RECOVERED MEMORIES IN THE COURTS

By Anita Lipton

In Sheila Taub (Editor), RECOVERED MEMORIES OF CHILD SEXUAL ABUSE: PSYCHOLOGICAL, SOCIAL, AND LEGAL PERSPECTIVES ON A CONTEMPORARY MENTAL HEALTH CONTROVERSY, (1999). Courtesy of Charles C. Thomas, Publisher, Ltd., Springfield, Illinois.

CONTENTS

  • Third-Party Suits Brought by Families Who Say they Have Been Falsely Accused
  • Malpractice Suits Against Therapists Brought by Their Former Patients
  • Summary
  • OVERVIEW OF REPRESSED MEMORY LITIGATION

    In 1992, the False Memory Syndrome (FMS) Foundation began its Legal Survey project to track the response of courts and legislatures to the rising tide of litigation based on claims involving the alleged recovery, usually during psychotherapy, of long-repressed memories of incest and child abuse.[1]  By 1998, the project had accumulated sufficient data to paint a graphic picture of the rise and fall of a troubling social problem that has torn families apart and set off a widening controversy in the mental health field.  The history of this phenomenon bears the hallmarks of an early rush to judgment followed by a more measured response, as courts, legislatures, clinicians, memory researchers, and many professional organizations reacted to growing concerns about the reliability of memories recovered in therapy.

    At the time the legal survey was initiated, the problem of recovered memories of sexual abuse was little understood.  Initial contacts of the FMS Foundation by family members reporting false allegations of sexual abuse were doubling every three months.  By March 1993, one in sixteen persons who had contacted the FMS Foundation had been in court because of such allegations.  Increasingly, this drama was being played out in courtrooms.  Data collected early in 1993 indicated that the number of new filings of "repressed memory" lawsuits was growing exponentially.  A number of states had recently amended their statutes of limitations to allow adults to sue for childhood sexual abuse many years after the abuse allegedly occurred.  Juries were being asked to consider uncorroborated testimony of recovered memories that had been allegedly repressed for years, and often decades.  There was very little case law from appellate courts addressing how trial courts should handle the novel evidentiary questions posed by repressed memory claims.  Defendants who felt wrongly accused had few resources with which to defend themselves in the face of this new kind of "evidence."  Many juries apparently accepted the notion that a recovered repressed memory must be true.

    The picture is very different today.  At the time of this writing (January, 1999), few new repressed memory claims are being filed.  A substantially larger percentage of repressed memory claims are now being dropped or dismissed rather than going to trial.  Courts have increasingly found repressed memory testimony to be unreliable and therefore inadmissible.  A growing number of jurisdictions are making it more difficult for plaintiffs to bring repressed memory claims, citing the suggestive circumstances under which "repressed memories" are often "recovered" and the lack of any reliable scientific basis for the notion that memories can be repressed and later recovered intact.  In the last decade, clinicians, memory researchers, and professional organizations have issued guidelines recommending the avoidance of suggestive therapy techniques.  In recent years, psychotherapy clients injured by repressed memory therapy have begun to file malpractice claims against their therapists and many have won substantial awards.  State agencies have also become involved, bringing criminal fraud charges and de-licensure proceedings against some therapists who have engaged in repressed memory therapy.

    In repressed memory cases, often the only evidence that abuse occurred is the plaintiff's subjective belief that it did.  Because of the length of time that has elapsed between the alleged abuse and the trial, memories may have faded and witnesses, records, and any evidence that might have been available may be lost.  All aspects of the allegation -- the claimed memory loss and recovery, the date of supposed "discovery" of the abuse, the causal link to a subsequent injury, and even the alleged abuse itself -- rest on the complainant's subjective assertions.  A growing number of courts have recognized that the problem of proof is compounded in these cases because many inferences are based on a speculative theory of memory and repression whose reliability has not yet been proven.  Courts facing repressed memory claims attempt to balance the legal needs of victims of childhood sexual abuse with the duty to ensure that defendants receive a fair trial.  Society's justifiable repugnance for the crime of incest should not preclude the requirement of reliable proof that the alleged act did indeed occur.

    The dissonance between a repressed memory belief and the evidentiary requirements of the legal system is, at times, jarring.  The following excerpt from the deposition taken from a woman who had accused several family members of childhood sexual abuse on the basis of a recovered repressed memory is illustrative.[2]

    Figure 7-1
    DEPOSITION EXCERPT

    ATTORNEY: On what facts do you rely that it occurred over and over again?

    X: Because my memory occurs over and over again.., it's just a feeling.

    ATTORNEY: You have no witnesses that would support that your feeling is accurate, do you?

    X: No.

    ATTORNEY: You have no physical evidence, scars on your body or conditions on your body that a physician has certified as the result of child abuse or sexual abuse when you were a child, do you?

    X: Nothing [they] have found yet.

    ATTORNEY: Okay.  anything else that you can give to me and give to the court in support of your allegations that you were sexually abused by B.  from 18 months to 11 years of age than you've given me already?

    X: Just today's disassociation.  That's all...  just what's wrong with me today...  [and] I'm still afraid of spiders.

    ATTORNEY: You are suing your father for damages and you are saying only that, "I assume [I was abused there] ..." You must understand that makes me most uncomfortable.

    X: We don't share the same pattern of logic.

    ATTORNEY: All you are relying upon is your memory that these alleged events of sexual abuse, physical abuse -- even to expand your complaint, abandonment, child neglect, poor supervision, -- these are based upon witnesses to them, there are no other forms of physical evidence, documents, letters, correspondence to help you support your belief system; is that correct?

    X: That I know of, yes.

    ATTORNEY: That you know of.  Are you searching for some of these?

    X: No.

    This complainant dropped her lawsuit the day before the case was to be heard in court, but hundreds of other complainants have made similar arguments before juries in all 50 states.

    THE FMSF LEGAL SURVEY PROJECT

    The FMSF Legal Survey is a compilation of reports of litigation related to repressed memory claims.[3]  The FMSF legal staff collects information from several sources: court filings, telephone interviews and follow-up written surveys from affected individuals and attorneys, media reports, and published appellate opinions.  The staff then codes each case according to the claimant's stated reason for the delay in filing.  A "repressed memory" coding represents a case in which the claimant alleged a temporary memory loss for long past event(s).[4]  The FMSF legal staff attempts to identify demographic information about the parties, specifics of the claim, circumstances surrounding the "memory recovery," any evidence that supports the claim, the positions of the litigants, and the final outcome of the case.  Once a case has been identified, the FMSF makes every effort to track it to its conclusion.

    By July 1998, the FMSF Legal Survey contained well over 1,800 records of litigation related to repressed memory claims.  This collection is unlikely to contain all relevant cases, as 119 of the repressed memory cases reported below first became known to the FMSF only when an appellate decision was issued, suggesting that the number of repressed memory lawsuits filed in this country that never reach an appellate court is probably much higher than the number of such lawsuits uncovered in the FMSF Legal Survey.

    Records in the FMSF Legal Survey represent the range of legal issues surrounding repressed memory claims.  They include 1174 cases (termed "delay-filed" cases throughout this report) brought in the United States in which adults claimed that sexual abuse took place many years earlier but that they were unaware either that the abuse took place or that the alleged abuse had caused their current psychological problems.  In seven cases, individuals were charged with murders that allegedly took place many years ago, after persons came forward who claimed to have witnessed the murder but subsequently repressed all memory of it.  Fifteen additional criminal cases were filed after an adult claimed to have recovered memories of long-past childhood sexual abuse and the adult's minor children made similar allegations against their grandparents after being questioned.  The FMSF Legal Survey also contains records from 262 foreign delay-filed cases (148 of which are repressed memory claims) that were filed in eight other countries.  Most of these are criminal cases.

    If one excludes from the 1174 delay-filed cases those cases in which the complainant does not specifically allege a memory loss and those cases for which court records do not clarify the reason for the delay in filing, the Legal Survey contains 803 repressed memory claims that have led to litigation in the United States.  This group includes 633 civil suits, 103 criminal actions, and 67 restraining orders and the like.  The data reported here are based on the subset of 736 civil and criminal cases, which will be referred to hereafter as "repressed memory" cases.  A subsequent section of this chapter will consider malpractice actions brought against mental health care providers by former patients and by third parties who claim that therapeutic negligence led to the development of false memories, with resulting injury to a patient, a third party, or both.

    CHARACTERISTICS OF "REPRESSED MEMORY" CLAIMS

    Who Are the Claimants?

    Ninety percent of the claimants are female, and most are between the ages of 25 and 45.[5]  The typical claimant alleges that her father sexually abused her repeatedly beginning at an early age and continuing for much of her childhood, yet most claimants allege they had no memory of the abuse until three to five decades after it ended. Nineteen individuals filed a claim at the age of 50 or older and one did not file until age 68.

    When Did the Alleged Abuse Take Place?

    Of the 736 repressed memory claims, 305 specified the time span over which the sexual abuse allegedly took place.  In that subgroup, over 98 percent (298/305) claimed the abuse had lasted at least 2 years, over 70 percent (216/305) claimed the abuse had lasted at least 6 years, and nearly 20 percent (58/305) claimed the abuse had lasted at least 14 years.  Twenty-three claimants alleged ongoing abuse that continued after they reached adulthood.  Each alleged that she had temporarily lost all memory of the abuse that occurred during her adult years.

    One 44-year-old woman sued her father for sexually abusing her from the time she was one year old until she reached the age of 23, saying she had had no knowledge of the abuse over that entire period.  A 42-year-old woman alleged she had repressed memories of abuse lasting from age 4 to age 39.  A 35-year-old man sued his uncle for sexually abusing him from age 8 to age 30, claiming he had only discovered the molestation at the time he was standing trial for murder.[6]

    Many complaints fail to indicate the dates and duration of the alleged abusive events, causing some repressed memory claims to be dismissed for lack of specificity.  Of the 340 complaints that indicated the plaintiff's age for at least some of the alleged events, over half (178/340, or 52%) of the claims alleged that severe sexual abuse took place during the first 5 years of life.  Approximately 30 percent (101/340) of the accusers claimed that the recovered memories of abuse included memories from infancy to three years.  These complainants relied on early childhood images as the basis of their lawsuits despite the recognized improbability of accurate memories of events from such an early age (see Lindsay, Singer this volume).  Most of these claimants were in therapy at the time they recovered "memories" of abuse during their infancy.  Fourteen percent (47/340) claimed they were unaware of severe, invasive abuse occurring during their teen years and young adulthood.[7]

    Who Is Being Sued?

    In nearly 70 percent (422/612) of all repressed memory cases (civil, criminal, and restraining orders) in which the relationship between the accuser and defendant is known, an adult child made an accusation against a parent or parents.[8]  Of the 505 repressed memory cases in which the defendant was in the same family as the plaintiff, only 16 percent (83/505) involved accusations against a family member other than a parent.  The remaining cases (i.e., those in which the defendant was not a family member) involved accusations against family friends, baby sitters, foster parents, big brothers and members of almost every profession that works with children, including psychologists and other therapists, teachers and school administrators, pediatricians and other physicians, and priests and religious workers.  Several plaintiffs have accused as many as 45 people of having abused them (although not all accused were eventually sued), and two plaintiffs independently claimed that the entire membership of their respective local Masonic Lodge abused them as children, but that they had subsequently lost all memory of the events.

    Some adult children have filed repressed memory lawsuits against parents who were in their eighties or who were terminally ill or in nursing homes.  In several cases, abuse allegations were not made until a parent's will went to probate and the plaintiff sought a sizable portion of her siblings' inheritance.

    What Were the Circumstances Under Which These "Memories" of Childhood Abuse Were Developed?

    Nearly 80 percent (579/736) of the complainants in both civil and criminal cases stated that their memories were recovered while they were in therapy,[9]  For an additional 18% (146/736) of claims, the record does not specify whether or not the complainant was in therapy. Many complaints state that "it was not until plaintiff felt safe in therapy that the images could emerge." Fewer than 2 percent (11/736) of the complaints specifically state that the complainant was not in therapy at the time the images of long past sexual abuse developed. Many courts have discussed the possible role of certain suggestive therapy techniques in the emergence of recovered memories of abuse; some of their findings are discussed below.  Some claimants stated that the process of memory recovery began with a dream that the therapist interpreted to be an indication of hidden trauma.[10]

    What Do We Know About the Therapy?

    Hypnosis or sodium amytal was used in 17 percent (98/579) of the cases in which repressed memories developed during therapy.  Hypnosis or sodium amytal was part of the therapy of just over 7 percent (8/103) of the alleged victims in criminal cases.  If hypnosis-like techniques were counted, this figure would be even higher.  In some cases, the complainant initially denied that hypnosis played a role in the memory recovery process, but subsequent information contradicted this claim. This is a point of some significance because testimony based on memories recovered under hypnosis is inadmissible in most jurisdictions.

    Of those repressed memory claimants who were in therapy, approximately 18 percent (103/579) were diagnosed as having Multiple Personality Disorder (MPD).[11]  Approximately 18 percent (19/103) of all claimants in criminal cases and 13 percent (84/633) of all plaintiffs in civil suits were diagnosed as having MPD.  If the related diagnosis of dissociative identity disorder were included, these percentages would be higher.  Hypnosis was used in the therapy of at least one-third (34/103) of the complainants who had been diagnosed with MPD.

    Why Is the Source of Repressed Memories of Concern to Courts?

    To date, most case law relating to hypnosis deals with its use in a forensic setting, ostensibly to enhance the memory of a witness to a crime.  Hypnotically enhanced memory is inadmissible in most jurisdictions because researchers have found that hypnosis affects the character of memories and the subjects' perceptions of recollected experiences, rendering them unreliable.  Hypnosis has been shown to lead to an overconfidence in and uncritical acceptance of hypnotically-generated images, a phenomenon referred to as "memory hardening." Subjects may also experience so-called "source amnesia," in which hypnotically elicited images become divorced from context so that the individual is unable to determine accurately the source of the image.  These factors, some courts have concluded, may render cross-examination of posthypnotic testimony ineffective.

