vs.
FATHER FLANAGAN'S BOYS HOME,
a Nebraska
Corporation,
and JAMES E. KELLY,
Defendants
Doc. 1024 No. 743
ORDER ON MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY REGARDING REPRESSED MEMORY
Pending before the Court is a "Motion in Limine to exclude expert testimony about alleged repressed memories" (Motion No. 1) and a "Motion in Limine to exclude certain expert opinion testimony" (Motion No. 2) filed by the Defendant Father Flanagan's Boys' Home ("Boys Town") and joined in by Defendant James E. Kelly ("Kelly" or collectively "Defendants"). In Motion No. 1 Defendants seek to prohibit Todd Rivers ("Plaintiff" or "Rivers") from adducing expert opinion testimony concerning the phenomenon of repressed memory, that Rivers suffered from repressed memory, and that Rivers repressed memory caused the delay in commencing this action. In Motion No. 2 Defendants seek to prohibit the Plaintiff Rivers from adducing expert opinion testimony concerning the symptoms of child sexual abuse, that Rivers suffered from those symptoms, that Rivers was sexually abused while at Boys Town, and that Rivers is credible and/or truthful in his claims. Hearings were held on August 18-19, 2005 and September 30, 2005. Boys Town was represented by J.M. Davis and R.C. Barden. Kelly was represented by D. Chesire. Rivers was present and represented by P. Noaker and R. Broom. Following closing arguments, the Court took the matters under advisement.
The Court has carefully considered the evidence, the relevant legal authorities, and the arguments of counsel, which were capably presented. For the reasons set forth below, the Court finds and concludes both Motions in Limine should be sustained.
FACTUAL BACKGROUND
On March 25, 2003 Rivers filed a Complaint seeking damages from Boys Town and Kelly. Rivers, in his First Amended Petition, alleges that Kelly and another Boys Town employee "physically and/or sexually abused" him while he was a resident at Boys Town from 1981 through 1987. Rivers alleges three causes of action:
Of particular importance to these motions, Rivers alleges that he has suffered from a repressed memory of the abuse, which could have only been discovered by him on or after March 27, 2002. Amended Complaint 12. Boys Town and Kelly deny the allegations and affirmatively allege that the claims are barred by the relevant statute of limitations and that repressed memory, if it exists, does not toll the statute of limitations. Answers, 20 & 2.
At the hearings on the Motions in Limine, the Court heard testimony from Defendants' experts, Dr. Harrison Pope, Jr., M.D. ("Pope") and Dr. Elizabeth Loftus, PHD ("Loftus") and Plaintiff's expert, Dr. Bessel van der Kolk, M.D. ("van der Kolk"). Some documentary evidence, including Dr. Pope's psychiatric evaluation of Rivers (Ex. 78) and a portion of the deposition of Dr. Bruce Gutnik, M.D. (Ex. 81), who also evaluated Rivers, were also received into evidence.
REPRESSED MEMORY
At the hearings on the Motions in Limine, the parties presented expert testimony regarding the concept of repressed memory. It was stated that terms such as repression, dissociation, traumatic amnesia, dissociative amnesia, recovered memory, and repressed memory are all used to describe the same or related phenomenon. The theory of repressed and recovered memory involves a three-stage process: (1) a traumatic event is experienced; (2) the memory of the traumatic event becomes unavailable to consciousness; and (3) at a later time the memory of the traumatic event becomes available to consciousness and the memory is as accurate as ordinary memory. With that understanding, the Court will use the term "repressed memory" to refer to all of the above in this Order.
Dr. Pope is a professor of psychiatry at Harvard University Medical School and directs a biological psychiatry laboratory at McLean Teaching Hospital, where he has an appointment as a psychiatrist. Dr. Pope has an extensive curriculum vitae (Ex. 49), has written approximately 250 peer-reviewed papers, seven books, and many other publications. His scientific stature is significant, e.g. he is listed among the top 250 psychiatrists and psychologists in the world by the Institute of Scientific Information and is listed among the top 250 or 260 neuroscientists in the world and is one of only 37 scientists in the world who is on both of those lists. One of Dr. Pope's specialties is the study of the methodology of scientific research and the critique of scientific studies and their findings.
Dr. Pope stated that the studies and articles that purport to establish the existence of repressed memory do not meet the methodological standards for valid scientific research. According to Dr. Pope, many of the studies confuse ordinary forgetting with repression. Dr. Pope stated that in his opinion, the phenomenon of repression and subsequent memory recovery does not exist. Dr. Pope defined a repressed memory as follows: "that you could have some sort of traumatic experience and then be literally unable to remember it" and that the memory becomes unavailable to consciousness as opposed to simply forgetting it. Dr. Pope stated that no scientific study has ever established or proved the existence of repressed memory after excluding known causes of amnesia. Dr. Pope stated that the retrospective studies that purport to prove the existence of repressed memory contain flaws such as: (a) erroneously assume forgetting a traumatic event equals a repressed memory; (b) inadequate corroboration of original traumatic events; (c) failure to exclude biological causes of amnesia; (d) no validation of the method for assessing amnesia; and (e) failure to exclude amnesia for secondary gain. According to Dr. Pope, there is no known error rate on any of the studies on repressed memory and that one needs an error rate to establish the scientific validity of the study. Dr. Pope challenged the majority of the studies relied upon by the Plaintiff because they were based on retrospective reminiscences in which people were only asked whether they remembered if they forgot.
Dr. Pope relied in part upon a study done by Dr. Femina, who did a follow-up study with sexual abuse victims who had initially denied the abuse. Femina found eight of the eighteen subjects who originally denied the abuse and all eight conceded that they had always remembered the abuse but had chosen to not disclose it at the time of the original study.
