MEMORANDUM AND ORDER ON CROSS-MOTIONS TO LIMIT OR EXCLUDE EXPERT TESTIMONY
SAYLOR, District Judge.
This is a civil lawsuit for assault and battery arising from childhood sexual abuse. The abuse is alleged to have occurred between 35 and 38 years ago. Jurisdiction is based on diversity of citizenship.
Plaintiff Timothy Clark alleges that between 1974 and 1977, when he was between the ages of 10 and 14, he was repeatedly sexually abused by defendant Richard Edison. Clark contends that he did not recall the abuse until May 2008, when he suddenly recovered memories of it while visiting his mother's grave. This lawsuit was brought in November 2008, more than three decades after the alleged abuse ended.
Ordinarily, such a claim would be barred by the three-year limitations period set forth in Mass. Gen. Laws ch. 260, § 2A. However, in 1993, Massachusetts enacted a statute, ch. 260, § 4C, that provides that a claim for sexual abuse of a minor does not accrue until the victim "discovered or reasonably should have discovered that an emotional or psychological injury or condition was caused by" the abuse. Plaintiff contends that his claim did not accrue until May 2008, and thus the lawsuit was timely filed.
The parties have retained expert witnesses to testify at trial as to the theory of memory repression and recovery as it relates to plaintiff's allegations. Each party has moved in limine to exclude the other's expert testimony under Fed.R.Evid. 702 and 403 and the principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Court held an extended evidentiary hearing on those motions, at which it heard testimony from two psychiatrists and a psychologist. On June 21, 2012, the Court denied both motions, subject to certain limitations. This memorandum sets forth the Court's reasoning for its decisions.
At the outset, the Court notes that it has deep reservations about the admission of the disputed testimony. This case does not involve a typical subject of expert testimony, such as whether a broken leg was set properly or whether a company was insolvent. The proposed testimony addresses the issue of human memory: how memories are encoded, how they are stored, and how they are recovered. Almost inevitably, it touches directly on the issue of whether those memories are accurate or not, or indeed whether the underlying events occurred at all.
To complicate matters, the direct study of memory is in many ways impossible, in the sense that the inner workings of the human mind cannot be directly examined. The study of memory relies heavily, if not entirely, on self-reporting by individual patients and subjects. When a person claims to have a lack of memory, or to have lost a memory and then recovered it, there may be no accurate way to test that proposition. At the very least, the type of rigorous testing and analysis required in other sciences is simply not possible.
To make matters worse, the subject arises in the context of an emotionally and politically charged case. It is difficult for anyone to be entirely dispassionate on the subject of child sexual abuse; the conduct is of course repugnant, and our natural instincts are to be strongly protective of the victim. Those same instincts may, however, lead us to forget that those accused of such conduct must also have a fair opportunity to refute the charge. Jurors who are predisposed to favor alleged victims may give undue weight to tenuous evidence if that evidence confirms their pro-plaintiff biases. That risk is particularly acute here, where the confirmatory evidence is in the form of expert testimony that, despite its limitations, may be perceived as representing an endorsement by the scientific community.
Finally, the sparsity of evidence in this case may lend undue weight to the expert testimony. Because of the passage of time, the critical evidence in this case consists almost entirely of uncorroborated memory — that is, complainant testimony, with no confirming medical or scientific evidence — and some of the key witnesses have long since passed away. It is, of course, of great importance that the law give victims of abuse an opportunity to vindicate their rights in court. But that consideration does not obviate the policies that lie behind all limitations on plaintiffs' right to sue. As the Supreme Court has explained, "[m]emories fade, and witnesses can die or disappear. Such problems can plague child abuse cases, where recollection after so many years may be uncertain, and `recovered' memories faulty ...." Stogner v. California, 539 U.S. 607, 631, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003). The challenges of discerning fact from allegation years after the events at issue have occurred are so great that statutes of limitations bar actions in almost all other contexts. Those challenges require equal consideration here, even though the alleged misconduct is highly reprehensible.
In short, and at a minimum, the proposed testimony should be subject to close and exacting scrutiny. After careful consideration, and despite substantial misgivings, both motions to exclude expert testimony on this topic will be denied. The experts will be permitted to testify regarding memory repression theory, its limitations, its level of acceptance in the scientific community, and the characteristics likely to be present in individuals who have experienced repressed memory. However, neither expert may testify as to their personal beliefs regarding the ultimate issues in this case — that is, whether plaintiff suffered from the alleged abuse and whether he repressed his memories of the experience before 2008.
Timothy Clark was born in 1963. After his parents divorced, he lived with his mother and his two brothers, Michael and David Clark. In 1974, when he was ten years old, the Clarks lived in Shrewsbury, Massachusetts, in an apartment complex known as Shrewsbury Gardens.
Richard Edison also resided at Shrewsbury Gardens in 1974. At the time, he was a medical student at the University of Massachusetts in Worcester. The Clark brothers knew Edison and would visit his apartment and listen to music with him. Clark alleges that Edison provided the children with marijuana and on multiple occasions took Timothy into his bedroom, alone, and sexually abused him.
