In the 1990’s, the FMS Foundation filed numerous amicus curiae briefs in response to a proliferation of lawsuits brought by adult children against their parents and/or others alleging repressed memories of childhood sexual abuse recovered in therapy. The briefs sought to provide courts with the latest mainstream scientific literature available on issues related to the development of recovered memories. A brief does not argue the merits of either side in the case under consideration. An amicus brief can only be filed at the appeal level.
In addition to filing amicus curiae briefs in civil lawsuits brought by adult children, the FMS Foundation also filed briefs in several criminal cases, and in lawsuits brought by falsely accused family members against therapists.
The briefs for which full text is provided were selected to be representative of the types of legal cases. Criminal case: New Hampshire v Hungerford; Civil case againts parents: S.V. v. R.V.; Parents and daughter against therapist: Althaus v. Cohen; Parents against therapist: Sawyer v. Midelfort.
Some amicus curiae briefs filed by the FMS Foundation (the links are either to complete text or to descriptions with reports of the outcome):
FMSF Amicus Curiae Briefs
|Alabama Supreme Court, McDuffie v. Sellers-Bok No. 1940524, submitted May 10, 1995.||Summary|
|Rhode Island Supreme Court, Heroux v. Carpenter; Kelly v. Marcantonio, No. 95-39; 94-727, submitted August 30, 1995.||Summary|
|Texas Supreme Court, S.V. v. R.V. No. 94-0856, submitted February 6, 1995.||Summary||Full text|
|U.S. District Court, 5th Circuit, Knode v. Hartman No. 94-11120, submitted June 3, 1996.||Summary|
|Pennsylvania Supreme Court, Dalrymple v. Brown 055 E.D. App. Dkt. 1996, submitted Nov. 1, 1996.||Summary|
|Illinois Supreme Court, M.E.H. v. L.H. No. 81943, submitted February 12, 1997.||Summary|
|New Hampshire Supreme Court, State v. Hungerford and State v. Morahan No. 95-429, submitted February 14, 1997.||Summary||Full text|
|Second Appellate District, California, Engstrom v. Engstrom No. VC016157, submitted March 17, 1997.||Summary|
|Tennessee Supreme Court, Hunter v. Brown No. CV-00070, submitted April 15, 1997.||Summary|
|New Hampshire Supreme Court, Hungerford v. Jones No. 97-657, submitted January 14, 1998.||Summary|
|Illinois Supreme Court, Doe v. McKay No. 83094, submitted January 23, 1998.||Summary|
|Wisconsin Supreme Court, Sawyer v. Midelfort No. 97-1969, submitted July 17, 1998.||Summary||Full text|
|Georgia Supreme Court, Kohout v. Charter Peachford Hospital No. S98C1773, submitted Sept. 17, 1998.||Summary|
|California Court of Appeal, Wilson v Phillips, 1998||Listing|
|California Court of Appeal, Moore, Verga & Verga v Berlin et al., 1998||Listing|
|Pennsylvania Supreme Court, Althaus v Cohen Nos. 70 & 71 W.D., submitted April 13, 1998.||Summary||Full text|
|Supreme Court of Illinois, Ferrer v Kuhl No LKA 96 0422, 1999||Summary|
|Massachusetts Supreme Court, Commonwealth v. Shanley, submitted 2009.||Summary||Full text|
|Minnesota Supreme Court, Doe 76C v. Archdiocese of St. Paul and Minneapolis and Diocese of Winona, submitted October 26, 2011.||Summary||Full text|
Alabama Supreme Court, McDuffie v. Sellers-Bok No. 1940524 submitted May, 10, 1995.
Brief argues that under the principles of special relationships and circumstances, foreseeability, direct victims and public interest considerations, mental health professionals may owe a duty to third parties.
McDuffie v. Sellers-Bok, 676 So.2d 1359, (Ala. Sept. 29, 1995).
The Alabama Supreme Court without comment, affirmed the decision of the Alabama Circuit Court, Montgomery Co., No. CV-94-1772 (Dec. 1, 1994), which had dismissed two counts dealing with malpractice and breach of fiduciary relationship.
Rhode Island Supreme Court, Heroux v. Carpenter; Kelly v. Marcantonio, No. 95-39; 94-727, submitted August 30, 1995.
Brief addresses questions certified to the court concerning accrual of claims under state discovery statute and alleged inability to recall related to the disability statute. It also presents a review of the current scientific understanding of the theory of repression and relevant case law.
Kelly, v. Marcantonio, 678 A.2d 873, (R.I., July 11, 1996).
