Doe 76C v Archdioceses of Saint Paul and Minneapolis (MN Supreme Ct)
FMSF News Alert - January 3, 2013
The end of 2012 marks a time to thank FMSF members for your support for so many years, a time to send good wishes to you for the New Year, and a time to reflect on the past year.
The past year turned out to be an eventful one for the False Memory Syndrome Foundation: A move from an office space to an electronic operation; a meeting of 150 members in October; and positive results in several legal decisions that make the case law regarding recovered memories even stronger.
We have finally completed our move from the rental space to an electronically-based environment. We are using email to communicate with our members -- old and new -- and are working to update our FMSFonline.org website soon. Regular email News Alerts have replaced the quarterly newsletters. We’re also pleased to see that some or our supporters have created an independent site on the popular social network Facebook where those who join can share news and other information related to this phenomenon. (The Facebook site "The False Memory Syndrome Action Network" is not controlled or officially sanctioned by the FMSF).
The Tribute for the Executive Director in October featured outstanding talks by Harrison Pope, M.D., Elizabeth Loftus, PhD., and Paul McHugh. If you would like a copy of Dr. McHugh’s paper of the talk he gave at that meeting, write to JBeanfmsf@gmail.com with Subject Line: "McHugh Talk". The conference also resulted in a new cadre of volunteers working on FMS issues!
On the legal front there are two decisions of special interest in the past couple of years.
The North Carolina case was a family tragedy in which the accuser became convinced through therapy that she was abused. In that case, the state could have proceeded if they’d had real evidence. They could not because the only evidence was the therapy-induced "memories" which the court found to be unreliable.
Minnesota’s case was one of clergy abuse in which someone came forward after hearing of large settlements in other lawsuits against his former priest. Whether the plaintiff was abused or not was never an issue heard by the court- perhaps he was. The only issue heard was whether the court would toll the statute of limitations based on the claim that the plaintiff had suffered 20 years of amnesia. In the end, the court did not believe the amnesia.
We look forward to more positive changes in 2013 with renewed hope and energy.
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Early in 2012, attorneys contacted the FMSF to ask if the Foundation would file an amicus brief in this case for the Archdioceses. We agreed but not without reflection. The problem was that the priest who was sued, Fr. Adamson, had a history of abusing children. Some of his victims sued the Dioceses in the 1980s and the cases received much publicity at that time -- more than 130 newspaper articles. Doe’s parents testified that they discussed the issue with him at the time. Yet Doe claimed he was unaware of the abuse until 2002 when he had "a series of flashbacks" about Adamson touching him. Doe claimed that in therapy he remembered other incidents of abuse.
The issue in this case was that John Doe 76C filed his case past the Minnesota statute of limitations. In filing his case he wanted to present expert testimony to show that the theory of repressed memory would explain that the abuse caused a disability, his memory loss of the 1980s’ abuse, and that is why he did not file within the time frame.
We agreed to file an amicus brief because the unscientific nature of the theory of repressed and recovered memories ought not to be used to circumvent the statute of limitations.
Doe filed the claim in 2006, and a district court, after a hearing in 2009, "concluded that Doe’s expert testimony was inadmissible under the Frye-Mack standard. The rule governing admission of scientific evidence in Minnesota states (Rule 702):
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The opinion must have foundational reliability. In addition, if the opinion or evidence involves novel scientific theory, the proponent must establish that the underlying scientific evidence is generally accepted in the relevant scientific community."
The experts at the 2009 hearing for John Doe were Dr. James A. Chu, M.D. and Dr. Constance Dalenberg, Ph.D. The experts for the Dioceses were Dr. Harrison G. Pope, Jr., M.D., Dr. William M. Grove, Ph.D., and Dr. Elizabeth F. Loftus, Ph.D. We encourage you to read the Supreme Court decision in this case for a summary of that hearing and the court’s evaluation of the experts. It can be found at MN v Doe 76c
Doe appealed the district court decision and the appeals court overturned the district court opinion. The Dioceses then appealed to the Minnesota Supreme Court. The Minnesota Supreme Court concluded that the expert testimony was inadmissible "because it lacks foundational reliability." Doe could not bring his case to court.