    In jurisdictions that allow posthypnotic testimony, the party who offers it into evidence generally has the burden of demonstrating its reliability, which may be done by establishing that the hypnotic session was conducted following guidelines recommended by courts and/or professional associations to minimize the effects of suggestion.  In 1992, a 38-year-old Connecticut woman sued relatives who, she claimed, had sexually abused her some 30 years earlier.  She also testified that she recalled years of "abuse and rituals" by many relatives and family friends.  Although she initially testified that most of the memories "unfolded on their own" and surfaced in "bits and pieces," other court records showed that she had first reported the alleged abuse to her unlicensed therapist during a hypnotic session. Her therapist, it turned out, had only a high school diploma and no formal training in psychiatry or psychotherapy, though he did have years of experience as a stage hypnotist.

    The case eventually made its way to the U.S. Second Circuit Court, which affirmed dismissal of the case.[12]  The court observed that "the literature has not yet conclusively demonstrated that hypnosis is a consistently effective means to retrieve repressed memories of traumatic, past experiences accurately." The court added that the plaintiff's "far-fetched, uncorroborated" claims against other parties, including allegations that she was raped and sexually abused at the age of 3 by men she believed to be Masons and drugged and forced to drink blood at a ritual involving a dead pig, "erodes our confidence in the allegations." [13]  The panel also noted her hypnotist's lack of qualifications and his failure to keep records of his procedures and said that without such records a court cannot determine if the therapist was inadvertently suggestive or used suspect techniques in conducting the hypnosis.  The court proposed that trial courts should consider the following (nonexclusive) factors at a pretrial evidentiary hearing before deciding whether to admit posthypnotic testimony: the aim or subject of the hypnosis session, possible suggestions from the hypnotist, whether a permanent record of the hypnosis session is available, and the existence of corroborating evidence.  The burden of persuading the trial court that the balance tips in favor of admissibility should be on the party that seeks to admit the testimony, the appeals court added.

    A different memory-recovery technique was used in the case of Holly Ramona, a 21-year-old woman who sued her father in 1992 for childhood sexual abuse based on recovered memories.  As reported in the decision of the California court of appeals that heard the case.[14]  Holly originally entered treatment for help with bulimia and depression. During the first session, her therapist told her that 60 to 80 percent of her patients had experienced abuse of some kind, including sexual abuse, and asked her whether she had been sexually abused.  At that time Holly had no memories of abuse, but four months later she began to experience "flashbacks" of abuse occurring when she was 5 to 8 years old.  Uncertain whether these flashbacks were true memories, she agreed to undergo a sodium amytal interview, after being assured by her therapist that a person cannot lie under the drug's influence unless trained to do so.  Following the sodium amytal interview, Holly was told that she had just described sexual abuse and was again assured that she had not lied during the interview.  Holly then confronted her father with her allegation that he had sexually abused her.  As a result of the abuse allegations, Holly's parents were divorced and her father lost his job.  Two years after the sodium amytal interview, Holly experienced new flashbacks of additional sexual abuse, including rape, that she believed her father had committed from the time she was 12 to 16 years old.  It was then that Holly sued her father.  Her father responded by suing Holly's therapists, saying they had caused his daughter to believe, mistakenly, that she had been molested as a child.[15]

    In 1997, a California appellate court dismissed Holly's claim against her father, holding that Holly had not met her burden of demonstrating the reliability of her postsodium amytal memories -- the "memories" recovered both during and two years after the sodium amytal session. California courts had long held the results of sodium amytal interviews to be unreliable because sodium amytal, despite being called a "truth serum," does not guarantee the truthfulness of what is said; it merely lessens inhibitions and enhances a subject's willingness to talk.  The court therefore held that Holly was barred from testifying because her memory was tainted by the therapeutic administration of sodium amytal.[16]

    A significant number of cases, both civil and criminal, were dismissed or withdrawn when it was disclosed that the complainant had undergone hypnosis or other memory recovery techniques.  In a case that is being appealed at the time of this writing, a Utah District Court judge reversed a jury verdict in favor of the plaintiff and dismissed the claim because of evidence introduced at the trial that a variety of techniques or methods were utilized to retrieve what the plaintiff came to view as "memories," including guided imagery, writing with the nondominant hand, trance-work, relaxation, communicating with metaphorical "inner children," and journal writing.[17]  The judge found these techniques to be, like hypnosis, inherently unreliable for recovering memories, and there was no other evidence to corroborate the plaintiff's claims that she had been abused.

    How Do the Complaints Explain the Alleged Memory Loss?

    Although the majority of claimants alleging a temporary memory loss and subsequent "recovery" use the term "repression" to describe that phenomenon, some recent complaints have also spoken of "dissociation" and "traumatic" or "psychogenic amnesia.[18, 19]  Regardless of the specffic terminology used, documents filed in the 803 repressed memory cases (which include civil and criminal suits and restraining orders) fail to explain how years of repeated intrusive sexual abuse by a trusted individual could subsequently become lost to memory.  The Maryland Court of Appeals (the state's highest court) described two possible models for the claimed memory loss:

    1. The serial repression model, in which a victim of sexual assaults or other traumatic events could repress the memory of each event immediately after it occurred.
    2. The collective repression model, in which a person remains aware of the events for a length of time, even over the course of multiple events, and then at some later date "represses" all the memories in a block.[20]

    Either model poses a difficult problem for a court that must decide when the claimant reasonably should have known of the alleged abuse in order to decide when the statute of limatations began to run on the plaintiff's claim.

    In order to toll (extend) the statute of limitations under the so-called "discovery rule," most claimants have alleged that their memory loss was involuntary and unconscious.[21]  The implication is that the claimant was "blamelessly ignorant" of her cause of action until the memories were recovered into conscious memory and she was able to "discover" her cause of action or until her psychological injury manifested itself.[22]  A few claimants describe the process of memory loss as a conscious one in which they actively pushed away images of abusive events.[23]  Some courts, employing a case-by-case review, found a plaintiff's claim that she was prevented from timely filing by "dissociation" or "repression" to be contradicted by undisputed facts later presented to the court.[24]

    The majority of claims state that it was the severity, or traumatic nature, of the alleged abuse that led to the memory loss.  One early appellate court decision seemed to suggest, however, that repression might not be particularly difficult if the victim is not sufficiently traumatized or impressed with the wrongfulness of the acts.[25]  The court did not draw a clear distinction between repression and forgetting, an issue that has received much attention in the years since that opinion.[26]  Some claimants state that they repressed and subsequently recovered memories of the most profound abuse, while they never forgot other abusive incidents.[27]  A number of complainants alleged that they continue to have flashbacks of new incidents even after filing their complaint.[28]

    A significant number of claimants have argued that the statute of limitations should be tolled because they were under a legal disability (due to either repression, dissociation, "denial," post traumatic stress disorder (PTSD), multiple personality disorder (MPD), or psychogenic amnesia), that prevented them from managing their affairs and/or understanding their legal rights, but most courts have rejected this argument (see below).[29]

    THE RISE AND FALL OF "REPRESSED MEMORY" LITIGATION

    When Were Repressed Memory Claims Filed?

    The epidemic of repressed memory claims emerged in the mid-1980's in a climate of national remorse for past failure to acknowledge the problem of child abuse and incest.  Statistics on the prevalence of sexual abuse varied widely, with some stating that as many as one in every four women had been victimized.  The political dynamics at the time led to an uncritical embracing of naive models of psychological constructs such as repression.  Emotion-laden "survivor" stories became a staple of television talk shows.  Popular books that oversimplified terms such as repression and dissociation and touted the curative power of unearthing memories filled shelves in the "recovery" sections of bookstores.  Many newspapers and magazines contained advertisements placed by practitioners who claimed to specialize in recovering memories of abuse or treating abuse victims.  Many who empathized with abuse victims were persuaded that memories of horrible abuse could be hidden away from consciousness for decades, only to come flooding back in adulthood.  Consequently, in the mid-1980's half the states changed their statutes of limitations for victims of childhood abuse, making it easier for women and men who believed they had recovered memories of long-ago abuse to sue the alleged "perpetrators."

    Data from the FMSF Legal Survey show that the number of new filings of repressed memory claims increased dramatically from 1989 to 1992, reached a peak during the period of 1992-1994, and declined sharply since 1994.  Even if one takes into account a time lag between the filing of a claim and its identification by the FMSF survey effort, the decline in new filings appears to be significant The filing dates of 589 repressed memory lawsuits in the U.S.  are shown in the accompanying graph.

    				   
                                  Figure 7-2
                  REPRESSED MEMORY CLAIMS by DATE of FILING
    
         1983  84  85  86  87  88  89  90  91  92  93  94  95  96  97 Jan-
                                                                      July
                                                                       98
    civil 
    suits    1  2   6   6   4   7  13  45  45  98 103 104  38  20  12   2
    
    criminal 
    suits    0  0   0   0   1   1   0   4   6  16  23  10  14   3   4   1
    
       total 1  2   6   6   5   8  13  49  51 114 126 113  52  23  16   3
    

    Graph

    Regional Differences in the Number of Claims

    Although repressed memory claims have been filed in every state, 72 percent (531/736) of the claims were filed in less than one-third of the states.  Among the factors influencing the numbers of claims filed per state are the state's population, its statute of limitations on repressed memory claims, and the judicial actions taken in response to such claims in that state's courts.  Other regional factors may be at play and constitute a topic for further research.  Some of the states with the highest percentage of lawsuits per capita, such as Washington, Massachusetts, and Minnesota, are among those that passed statutes of limitations that specifically allow for delayed filing of sexual abuse claims.

    
                                  Figure 7-3
                      REPRESSED MOMORY LAWSUITS by STATE
    
           N = 736 U.S.  filings only.  From data available July 1998
    
                   Civil         Criminal       Total        1990 Census
                   Claims         Claims                      Population
                                                             in millions
    
    California       97              6           103            29.8
    Michigan         38              8            46             9.3
    Washington       39              5            44             4.8
    Ohio             34              6            40            10.8
    Illinois         32              1            33             6.0
    Massachusetts    27              6            33            11.9
    Texas            27              6            33            17.0
    Pennsylvania     23              6            29            11.9
    Minnesota        26              0            26             4.4
    New York         22              1            23            17.9
    Florida          15              8            23             6.4
    New Jersey       19              3            22             1.5
    Wisconsin        17              4            21             4.9
    Arizona          17              3            20             3.6
    Louisiana        18              0            18             4.2
    Missouri         15              2            17             5.1
    remaining 
    states and DC   167             38           205            100
    

    Statutes of Limitations: the "Discovery Rule"

    By the early 1990's, approximately half the states had enacted a statute that specifically extended the time allowed for filing childhood sexual abuse claims.  Washington and California, two states that were among the first to change their statute of limitations, are now among the states with the largest number of filings.  Other states that also experienced a rapid increase in the number of filings after changing their statutes of limitations include: Minnesota (enacted MSA #541.073 in 1989), Wisconsin (enacted WSA #893.587 in 1989), Missouri (enacted MSA #537.046 in 1990), Illinois (enacted IRS#735.5/13-202.2 in 1991, and amended it effective Jan.  1, 1994), and New Jersey (enacted NJSA #37-1-30 in 1992).

    Significant numbers of repressed memory lawsuits have also been filed in Michigan, Ohio, Pennsylvania, Texas, and New York, states that do not have statutes specifically extending the time for filing claims based on childhood abuse but that do allow a claimant to allege "delayed discovery" of assault and battery or a similar cause of action.  The statutes that extended the time for filing childhood sexual abuse lawsuits that were enacted between 1989 and 1994, which the Texas Supreme Court has called "first generation" statutes, generally allow claimants to file within 2-4 years after they discover that they have a cause of action.  All but five of those statutes also contain a requirement that the plaintiff has acted with diligence or due care.  Some states enacted statutes, known as statutes of repose, that extended the time for filing for only a limited, period of time after the minor reached majority.  In applying all of these statutes, courts have generally held that the statute of limitations begins to run when the plaintiff recovers her first memory.

    Statutes, and amendments to existing statutes, enacted after 1994 and 1995 (the "second generation" statutes) are more complex and give greater weight to avoiding the danger of possibly fraudulent claims. For example, California's amendment (CCC S 340.1(d)(e), effective in 1995) to the discovery rule for childhood sexual abuse that it passed in 1986 requires that "certificates of merit" be executed by the plaintiff's attorney and a licensed mental health practitioner.  The attorney must state that he or she has reviewed the facts of the case with at least one licensed mental health practitioner who is not a party to the litigation and has concluded that there is reasonable and meritorious cause to file the action.  Colorado's statute (CRS 13-80-103.7), amended in 1993, requires that persons who claim psychological inability to acknowledge the abuse must prove both the disability and the occurrence of the abuse.  The New Mexico statute (NMS 5 37-1-30), effective July 1993, states that the claim must be corroborated by competent medical or psychological testimony.  The Oklahoma statute (12 Okla.  St.  595-6), effective September 1994, requires objective, verifiable evidence both that the victim had psychologically repressed the memory of the facts upon which that claim was predicated and that the alleged sexual abuse actually occurred.  According to the Texas Supreme Court, "The second generation of statutes shows that legislatures do not uniformly see simple adoption of the discovery rule in such cases as viable.  Legislatures have begun to strike a more complex balance between the risk of cutting off meritorious claims and the dangers of fraudulent claims." [30] No state has enacted legislation to extend the time available to file a repressed memory claim since early in 1995.

    Statutes of Limitations: The "Disability" Exception

    In many states, a statute of limitations may be tolled if the claimant was unable to file earlier because of a disability or because the individual was of unsound mind." [31]  Plaintiffs in some repressed memory cases have claimed that past abuse led to psychological problems, such as memory repression, dissociation, psychogenic amnesia, depression, PTSD, or MPD, that rendered them unable to assert their legal rights.  Appellate courts in 30 states have considered whether these conditions constitute the kind of legal disability that is contemplated by these statutes.  Most have held that repression, per se, does not qualify as a statutory disability.