The Rhode Island Supreme Court held that the reliability of repressed memory theory must first be determined prior to extending the statute of limitations. The court instructed trial judges to hold an evidentiary hearing reviewing "the entire scientific theory of repressed recollection and the scientific method through which such recollections are recovered" to determine whether the specific "repressed recollection" is "sufficiently relevant, reliable, and scientifically and/or medically established." The court held that the claim may be brought only if the trial judge determines that the theory is "scientifically accepted and valid" and the evidence shows the Plaintiff to be of "unsound mind."
Texas Supreme Court, S.V. v. R.V. No. 94-0856, submitted February 6, 1995.
Brief reviews current scientific understanding of the reliability of "recovered repressed memory," including the lack of any reliable test to determine the accuracy of a repressed memory. It also considers the applicability of discovery exception set forth by petitioner.
S.V. v. R.V. 933 S.W.2d 1, 39 Tex. Supp. J. 386, (Tex., March 14, 1996).
The Texas Supreme Court held that in order to apply the discovery rule to toll the statute of limitations under any set of facts, including repressed memory claims, the wrongful event and injury must be "objectively verifiable" and inherently undiscoverable. After a thorough review of expert testimony and scientific literature, the court concluded that the scientific community has not reached consensus on how to gauge the truth or falsity of "recovered" memories. Therefore, the court held that expert opinion in this area does not meet the objective verifiability requirement for extending the discovery rule.
U.S. District Court, 5th Circuit, Knode v. Hartman No. 94-11120, submitted June 3, 1996.
Brief reviews the scientific literature regarding "repressed memory," indications of the scope of the problem from various sources, and recent decisions concerned with the reliability of repressed memory claims.
Knode v. Hartman, U.S. Court of Appeals, 5th Cir. No. 94-11120, Sept. 9, 1996, unreported.
The U.S. Court of Appeals found a "repressed memory" claim barred by Texas’ two-year statute of limitations. The court concluded that "recovered" memories of Complainant’s sister were not sufficient to establish the objective verification of the claims as required under S.V. v. R.V., 933 S.W.2d 1 (Tex., 1996).
Pennsylvania Supreme Court, Dalrymple v. Brown 055 E.D. App. Dkt. 1996, submitted Nov. 1, 1996.
Brief considers the applicability of the discovery rule and disability tolling exceptions to the statute of limitations under the Pennsylvania standard of reasonable diligence to "repressed memory" claims. Brief also reviews the current scientific understanding of "repressed memory" and the judicial response to these claims in sister jurisdictions.
Dalrymple v. Brown 1997 WL 499945 (Pa., Aug. 25, 1997).
The Pennsylvania Supreme Court refused to apply the discovery rule to cases involving "repressed memories." The court held that repressed memories do not provide the kind of objective evidence required to invoke the discovery rule or to demonstrate an undiscoverable injury. The concurring opinion noted that, "the validity of repressed memory theory is subject to considerable debate in the psychological community and some courts have rejected its admissibility."
Illinois Supreme Court, M.E.H. v. L.H. No. 81943, submitted February 12, 1997.
Brief argues that the unproven reliability of repressed memory claims is an insufficient basis to apply "discovery rule." Brief also reviews factors leading to the development of false memories, the repressed memory debate, current scientific findings, and relevant case law in other jurisdictions.
M.E.H. v. L.H. 1997 WL 562001 (Ill., Sept. 4, 1997), slip copy.
Affirmed dismissal, holding that even if the discovery rule were applied, this case was not filled in a timely way. "Whether plaintiffs have acted within a reasonable time turns on the particular facts and circumstances presented to the court." The Illinois appellate court, M.E.H. v. L.H., 669 N.E.2d 1228 (Ill.App.2nd Dist., 1996), had earlier declined to apply the discovery rule, citing Tyson v. Tyson with approval, "If we applied the discovery rule to such actions, the statute of limitations would be effectively eliminated and its purpose ignored. A person would have an unlimited time to bring an action, while the facts became increasingly difficult to determine. The potential for spurious claims would be great and the probability of the court’s determining the truth would be unreasonably low."
New Hampshire Supreme Court, State v. Hungerford and State v. Morahan No. 95-429, submitted February 14, 1997.
Brief argues that under either a Frye or Daubert analysis, the theory of repression clearly fails to meet the criteria for admitting scientific evidence. It also reviews factors leading to the development of false memories, the repressed memory debate, current scientific findings, and relevant case law in other jurisdictions.