In 1975, the Clark family moved to an apartment in a complex known as Brandywine Village. Edison also moved to Brandywine Village during that year, and the Clark children continued to visit him there despite their mother's objections. Clark alleges that Edison continued to abuse him sexually during that period.
At some point, the Clark family moved to a new apartment at Lincoln Village in Worcester. According to Clark, Edison continued to associate with the boys. In 1977, their mother filed a "disturbing the peace" complaint against him in Massachusetts District Court. Timothy went to court with his mother for a hearing on that matter, but he was taken outside of the courtroom for much of the proceeding. The action was dismissed, and no criminal prosecution occurred. However, the court ordered Edison to cease his interactions with the children, and they had no further contact with him.
Clark turned 18 in 1981. He contends that for many years he retained no memory of the sexual abuse. However, he asserts that in May 2008, he experienced a sudden flood of memories while visiting his mother's grave with his brother Michael. These memories included episodic visions of his interactions with Edison and explicit memories of sexual contact. In the months following that experience, Clark suffered emotional reactions to the memories. He received psychological therapy from Erik D. Nelson, who identified symptoms of post-traumatic stress disorder that he believed were derived from childhood sexual abuse.
Clark filed a complaint on November 24, 2008. The complaint asserts a single cause of action, that of assault and battery under Massachusetts common law.
Mass. Gen. Laws ch. 260, § 4C provides that "the time limit for commencement of an action [for assault and battery alleging the defendant sexually abused a minor] is tolled for a child until the child reaches eighteen years of age." Id. The same statute delays the accrual of such a cause of action until "the victim discover[s] or reasonably should [discover] that an emotional or psychological injury or condition was caused by" the abuse. Id.
With respect to both elements, a plaintiff who files suit more than three years after reaching maturity must demonstrate both that he actually lacked awareness and that his lack of awareness was objectively reasonable. Id. The objective reasonableness of a plaintiff's lack of knowledge is determined from the perspective of "a reasonable person who has been subjected to the conduct which forms the basis for the plaintiff's complaint." Riley v. Presnell, 409 Mass. 239, 245, 565 N.E.2d 780 (1991). That analysis focuses "on the nature of the abusive conduct, the injuries that the abuse inflicted, and the effect that both would have had on the causal understanding of an ordinary, reasonable person." Creighton, 439 Mass. at 284, 786 N.E.2d 1211.
Courts have recognized the potential applicability of the statutory discovery rule where a plaintiff alleges that some psychological process prevented him from becoming aware of an alleged abuse until the memory was suddenly recovered years later. See, e.g., Hoult v. Hoult, 792 F.Supp. 143, 145 (D.Mass.1992) (denying summary judgment where plaintiff asserted that she had no memory of sexual abuse until after the otherwise-applicable limitations period).
Rules 702 and 403 Generally
Both parties have, in substance, cross-moved to exclude the other side's expert testimony on the subject of repressed memory. Whether that testimony may be admitted is governed principally by two rules of evidence: Rules 702 and 403.
Rule 702 provides as follows:
Fed.R.Evid. 702. The adoption of Rule 702 in its present form codified the standard of admissibility for expert testimony that was set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Under Rule 702, district courts considering the admissibility of scientific testimony must "act as gatekeepers, ensuring that an expert's proffered testimony `both rests on a reliable foundation and is relevant to the task at hand.'" Samaan v. St. Joseph Hosp., 670 F.3d 21, 31 (1st Cir.2012) (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786). This gatekeeping function requires that the Court consider three issues: (1) whether the proposed expert is qualified by "knowledge, skill, experience, training or education;" (2) whether the subject matter of the proposed testimony properly concerns "scientific, technical, or other specialized knowledge;" and (3) "whether the testimony [will be] helpful to the trier of fact, i.e., whether it rests on a reliable foundation and is relevant to the facts of the case." Bogosian v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472, 476 (1st Cir.1997).
The requirement that an expert's testimony must be based on a reliable scientific foundation is often the "central focus of a Daubert inquiry." Ruiz-Troche, 161 F.3d at 81. In Daubert, the Supreme Court enumerated a non-exhaustive list of factors that a court may consider in undertaking its reliability analysis: (1) whether the scientific theory or technique can be (and has been) tested; (2) whether it has been subjected to peer review and publication; (3) whether it has a known rate of error; (4) whether there are standards controlling its application or operation; and (5) whether it is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786; see also Samaan, 670 F.3d at 31-32.
In evaluating whether expert testimony will be helpful to the trier of fact, the Court must determine whether it is relevant, "not only in the sense that all evidence must be relevant, but also in the incremental sense that the expert's proposed opinion, if admitted, likely would assist the trier of fact to understand or determine a fact in issue." Ruiz-Troche, 161 F.3d at 81 (citing Daubert, 509 U.S. at 591-92, 113 S.Ct. 2786). In other words, Rule 702 requires the court to "ensure that there is an adequate fit between the expert's methods and his conclusions." Samaan, 670 F.3d at 32 (citing Daubert, 509 U.S. at 591, 113 S.Ct. 2786). See also Cipollone v. Yale Indus. Prods., Inc., 202 F.3d 376, 380 (1st Cir.2000) (describing the "ultimate purpose of the Daubert inquiry" as determining the testimony's helpfulness to the jury).