    OUTCOMES OF "REPRESSED MEMORY" CASES

    Outcomes of Civil "Repressed Memory" Cases

    Civil lawsuits represent 86 percent (633/736) of all repressed memory cases in the United States according to our survey.  Of the civil suits that have been resolved, approximately 13 percent (47/351) have gone to trial.  Early in the history of repressed memory litigation, the outcomes were very different.  In 1992, for example, 41 percent (12/29) of the civil repressed memory cases resolved that year went to trial, with almost twice as many ending in a verdict in favor of the plaintiff as ended in a verdict for the defendant.[32]

    A decreasing proportion of civil repressed memory cases have gone to trial in recent years.  Since the beginning of 1995, only 8 percent (14/177) of civil cases have been resolved at trial (10 in favor of plaintiffs and 4 in favor of defendants).  During that same period, 70 percent (124/177) of the repressed memory lawsuits were either dropped by the complainant or dismissed by the court.  Less than one-fourth were settled out of court.  In some cases, the complainant subsequently retracted the allegations.  Some cases were dropped after a motion was filed to restrict the admissibility of repressed memory testimony, but before the court ruled on the motion.  Many cases that were filed years ago are still open.  In a significant number of these cases, defense attorneys have told the FMSF, the plaintiffs have taken no action to pursue their claims in recent years.

    
                                  Figure 7-4
             OUTCOMES of CIVIL REPRESSED MEMORY LAWSUITS by YEAR
            N = 351.  U.S.  filings only Data available July, k1998
     (For an additional 282 cases, either the status is still pending, or
               the coutcome or date of resolution is unknown.)
    
          for          for     hung   dismissed  dropped   settled   total
        plaintiff   defendent  jury      by         by      out of
                                        court   plaintiff    court
    prior 
    to 1990     1       0        0         9        0         0        10 
    1990-91     3       1        0        11        4         0        19
    1992-93    11       6        0        18       11        23        69
    1994-95    11       7        1        66       27        47       159
    1996-97     6       0        0        47       17        13        83
    Jan/July
    1998        0       0        0        11        0         0        11
    
    Total      32      14        1        162      59        83       351
    

    Graph

    Outcomes of Criminal "Repressed Memory" Cases

    The FMSF Legal Survey contains records of 103 repressed memory criminal cases that were filed in 25 states.  As is true of the civil repressed memory lawsuits, most criminal charges based on "recovered memories" were filed during 1992 and 1993.  Overall, trends in outcomes of criminal cases are similar to those seen in the civil cases.  The majority of criminal repressed memory cases on record were resolved during 1992-1994.  Prior to 1994, the majority of cases went to trial; very few cases were dismissed.  This tendency changed abruptly in mid-1994, after which some of such criminal charges were either withdrawn by the state or dismissed by the court, either on the merits or because the charges were filed after the statute of limitations had expired.

    
                                  Figure 7-5
                 OUTCOMES of CRIMINAL REPRESSED MEMORY CASES
           N = 63, U.S.  filings only.  From Data available Jul, 1998
       (for an additional 40 cases, either the stutus si still pending,
              or the outcome or date of resolution is unknown.)
    
            con-  pled    entered plea   hung  acquit-  dis-  with-  total
           victed guilty  to misdemenor  jury   ted    missed drawn
                           charge
    
    prior 
    to 1990    1      1***    0           0       0      0      0       2
    1990-91    0      0       0           0       1      0      0       1
    1992-93    5      0       5           1       3      2*     6      22
    1994-95    2**    2       3           0       6      6      6*     25
    1996-97    3**    0       1           1       2      2      4      13
    Jan/July  
    1998       1****  0       0           0       0      1      0       2
     
    Total     12      3       9           2      12     11     16      65
    
    *Complainant retracted the claims.
    **One of these convictions was overturned on appeal and a new trial
      ordered.
    ***The defendant, Paul Ingram, in this widely publicized case pled
      guilty after he underwent what many have described as suggestive
      questioning.   Ingram is still incarceerated and his efforts to
      reverse his plea have been turned down.  This case is discussed
      below.
    ****State of Texas V.  Kos, Criminal Dist.  Ct.  #1, Dallas Co., Tex.,
      No.  F-97-3222-32, April 1, 1998.  Former priest found guilty of 7
      counts of aggravated sexual assault of 4 former altar boys.  Some
      accusers claimed alcohol and drugs given by the defendant hurt their
      memories; others claimed they "dissociated" from the most injurious
      of the alleged abuse while it was occurring.
    

    Graph

    FMSF records indicate that 6 criminal repressed memory cases went to trial in the United States in 1993.  Of those, 5 ended in a conviction and 1 ended in a hung jury.  There were no acquittals.  A few years later, during the two-year period, 1995-1996, 7 criminal cases went to trial.  Two defendants were convicted and the remaining five were acquitted.  The proportion of criminal cases that were withdrawn or dismissed increased significantly.

    In a 1989 criminal case, the defendant, Paul Ingram, received a 20-year prison sentence after he pled guilty to the sexual and ritual abuse of two of his daughters.[33]  The sisters asserted that years earlier they had been repeatedly raped and that at least 25 human babies, some born to them, had been sacrificed in rituals in the Ingram's back yard.  Police dug up the Ingram's yard, but failed to locate the burial grounds for the alleged ritual sacrifices.  Medical examination of the daughters failed to yield any evidence of sexual activity or of childbearing in either one.  Yet Paul Ingram, the father of four children, a deputy sheriff, and a member of a born-again Pentecostal church, agreed that if his daughters said he had done these things, it must be true.  Dr. Richard Ofshe, a social psychologist, interviewed Mr.  Ingram at length and was able to show how he had been persuaded, by the use of long interrogations using visualization exercises and suggestion, to accept that he must have done the things he couldn't remember doing.[34]  Dr. Ofshe performed an experiment using the same visualization techniques and got Mr. Ingram to confess to an incident that even the accusing daughters agreed had never happened.  Mr. Ingram has since tried without success to withdraw his guilty plea and remains in prison.

    Sentences in criminal repressed memory cases have ranged from 2 life terms plus 25 years, following a 1993 Florida conviction, to one year of house arrest on an assault and battery charge, in a 1993 Maryland case (after the other sexual abuse charges were dropped when a medical exam showed one of the claimants to be a virgin).

    Because the burden of proof in a criminal case is higher than in a civil case (beyond a reasonable doubt, as opposed to a preponderance of the evidence), and because a criminal defendant who is found guilty may face many years in prison, one might expect the state to evaluate a claim carefully before bringing an indictment.  In a significant number of criminal repressed memory cases, however, the state proceeded against the defendant only to discover later that there was evidence that clearly contradicted the claim,[35] or that the allegations were developed under hypnosis or other suggestive circumstances.[36]  Several cases were withdrawn after the complainant's therapy records were reviewed or following the granting of a motion for an independent psychological evaluation of the complainant.  Some criminal charges were withdrawn when the complainant retracted her claims.[37]

    Criminal charges in a New Hampshire case were withdrawn after that state's Supreme Court ruled that repressed memory testimony is insufficiently reliable to be admitted at trial.[38]

    Murder Charges Based on Repressed Memory Claims

    Murder charges have been brought in a number of cases where an individual came forward claiming to have only recently recovered memories of witnessing a murder years earlier.  A review of these cases demonstrates that while the "witness" may have explained his delay in coming forward as due to repression, the facts often suggested other compelling reasons why the individual may not have reported the alleged crime earlier.  In one case, for example, the witness testified that he had repressed memories of what he had witnessed but also stated he did not come forward at the time because he was afraid the police might blame him for the murder because he was often in trouble with the law.  [39]

    In several murder cases, the defense presented evidence that the witness who claimed that he had recovered repressed memories had been hypnotized shortly before coming forward.  In jurisdictions that prohibit the use of posthypnotic testimony, this may result in withdrawal or dismissal of the murder charges.[40]

    George Franklin, whose case was heavily publicized, spent almost 7 years in prison for the murder of his daughter's childhood friend before his conviction was overturned in l995.[41]  Franklin's daughter, Eileen Franklin Lipsker, had testified against him at trial, drawing on supposedly recovered repressed memories of the day of the killing 20 years earlier.  Many of the details she claimed to have witnessed had been published in the media years earlier, but Franklin's lawyers had not been permitted to introduce that fact into evidence at the trial.  The exclusion of this evidence and the lack of any physical evidence implicating Franklin in the murder were among the grounds for reversal of Franklin's conviction.  A year after Franklin's conviction was overturned, as prosecutors planned to retry him, it was disclosed that Eileen had been hypnotized by a therapist before the first trial. Posthypnotic testimony is barred in California because it is seen as unreliable.[42]  In July 1996, the prosecutors announced that they would not retry Franklin.

    George Franklin has sued the county prosecutors and the state's experts associated with his murder trial for wrongful prosecution and violation of his civil rights.  Franklin claims that sheriff's investigators and state prosecutors conspired to suppress the fact that his daughter underwent hypnosis before she recovered the memory of her playmate's murder 20 years earlier.  In 1998, a U.S. District Court refused to dismiss the wrongful prosecution charges and agreed that certain of the state agents' actions are not protected by absolute immunity.[43]  One of the issues that will be addressed at the trial of this case is whether the state has any responsibility in such cases to determine whether the complainant underwent hypnosis, and if so, to inform the court.

    APPELLATE REVIEW OF REPRESSED MEMORY CLAIMS

    When Did Delay-filed Claims Reach the Appellate Courts?

    The Washington State Supreme Court was the first state supreme court to consider a repressed memory claim, in Tyson v.  Tyson, in 1986.  Most of the troublesome evidentiary issues presented in Tyson continue to lie at the heart of repressed memory litigation.  Indeed, courts continue to cite Tyson today, despite the fact that the decision was superseded by a later-enacted Washington statute (RCW # 4.16.340, effective 1988).

    The Washington Supreme Court expressed concern about the length of time that had elapsed since the alleged abusive events and declined to apply the discovery rule in the absence of objective evidence that the alleged abuse had in fact occurred.  In other categories of cases where the discovery rule is applied, the incident that gave rise to the litigation (for example, that a sponge was left inside a patient who underwent surgery, or that an individual was exposed to a toxin) can be objectively verified.  The court's task in those cases is to determine whether there is evidence that the incident in fact caused the subsequent injury.  In repressed memory cases, however, as the Tyson court pointed out, there is usually no means of independently verifying the plaintiff's allegations, and proof of the event, the injury, and the discovery of the event and the injury all rest on the complainant's subjective statements.

    The Tyson court noted that there was no proof that the memory recovery process is reliable; indeed, there were studies that showed the opposite is true.  The court said the testimony of treating psychologists or psychiatrists would not alter the subjectivity of plaintiff's claim and warned that there is a great potential for spurious claims in repressed memory cases and an unreasonably low probability of determining the truth.  Even today, after years of intense debate, numerous studies, and hundreds of lawsuits, these same problems remain.  For these reasons, a significant number of appellate courts have concluded either that the statute of limitations cannot be extended for such claims or that testimony based on recovered repressed memory is inadmissible.

    As noted above, new filings of repressed memory claims peaked during 1993-1994.  After a 2-3 year delay, many of those lawsuits began to reach the appellate courts.  By October of 1998, the FMSF Legal Survey had identified 305 delay-filed cases that reached the appellate courts since the 1986 Tyson decision.  Over half of the appellate decisions in these cases were rendered in the three-year period from mid-1995 to mid-1998.

    How Have Appellate Courts Decided "Delay-filed" Claims?

    Most appellate courts have affirrned trial court decisions to dismiss delay-filed cases on motions for summary judgment based on the statute of limitations issue even though the party who moves for summary judgment has a heavy burden of proof: he must convince the court that there is no genuine issue of material fact to be decided.  In deciding this question, the court is required to draw all reasonable inferences in favor of the party opposing the motion.  Over two-thirds (102/145) of those dismissals were made after an appellate court determined that the facts of the particular case before it would not justify extending the statute of limitations.  Approximately half of the remaining cases were remanded back to the trial court with instruction to determine, using objective standards, the date of discovery or the status of plaintiff's mental state before issuing a new decision on the summary judgment motion.[44,45]

    
                                  Figure 7-6
                           U.S.  APPELLATE DECISIONS
               Delay-Filed Cases by Year of Appellate Decision
                      N (all delayed file cases) = 305;
              n (subset of repressed memory claims only) = 167;
                      From data available October, 1998
    
                                1986 87 88 89 90 91 92 93 94 95 96 97 Jan-
                                                                       Oct
                                                                       98
    
        repressed memory claim     2  2  4  5  6  8  6 15 21 29 30 23  16
    not repressed memory claim     0  2  3  0  3  5  5 13 13 26 19 37  12
                          total    2  4  7  5  9 13 11 28 34 51 49 60  28
    

    Graph

    Figures 7-7 and 7-8 show that most appellate courts that considered a statute of limitations issue in either a delay-filed or a repressed memory case either affirmed the trial court's dismissal of the claim or reversed a trial court ruling that had denied a motion to dismiss or a motion for summary judgment.  For delay-filed cases, the percentage is over 70 percent (171/242) and for the subset of repressed memory cases the percentage is similar.

    
    
                                  Figure 7-7
                   OUTCOMES of DELAY-FILED APPELLATE CASES
                   N = 305, From data avilable October 1998
    
                                  1986 87 88 89 90 91 92 93 94 95 96 97 98
    affirmed dismissal,
      reversed denial of
      dismissal by trial court       1  3  4  3  2 11  5 13 23 29 29 32 16
    remanded for further             
                   proceedings       0  1  3  1  7  2  5 10  7 15  7 10  3
    other                            1  0  0  1  0  0  1  5  4 11 13 18  9
                          total      2  4  7  5  9 13 11 28 44 55 49 60 25
    

    Appellate rulings on questions other than the application of a statute of limitations have recently increased in number.  Among the issues that have been considered are the reliability of the proposed repressed memory testimony, the exclusion of posthypnotic testimony, a defendant's right to access to the plaintiff's psychotherapy records, the liability of insurance companies for these claims, and the liability of agencies or individuals that employed or supervised the person accused of committing the abuse (for example, a diocese's liability, under the principle of respondeat superior, for a priest found to have committed abuse).

