(CA). Opening and Amicus Briefs, Repressed Memory, 2006

S133805
IN THE SUPREME COURT OF CALIFORNIA
________________________________________________________
NICOLE TAUS,
Plaintiff and Respondent,
vs.
ELIZABETH LOFTUS, ET AL.,
Defendants and Appellants.
Appeal From an Order of the Solano County Superior Court
Honorable James F. Moelk, Judge
Review After Judgment of the Court of Appeal,
First Appellate District, Division Two
Justice Paul R. Haerle, Acting Presiding Justice
________________________________________________________
PETITIONERS’ OPENING BRIEF
________________________________________________________
Thomas R. Burke (State Bar No. 141930)
Rochelle L. Wilcox (State Bar No. 197790)
Davis Wright Tremaine LLP
One Embarcadero Center, Suite 600
San Francisco, CA 94111-3611
Tel.: (415) 276-6500
Fax: (415) 276-6599
Attorneys for Appellants/Petitioners
Elizabeth Loftus, Melvin Guyer, The
Committee For The Scientific Investigation
Of Claims Of The Paranormal (CSICOP),
Skeptical Inquirer and Center For Inquiry
West
Christopher Patti (State Bar No. 118283)
University of California
Office of General Counsel
1111 Franklin Street, 8th Floor
Oakland, CA 94607-5200
Tel.: (510) 987-9739
Fax: (510) 987-9757
Attorneys for Appellant Elizabeth Loftus
Jeane Struck (State Bar No. 112107)
Selman-Breitman
33 New Montgomery St., 6th Floor
San Francisco, CA 94105
Tel.: (415) 979-0400
Fax: (415) 979-2099
Attorneys for Appellant Elizabeth Loftus
Duke F. Wahlquist (State Bar No. 117722)
Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626-1998
Tel.: (714) 641-5100
Fax: (714) 546-9035
Attorneys for Appellant Elizabeth Loftus
ii
Davis Wright Tremaine LLP
L AW O F FI CES
One Embarcadero Center, Suite 600
San Francisco, California 94111-3611
(415) 276-6500
Fax: (415) 276-6599
TO THE HONORABLE RONALD M. GEORGE, CHIEF JUSTICE OF
THE STATE OF CALIFORNIA, AND TO THE ASSOCIATE JUSTICES
OF THE CALIFORNIA SUPREME COURT:
Petitioners Elizabeth Loftus, Melvin Guyer, The Committee For The
Scientific Investigation Of Claims Of The Paranormal (CSICOP), Skeptical
Inquirer and Center For Inquiry West (collectively “Defendants”)
respectfully submit their Opening Brief.1
1.
ISSUES PRESENTED FOR REVIEW
1.
Does Plaintiff’s repeated consent to publication of intimate
details of her alleged childhood sexual abuse by an advocate on one side of
the public debate over “repressed memories,” including a consent given to
counter arguments by advocates on the other side of that debate, render
Plaintiff a limited purpose public figure?
2.
Can Plaintiff hold a reasonable expectation of privacy in
information held by Plaintiff’s foster-mother about Plaintiff’s activities as a
teenager, giving rise to a claim for invasion of privacy based on Defendants
obtaining that information, allegedly by misrepresentation?
1
All claims alleged against co-defendant, Dr. Carol Tavris, were
dismissed by the Court of Appeal. Court of Appeal Opinion (“Op.”) at 40.
1
3.
Can Plaintiff meet her burden under the anti-SLAPP statute of
establishing that Defendants invaded Plaintiff’s privacy by allegedly
learning the identity of Plaintiff’s foster-mother by obtaining purportedly
confidential Solano County juvenile records, by relying exclusively on a
declaration stating a co-defendant “copied voluminous public records” in
Solano County, where at least seven publicly-available files exist in that
County unrelated to the juvenile file, consisting of hundreds of pages and
featuring dozens of mentions of Plaintiff and her foster-mother?
4.
Can Plaintiff assert a claim for public disclosure of private
facts based on (a) Defendant’s disclosure of Plaintiff’s initials during a
deposition that occurred after Plaintiff filed this lawsuit using her own name,
or (b) Defendant’s revelation that “Jane Doe” serves in the Navy,
notwithstanding that (a) Plaintiff repeatedly consented in writing for her
alleged sexual abuse as a child to be used by an advocate in the debate over
“repressed memories,” rendering information about Plaintiff newsworthy;
(b) Plaintiff’s full name can be found in numerous public records; and
(c) Plaintiff’s employment in the Navy is newsworthy because of its
relevance to this public debate?
2
2.
INTRODUCTION
Scientific progress is often marked by controversy and advanced by
the contributions of those who challenge the veracity of scientific claims.
The First Amendment exists to protect individuals who vigorously explore,
challenge, and communicate their points of view on matters of legitimate
public interest, including – as here – issues that engender tremendous
scientific controversy.
This invasion of privacy and slander action is brought by a young
woman who, years ago, consented to use of her alleged history of sexual and
physical abuse by her mother as part of the research into the scientific
controversy over whether people repress and later recover painful memories.
Calling Plaintiff “Jane Doe,” Drs. David Corwin and Erna Olafson disclosed
tremendous detail about Plaintiff’s allegations of abuse in an influential
article, “Videotaped Discovery of a Reportedly Unrecallable Memory of
Child Sexual Abuse: Comparison With a Childhood Interview Videotaped
11 Years Before.” When Plaintiff discovered that Drs. Elizabeth Loftus and
Melvin Guyer were investigating the veracity of those claims, she initiated a
nearly two-year ethics investigation against Dr. Loftus at the University of
Washington. Dr. Loftus was exonerated by the University, and Defendants
published an article detailing their research in the Skeptical Inquirer (“Who
Abused Jane Doe? The Hazards of the Single Case History,” Appellants’
3
Appendix (“App.”) 0262-0277). In response, Plaintiff filed this lawsuit, in
her own name, publicly acknowledging she was Dr. Corwin’s “Jane Doe.”
(App. 0024.)
The “repressed memories” debate affects a broad spectrum of society,
from the victims of alleged abuse whose alleged recollections often destroy
families, to purported wrongdoers facing criminal and civil prosecution
based on allegedly recovered memories, to therapists and professionals who
continue to study how the brain stores and processes memories. In the
1990’s the belief that memories could be repressed and later fully
remembered saw widespread acceptance. See Trear v. Sills, 69 Cal.App.4th
1341, 1344 (1999). As the commentators to Dr. Corwin’s “Jane Doe”
article emphasized, his article was influential because it purportedly
documented – for the first time – a videotaped recollection of repressed
memories. (App. 0178, 0182, 0186, 0188, 0191.) The California
Legislature implicitly adopted one side of the debate when it enacted Code
of Civil Procedure Section 340.1(a), permitting persons who were sexually
abused as a child to sue “within three years of the date the plaintiff discovers
or reasonably should have discovered that psychological injury or illness
occurring after the age of majority was caused by the sexual abuse....” Id.
But the scientific pendulum has swung back, with many questioning
whether memories are repressed as frequently as others claim, or indeed
whether they can be repressed and later recovered at all. Id. at 1345.
4
The research of Defendants Drs. Elizabeth Loftus and Melvin Guyer
– including their Skeptical Inquirer article – has been key to this sea change.
(App. 0105-0106.) Drs. Loftus and Guyer’s research into the background of
Dr. Corwin’s “Jane Doe” involved reviewing publicly-available court
records and conducting interviews with Plaintiff’s family and caregivers.
Defendants discussed their research publicly – in the Skeptical Inquirer
article and during speeches Dr. Loftus gave after the article was published
(one of which is the source of Plaintiff’s only remaining slander claim), but
never identified Plaintiff by name, referring to her only as “Jane Doe.”
Dr. Corwin also continued to engage in this public debate, with
Plaintiff’s blessing. Plaintiff’s repeated willingness to allow Dr. Corwin to
use her alleged history of abuse, along with videos displaying her face as a
child and an adult, in his article and at public conferences – even after
publication of the Skeptical Inquirer article, which Plaintiff characterized as
a “roadmap” to her identity – requires her to be treated as a limited purpose
public figure for purposes of the “repressed memories” debate. Because
Plaintiff did not and cannot prove Dr. Loftus acted with constitutional
malice, her slander claim should have been stricken. Plaintiff also did not
prove Dr. Loftus (or any other Defendant) committed any wrong while
investigating Dr. Corwin’s claims, or that Dr. Loftus revealed anything
private or offensive about Plaintiff.
