one of intervention. It furthers efficiency by providing there
only will be review where the record is complete and the judgment pronounced.
It preserves integrity and emphasizes the importance of the harmless error
doctrine by prohibiting review until an appellate court can determine whether a
claimed trial error was harmless. Finally, in the civil context, the rule reduces the
ability of litigants to wear down their opponents by repeated, expensive appellate
proceedings.

!d. at 292 n.2, 456 S.E.2d at 20 n.2.

Rulings on motions in limine are not final judgments. "The circumstances justifying an

in limine ruling often will change at trial. Problems that can be treated with some confidence in

context are often very difficult to solve before other pieces of the puzzle have been assembled."

Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 112-13, 115,459 S.E.2d 374, 389-

90, 392 (1995). Further, motions in limine "necessarily involve the exercise of discretion, and

the correctness of discretionary rulings should ordinarily be challenged at a time when the entire

45
record is available to an appellate court." River Riders, Inc. v. Steptoe, 223 W. Va. 240, 248,

672 S.E.2d 376, 384 (2008) (citation omitted).

Nothing here justifies ignoring these foundational appellate principles. Plaintiffs do not,

and cannot, tie their attempted interlocutory appeal of the in limine rulings to any of the

recognized exceptions to the rule of finality. 28 Plaintiffs argue that this Court can review the in

limine rulings now because the circuit court's purported errors in those rulings gave rise to the

alleged errors in the conspiracy order. Pet'rs' Br. 21-22 (quoting Syl. Pt. 2, Lloyd v. Kyle,

26 W. Va. 534 (1885)). But Plaintiffs cannot demonstrate that the in limine rulings were so

integral to the conspiracy order as to "give rise" to the purported errors contained therein.

There is no reason to believe that the circuit court would have denied summary judgment

on Plaintiffs' outlandish conspiracy claims if it had ruled differently on some or all of the

evidentiary rulings Plaintiffs seek to appeal. Plaintiffs rely on afootnote where the circuit court

"also notes that resolution of the parties' motions in limine has eliminated much of the

circumstantial evidence that Plaintiffl s] intended to use in support of their conspiracy claim."

Pet'rs' Br. 22 (quoting JA00031 n.l (Dec. 31, 2015 Order at 5 n.1)). If the court would have

ruled differently, we can only speculate on what excluded evidence, if any, might have changed

28
Plaintiffs' initially sought a stay and indicated an intent to file a writ of prohibition in order to
obtain appellate review of the in limine rulings that they did not like, reasoning that a petition for a writ
would facilitate the review of remaining issues not being appealed. SJA0018 (Pis.' Mot. to Stay and
Petition for Writ of Prohibition~ 3) ("A stay would further the efficient administration of justice because
the evidentiary issues involved in Plaintiffs' appeal are inextricably intertwined with the trial of the non-
appealed claims. For example, the pre-2007 evidence this Court has excluded [Provo] is relevant to the
... claims regarding notice to the Church. A stay would allow the Supreme Court of Appeals to resolve
those evidentiary issues for all of Plaintiffs' claims." (emphasis added)). They scrapped that plan and
subsequently embarked on their current strategy: appealing the conspiracy ruling and raising the in limine
rulings as part of that appeal. The Supreme Court of the United States cautioned against this precise
maneuver because "loosely allowing pendent appellate jurisdiction" would encourage parties to "parlay"
appealable orders into "multi-issue interlocutory appeal tickets." Swint v. Chambers Cty. Comm 'n,
514 U.S. 35,49-50 (1995).

46
the circuit court's mind. There is no meaningful way for this Court to determine that any

excluded evidence, much less which evidence, resulted in the alleged error in the conspiracy

ruling. 29

Nothing in the circuit court's expressed reasons for granting summary judgment suggests

that the outcome would have been different if some or all of the excluded evidence had not been

excluded. The circuit court recognized that the very nature of Plaintiffs' conspiracy theory is too

implausible to survive as a matter of law and, even accepting Plaintiffs' scant evidence and

implausible inferences, they can only demonstrate parallel action, not that the alleged co-

conspirators had a preconceived plan or engaged in concerted action. JA00030 (Dec. 31, 2015

Order at 4) ("No reasonable juror could conclude that local leaders and congregants of the LDS

Church in two different states would not only conspire with Michael Jensen and his parents to

conceal abuse, but actively facilitate his pedophilia by trumpeting his moral worthiness to the

congregation, and obstructing a criminal investigation."); id. ("It is insufficient for Plaintiffs to

show that multiple people happened to do the same thing, or refrained from doing the same

thing. ... 'Without a meeting of the minds, the independent acts of multiple wrongdoers do not

amount to a conspiracy."' (citation omitted)).

It is not enough that a nonappealable order simply had an effect on a subsequent

appealable order to be reviewed on an interlocutory appeal. Any alleged errors in the appealable

order must have "arisen" from the prior order. Pet'rs' Br. 21-22 (citing Riffe, 197 W.Va. at 638,

477 S.Ed.2d at 547). Plaintiffs' interpretation of appellate jurisdiction would throw the

29
Plaintiffs also quote the circuit court's remarks during the status conference in support of their
argument that the motions in limine are appealable. Pet'rs' Br. 22 n.20. But the circuit court's desire to
have this Court resolve issues pre-trial does not grant the Court jurisdiction to hear them. The circuit
court's Rule 54 order refers to appellate review of "necessary evidentiary rulings" but leaves the decision
of what is necessary to this Court. See JA00034-35 (Order of Final J. Pursuant toW. Va. Rule of Civ. P.
54(b ))

47
courthouse doors open to a deluge of interlocutory, piecemeal appeals of discovery and

evidentiary rulings. See James MB., 193 W. Va. at 292 n.2, 456 S.E.2d at 20 n.2; see also

Province, 196 W. Va. at 480, 473 S.E.2d at 899. If Plaintiffs' version of the law were right, the

exception would wholly swallow the rule of finality.

II. THE CIRCUIT COURT PROPERLY CONSIDERED THE MOTIONS IN LIMINE

AND APPLIED THE CORRECT LEGAL STANDARD.

Of course, even assuming arguendo that the in limine rulings are reviewable, they are

reviewable only insofar as error in the in limine ruling resulted in error in the ruling on the

substantive claim. The Church Defendants have already shown that, even considering all the

evidence, Plaintiffs' conspiracy claim is based on conjecture and speculation and was properly

dismissed. Accordingly, the Court has no reason to consider the in limine rulings.

But if the Court determines to review some or all of the in limine rulings that Plaintiffs

contend resulted in error on the conspiracy ruling, they are reviewed only for abuse of discretion.

"[A] trial court's ruling on a motion in limine is reviewed on appeal for an abuse of discretion."

Syl. Pt. 1, McKenzie v. Carroll Int'l Corp., 216 W.Va. 686, 610 S.E.2d 341 (2004). As this

Court "emphasized[d] again" in Gentry v. Magnum, "the relevancy area [is one where] a circuit

court has considerable latitude in determining whether to admit or exclude evidence."

195 W.Va. 512, 520 n.6, 466 S.E.2d 171, 179 n.6 (1995). Because of this "latitude," it is

"[o]nly rarely and in extraordinary circumstances" that this Court, "from the vista of a cold

appellate record," will "reverse a circuit court's ... judgment concerning the relative weighing of

probative value and unfair effect." !d. "The Rule 403 balancing test is essentially a matter of

trial conduct, and the trial court's discretion will not be overturned absent a showing of clear

abuse." Syl. Pt. 10, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994) (emphasis added);

see also Handbook on Evid. for W. Va. Lawyers 403.04[3] ("W. Va. Evid. Handbook") (Rule

48
403 balancing "is a highly subjective process requiring the judge to evaluate the proponent's

need for the evidence as well as any possible prejudice to the opponent."). As a leading treatise

explains, "if judicial self-restraint is ever desirable, it is when an appellate court analyzes a trial

court's Rule 403 decision." !d. 403.04[5] (footnotes omitted).