Dr. Pope opined that the concept of repressed memory is highly controversial, that there is no agreement or consensus among scientists, and therefore, no general acceptance for the theory of repressed memory within the relevant psychiatric community. Dr. Pope sent out a questionnaire to a random sample of board certified American psychiatrists and received a response from 80% of them. Of those responding, only 35% thought that repressed memory (dissociative amnesia) should be included as an official diagnosis in the DSM-IV without reservations and that an additional 40% thought that it could be a "proposed" diagnosis.
The DSM-IV is the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association and it is a manual used by psychiatrists to define mental diagnostic categories. The DSM-IV lists "dissociative amnesia" as a recognized diagnosis and characterizes it as an inability to recall important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by ordinary forgetfulness. (Ex. 79).
Dr. Pope minimized the inclusion of dissociative amnesia in the DSM-IV as a disorder. Dr. Pope stated that the DSM-IV is not a scientific journal and is not peer-reviewed. Dr. Pope testified that even if there really was such a thing as a repressed or recovered memory, that to a reasonable degree of psychiatric certainty, one cannot evaluate the accuracy of retrieved memories without corroborating evidence. Dr. Pope also stated that even if there was such a thing as repressed memory and that Rivers experienced it, and that the confession incident actually happened, there would be no way to determine at what point Rivers would have repressed the memory. Dr. Pope further stated that even if repressed memory exists, that to a reasonable degree of scientific certainty, Rivers did not suffer from a repressed memory. Dr. Pope thought that it was most likely that Rivers was trying to find some explanation for why he had suffered for so many years from unexplained "miserable" symptoms. Dr. Pope labeled that natural attempt to try to find some explanation for why you are suffering from unexplained symptoms as "effort after meaning". Dr. Pope believed that repressed memory should be included as a conversion symptom, which, according to Dr. Pope, is how it is classified in the World Health Organization Classification of Disorders. (Ex. 40) . It is Dr. Pope's opinion that the twenty-one studies relied upon by the Plaintiff do not meet the established scientific criteria for establishing the existence of repressed memory and that there are numerous peer-reviewed scientific articles questioning the validity of repressed memory. (Ex. 86).
According to Dr. Pope, a 1994 paper published by the American Medical Association stated "considerable controversy has arisen in the therapeutic community over the issue of repressed memory and experts from varied professional backgrounds can be found on all sides of the issue." Dr. Pope also stated that a 2000 position paper from the American Psychiatric Association stated, "some patients have later recanted their claims of recovered memories of abuse" and that in 1994 the American Psychiatric Association stated, "it is also possible to construct convincing pseudo memories for events that never occurred". Dr. Pope also noted that the Royal College of Psychiatrists stated in 1997: "Memories of events that did not occur may develop and be said with conviction." According to Dr. Pope, these statements from a variety of professional organizations established that there is no general acceptance within the scientific community concerning the theory of repressed memory and the accuracy of recovered memories.
The Defendants also presented the expert testimony of Dr. Elizabeth Loftus, Ph.D. Dr. Loftus is a distinguished Professor of Psychology at the University of California-Irvine and a specialist in memory. She has authored or co-authored twenty books and 400 articles. Dr. Loftus was elected to the National Academy of Sciences in 2004 and the Royal Society of Edinburgh in 2005 and received the Grawemeyer Award in 2005. She is the top ranked female on a list of 100 most influential psychologists published by the Review of General Psychiatry. She has been engaged in doing research on memory distortion since the 1970s. (Ex. 48).
Dr. Loftus agreed that the concept of repressed memory is so controversial that one could not possibly say it was generally accepted within the scientific community of psychologists and cognitive psychologists. Dr. Loftus stated that there is no good scientific support for the notion today. Dr. Loftus co-authored an article in 1994 (Ex. 14), which Plaintiff contends is one of the studies that proves the existence of repressed memory. Loftus disagreed that the article proved repressed memory exists. Dr. Loftus stated that it is not known what the participants in the study meant when 19% of them stated that for a period of time they forgot their childhood sexual abuse and then the memory returned. Dr. Loftus stated that when the study was done, she thought there might have been evidence for repression but that in 15 years of efforts since then it still had not been scientifically proven that repression exists. In 1996 Dr. Loftus published her article "The Myth of Repressed Memory", which discussed how false memories are created, planted, or suggested. Dr. Loftus also studied cases where dreams and dream interpretation had the result of changing peoples memories and creating false memories.
Dr. Loftus reviewed Rivers deposition, Dr. Pope's evaluation, and Dr. Gutnik's evaluation, and a report prepared by defense counsel, Mr. Davis. In Dr. Loftus opinion there was "quite a bit" of external suggestion in Rivers' environment; including lots of discussion with his brother about his brother's claims, discussion with an investigator; discussion with his attorney, his dream, family pressure to bring a lawsuit, and reinforcement by Dr. Gutnik of a repressed memory.
Dr. Loftus, in her 30 years of research, had never found anything to prove the existence of repressed memory. Dr. Loftus did not believe there was any credible scientific support for the existence of repressed memory. Dr. Loftus also opined that there was no evidence that Rivers had a repressed memory. Dr. Loftus did acknowledge that she did not treat patients and had no special expertise in childhood development.
Dr. Loftus acknowledged that Rivers recovered memory was not the result of hypnosis or a therapy session but in Dr. Loftus opinion, there were other possible contaminates. Dr. Loftus stated that the DSM-IV is used for communication and diagnosis and includes language that proved how controversial the concept really was. Dr. Loftus testified that fewer people believe in the concept today because of the research and studies and because of the hundreds and hundreds of recanters and retractors. Dr. Loftus also testified that many mental health professionals had been sued for planting false memories of abuse, which led to some changes in how therapists conducted their therapy.