5
Plaintiff seeks to prohibit scientists on one side of this debate from
inquiring into and disputing the claims of Dr. Corwin and his supporters,
who depict the abuse by Plaintiff’s mother in the manner that Plaintiff
believes took place. The First Amendment must prevail here or it will not
have protected its core value – debate over matters of vital public interest.
This Court should correct the Court of Appeal’s errors in allowing any part
of Plaintiff’s lawsuit to proceed.
3.
STATEMENT OF FACTS
A.
With Plaintiff’s Informed Consent, Dr. Corwin Reveals
Plaintiff’s Intimate Experiences of Alleged Sexual Abuse in Print
and as Captured on Videotape, to Advocate His Theories About
the Efficacy of Repressed Memory Claims.
Plaintiff’s parents divorced in 1979, and entered into a protracted
custody dispute. (App. 1045.) In 1984, when Plaintiff was six years old,
Plaintiff reportedly told Dr. Corwin, a court-appointed psychiatrist, that her
mother had sexually and physically abused her. (App. 0151-0153, 0791,
0820, 1045.) Following Dr. Corwin’s evaluation, full custody of Plaintiff
was awarded to her father, and Plaintiff and her mother lost contact. (Id.)
Dr. Corwin videotaped his interviews with Plaintiff and later, with the
written consent of Plaintiff and her father, displayed those videotapes in
classes and at conferences. (App. 0749-0756.)
6
Eleven years later, when Plaintiff was seventeen, Dr. Corwin
contacted Plaintiff to seek permission to continue to display the videotapes.
(App. 0158.) By that time, Plaintiff’s father was in a nursing home, and
Plaintiff was living with foster parents. (App. 0820.) Plaintiff advised Dr.
Corwin that her memories of the alleged abuse were sketchy, and asked to
watch the earlier videotapes. (App. 0158.) With Plaintiff’s permission, Dr.
Corwin videotaped this interview with Plaintiff, before and after Plaintiff
watched the videotapes of her interviews with Dr. Corwin at age six. (App.
0158, 0820.) Plaintiff’s foster-mother, Margie Cantrell, was present during
the interview.2 (App. 0164.) During the course of this interview with Dr.
Corwin, Plaintiff purportedly recovered lost memories of alleged abuse by
her mother. (App. 0165-0169.) Plaintiff and her foster-mother watched the
1984 videotapes and then disclosed significant personal information about
Plaintiff, including her activities as a teenager. (App. 0167-0169.)
With Plaintiff’s written consent, given when Plaintiff was eighteen
years old (see MJN Exh. B at 0175; App. 0753), Dr. Corwin wrote about
2
While Ms. Cantrell alleges she “acted as” a foster-mother to
Plaintiff (App. 0684), nothing in the record indicates that Ms. Cantrell was
ever officially appointed as a foster-mother. (Petitioners’ Motion for
Judicial Notice (“MJN”) Exh. B, passim.) Nevertheless, Ms. Cantrell is
referred to as Plaintiff’s foster-mother throughout this brief.
Petitioners asked the Court of Appeal to judicially notice the
documents submitted with their concurrently-filed Motion for Judicial
Notice, but that court declined to do so. (Op. at 22 n.5; Docket, No.
A104689, 5/2/05.)
7
Plaintiff’s alleged recovery of memories of childhood abuse, referring to
Plaintiff as “Jane Doe.” (App. 0151-0172.) His article reports Plaintiff’s
explanation for her consent:
And next you’re going to ask me if you can use this for
educational purposes, right? Yes (laughs), you can. Yeah, I
think it’s – I mean, I’m prepared to give my life, devote my
life, to helping other kids who have gone through what I’ve
gone through, well not necessarily what I’ve gone through,
that have gone through traumatic ... experiences, by becoming
a psychologist or psychiatrist, whichever I decide but, and I by
no means want to stand in your way.
(App. 0169.) Dr. Corwin’s article appeared in the May 1997 issue of the
scientific journal Child Maltreatment, a publication of the American
Professional Society on the Abuse of Children (“APSAC”). (App. 01510172.)
The article discusses the “memory debate,” which Dr. Corwin
characterizes as “polarized.” (App. 0151.) It opines, “much remains to be
learned about human memory” including “how [memories] can become
contaminated mixtures of both accurate and inaccurate information,” and
declares that “[m]any questions remain unanswered.” (Id.) As a
contribution to that debate, the article offers “the unusual and perhaps
unique” case of “Jane Doe,” including transcripts of his videotaped
interviews of “Jane Doe” as a child and later, as a seventeen-year-old. (App.
0152.) The article features a variety of specific factual information
regarding Plaintiff’s alleged abuse and background, including “Jane Doe’s”
8
claim that her mother “puts her finger in my vagina in the bathtub,” had
“burned [her] feet,” was convicted and jailed for fraud, had been abused by
“Jane Doe’s” grandfather and had a dissociative disorder, that “Jane Doe’s”
father died on November 2, 1994, and that since age sixteen “Jane Doe”
lived in foster care. (App. 0153-0157.) It also reveals extensive information
about “Jane’s” life as a teenager, including her struggles to understand her
earlier allegations of abuse, and ongoing conflicts with her foster parents.
(App. 0167-0168.) Ms. Cantrell describes “Jane” as “tragically headstrong”
and explains that “Jane” had struggled with memories of abuse and “had
come to a point where you could not tell her anything. She didn’t have rules
or regulations and wouldn’t succumb to any.” (App. 0167.)
Dr. Corwin also presented and displayed, at professional seminars
and conferences, the videotape in which Plaintiff purportedly recovers her
lost memories of sexual and physical abuse. (App. 0283, 0753.) The
videotape shows Plaintiff’s face as a child in 1984 and in the later interview
as an adolescent, mentions her first name (“Nicole”) and the location
“Modesto.” (App. 0107-0108 ¶9, 0283 ¶3, 1152 ¶3.) Dr. Corwin
acknowledged that his “article generated a good deal of scientific and
scholarly response.” (App. 0820 ¶5.) Plaintiff, through her lawyer,
characterized it as “an important paper on the issue of recovered memory.”
(App. 0791 ¶3.) Dr. Corwin’s work was embraced by advocates who
believe memories of abuse or trauma can be repressed and recovered years
9
later under therapy or through the use of suggestive techniques. (App. 01070108, 0201-0202.)
B.
Drs. Loftus and Guyer Question Dr. Corwin’s Claims; Using
Routine and Legal Techniques, They Investigate Plaintiff’s
Background.
Elizabeth Loftus, Ph.D., and Melvin Guyer, Ph.D., reside on the other
side of this debate on the nature of memory. Dr. Loftus is internationallyrecognized as an expert on the malleability of memory. (App. 0029, 0106.)
Dr. Loftus’s studies and experiments have produced substantial evidence
that many purportedly repressed memories are created by suggestive
questioning. (App. 0877, 0899.) Dr. Loftus has described the scope of the
controversy raised by “the mind’s ability to bury a memory and then bring it
back into consciousness years later” and her role in this public controversy,
explaining the breadth of people it affects and her skepticism about the
claims of repressed memories but sympathy with “the True Believers’
concerns.” “The Myth of Repressed Memory: False Memories and
Allegations of Sexual Abuse,” Dr. Elizabeth Loftus and Katherine Ketcham,
1994, St. Martin’s Press, p.32.
In 2001, when Dr. Loftus received the William James award from the
American Psychological Society (“APS”) – its highest award for scientific
contributions – her research was described as having “advanced
substantially” “both the quality of basic memory research and the fairness of
the criminal justice system.” (App. 0877.) The APS explained:
10
Over the past 15 years, Dr. Loftus’s attention has turned to a
related but considerably more controversial issue, that of the
validity of “recovered memories” of childhood abuse. As a
result of her pioneering scientific work as well as her activity
within the legal system, society is gradually coming to realize
that such memories, compelling though they may seen when
related by a witness, are often a product of recent
reconstructive memory processes rather than of past objective
reality. In bringing to light these facts of memory, Dr. Loftus
has joined the ranks of other scientists, past and present, who
have had the courage, inspiration, and inner strength to
weather the widespread scorn and oppression that
unfortunately but inevitably accompanies clear and compelling
scientific data that have the effrontery to fly in the face of
dearly held beliefs.