Plaintiffs argue for de novo review. Pet'rs' Br. 25-29. They give two reasons: the circuit

court engaged in fact-finding and weighed the sufficiency of the evidence, and the circuit court

erred in considering "waste oftime" as a factor. !d. Neither has merit.

A. Rule 403 Requires "Weighing" the Probative Value of Evidence Against

Other Factors, Including Waste of Time. (Response to Alleged Assignment
of Errors la & 2a)

Motions in limine are '"designed to narrow the evidentiary issues at trial"' by

"address[ing] discrete evidentiary issues." Pet'rs' Br. 26 (quoting Williams v. Johnson,

747 F. Supp. 2d 10, 14 (D.D.C. 2010)). In conducting the balancing required by Rule 403, the

circuit court necessarily must determine and "weigh[ the] probative value" of the proffered

evidence. Gentry, 195 W. Va. at 520 n.6, 466 S.E.2d at 179 n.6; W. Va. Evid. Handbook

403.04[3]. But weighing the probative value of evidence is distinct from weighing the

sufficiency of that evidence. 30 Such a determination assumes the veracity of evidence and

assesses its value to the trier of fact in light of the issues in dispute. 31 The circuit court did just

30
See W. Va. Evid. Handbook 403.04[3] ("If the relevancy of the evidence is only minimal
(remotely relevant to an issue of consequence or directly relevant to an issue of little import), but it would
likely be prejudicial, then any justification for its admission is minimal or virtually nonexistent."); 22A
Kenneth A. Graham, Jr., Federal Practice & Procedure: Federal Rules of Evidence 5214.1 ('"Probative
value' sums up the positive benefits of evidence the trial judge should weigh against the potential harms
listed in Rule 403.").
31
See W. Va. Evid. Handbook 403.04[3] ("The length of the chain of inferences necessary to
connect the evidence with the ultimate fact to be proved necessarily lessens the probative value of the
evidence, and may therefore render it more susceptible to exclusion as unduly confusing, prejudicial, or
time-consuming .... " (citation omitted)); 22A Kenneth A. Graham, Jr., Federal Practice & Procedure:
Federal Rules of Evidence 5214.1; seealso 2-401 Weinstein's Federal Evidence 401.04[1]

49
that. See, e.g., JA00025 (Order on Mots. in Limine at 6) ("The Court finds that the low probative

value of this [circumstantial] evidence is substantially outweighed by a danger of unfair

prejudice to the Defendants, confusing the issues, wasting time, and undue delay.").

Plaintiffs cite no support for their sweeping assertion that "[j]ust as summary judgments

are reviewed de novo ... predicate evidentiary rulings on motions in limine ... must be reviewed

by the same standard." Pet'rs' Br. 25-26. The cases they do cite say just the opposite. In Mid-

American Tablewares, Inc. v. Magi Trading Co., the court did not alter the standard of review

but determined that "[t]he district judge acted well within her discretion" in not excluding the

lost-profits evidence. 100 F.3d 1353, 1363 (7th Cir. 1996) (emphasis added). In Meyer

Intellectual Properties Ltd. v. Bodum, Inc., the court found the district court abused its discretion

by excluding the disputed evidence. 690 F.3d 1354, 1378, 1371-72 (Fed. Cir. 2012). And in

Lauzon v. Ford Motor Co., the lower court made "factual findings on contested issues" as

Plaintiffs point out, Pet'rs' Br. 27, yet the appellate court still applied an abuse-of-discretion

standard. 718 F.3d 556, 560, 564 (6th Cir. 2013).

Plaintiffs contend that de novo review should be applied when motions in limine are

dispositive. See Pet'rs' Br. 25-27. But Plaintiffs fail to prove that some or all of the in limine

rulings in this case were dispositive. On the contrary, the circuit court's reasoning suggests it

would have granted summary judgment on conspiracy even if all this evidence had been

admitted. See supra pp. 46-4 7. In any case, there is no authority to adopt a different review

standard. Plaintiffs cite Daniel v. Stevens, in which the court noted, in dicta, that "ordinarily" a

motion in limine is not dispositive. 183 W.Va. 95, 104 n.12, 394 S.E.2d 79, 88 n.12 (1990).

("Assessing relevance ... question[s] whether an item of evidence ... possesses sufficient probative value
to justify receiving it in evidence." (citation and internal quotation marks omitted)).

50
But in Daniel the motion in limine was dispositive, and the court affirmed anyway. !d. at 89,

394 S.E.2d at 105.

The circuit court did not commit legal error in its application of Rule 403. There is no

basis for de novo review of the evidentiary rulings.

B. "Wasting Time" is One of the Express Factors to be Weighed in a Rule 403

Analysis. (Response to Alleged Assignment of Error 1b)

In several of its in limine rulings, the circuit court held that the minimal probative value

of a specific piece of evidence was outweighed by, among other things, the waste of time it

would cause. See generally JA00020 (Order on Mots. in Limine). Plaintiffs perplexingly argue

that "waste of time" is not a proper factor to consider. Pet'rs' Br. 28-29. Yet waste of time is in

the very text of WVRE 403 as one of the factors to weigh:

The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.

WVRE 403 (emphasis added). It is also recognized as a proper basis for exclusion in Plaintiffs'

own cited authority: "Evidence may be excluded under Rule 403 ... where the offered evidence

would necessarily prolong the trial and it has slight probative value." Skaggs v. Elk Run Coal

Co., 198 W.Va. 51, 64-65, 479 S.E.2d 561, 574-75 (1996). 32 This is exactly the determination

the circuit court made here. See, e.g., JA00023 (Order on Mots. in Limine at 4) ("[T]he Court

finds that the very low probative value of Plaintiffs' circumstantial evidence ... is substantially

outweighed by its potential for confusing the issues, undue delay, and wasting time.").

32
See also I Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence 4: 15 ("The
authority of the trial judge to exclude even relevant evidence on account of delay, waste of time, or
needless repetition (cumulative evidence) serves vital and practical societal interests. The court's time is a
public commodity that should not be squandered. Witnesses and jurors have private lives and ought not
to be asked to give more of their time than is necessary to resolve disputes.").

51
 And contrary to Plaintiffs' suggestion, in no instance did the circuit court rely solely on

"waste of time." In each ruling, after concluding that the challenged evidence had minimal

probative value, the circuit court weighed that minimal value against not just waste of time but

additional Rule 403 factors:

)> Church Defendants' Motion in Limine# 2 (Juliana Menendez incident)- Issue confusion
and undue delay. JA00022 .

)> Church Defendants' Motion in Limine # 6 (alleged abuse of R.J.) - Issue confusion and
undue delay. JA00023.

)> Church Defendants' Motion in Limine # 7 (membership record annotation) - Issue

confusion and undue delay. !d.

)> Church Defendants' Motion in Limine # 8 (SBRA)- Issue confusion and undue delay.
JA00023-24.

)> Church Defendants' Motion in Limine# 9 (alleged high council meeting)- Hearsay and
undue delay. JA00024 .

)> Church Defendants' Motion in Limine #12 (alleged abuse by Chris Jensen) - Issue
confusion, unfair prejudice, and undue delay. !d.

)> Church Defendants' Motion in Limine # 13 (alleged Church influence over Utah
proceedings)- Issue confusion, unfair prejudice, and undue delay. JA00024-25.