    
                                  Figure 7-8
                 OUTCOMES of REPRESSED MEMORY APPELLATE CASES
                                   N = 167
       (Repressed memory claims are a subset of the delay-filed cases)
                       From data available October 1998
    
                                  1986 87 88 89 90 91 92 93 94 95 96 97 98
    affirmed dismissal, 
      reversed denial of
      dismissal by trial court       1  2  2  3  1  8  2  6 15 14 21 12  9
    remanded for further             
                   proceedings       0  0  2  1  5  0  4  6  4  9  4  6  3
    other                            1  0  0  1  0  0  0  3  2  6  5  5  4
                          total      2  2  4  5  6  8  6 15 21 29 30 23 16
    

    Application of the Discovery Rule

    The issue that most frequently faces appellate courts in repressed memory cases is whether to apply the discovery rule.  Nearly 70 percent (96/140) of appellate courts that were asked to decide that question either affirmed dismissal or reversed a lower court ruling that denied a motion for summary judgment or for dismissal of the case.

    In nine jurisdictions, the highest court to consider the question of whether to apply the discovery rule to repressed memory claims has refused to do so.  The courts that rendered these decisions include the state supreme courts of Maryland, Michigan, Minnesota, Pennsylvania, South Dakota, West Virginia and Wisconsin, and intermediate appellate courts in Florida and New York, two states whose supreme courts have not yet ruled on the issue.[46, 47]

    The Maryland Court of Appeals (the state's highest court) noted, in Doe v.  Maskell that "[T]he studies purporting to validate repression theory are justly criticized as unscientific, unrepresentative and biased." [48] The Court determined, based on expert testimony presented at a lengthy evidentiary hearing before the trial court, that science had not progressed to the point that "repression" could be distinguished from simple "forgetting," and that the two should therefore be treated the same under the law, i.e., neither should activate the discovery rule.  [49]

    In seven other jurisdictions, the highest court to consider the question declined to apply the discovery rule to the specific repressed memory allegations presented and declined to either adopt or reject application of the discovery rule to repressed memory claims in general.  [50]  In 1997, the Supreme Court of Maine declined to adopt a judicially crafted discovery rule in repressed memory cases but did not close the door to a future reexamination of the question.[51]  The Oklahoma Supreme Court held in 1992 that the discovery rule did not apply to the specific repressed memory claim before it and declined to formulate any specific rule governing the application (or nonapplication) of the discovery rule to sexual abuse cases.[52]  Soon after, the Oklahoma legislature enacted a statute mandating that actions for child sexual abuse be supported by objective, verifiable evidence of both the abuse and the suppression of memory of abuse (12 Okla. St. # 95-6, effective September 1994).

    Some courts have held that if a plaintiff's cause of action was time-barred before a new statute of limitations was passed that would have allowed the action to be brought, the new statute of limitations will not be applied retroactively to revive the plaintiff's claim.[53]  Several courts have held that once the statute of limitations starts to run, no later-commencing disability will cause it to stop running.[54]

    Repressed memory claims present special challenges when a court must determine the date on which plaintiff discovered the abuse.  Some plaintiffs describe the process of discovery as lasting several months, or even years.  Some have testified that they feel additional abusive acts must have happened even though they cannot remember them and cannot name them in their complaint.  Several have testified that new images of abuse continued to emerge after depositions were taken, or even during the trial.  A number of courts have rejected the argument that the limitations period begins anew with each emerging memory.  The Iowa Supreme Court said, in Woodroffe v. Hasenclever, 540 N.W.  2d 45, 47 (Iowa 1995), that to allow such a "rolling statute of limitations" would, in effect, eliminate the statute of limitations altogether.

    In general, courts will apply the discovery rule where there is objective proof of both the event and the injury alleged.[55]  In repressed memory cases, however, such proof is often lacking.  Many courts have questioned whether expert testimony can overcome the subjective nature of a repressed memory claim or create a question of fact for a jury to hear.[56, 57]  A number of courts, including the 4th Circuit Court of Appeals, have cautioned that application of the objective person standard is especially important where the potential for serious harm is great.  As one Justice noted:

    "[a]llowing such lawsuits to proceed absent any evidence other than the alleged victim's testimony based wholly upon newly recovered memories -- the reliability of which is yet to be proven -- can, in light of the stigma associated with even the accusation that an adult has sexually abused a child, be disastrous." (Roe v.  Doe, 28 F.3d 404, 409 (4th Cir.  1994), Hall, J., concurring.)

    The majority of jurisdictions have applied an objective reasonable person standard to the discovery question.[58]  To do otherwise, most courts agree would be contrary to public policy and would undermine the protection intended by the statute of limitations.  Some courts have also recognized the potential for fraudulent claims in these cases.[59]  Several courts have commented on the hazards of allowing the emotional content of the allegations to influence a decision on the statute of limitations rather than relying on sound judicial policy.[60]

    Recent appellate decisions in Arizona and California, in which the courts applied the discovery rule to the date plaintiff said she discovered the causal connection between the alleged abuse and the resulting psychological injury represent exceptions to the objective approach.[61]  Despite these appellate rulings, trial courts in both states have declared repressed memory testimony to be unreliable and therefore inadmissible based on their findings at an evidentiary hearing.[62]

    A growing number of courts have concluded that the potential unreliability of some recovered memories requires courts to employ reasonable safeguards to ensure the proper use of such memories.[63]  The Texas Supreme Court ruled that in order to apply the discovery rule, the wrongful event and injury must be objectively verifiable. After reviewing both the case law applying the discovery rule and the scientific literature on memory and repression, the Court concluded that the requirement of objective verification could not be satisfied by expert testimony on a subject on which there is no settled scientific view.[64]

    The Utah Supreme Court placed the the burden of proving repression on the plaintiff because it was concerned about both the reliability of memory in general for events that occurred long ago and the difficulty of defending against claims of revived memories of sexual abuse.[65]

    The Rhode Island Supreme Court held that a court must determine the reliability of the repressed memory theory before extending the statute of limitations.[66]

    If the trial court finds that the theory of repression is scientifically valid, it must then determine whether the evidence shows that plaintiff actually repressed the memory or was of unsound mind during the period the memory was repressed.  Soon after this ruling, the Rhode Island Supreme Court overturned a criminal conviction based on recovered repressed memories of sexual abuse, holding that the trial court had committed reversible error in failing to hold a preliminary hearing to determine whether the accuser's flashbacks of abuse were reliable.[67]

    The Court was not convinced that cross-examination can effectively expose any unreliable elements or assumptions of expert testimony and remarked that in such cases "... the expert's conclusions are as impenetrable as they are unverifiable.[68]

    The Reliability of "Repressed Memory" Testimony

    A growing number of courts have held, after reviewing the available evidence, that the theory of "repression" is not yet generally accepted and that there is no reliable method at present of determining the accuracy of a repressed memory claim.  Many of these courts have noted the lack of consensus and scientific support for the theory of repressed memory, even in recent peer reviewed articles on the subject.[69]

    Trends in this area of the law have paralleled a general trend towards increasing reliance on scientific expert testimony in deciding certain questions of liability.  (See Introduction to this volume by Sheila Taub, J.D.) A growing number of courts have held pretrial hearings to determine the admissibility of testimony of either expert or lay witnesses on the phenomenon of repression.  Of the ten trial courts to consider this question to date, all but three concluded that the repressed memory testimony in question had not been demonstrated to be reliable and was therefore inadmissible.[70]  One of the three rulings that admitted repressed memory testimony was overturned by the New Hampshire Supreme Court, which held that the proponent of testimony comprised of recovered memories must demonstrate that the testimony is reliable and that the trial court had improperly shifted the burden of proof to the party opposing its admissibility.[71]  A second case, Isely v. Capuchin Province, 877 F.Supp. 1055 (E.D. Mich. 1995), which considered motions to restrict repressed memory testimony after the trial had begun, is generally believed to have applied the scientific standard of admissibility incorrectly.[72]  The third ruling, Shahzade v. Gregory, 923 F.Supp. 286 (D.Mass 1996), overly restricted the "relevant scientific community" to include only those therapists who specialize in trauma, ignoring memory researchers and professional organizations that have contributed to the scientific debate over the validity of recovered memories.

    A California Court of Appeal upheld a trial court's ruling that precluded the plaintiff from testifying to any recovered repressed memories, saying that the California standard for admissibility of scientific evidence had not been met.[73]

    In 1997, the New Hampshire Supreme Court, after carefully analyzing the underlying science, held that recovered repressed memories had not yet been established as sufficiently reliable to be admissible.[74]  The Court affirmed a Superior Court ruling that followed a two-week pretrial admissibility hearing during which the trial court heard testimony from seven professionals and the two complainants.  Over the State's objection, Superior Court Justice J.  Groff held that the prosecution would bear the burden of demonstrating that the phenomena of memory repression and recovery are reliable and have gained general acceptance in the psychological community.  Following the hearing, the Superior Court held that the victims' testimomy based on their recovered memories of the alleged assaults would not be admitted because neither the phenomenon of memory repression nor the techniques used to recover repressed memories had gained general acceptance in the field of psychology.  The Court stated that "[T]estimony that is dependent upon recovery of repressed memory through therapy cannot be logically dissociated from the underlying scientific concept or technique of recovery." [75]

    The New Hampshire Supreme Court affirmed, holding that the State's proposed expert testimony did not rise to a threshold level of reliability.  The Court held that the lay testimony (of the complainants, describing their repressed memories) was inadmissible as well because the reliability of that testimony could not be separated from the validity of the phenomenon of repression.

    The Court, drawing on comprehensive literature reviews by Drs. Harrison Pope and James Hudson, concluded that the studies cited in support of the theory of repression contained serious methodological problems that negate their conclusions.[76]  The Court specified a stringent set of factors that would have to be met before testimony based on recovered repressed memories could be found reliable enough to be admissible, including the presence or absence of objective, verifiable evidence and the circumstances of the retrieval process.

    Several appellate courts have held that a witness may not present her story based on recovered memories unless that testimony is accompanied by expert testimony.[77]  Other appellate courts have ruled that the reliability and admissibility of the expert testimony is an issue that must be resolved at trial.[78]  Many courts have determined, however, that the theoretical basis of the proposed expert opinion on recovered repressed memory renders it inadmissible.[79]

    Application of the Disability Exception

    Historically, courts have permitted plaintiffs who alleged memory repression to employ the disability exception to the running of a statute of limitations only under very limited circumstances, such as where the plaintiff suffered from a legally recognized mental incompetency or insanity that rendered the plaintiff unable to manage her business affairs or to comprehend her legal rights.  Nearly every one of the 91 appellate courts to consider the applicability of the disability exception to recovered memory cases has rejected it.  The primary question, in cases where this issue was considered was whether the alleged psychological condition reached the level of mental disability or incompetence sufficient to utilize this exception.  A few appellate courts remanded the matter back to the trial court for a determination of whether the plaintiff could demonstrate that she was so disabled as to be unable to manage her business affairs at the time in question.  As a general rule, the burden falls to the plaintiff to show legal disability sufficient to toll the statute of limitations, especially where plaintiff's claim of disability is challenged by defendant.[80]

    Several courts have concluded that to permit unsupported allegations of memory repression to constitute legal disability or to allow a plaintiff to determine subjectively the point at which his or her emotional distress became disabling would have unacceptable ramifications.[81].

    Some courts have held that neither an expert's affidavit "based on mere conjecture" nor plaintiff's "self-diagnosis" are sufficient to meet that burden of proof, especially when the psychologically disabling symptoms are alleged to have developed years earlier.[82]  In this regard, claims of having suffered from PTSD, depression, guilt, anxiety and other forms of emotional distress and of being incapable, as a result, of managing one's own affairs have generally been found insufficient to toll the statute of limitations.[83]  Nor has a claim of psychological trauma, repression, suppression or denial, absent evidence of overall disability, generally been found sufficient to apply relevant state disability clauses.[84]

    MALPRACTICE LAWSUITS

    Third Party Suits Brought By Families Who Say They Have Been Falsely Accused

    Records show that suggestive therapy practices are involved in the development of most repressed memory claims.  What recourse does an accused person have when he believes that false allegations are the result of suggestive intervention by a mental health professional? The FMSF is currently tracking over 150 malpractice claims against therapists in which this issue has been raised.  While most of these third-party lawsuits allege malpractice or negligence, some allege other legal causes of action, including: defamation (libel or slander), intentional or negligent infliction of emotional distress, nuisance, breach of contract, abuse of process, invasion of privacy, and fraudulent misrepresentation.

    Recovered memory therapy creates a special relationship between the therapist and the accused third party, who not only finds himself accused of a heinous crime, but may also face public denunciation, inside or outside of a courtroom, often undertaken for its supposed "therapeutic" value.  The patient is typically encouraged to break off all communication with the accused third party, thus making it difficult, if not impossible, for the accused to address the true facts.  The frequency with which therapists working in this area use certain suggestive techniques and recommend confronting the accused, "detaching" from family members and others who disbelieve the accusations, and suing the "perpetrator" has led many professional organizations, ethics panels, and clinicians to recommend new safeguards and standards of practice in therapeutic work with alleged trauma victims.[85]  These groups agree that therapists who work in this sensitive area should have special training and knowledge and should take care to avoid the inappropriate use of leading questions, hypnosis, narcoanalysis, or other memory enhancement techniques directed at the production of hypothesized hidden or lost material. They also caution therapists that recovered memories, however emotionally intense and significant to the individual, do not necessarily reflect factual events and they encourage therapists to discuss this fact with their patients, especially if the patient intends to take action outside the therapeutic situation.  Following these prudent safeguards should not make the therapy less effective or impose too great a burden on the therapist.