(Id. (emphasis added).)
Skeptical of Dr. Corwin’s depiction of “Jane Doe’s” purported
memories of abuse, in 1997, Drs. Loftus and Guyer began to investigate the
facts underlying the “Jane Doe” case history. (App. 0108-0109.) A simple
computer search – using the terms “Corwin” and “burned feet” – retrieved
one appellate court decision, involving the custody dispute between
Plaintiff’s parents when they divorced: In re William T, 172 Cal.App.3d
790 (1985). (App. 0108-0109, 0204-0219.) In this decision, Plaintiff’s
father won a jurisdictional battle and established that the juvenile court in
Solano County – where Plaintiff had moved with her father – had
jurisdiction over custody issues. Thus, Plaintiff’s father was entitled to
disregard orders from Stanislaus County (which had found him in
contempt), directing him to allow visitation between Plaintiff and her
mother, because Solano County had issued contrary orders.
11
The discovery of In re William T led Drs. Loftus and Guyer to other
information regarding Dr. Corwin’s “Jane Doe.” They reviewed publiclyavailable documents that cast doubt on the completeness of, and raised other
questions regarding, Dr. Corwin’s presentations of Plaintiff’s claims of
abuse. (App. 0109-0110.) Dr. Loftus reviewed the files from Solano
County, where Plaintiff grew up, which disclosed a host of information
about Plaintiff, including Plaintiff’s name, the names of her biological
parents and foster parents, addresses and detailed financial information, as
well as the specific allegations of physical and sexual abuse Plaintiff alleged
she endured from her mother. (App. 0630-0632; MJN Exh. B at 0019-0045,
0100, 0102, 0104, 0107, 0110-0123, 0175.) Drs. Loftus and Guyer both
reviewed the publicly-available file in Stanislaus County involving the
divorce of Plaintiff’s parents. (App. 0109; Motion to Supplement Record
(granted by Court of Appeal), Exh. A.) They also both interviewed
Plaintiff’s biological mother; Dr. Loftus interviewed Margie Cantrell,
Plaintiff’s foster-mother, among others. (App. 0109, 0275.)
This information raised serious questions about key details in Dr.
Corwin’s depiction of “Jane Doe’s” case history and cast doubt on the
wisdom of relying on Dr. Corwin’s “Jane Doe” case study as evidence of the
phenomenon of the recovery of “repressed” memories. (App. 0111, 02610277.)
12
C.
Plaintiff Files a Complaint Against Dr. Loftus with Her Former
Employer, the University of Washington; After Dr. Loftus Is
Absolved of Wrongdoing, She and Dr. Guyer Publish Their
Findings in the Skeptical Inquirer.
In 1999 Plaintiff complained to Dr. Loftus’s then-employer, the
University of Washington, about Dr. Loftus’s research into Plaintiff’s
background. This triggered a nearly two-year-long ethics investigation.
(App. 0773.) Plaintiff sought to have Dr. Loftus punished by the University,
claiming her investigation into Plaintiff’s background violated ethical
principles because Dr. Loftus did not seek permission from the University
before contacting Plaintiff’s family and caregivers. (App. 0791-0863.)
Plaintiff’s stated goal was “to prevent Dr. Loftus from engaging in similar
actions against innocent research participants in the future.” (App. 0853
¶15.) Following the investigation, the Washington Attorney General
informed Plaintiff that “[t]he [University’s] investigation revealed that
neither scientific nor scholarly misconduct occurred.” (App. 0888).
In summer 2002, Drs. Loftus and Guyer’s article was published in
two parts in the Skeptical Inquirer magazine, a publication dedicated to
critically investigating paranormal and fringe-science claims. (App. 02610277.) Skeptical Inquirer is published by the Committee for the Scientific
Investigation of Claims of the Paranormal (“CSICOP”), a non-profit
organization formed in 1976 by scientists, academics and science writers
such as Carl Sagan, Issac Asimov, Philip Klass, Paul Kurtz, Ray Hyman,
13
James Randi, Martin Gardner, Sidney Hook and others. The article protects
Plaintiff’s anonymity, calling her “Jane Doe,” and discusses Dr. Corwin’s
claims and the contrary evidence Drs. Loftus and Guyer had found. (Id.) In
its title and throughout the article, Drs. Loftus and Guyer question the
scientific merits of the inclination of mental health professionals to rely on a
single case history to support behavioral theories. (App. 0269.) As one
example, the article discusses Freud, and the fact that it took decades before
critics were willing to expose Freud’s biases – the information he omitted,
the distortions of his patients’ statements, and his refusal to consider
alternative explanations for their complaints. (App. 0271.) The article
discusses the “Jane Doe” case history to provide valuable and omitted
context to Dr. Corwin’s article, and warns against the danger of relying on
the “Jane Doe” case to support the “repressed memories” theory. (Id.)
Former co-defendant Carol Tavris published a companion article, discussing
the challenges Drs. Loftus and Guyer faced as they participated in this
scientific controversy. (App. 1000-1007.)
D.
The Public Debate About the Efficacy of Repressed Memories
Continues; With Plaintiff’s Consent, Dr. Corwin Continues to
Use Plaintiff’s Experiences and Image to Support His Claims.
The public debate that is at the core of this lawsuit is one of profound,
widespread significance. On its website, the American Psychological
Association (“APA”) describes the fundamental nature of this debate:
14
Can a memory be forgotten and then remembered? Can a
‘memory’ be suggested and then remembered as true?
These questions lie at the heart of the memory of childhood
abuse issue. Experts in the field of memory and trauma can
provide some answers, but clearly more study and research are
needed. What we do know is that both memory researchers
and clinicians who work with trauma victims agree that both
phenomena occur. However, experienced clinical
psychologists state that the phenomenon of a recovered
memory is rare (e.g., one experienced practitioner reported
having a recovered memory arise only once in 20 years of
practice). Also, although laboratory studies have shown that
memory is often inaccurate and can be influenced by outside
factors, memory research usually takes place either in a
laboratory or some everyday setting.
(MJN Exh. J.) One scholar characterized the debate as “one of the most
controversial psychological phenomena of our time.” (App. 0191.)3
Dr. Corwin’s article featuring Plaintiff’s purported recovery of
alleged sexual abuse by her mother remains a key part of this public debate.
(App. 0106-0108, 0183, 0185, 0186, 0188, 0195; MJN Exhs. I, M.) In 2002
(when Plaintiff was twenty-four years old (MJN Exh. B at 0175)), following
publication of the Skeptical Inquirer articles, Plaintiff authorized Dr. Corwin
to use her alleged sexual abuse to combat the theories advanced by Drs.
Loftus and Guyer:
3
Exemplifying the importance of the research undertaken by Drs.
Loftus and Guyer, one commentator in Child Maltreatment, opined that a
necessary first step in evaluating Dr. Corwin’s claims regarding “Jane Doe”
is ascertaining whether abuse occurred at all, although he stated he found
“the evidence provided by Corwin and Olafson” to provide “compelling
reasons to believe that Jane was the victim of sexual abuse.” (App. 01910192.)
15
I Nicole S. Taus, hereby give my permission for Dr. David
Corwin to present both videos tapes [sic] of me at ages 6 and
17, followed by discussion of recent events including articles
published by Loftus and Guyer, at a statewide child abuse
conference to be held outside Oklahoma City 6 Sept 02.
(App. 0756.) Similarly, APSAC’s website states:
Due to the recent public interest in the article about Jane Doe’s
videotaped recollection of childhood sexual abuse published in
the 1997 Volume of Child Maltreatment, Sage Publications,
the authors, Jane Doe, and APSAC have agreed to make this
article and the accompanying commentaries available. ...
(MJN Exh. I.)