Plaintiffs' citation to United States v. Siegal, 536 F.3d 306 (4th Cir. 2008), is inapposite. See

Pet'rs' Br. 23 , 29. The trial court in Siegal excluded, based solely on time considerations,

evidence that it found to be otherwise "relevant, admissible, and highly probative." 536 F.3d at

320-21 . That is not what happened here. And Plaintiffs do not, and could not, contend that

hearsay, unfair prejudice, undue delay, or issue confusion33 are inappropriate bases to exclude

33
The merits of each in limine ruling are discussed below but it is worth noting that with respect to
those rulings grounded in issue confusion, the Handbook of Evidence for West Virginia Lawyers states
that " [n]ormally the exclusion of confusing evidence does not merit appellate consideration." W. Va.
Evid. Handbook 403.05[3].

52
evidence. WVRE 403, 802. There was no "legal error" in the circuit court's consideration of the

motions in limine.

III. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN EXCLUDING
VARIOUS PIECES OF EXTRANEOUS EVIDENCE.

Even if the evidentiary rulings were reviewable, they would still be reviewable only

insofar as an error in the evidentiary ruling resulted in error in the conspiracy ruling. See Riffe,

197 W.Va. at 638,477 S.E.2d at 537. In some instances, Plaintiffs do not even attempt to make

that showing. And some of the evidentiary issues (e.g. , the 1999 Helpline Document) have no

conceivable connection to Plaintiffs' conspiracy claim. With that in mind, we address them all

anyway.

A. 2006 or 2007 Mythical High Council Meeting (Response to Alleged

Assignment of Error l(iii))

Plaintiffs allege that in 2006 or 2007 the Martinsburg Stake high council met and

purportedly discussed Michael's abuse of a sister and some unidentified child. Pet'rs' Br. 8, 56-

57. The circuit court properly excluded the evidence of this alleged meeting as inadmissible

hearsay and of minimal probative value. JA00024 (Order on Mots. in Limine at 5). This

meeting never happened, see JA00005 (Dec. 3, 2015 Order at 5 n.2), and Plaintiffs have no

admissible evidence to the contrary. 34

As already explained, eleven participants in high council meetings during the 2006 and

2007 time period were asked under oath about this alleged discussion. Each stated

unequivocally that no such meeting occurred. See supra pp. 21-22 and note 12. Additional

34
Plaintiffs' abridged treatment of this evidentiary issue glosses over extensive factual
development, briefing, and oral argument and obscures a heavily lopsided record. See Pet'rs' Br. 56-57.
The Church Defendants encourage the Court to review their Motion In Limine to Exclude References to a
Non-Existent Meeting of the Martinsburg Stake High Council (Aug. 25, 20 15), JA080 18-28, and their
Memorandum in Opposition to Plaintiffs' Motion in Limine on Admissibility of Recorded Statements of
Unnamed Defendant-! (July 27, 20 15), JA 10060-74, for a more thorough discussion.

53
undisputed evidence confirms that this meeting could not have occurred. There is no evidence of

any known abuse by Michael until after this alleged meeting. P.C. is Michael's first known

victim, and that abuse did not happen until mid-2007, and did not come to light until 2012.

See supra pp. 12-13. Plaintiffs argued below that K.J. was the sister the high council discussed

Michael abusing, see JA10803-04, JA10823 (Compl. ~~ 3, 74), but it is now undisputed that the

incident with K.J. did not happen until 2010, see, e.g., Pet'rs' Br. 13. Plaintiffs then changed

course and said it was R.J. that was discussed. Pet'rs' Br. 8. But Plaintiffs have made up out of

whole cloth the idea that R.J. may have been molested. See supra p. 20.

Plaintiffs rely on two sources to show this meeting occurred. First, they allege that UD-1

spoke about this meeting in an interview with Plaintiffs' counsel, Timothy Kosnoff, and at a

support group meeting of parents of potential victims of Michael Jensen. Pet'rs' Br. 56. It is

undisputed that UD-1 was not a member of the high council at that time and has no firsthand

knowledge of any discussion the high council might have had. See, e.g., JA02499 (Pls. ' Mot.

Demonstrating Prima Facie Showing for Punitive Damages). In his interview with Plaintiffs'

counsel, Mr. Kosnoff, UD-1 repeatedly cautioned Mr. Kosnoff that his information was

"hearsay" because he "wasn't there." See, e.g., JA07357 (Kosnoffinterview Tr., pt. 1, at 3:11-

12) ("I'm assuming because, once again, a hearsay type of situation .... "); JA07364 (id. at 10:22-

23) ("I wasn't there so I'm, you know, hearsay personified .... "). UD-1 also repeatedly and

clearly denied at his deposition any knowledge of such a high council discussion. See, e.g.,

JA07183 (UD-1 Dep. 300:10-16) ("I have no recollection of that meeting ever happening.");

JA07182 (id. at 204:11-17) ("I do not recall any high council meetings where those things would

have been discussed.").

54
 Plaintiffs initially argued, repeatedly, that UD-1 told Mr. Kosnoff that this meeting

occurred in 2006 or 2007. When pressed by the circuit court to identify "where [that statement]

is in the transcript" of the interview, Plaintiffs' lead counsel was forced to concede that the

transcript "doesn't say it." JA00464-65 (Sept. 22, 2015 Hr'g Tr. at 257:22-258:20). Indeed it

does not. As the transcript makes clear, what UD-1 said was that such discussions occurred

"once, maybe twice" between the stake president and his counselors (not the high council), after

a few of the plaintiff families had come forward and disclosed the abuse (which did not happen

until 20 12), and that UD-1 was not kept in the loop. JA073 71-72 (Kosnoff Interview Tr., pt. I,

at 17:23-18:14); see also JA07363-67 (id. at 9:20-13:7) (stating that discussions occurred after

the disclosure to authorities).

Plaintiffs argue that UD-1 's hearsay statements are admissible as a party admission and

under the exception for statements by co-conspirators. Pet'rs' Br. 57. Unless this Court reverses

the order granting UD-1 's motion for summary judgment on conspiracy, neither exception could

apply, because he is no longer a party or co-conspirator. In any event, party-opponent statements

are only considered non-hearsay when "offered against that party." State v. Sutphin, 195 W. Va.

551, 561 , 466 S.E.2d 402, 412 (1995). UD-1 's statements would not be admissible against the

Church Defendants. See, e.g., Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204,

232 (3d Cir. 201 0). Nor are UD-1 's statements admissible under the co-conspirators exception.

UD-1 's statements were not made "in furtherance of the conspiracy." WVRE 801(d)(2)(E).

Plaintiffs allege a "conspiracy of silence." Pet'rs' Br. 62. If UD-1 's admissions to Plaintiffs'

own counsel in a recorded interview were intended to be in furtherance of the conspiracy, then

he is the worst conspirator in history. "The key to satisfying [the 'in furtherance of]

55
requirement is to show that the statement was more than informative and was made to advance

the objectives of the conspiracy." W.Va. Evid. Handbook 801.06[3][t][ii] (citation omitted).

The bitter irony here is that Plaintiffs' counsel spoke with UD-1 as a potential plaintiff

because UD-1 's son may have been abused by Michael. UD-1 spoke openly with him. When

UD-1 decided he did not want to sue his Church, Plaintiffs needed a way to make his statements

admissible, which they view as helpful to their case, and so they named him as a defendant and

made the unsupported and disgusting accusation that he subjected his own handicapped son to

sexual abuse and refused to seek medical treatment for him in furtherance of the conspiracy. His

statements to Plaintiffs' counsel were not made "in furtherance of the conspiracy" and cannot be

admissible under the co-conspirator exception.