Plaintiff presented the expert testimony of Dr. Bessel van der Kolk, M.D. Dr. van der Kolk has an M.D. from Harvard, and is Board Certified in Psychiatry. He is currently a Professor of Psychiatry at Boston University and the Medical Director of the Trauma Center in Boston. Dr. van der Kolk is involved in a major way with the National Child Traumatic Stress Network, which is a network of universities and clinics that concentrate on the treatment of traumatized children. The Trauma Center in Boston specializes in the treatment of traumatized children and adults. Dr. van der Kolk teaches neuroscience, about trauma, and general clinical evaluation and treatment to residents in the Boston University Medical School. Boston University is involved in significant research involving trauma. Dr. van der Kolk is a treating psychiatrist, seeing patients on a regular basis.
Dr. van der Kolk is the author of 120 to 130 peer-reviewed articles, mainly about trauma. Dr. van der Kolk stated that the issue of memories that come up and disappear is well documented in the war literature, starting with World War I. Dr. van der Kolk treated Vietnam War veterans at the Veterans Administration and got interested in the memory processes of traumatized individuals. He also stated that the article about Holocaust victims who were traumatized also established that those victims had large gaps in their memories. When Dr. van der Kolk left the Veterans Administration and returned to Harvard, he began to study the relationship between current diagnoses and the histories of childhood trauma. In is opinion, every study of sexually traumatized people found a certain number of people forgot the memory of the abuse. Dr. van der Kolk believed that it is such a "given" that there do not need to be any more studies done to establish the existence of repressed memory. Dr. van der Kolk co-authored quot;Traumatic Stress" and was involved with the publication of quot;Post-Traumatic Stress Disorder", a monograph published by the American Psychiatric Press. Dr. van der Kolk is a distinguished life fellow of the American Psychiatric Association.
Dr. van der Kolk testified that repressed memory is listed as a diagnosis in the DSM-IV and that it was listed in the DSM-III. For Dr. van der Kolk, the inclusion of repressed memory or dissociative amnesia as a diagnosis within the DSM-IV meant that it was the consensus of his professional organization that repressed memory exists and is generally accepted within the psychiatric community. According to Dr. van der Kolk, all studies of sexually abused people found examples of repressed memory. Dr. van der Kolk testified that it was no longer a valid question to ask whether repressed memory exists.
Dr. van der Kolk summarized his opinion of the results of certain studies Plaintiff claims prove the existence of repressed memory. According to Dr. van der Kolk, the studies done by Briere and Conte, Williams, Burgess, Elliott and Briere, Dalenburg, Chu and Goodman all found that a percentage of sexually abused people had forgot their trauma or had no memory of their trauma for a period of time. On cross- examination, Dr. van der Kolk acknowledged that the conclusion of the Goodman article was that "these findings do not support the existence of special memory mechanisms unique to traumatic events, but instead imply that normal cognitive operations underlie long-term memory for a child of sexual abuse." Dr. van der Kolk also acknowledged on cross-examination that the American Medical Association statement upon which he relied in part for his opinions, also included the following statement: "The AMA considers recovered memories of childhood sexual abuse to be of uncertain authenticity, which should be subject to external verification." According to Dr. van der Kolk, within the clinical psychiatric/psychology community there is no controversy and that the concept of repressed memory is generally accepted within that community. Dr. van der Kolk also stated that the studies relied upon by the Defendants (Ex. 85) told us nothing about repressed memory since, according to him, none of them was the study of childhood sexual abuse and in one-half of them memory wasnt even tested.
PROFESSIONAL ORGANIZATION STATEMENTS
In 1994 the American Psychiatric Association published a position paper on "memories of sexual abuse". The Association stated "Children and adolescents who have been abused cope with the trauma by using a variety of psychological mechanisms. In some instances these coping mechanisms result in a lack of conscious awareness of the abuse for varying periods of time. Conscious thoughts and feelings stemming from the abuse may emerge at a later date." (Ex. 5) With respect to the issue of reliability of recovered memories, the Association stated, "It is not known how to distinguish, with complete accuracy, memories based on true events from those derived from other sources." The only way to prove the accuracy of a recovered memory report is to produce corroborating evidence. The Association goes on to state "It is not known what portion of adults who report memories of sexual abuse were actually abused. Many individuals who recover memories of abuse have been able to find corroborating information about their memories. However, no such information can be found, or is possible to obtain, in some situations. While aspects of the alleged abuse situation, as well as the context in which the memories emerged, can contribute to the assessment, there is no completely accurate way of determining the validity of reports in the absence of corroborating evidence." (Ex. 5, pg. 3) . The Association also cautioned its members not to contribute to the unreliability of memory reports by reinforcing false memories or denying new ones. "Psychiatrists should maintain an emphatic, non-judgmental, neutral stance towards reported memories of sexual abuse. As in the treatment of all patients, care must be taken to avoid prejudging the cause of the patient's difficulties, or the veracity of the patients reports. A strong prior belief by the psychiatrist that sexual abuse, or other factors, are or are not the cause of the patients problems is likely to interfere with appropriate assessment and treatment." Id.(pg. 4). In addition, the Association advised: "Psychiatrists should refrain from making public statements about the veracity or other features of individual reports of sexual abuse." Id. (pg. 6).
The AMA issued a report on memories of childhood abuse in 1994, which stated that the AMA considers "recovered memories of childhood sexual abuse to be of uncertain authenticity, which should be subject to external verification."
The DSM-IV, which is a manual published by the American Psychiatric Association, includes dissociative amnesia as one of its recognized diagnoses. In the DSM-IV it states "In recent years, there has been an increase in reported cases of dissociative amnesia that involves previously forgotten early childhood traumas. This increase has been subject to very different interpretations. Some believe that the greater awareness of the diagnosis among mental health professionals has resulted in the identification of cases that were previously undiagnosed. In contrast, others believe that the syndrome has been over-diagnosed in individuals who are highly suggestible." (Ex. 79, pg. 2) . The DSM-IV also states as follows "Care must be exercised in evaluating the accuracy of retrieved memories. There has been considerable controversy concerning amnesia related to reported physical or sexual abuse, particularly when abuse is alleged to have occurred during early childhood. Some clinicians believe that there has been an under reporting of such events, especially because victims are often children and perpetrators are inclined to deny or distort their actions. However, other clinicians are concerned that there may be over reporting, particularly given the unreliability of childhood memories. There is currently no method for establishing with certainty the accuracy of such retrieved memories in the absence of corroborative evidence." (Id.at pg. 4).