State of New Hampshire v. Hungerford 1997 WL 358620 (N.H., July 1, 1997).
The New Hampshire Supreme Court affirmed the lower court’s ruling that the party offering repressed memory testimony of either an expert or complainant has the burden to prove it sufficiently reliable to be admitted. The question of reliability is to be considered on a case-by-case basis, but "tempered with skepticism" according to factors based on Daubert and the availability of any direct corroboration. The court concluded that the phenomenon cannot currently be considered reliable nor has it gained general acceptance in the scientific community. The court noted that if the phenomenon were ever able to satisfy the court’s objections and be found reliable, then additional inquiry into the circumstances of memory recovery (especially any therapeutic process) may be called for. See, State v. Hungerford, 1995 WL 378571 (N.H. Super., May 23, 1995).
Second Appellate District, California, Engstrom v. Engstrom No. VC016157, submitted March 17, 1997.
Brief argues that under the Kelly/Frye rule, testimony regarding and derived from repressed memories does not meet the "general acceptance" standard and is therefore per se inadmissible. It also reviews factors leading to the development of false memories, the repressed memory debate, current scientific findings, and relevant case law in other jurisdictions.
Engstrom v. Engstrom, No. B098146 (Cal. App., 2nd App. Dist., Div. 2, June 18, 1997) unpublished.
In an unpublished opinion, a California Court of Appeal affirmed a Superior Court’s judgment of non-suit since appellant had no memories of childhood abuse other than those generated during the period he was in therapy and "compelling" evidence showed that those memories did not meet the Kelly-Frye standard of admissibility. The court ruled, therefore, that appellant was "rightly precluded from testifying to any recovered repressed memories." The court also noted that even were an appellant to meet the "delayed discovery" provision of California statute of limitations, an additional evidentiary hurdle must be surmounted before that appellant could actually testify to any claimed recovered repressed memories. See, Engstrom v. Engstrom, Superior Ct., Los Angeles Co., California, No. VC-016157 (October 11, 1995).
Tennessee Supreme Court, Hunter v. Brown No. CV-00070, submitted April 15, 1997.
Brief considers the reasonable person standard for application of the discovery rule in "repressed memory" cases. It also reviews factors leading to the development of false memories, the repressed memory debate, current scientific findings, and relevant case law in other jurisdictions.
Hunter v. Brown 955 S.W.2d 49, (Tenn., November 10, 1997).
The Tennessee Supreme Court affirmed an earlier ruling by a Tennessee Appellate Court, Hunter v. Brown, 1996 WL 57944 (Tenn.App. 1996), but declined to rule on the question of general applicability of the discovery rule in "repressed memory" cases because it found that under the facts of the case, the claim was time-barred. The earlier appellate decision had noted that the "inherent lack of verifiable and objective evidence in these cases distinguishes them from cases in which Tennessee courts have applied the discovery rule [previously]."
New Hampshire Supreme Court, Hungerford v. Jones No. 97-657, submitted January 14, 1998.
Brief argues that in order to provide a meaningful remedy to injured third parties, access to the courts by such third parties must be allowed. Brief discusses the theory of repression, repressed memory therapy and techniques, professional organizations response, lawsuits against therapists, third party suits involving repressed memory, suits involving misdiagnosis of sexual abuse in minors, legislation and public policy considerations.
This case has been fully briefed and oral arguments were heard before the New Hampshire Supreme Court on May 6, 1998. The court is considering two questions referred by a U.S. District Court, Hungerford v. Jones, U.S. Dist. Ct., N.H., No. 96-C-599: Does a mental health care provider owe a legal duty to the father of an adult patient to diagnose and treat the patient with requisite skill and competence of the profession when the diagnosis is that the father sexually abused or assaulted the patient? Does a mental health care provider owe a duty to act with reasonable care to avoid foreseeable harm to the father of an adult patient resulting from treatment or other action taken in relation to mental health conditions arising from the diagnosis of past sexual abuse or assault?
Illinois Supreme Court, Doe v. McKay No. 83094, submitted January 23, 1998.
Brief argues that in order to provide a meaningful remedy to injured third parties, access to the courts by such third parties must be allowed. Brief discusses the theory of repression, repressed memory therapy and techniques, professional organizations response, lawsuits against therapists, third party suits involving repressed memory, third-party suits involving misdiagnosis of sexual abuse in minors, legislation and public policy.
Doe v. McKay 1009 Ill. LEXIS 913 (Ill., 1998).