The focus of the Rule 702 inquiry is on the principles and methodology employed by the expert, not the ultimate conclusions. Daubert, 509 U.S. at 595, 113 S.Ct. 2786. The court may not subvert the role of the fact-finder in assessing credibility or in weighing conflicting expert opinions. Rather, "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id. at 596, 113 S.Ct. 2786. See also Ruiz-Troche, 161 F.3d at 85 (admitting testimony notwithstanding a lack of peer-reviewed publications because the opinion rested upon good grounds generally and should be tested by the "adversarial process").
Expert scientific testimony that is admissible under Rule 702 may nonetheless be excluded under Rule 403 "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed.R.Evid. 403. See also Daubert, 509 U.S. at 595, 113 S.Ct. 2786. Thus, expert testimony that is relevant and that passes muster from a scientific standpoint may nonetheless be excluded if it is likely to be misinterpreted or misused by the jury.
B. Testimony at Evidentiary Hearing
This dispute concerns the admissibility of testimony by two proposed expert witnesses: plaintiff's expert, Dr. James W. Hopper, and defendant's expert, Dr. Harrison G. Pope, Jr. The Court held an evidentiary hearing at which it heard testimony from Dr. Pope and Dr. Hopper concerning the scientific reliability of repressed-memory theory. The Court also heard testimony from Dr. James A. Chu, a psychiatrist called by plaintiff.
Dr. James W. Hopper
Dr. Hopper is a clinical psychologist licensed to practice in Massachusetts. He received a B.A. in history from the University of Rochester in 1988 and a Ph.D. in clinical psychology from the University of Massachusetts — Boston in 1997. He has experience treating trauma victims and estimates that he has treated more than 200 patients who were sexually abused as children. He has also conducted research related to post-traumatic stress disorder ("PTSD") and memory-related effects of childhood sexual abuse. One focus of his research has been on brain-imaging studies concerned with biological mechanisms associated with psychological trauma and memory impairments. He is an advisory board member of an organization that provides support to men who were victims of childhood sexual abuse.
Dr. Hopper testified that the theory of repressed-memory was first conceived by Sigmund Freud in the late 19th century. (6/4/2012 Tr. at 42). He explained that modern concepts in the fields of cognitive neuroscience and cognitive psychology have modified psychologists' understanding of what repression is and how it works. (Id.). However, he asserted that the fundamental hypothesis — that the mind may suppress memories of a traumatic event so that a person cannot freely recall those memories — is accepted by many psychologists today. (Id. at 42-43). He defined the phenomenon of "recovered memory" as a "memory of an episode that [individuals] have experienced in their life that they believe they have not retrieved for a very long time." (Id. at 27).
Dr. Hopper also testified that the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV-TR"), recognizes a diagnosis called "dissociative amnesia." (Id. at 30-36).
When asked what distinguishes diagnosable dissociative amnesia from ordinary human forgetfulness, Dr. Hopper rejected what he called a "false dichotomy" between the two. (Id. at 50-53). He suggested that "[t]here's no simple thing called ordinary human forgetfulness. There are a whole bunch of mechanisms and processes by which people can forget things and retrieve them .... It's a matter of degrees; it's a matter of context." (Id. at 53). Different individuals, he explained, have different "capacities to block" memories. (Id.). Finally, he rejected the assumption that a person must meet the diagnostic criteria for dissociative amnesia as defined in the DSM-IV-TR to be experiencing substantial memory impairments as a result of childhood trauma. (Id.).
Dr. Hopper indicated that some of the theories to which he was testifying are reviewed in a book by Daniel Schacter, a neuroscientist at Harvard. (Id. at 69-70).
Dr. Hopper endorsed the conclusions of a 2006 article by Constance Dalenberg and a 1999 article by Daniel Brown, both of which address the role of repressed-memory theory in the courts. (Id. at 102-107).
Dr. Harrison G. Pope, Jr.
Dr. Pope is a licensed psychiatrist and professor of psychiatry at Harvard Medical School. Although Dr. Pope has treated patients who report memory problems, the focus of his work is on research. He has co-authored several articles that review published studies on repressed memory for purposes of clarifying the state of scientific knowledge on the topic.
At the outset of his testimony, Dr. Pope acknowledged that he agreed with "80 or 90 percent" of what Dr. Hopper said, but that he disagreed as to a "critical" portion that remained. (6/6/2012 Tr. at 12). In his words,
(Id. at 12-13).