The second source of Plaintiffs' information regarding the alleged high council meeting

is John Doe-S's self-serving testimony that Stake President Grow and another individual, Tony

Naegle, told him that such a meeting occurred. Both men testified under oath that no such

meeting occurred. JA07123 (R. Naegle Dep. 194:2-5) ("Q .... I take it your testimony was that

there was no High Council meeting regarding Michael Jensen in 2007? A. That's correct.");

JA07121 (id. at 117:8-22) ("Q. Do you recall telling Mr. Burgoyne there was a stake High

Council in 2007 that knew of Michael Jensen's abuse? A. No. He tried to get that out of me, and

it was not to be gotten out of. It never happened in my experience. It was not part of my history

and not part of my knowledge ... . He was fishing for that response, but he never got -- I -- I

couldn't say it. I had no knowledge of that." (emphases added)); JA07321-23 (S. Grow 30(b)(7)

Dep. 644:21-646:7) ("[N]o such meetings" of the "Stake high council" regarding "Michael

Jensen, Chris Jensen, the Plaintiffs, or sexual abuse" occurred "prior to January 2012.").

56
 In any event, Mr. Naegle's alleged statement to John Doe-5 is classic inadmissible

hearsay. That leaves only John Doe-5's self-interested statement that Stake President Grow

purportedly told him about such a meeting. Pet'rs' Br. 56. Why would Grow, an alleged

conspirator, disclose to the father of two possible victims that six years earlier the high council

had discussed Michael abusing other children? And if he did, that would be evidence against the

alleged conspiracy. But he did not because no such meeting occurred. Every person with

personal knowledge testified that no such meeting occurred. John Doe-5's statement is exactly

what the circuit court found it to be: of such limited probative value as to be "substantially

outweighed by a danger of undue delay and wasting time." JA00024 (Order on Mots. in Limine

at 5). 35

B. Michael's 2004-2005 Provo, Utah Juvenile Proceedings (Response to Alleged

Assignment of Error l(i))

There were four motions in limine aimed at discrete p1eces of evidence related to

Michael ' s juvenile adjudication in Provo, Utah. See Pet'rs' Br. 29-30. We focus on those three

motions brought by the Church Defendants.

1. Exclusion of the SBRA

The SBRA does not address the possibility that Michael posed a threat to very young

children. And, even so, Plaintiffs have no evidence that Michael or his parents-and certainly

not any Church leaders--ever saw the SBRA or were even told what it said. See supra p. I 7.

Instead, they insist that this Court "infer that the Jensens either saw or had knowledge of the

35
Plaintiffs also argue that "the Church destroyed whatever records may have existed concerning
these early meetings," and that they "will be entitled to a spoliation instruction." Pet'rs' Br. 57. But
Plaintiffs do not dispute that whatever documents that may have existed-if any-were discarded long
before this litigation pursuant to the Church's standard document retention policy and not to avoid
discovery in this litigation. See JA07436 (2006 Handbook I at lSI) ("Records should be kept only as
long as they are needed for administrative and legal purposes.").

57
SBRA's contents." Pet'rs' Br. 48. The circuit court correctly rejected such an inference and

excluded the confidential SBRA under WVRE 403 because its "low probative value . . . is

substantially outweighed by its potential for confusing the issues, undue delay, and wasting

time." JA00023-24 (Order on Mots. in Limine at 4-5).

The absence of evidence that anyone saw the SBRA other than the juvenile court and

attorneys involved is not surprising. Utah law tightly controls access to SBRAs. Neither the

Jensens nor their clergy was legally authorized to review it. See UT R. of Judicial Admin. 4-

202.03(5)(M). Plaintiffs speculate that Michael's lawyer surely shared the SBRA with the

Jensens. Pet'rs' Br. 48-49. That supposition is belied by the SBRA itself, which states in bold

letters on its cover page: "CONFIDENTIAL I FOR PROFESSIONAL USE ONLY I

UNAUTHORIZED USE, RELEASE OR DUPLICATION BY RECIPIENT IS

PROHIBITED." JA06297. As a lawful recipient, Michael's attorney was prohibited from

disclosing the contents of the SBRA to Michael's parents (or to Bishop Swensen, of course).

Further, the undisputed testimony from Utah County juvenile prosecutor Chris Yannelli

establishes that disclosure of an SBRA to a juvenile's parents (or anyone else) would be contrary

to normal practice. JA08662 (C. Yannelli Dep. 323:1-324:1).

Plaintiffs suggest alternative ways for the Jensens to have come by "knowledge of the

SBRA's contents." Pet'rs' Br. 48. First, Plaintiffs misleadingly state that "[b]oth [Jensen]

parents participated in the evaluation process." !d. Their participation was limited to bringing

Michael to his appointments. JA06299-300 (SBRA at 3-4). The SBRA states that they were not

allowed to be in the room or otherwise participate. JA06300 (id. at 4). Second, Plaintiffs note

that the Jensens attended the dispositional hearing "where the SBRA was presented." Pet'rs' Br.

48. But the Minutes of that hearing state only that "[r]eport(s) and recommendation(s) [were]

58
submitted to the Court by Jerry Oler [the probation officer] and Lightning Peak. An oral report

and recommendation was given to the Court by Jerry Oler and Kent Willis [the county

attorney] ." JA10419 (Juvenile Court Minutes, Findings, and Order). It is speculative, and

contrary to the highly restricted nature of the SBRA, to think that it was discussed openly at this

hearing. And even if it was, it would be impossible to say what portions of the SBRA were

discussed. Perhaps the only discussion was the evaluator's conclusion that Michael posed a low-

to-moderate risk to act out again with girls his age.

Plaintiffs say the SBRA shows that Michael's parents knew he was a danger to children

because they stopped him from "babysitting for his younger siblings." Pet'rs' Br. 49. But that is

a distortion of the record. The SBRA says only that there had not been an occasion for him to

babysit his siblings in the few weeks between his December arrest and the January assessment.

JA06300-0l (Michael "claims he babysat his younger siblings before the charges, but denied

having babysat since the charges."). Plaintiffs' misreading of the record shows only that once

someone is convinced there is a conspiracy, they see evidence of it everywhere-even when it

does not exist.

Plaintiffs argue that the SBRA is relevant to "show that the Utah court departed from

several standard protocols and the specific recommendations in the report itself." Pet'rs' Br. 49-

50. In other words, the SBRA supposedly shows that the juvenile court judge was a conspirator.

Plaintiffs argue that it was "unusual" for the judge to depart from the SBRA's recommended

treatment level. See id. at 47 (citation omitted). The record shows that while a departure is

atypical, "the deviation was slight" with the judge merely excluding "the group component of the

therapy." JA08528 (C. Yannelli Dep. 109:3-11). Plaintiffs argue that it was "unusual" that the

SBRA evaluator "could not discuss the offense conduct" during the assessment. Pet'rs' Br. 46.

59
But the undisputed testimony is that the court was protecting Michael's Fifth Amendment rights

because he had not admitted the charges. See JA08529 (C. Yannelli Dep. 193:3-15); JA06344

(C. Yannelli Decl. ~ 5); JA06316 (K. Willis Decl. ~ 12).

Plaintiffs say the SBRA is relevant to "rebut," "impeach," or "discredit" the opinions of

the Church Defendants' experts. See Pet'rs' Br. 50. But those experts opined about the SBRA

solely in rebuttal to Plaintiffs' arguments. With the SBRA excluded, Plaintiffs' experts will not

testify about it and the Church Defendants' experts will have no need to rebut that testimony.