The World Health Organization includes dissociative amnesia within its classification of dissociative or conversion disorders. (Ex. 40). In the World Health Organization statement it states, "All types of dissociative disorders tend to remit after a few weeks or months, particularly if their onset is associated with a traumatic life event."
EVALUATIONS OF RIVERS
Dr. Pope examined Todd Rivers on April 15, 2005 and issued a written psychiatric evaluation of Rivers. (Ex. 78). A chronology of Rivers' history is contained within the evaluation. Rivers was born in 1969. His father left when Rivers was two and Rivers had very little contact with his father after that. After being in foster care for a short period of time, Rivers elected to go to Boys Town in January 1982. Both of Rivers older brothers also went to Boys Town. Rivers graduated from high school and left Boys Town in 1987. After trying college, he entered the Air Force and remained in the Air Force until 1996. Rivers' first marriage ended in divorce and he obtained joint custody of his two sons. Rivers remarried in 2000 and a third son was born as a result of that marriage. Rivers suffered back and neck damage in a car accident and was once stabbed with a screwdriver and has had another back injury from fire fighter training.
Rivers' mother apparently suffers from bi-polar disorder and episodes of major depression. Rivers' brother, Lance, has bi-polar disorder accompanied by psychotic symptoms. Rivers' oldest son has been diagnosed as having attention deficit hyperactivity disorder.
Rivers reported to Dr. Pope a single episode of major depressive disorder, most of which symptoms remitted within three weeks and a history of panic disorder with agoraphobia, for which he takes Paxil. Rivers has taken prescription drug medication for years. Dr. Pope stated that Rivers also met the diagnostic criteria for fibromyalgia and possible irritable bowel syndrome. In Pope's opinion, Rivers did not meet the criteria for post-traumatic stress disorder.
In March 2002, a month after attending his father's funeral, Rivers recalled waking up from a dream "unable to breathe". In the dream Rivers was at a confession with Kelly, a priest, at Boys Town when he was thirteen. Within an hour after awakening from the dream, Rivers stated that he recalled that Kelly had told him to pull down his pants during confession "to show him how I masturbated" and then had him pull his pants back up. Rivers stated that Kelly did not touch his body while his pants were down but that he briefly touched Rivers groin area during prayer after his pants were back up. Rivers recalled being very frightened that Kelly would tell Mike Wolf (the man in charge of Rivers house at Boys Town) that Rivers had been masturbating.
A week or two after the dream in 2002, Rivers stated that he was alone reminiscing about various times at Boys Town and recalled a trip to Colorado where he had been sleeping in a cabin with his brother Lance and Mike Wolf. Rivers had always remembered the trip to Colorado and staying in the cabin, but he suddenly had a new memory that someone had "massaged" his groin in the darkness. Rivers could not see the individual but reasoned that it must have been Wolf since only Wolf and his brother Lance were in the cabin and because he assumed that Lance would not have done such a thing. (Ex. 78, pg. 3). The confession incident and the cabin incident are the incidents of abuse claimed by Rivers.
In mid-April 2002 Rivers was contacted by an investigator working for an attorney representing another individual, James Duffy, who claimed in February 2002 to have recovered memories of being sexually abused while at Boys Town. Shortly after that call, Rivers told his wife that he had recalled the two incidents, i.e. the confession incident and the cabin incident. After that, Rivers had several conversations with an investigator and a lawyer representing his brother, Lance, in his case against Boys Town alleging sexual abuse.
Dr. Pope concluded that Rivers did not meet the criteria for post-traumatic stress disorder because neither of the two incidents described would have been an event that involved actual or threatened death or serious injury or threat to the physical integrity of oneself or others or that his response involved intense fear, helplessness, or horror. Dr. Pope testified that he believed that Rivers pattern of disorders likely stemmed from his family history and that there was a genetic link. Finally, Dr. Pope opined that Rivers did not "repress" and subsequently "recover" genuine and accurate memories because there is not methodologically sound scientific evidence that people actually can "repress" a memory of an event.
The Plaintiff's expert, Dr. van der Kolk, examined Rivers in Boston in April 2005 also. Dr. van der Kolk testified that on his airplane flight to Boston, Rivers experienced a panic attack and the plane had to be stopped to let him off. Rivers then drove by car, approximately 2,000 miles, to the appointments with Dr. van der Kolk and Dr. Pope. Dr. van der Kolk recounted that Rivers told him that before 2002, Father Val Peter, the then head of Boys Town, had asked him if he had been abused and Rivers denied it to Father Peter. According to Dr. van der Kolk, this is evidence that Rivers repressed the memory for a period of time. In Dr. van der Kolks opinion, Rivers experienced "dissociative amnesia" or repressed memory. Dr. van der Kolk stated that the confession incident with Kelly would have been a traumatic event because it involved betrayal by a person in authority. Dr. van der Kolk also stated that Rivers description of the Kelly confession incident was very similar to a description given by James Duffy, another plaintiff in a case against Kelly and Boys Town. Dr. van der Kolk also stated that it was error to assume that because you have certain symptoms, that proves that someone has been sexually abused. According to Dr. van der Kolk, Rivers met the criteria for post-traumatic stress disorder in 2002, but that as of April 2005 he did not have full flown post-traumatic disorder "anymore".