In October 2002, after the Skeptical Inquirer articles were published,
while Dr. Loftus was lecturing about the “Jane Doe” article at a professional
conference in Chicago, she was asked about “Jane’s” present life. (App.
0112, 0641.) Plaintiff contends Dr. Loftus stated, “in a sarcastic tone,” that
“Jane Doe engaged in destructive behavior that I cannot reveal on advice of
my attorney. Jane is in the Navy representing our country.” (App. 0642.)
Plaintiff contends “[t]here were titters in the audience” because Dr. Loftus
purportedly implied Plaintiff was unfit to serve in the Navy. (Id.) Dr.
Loftus disputes this inference. (App. 0112.)4
4
Plaintiff’s allegations regarding this purported statement have
evolved. In her verified Complaint, Plaintiff alleged Dr. Loftus stated:
“Jane Doe is a troubled young woman engaged in delinquent behaviors that
I have been advised by my attorneys not to mention at this time. Can you
believe that this troubled young woman serves in the United States Navy?”
(App. 0014.) In her verified First Amended Complaint, Plaintiff
substantially altered what Dr. Loftus allegedly stated: “Jane Doe engaged in
16
4.
PROCEDURAL HISTORY
Plaintiff’s operative verified First Amended Complaint was filed
March 6, 2003, using Plaintiff’s own name, voluntarily disclosing the full
names of her parents and her hometown and explicitly confirming that she
was Dr. Corwin’s “Jane Doe.” (App. 0024-0026, 0030.) This lawsuit was
the first time Plaintiff had been publicly identified as “Jane Doe.” Plaintiff
alleged four causes of action:
1.
Negligent Infliction of Emotional Distress against all
Defendants, apparently based on the Skeptical Inquirer articles;
2.
Invasion of Privacy against all Defendants, apparently
based on the investigation conducted by Drs. Loftus and Guyer and
on the Skeptical Inquirer articles;
3.
Fraud against Dr. Loftus and the University of
Washington, the claims against Dr. Loftus apparently based on Dr.
Loftus’s purported misrepresentations while investigating Plaintiff’s
background; and
4.
Defamation/slander against Drs. Loftus and Tavris, the
claims against Dr. Loftus apparently based on statements Dr. Loftus
made during the October 2002 conference.
destructive behavior that I cannot reveal on advice of my attorney. Jane is
in the Navy representing our country.” (App. 0043, 0056.)
17
(App. 0047-0048, 0050-0051.)
Defendants moved under California Code of Civil Procedure
(“C.C.P.”) Section 425.16 to strike Plaintiff’s First Amended Complaint (the
“anti-SLAPP Motion”). (App. 0069-0101.) The trial court’s “Order After
Hearing” granted Defendants’ Motion as to the fraud claim against Dr.
Loftus and the defamation claim against Dr. Tavris, but otherwise denied it.
(App. 1363-1364.) Defendants timely appealed from the Order. (App.
1366.) Plaintiff did not cross-appeal; consequently the fraud claim against
Dr. Loftus and defamation claim against Dr. Tavris were dismissed.
The Court of Appeal issued its Opinion on April 1, 2005. It found
that “the controversies regarding the validity of both the repressed memory
theory in general and the Jane Doe study in particular are newsworthy
matters of interest to substantial segments of the general public.” (Op. at
22.) Thus, the court found Defendants met their burden of establishing, as a
predicate matter, that the conduct giving rise to Plaintiff’s claims was in
furtherance of Defendants’ rights of free speech – the first part of the antiSLAPP analysis. (Id. & n.5.)
The court also found Plaintiff failed to substantiate many of her
claims, rejecting Plaintiff’s claim for negligent infliction of emotional
distress (id. at 24-25), and most of the arguments underlying Plaintiff’s
claim for public disclosure of private facts. (Id. at 26-28.) It found that the
Skeptical Inquirer articles were protected. (Id. at 26-27.) Nevertheless, the
18
court held that two alleged disclosures by Dr. Loftus after the articles were
published – Plaintiff’s initials, disclosed at a deposition after Plaintiff filed
her Complaint below, and the true fact that “Jane Doe” is in the Navy –
might give rise to liability. (Id. at 26-28.)
Similarly, the court rejected many of Plaintiff’s arguments underlying
her claim for intrusion on seclusion. It found that two alleged actions by Dr.
Loftus and co-defendant Harvey Shapiro – purportedly making
misrepresentations to Plaintiff’s foster-mother, Ms. Cantrell, to interview
her, and allegedly accessing a confidential Solano County juvenile file –
might give rise to liability. (Id. at 29-33.)
Finally, the court rejected most of Plaintiff’s defamation claim. It
found protected in their entirety the Skeptical Inquirer articles and one
statement Dr. Loftus allegedly made after the articles were published. (Id. at
35-38.) It did, however, conclude that the statements Dr. Loftus allegedly
made at the October 2002 conference in Chicago might be actionable. (Id.
at 38-39.) It implicitly permitted Plaintiff to pursue that slander claim as a
private figure, rather than a “limited purpose public figure,” based on this
statement, holding that Dr. Loftus bears the burden of establishing the truth
of the challenged statements. (Id.)
Defendants Petitioned for Rehearing and Clarification on April 18,
2005, concurrently moving for judicial notice of court records that clarified
what appeared to be a significant misunderstanding by the court regarding
19
Solano County records about Plaintiff. That court denied Defendants’
Petition on May 2, 2005. Defendants filed their Petition for Review in this
Court on May 10, 2005. Plaintiff did not file a cross-Petition for Review,
waiving her right to challenge the Court of Appeal’s conclusions in
Defendants’ favor. On June 22, 2005, this Court granted Defendants’
Petition for Review, without limiting any of the issues on appeal.
5.
APPEALABILITY
The order denying Defendants’ Special Motion to Strike is
immediately appealable pursuant to Code of Civil Procedure Sections
425.16(j) and 904.1(d). Notice of appeal was timely filed on November 12,
2003, within 60 days of the lower court’s September 18, 2003, Order
denying Defendants’ Motion.
6.
ARGUMENT
This nation has a profound commitment to informed public debate.
As Judge Learned Hand explained:
The First Amendment ... “presupposes that right conclusions
are more likely to be gathered out of a multitude of tongues,
than through any kind of authoritative selection. To many this
is, and always will be, folly; but we have staked upon it our
all.”
20
New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), citing United
States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y. 1943). “[S]peech
concerning public affairs is more than self-expression; it is the essence of
self-government.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).
The U.S. Supreme Court has frequently reaffirmed that speech on
public issues occupies the “highest rung of the hierarchy of First
Amendment values.” NAACP v. Claiborne Hardware Co., 458 U.S. 886,
913 (1982), quoting Carey v. Brown, 447 U.S. 455, 467 (1980). This Court
also has emphasized the First Amendment’s role in preserving “‘an
uninhibited marketplace of ideas.’” Comedy III Productions v. Gary
Saderup, Inc., 25 Cal.4th 387, 396-97 (2001) (citations omitted). The
nation’s commitment to the First Amendment entails “not only ‘the principle
that debate on public issues should be uninhibited, robust, and wide-open,’
... but also the antecedent assumption that valuable public debate – as well
as other civic behavior – must be informed.” NBC Subsidiary (KNBC-TV)
v. Superior Court, 20 Cal.4th 1178, 1200-01 (1999) (citations omitted).
A debate, of course, requires at least two sides:
The First Amendment contemplates a debate of important
public issues ...; its protection can hardly be narrowed to the
meeting at which the audience must passively listen to a single
point of view. The First Amendment does not merely insure a
marketplace of ideas in which there is but one seller.
In re Kay, 1 Cal.3d 930, 939 (1970) (second emphasis added).
21
This Court should act to ensure that Plaintiff is not allowed to dictate
the contours of this public debate, or chill the speech of those who believe
Dr. Corwin’s reliance on Plaintiff’s purported recall of abuse by her mother
is scientifically unsound. If contrary information about Plaintiff’s past
cannot be investigated and discussed without liability, Plaintiff’s story
becomes a weapon for harm. The public needs complete information to
fully evaluate competing claims. Only in this way can the scientific
community and the public make informed decisions.
A.