Dr. Pope proceeded to elaborate on the types of memory impairment that he believed to be generally accepted among all scientists. He classified those impairments as (1) ordinary forgetfulness, (2) biological amnesia (including loss of memories of early-childhood memories due to brain development and amnesia due to head injuries and alcohol intoxication), (3) incomplete encoding due to focus on particular details (for example, a victim of an armed robbery might remember the type of gun used but not the assailant's appearance), (4) global amnesia (by which an individual loses all memories from a portion of their life), and (5) behavior that is erroneously diagnosed as "amnesia" (for example, deliberate non-disclosure). (Id. at 23-27). In contrast to these forms of memory loss, Dr. Pope defined "repressed memory" as the hypothesis "that you would become literally unable to remember
Dr. Pope next testified that repressed-memory theory is not generally accepted in the scientific community. With respect to the apparent recognition of the theory in the DSM-IV-TR, he asserted that "dissociative amnesia" is an ambiguous term that may be used to describe many forms of memory impairment, including, for example, incomplete encoding, global amnesia, and pseudoneurological amnesia. (Id. at 35). He cautioned that repressed-memory theory should not be equated with the concept of dissociative amnesia, and that recognition of the latter in the DSM-IV-TR does not imply scientific acceptance of the former. (Id. at 31). Treating the DSM-IV-TR diagnosis for dissociative amnesia as evidence that the scientific community accepts repressed-memory theory, he warned, would be analogous to assuming that because scientists recognize the existence of equine animals, they therefore believe in unicorns. (Id.).
Dr. Pope provided a list of 33 scientific publications in which authors have questioned the validity of the theory of repressed memory. (Id. at 37-40).
Dr. Pope also testified that he has reviewed 77 studies involving more than 11,000 individuals with various traumatic experiences, such as survivors of the holocaust or natural disasters. (Id. at 55). Of those, he asserted, not a single individual was reported to have experienced a period of repression during which he or she did not remember the experience. (Id.).
As to the testability of the repressed-memory hypothesis, Dr. Pope next explained what, in his view, a scientifically valid study supporting the theory of repressed memory would require. Such a study, he contended, would involve (1) a large group of subjects, each of whom is documented to have experienced a type of traumatic experience; (2) an interview of each subject within a year of that event, in which the victims are asked whether they remember the event and at least some say that they do not; and (3) follow-up interviews of those who claimed that they did not remember the experience, in which the interviewer describes the traumatic events to ensure that the interviewee is actually unable to recall the memory. (Id. at 56-57). He asserted that no published study that has purported to provide evidence of repressed memory — whether retrospective or prospective in experimental design — meets those criteria. (Id.).
Finally, Dr. Pope warned against applying the diagnostic standards contained in the DSM-IV-TR in court (especially the diagnosis for dissociative amnesia) because the manual was designed for therapeutic, not forensic, purposes. (Id. at 71). He indicated that the introduction to the DSM-IV-TR itself contains cautionary language stating that its use in legal settings may result in errors if the significance of the manual's diagnostic definitions is not properly understood by the decision-maker. (Id.). He added that Dr. Robert Spitzer, a psychiatrist who served on the
Dr. James A. Chu, M.D.
Dr. Chu is a licensed psychiatrist and associate professor of psychiatry at Harvard Medical School. He is a practicing clinician at McLean Hospital and has more than 30 years of experience in the diagnosis and treatment of adults who have been seriously traumatized as children. He has received numerous professional awards and distinctions for his work in the field of post-traumatic and dissociative disorders. He was a member of the task force that was responsible for dissociative disorders during the preparation of the DSM-IV.
Dr. Chu testified regarding the inclusion of dissociative amnesia as a diagnosis in the DSM-IV-TR. He explained that the diagnosis was first recognized in the Third Edition of the DSM, which was published in 1980. (6/8/2012 Tr. at 3). Although the earlier edition referred to the disorder as "psychogenic amnesia," the diagnosis had essentially the same criteria. (Id.). He testified that the continued inclusion of a diagnosis for the disorder in the DSM-IV-TR was not controversial, and that what debate did occur among members of the task force focused on the decision to change its name. (Id. at 7).
As to the significance of a diagnosis for dissociative amnesia in the DSM-IV-TR, Dr. Chu testified that although the DSM-IV-TR is a diagnostic tool, it is used for other purposes, as well. (Id. at 7-8). For example, recognition of a psychological or behavioral pattern in the manual legitimizes that disorder for purposes of defining health-insurance coverage and health-policy studies. (Id. at 8). In general, he explained, diagnoses in the manual do not address the mechanisms by which diagnosable symptoms arise. (Id. at 10). Instead, they provide a common language by which practitioners may categorize types of symptoms and behaviors. (Id. at 9).
Dr. Chu testified that dissociative amnesia is not itself a controversial concept among psychiatrists. (Id. at 14). He testified that the controversy related to the diagnosis among practitioners does not concern its validity, but the possibility that it may be erroneously diagnosed in cases where therapists' suggestive techniques have caused a patent to "recover" a memory during therapy of an experience that never actually occurred. (Id.).
