Final Decision
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.
Final Decision
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."
Final Decision
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.
Final Decision
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).
Final Decision
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."
Final Decision
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."
Final Decision
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).
Final Decision
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).
Final Decision
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]."
Present Status
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?
Final Decision
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.
Present Status
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.
Present Status
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.