Given Plaintiff’s Repeated Written Consent to Dr. Corwin to Use
Her Intimate History of Alleged Sexual and Physical Abuse to
Support a Significant Public Debate, She Is a Limited Purpose
Public Figure for Purposes of the Debate.
Nearly twenty years ago, this Court explained the reason for
protecting speech, even if its factual underpinnings could not definitively be
proven:
[W]e cannot forget that the public has an interest in receiving
information on issues of public importance even if the
trustworthiness of the information is not absolutely certain.
The First Amendment is served not only by articles and
columns that purport to be definitive but by those articles that,
more modestly, raise questions and prompt investigation or
debate.
Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254, 269 (1986) (citation
omitted; emphasis added).
Cognizant of these principles, the U.S. Supreme Court established a
higher standard for defamation claims against “public figures.” When an
22
individual has become part of a public debate, the public has greater
freedom to discuss the controversy and the participant’s role in that
controversy. These protections ensure that public discussions are as broad
and unencumbered as possible. Curtis Publishing Co. v. Butts, 388 U.S.
130, 149-150 (1967).
The standard for deciding if someone is a public figure is malleable,
as it must be, because of the many ways in which someone can participate in
a debate of public interest. Interpreting the U.S. Supreme Court’s cases, this
Court has identified two characteristics of public figures:
[T]hey have media access enabling them to effectively defend
their reputations in the public arena; and, by injecting
themselves into public controversies, they may fairly be said
to have voluntarily invited comment and criticism.
Khawar v. Globe Int’l, Inc., 19 Cal.4th 254, 265 (1998). Proof of either
element – media access or voluntary participation in a public controversy –
may give rise to a “limited purpose public figure” designation. Id.
Central to the U.S. Supreme Court’s “public figure” analysis is
whether plaintiff was, before the alleged defamation, involved in some
debate of public significance. In Butts, the Court laid the groundwork for
what would become the “limited purpose public figure” analysis. Chief
Justice Warren, writing a concurring opinion joined by a majority of the
Court, “extended the constitutional privilege announced in [New York
Times v. Sullivan, 376 U.S. 254] to protect defamatory criticism of
23
nonpublic persons who ‘are nevertheless intimately involved in the
resolution of important public questions or, by reason of their fame, shape
events in areas of concern to society at large.’” Gertz v. Robert Welch, Inc.,
418 U.S. 323, 336-37 (1974), citing, Butts, 388 U.S. at 164 (Warren, C.J.,
concurring in result) (emphasis added).
The Court built on that foundation in Gertz, identifying the twin
criteria that will render someone a public figure. First, public figures have
access to the media to engage in “self-help” in defending against the false
speech. Id. at 344.5 Alternatively, and “[m]ore important[ly],”
[T]hose classed as public figures have thrust themselves to the
forefront of particular public controversies in order to
influence the resolution of the issues involved.
Gertz, 418 U.S. at 344-345. The Court explained, “the communications
media are entitled to act on the assumption that public officials and public
figures have voluntarily exposed themselves to increased risk of injury from
defamatory falsehood concerning them.” Id. at 345. The touchstone is
whether plaintiff has “assume[d] special prominence in the resolution of
public questions.” Id. at 351 (emphasis added). Accord Wolston v.
Reader’s Digest Ass’n, 443 U.S. 157, 166-67 (1979).
5
Although Plaintiff and her counsel have apparently refrained from
media interviews regarding this case, the media have nevertheless sought to
interview Plaintiff. (App. 1128.) Moreover, Dr. Corwin has continued to
participate in this ongoing controversy. (App. 0254-0256, 0756, 0821; MJN
Exh. I.)
24
Plaintiff is a limited purpose public figure regarding her alleged
history of sexual and physical abuse and Dr. Corwin’s use of this
information in these newsworthy matters of interest to substantial segments
of the general public. Plaintiff entered this public debate early, when she
and her father gave Dr. Corwin written consent to disclose interviews
containing intimate details of her alleged sexual abuse. (App. 0749-0752.)
When Plaintiff was eighteen, after purportedly recovering repressed
memories of abuse, Plaintiff authorized Dr. Corwin to use her alleged
history of sexual abuse and transcripts of his videotaped interviews of her in
his article advocating one side of the “repressed memories” debate. (App.
0753.) It was during this later interview that Plaintiff’s foster-mother also
revealed intimate details about Plaintiff’s life as a teenager. (App. 01670169.) Plaintiff permitted Dr. Corwin and “a few other professionals” to
present both videotapes “for professional education.” (App. 0753.) In her
statement to the University of Washington, Plaintiff explained:
My purpose in staying in touch with Dr. Corwin was to assist
in the development of understanding human memory, the pain
of remembering trauma and sorrow and the continuing
difficulties caused by early childhood abuse and abandonment.
(App. 0858.)
On this undisputed record, Plaintiff is a voluntary participant in this
public debate, as established by her repeated authorizations to Dr. Corwin to
publicly use her intimate personal information. Consequently, any claims
25
arising from statements regarding Plaintiff’s role in this controversy must
satisfy the heightened constitutional standard. But this Court need not even
go that far to dismiss Plaintiff’s slander claim.
Plaintiff’s sixth consent makes unequivocal Plaintiff’s public figure
status in the “repressed memories” debate. The Skeptical Inquirer articles
were published in summer 2002. (App. 0261-0277.) After reading the
articles, thinking they provided a “roadmap” to her identity, and purportedly
being distraught by what she read in them (App. 1127), Plaintiff did nothing
to revoke the consents given to Dr. Corwin or in any way withdraw herself
from this controversy. To the contrary, Plaintiff reiterated her consent to
Dr. Corwin, explicitly authorizing him to counter the Skeptical Inquirer
articles at a conference he was to attend in September 2002:
I Nicole S. Taus, hereby give my permission for Dr. David
Corwin to present both videos tapes [sic] of me at ages 6 and
17, followed by discussion of recent events including articles
published by Loftus and Guyer, at a statewide child abuse
conference to be held outside Oklahoma City 6 Sept 02.
(App. 0756.) In October 2002, while discussing “Jane Doe” at a
professional conference in Chicago, Dr. Loftus made the only allegedly
slanderous statement remaining in this case – that “Jane Doe” had engaged
in destructive behavior in the past and currently was in the Navy, which
purportedly gave rise to an implication that “Jane Doe” was unfit to serve in
the Navy. (App. 0641-0642.)
26
By the time Plaintiff gave the sixth consent to Dr. Corwin, her role in
the “repressed memories” debate was reaching a crescendo. As Dr. Corwin
and Plaintiff’s counsel both conceded, the “Jane Doe” article was an
important contribution to the “repressed memories” debate. (App. 0791,
0820.) But Defendants had cast doubt on the merits of reliance on the “Jane
Doe” case history. Plaintiff and her alleged memories of abuse by her
mother were now at the center of a vigorous public debate regarding the
efficacy of “repressed memory” claims, yet Plaintiff reiterated her consent to
Dr. Corwin to use her personal history to advance one side of that debate.
Plaintiff knowingly “assume[d] special prominence in the resolution of
[this] public question[].” Gertz, 418 U.S. at 351.
Plaintiff need not have taken an overt public stand in the controversy;
it is enough that Plaintiff’s voluntary actions influenced that controversy.
E.g., Lohrenz v. Donnelly, 350 F.3d 1272 (D.C. Cir. 2003), cert. denied, 541
U.S. 1042 (2004) (female combat pilot in U.S. Navy treated as voluntary
limited purpose public figure even though historic assignment to combat
aircraft position did not receive media scrutiny until only other female
combat pilot killed); Norris v. Bangor Publ’g Co., 53 F.Supp.2d 495, 504-05
(Me. 1999) (political consultant limited purpose public figure as to
statements regarding role in state senate race, particularly given choice to
enter “political fray” following public debate about use of such consultants);
Gray v. St. Martin’s Press, Inc., 1999 WL 813909 *3 (N.H. 1999) (lobbyist
27
limited purpose public figure); Faigin v. Kelly, 978 F.Supp. 420, 428 (N.H.
1997) (sports agent limited purpose public figure); cf. Thomas v. Los
Angeles Times Comm’n LLC, 189 F.Supp.2d 1005, 1011-1012 (C.D. Cal.