Dr. van der Kolk examined Rivers and found it striking that after suffering a panic attack while on the plane, Rivers drove two thousand miles to Boston for his evaluations with van der Kolk and Dr. Pope. Dr. van der Kolk stated that Rivers came from a very deprived background and that he found a home at Boys Town. Dr. van der Kolk stated that Rivers told him that he always thought it never happened to him, which is why he told Father Peter that he had not been abused while at Boys Town. Dr. van der Kolk stated that Mr. Rivers was an example of a person who "had the capacity to put it out of his mind". Dr. van der Kolk then stated "and so to what extent this is totally involuntary and to what degree this is just the brain playing tricks on you, that's more of a scientific question that we haven't resolved yet." Dr. van der Kolk stated that Mr. Rivers himself, "for motivated or unmotivated reasons, I don't know, always thought this never happened to him but that he was able to keep the memory under lock and key."
In his deposition, Dr. Gutnik, a psychiatrist who also evaluated Rivers, stated that Rivers told him that he forgot about the incidents at some point after they occurred between 1981 and 1987 and that the memories returned to him in a dream sometime before July 2002 (Ex. 81). Rivers did not present any corroboration that the alleged incidents occurred to Dr. Gutnik. Dr. Gutnik testified that repression is a Freudian defense mechanism, that is, a theory, i.e. an educated guess. (Ex. 81). Dr. Gutnik stated that Rivers symptoms of post-traumatic stress disorder were (1) having flashbacks; (2) feeling distant or estranged from people; (3) being withdrawn; (4) avoiding going back to churches; (5) avoiding going back to Boys Town; (6) difficulty recalling aspects of the confession; (7) difficulty with concentration; (8) irritability; (9) low energy; (10) fatigue; (11) difficulty with sleeping; and (12) fearing a foreshortened future. (Ex. 81, pg. 79). Dr. Gutnik acknowledged that these symptoms did not prove or establish that Rivers was the victim of physical or sexual abuse. Dr. Gutnik acknowledged that the only evidence there was that Rivers recovered memory was accurate or that he was unable to remember the memories for a period of time was Rivers saying so. Dr. Gutnik testified that based upon Rivers presentation, the symptoms he reported, his observation of Rivers, and the history provided, that everything was consistent with his diagnosis of post-traumatic stress disorder. Dr. Gutnik stated that other than the notion that Rivers had a repressed memory, Rivers did not suffer from any mental impairment that prevented him from acting in a legal fashion on an injury claim that he might have had. Id.(pg. 89). Dr. Gutnik also acknowledged that there are no symptoms or cluster of symptoms or any psychological tests that can be used to determine whether a person was sexually abused. Id.(pg. 93).
DISCUSSION AND CONCLUSIONS
In Schafersman v. Agland Co-op, 262 Neb. 215, 631 N.W.2d 862 (2001), the Nebraska Supreme Court adopted the Daubert standard for admissibility of expert testimony. In Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004) the Nebraska Supreme Court summarized the inquiry required by this Court as follows:
"An expert opinion is ordinarily admissible under Neb. Rev. Stat. 27-702 (Reissue 1995) if the witness (1) qualifies as an expert, (2) has an opinion that will assist a trier of fact, (3) states his or her opinion, and (4) is prepared to disclose the basis of that opinion on cross-examination. Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004). When the opinion involves scientific or specialized knowledge, this court held in Schafersman v. Agland Co- op, 264 Neb. 215, 631 N.W.2d 862 (2001), that we will apply the principles of Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.E.D.2d 469 (1993). Under our recent Daubert/Schafersman jurisprudence, the trial court acts as a gatekeeper to insure the evidentiary relevance and reliability of an expert's opinion. Zimmerman v. Powell, 268 Neb. 422, 684 N.W.2d 1 (2004); Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004). This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology can be applied to the facts in this case. Zimmerman v. Powell, supra; Schafersman v. Agland Co-op, supra. In addition, the trial court must determine if the witness has applied the methodology in a reliable manner. Carlson v. Okerstrom, supra. " Id., 268 Neb. at 701.
Additionally, in State v. Tolliver, 268 Neb. 920, 689 N.W.2d 567 (2004), the Nebraska Supreme Court stated:
"A trial court's evaluation of the admissibility of expert opinion testimony is essentially a four-step process. The court must first determine whether the witness is qualified to testify as an expert. It must examine whether the witness is qualified as an expert by his or her knowledge, skill, experience, training, and education. If it is necessary for the court to conduct a Daubert analysis, then the court must determine whether the reasoning or methodology underlying the expert testimony is scientifically valid and reliable. To aid the court in its evaluation, the judge may consider several factors, including but not limited to, whether the reasoning or methodology has been tested and has general acceptance within the relevant scientific community. Once the reasoning or methodology has been found to be reliable, the court must determine whether the methodology can properly be applied to the facts in issue. In making this determination, the court may examine the evidence to determine whether the methodology was properly applied and whether the protocols were followed to insure that the tests were performed properly. Finally, the court determines whether the expert evidence and the opinions related thereto are more probative than prejudicial, as required under Nebraska Evidence Rule 403, Neb. Rev. Stat. 27-403 (Reissue 1995)." Id., 268 Neb. at 927-28.
In the Motions in Limine, the Defendants do not really challenge Dr. van der Kolk's or Dr. Gutnik's professional qualifications as experts. Rather, the Defendants challenge the foundation and scientific reliability of their opinions. The Plaintiff, on the other hand, contends that there is sufficient foundation and scientific reliability for Dr. van der Kolk's and Dr. Gutnik's opinions, that the methodology is reliable, and can be properly applied in this case. As a preliminary matter, based upon the evidence, the Court finds and concludes that all four experts are qualified as experts by their knowledge, skill, experience, training, and education and are competent to testify regarding the psychiatric and psychological issues in this case.