The Illinois Supreme Court affirmed a trial court’s dismissal of a third party claim, holding that to allow the suit would improperly enlarge physicians’ duty of care and could be inconsistent with a therapist’s duty of confidentiality to his or her patient. A strongly worded dissent noted that the plaintiff was not a "random member of the general public," but was a relative of the patient, was accused of sexual abuse, and was used as a tool in plaintiff’s treatment program. Concerns about compromising patient confidentiality make no sense, the dissent wrote, where the therapist chose to make that third party an integral part of a patient’s treatment and did so with the patient’s consent.
Wisconsin Supreme Court, Sawyer v. Midelfort No. 97-1969, submitted July 17, 1998.
Brief argues that a therapist employing negligent "memory recovery" practices which lead to allegations of criminal sexual abuse owes a duty to the accused individual. The false allegation gravely injures the accused person in a direct and foreseeable way. Professional organizations have set forth guidelines for practice in this area which do not place undue burden on therapists.
This case has been fully briefed and argued before the Wisconsin Supreme Court. Defendants appeal an appellate court ruling, Sawyer v. Midelfort, 217 Wis.2d 795, March 17, 1998, which reversed dismissal of a third-party malpractice claim. The court held that under the facts of the case, a duty was owed to the parents, that public policy does not preclude recovery, and that summary judgment had been improperly granted on grounds of laches and the statute of limitations.
Georgia Supreme Court, Kohout v. Charter Peachford Hospital No. S98C1773, submitted Sept. 17, 1998.
Brief argues that the severe injury to patients and society due to unsafe repressed memory therapy merit allowing malpractice actions brought by former patients of therapists practicing repressed memory therapy. It also describes therapeutic techniques shown capable of fostering and reinforcing false memories, clinical challenges to the MPD diagnosis, the current scientific understanding of the theory of repression, and summarizes recent legal action against repressed memory therapists.
Appeal pending. Plaintiff appeals a decision by an appellate court, Engstrom v. Kohout, 1998 Ga. App. LEXIS 995, July 15, 1998 which refused to extend the statute of limitations in this malpractice claim. The appellate court rejected plaintiff’s argument that the two-year clock on her malpractice suit should have started only after she realized the nature and extent of her injuries from the false memories when she left treatment and began therapy elsewhere in May 1995, six months before the suit was filed.
California Court of Appeal, Wilson v Phillips, 1998
California Court of Appeal, Moore, Verga & Verga v Berlin et al., 1998
Pennsylvania Supreme Court, Althaus v Cohen Nos. 70 & 71 W.D., submitted April 13, 1998
Brief in support of appellees in Althaus v Cohen. Brief argues that a therapist owes a duty of care to an accused third party when the therapist’s negligent practice leads to false allegations of a criminal act, and that injury to the accused third party is forseeable and direct. It also argues that public policy concerns do not include the protection of reckless therapy procedures, nor would the circumstances defined in this brief overly expamd the circle of liability of therapists.
Supreme Court of Illinois, Ferrer v Kuhl No LKA 96 0422, 1999
Brief in support of appellees in Ferrer v Kuhl. Brief argues that unproven reliability of repressed memory claims is insufficient basis to apply the "discovery rule." Also reviews factors leading to the development of false memories, the repressed memory debate, current scientific findings, and relevant case law in other jurisdictions.
Massachusetts Supreme Court, Commonwealth v. Shanley, Submitted 2009
Amicus argues that repressed memory evidence should not be admissible in the Commonwealth because repressed and recovered memories are not a proven phenomenon.
We next conclude that the statute of limitations defense was properly raised, preserved, and sufficiently presented by the defendant in this case. (Jan 15, 2010)
Affirms admissibility of evidence based on memories recovered after dissociative amnesia. (Did not use Daubert standard)
For a discussion of this discussion see Wolf, Guyer. (2010, December). Repressed memories in a controversial conviction.
American Academy of Psychiatry and the Law 38, 607-609. Available at www.jaapl.org
Minnesota Supreme Court, Doe 76C v. Archdiocese of St. Paul and Minneapolis and Diocese of Winona, submitted October 26, 2011.
Brief argues that there is no general acceptance of repressed and recovered memory in the relevant medical and scientific communities.
Final Decision July 25, 2012.
We conclude that Doe’s expert testimony on the theory of repressed and recovered memory, offered to prove a disability delaying the accrual of a cause of action, is inadmissible under Minn. R. Evid. 702 because it lacks foundational reliability and that as a result Doe’s claims are untimely.
Last Updated: February 15, 2014
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