In short, the SBRA has "low probative value," if any, and when weighed against the

significant danger of issue confusion and prejudice about what the circuit court correctly

recognized as "dissimilar[]" conduct, Plaintiffs fail to show that the circuit court abused its

discretion in excluding the SBRA. See JA00023-25 (Order on Mots. in Limine at 4-6).

2. Exclusion of Allegations that the Church Influenced Michael's

Juvenile Proceedings

The circuit court properly excluded Plaintiffs' unsubstantiated-and frankly absurd-

speculation that "the Church put its thumb on the scales in Michael's favor" in the juvenile

proceedings. Pet'rs' Br. 45; see JA00025 (Order on Mots. in Limine at 6). Supposedly,

Michael' s grandfather and Bishop Swensen used their "influence" as Church agents to convince

the prosecutors and the judge (who was not Mormon) to go easy on Michael. Plaintiffs concede

they have no direct evidence of such "influence[]." JA09561 (Pis. ' Opp. to Mot. In Limine No.

13 at 1). Their requested inference is nothing more than baseless speculation. See Williams,

194 W.Va. at 60 n.10, 61 n.14, 459 S.E.2d at 337 n.10, 338 n.l4. Ample evidence contradicts

their conjecture.

The foundation for Plaintiffs' proffered inference is that the outcome of Michael's

juvenile proceedings was unusual. But Utah County juvenile prosecutor Chris Vannelli's

60
unrebutted testimony is that Michael's matter "was handled in a manner consistent with" matters

of that type at that time, "and it is consistent with how it would have been currently handled."36

JA06309 (C. Yannelli Expert Rpt.). Plaintiffs point to the fact that the prosecutors in Michael's

case accepted "a two-level reduction in the charges." Pet'rs' Br. 46. Yannelli said the original

felony charges were "suspect for overcharging," JA06307 (C. Yannelli Expert Rpt.), because

"[t]hat type of behavior among young people ... is very common in the schools," JA07283

(C. Yannelli Dep. 226:13-15). Kent Willis, the prosecutor who accepted Michael's plea, agreed

that Michael's "behavior was relatively common." JA06315-16 (K. Willis Decl. ~~ 6, 11).

Willis testified after reviewing the file again that he "would still reduce [Michael's] charges to

Class A misdemeanors today." JA06316 (id. ~ 11) (emphasis added).

Moreover, assuming the reduction in Michael's charges was unusual, there is no evidence

that it was so unusual as to be suspicious. There is no evidence, for example, that Michael was

the only juvenile to ever receive such a reduction, or even one of very few. To leap to the

conclusion that there must have been a Church-sponsored conspiracy because of a two-level

reduction in the original charges is unreasonable.

Further, Plaintiffs have no evidence suggesting how Michael's grandfather (Blaine P.

Jensen) or Bishop Swensen allegedly influenced the court. 37 Swensen testified that he never

36
Like their broader allegation of influence, Plaintiffs' argument that the Church Defendants'
retention ofMr. Yannelli as an expert supports their theory is unsupported. See Pet'rs' Br. 47. They infer
that the Church improperly used its influence simply because it was able to retain a Utah prosecutor as a
fact and expert witness. Not only does that not indicate any undue influence, but that Mr. Yannelli agreed
to testify in 2015 says nothing about what happened in Michael's case with different prosecutors a decade
earlier. In any event, Plaintiffs mischaracterize Yannelli's testimony. He testified that it was his
voluntary decision to participate-he was not directed to do so--after concluding with Utah County
Attorney Buhman that there would not be a conflict of interest. JA09587-89 (C. Yannelli Dep. 40:14-
42: 14).
37
Nor have Plaintiffs ever explained how Blaine P. Jensen's actions could be imputed to the
Church. Plaintiffs argue that he had held, in the past, several high-ranking positions in the Church. That

61
tried to influence the outcome of the proceeding. See JA0721 0-16 (D. Swensen Dep. 54:5-8,

76:19-77:9, 84:17-87:1 0). There is no evidence that he ever spoke with any judicial officer. The

undisputed testimony of the prosecutors that handled Michael ' s case was that no one from the

Church had ever attempted to influence any of their prosecutions. JA06338 (R. Moore Aff.

'lfl1 ); JA06316 (K. Willis Decl. 'lf15). Likewise, Blaine testified that he did nothing to influence

the outcome of Michael's proceedings. JA08154 (B.P. Jensen Aff. '11'117-9); see also JA08412-14

(B.P. Jensen Dep. 92:12-14, 99:3-17, 100:12-17) (denying speaking to any police officers or

court officials involved in Michael's case). And the undisputed testimony of prosecutors Moore

and Willis was that Blaine never spoke to them. JA06316 (K. Willis Decl. 'lf13); JA081 08

(R. Moore Aff. 'lf12).

Finally, Plaintiffs try to find footing for their speculation in a hearsay statement Michael

allegedly made to his friend that Michael's grandfather "helped take care of whatever needed to

be taken care of' with respect to legal trouble that Michael said he had in Utah. 38 Pet'rs' Br. 46

(citation omitted). There is no reasonable basis to believe that Michael's statement has the

is not true (see infra note 38), but even if it was, and even if Blaine had used these former positions to
somehow convince the court to go easy on his grandson, this is not evidence that the Church itself was
part of a conspiracy. From an agency standpoint, Plaintiffs have offered no evidence or argument that it
was within the course and scope of any Church position held by Blaine to interfere in juvenile court
proceedings involving his grandson. Thus, any evidence that Blaine Jensen acted to protect his grandson
(and there is none) would not be evidence that the Church Defendants were part of a conspiracy.
38
Plaintiffs characterize Blaine P. Jensen as having a "long career as a high Church official." See
Pet'rs' Br. 46; see also id. at 6 & n.l2. Relying solely on the titles of his positions, Plaintiffs vastly
overstate his station in the Church. See id. at 6 n.l2. He has never been a member of the First Presidency
or an apostle, see generally JA07442-43 (B.P. Jensen Aff.), which are the only offices with the authority
to govern the Church, JA06385 (2015 P. Rytting Aff. ~ 8). Nor has Blaine been a regional authority-
known as "seventies," see generally JA07442-43 (B .P. Jensen Aff.), who report to the apostles and First
Presidency, JA06385 (20 15 P. Rytting Aff. ~ 8). During Michael's juvenile proceedings, he held a
voluntary calling as an area executive secretary. JA07442-43 (B .P. Jensen Aff. ~ 5). In that post, Blaine
served only the limited geographical area of southern Utah, and was responsible only for "administrative"
duties, such as circulating meeting agendas and taking meeting minutes. /d. His only relevant association
with Michael's juvenile proceedings-to the extent he had one at all-was as Michael ' s grandfather.
JA07443 (B.P. Jensen Aff. ~ 9).

62
sinister, conspiratorial meaning Plaintiffs ascribe to it-it likely meant only that his grandfather

was helping him with his legal affairs, such as arranging for an attorney. Further, the statement

is hearsay as to every defendant except Michael Jensen. See WVRE 802. No exception has been

argued or applies. Party-opponent statements are only considered non-hearsay when "offered

against that party." Sutphin, 195 W.Va. at 561, 466 S.E.2d at 412. 39 Nor can Plaintiffs show

how Michael's alleged disclosure was "in furtherance of' the "conspiracy of silence," as required

for the co-conspirator exception to apply. See WVRE 801(d)(2)(E). 40

In any case, Michael's "cryptic boast," as the circuit court called it, JA00025, is hardly

enough to create an inference that the Church intervened in a juvenile court proceeding on behalf

of a teenage congregant and convinced two prosecutors and a non-Mormon judge to go easy on

him, especially in the face of undisputed testimony from everyone involved (except the judge,

whom Plaintiffs did not dare depose) that there was no attempt to influence the outcome.