Dr. Chu contended that the list of 33 scientific articles cited by Dr. Pope as critical of repressed-memory theory "looks a lot better than it really is." (Id. at 32). According to Dr. Chu, the majority of articles in the list deal with issues related to suggestive therapy, not repression or spontaneous memory recovery; nearly 40 percent of them either are not validated by peer review or lack other indicia of scientific standards; and eight others are authored by a small minority of psychologists, including Dr. Pope himself, who hold "extreme" views on the topic. (Id.). Dr. Chu also testified that Dr. Pope's list of 77 studies of trauma victims that failed to report any case of memory repression was less persuasive than Dr. Pope suggested. (Id. at 33). He indicated that many of those studies did not focus specifically on childhood sexual trauma, and that because the researchers were not testing for amnesiac disorders, they would have had no reason to ask about, or to report, memory repression. (Id. at 33). Thus, he concluded,
In sum, Dr. Chu concluded that trauma-related memory disorders are substantially more accepted in the scientific community than Dr. Pope asserted. (Id. at 33-37).
Prior Case Law
Plaintiff contends that the issue of whether expert testimony on the subject of memory repression is admissible has been settled as a matter of law, and that no further analysis is required. That position is clearly incorrect; admissibility of expert testimony under Rule 702 must be assessed on a case-by-case basis. Indeed, prior legal rulings may no longer reflect valid science:
Shirt v. Hazeltine, 461 F.3d 1011, 1026 (8th Cir.2006). Nonetheless, prior decisions applying the Daubert standard to the issue of memory repression merit review.
One of the first federal courts to apply Daubert principles to memory repression was Isely v. Capuchin Province, 877 F.Supp. 1055 (E.D.Mich.1995). In Isely, the court considered two motions in limine by the defendant that sought to exclude expert testimony by a clinical psychologist on PTSD and repressed-memory theory. The plaintiff offered the testimony both to prove the underlying allegations and to prove that the applicable statute of limitations was tolled as a result of plaintiff's memory repression. Of the two motions, the first sought exclusion of testimony on the theories generally, while the second only sought to preclude testimony that the plaintiffs' memories of abuse were credible or that the alleged abuse actually occurred. The court distinguished the two classes of testimony recognized by the two motions. Although it found that repressed-memory theory was sufficiently recognized within the field of psychology to warrant testimony about possible psychological explanations of plaintiff's behavior, it found that the clinical methodologies at issue offered "no absolute empirical way to prove that (1) an event happened and/or (2) that the memory of it was repressed." 877 F.Supp. at 1066. The court therefore granted the second motion in limine and held that the expert "should not be permitted to testify that she either believes [the plaintiff] or believes that the incidents he alleges occurred ...." Id. at 1067.
The same year, the First Circuit tangentially addressed the admissibility of repressed-memory testimony to prove allegations of childhood sexual abuse in Hoult v. Hoult, 57 F.3d 1 (1st Cir.1995). In Hoult, the court reviewed an appeal of the denial of a motion by the defendant for relief from judgment based on alleged trial errors. The court saw no error in the trial court's admission of general testimony on
In Shahzade v. Gregory, 923 F.Supp. 286 (D.Mass.1996), a court in this district reached essentially the same conclusion as the court in Isely. In Shahzade, the plaintiff alleged that she was sexually abused as a child over the course of a five-year period that ended nearly 47 years before she filed the complaint. The defendant moved to exclude the testimony of the plaintiff's expert, a psychiatrist who specialized in memory and trauma. As in Isely, the expert testimony was offered both to support the underlying allegations of abuse and to prove memory repression for purposes of avoiding the statute of limitations.
In 2010, the Massachusetts Supreme Judicial Court considered a criminal defendant's claim that the trial judge erred in admitting expert testimony related to memory repression in Commonwealth v. Shanley, 455 Mass. 752, 919 N.E.2d 1254 (2010).
Although there is a split of authority, other state courts have admitted expert testimony on dissociative amnesia, memory repression, and PTSD for purposes of proving that a victim of sexual trauma repressed and then later recovered memory of the abuse. See, e.g., Keller v. Maccubbin, 2012 WL 1980417, 2012 Del.Super. LEXIS 229 (May 16, 2012) (listing decisions of Delaware courts that found expert testimony on repressed-memory theory to be admissible to prove the applicability of a discovery rule); Logerquist v. McVey, 196 Ariz. 470, 482, 1 P.3d 113 (2000) (reversing an order to exclude testimony on repressed memories for statute-of-limitations purposes); Wilson v. Phillips, 73 Cal.App.4th 250, 252, 86 Cal.Rptr.2d 204 (Cal.App.4th Dist.1999) (affirming the admission of expert testimony on repressed-memory theory for statute-of-limitations purposes); Doe v. Archdiocese of New Orleans, 823 So.2d 360, 363 (La.App. 4th Cir.2002) (same); State v. Ali, 233 Conn. 403, 434, 660 A.2d 337 (1995) (affirming the admission of expert testimony on rape syndrome, including testimony regarding rape victims' tendency to delay reporting).