2002) (plaintiff who cooperates in publication of book invites public
attention and scrutiny to his life).
These courts correctly ignored the plaintiffs’ attempts to evade
limited purpose public figure status despite their voluntary participation in a
public debate. Instead, they focused – as the U.S. Supreme Court mandated
– on whether plaintiffs took voluntary actions to influence the debate. All
actions intended to influence a public debate – even actions undertaken
“anonymously” – render someone a limited purpose public figure.
This question is not academic. By implicitly holding that Plaintiff is
a private figure, the Court of Appeal placed the burden on Dr. Loftus to
establish the truth of her statement. (Op. at 39.) Yet, if Plaintiff is a public
figure, Plaintiff was required to “establish a probability that [she could]
produce clear and convincing evidence that the alleged defamatory
statements were made with knowledge of their falsity or with reckless
disregard of their truth or falsity.” Reader’s Digest Ass’n v. Superior Court,
37 Cal.3d 244, 256 (1984) (citations omitted); accord Brown v. Kelly
Broadcasting Co., 48 Cal.3d 711, 721-722 (1989). Plaintiff did not and
cannot meet this burden.
28
Rejecting Plaintiff’s defamation claim based on the identical factual
issue addressed in the Skeptical Inquirer articles, the Court of Appeal
observed, “the record contains evidence that each statement contains some
truth,” including Plaintiff’s concession in her declaration “that her fostermother may have had concerns about her behavior” and Plaintiff’s failure to
“dispute that she left her foster home or that she terminated her relationship
with her mother after she viewed the videotapes with Corwin.” (Op. at 36 &
n.10.) Defendants’ statement that “Jane Doe” is in the Navy is, of course,
entirely true. (Op. at 38.) Plaintiff’s concession that her foster-mother may
have believed Plaintiff began sleeping with boys and using drugs after
Plaintiff viewed Dr. Corwin’s videotapes (App. 1128 ¶58.b), combined with
Dr. Loftus’s declaration that Ms. Cantrell made these statements (App.
0112-0113), Ms. Cantrell’s similar remarks about Plaintiff’s behavior as a
teenager to Dr. Corwin (App. 0167-0168) and Ms. Cantrell’s failure to deny
these statements (App. 0683-0685), establish that Dr. Loftus did not act with
constitutional malice when she referred to “Jane Doe’s” destructive behavior
and undisclosed facts regarding that behavior.
Because the underlying statements are protected, any implication
deriving from them also is protected. Francis v. Dun & Bradstreet, Inc., 3
Cal.App.4th 535, 537 (1992); Smith v. Maldonado, 72 Cal.App.4th 637, 646
(1999). Placing emphasis on a true fact does not convert it into a false one.
Smith, 72 Cal.App.4th at 647-48. Moreover, given the context of the
29
statement – and the public debate between Drs. Corwin and Loftus, and
between advocates on both sides of the “repressed memories” debate – the
selected audience listening to Dr. Loftus’s guarded remarks at this
professional conference certainly viewed any implication from Dr. Loftus’s
alleged statements as rhetoric. The Ninth Circuit explained in a similar
case:
[T]he general context and tenor of [the] workshop make clear
that the comments about Underwager by him and by those
who spoke on the tape were expressions of the speakers’
professional points of view (opinions) rather than factual
assertions. Oates and Underwager testified on opposite sides
of the ... case, and are on opposite sides of the heated debate
over child witness reliability.
Underwager v. Channel 9 Australia, 69 F.3d 361, 366-67 (9th Cir. 1995).
Ms. Crook’s declaration – and her claim that the audience laughed at Dr.
Loftus’s alleged statements – establishes that if these statements were made
at all, they were protected opinion and rhetoric. (App. 0642.)
Plaintiff’s slander action also is barred because Plaintiff has neither
alleged nor offered evidence of special damages deriving from Dr. Loftus’s
statements at the Chicago conference, in which Plaintiff was only referred to
as “Jane Doe.” (App. 0642.) Defamation by innuendo – including referring
to someone by a pseudonym or in a manner that requires knowledge of
special facts to connect the statement to plaintiff – is actionable only if
plaintiff proves damages to plaintiff’s “property, business, trade, profession
or occupation.” Cal. Civ. Code §§45a, 48a; MacLeod v. Tribune Publ’g
30
Co., 52 Cal.2d 536, 548-49 (1959); Schomberg v. Walker, 132 Cal. 224
(1901), overruled on other grounds, Stevens v. Snow, 191 Cal. 58 (1923).
Plaintiff did not establish any special damages from Dr. Loftus’s guarded
remarks at the conference, when she referred to Plaintiff as “Jane Doe.”
(App. 0062, 0065-0066.) Plaintiff’s declaration submitted below discusses
only the harm purportedly suffered due to publication of the Skeptical
Inquirer articles, and makes no mention of Dr. Loftus’s conference
statement, which is now the only basis of Plaintiff’s slander claim. (App.
1127-1130.) For this independent reason, Plaintiff’s slander claim is barred.
Plaintiff’s slander claim also is barred because at the Chicago
conference, Plaintiff’s actual name was never uttered by Dr. Loftus. Claims
based on speech must be “of and concerning” plaintiff to be actionable.
Smith v. National Broadcasting Co., 138 Cal.App.2d 807, 814 (1956). That
someone may “ferret out” the information to connect plaintiff with a
particular statement is not enough, if defendants attempted to protect
plaintiff’s anonymity. Vantassell-Matin v. Nelson, 741 F.Supp. 698, 710
(N.D. Ill. 1990); Aroonsakul v. Shannon, 279 Ill.App.3d 345, 351 (1996).
For this third independent reason, Plaintiff’s slander claim should have been
rejected.
31
B.
Plaintiff’s Intrusion on Seclusion Claim Should Have Been
Stricken Because Plaintiff Had No Reasonable Expectation of
Privacy in any Information Allegedly Obtained by Defendants
While Reviewing Publicly Available Court Records and
Interviewing Plaintiff’s Foster-Mother.
Plaintiff did not and cannot establish that Defendants intruded into
Plaintiff’s private matters. In Shulman v. Group W Prods., Inc., 18 Cal.4th
200 (1998), this Court explained the elements of an intrusion claim:
[T]he action for intrusion has two elements: (1) intrusion into
a private place, conversation or matter, (2) in a manner highly
offensive to a reasonable person.…
We ask first whether defendants “intentionally intrude[d],
physically or otherwise, upon the solitude or seclusion of
another,” that is, into a place or conversation private to
[plaintiffs] .... “[T]here is no liability for the examination of a
public record concerning the plaintiff .... [Or] for observing
him or even taking his photograph while he is walking on the
public highway ....” ... To prove actionable intrusion, the
plaintiff must show the defendant penetrated some zone of
physical or sensory privacy surrounding, or obtained unwanted
access to data about, the plaintiff. The tort is proven only if
the plaintiff had an objectively reasonable expectation of
seclusion or solitude in the place, conversation or data
source....
Id. at 231-32 (citations omitted; emphasis added).
Plaintiff claims Defendants intruded on her seclusion by purportedly
(1) making misrepresentations to Plaintiff’s foster-mother to obtain
information about Plaintiff; and (2) obtaining confidential juvenile court
records about Plaintiff. However, as set forth below, Plaintiff cannot legally
establish either claim.
32
1.
Defendants Did Not Invade Plaintiff’s Privacy by
Obtaining Information Held by Plaintiff’s FosterMother.
The Court of Appeal held that Dr. Loftus’s purported
misrepresentation to Ms. Cantrell might support an intrusion claim by
Plaintiff. (Op. at 29-30.) Dr. Loftus did not lie to Ms. Cantrell, as
demonstrated by the fact that Plaintiff’s evidence regarding Dr. Loftus’s
purported representations to Ms. Cantrell has evolved over time to become
misrepresentations. In March 2001, Plaintiff’s counsel in this matter
submitted a declaration to the University of Washington asserting that Ms.
Cantrell was alarmed because Plaintiff “was the subject of some sort of
‘international investigation,’” and Dr. Loftus elicited personal information
about Plaintiff “without an explanation of the purpose for the inquiry.”