MOTION IN LIMINE
NO. 1-REPRESSED AND RECOVERED MEMORY
Rivers contends that the theory of repressed and recovered memory has been tested, subjected to peer-review, is generally accepted, and that the methodologies used to establish its existence were proper. Rivers relies principally on Dr. van der Kolk's testimony, approximately twenty studies, five peer-reviewed articles, and five textbooks that purportedly proved the existence of repressed and recovered memory, as well as the inclusion of repressed memory as a diagnosis in the DSM-IV and several court cases. Plaintiff relies on Shahzade v. Gregory, 923 F. Supp. 286 (D. Mass., 1996) in which the federal district court held that the validity and reliability of the phenomenon of repressed memory had been established and overruled the defendant's motion to exclude repressed memory evidence. The Plaintiff also relies on Isely v. Capuchin Province, 877 F. Supp. 1055 (E.D. Mich. 1995) in which the federal district court held that there was a sufficient scientific basis for the theory of repressed memory, that the plaintiff's behavior was consistent with someone who was suffering from repressed memory, and was consistent with people who experienced repressed memory and sexual abuse.
The Defendants, on the other hand, rely on the testimony of Drs. Pope and Loftus and numerous articles and books to support their position that the theory of repressed and recovered memory is highly controversial, has not been tested adequately, is not generally accepted, has no known error rate, and is not scientifically reliable. Defendants urge this Court to follow the courts that have held that evidence of repressed and recovered memory is not scientifically reliable and therefore, not admissible. Defendants principally rely on State v. Hungerford, 697 A.2d 916 (N.H. 1997) in which the Supreme Court of New Hampshire examined both sides of the recovered memory debate and found that the phenomenon of recovered and repressed memories had not yet reached the point where it could perceive those memories as reliable. The Defendants also rely on State v. Quattrocchi, 1999 W.L. 284882 (R.I. April 26, 1999). In Quattrocchi, the Superior Court of Rhode Island held a fourteen-day hearing and concluded that the evidence regarding repressed memory was not reliable or admissible as scientific evidence.
In Dabuert v. Merrill Dow Pharmaceuticals, Inc., supra, the Supreme Court held that under Rule 104(a) the proponent of scientific evidence had the burden of establishing its admissibility by a preponderance of the evidence. Thus, in this case, Rivers bears the burden of satisfying the Daubert/Schafersman foundational requirements, namely of demonstrating that the theories of repressed memory and recovered memory are scientifically reliable and have gained general acceptance within the relevant scientific community. Rivers must demonstrate that the reasoning or methodology underlying the testimony is scientifically valid, is capable of empirical testing, and can properly be applied to the facts of this case. It is important to state that the theory of repressed and recovered memory involves a three-stage process: (1) first a traumatic event is experienced; (2) a memory of the traumatic event becomes unavailable to consciousness; and (3) at a later time, the previously repressed memory becomes available to consciousness and the recovered memory is as accurate as an ordinary memory.
The testimony at the hearing established that there is no empirical test that will demonstrate the existence of repressed memory and the reliability of a recovered memory. However, it should be noted that it would not be possible to ethically conduct a laboratory test on human subjects that created a traumatic event for the purpose of testing the subjects' future memory or memory loss or memory recovery of the traumatic event. Accordingly, based upon the testimony and evidence presented at the hearing in this case, the Court finds that the reliability of a repressed and then recovered memory has not been tested adequately to establish the reliability and accuracy of such a theory. See Hungerford, supra; Quattrocchi, supra.
The parties in this case presented evidence of numerous peer-reviewed articles and publications concerning the concepts of repressed memories and recovered memories. Because there is no empirical support for the repressed memory theory, proponents like Dr. van der Kolk rely on case studies to attempt to validate the theory. Dr. van der Kolk focused on twenty articles he claimed established the existence and reliability of repressed and recovered memories. (Ex. 85). Dr. van der Kolk surveyed and summarized the conclusions of the studies of Briere and Conti, Williams, Burgess, Elliot and Briere, Dalenberg, Chu, Goodman, and others. He opined that every study that looked at repressed memories in any sample of sexually abused people found it, i.e. that a certain percentage of people had forgotten about their abuse.
Defendants focused on numerous articles that challenged or questioned the methodology utilized in the studies relied upon by Dr. van der Kolk and Rivers. (Ex. 86). According to Dr. Pope and Loftus, there are serious flaws in the studies relied upon by the Plaintiff.
The evidence at the hearing before this Court established that the studies were retrospective studies, and many were based on reports by victims that were not corroborated. Many of the studies did not distinguish ordinary forgetting from repression and only asked the subjects if they remembered if they forgot the abuse. Many of the studies failed to exclude alternative reasons for victims saying they forgot the abuse, such as: lying about the traumatic event, lying about forgetting about the traumatic event, having a false or pseudo memory about the abuse possibly suggested or implanted by another. One study done by Dr. Femina did a follow-up study on subjects who had denied sexual abuse when they were initially interviewed. Dr. Femina found eight of the eighteen subjects and all eight of them admitted that they had always remembered the abuse and had simply not disclosed it at the time of the original interview.
The evidence presented in this case establishes that the case studies relied upon by Rivers contain limitations and methodological flaws. The Williams study, for example, purports to prove that one-third of the 129 women studied forgot their childhood molestation. However, Williams failed to conduct follow-up interviews in order to determine, why, in fact, the women did not report the previously documented abuse. The lack of follow-up interview calls into question the study's conclusions about repressed memory. Thus, the Williams study does not conclusively validate the repressed memory theory but does, however, provide some support for the theory that a number of individuals who were exposed to documented childhood trauma were not able to recall all memories of the abuse. But the Williams study presents no support for the other aspect of the debate between the scientists, which is whether repressed memories are susceptible to accurate and therefore, reliable recall. Further, the studies relied upon by Dr. van der Kolk do not provide a scientific basis for concluding that repressed memories can be accurately and truthfully recovered.