Application of Rule 702
Qualifications of the Experts
Plaintiff objects to Dr. Pope's qualifications to render an expert opinion, contending that he does not specialize in trauma-induced memory disorders and otherwise has insufficient training and experience. However, Dr. Pope's background is amply sufficient to testify knowledgeably on the topic. He has written several leading articles that contribute to the debate among specialists on whether repressed memory occurs in trauma victims. If his qualifications are less than complete, that issue is properly addressed on cross-examination, not by excluding the testimony altogether. See Mitchell v. United States, 141 F.3d 8, 15 (1st Cir.1998) (holding that an expert's lack of specialty practice in the area about which he testified went to the weight of his testimony, not its admissibility). The Court accordingly concludes that Dr. Hopper and Dr. Pope have sufficient academic and professional credentials to provide expert testimony on the issues in this case.
Scientific Reliability of the Testimony
Consideration of the second requirement for admissibility — that the proffered testimony is scientifically reliable — is more complex. The parties each contest the other's proffered testimony as to whether such a theory meets the standard of scientific reliability required by Rule 702.
As a threshold matter, it is necessary to clarify what the experts' testimony is offered to prove and disprove. Both Dr. Hopper and Dr. Pope began their testimony at the evidentiary hearing by defining "repressed" and "recovered" memory, but
Neither expert's definition precisely captures what a plaintiff must prove to claim the benefit of the statutory discovery rule. Mass. Gen. Laws ch. 260, § 4C provides that a victim's cause of action for childhood sexual abuse accrues at "the time the victim discovered or reasonably should have discovered that an emotional or psychological injury or condition was caused by" the defendant's alleged misconduct. The statute thus requires that a plaintiff who claims a delayed date of accrual on the theory that he repressed all memory of the abuse must show (1) that during the relevant period he was actually (that is, subjectively) unaware of the abuse or its causal relationship to any emotional or psychological conditions he may have had, and (2) that the lack of awareness was objectively reasonable. See Hoult v. Hoult, 792 F.Supp. 143, 145 (D.Mass.1992).
As to the first element, this standard does not require proof that plaintiff was completely unable to remember, regardless of what cues or reminders he experienced. Rather, the discovery rule clearly contemplates the possibility that a victim of abuse who represses memory of it will eventually recover that memory when appropriate cues trigger the memory. However, the statute also requires more than Dr. Hopper's definition suggests, because it is necessary that the plaintiff actually did not consciously remember the experience during the period preceding the memory's recovery.
As to the second element, the objective reasonableness of a plaintiff's failure to discover his cause of action must be understood in relation to the context of the statute. The rule contained in ch. 260, § 4C applies only in actions based on alleged childhood sexual abuse. The inclusion of a discovery rule in that statute alone implies a legislative intent to carve out an exception based on considerations that are specific to, or especially salient in cases of, victims of childhood sexual abuse. Psychological processes that are caused by childhood abuse and that hinder a victim's ability to recognize the causal connection between the abuse and subsequent psychological injuries fit with that type of consideration.
In sum, the admissibility of testimony on repressed-memory theory in a case where a plaintiff alleges total amnesia as to the alleged abuse prior to that memory's recovery depends on the scientific reliability of two postulates. Those are: (1) that a victim of childhood sexual abuse may repress memory of the abuse — such that he has no conscious awareness of it — for a prolonged but finite period, and (2) that such repression is the result of psychological phenomena specific to such abuse and not other types of forgetfulness.
A second threshold consideration is raised by the relationship between the parties' two motions. Because plaintiff has cross-moved to exclude the testimony of defendant's rebuttal expert, Dr. Pope, the issues before the Court includes not only the scientific reliability of repressed-memory theory but also the reliability of Dr. Pope's opinion that the theory is invalid. Although those issues are ostensibly
Consistently with that principle, the Court could evaluate each expert's testimony separately to decide whether that testimony falls within the range of views in the repressed memory debate that are scientifically supported. However, doing so would undermine the principle purposes of Rule 702 — to assist the jury in applying scientific concepts — because admission of either expert's testimony without the other would present a distorted view of the scientific debate. Put another way, it would be meaningless to admit Dr. Pope's testimony, which is in the form of a rebuttal, without that of Dr. Hopper. Conversely, admitting Dr. Hopper's testimony without that of Dr. Pope would disguise the fact that reasonable experts appear to disagree on the topic.
For the following reasons, the Court finds both that repressed-memory theory is a highly controversial theory and that it nonetheless has sufficient scientific support to be admissible under Rule 702. Accordingly, both experts will be permitted to testify.
Acceptance in the Scientific Community
Dr. Hopper testified that numerous studies and scientific reviews demonstrate that memory repression is generally accepted among both clinicians and research scientists.