(App. 0792.) Similarly, Dr. Corwin testified that “Mrs. Cantrell stated that
she had been left with the impression by Dr. Loftus that Loftus was my
superior in connection with the clinical study related to Nicole’s memory.”
(App. 0820 (emphasis added).) Dr. Loftus never claimed to be Dr. Corwin’s
supervisor. (App. 1154-1155.) While this Court cannot resolve this factual
dispute here, even if Dr. Loftus had misrepresented herself to Ms. Cantrell
in this way, Plaintiff has no viable claim for invasion of privacy by
intrusion.
33
a.
Plaintiff Had No Reasonable
Expectation of Privacy in Information
Held by Her Foster-Mother.
The Court of Appeal rejected Plaintiff’s intrusion claim based on Dr.
Loftus’s interviewing and purported friendship with Plaintiff’s biological
mother, explaining, “Taus’s mother has as much right to share her story with
Loftus as Taus has to share the details of her life with Corwin.” (Op. at 29.)
That same reasoning applies to defeat any claim based on information Dr.
Loftus obtained from Ms. Cantrell. The information Plaintiff claims was
procured improperly – including Plaintiff’s reaction and behaviors after
viewing Dr. Corwin’s tapes – were experiences Plaintiff and Ms. Cantrell
shared. Plaintiff had no reasonable expectation of privacy in this
information.
In Shulman, this Court made clear that “routine ... reporting
techniques, such as asking questions of people with information (including
those with confidential or restricted information) could rarely, if ever be
deemed an actionable intrusion.” 18 Cal.4th at 237. While the record is
ambiguous as to how Ms. Cantrell arrived at the impressions that led her to
speak to Dr. Loftus, as a legal matter, not all misrepresentations to obtain
information are actionable. Desnick v. American Broadcasting Cos., 44
F.3d 1345, 1351 (7th Cir. 1995). Some misrepresentations are a normal and
accepted part of society. For example, a restaurant critic may conceal her
identity to purchase dinner and a consumer falsely claim he can get a better
34
price on merchandise elsewhere. Id. The central question is whether the
misrepresentation undermines interests protected by the tort. Here, the
alleged misconduct does not. Even if Dr. Loftus misrepresented herself to
Ms. Cantrell, it was not an intrusion on Plaintiff’s seclusion.
The intrusion tort has a relatively recent origin and its potentially
broad reach must not conflict with First Amendment protected
newsgathering activities. Without proper contours, any individual who
seeks to avoid scrutiny into their lives – regardless of how newsworthy –
could claim a privacy interest and potentially raise an issue for submission
to a jury. By focusing on the rationale underlying the intrusion tort, the
court can limit abuses of the tort, and limit it to legitimate and reasonable
uses. In Shulman, this Court characterized the intrusion tort as
“encompass[ing] unconsented-to physical intrusion into the home, hospital
room or other place the privacy of which is legally recognized, as well as
unwarranted sensory intrusions such as eavesdropping, wiretapping, and
visual or photographic spying.” 18 Cal.4th at 230-31 (emphasis added).
The Court described the interests sought to be protected by the tort:
It is in the intrusion cases that invasion of privacy is most
clearly seen as an affront to individual dignity. “[A] measure
of personal isolation and personal control over the conditions
of its abandonment is of the very essence of personal freedom
and dignity, is part of what our culture means by these
concepts. A man whose home may be entered at the will of
another, whose conversations may be overheard at the will of
another, whose marital and familial intimacies may be
overseen at the will of another, is less of a man, has less
35
human dignity, on that account. He who may intrude upon
another at will is the master of the other and, in fact, intrusion
is a primary weapon of the tyrant.”
18 Cal.4th at 231 (citation omitted).
None of these concerns is present here. By interviewing Ms.
Cantrell, Dr. Loftus did not invade Plaintiff’s physical privacy, nor did she
illegally enter a home or wiretap a conversation. Dr. Loftus interviewed a
woman with whom Plaintiff had lived years earlier, obtaining the same tenor
of information as what Plaintiff and Ms. Cantrell had previously authorized
Dr. Corwin to make public. (Compare App. 0167-0169 with App. 02760277.) Plaintiff is not seeking to protect her privacy but instead to control
who may publicly disclose information about her and what they may say
about it. Plaintiff would have absolutely no claim if the undisputed facts
established Dr. Loftus made no misrepresentation to obtain this information.
Shulman, 18 Cal.4th at 237. It is legally irrelevant that Dr. Loftus
purportedly misrepresented herself to Ms. Cantrell because Dr. Loftus’
alleged misrepresentation cannot have affected Plaintiff’s reasonable
expectation of privacy in this information. The intrusion tort does not
protect against an investigator’s interviews of people with information about
another individual, even confidential information. Id. at 237.
Defendants found few cases in which someone relied on the intrusion
tort to state a claim for purportedly obtaining information by
misrepresentation to a third party. Uniformly, the courts focus on the
36
information obtained, and whether that information could reasonably be
characterized as private or confidential. E.g., Corcoran v. Southwestern Bell
Tel. Co., 572 S.W.2d 212 (Mo. App. 1978) (defendant made
misrepresentation to telephone company to obtain plaintiff’s bill and opened
bill in violation of statute). This conclusion follows when the court focuses
on the interests underlying the intrusion tort. Protecting an individual from
misrepresentation is not one of them – that is protected by a wholly different
tort. If plaintiff has no legitimate claim to privacy in the information –
because it either already has been publicly disclosed or is not otherwise
regulated information (e.g., private health care information) – courts
uniformly have held that use of subterfuge to obtain that information does
not give rise to an intrusion claim. Interpreting California law, one court
squarely rejected the argument:
Defendant’s attempts to gather information about plaintiff
from third parties or to elicit the assistance of third parties in
contacting plaintiff, even if pursued using subterfuge and
fraud, cannot constitute such an intrusion upon plaintiff’s
solitude or seclusion. The Court has found no authority, nor
has plaintiff cited any, which suggests the contrary.
Rifkin v. Esquire Publ’g, 8 Media L.Rptr. 1384, 1386, 1982 U.S. Dist.
LEXIS 18405 (C.D. Cal. 1982). Relying on Rifkin, another court explained:
This tort was not created to protect against the invasions
alleged in this case – the garnering of information from third
parties, and the culling of facts from public records. Gathering
information about appellant from third parties, “even if
pursued using subterfuge and fraud, cannot constitute ... an
intrusion upon [appellant’s] solitude or seclusion.”
37
Wolf v. Regardie, 553 A.2d 1213, 1218 (D.C. App. 1989) (citations
omitted).
This Court implicitly recognized this important distinction in other
cases. The Court repeatedly has stated that although courts may compensate
plaintiffs whose privacy has been invaded by illegal wiretapping, “one who
imparts private information risks the betrayal of his confidence by the other
party.” Sanders v. American Broadcasting Cos., 20 Cal.4th 907, 915 (1999),
quoting Shulman, 18 Cal.4th at 234-35, quoting Ribas v. Clark, 38 Cal.3d
355, 360-61 (1985); accord Flanagan v. Flanagan, 27 Cal.4th 766, 775
(2002). In Sanders, the Court also affirmed the Ninth Circuit’s holding in
Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971), that “[o]ne who
invites another to his home or office takes a risk that the visitor may not be
what he seems, and that the visitor may repeat all he hears and observes
when he leaves.” 20 Cal.4th at 916 (emphasis added). This Court’s
decisions recognize that while courts may protect people from covert
recording under some circumstances, they cannot protect them from
interviews, even those procured by subterfuge.
The reason for this uniform rule is easy to discern. Try as we might,
we cannot keep our parents, children, spouse or, more troublesome, exspouse, from revealing private or confidential information about us. The
situation presented here is not like a physician revealing private medical
information, which is statutorily prohibited. 42 U.S.C. §1320d-6. The
38
Legislature has decided which relationships are confidential, and carry
prohibitions on divulging information obtained through the relationship.
The relationship between a foster-mother and her foster-child is not one of
them. There is no foster-mother privilege.