    Clearly, a false allegation of criminal sexual molestation will directly and foreseeably endanger the accused person's reputation and cause him to suffer serious injury and damage.  Given the potentially grave injury to a falsely accused individual, does the therapist have a duty to that person to avoid the use of suggestive techniques known to create false memories, to consider available information that contradicts the developing memories, and to avoid accepting the resulting images as true without external corroboration? Should the therapist who fails to do these things be held liable if a patient acts on false memories by filing civil or criminal charges? Should the therapist be held accountable to the accused if she "validates" allegations she knows to be of questionable truth to others or in court? These are among the questions raised in third-party suits.  At the time of this writing, this area of law is still in its infancy. Nearly half of the third-party cases identified by the FMSF have not yet been resolved.  In at least seven malpractice cases that are currently on appeal, the issue of whether a mental health professional owes a duty to the third party rests squarely before the court.  The courts are expected to consider whether the foreseeability of the harm to the accused and the fact that the accused person was directly injured by the allegations that developed during therapy are sufficient to generate a duty.  The courts will no doubt also consider such public policy issues as the need to balance the rights of abuse victims to seek legal redress with the rights of citizens to be protected from false criminal charges.

    As of September 1998, the FMSF Legal Survey had identified 152 malpractice claims brought by a third party against a mental health care provider.  Of these, 56 were brought by the parents of adult patients who, the parents allege, were led to believe, through negligent therapy practices, that they had been abused as children. The remaining 96 lawsuits were brought by accused parents of minor children.  In many of these lawsuits, the parent claims that the child was led, through suggestive interview techniques, to make false allegations that resulted in criminal charges against the parent.  In addition to these third-party suits, the FMSF Legal Survey contains records of over 50 related actions taken by the accused person.  These include wrongful death lawsuits brought by accused family members after an adult child committed suicide while under the care of a therapist providing treatment for recovered memories, defamation actions against the accuser and/or her therapists, and other miscellaneous lawsuits.

    Of the few third-party lawsuits that have gone to trial, nearly three-quarters ended in a jury verdict in favor of the injured third party.  Some higher courts have held that under certain circumstances a therapist may owe a duty to a third party.[86]  Other courts have dismissed these claims, holding that no duty is owed a third party or that the third-party claim was time-barred.[87 88]  A number of third-party claims filed by an accused parent of a minor child were dismissed when the court held that the therapist's actions were protected from liability by statutes that mandate the reporting of suspected child abuse.  Other appellate courts have allowed such cases to go forward, holding that defendants' actions went beyond those protected by reporting in good faith.[89]  These courts rejected a policy of blanket immunity for all therapists' actions and held that negligent or reckless actions that are independent of the reporting are subject to the same standards that apply to other members of society.  In the first third-party repressed memory lawsuit to go to trial, Gary Ramona successfully sued his daughter's therapists for implanting false memories of sexual abuse.  (See discussion of Holly Ramona case, supra.) Following his daughter's accusations of sexual abuse, Mr. Ramona had suffered the breakdown of his marriage and family and the loss of his job.  He also faced civil charges of child sexual abuse.  The trial court recognized that, as a matter of public policy, the defendant therapists owed a legal duty of care not only to the patient but also to the patient's immediate family.  In May 1994, the jury awarded Mr. Ramona a half million dollars and specifically found that the defendants were negligent in providing health care to Holly Ramona and had implanted or reinforced false memories that her father had molested her as a child.[90]

    A third-party claim against a Pennsylvania psychiatrist led ultimately to a jury award in 1994 of $272,232 in favor of the Althaus family against their daughter's therapist, Judith Cohen.  The parents had claimed that Dr. Cohen, a psychiatrist, had encouraged their daughter to believe that she had been the victim of criminal acts.  They also charged that Dr. Cohen had failed to challenge bizarre beliefs that their daughter developed as a result of dreams and of being in a trance-like state, and had failed to consider information that contradicted those developing beliefs.  In April 1998, a Pennsylvania appellate court upheld the jury award and held that a duty was owed to the parents as well as the daughter.[91]  The court noted that the psychiatrist had treated the daughter specifically for parental sexual abuse, that the parents were directly affected by the psychiatrist's negligent misdiagnosis and treatment when the daughter filed criminal charges against them, and that it was foreseeable that the parents would be harmed by the psychiatrist's negligence.  The court said that the psychiatrist knew that at least some of the girl's allegations were untrue, but she nevertheless "validated... unwittingly false testimony, during and before the criminal proceedings.  "Dr. Cohen became deeply enmeshed in the legal proceedings against the Althauses and, in doing so, placed herself in a role that extended well beyond the therapeutic treatment context," the majority wrote.  "However, because she chose to take this active role, the Althauses, as alleged child abusers, had a reasonable expectation that Dr. Cohen's diagnosis of [their daughter] affecting them as it did, would be carefully made and would not be reached in a negligent manner.[92]  The appellate decision has been appealed to the Pennsylvania Supreme Court.

    Attorneys who defend these third-party claims often argue that any extension of a therapist's duty beyond the patient to a third party would be unreasonably burdensome because it would cause therapists to be overly concerned about the possible impact on some third party of their interactions with their patients.  In addition, they argue that imposing a duty to a third party would have a chilling effect on the treatment and reporting of child abuse.  The Althaus court disagreed, saying: "While we recognize that great social utility arises from allowing therapists to diagnose sexual abuse, no social utility can be derived from shielding therapists who make cavalier diagnoses that have profound detrimental effects on the lives of the accused and their family."[93]  Other courts have been persuaded by these arguments, however.  The Illinois Supreme Court, in June 1998, dismissed a third-party malpractice claim brought by an accused father against his adult daughter's psychologist.[94]  The majority expressed concern that to allow the action would improperly enlarge a therapist's duty of care and would be inconsistent with the duty of confidentiality to the patient.  A strongly worded dissent noted that the plaintiff was a relative of the patient who accused him of sexual abuse and that the therapist had specifically arranged to have him join the patient's therapy sessions, which he did with the patient's consent.  Under these circumstances, the dissent felt, divulging the patients records would not compromise confidentiality.  The dissent foresaw no adverse consequences from placing a duty on the therapist in a case such as this, where the damage to the accused father was foreseeable, the likelihood of injury was great, and the burden of guarding against that injury was slight.

    One common hurdle that faces plaintiffs in third-party lawsuits is the problem of gaining access to the patient's therapy records.  In some cases, therapy records were disclosed as part of a lawsuit filed by the patient against the person(s) she accused of abuse.  A few third-party claims have been filed as cross-complaints; if the original repressed memory lawsuit was dropped, the cross-complaint was generally dropped or dismissed at the same time.

    In a case filed in Wisconsin, the parents of a young woman discovered the role that therapy had played in the development of their adult daughter's false allegations of sexual abuse only after the daughter died and the mother, who became administrator of the daughter's estate, was able to obtain the daughter's therapy records.  In March 1998, a Wisconsin appeals court refused to dismiss the parents' claim against the therapist, saying that the injury was both direct and foreseeable and that to allow recovery by a third party for psychological harm due to negligence would not put too great a burden on the therapist.[95]  The defendant therapist argued that she had no duty to determine the truth of what her patient was saying, but the court held that the therapist did have a duty to ensure that her therapy did not cause foreseeable harm to others.  This ruling has been appealed to the Wisconsin Supreme Court.

    Malpractice Suits Against Therapists Brought by Their Former Patients

    The FMS Foundation has also collected information on malpractice lawsuits filed by former patients who claim that suggestive techniques used by their mental health care providers led to the development of false memories.  Court records from these cases show that serious, long-lasting injury resulted from improper therapy that led patients to believe, erroneously, in a horrifying personal history of sexual abuse.  The complaints in these cases detail a potent combination of therapist suggestion, exposure to "survivor" books and films, use of questionable techniques such as hypnosis and guided imagery, isolation from family and friends, and a heavy reliance on medications, all of which may work together to increase the risk of suggestibility an already vulnerable patient.

    The facts of these cases seem to fall into a relatively uniform pattern of events.  Typically, the individual seeks help for a relatively benign condition such as depression, an eating disorder, or difficulty in a relationship.  Often the individual has no memory of any sexual abuse in her past, although in some cases she has a memory of isolated abusive incidents.  The therapist may voice suspicions that the individual's symptoms suggest a history of child sexual abuse. Through the use of symptom "checklists," nonpathological aspects of a normal personality may become distorted and be seen as symptoms of something deeper.  The therapist may tell the patient that her symptoms are too severe to be attributed only to the patient's current life difficulties, and that the patient should explore her past.  After being led to imagine horrifying acts of rape and incest, the patient, not unexpectedly, is overcome by feelings of revulsion and degradation.  Many patients are encouraged to view these feelings as a response to real memories of actual events -- not just imaginings.  Any doubts the patient may voice are often treated as an indication that the patient is "in denial" and is not yet ready to accept the images as truth or is still under the control of the alleged abuser.

    If, in addition, the therapy includes sessions of hypnosis and hypnosis-like procedures, both of which are known to increase a person's susceptibility to suggestion, the stage is set for the development of false memories.  Many court records describe, in addition to the use of hypnosis, the administration of high levels of antidepressants and other drugs to the patient.  Most patients were encouraged to cut off contact with family members.  Some were hospitalized for long periods in units for patients with dissociative disorders.  Some were instructed to "detach" from all contacts outside the therapy group.

    The techniques cited in many complaints are quite similar to the practices described in a recent U.S.  Grand Jury Indictment as those commonly associated with mind control and brainwashing.[96]  Several professional organizations have warned that hypnosis and related techniques, such as guided imagery, meditation, visualization, trance work, relaxation techniques, age regression, sodium amytal interviews, journaling, and "inner child" work, may lead to increased suggestibility and confabulation, memory hardening, source amnesia, and a loss of critical judgment.  It has long been understood that these techniques do not enhance the accuracy of recall; instead they may render a person overconfident of the memories retrieved, whether or not they are accurate.  Most professional organizations, ethics panels, and clinicians have called on therapists to recognize the dangers in certain suggestive techniques and to avoid using them.

    Despite the fact that obtaining informed consent has long been an accepted part of rendering proper care, nearly every complaint charges the defendant therapist with failing to inform the patient that the techniques used are capable of generating false memories or that the diagnosis of MPD is controversial.  The patient therefore lacks information necessary to give an informed consent to the treatment or to consider an alternative form of therapy.

    As in most malpractice cases, the complaint usually states that the defendant therapist failed to meet the appropriate standard of care. The specific allegation may be that the therapist failed to treat the patient's presenting problem, failed to accurately diagnose or develop and document an appropriate treatment plan, and/or failed to correct the treatment program despite clear evidence of the patient's deteriorating clinical status.  Evidence of just such tragic circumstances was documented in a malpractice suit filed by Laura Deck against her former therapist in January 1994, King County Superior Court, Washington State and settled in April, 1995.[97]  Pretherapy personality testing (MMPI) showed all scales to be within normal limits, with nothing to suggest that Ms. Deck had been the victim of childhood sexual abuse.  When the test was administered after Ms. Deck underwent the therapy that led her to believe she had been horribly sexually abused by trusted family members, the scales were elevated beyond normal limits, suggesting that Ms. Deck had undergone severe trauma since the first test was administered.  According to experts who evaluated the test results, if the therapist induced Ms. Deck to believe that she had been violently raped by a family member and had been a victim of satanic ritual abuse, even if these things had not actually happened, the trauma of believing that they had occurred would probably be sufficient to produce the changes observed in Ms. Deck's MMPI profile.

    Psychiatric malpractice claims in which patients allege that therapists negligently implanted or encouraged the development of false memories of childhood abuse are a recent phenomenon.  The first such lawsuit was resolved in 1993.[98]  At that time, no state professional ethical review board had yet investigated a claim involving the improper use of memory recovery techniques.  Since 1993 the number of new claims has grown steadily.  As of October 1998, the FMSF Legal Survey contained information on 139 malpractice suits brought by former patients.  Of these 139 claims, eleven have gone to trial.  Nine of the eleven ended in a verdict in favor of the plaintiff.  In the remaining two cases, the jury found in favor of the defendant therapist.  Additional cases were resolved when two lawsuits were dismissed, two were voluntarily dropped by the plaintiff, and fifty-six were settled out of court.  Sixty-seven lawsuits are still ongoing.  More lawsuits of this kind may be filed as the standard of care in this area becomes more widely known through the publication of statements by professional organizations, the results of investigations by state regulatory agencies, and the outcomes of malpractice litigation.[99]

    The overwhelming majority of these malpractice lawsuits were resolved by being settled out of court, many on the eve of a scheduled trial.  A few settled during trial after the plaintiff presented her case.  The settlements and awards in these cases have been for staggering amounts.  One recent case ended when a $10.6 million settlement was finalized on the very day trial was scheduled to begin.[100]  Most agreements stipulated that the amount of the settlement must be kept confidential, but a partial list of recent cases for which the amount was published is given below.

    The majority of malpractice claimants in this survey (84/139) were diagnosed as having multiple personality disorder (MPD) caused by supposed sexual or ritual abuse.  Records confirm that nearly 80 percent (66/84) of those diagnosed with MPD were treated with hypnosis or sodium amytal.  The MPD patients were often given strong medications, particularly benzo-diazepines, such as Valium, Halcion, and Xanax.  Most stated they were told to read highly disturbing books, including Sybil and The Courage to Heal.

    Figure 7-9
    TRIAL OUTCOMES

    ALTHAUS v. COHEN, Court of Common Pleas, Allegheny Co., Penn., No. GD92020893.  In 1994, jury awarded $272,232 to 17 year old girl and her parents.  In 12/96 trial judge affirmed jury decision in strongly worded ruling, noting that as girl's charges became "progressively more outlandish," the stories were never challenged, in fact, the therapist refused input from parents.  "Expert testimony demonstrates overwhelmingly that Cohen deviated from that standard [of care]." The girl entered therapy when her mother became seriously ill. Criminal charges of childhood sexual and ritual abuse against parents were filed, but later dropped.  Affirmed, Althaus v. Cohen, 1998 Pa. Super. LEXIS 63 1.