Dr. Loftus herself was involved in an early study that Plaintiff claims supports their position. In that study, 19% of the subjects answered that they forgot their abuse for a time and that later the memory returned. However, in the article, the authors pointed out that the responses were ambiguous and that they didn't know how to account for the proportion of non-abused people who "remember" abuse. The evidence presented demonstrates that there are numerous peer-reviewed articles and publications on both sides of the debate within the scientific community concerning the phenomenon of repressed and recovered memory. Thus, this Court finds that while the theories of repressed memory and recovered memory have been subjected to peer-review and publication, the results of those scientific articles are mixed and do not conclusively establish the existence of repressed memory and the reliability of recovered memory.
Rivers did not present any evidence or testimony specifically on the issue of an established error rate. For a scientific study to be methodologically sound, it is important to have a small error rate or at least to know the error rate so one can interpret the results. Implicit in Dr. van der Kolk's testimony was the theme that known or potential error rates cannot be applied to the behavioral sciences such as psychology and psychiatry. During closing arguments, Rivers' counsel referred to the inclusion of dissociative amnesia as a diagnostic criterion in the DSM-IV and the Dalenberg study when discussing the error rate factor.
Defendants, on the other hand, pointed to the results of the Femina study, which did a follow-up interview with subjects who had previously stated that they had forgotten their childhood abuse and all those found admitted that they chose not to disclose the abuse and had not really forgotten it. Defendants also presented evidence showing that there have been a number of "false" or pseudo memories and that numerous cases exist where people claim to have repressed and recovered memories and later recanted or retracted those memories as false or implanted during therapy or hypnosis. Based upon the evidence presented at the hearings, the Court finds that there is no known error rate regarding the reliability of repressed and recovered memories or in the studies presented by Rivers.
At the hearing the Court was presented with Dr. van der Kolk's testimony that the theory is generally accepted within the psychiatric community and Dr. Pope's testimony that the theory is not generally accepted within the psychiatric community and Dr. Loftus' testimony that the theory is not generally accepted within the psychological community. The evidence at the hearing demonstrated that a major debate exists within the scientific community as to the theory of repressed and recovered memory. Some scientists like Dr. van der Kolk, worked with patients who experienced trauma and who had memory problems or gaps when attempting to remember the trauma. For those clinical psychiatrists, their clinical experiences provide all the proof they need to establish the existence of repressed or recovered memories. According to clinical psychiatrists, such as Dr. van der Kolk, repressed memory is included in the DSM-IV and the World Health Organization Category of Disorders because it is a clearly recognized theory by the psychiatric community.
However, there is another well-recognized group of scientists, such as Dr. Pope, a psychiatrist, and Dr. Loftus, a psychologist, who believe that the concept is so controversial that there is no consensus of scientific professionals on the existence of repressed memory and/or the reliability of recovered memory.
The courts that have considered this issue are also not in agreement. In Shahzade, supra, the federal district court in Massachusetts held that the theory of repressed memory has gained general acceptance in the psychiatric community. Shahzade, supra, 923 F.Supp at 290. In Isley, the federal district court in the Eastern District of Michigan also ruled that the theory was generally accepted. Nevertheless, at least three state courts have expressly ruled that the phenomenon of repressed memory and recovered memory has not gained general acceptance in the relevant scientific community. In Hungerford, supra, the New Hampshire Supreme Court stated that because the scientific community is extremely divided, at best, on the issue of recovery of completely repressed memories "we cannot say that the phenomenon has gained general acceptance in the psychological community". 697 A.2d at 927-28. In Quattrocchi, the Superior Court of Rhode Island ruled, "This Court believes that the phenomenon of repressed recollection has not gained general acceptance in the fields of psychology and psychiatry." 1999 W.L. 284882 at pg. 12. Further, in Franklin v. Stevenson, 987 P.2d 372 (Utah 1999) the Supreme Court of Utah held that neither the record in that case nor the court's research indicated that the techniques enjoyed a general acceptance within the field. Id.at 28.
The fact that repressed memory or dissociative amnesia is listed as a diagnosis in the DSM-IV does not alone establish that the reliability of repressed memory and recovered memory is generally accepted by the relevant scientific community. One only has to look at the cautionary language contained within the DSM-IV, the APA Position Paper, and the AMA Position Paper to see that considerable scientific controversy exists concerning these issues. The DSM-IV states "there is currently no method for establishing with certainty the accuracy of such retrieved memories in the absence of corroborative memories." (Ex. 79). The APA position paper (1993) appears to support the existence of repression but does not seem to distinguish between lack of conscious awareness, or choosing or trying not to remember, or ordinary forgetting. The APA further acknowledged that it is not known how to distinguish memories based on true events from those derived from other sources and that there is no completely accurate way of determining the validity of reports in the absence of corroborating evidence. (Ex. 5). In addition, the American Medical Association stated that the existence of repression is highly controversial and that recovered memory reports are unreliable without corroboration.
Based upon the evidence presented, the Court finds that the theory of repressed memory and recovered memory has not gained general acceptance in the psychological and psychiatric communities. This Court is persuaded by the Defendants' experts and the analysis in Hungerford and Quattrocchi. As the Hungerford Court stated, "There is, however, a vigorous debate on the question of how the process of repression occurs, how the process of retrieval occurs, and indeed if in fact retrieval is possible at all [citations omitted]. A central and divisive question in this debate is whether a person's memory of an event can be accurate or authentic or "true", having been long lost in the person's subconscious mind and subsequently remembered, either spontaneously or by some method seeking to recover the memory." 697 A.2d at 921.
Further, even if repressed memory exists, scientists are in agreement that the reliability of recovered repressed memories is unknown and the accuracy of recovered memory testimony cannot be determined without corroborating evidence. Accordingly, based upon the evidence presented in this case and the Court's consideration of the Daubert/Schafersman factors, this Court finds and concludes that the reasoning and methodology of Plaintiff's expert testimony regarding repressed and recovered memory is not scientifically valid or reliable.
