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Suicide victim's mother wins right to sue former husband over daughter's death

In 2005, Deborah Kincaid called her estranged husband for an uncomfortable conversation.

With the police listening in, she accused Jeffrey Kincaid of sexually abusing her daughter, Shannon, who was 11 when the couple married. When she asked why he had abused the girl, he said he didn't remember the abuse but continued on an enigmatic aside.

"I don't know. I don't remember," he said. "You may be right. I'm beginning to believe that you're right. I — I can't make sense of it."

This week, an appellate court ruled that Kincaid could sue her ex-husband in civil court for allegedly causing her daughter's eventual death by suicide, based on recorded conversations between the couple and between Jeffrey Kincaid and his stepdaughter. The ruling revived the wrongful death lawsuit after a Los Angeles County Superior Court judge dismissed it in 2009, finding the recordings could not be used as evidence that the abuse occurred.

"A jury could have found that a reasonable person, when confronted with accusations of sexual abuse of his stepdaughter over an extended period of time, would do more than simply say that he did not remember or might have mentally blocked it out," the 2nd District Court of Appeal found in its published opinion, dated Wednesday. The statements could be construed as "adoptive admissions" of the alleged acts of abuse, the court found.

The call between Deborah and Jeffrey Kincaid was recorded as part of a police investigation that was eventually dropped because of a lack of physical evidence. Shannon, who reported the abuse when she was 25, had said she kept clothing and bedding with her stepfather's semen, but the lab tests came back negative.

In 2008, Shannon, who suffered from substance abuse and emotional and psychological problems, jumped off the roof of an apartment complex. She left behind a note, in which she apparently referenced her stepfather: "He won.... What I go thru with my rapes memories I can't take it ... [he] stole my life."

In October of that year, Shannon's mother sued her ex-husband, alleging that he had abused and tortured her daughter for more than a decade and that his actions had "caused, resulted in, and were a substantial factor of, her death." He threatened Shannon with "physical, financial and emotional harm" to prevent her from reporting the abuse, Deborah Kincaid alleged in the suit.

Jeffrey Kincaid denied in sworn deposition testimony that he abused or tortured the girl and pointed to the negative DNA results from the police investigation. His attorneys contended that Shannon was biased against her stepfather and had a motive to lie about the abuse.

On Friday, Neil Quinn, one of his attorneys, said that his client was an "upstanding guy" and that the claims raised by Shannon against him had "proved to be false." In the context of the phone conversation, Jeffrey Kincaid's statements were not admissions, he said.

"This wasn't a normal circumstance," Quinn said. "This was his wife, who he loved at the time, saying, 'You've got to admit this or you're never seeing me again.' "

Quinn also said the court's opinion was "troubling" because Shannon did not file a civil lawsuit within the statute of limitations on the sexual abuse allegations; her claims were being revived posthumously because she committed suicide.

"You get a situation that allows very stale claims to be raised," he said.

The plaintiff's attorney, Charles Mathews, welcomed the court's finding that the recordings could be used in the case as "adoptive admissions," saying it was groundbreaking and could have a wide effect on future cases.

"This is a very powerful new tool," he said.

The appellate panel also ruled that neither the notes of the girl's therapist, to whom she first disclosed the alleged abuse, nor her suicide note could be used as evidence in the case. Suicide notes cannot be considered "dying declarations," which carry weight in court because of a presumption that a person tells the truth in his or her final moments, the court found.

The court also said it was not ruling on the question of whether legal causation could be established between the alleged abuse and the stepdaughter's suicide, a question that will be left to a jury to decide.

"He tormented her, he tortured her," Mathews said. "If these allegations are true, he set in motion the deterioration of this person."

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