    HAMANNE v. HUMENANSKY, U.S. Dist.  Ct., 2nd Dist., Minn., No. C4,94-203.  In 1995, jury awarded over $2.46 million to woman after finding psychiatrist negligently failed to meet recognized standards and directly caused injury.  Woman sought treatment for anxiety after a move, but was diagnosed MPD, childhood sexual and ritual abuse despite contrary evaluations and lack of memories of abuse.  Treatment included hypnosis, guided imagery, sodium amytal, anti-depressants, lengthy hospitalizations.  No informed consent. Also awarded $200,000 to husband for loss of consortium.

    HALBROOKC v. MOORE, Dist. Ct., Dallas Co., Tex., No. 92-11849.  In 1995, jury found therapist guilty of negligence and that his actions were proximate cause of damage to his former client.  Awarded $105,000 and attributed 60% negligence to defendant therapist. Woman had sought treatment for recurring depression and familial conflicts, but claims therapy caused her to have false memories of childhood sexual and ritual abuse and to be misdiagnosed MPD.  The treating hospital settled prior to trial for nearly $50,000.

    CARLSON v. HUMENAMKY, Dist. Ct., 2nd Dist., Minn., No. CX-93-7260. In 1996, unanimous jury verdict found that psychiatrist failed to meet recognized medical standards and directly caused injury. Awarded $2.5 million.  Woman had entered therapy for depression and marital problems, but claims therapy caused her to develop false memories of childhood sexual and ritual abuse.  Treatment included sodium amytal, guided imagery, hypnosis.

    CARL v. KERAGA, U.S.  Federal Ct., Southern Dist, Tex., Case No. H-95-66 1.  In 1997, jury found remaining defendant 24% liable (individually and through her corporation) for injury to patient. Awarded $5.8 million.  Several jurors said they were concerned about failure to warn of the risks of treatment.  Woman claims she was misdiagnosed MPD and told she had over 500 personalities to cope with childhood abuse, ritual murder, cannibalism and torture.  She was instructed to report herself to the police as a child molester, even though she had no memory of ever abusing her own children.  Her teenage children were also hypnotized and told they were victims of a cult.  All but 2 of other 25 defendants settled out of court prior to trial.

    Figure 7-10
    SETTLEMENT OUTCOMES

    MARK v. ZULLI, et. al., Superior Ct., San Luis Obispo Co., Cal., No. CV075386.  In 1995, a settlement was reached with the primary therapist who treated a woman who suffered from unexplained chest pains after witnessing a serious accident The therapist told her the chest pains were body memories of childhood sexual and ritual abuse. The therapy included hypnosis and relied on The Courage to Heal. Eventually the woman was diagnosed with MPD with 400 personalities. The primary therapist had no insurance and settled for $157,000.

    FULTZ v. CARR and WALKER, Circuit Ct, Multnomah Co., Oregon, No. 9506-04080.  In 1996, two treating therapists settled out of court, one for $1.57 million, the other for a confidential amount.  Patient had sought help for mild depression and weight problem; but she claims the therapists misdiagnosed childhood sexual and ritual abuse and MPD.  Her preschool children were also treated and persuaded they were abused by a cult The treating therapist assisted in obtaining a restraining order against patient's parents and siblings.

    RUTHERFORD v. STRAND, et al., Circuit Ct., Green Co. Missouri, No. 1960C2745.  In 1996, a church in Missouri agreed to pay $1 million to a woman and her family who said that under the guidance of a church counselor, the woman came to believe that her father had raped her, got her pregnant and performed a coat-hanger abortion -- when in fact, she was still a virgin and her father had had a vasectomy.

    COOL v. OLSON, Circuit Ct., Outagamie Co., Wisc. No. 94CV707.  In 1997, after 15 days of courtroom testimony, defendant agreed to settle for $2.4 million.  Testimony described how psychiatrist induced horrific false memories of childhood sexual and ritual abuse, including demonic possession and misdiagnosed MPD.  Therapy techniques included hypnosis, age regression, exorcism and drugs which caused hallucinations.  The patient had originally entered therapy for bulimia and help after a traumatic event had befallen family.

    BURGUS v. BRAUN, RUSH PRESBYTERIAN, Circuit Ct., Cook Co., Ill., No. 9 1 L08493/93L 14050.  In 1997, on the day scheduled for trial, a $10.6 million settlement was finalized.  The patient originally sought treatment for post-partum depression but was diagnosed MPD as result of supposed childhood sexual and ritual abuse including cannibalism, torture.  She claims psychiatrist utilized suggestive techniques, but failed to obtain informed consent.  Her preschool age children were also hospitalized, diagnosed MPD and treated for SRA.

    Although Multiple Personality Disorder is found in the standard psychiatric diagnostic manual, the DSM-IV, under the heading "dissociative identity disorder," many critics of the diagnosis believe that it is primarily a condition created by therapy.  Several reviews have shown that until the mid-1980's the condition was very rare, with only about 200 cases appearing in the medical literature prior to that time.  During the past decade, however, tens of thousands of people -- almost exclusively women, and almost all of them in the United States -- have been declared to be suffering from MPD.

    Few studies examining the effectiveness of MPD treatments have appeared in peer-reviewed journals.  A review of the MPD cases in the FMS Legal Survey shows that most plaintiffs had no psychiatric history prior to the repressed memory therapy.  After beginning the course of treatment, many were hospitalized in psychiatric wards, some for as long as two years at a time.  Nearly half (40/84) sued the hospital where they had been hospitalized during their treatment program. Nearly half (36/84) indicated that they had either attempted suicide or had cut or mutilated their bodies because of their horror at the emerging images of abuse.  Of the complaints that recorded the number of years in therapy, most indicated treatment lasting between 3 and 7 years.  Several plaintiffs had been in therapy for 10 or more years. Some individuals were even encouraged to hospitalize their young children.  They were made to fear that the children were at risk from a ritualistic cult and that they might show signs of MPD.

    Despite suffering serious psychological injury, many plaintiffs did not file lawsuits until some time after they left therapy or changed therapists.  They say they were unaware of the source of their injury at the time it occurred.  In addition to being advised by their therapist that they "must get worse before they can get better," many were instructed to relive the abusive images again and again.  The plaintiff may assert that the negligent treatment rendered her temporarily unable to understand the harm done, thus placing her under a legal disability, or the plaintiff may state that she quite naturally relied on the therapist, but that the therapist fraudulently concealed information that the treatment was in fact improper.

    There are few published opinions on the statute of limitations question as it pertains to these claims.  A U.S.  District Court in Pennsylvania has twice rejected defense motions to dismiss a malpractice claim as time-barred, saying that the nature of the injury could render the patient unable to distinguish between true and false memories, so that the patient "may have assumed her psychiatrist was providing proper treatment and may not have become suspicious" until some time after the treatment ended.[101]  A U.S. District Court in Illinois refused to dismiss a malpractice suit as time-barred, saying the defendants' arguments were contradictory: "On one hand, [defendants] assert that [their patient] was mentally competent and able to understand her rights and her cause of action, while on the other, they maintain that [their patient's] mental condition was serious enough that it required that she be hospitalized, medicated and psychologically treated for four years of her life.[102]

    In 1998, a Georgia appellate panel refused to allow a psychiatric malpractice claim any extension of the statute of limitations.[103]  The panel did not consider the special factors that may block a patient's ability to think critically about her treatment or to challenge a therapist about the treatment rationale and approach.  They found that the plaintiff's injury occurred at the time of the misdiagnosis and said the clock should begin to run at that time.  They said that "plaintiff knew the facts of her past," but chose to believe her therapists' opinion and allow treatment to continue.  Though plaintiff later came to believe their opinion was wrong, both of her views "were based upon the same knowledge in her possession, but were interpreted in different ways.""[104]

    Although most of the primary care providers in these cases appear to be therapists with a masters degree or less, the defendants range from psychiatrists to therapists with no more than a high school diploma and include psychologists, social workers, marriage and family counselors, nurses, physician assistants, Christian counselors, and miscellaneous therapists.  Some therapists worked in private practice, but others were affiliated with an institution.  Two universities were sued for improper supervision of university-run student health clinics where two undergraduate students say therapists led them to falsely accuse their parents of childhood sexual abuse.

    In addition to raising the statute of limitations defense, some defendants have argued that their treatment simply responded to what their patients reported to them; they were doing the best they could with a patient who was already disturbed.  Malpractice attorneys have pointed out that all mental health patients enter therapy for a reason, whether it is depression, marital problems, or something else. They argue that because individuals enter therapy in a vulnerable state, ready to rely on the advice and treatment given by their therapists, therapists must be held to a high standard of care.

    Some defendants have testified that they did not know whether abuse of the type described by their patients existed; they say they are not detectives and have no responsibility to check the accuracy of the emerging images.  This approach has been rightly criticized.  At best, failing to model critical thinking or reality checking to a patient can delay a patient's improvement.  At worst, encouraging a patient to act on a false and injurious history leads directly and foreseeably to injury to the patient and the patient's family.

    Some courts may attribute a degree of contributory negligence to the patient, but other courts have rejected that notion.  For example, a Pennsylvania trial court judge in a detailed posttrial ruling, affirmed a jury verdict and specifically rejected defense claims that the patient or her parents had signfficantly contributed to her injuries.[105]  The judge concluded that it is precisely because of the patient's presenting psychological problems that her representations to her treating therapist cannot be seen as contributory negligence.

    In addition to a medical malpractice or negligence cause of action, many claimants have also alleged breach of contract, fraud, deceptive trade practice, intentional or negligent infliction of emotional distress, and in some cases, where the therapist engaged in inappropriate contact, assault and battery.  When other family members joined the former patient's lawsuit, additional charges of loss of consortium or defamation were often added.  The charges of fraud made in 11 of the malpractice suits that have been resolved involved charges of improper billing and/or misstating the immediacy or severity of the patient's symptoms in order to continue receiving insurance payments.  These claimants also allege the defendant therapist deliberately concealed the controversial nature of the treatment and its potential hazards.

    In October 1997, a federal grand jury brought what are believed to be the first criminal charges in a case involving the negligent development of false memories.[106] The 61-count criminal indictment charged that a hospital administrator and four therapists conspired to collect millions of dollars in fraudulent insurance payments by exaggerating patients' diagnoses and inducing false memories of being part of a satanic cult.  The criminal trial began in September 1998.  A mistrial was declared early in January, 1999, after five members of the jury panel had been dismissed for various reasons, leaving only eleven jurors to hear the case.  Defense attorneys objected to proceeding with less than twelve jurors.[107]  As of this writing several psychiatrists in other states are facing disciplinary actions, including the loss of their licenses to practice, for engaging in negligent practices that allegedly caused patients to develop false memories of terrible abuse.

    SUMMARY

    A little over a decade ago, repressed memory lawsuits first appeared in the courts.  Initially, legislatures in many states opened the courthouse doors to these claims by extending the statutes of limitations, but courts soon came to recognize the significant evidentiary problems inherent in these cases.  As of this writing, the number of new filings has declined sharply and most recovered memory lawsuits are being dismissed.  Courts have become increasingly skeptical of repressed memory claims and increasingly cautious in dealing with the troublesome evidentiary issues that these claims present.  In recent years, responsible professionals have urged caution in the use of suggestive therapy techniques.  Former patients and their families have begun to file malpractice suits against therapists, charging them with creating false memories of abuse by the misuse of such techniques.  More and more courts are recognizing that a therapist owes a duty, not only to the patient, but to a third party who has been wrongfully accused of abuse on the basis of false memories implanted in a patient during suggestive therapy.  As this chapter was being completed, the New Hampshire Supreme Court recognized just such a duty in Hungerford v. Jones.[108]  The duty, said the Court, arises from the foreseeable injury that the false memories will inflict on the person accused and on society's efforts to identify and eradicate true sexual abuse.

    As courts apply increasingly stringent standards to evidence offered in support of claims of abuse based on memories recovered in therapy, one may expect that the more implausible and bizarre claims will be dismissed and only meritorious claims will be brought to trial or settled.  Greater judicial scrutiny of these claims will, one hopes, inspire the mental health professions to adopt higher standards of education and training and more explicit ethical guidelines that will reduce to a minimum the questionable therapy practices that gave rise to these claims.