And Plaintiffs' theory implicates the judge. She is the one who supposedly departed

from the recommendation in the SBRA, ordered that the offense conduct not be discussed in the

SBRA, and accepted the two-level reduction in the charges. Yet there is not even a hint of

evidence of any attempt to influence the judge, nor is there any suggested reason why this judge

would go along with such a conspiracy. The only evidence on this point is that "Judge Noonan,

39
See, e.g., Thornsbury v. Thornsbury, 147 W. Va. 771,779, 131 S.E.2d 713,719 (1963). They are
not admissible against co-defendants. See, e.g., Agere Sys., 602 F.3d at 232 (3d Cir. 2010); United States
v. Watkins, 960 F.2d 148, 1992 WL 79529, at *6 (4th Cir. 1992); United States v. Gossett, 877 F.2d 901,
906 (11th Cir. 1989); see also, e.g., Marting v. Neb. Liquor Control Comm 'n, 548 N.W.2d 326, 332 (Neb.
1996); Pattermann v. Pattermann, 496 N.W.2d 613, 616-17 (Wis. Ct. App. 1992); Thomas v. Barnett,
131 S.E.2d 818, 826 (Ga. Ct. App. 1963).
40
See also State v. Helmick, 201 W.Va. 163, 170,495 S.E.2d 262,269 (1997) ("[C]o-conspirator's
statement must still, in some way, further the aims of concealing the conspiracy."); W. Va. Evid.
Handbook 80 1.06[3][f][ii] ("The key to satisfying this requirement is to show that the statement was
more than informative and was made to advance the objectives of the conspiracy. It is not sufficient
merely that the act or statement occur during the existence ofthe conspiracy .. .. " (footnote omitted)).

63
who was the judge in [Michael Jensen's] case, is ... not a Church member and would certainly

not have been swayed in her legal judgments by a person's membership in the Church or a

grandparent's alleged status in the Church." JA06316 (K. Willis Dec!.~ 17).

The probative value of Plaintiffs' rank conjecture about a conspiracy to convince the

Utah court to go easy on Michael is nil. And even if it had some "limited" value, the circuit

court correctly concluded that it was overbalanced by the substantial risk of confusing the jury

by focusing their attention on misconduct that occurred years before the actual and alleged abuse

in this case, that had nothing to do with the injuries Plaintiffs suffered, and that involved victims

Michael' s own age, as well as by the unfair prejudice to the Church Defendants caused by such

speculation and the massive amount of time it would take to get into these tenuous issues.

JA00025.

3. Exclusion of All Arguments Relating to the Church's Annotation

System

The circuit court also excluded evidence of the Church' s annotation system- both

Plaintiffs' argument that the Church should have annotated Michael's ecclesiastical membership

record based on his misconduct in Utah and the Church Defendants' argument that annotation is

an important part of its abuse-prevention procedures. JA00023 (Order on Mots. in Limine at 6).

The circuit court cited the risks of issue confusion, undue delay, and waste of time, in addition to

"First Amendment concerns" in support of its decision. !d. That ruling was not an abuse of

discretion.

But first, Plaintiffs do not even try to explain how any error in this ruling might have

resulted in error in the circuit court's ruling on the conspiracy claim. Unless Plaintiffs can show

that, which they have not even tried to do, they have no basis for appealing this ruling.

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 a. Relevant Background

The Church, in contrast to most religious institutions, maintains ecclesiastical

membership records that are transferred when congregants change wards. Pet'rs' Br. 50. An

annotation on a membership record notifies a new bishop that the congregant should not be

allowed to volunteer with youth or children. JA07454-55 (R. van Kernen Decl. ~ 4).

Annotations are not accessible to congregants. It is part of a confidential ecclesiastical system

available only to bishops and stake presidents. JA08538 (J. Carpenter Dep. 76: 11-18); see also

JA08488-89 (P. Rytting 30(b)(7) Dep. 354:15-355:1); JA4760 (2006 Handbook 1 at 147).

Annotation is an aspect of ecclesiastical discipline and is governed and informed by

church doctrine, policy, and procedure. See JA10458-59 (2010 Handbook 1 6.13.4)

(Annotation is covered under chapter 6 of the Church Handbook, titled "Church Discipline and

Name Removal"); see also JA08489 (P. Rytting 30(b)(7) Dep. 355:12-14) (annotation is an

"important part of the Church's procedures"); JA01827 (M. Applewhite Expert Rpt. at 4

(annotation system is rooted in Church theology and commitment to record keeping)). Plaintiffs

incorrectly assert that "[a]nnotation is automatic for a sexual offense against or serious physical

abuse of a child, and there is no exception for juveniles." Pet'rs' Br. 51. To the contrary, "the

Church typically does not annotate a minor's record," JA07455 (R. van Kernen Decl. ~ 5)

because, unlike adults, youth are not called to serve in positions that "involve working with

children," see JA07454-55 (R. van Kamen Decl. ~~ 4-5). Pertinent here, "[t]here is no Church

policy that would require a local bishop who learns about sexually inappropriate conduct

between similar-age teens to seek annotation of that person's membership record." JA07455

(R. van Kernen Decl. ~ 6).

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 b. Constitutional Concerns Warrant Exclusion.

Plaintiffs are seeking to hold the Church liable, at least in part, for failing to apply its

doctrine and disciplinary policies in the manner Plaintiffs think they should be applied. Pet'rs'

Br. 52. Whether to annotate a Church congregant's membership record is an aspect of religious

discipline, which is an ecclesiastical matter off limits for evaluation by secular courts. See

Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713-14 (1976) ("[T]he civil courts

exercise no jurisdiction, [in] a matter which concerns theological controversy, church discipline,

ecclesiastical government, or the conformity of the members of the church to the standard of

morals required of them .... " (emphasis omitted)). This Court has also recognized that "the

power of the civil courts to interfere with the internal operations of churches is severely limited

by the First Amendment to the Constitution of the United States, ... and by [the] West Virginia

Constitution, Art. III, 15." Syl. Pt. 1, Bd. of Church Extensions v. Eads, 159 W. Va. 943,

230 S.E.2d 911 (1976). Allowing ajury to assess whether the Church's ecclesiastical annotation

system was properly applied to Michael "would necessarily involve excessive entanglement by

the government with the Church[,] in violation of the Establishment Clause." Turner v. Church

ofJesus Christ of Latter-day Saints, 18 S.W.3d 877,897 (Tex. App. 2000); see also Presbyterian

Church v. Mary Elizabeth Blue Hull Mem '1 Presbyterian Church, 393 U.S. 440, 450-52 (1969)

(civil courts cannot "engage in the forbidden process of interpreting and weighing church

doctrine"; such a process "can play no role in any ... judicial proceedings" because it

unconstitutionally "inject[s] the civil courts into substantive ecclesiastical matters"). These are

the very "First Amendment concerns" the circuit court properly considered. JA00023 (Order on

Mots. in Limine at 4); see also Bohrer v. DeHart, 943 P.2d 1220, 1229 (Colo. App. 1996)

(rejecting plaintiffs claim (a victim of sexual abuse) that "she suffered substantial harm because

the [church], in violation of its own Book of Discipline, failed to take further action to

66
investigate plaintiffs complaint and fulfill its responsibilities to her" because "the alleged

wrongdoing results from expectations created by the beliefs and doctrine of the religion" and

resolution "would require that the courts become embroiled in a religious dispute requiring the

interpretation and weighing of that doctrine" which the First Amendment prohibits (emphasis

added)).

c. Annotation Has No Probative Value for Plaintiffs' Claims.