Assuming arguendo, the reasoning and the methodology of Plaintiff's expert testimony is scientifically reliable, the Court finds that the theory of repressed memory and recovered memory is not properly applied in this case. Under the facts of this case, Rivers was thirteen years of age when the confession incident allegedly occurred. The confession incident, and the cabin incident, if they occurred, were apparently isolated incidents, perpetrated by two different individuals during Rivers' first year at Boys Town, where he stayed until he graduated from high school some six years later. Thus, this is not a case where a young child was repeatedly subjected to years of physical and sexual abuse, which is more typical in the studies involving repressed memory.
In addition, there was no evidence presented as to when Rivers forgot or "repressed" these memories. It was stated that Rivers stopped going to confession after the confession incident so it is clear that for some period of time Rivers remembered the incident. Rivers claims he spontaneously "recovered" the memory of the confession incident in late March 2002 after a dream and that two weeks later he recalled the cabin incident, both of which were approximately twenty years after the alleged incidents. Rivers was not in therapy or under hypnosis at the time he "recovered" these memories. However, he was being pressured by an investigator for another Plaintiff, James Duffy, and an attorney for his brother, Lance, to recall any incidents of abuse. The fact that there is approximately twenty years between the alleged events and the "recovered" memories increases the unreliability of the memory. Lastly, there appears to be little, if any, objective verifiable corroborative evidence of the alleged incidents. The only hint of corroboration is in Dr. van der Kolk's testimony that Rivers "recovered" memory of the confession incident was substantially similar to an incident described by another plaintiff, James Duffy, in another case against the Defendants. However, there is also evidence that the same investigator working on the Duffy case called Rivers within a month of his "recovered" memories and that it was only after the call from the investigator that Rivers first told his wife of his "recovered" memories. It should also be noted that Dr. Pope questioned whether Rivers experienced the serious type of trauma sufficient to trigger a repressed memory and that in his opinion, Rivers did not suffer from repressed memory, even if such a phenomenon exists. Dr. van der Kolk testified that Rivers "had the capacity to put it out of his mind" and "so to what extent this is totally involuntary and to what degree this is just the brain playing tricks on you, that's more of a scientific question that we haven't resolved yet." Significantly, there was no testimony that Rivers suffered from a generally accepted mental condition that left him incapable of recalling this abuse until 2002. Further, regarding the nature of the traumatic event, Dr. van der Kolk referred to it as being based upon a betrayal, but offered no scientific or psychiatric support establishing that a betrayal can induce the type of trauma that would be sufficient to cause a repressed memory, in the absence of violence or prolonged abuse in a teenage boy.
Based upon a review of all the evidence, including the opinions of the experts, the Court cannot say that the theory of repressed memory and recovered memory is properly applicable under the facts of this case, even if it is determined that the theory is scientifically reliable in the abstract. In conclusion, the Court finds and concludes that Rivers has not met his burden of establishing that repressed and recovered memory is reliable and admissible as scientific evidence or that it is properly applied in this case. The Plaintiffs evidence lacks the scientific reliability and proper application necessary to admission under Rule 702 and Daubert/Schafersman. [1]. As a result, the Court finds and concludes that the Defendants' Motion in Limine No. 1 shall be sustained.
1. In light of the Court's ruling, it is not necessary to consider the evidence in light of Evidence Rule 403.
MOTION IN LIMINE
NO. 2-SEXUAL ABUSE SYMPTOMS
Defendants contend that Plaintiff should be excluded from offering expert opinions that there are symptoms, characteristics, and behaviors, which are common to persons who suffered sexual abuse as a child, that Rivers suffers from those symptoms that are characteristic or consistent with people who were sexually abused as children, that Rivers symptoms were caused by sexual abuse that occurred while at Boys Town, and that Rivers is credible, believable, and telling the truth about his abuse and repressed and recovered memory.
Dr. van der Kolk acknowledged on cross-examination that it was an error to assume, because a person has certain symptoms, that proves that somebody has been sexually abused. Further, Dr. Gutnik acknowledged that Rivers' symptoms did not prove or establish that Rivers was a victim of physical or sexual abuse. (Ex. 81).
Thus, this Court was presented with no evidence that there is any medical or scientific proof to support a correlation between certain symptoms and a diagnosis of sexual abuse. No evidence was offered by Plaintiff that such an opinion is generally accepted within the scientific community, that it has been peer-reviewed, and tested and has a known error rate. Accordingly, the Court finds that Plaintiff has not met its burden of proof under the Daubert/Schafersman test and Plaintiff will be precluded from offering testimony that certain symptoms, characteristics, or behaviors are consistent with a diagnosis of sexual abuse, that Rivers possesses the symptoms, characteristics, and behaviors of a person who was physically or sexually abused as a child, or that Rivers was physically or sexually abused as a child while at Boys Town.
In addition, in State v. Doan, 2 Neb. App. 310, 498 N.W.2d 804 (1993) the Nebraska Court of Appeals held that an expert may not give an opinion that the child is believable, or credible, or that the witness account has been validated. Similarly, in State v. Maggard, 1 Neb. App. 529, 502 N.W.2d 492 (1993) the Court of Appeals held that it was error to admit expert testimony regarding the child victim's ability to lie.
Therefore, in light of the above authority, Plaintiff is also precluded from attempting to offer any expert opinion that Rivers is believable or credible or telling the truth in an attempt to validate his testimony about the alleged abuse he claims he suffered while at Boys Town. Accordingly, the Court finds and concludes that the Motion in Limine No. 2 regarding symptoms of sexual abuse should be sustained.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Defendants' Motion in Limine No. 1 regarding repressed memory shall be sustained and that Defendants' Motion in Limine No. 2 shall be sustained.
Dated this 28 day of November 2005.
BY THE COURT: __________________________________
Sandra L. Dougherty
District Court Judge
Copies to:
Patrick Noaker
Robert Broom
James Martin
Davis
Daniel Chesire