    NOTES

    [1] For a discussion of the history and activities of the False Memory Syndrome Foundation, see Freyd, this volume.
    [2] Daughter v. Father, U.S. Dist. Ct., Western Dist. Mich., No. 91-CI-132; included in FMSF Brief Bank #106. Names of parties omitted at family's request.
    [3] We have used the term, "repressed memory" because it is used most often by claimants and by the courts in discussing an alleged memory loss. We recognize that the term may be misleading in that it assumes the existence of an actual event as the object of memory (see discussions by Lindsay, Schooler, and Singer, this volume). Even in court records referring to "repressed memory," there is a great deal of variation in how the term is defined and in the underlying mechanisms thought to be responsible for the memory loss.
    [4] A lawsuit is coded as a "repressed memory" claim if any of the following are true: (1) the claimant alleged a memory loss for the event, even if the court subsequently decided that the facts showed the claimant to have ongoing awareness of the events; (2) the claimant initially claimed memory loss but subsequently, under questioning, admitted ongoing knowledge of the events; or (3) the claimant alleged "repression" or "dissociation" rendered her of unsound mind.
    [5] Because most claimants are female, I will use the female pronoun to refer to claimants unless the specific claimant cited is male.
    [6] Dattoli v. Yanelli, 911 F.Supp. 143 (D.N.J. 1995).
    [7] Some courts have found it unreasonable to believe that a teenager would not be aware of sexual contact as it was happening. See, e.g., Ernstes v. Warner, 860 F. Supp. 1338, 1341 (S.D. Ind. 1994).
    [8] This percentage may be affected by the fact that parents may be somewhat more likely to contact the Foundation than other accused persons.
    [9] Eighty percent (512/633) of the civil claimants recovered "memories" of abuse while in therapy and nearly two-thirds (67/103) of the criminal cases were based on "memories" allegedly recovered while the claimant was in therapy.
    [10] See, e.g., Nuccio v. Nuccio, 673 A.2d 1331 (Me. 1996); State v. Walters, 698 A.2d 1244 (N.H. 1997).
    [11] MPD is a highly controversial diagnosis that was made exceedingly rarely until recent years. The fact that the personalities' expression often become more severe and the number of alter "personalities" increases during therapy has led many critics to conclude that manifestations of MPD are largely products of hypnosis-like techniques and therapists' interactions with their patients. These issues are often raised in psychiatric malpractice cases related to the development of false memories.
    [12] Borawick v. Shay, 68 F.3d 597 (2d Cir. 1995), cert. denied, 517 U.S. 1229, 116 S.Ct. 1869 (1996).
    [13] Borawick v. Shay, 68 F.3d 597, 609 (2d Cir. 1995), cert denied, 517 U.S. 1229, 116 S.Ct. 1869 (1996).
    [14] Ramona v. Superior Court, 66 Cal. Rptr.2d 766 (Cal. App. 1997).
    [15] That case, Ramona v. Ramona, Super. Ct. Napa County, Cal., No. 61898, was resolved in 1994 when a jury awarded Mr. Ramona a $500,000 judgment. Holly did not appeal the jury verdict.
    [16] For additional background on the Ramona case, see Johnson, M., Spectral Evidence: The Ramona Case: Incest, Memory, and Truth on Trial in Napa Valley. New York: Houghton Muffin.
    [17] Franklin v. Stevenson, Third Judicial Dist. Ct., Salt Lake Co., Utah, No. 94-0901779PI, 1996.
    [18] See, e.g., Olsen v. Hooley, 865 P.2d 1345 (Utah 1993); Williford v. Bieske, 534 N.W2d 695 (Mich. 1995), reh. den. 539 N.W.2d 504 (Mich. 1995); and Barrett v. Hyldburg, Superior Court, Buncombe Co., North Carolina, No. 94 CVS 793, affirmed and remanded in part, 487 S.E.2d 803 (1997).
    [19] See, e.g., Hearndon v. Graham, 710 So.2d 87 (Fla. App. 1998); Nuccio v. Nuccio, 673 A.2d 1331 (Me. 1996); and Guerra v. Garratt, 564 N.W2d 121 (Mich. App. 1997).
    [20] Doe v. Maskell, 679 A.2d 1087, 1088 (Md. 1996), cert. denied, 519 U.S. 1093 (1997).
    [21] See, e.g., Logerquist v. Danforth, 932 P.2d 281 (Ariz. App. 1996); Hehner v. Hehner, 918 S.W. 2d 283 (Mo. App. 1996); and K.G. v. R.T.R., 918 S.W.2d 795 (Mo. banc 1996) (affirmed dismissal).
    [22] This phrase appears in Urie v. Thompson. 337 U.S. 163, 170 (1949).
    [23] See, e.g., Lent v. Doe, 47 Cal.Rptr.2d 389 (Cal. App. 1995); and Guilbault v. DesRosiers, 678 A.2d 873 (R.I. 1996).
    [24] See, e.g., Hogle v. Harvey, 1995 Ohio App. LEXIS 4351, No. 94A005 (unreported); Casey v. Casey, 673 N.E.2d 210 (Ohio App. 1996), cert. den. 669 N.E.2d 859 (Ohio 1996); Moore v. Chiano, 690 N.E.2d 597 (Ohio App. 1996), cert. den. 678 N.E.2d 1230 (1997).
    [25] Petersen v. Bruen, 792 P.2d 18 (Nev. 1990).
    [26] See, e.g., Doe v. Maskell 679 A.2d 1087 (Md. 1996), cert denied, 519 U.S. 1093 (1997).
    [27] See, e.g., Sellery v. Cressey, 55 Cal.Rptr.2d 706 (Cal. App. 1996); Taylor v. Taylor, 1996 WL 490718 (N.D.Ill.); and M.E.H. v. L.H., 685 N.E.2d 335 (Ill. 1997).
    [28] See, e.g, Rezac v. Tolly, Supreme Ct. South Dakota, Nos. 18973/18974.
    [29] See, e.g., Lovelace v. Keohane, 831 P.2d 624 (Okla. 1992).
    [30] S.V. v. R.V., 933 S.W2d 1, 22 (Tex. 1996).
    [31] The statutory definitions of "disability" and "unsound mind" vary from state to state but usually require an individual to demonstrate that he was unable to manage his daily affairs and/or assert his legal rights.
    [32] In an early repressed memory trial that was reported in a series of articles by S. Efron published in the Los Angeles Times between March 22 and April 23, 1991, two adult daughters, ages 48 and 35, had sued their mother for $7 million, claiming a childhood history of rape, incest, torture, druggings, ritual murders, cannibalism, and child prostitution. After hearing 13 days of testimony in which no physical evidence was offered, the jury was unable to agree on whether the abuse had actually occurred. They found the elderly mother negligent but declined to award the daughters any damages.
    [33] State of Washington v. Ingram, No. 88-100752-1, Superior Ct., Olympia, Washington. The case became the subject of a magazine article: Wright, L. (1993, May 17, May 24). `Remembering Satan." New Yorker, Part I, May 17, 1993, pp. 60-81, Part II, May 24, 1993, PP. 54-76.
    [34] Ofshe, R.J. (1992), "Inadvertent hypnosis during interrogation: False confession due to dissociative state," International Journal of Clinical and Experimental Hypnosis, XL:3: 125-156.
    [35] See, e.g., State of Ohio v. Castor, No. 95CR00205, Portage Co., Ohio.
    [36] See, e.g., State of Nevada v. Dorsey, No. 31163, Ninth Judicial District Ct., Douglas Co., Nevada, 1995.
    [37] See, e.g., Commonwealth of Pennsylvania v. Althaus, No. CC9115657/CC91156, Ct. of Common Pleas, Allegheny Co., Pa., 1992.
    [38] State v. Hungerford, 697 A.2d 916 (N.H. 1997). See also State v. Walters, 698 A.2d 1244 (N.H. 1997).
    [39] Commonwealth v. Crawford, 682 A.2d 323 (Pa. Super. 1996), rev'd, 718 A.2d 768 (Pa. 1998).
    [40] See, e.g., State of Illinois v. Stegman, Circuit Ct., Massac Co., Illinois, No. 93-CF-82.
    [41] Franklin v. Duncan, 884 F.Supp. 1435 (N.D. Cal. 1995), aff'd, 70 F.3d 75 (9th Cir. 1995).
    [42] In 1990, Eileen also told investigators that she remembered her father committing three more murders. Two of the murders could not be linked to any unsolved crime and DNA tests and other records proved that Franklin could not have committed the third.
    [43] Franklin v. Terr, 1998 WL 230983 (N.D.Cal. 1998).
    [44] Farris v. Compton, 652 A.2d 49 (D.C. 1994); Clay v. Kuhl, 696 N.E.2d 1245 (Ill. App. 1998), cert. den. 705 N.E.2d 435 (1998); Sheehan v. Sheehan, 901 S.W. 2d 57 (Mo. 1995); Peterson v. Huso, 552 N.W2d 83 (N.D. 1996).
    [45] Jones v. Jones, 576 A.2d 316 (N.J. Super. A.D.), cert. denied, 585 A.2d 412 (N.J. Super. 1990); Dattoli v. Yannelli, 911 F.Supp. 143 (D.N.J. 1995), applying New Jersey law; Anonymous v. Anonymous, 154 Misc.2d 46, 584 N.Y.S.2d 713 (N.Y. Sup. Ct. 1992).
    [46] See Doe v. Maskell, 679 A.2d 1087 (Md. 1996), cert. denied 519 U.S. 1093 (1997); Lemmerman v. Fealk, 534 N.W2d 695 (Mich. 1995); Blackowiak v. Kemp, 546 N.W2d 1 (Minn. 1996); Dalrymple v. Brown, 1997 WL 499945 (Pa. 1997); Shippen v. Parrott, 506 N.W2d 82 (S.D. 1993); Albright v. White, 503 S.E.2d 860 (W.Va. 1998); Doe v. Archdiocese, 565 N.W2d 94 (Wis. 1997).
    [47] See Lindabury v. Lindabury, 552 So.2d 1117 (Fla. App. 1989), cert. den. 560 So.2d 233 (1990); Burpee v. Burpee, 578 N.Y.S.2d 359 (N.Y. Sup. Ct. 1991).
    [48] Doe v. Maskell, 679 A.2d 1087, 1091 (Md. 1996), cert. denied, 519 U.S. 1093 (1997); citing Pope, H.G. and Hudson, J.I. (1995). `Can memories of childhood sexual abuse be repressed?' Psychological Medicine 25, 121-126.
    [49] Doe v. Maskell, 679 A.2d 1087, 1092 (Md. 1996), cert denied 519 U.S. 1093 (1997).
    [50] See M.E.H. v. LH., 685 N.E.2d 335 (III. 1997); Wolford v. Mollett, 1995 WL 258258 (Ky.App.), unpublished opinion; Doe v. Roman Catholic Church, 656 So.2d 5 (La. App.) cert. Denied, 662 So.2d 478 (La. 1995); Doe v. R.D., 417 S.E.2d 541 (S.C. 1992); Hunter v. Brown, 1996 WL 57944 (Tenn.App. 1996), aff'd, 955 S.W2d 49 (Tenn. 1997); Dovey v. Sorrow, 1993 WL 41165 (Tenn. App.); Roe v. Doe, 28 F.3d 404, 407 (4th Cir. 1994).
    [51] Harkness v. Fitzgerald, 701 A.2d 370 (Me. 1997).
    [52] Lovelace v. Keohane, 831 P.2d 624 (Okla. 1992).
    [53] Boyce v. Cluett, 672 So.2d 858 (Fla. App. 1996); M.E.H. v. L.H., 669 N.E.2d 1228 (Ill.App. 1996), aff'd 685 N.E.2d 335 (III. 1997); Frideres v. Schiltz, 540 N.W. 2d 261 (Iowa 1995); Sarafolean v. Kauffman, 547 N.W. 2d 417 (Minn. App. 1996), review denied (Minn. July 10, 1996); Rezac v. Tolly, South Dakota Supreme Ct., Nos. 18973/18974; Roark v. Crabtree, 893 P.2d 1058 (Utah 1995).
    [54] See, e.g., Swackhammer v. Widnall, 119 F.3d 7 (9th Cir. 1997), unpublished.
    [55] See Hunter v. Brown, 1996 WL 57944 (Tenn.App.), aff'd, 955 S.W. 2d 49 (Tenn. 1997); S.V. v. R.V., 933 S.W.2d 1 (Tex. 1996); Pritzlaff v. Archdiocese of Milwaukee, 533 N.W. 2d 780 (Wis. 1995), cert. den. 516 U.S. 1116 (1996).
    [56] See, e.g., Anonymous v. Anonymous, 584 N.Y.S.2d 713 (N.Y. Sup. Ct. 1992); and Moore v. Shiano, 690 N.E.2d 597 (Ohio App. 1996), cert. den. 678 N.E.2d 1230 (Ohio 1997).
    [57] See, e.g., Johnson v. Johnson, 766 F.Supp. 662 (N.D.Ill. 1991);J.M. v. Merkl, 1998 WL 100598 (Minn. App.), unpublished.
    [58] See, e.g, Lemmerman v. Fealk, 534 N.W. 2d 695, 702 (Mich. 1995); Blackowiak v. Kemp, 546 N.W. 2d 1, 3 (Minn. 1996); W.J.L. v. Bugge, 573 N.W. 2d 677 (Minn. 1998); K.B. v. Evangelical Lutheran Church in America, 538 N.W. 2d 152, 157-58 (Minn. App. 1995); Lovelace v. Keohane, 831 P.2d 624, 630 (Okla. 1992); Dalrymple v. Brown, 701 A.2d 164, 170 (Pa. 1997); Baily v. Lewis, 763 F. Supp. 802 (E.D.Pa. 1991), aff'd 950 F.2d 721 (3d Cal. 1991); Ernstes v. Warner, 860 F.Supp. 1338, 1341 (S.D. Ind. 1994); Tyson v. Tyson, 727 P.2d 226 (Wash. 1986); John BBB Doe v. Archdiocese of Milwaukee, 565 N.W2d 94 (Wash. 1997); Pritzlaff v. Archdiocese of Milwaukee, 533 N.W.2d 780 (Wis. 1995), cert. den. 516 U.S. 1116 (1996).
    [59] See, e.g., Pritzlaff v. Archdiocese of Milwaukee, 533 N.W. 2d 780, 788 (Wis. 1995), cert. den. 116 S.Ct. 920 (U.S. 1996).