First, defendant argues that the inclusion of "dissociative amnesia" in the DSM-IV-TR provides no evidence that the American Psychiatric Association recognizes the theory of memory repression as to which Dr. Hopper will testify. Dissociative amnesia, defendant contends, is a broad concept that includes undisputed causes of amnesia, such as head injuries or alcohol abuse, so that acceptance of dissociative amnesia does not imply acceptance of repressed-memory theory. (Id.). However, both Dr. Chu and Dr. Hopper testified that the DSM-IV-TR diagnosis reflected psychiatrists' explicit recognition of a form of trauma-induced temporary memory loss that is distinct — even if only by degree — from other recognized forms of forgetfulness. Moreover, the manual defines the basic criterion for dissociative amnesia as "an inability to recall important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by ordinary forgetfulness." DSM-IV-TR at 519. It excludes from the diagnosis memory disturbances that may be attributed to substance abuse, other amnesia-type disorders, or head injury. Id. at 523. It therefore appears that recognition of dissociative amnesia in the DSM-IV-TR weighs in favor of admitting Dr. Hopper's testimony.
Second, defendant argues that testimony concerning the diagnostic criteria for dissociative amnesia should not be admitted because the manual is not generally accepted as a forensic, as opposed to a therapeutic, tool. As Dr. Pope testified during his testimony, the introduction to the DSM-IV-TR warns against the risks of using its diagnostic criteria in a legal setting:
Id. at xxxii-xxxiii. However, the reservations expressed in that paragraph do not preclude use of information in the manual to assist the jury in assessing plaintiff's allegations of memory repression. The manual goes on to state that "[t]he use of the DSM-IV in forensic settings should be informed by an awareness of the risks and limitations discussed above. When used appropriately, diagnoses and diagnostic information can assist decision makers in their determinations." Id. at xxxiii. The authors of the manual thus do not state that it should not be used for forensic purposes, only that it should be used in such settings with considerable caution and care.
Third, defendant contends that a review of scientific literature shows that repressed-memory theory was a "scientific fad" during the 1990s that has since been discredited. Dr. Pope's testimony that the
In sum, both Dr. Hopper and Dr. Pope advocate scientific perspectives that have some support within the field of psychiatric and psychological sciences. For this reason, the general-acceptance factor weighs in favor of admitting their testimony on repressed-memory theory.
Plaintiff has submitted evidence that the scientific literature on repressed-memory theory includes a substantial number of studies that purport to provide empirical evidence of repression. However, defendant contends that those studies are unreliable because they do not employ objective methodologies.
First, defendant contends that the studies that plaintiff cites rely on research subjects' own unverified (and unverifiable) accounts of whether they were abused and later forgot about that abuse for some period of their lives. As Dr. Pope explained, retrospective studies in this field employ a "do-you-remember-that-you-forgot" experimental design that yields results that cannot be objectively verified because they concern purely mental processes. (6/6/2012 Tr. at 134). Even in prospective studies, where the fact of the abuse has been corroborated, there is no way to verify that a victim's failure to report that abuse can be attributed only to repression and not to other psychological processes. (Id. at 62-64).
It certainly gives the Court pause to admit, as scientific testimony, evidence of a thesis that is supported solely by self-reported accounts of individuals' memories as they existed over the course of many years. Proponents of repressed-memory theory have argued that this concern is overstated, and that studies on the topic have evolved and developed more sophisticated methodologies to mitigate the risks inherent to self-report data.
Second, defendant argues that experiments that would verify the theory can be designed, but that such experiments have not been conducted by its proponents. Dr. Pope testified that verification of memory
In sum, notwithstanding the methodological criticisms raised by Dr. Pope, the court finds that memory repression is a sufficiently testable and tested hypothesis to permit it to be submitted to the jury.
Relevance of the Testimony
Expert testimony on the topic of memory repression is clearly relevant to plaintiff's claim. Generally, whether expert testimony is necessary to sustain a state-law claim is determined by reference to substantive state law. Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 27 (1st Cir.2006). Here, plaintiff's claim is untimely unless he proves to the jury that until 2008 he lacked any conscious memory of the alleged abuse. Creighton, 439 Mass. at 283, 786 N.E.2d 1211. Determination of whether plaintiff repressed his memory requires an understanding of scientific views as to whether it is possible for a victim to repress such memories and what characteristics persons who suffer repression might have. Such knowledge is not within the common experience of ordinary jurors. Testimony from the parties' experts will therefore provide substantial assistance to the jury in evaluating plaintiff's claims.
Dr. Hopper's testimony is therefore relevant and likely to assist the jury in assessing the factual issues in this case. Dr. Pope's testimony, in turn, is necessary to give the jury a full picture of the relevant psychiatric or psychological principles.
Application of Rule 403
The fact that the evidence survives scrutiny under Rule 702 is not the end of the inquiry. As noted, Fed.R.Evid. 403 provides that otherwise-admissible evidence may be excluded if "its probative value is substantially outweighed by a danger of... unfair prejudice, confusing the issues, [or] misleading the jury ...." In Daubert, the Supreme Court noted that Rule 403 may act as a backstop where expert testimony that is admissible under Rule 702 carries a risk of unduly influencing the jury: "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses." Daubert, 509 U.S. at 595, 113 S.Ct. 2786 (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)).