The annotation system is also irrelevant because it would not have made any difference in

this case. It is undisputed that only an individual's bishop and stake president are aware of the

annotation. See supra p. 65. Annotations are used solely to restrict the types of Church callings

the congregant can have, not to regulate private out-of-church conduct. See JA07454-55 (R. van

Komen Decl. ~ 4); JA08355 (M. Applewhite Dep. 298:9-15). None of the alleged abuse here

had anything to do with any Church callings Michael held. Plaintiffs do not argue otherwise.

Annotation has nothing to do with private babysitting and living arrangements-the contexts in

which the alleged abuse occurred. Additionally, the Provo incident involved females Michael's

age. Although a local Church leader could preclude an adult congregant with a history of

abusing children from being placed in charge of children, the Church could not prevent Michael

from socializing with females his age. Indeed, the undisputed testimony is that "(a]nnotations

are typically placed on the records of adults who have been involved in sexual offenses against a

child. They are not used in cases where a minor has engaged in brief, but inappropriate conduct

against other minors his same age." See JA07455 (R. van Komen Decl. ~ 5).

The circuit court did not abuse its discretion by excluding evidence related to the

Church's internal system for annotating membership records. The annotation system is an

internal ecclesiastical matter protected by the First Amendment and its purpose has no relevance

to this case.

67
 C. 2007 Juliana Menendez Incident (Response to Alleged Assignment of Error
l(iv))

As already explained, Plaintiffs allege that Michael Jensen "assaulted" Juliana Menendez

in a movie theater in 2007. Pet'rs' Br. 9. The circuit court did not abuse its discretion when it

excluded this evidence because it "has very limited probative value in this case as to notice that

Michael Jensen was a danger to young children." JA00022 (Order on Mots. in Limine at 3).

Ms. Menendez testified at her deposition that in 2007 Michael invited her to the movies

with a group of people. JA08967-68 (J. Menendez Dep. 29:21-32:1). Michael was only ten

months older than Ms. Menendez. See JA06559 (M. Jensen' s Membership Record); JA08968

(J. Menendez Dep. 8:8-13, 32:2-12). She said that when she arrived, only Michael and his

brother, Blaine, were at the theatre. Michael took her into the hallway outside the theater and

began to kiss and touch her "over the top area" until Blaine interrupted. JA08969 (J. Menendez

Dep. 34:10-20, 36:7-9).

Ms. Menendez's testimony surprised everyone. It was the first time that anyone-the

Jensen family, the Church, or her own mother-learned that the incident may have been anything

but consensual. Blaine Jensen (who was an eye witness), Juliana's mother, and SandraLee and

Chris Jensen- all testified that they thought the incident involved consensual kissing between

teenagers. JA08455-56 (K. Menendez Dep. 54: 16-55:9) ("I thought that he had just leaned over

to kiss her and-- and because she was 14 that Blaine said no, you know, and pulled him off of

her. But I -- I -- in my head, I had no clue that it was as graphic or detailed as what it actually

was."); JA08434 (S. Jensen Dep. 453:16-19); JA08423 (Chris Jensen Dep. 443:7-10); JA08080

(B. Jensen Aff. ~~ 8-13). Blaine-who proceeded to watch the movie with Juliana and Michael

after the incident-stated that he informed told his mother that Michael "rna[de] out" with a girl

at the movies, but "[a]t no time, did [he] ever indicate to [his] mother that the incident between

68
Michael and Juliana was not consensual on the part of both of them." JA08080 (B. Jensen Aff.

~~ 8-9, 13). Even Juliana admits that she did not tell anyone at the time her version of the

incident. See JA01403-05, JA01407-09 (J. Menendez Dep. 36:20-37:3, 37:14-20, 40:3-41:12,

42:6-18).

Yet Plaintiffs still insist this incident put the Church Defendants on notice that Michael

Jensen was a threat to young children. See Pet'rs' Br. 54-55. Not so. Until Juliana's deposition,

not even her own mother knew the incident was not consensual. 41 Again, Michael and Ms.

Menendez were basically the same age. Michael's transgressions with girls his age could hardly

provide sufficient notice that he would sexually abuse three- and four-year old children. See

supra pp. 39-40. And no local Church leader knew anything about it. At most, SandraLee

thinks she may have mentioned the incident in "a passing comment" to Bishop Whitcomb with

no details. JA07022 (S. Jensen Dep. 134: 12-20).

Plaintiffs offer no expert testimony or any other type of evidence that a teenager who

abuses another teenager is more likely to become a pedophile, much less that a lay person like

Michael's mother would have known that. No reasonable jury could conclude that Michael's

aggressive conduct toward a girl his own age put the Church Defendants on notice that Michael

posed a danger to small children.

For these reasons, the circuit court did not abuse its discretion when it concluded that the

Menendez incident has "very limited probative value," and that any such value is substantially

41
Plaintiffs also assert that SandraLee must have known there was more to the story because she
"linked" Michael ' s misconduct with Juliana to his earlier misconduct in Utah . Pet'rs' Br. 10, 37. She
"linked" them because she was concerned with Michael's pre-marital displays of sexuality, which her
religion discourages. See JA08430, JA08432-33 (S. Jensen Dep. 138:6-21, 212: 14-213: 1); see also
JA10166-68 (S. Jensen Dep. 445:15-447:4) (disapproving of Michael making out with a teenage girl
because "you're not encouraging that kind of activity[, e]specially in our religion, where we believe that,
you know, you wait for those kind of things until after you're married" (emphasis added)).

69
outweighed by the risk of confusing the jury as well as undue delay and wasting time. These

conclusions reflect common sense, not an abuse of discretion.

D. Plaintiffs' 1999 Purported Helpline Form (Response to Alleged Assignment

of Error l(v))

Plaintiffs continue to press for the admission of a document their counsel obtained years

ago from Unnamed Witness-1, who claims she called the Church's Helpline in 1999 and then

received the document by accident. Pet'rs' Br. 59. This document has absolutely no bearing on

Plaintiffs' conspiracy claim and, therefore, has nothing to do with this appeal. That Plaintiffs ask

this Court to overturn this unrelated evidentiary ruling lays bare their basic purpose of using this

appeal to obtain improper interlocutory review of evidentiary decisions. There is no evidence in

the record that this form, or another one like it, was used when Bishop Vincent called the

Helpline in 2012. It is undisputed that when Bishop Vincent contacted the Helpline the Church

made a report to authorities on his behalf. The form could not have been used to facilitate a

conspiracy. That should be the end ofthe analysis.

In any event, the circuit court correctly excluded it as "irrelevant" and "unauthenticated

hearsay." JA00022 (Order on Mots. in Limine at 3). The Church Defendants have told

Plaintiffs, over and over again-in depositions, sworn declarations, verified discovery responses

(really, every way possible)-that despite due diligence and a thorough investigation, they

cannot identify anyone familiar with the document, let alone anyone able to confirm that it was,

in fact, an authentic Church Helpline form. See, e.g., JA08074-75 (A. Kraus Decl. ~~I, 3).

Plaintiffs focus on the purported authenticity of the document, but they pay short shrift to

the fact that the form, dated October 29, 1999, is utterly irrelevant to Michael Jensen's abuse of

Plaintiffs. Evidence is relevant if it "has any tendency to make a fact more or less probable than

it would be without the evidence; and ... the fact is of consequence in determining the action."

70
WVRE 401 (emphasis added). No one disputes that the only call to the Helpline in this case was

in January 2012 when Chris Vincent called to report the abuse of the Doe-1 children,

see JA08484-85 (J. Osmond Dep. 155:15-156:7), and that no such form was used during that

call. That call occurred twelve years after the date on Plaintiffs' purported Helpline form; it has

no conceivable relevance to this case.