    [60] See, e.g., Baily v. Lewis, 763 F. Supp. 802, 803 (E.D. Pa. 1991); Burpee v. Burpee, 152 Misc.2d 466, 578 N.Y.S.2d 359 (N.Y. Sup. Ct. 1991).
    [61] See, e.g., Doe v. Roe, 955 P.2d 951 (Ariz. 1998); Sellery v. Cressey, 55 Cal.Rptr.2d 706 (Cal.App. 1996); Lent v. Doe, 47 Cal.Rptr.2d.389 (Cal.App. 1995). For cases that refused to take this approach, see Marsha V. v. Gardner, 281 Cal.Rptr. 473, 477 (Cal.Ct.App. 1991); Schwestka v. Hocevar, 1994 WL 224390 (N.D.Cal.).
    [62] See, e.g., Engstrom v. Engstrom, Superior Ct., Los Angeles Co., Calif., No. VCOI6 157, Oct. 11, 1995, aff'd Engstrom v. Engstrom, No. B098146 (2nd App.Dist. Cal., June 18, 1997) unpublished; Logerquist v. Danforth, Superior Ct., Maricopa Co., Arizona, No. CV92-16309, June 11, 1998, following Logerquist v. Danforth, 932 P.2d 281 (Ariz.App. 1996).
    [63] See, e.g., Peterson v. Huso, 552 N.W. 2d 83 (N.D. 1996); Petersen v. Bruen, 792 P.2d 18 (Nev. 1990); Olsen v. Hooley, 865 P.2d 1345 (Utah 1993); Fager v. Hundt, 610 N.E.2d 246 (Ind. 1993); Clay v. Kuhl, 704 N.E.2d 875 (Ill.App. 1998), cert. den. 705 N.E.2d 435 (1998); K.B. v. Evangelical Lutheran Church in America, 538 N.W.2d 152 (Minn. App. 1995); U.S. v. Bighead, 128 F.3d 1329 (9th Cir. 1997).
    [64] S.V. v. R.V., 933 S.W. 2d 1 (Tex. 1996).
    [65] Olsen v. Hooley, 865 P.2d 1345 (Utah 1993).
    [66] Kelly v. Marcantonio, 678 A.2d 873 (R.I. 1996).
    [67] State v. Quattrocchi, 681 A.2d 879 (R.I. 1996).
    [68] Id at 882.
    [69] See, e.g., State v. Hungerford, 697 A.2d 916 (N.H. 1997); Clay v. Kuhl, 696 N.E.2d 1245 (Ill.App. 1998), cert. den. 705 N.E.2d 435 (1998); Doe v. Maskell, 679 A.2d 1087 (Md. 1996), cert. denied, 519 U.S. 1093 (1997); Lemmerman v. Fealk, 534 N.W.2d 695 (Mich. 1995); Ault v.Jasko, 70 Ohio St. 3d 114, 637 N.E.2d 870, 875-76 (Ohio 1994); Dalrymple v. Brown, 701 A.2d 164 (Pa. 1997); Commonwealth v. Crawford, 682 A.2d 323 (Pa. Super. 1996); Kelly v. Marcantonio, 678 A.2d 873 (R.I. 1996); Hunter v. Brown, 1996 WL 57944 (Tenn.App.); S.V. v. R.V., 933 S.W. 2d 1, 17-18 (Tex. 1996);John BBB Doe v. Archdiocese of Milwaukee, 565 N.W. 2d 94 (Wis. 1997).
    [70] Repressed memory testimony was ruled inadmissible in: Barrett v. Hyldburg, Superior Ct., Buncombe Co., NC, No. 94-CVS-793, ruling dated October 20, 1998 following Barrett v. Hyldburg, 487 S.E.2d 803 (N.C. 1997); Carlson v. Humenansky, 2nd Dist., Ramsey Co., Minn., No. CX-93- 7260, Dec. 29, 1995; Doe v. Maskell, Circuit Ct., Baltimore City, MD, No. 9423601/CL18756, May 5, 1995, aff'd Doe v. Maskell, 679 A.2d 1087 (Md. 1996), cert. denied 519 U.S. 1093 (1997); Engstrom v. Engstrom, Superior Ct., Los Angeles Co, Calif., No. VC016157, Oct. 11, 1995, aff'd Engstrom v. Engstrom, No. B098146 (Cal.App.2nd App. Dist., June 18, 1997) unpublished, cert. denied; Logerquist v. Danforth, Superior Ct., Maricopa Co., Arizona, No. CV 92-16309, June 11, 1998 following Logerquist v. Danforth, 932 P.2d 281 (Ariz. App. 1996); Mensch v. Pollard, Superior Ct., Whatcom Co., Washington, No. 93-2-01427-5, oral decision dated Sept. 9, 1998; State of New Hampshire v. Hungerford, 1995 WL 378571 (N.H. Super.), aff'd State v. Hungerford, 697 A.2d 916 (N.H. 1997).
    [71] State v. Walters, 698 A.2d 1244, 1246 (N.H. 1997).
    [72] See Faigman, D.L., et al (ed.) (1999) "Repressed Memories," Chapter 13 in Modem Scientific Evidence: The Law and Science of Expert Testimony. Volume 1. St. Paul, MN: West Group, pp. 112-155.
    [73] Engstrom v. Engstrom, No. B098146, Court of Appeal, 2nd App. Dist., California, June 18, 1997, unpublished opinion.
    [74] State v. Hungerford, 697 A.2d 916 (N.H. 1997).
    [75] Id at 919.
    [76] Pope, H.G. and Hudson, J.I. (1995). Can memories of childhood sexual abuse be repressed? Psychological Medicine, 25:121-126. See also, Pope, H.G., Oliva, P.S. and Hudson, J.I. (1999) The scientific status of research on repressed memories. In Faigman, D.L., et al (eds.) Modern Scientific Evidence: The Law and Science of Expert Testimony, 1: 115-155; Pope, H.G., Hudson, J.I., Bodkin, J.A. & Oliva, P. (1998). Questionable validity of "dissociative amnesia" in trauma victims, British Journal of Psychiatry, 172:210-215.
    [77] See, e.g., State v. Hungerford, 697 A.2d 916 (N.H. 1997), in which the court said "The very concept of a "repressed" memory, that is, that a person can experience a traumatic event, and have no memory of it whatsoever for several years, transcends human experience...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." See also Barrett v. Hyldburg, 487 S.E.2d 803 (N.C. App. 1997).
    [78] Olsen v. Hooley, 865 P.2d 1345 (Utah 1993); KB. v. Evangelical Lutheran Church in America, 538 N.W. 2d 152 (Minn. App. 1995).
    [79] See, e.g., Logerquist v. Danforth, Superior Ct., Maricopa Co., Arizona, No. CV 92-l6309,June 11, 1998; Mensch v. Pollard, Superior Ct, Whatcom Co., Washington, No. 93-2-01427-5, oral decision dated Sept. 9, 1998.
    [80] See, e.g., Anonymous v. Anonymous, 584 N.Y.S.2d 713 (N.Y. Sup. Ct. 1992); Casey v. Casey, 673 N.E2d 210 (Ohio App. 1996); Hogle v. Harvey, 1995 Ohio App. LEXIS 4351, No. 94A0053, unreported; Horn v. Reese, 1995 WL 596065 (Ohio App. 1 Dist.); Peters v. Medaglia, 1989 WL 36709 (Ohio App. 8 Dist.), jurisdictional motion overruled by 545 N.E.2d 905 (Ohio 1989); Smith v. O'Connell, 997 F.Supp. 226 (D.R.I. 1998); Florez v. Sargeant, 917 P.2d 250 (Ariz. 1996); Teater v. State of Nebraska, 559 N.W.2d 758 (Neb. 1997).
    [81] See, for example, Travis v. Ziter, 681 So.2d 1348, 1355 (Ala. 1996).
    [82] See, e.g., Florez v. Sargeant, 917 P.2d 250 (Ariz. 1996); Moore v. Schiano, 690 N.E.2d 597 (Ohio App. 1996), cert. denied 678 N.E.2d 1230 (1997); Doe v. Rupp, 1998 WL 32774 (Ohio App. 8 Dist.), cert. denied, 694 N.E.2d 75 (1998); Detweiler v. Slavic, 1994 WL 706151 (Ohio App. 8 Dist. 1994), cert. denied, 649 N.E.2d 280 (Ohio 1995).
    [83] See, e.g., Rigazio v. Archdiocese of Louisville, 853 S.W2d 295 (Ky. App. 1993); Anonymous v. Anonymous, 584 N.Y.S.2d 713 (N.Y. Sup. Ct. 1992); Bassile v. Covenant House, 575 N.Y.S.2d 233 (N.Y. Sup. Ct 1991), aff'd, 594 N.Y.S.2d 192 (N.Y.A.D. 1 Dept. 1993), cert. denied, 624 N.E.2d 177 (N.Y. 1993); Detweiler v. Slavic, 1994 WL 706151 (Ohio App. 8 Dist. 1994), cert. denied, 649 N.E.2d 280 (Ohio 1995); Florez v. Sargeant, 917 P.2d 250 (Ariz. 1996); Hildebrand v. Hildebrand, 736 F.Supp. 1512 (S.D. Md. 1990); Hogle v. Harvey, 1995 Ohio App. LEXIS 4351, No. 94A0055, unreported; Lemmerman v. Fealk, 534 N.W2d 695 (Mich. 1995); Meiers-Post v. Schafer, 427 N.W2d 606 (Mich. App. 1988); Moore v. Schiano, 690 N.E.2d 597 (Ohio App. 1996), cert. denied 678 N.E.2d 1230 (1997); Overall v. Klotz, 846 F.Supp. 297 (1994), aff'd 52 F.3d 398 (2d Cir. 1995); Smith v. Smith, 830 F.2d 11(2nd Cir. 1987); Travis v. Ziter, 681 So.2d 1348 (Ala. 1996).
    [84] See, e.g., Bock v. Hannon, 526 So.2d 292 (La. App. 1988), cert. denied, 531 So.2d 275 (La. 1988); Burpee v. Burpee, 578 N.Y.S.2d 359 (N.Y. Sup. Ct. 1991); Doe v Roe, 931 P.2d 1115 (Ariz. App. 1997), rev'd, 955 P.2d 951 (Ariz. 1998); E.W. v. D.C.H., 754 P.2d 817 (Mont. 1988), superseded by statute; Horn v. Reese, 1995 WL 596065 (Ohio App. 1 Dist.); McAfee v. Cole, 637 A.2d 463 (Me. 1994); Nicolette v. Carey, 751 F.Supp. 695 (W.D. Mich. 1990); Olsen v. Hooley, 865 P.2d 1345 (Utah 1993); Whatcott v. Whatcott, 790 P.2d 578 (Utah App. 1990); Swackhammer v. Widnall, 119 F.3d 7 (9th Cir.(Wash.) 1997); Gilp v. Neville, 681 N.E.2d 1173 (md. App. 1997); Doe v. Maskell, 679 A.2d 1087 (Ind. App. 1996), cert denied, Roe v. Maskell, 519 U.S. 1093 (1997).
    [85] See Freyd, this volume.
    [86] See, e.g., Althaus v. Cohen, 710 A.2d 1147 (Pa. Super. 1998), cert. granted Oct. 27, 1998; Sawyer v. Midelfort, 579 N.W. 2d 268 (Wis. App. 1998), cert. granted, 584 N.W. 2d 122 (Wis. 1998); Tuman v. Genesis Assoc., 894 F.Supp. 183 (E.D. Pa. 1995); Sullivan v. Cheshier, 846 F.Supp. 654 (N.D. Ill. 1994).
    [87] See, e.g., Doe v. McKay, 700 N.E.2d 1018 (III. 1998); Flanders v. Cooper, 706 A.2d 589 (Me. 1998); Strom v. C.C., 1997 WL 118253 (Minn.App.), unpublished.
    [88] See, e.g., Glasspool v. Seltzer, Superior Court, Appellate Div., New Jersey, No. A-1662-95T5, unpublished; Lundgren v. Eastern Montana Community Mental Health Center, 1998 WL 208152 (Mont.).
    [89] See, e.g., James W. v. Superior Court (Goodfriend), 21 Cal. Rptr. 2d 169 (Cal. App. 4th Dist. 1993); Wilkinson v. Balsam, 885 F.Supp. 651 (D. Vt. 1995); Montoya v. Bebensee, 761 P.2d 285 (Colo. App. 1988); Peterson v. Walentiny, 1995 U.S. Dist. LEXIS 4290, No. 93-C-399-K, unpublished; Caryl S. v. Child & Adolescent Treatment Services, Inc., 614 N.Y.S.2d 661 (N.Y. Sup. Ct., 1994); Byrnes v. Haynes-Seman, No. 93.CV-3 125, Court of Appeals, Colo.
    [90] Ramona v. Isabella, No. C61898, Superior Court, Napa Co., Calif.
    [91] Althaus v. Cohen, 710 A.2d 1147 (Pa. Super. 1998), cert. granted October 27, 1998.
    [92] Id at 1156.
    [93] Id. at 1157.
    [94] Doe v. McKay, 700 N.E.2d 1018 (Ill. 1998).
    [95] Sawyer v. Midelfort, 579 N.W. 2d 268 (Wis. App. 1998), cert. granted, 584 N.W. 2d 122 (Wis. 1998).
    [96] United States of America v. Peterson, et al., U.S. Dist. Ct., Southern Dist., Texas, No. H-97-237.
    [97] The FMS Foundation has been asked not to publish additional identifying information about this case in order to protect Ms. Deck from being accused of breaching the confidentiality clause of the settlement agreement with her former therapist. Court filings with the defendants' names deleted are available from the Foundation, however.
    [98] As part of the settlement agreement, the plaintiff, Laura Pasley, agreed not to disclose the name of the defendant therapist. The complaint is available from the FMS Foundation.
    [99] At the time of this writing, an additional 70 individuals had informed the FMSF that they were consulting attorneys about a possible cause of action against their former therapists for improperly using suggestive techniques, resulting in the implantation of false memories. FMSF surveys of affected families show that the number of reconciliations within families is increasing, which suggests that more and more former accusers are coming to believe that their recovered memories are false.
    [100] Burgus v. Braun, Circuit Ct., Cook Co., Ill. No. 91L08493.
    [101] Lujan v. Mansmann, et al, 956 F. Supp. 1218, 1226 (E.D. Pa. 1997); Lujan v. Mansmann, et al, 1997 WL 634499 (E.D.Pa.).
    [102] Shanley v. Braun, 1997 WL 779112 (N.D.Ill.), Memorandum Opinion and Order dated Dec. 10, 1997 at 24.
    [103] Charter Peachford Behavioral Health System, Inc. v. Kohout, 504 S.E.2d 514 (Ga. App. 1998), cert. denied November 20, 1998.
    [104] Charter Peachford Behavioral Health System, Inc. v. Kohout, 504 S.E.2d 514, 521 (Ga. App. 1998), cert. denied November 20, 1998.
    [105] Althaus v. Cohen, Ct. of Common Pleas, Allegheny Co., PA, No. GD92020893.
    [106] United States of America v. Judith A. Peterson, et aI, Crim. No. H-97-237, U.S. Dist. Ct., So. Dist. Texas, Houston Div.
    [107] Personal communication, Peter Freyd, February 10, 1999.
    [108] Hungerford v.Jones 722 A.2d 478 (N.H. 1998).