Whether Rule 403 bars expert testimony on repressed-memory theory is, in some ways, a more difficult question than whether such evidence is allowed under Rule 702. In this case, important considerations
The principal danger in admitting the testimony is the possibility that the jury will interpret the expert's testimony, explicitly or implicitly, as an opinion that the plaintiff is credible. This consequence flows directly from nature of the testimony; the very purpose of offering it is to establish that plaintiff's version of events ("this happened, and I forgot about it for more than thirty years") is more credible than it otherwise might appear to be. Put another way, if the expert testimony does not bolster plaintiff's credibility, it has no real purpose.
A further danger is that the concept of memory repression may invite fallacious reasoning. Of course, a jury may logically credit a witness's testimony that he remembers being abused. But testimony that the witness does not remember being abused may be interpreted equally as evidence of repressed memory or as evidence of a non-existent memory. Testimony on repression might lead a juror to err by treating a person's lack of memory as affirmative evidence that the alleged abuse occurred. To state the point simply, a jury might conclude that if he remembered the abuse, that fact is proof that it occurred — and if he didn't remember it, that too is proof that it occurred, and indeed that it was so traumatic that he suppressed his memory of it.
There are other dangers, as well; for example, the jury might interpret testimony that a person's behavior is "consistent with" that of someone who has repressed memory of a traumatic experience as being testimony that the person actually experienced the phenomenon. All these risks, taken together, demand that a court exercise caution in admitting expert testimony of the kind at issue here.
However, other factors that are specific to this case weigh in favor of admission. First, the Massachusetts legislature appears to have expressly recognized the legitimacy of memory repression by enacting the discovery rule set forth in Mass. Gen. Laws ch. 260, § 4C. Indeed, the statutory text is tailored for plaintiffs whose failure to file a timely complaint was caused by the psychological effects — including memory impairment — of childhood abuse. While that legislative judgment does not affect the validity (or lack of validity) of the underlying science, it is nonetheless a factor to be weighed in the overall "fairness" assessment under Rule 403.
Second, this matter does not involve a memory "recovered" in therapy, or otherwise under more dubious circumstances. Testimony during the Daubert hearing made clear that therapeutic techniques may introduce false memories and that memories recovered under such circumstances are less reliable than spontaneously recovered memories. Compare State v. King, 733 S.E.2d 535, 2012 WL 2213682, 2012 N.C. LEXIS 418 (June 14, 2012) (in criminal action where timeliness was not raised as an issue, affirming the exclusion of expert testimony on repressed memories that were recovered in therapy because "its probative value was outweighed by its prejudicial effect."). In such a case, the balance might tip substantially in favor of exclusion of the evidence.
Third, this is a civil, not a criminal case. For a variety of reasons, the balance under Rule 403 might well be drawn differently if the evidence were offered by the government in a criminal prosecution.
Finally, the Court is not limited to mere admission or exclusion of the evidence. The Court has the authority to give appropriate limiting and cautionary instructions, both as the testimony is admitted and at the end of the trial, to help ensure that the jury is properly focused on the issues and
After careful consideration, the Court has concluded that the balance under Rule 403 tips narrowly in favor of admission. The Court finds that, under the narrow circumstances of this case, the probative value of testimony of repressed-memory theory is not substantially outweighed by its risks. However, that testimony will be subject to strict limitations. The experts may not opine as to the credibility of plaintiff's memories or as to whether the alleged abuse actually occurred, and the Court will underscore that point to the jury with appropriate instructions and cautions. Moreover, testimony as to the reliability of memories recovered in therapy will be excluded as irrelevant.
At trial, Dr. Hopper and Dr. Pope will be permitted — assuming, of course, that a proper factual foundation has been laid — to testify concerning memory repression theory, its defining characteristics, and its limitations and degree of acceptance in the scientific community. Dr. Hopper will be permitted to testify that plaintiff's reported experience is consistent with repressed-memory theory. However, neither expert will be permitted to opine as to whether Clark suffered from the alleged abuse, whether he actually repressed any memories of the experience, or whether he is a credible witness or his claimed memory is more credible than it otherwise might appear.
For the foregoing reasons, both motions in limine to exclude expert testimony are DENIED.
The Court found that the testimony of those experts "invaded the jury's province." Id. It explained: "In abuse cases, experts may testify that an alleged victim suffers from symptoms consistent with sexual abuse.... Experts, however, may not comment on the alleged victim's credibility .... Expert testimony, based on the statements of an alleged victim, that sexual abuse in fact occurred is inadmissible .... Statements that assume the fact of abuse are also inadmissible." Id. at 910 (internal citations omitted).
The court admitted the testimony for that purpose, permitting the expert to testify "that the plaintiff suffer[ed] from PTSD, that sexual abuse can be a stressor sufficiently severe to result in PTSD, and that plaintiff's symptoms and behaviors [were] consistent with those of people who have suffered childhood sexual abuse." Id. at 130. The court also held, however, that the expert could not "opine on the credibility of plaintiff or offer any opinion that plaintiff in fact suffered the sexual abuse she claims." Id.