Plaintiffs' assumption that the Helpline procedure has not changed since 1995 is flatly

contradicted by the record. See Pet'rs' Br. 60. Witnesses familiar with the Helpline procedure

testified that no such form is used today; they have no knowledge of the purported Helpline form

or any written protocol. JA08518-19 (R. van Komen 30(b)(7) Dep. 166:8-167:1); see JA08884

(J. Osmond Dep. 58:19-60:12); see also JA06312 (2014 P. Rytting Aff. ~ 12) (Mental health

counselors who answer Helpline calls do not take notes of Helpline conversations or otherwise

record them.).

Plaintiffs' quest for an inference that the Helpline was established for some nefarious

purpose-that it actually counsels local clergy to disregard the law and cover up alleged abuse

(Pet'rs' Br. 59-60}--finds no support in the record. They have made up this slander out of whole

cloth. The Helpline's purpose is clear: to assist LDS bishops and stake presidents in ministering

to victims and affected families in abuse situations, and to ensure that they comply with all

applicable reporting laws. JA06386 (2015 P. Rytting Aff. ~ 18). The Helpline ensures that lay

clergy-volunteers who seldom have any experience with the psychological and legal issues

associated with child sexual abuse--<::an reach trained experts rather than being left on their own

to navigate administering to victims, reporting, and clergy-privilege laws. A licensed mental

health counselor takes the initial call. JA06312 (2014 P. Rytting Aff. ~ 12). The counselor then

71
puts the clergyman in contact with an attorney who can advise on legal issues, such as reporting

obligations applicable to the clergyman's jurisdiction. JA06313 (id. ~ 13).

Even the purported Helpline form produced by Plaintiffs supports this understanding.

The form instructs mental health counselors not to advise clergymen on reporting laws for the

straightforward reason that mental health counselors are not legal experts. A counselor,

untrained in the law could unwittingly prompt an invasion of a legally protected privilege or a

violation of mandatory reporting laws. See JA10779-81 (Church Defs.' Opp'n to Pis.' Mot. to

Compel) (explaining the variation in state reporting statutes). Plaintiffs neglect to mention that

the purported Helpline form states (in capital letters) that the mental health counselors should

instruct the clergyman to encourage an interested person to report the abuse, which would not

violate the clergy-penitent privilege. JA08066 (Helpline form). The form also instructs the

mental health counselors to transfer the call to legal counsel to provide legal advice. !d. It is

neither surprising nor inappropriate that the purported form would help to "identify 'high risk

cases.'" See Pet'rs' Br. 58 (quoting JA08066). Any large organization like the Church follows

best practices when it tracks matters of potential liability.

Beyond these other reasons for its exclusion, the document is inadmissible hearsay. It

contains out-of-court statements by an unknown witness. See WVRE 801-02. It is not a

statement by a party-opponent because there is no evidence that the Church created or ever

approved the document. See WVRE 801 (d)(2). It is also not a business record because there is

no evidence that the Church used it "regularly," if at all. See WVRE 803(t).

The purported Helpline form, dated more than a decade before the only Helpline call in

this case, has no probative value for any "fact ... of consequence" to this action. See WVRE 401.

72
Excluding it as "irrelevant" hearsay was not an abuse of discretion. See JA00022 (Order on

Mots in Limine at 3).

E. R.J. Abuse Allegations (Response to Alleged Assignment of Error l(iv))

Plaintiffs argue that the circuit court erred in excluding argument that Michael's youngest

sister, R.J., exhibited signs of molestation when she was young and that, therefore, the Church

Defendants were on notice that Michael Jensen was a pedophile. Plaintiffs leap to this tenuous

conclusion because R.J. was "overly affectionate" and, on one occasion when she was a young

girl (six or seven years old), took off her skirt in response to a dare by other children. See Pet'rs'

Br. 8, 55-56.

The undisputed evidence tells a different story. R.J. is developmentally challenged with a

limited IQ. Some witnesses described her as exhibiting signs of autism. See, e.g., JA06641

(L. Holtzapple Dep. 91:3-12); JA06974 (B. Jensen Dep. 221:3-8); JA06965-68 (B.P. Jensen Dep.

150:12-153:8). Owing to these limitations, "she has difficulties maturing," which is "particularly

apparent in her social skills as she tries to interact with other people." JA06965-66 (B.P. Jensen

Dep. 150:19-151:1 ); see also supra p. 20. Even Plaintiffs own expert could not say that R.J. had

been abused. JA083 78-79 (K. Faller Dep. 309:20-310:11 ).

Even if her unusual behavior could have suggested sexual molestation, R.J. 's conduct has

limited, if any, probative value: (1) Plaintiffs do not allege that any Church leader was aware of

the incident in which R.J. took off her skirt, let alone tried to conceal the event; (2) by

SandraLee's undisputed testimony, she and her husband never interpreted R.J.'s behavior to

indicate sexual abuse by anyone, including Michael, JA06394 (S. Jensen Aff. ~ 14); and (3) there

is no evidence at all linking Michael Jensen with R.J. 's conduct.

The circuit court did not abuse its discretion in excluding "evidence" or argument to

support Plaintiffs' speculation about R.J.

73
 CONCLUSION

For the foregoing reasons, the Church Defendants ask this Court to dismiss the appeal. A

Rule 54(b) interlocutory appeal is not the proper vehicle for review of either the circuit court's

grant of summary judgment on Plaintiffs' conspiracy claim, which is not a stand-alone claim, or

the court's in limine rulings. And Plaintiffs' remaining claims pending in the court below

provide them an avenue to exactly the same relief. Alternatively, the Church Defendants ask this

Court to affirm the conspiracy summary judgment ruling because Plaintiffs' theory is built on

unsubstantiated conjecture and layers of unreasonable inferences. Similarly, the in limine rulings

should be affirmed because the circuit court did not abuse its discretion in applying Rule 403.

Respectfully submitted,

THE CORPORATION OF THE PRESIDENT

OF THE CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS, THE
CORPORATION OF THE PRESIDING
BISHOP OF THE CHURCH OF JESUS
CHRIST OF LATTER-DAY SAINTS,
STEVEN GROW, AND DON FISHEL.

By Counsel

JACKSON KELLY PLLC

~
t.,\.cr-o-G- ~~~ ~ (
~ ~~
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- -.) ___ ,.,., . ~
Ti10IJlaSJ:Hu , Jr. (W.Va. ~r No. 1833)
500 Lee Street East
Suite 1600
Charleston, WV 25301
TEL: (304) 340-1346
FAX: (304) 340-1050
thumey@jacksonkelly.com

74
William J. Powell (W.Va. Bar No. 2961)
JACKSON KELLY PLLC
Post Office Box 1068
Martinsburg, WV 25402
TEL: (304) 263-8800
FAX: (304) 263-7110
wpowell@jacksonkelly.com

Allen M. Gardner [Admitted Pro Hac Vice]

Sarah M. Gragert [Admitted Pro Hac Vice]
Marissa R. Boynton [Admitted Pro Hac Vice]
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004-1304
TEL: (202) 637-2270
FAX: (202) 637-2201
allen.gardner@lw.com
sarah.gragert@lw.com
marissa. boynton@lw .com

Derek J. Linkous [Admitted Pro Hac Vice]

LATHAM & WATKINS LLP
330 North Wabash Avenue
Suite 2800
Chicago, IL 60611
TEL: (312) 87 6-7700
FAX: (312) 993-9767
derek.linkous@lw.com

Counsel for Church Defendants

75