Pain and suffering of deceased plaintiff to be litigated

Lawyers for a deceased athletic director who said he was sexually abused as a child by an Oakland priest, filed a complaint under a new California law that allows dead plaintiffs to seek noneconomic damages.

That child, James Bartko, grew up to be Fresno State's former athletic director and the University of Oregon's associate athletic administrator. However, Bartko, who developed a drinking problem, allegedly caused by trauma from the sexual assault, died in 2020 of liver failure, three days after he announced the filing of a sexual assault lawsuit according to a press statement.

The claims for noneconomic damages in Bartko's lawsuit died with him, since California law disallowed his lawsuit from proceeding after his death, attorney Rick Simons of Furtado, Jaspovice & Simons, said Monday.

However, after Senate Bill 447 went into effect this month, Bartko's lawsuit can move forward, not as a wrongful death action filed by his family, but as a complaint for survival action for childhood sexual assault, filed on behalf of Bartko's estate, Simons said.

"For decades in California, if a person who was injured through the fault of another and brought a lawsuit died before that lawsuit was over, their rights to some kinds of damages, such as noneconomic damages ... died with them," Simons said, Monday. "What survives that didn't survive before and is the largest component of every verdict in childhood sexual assault institutional cases, is their own pain, suffering, psychological trauma, emotional distress, depression, embarrassment, you know, they're noneconomic damages."

On Jan. 1, 2022, as amended by Senate Bill 447, California Code of Civil Procedure 377.30, will expressly allow deceased plaintiffs to recover damages for their alleged pain, suffering or disfigurement in a survival action. California is now among 46 states to permit this form of recovery.

Consumer Attorneys of California, which co-sponsored the bill, said 377.30, before the SB 447 amendment, created "a perverse incentive for defendants to delay cases," in hopes that a plaintiff would die before trial.

"A wrongdoer should not be given a discount because an injured plaintiff dies of an unrelated illness, like cancer, before their case is finished," the consumer attorneys wrote in a message to legislators.

Whether it be asbestose victims who sued manufacturers of asbestos, elderly people who were injured and died before their cases could be heard, or in Bartko's case, an alleged victim of sexual assault who died before his case could be adjudicated, deceased plaintiffs in California can now move forward with their lawsuits.

Bartko's complaint, filed last week in Alameda County Superior Court, accuses a Catholic Youth Organization coach Father Stephen Kiesle, of sexually assaulting Bartko between 1972 and 1975. Kiesle, who has been named in several other lawsuits alleging sexual abuse, was employed by the Roman Catholic Diocese of Oakland, according to the complaint. AJ, (Andrew) Bartko, as personal representative of the Estate of James Andrew Bartko, deceased v. DOE 1, a Religious Corporation Sole, 22CV004880. (A.C. Sup. Ct., filed Jan. 4, 2022).