Some comments from the Minnesota Supreme Court opinion:
"In other words, the court concluded that, because of serious methodological flaws, the scientific literature relied upon by Doe’s experts simply did not support an argument that "someone could have a terrible trauma and then be literally unable to remember it for a period of time." The studies did not successfully differentiate repressed memory from other types of memory loss that would not delay the accrual of a cause of action, which is a critical distinction."
"Moreover, the district court found that "the accuracy of the recovered memories has not been scientifically established," and Doe’s experts conceded that there was no way to tell whether a person was actually suffering from repressed memories in any given case. "
"In judging the overall reliability of the theory, the court found that while there are hundreds of studies on the theory of repressed and recovered memory, it was unconvinced that any of the studies had proved the existence of, much less the accuracy or reliability of, repressed and recovered memories."
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This case began in 2005, but was influenced by the 1997 decision in Barrett vs Hydlburg.
In February of 1993, 45 year old Sandra Barrett watched the televised movie "Not in My Family", the fictional account of a depressed woman who suddenly recovers memories of having been abused by her father. Shortly after seeing this film, Ms. Barrett says she began having spontaneous recall of being molested by her father 40 years prior. Ms. Barrett filed a civil suit against her father for her mental and emotional distress.
Barrett’s case ambled through the system. Finally in 1997, the court decided that Ms. Barrett could not testify about any "newly recovered memories" unless the she obtained an expert who could explain the repression phenomenon to a jury. Rather than seek this expert testimony, Ms. Barrett appealed the decision.
The lower court was ultimately upheld by the superior courts, citing a similar decision in NH v Hungerford: "To argue that a jury could consider such a phenomenon, evaluate it and draw conclusions as to its accuracy or credibility, without the aid of expert testimony is disingenuous to say the least."
Eight years later, in 2005, 17 year-old A. King, began having unexplained fainting spells. No medical cause for the symptoms could be determined. Shortly thereafter, Miss King began entering fugue-like states, and superficially cutting herself. Two psychiatrists diagnosed this as a psychosomatic illness, or "conversion disorder". Miss King was assigned to a psychiatric nurse named Liz Watson for additional therapy.
Therapist Watson asked Miss King to journal the memory of any traumatic event from her childhood. Miss King wrote about a time when, on a visitation with her father at the age of 7, she had fallen while getting out of the bathtub. She couldn’t recall much more about the incident, except that she’d sustained some genital injury, and was taken to the emergency room to treat the laceration.
The therapist asked what Miss King would think if a friend told her that story. Miss King said she would probably suspect sexual abuse, but that her father would never do anything like that. Therapist Watson then told Miss King, "sometimes the mind will go someplace else when something very difficult or painful might be happening."
Approximately one month after this appointment, Miss King had a "flashback" of being raped by her father in the bathroom. Therapist Watson had Miss King report this "flashback" to both the Department of Social Services and to the local Sheriff’s Department. The allegations were then forwarded to the local DA, who filed criminal charges against Miss King’s father.
Four years after his 2005 arrest, Mr. King refused the state’s offer of a plea deal. He immediately found several additional charges levied against him, all based on the same alleged event.
Since it is required by the precedent in Barrett, the prosecution was allowed state funding to secure an "expert" to testify that repression of traumatic event is possible.
Rather than having an expert to simply counter those claims, the defense hired an expert to show the flaws in the research, the extreme amount of disagreement in the scientific community, and to explain why no jury should ever hear such unproven theories in an American courtroom.
The court agreed with the defense, stating, "The scientific aura surrounding repressed memory theory and an expert who would testify about it might become so firmly established in the minds of potential jurors that they may assign undue credibility to repressed memory evidence."
On August 2, 2011, the appellate court affirmed that decision.
All testimony which relies on repressed/recovered memory is now effectively barred from courtrooms in the state of North Carolina.