As the Oregon Supreme Court correctly held, if plaintiff has a claim
for obtaining confidential information through subterfuge, it must be based
on some law rendering that information confidential. Humphers v. First
Interstate Bank, 298 Or. 706, 709 (1985). That court explained:
For our immediate purposes, the most important distinction is
that only one who holds information in confidence can be
charged with a breach of confidence. If an act qualifies as a
tortious invasion of privacy, it theoretically could be
committed by anyone. In the present case [defendant’s]
professional role is relevant to a claim that he breached a duty
of confidentiality, but he could be charged with an invasion of
plaintiff’s privacy only if anyone else who told [plaintiff] the
facts of her birth without a special privilege to do so would be
liable in tort for invading the privacy of her mother.
Id. at 711-12. “One’s preferred seclusion or anonymity may be lost in many
ways; the question remains who is legally bound to protect those interests at
the risk of liability.” Id. at 713. The court rejected plaintiff’s intrusion
claim, holding:
The contours of the asserted duty of confidentiality are
determined by a legal source external to the tort claim itself.
A plaintiff asserting a breach of such a nonconsensual duty
must identify its source and terms.
Id. at 719. Plaintiff has not done so here.
39
b.
Plaintiff’s Claim Is Wholly Dependent
on the Alleged Misrepresentation and
Consequently Is Actionable Only if
Plaintiff Establishes the Elements of
Fraud (Which She Cannot Do).
Plaintiff’s reasonable expectation of privacy cannot have been
affected by Dr. Loftus’s purported misrepresentation to Ms. Cantrell
because settled law establishes that any purported misrepresentation is
actionable only by Ms. Cantrell.6 Plaintiff’s intrusion claim stands or falls
on whether Dr. Loftus made a misrepresentation to Ms. Cantrell. If Dr.
Loftus made no misrepresentation, she cannot be held liable for simply
interviewing Ms. Cantrell. Shulman, 18 Cal.4th at 237. However, any
claim which alleges misrepresentation as its essence – as is the case here – is
a fraud claim, and must comply with the strict requirements of that tort.
Because Plaintiff could not substantiate her fraud claim, as a matter of law,
Dr. Loftus’s purported misrepresentation to Ms. Cantrell cannot have
affected Plaintiff’s reasonable expectation of privacy.
Fraud actions are subject to strict pleading and proof requirements
because “allegations of fraud involve a serious attack on character.”
Committee on Children’s Television v. General Foods Corp., 35 Cal.3d 197,
216 (1983). Thus, “[w]here the cause of action depends upon the proof of
6
Ms. Cantrell did not contact Dr. Loftus to complain, let alone sue
her for fraud, and such a claim by her would now be time-barred by several
years. C.C.P. §338.
40
fraud, the facts constituting the fraud must be averred.” See, e.g., Thompson
v. Moore, 8 Cal.2d 367, 372-73 (1937), disapproved on other grounds,
Leeper v. Beltrami, 53 Cal.2d 195 (1959). If plaintiff’s claim depends on
proving an actionable misrepresentation, “the plaintiff must plead and prove
facts constituting the fraud.” Leeper, 53 Cal.2d at 214; accord Jopson v.
Feather River Air Quality Mgmt. District, 108 Cal.App.4th 492, 496 (2003)
(claim is fraud if the alleged misrepresentation is essential to the claim).
The interests protected by the fraud tort and elements of that tort have
changed little over the years. Traditionally, fraud protected only financial
and business interests; consequently, plaintiff must establish actual
pecuniary damages to state a claim. Alliance Mtg. Co. v. Rothwell, 10
Cal.4th 1226, 1239-40 (1995). Plaintiff cannot state a claim based on a
misrepresentation to a third party, even if it caused Plaintiff harm. Gawara
v. United States Brass Corp., 63 Cal.App.4th 1341, 1354 (1998).7
“In California, the elements of the misrepresentation torts ... are
prescribed by statute ... and our common law tradition.” Bily v. Arthur
Young & Co., 3 Cal.4th 370, 414 (1992) (citations omitted). It is the
7
A limited exception exists for fraud resulting in “physical harm,” in
which case plaintiff need only prove that someone relied on the alleged
fraud, resulting in physical harm to plaintiff. Randi W. v. Muroc Joint
Unified School District, 14 Cal.4th 1066, 1075 (1997). Here, Plaintiff has
neither alleged nor offered evidence of “physical harm” from Dr. Loftus’s
interview with Ms. Cantrell.
41
Legislature’s role – not California’s courts – to decide when variations from
the common law should be permitted. Mirkin v. Wasserman, 5 Cal.4th
1082, 1104-05 (1993). Consequently, this Court has rejected attempts to
avoid the requirements of a fraud claim by characterizing fraud as another
tort. Bily, 3 Cal.4th at 413, citing Garcia v. Superior Court, 50 Cal.3d 728,
737, 741-44 (1990); accord Veilleux v. National Broadcasting Co., 206 F.3d
92, 130 (1st Cir. 2000) (permitting negligent infliction of emotional distress
claim based on misrepresentation would “circumvent a well-established
limitation on the reach of the underlying misrepresentation tort ...”).
The trial court rejected Plaintiff’s fraud claim and Plaintiff did not
appeal that decision. Among other things, Plaintiff did not and could not
establish that she relied on or suffered pecuniary damages as a result of the
alleged fraud, dooming that claim. Alliance Mtg., 10 Cal.4th at 1239-40;
Gawara, 63 Cal.App.4th at 1354. Plaintiff’s attempt to avoid those strict
requirements by converting fraud into an intrusion claim should be rejected.
Dr. Loftus’s purported misrepresentation to Ms. Cantrell cannot have
affected Plaintiff’s reasonable expectation of privacy.
c.
Even if Dr. Loftus Made a
Misrepresentation to Ms. Cantrell, Her
Actions Were Not Highly Offensive.
This Court previously recognized that the First Amendment may
affect the analysis of the “highly offensive” prong of the intrusion tort, and
render inoffensive activity that in other circumstances might be actionable:
42
[A]ll the circumstances of an intrusion, including the motives
or justification of the intruder, are pertinent to the
offensiveness element. Motivation or justification becomes
particularly important when the intrusion is by a member of
the print or broadcast press in the pursuit of news material.
Although, as will be discussed more fully later, the First
Amendment does not immunize the press from liability for
torts or crimes committed in an effort to gather news ..., the
constitutional protection of the press does reflect the strong
societal interest in effective and complete reporting of events,
an interest that may – as a matter of tort law – justify an
intrusion that would otherwise be considered offensive.
Shulman, 18 Cal.4th at 236 (emphasis added; citations and footnote
omitted).
This reasoning is particularly applicable here, given Plaintiff’s
voluntary role in this public debate. One California Court of Appeal
explained:
One factor relevant to whether an intrusion is “highly
offensive to a reasonable person” is the extent to which the
person whose privacy is at issue voluntarily entered into the
public sphere. “[W]hen the legitimate public interest in the
published information is substantial, a much greater intrusion
into an individual’s private life will be sanctioned, especially
if the individual willingly entered into the public sphere.”
Aisenson v. American Broadcasting Co., 220 Cal.App.3d 146, 162 (1990)
(citation omitted). Relying on this Court’s landmark decision in Hill v.
National Collegiate Athletic Ass’n, 7 Cal.4th 1 (1994), another court
rejected an invasion of privacy claim based on plaintiff’s doctor’s revelation
of medical information after plaintiff voluntarily revealed similar medical
information. Garrett v. Young, 109 Cal.App.4th 1393, 1410-11 (2003).
43
Because plaintiff had acted inconsistently with an expectation of privacy,
defendant’s actions were, as a matter of law, not highly offensive. Id. at
1411-12; accord Pettus v. Cole, 49 Cal.App.4th 402, 448-49 (1996)
(plaintiff may have waived right to claim privacy in medical information by
disclosing related information to employers).
Plaintiff and her father repeatedly authorized Dr. Corwin to disclose
intimate and highly personal information about her. Dr. Corwin’s article
disclosed extensive information about Plaintiff’s struggles as a teenager
dealing with the uncertainties of the abuse she allegedly suffered as a child.
(App. 0167-0169.) Dr. Corwin himself recognized the importance of
following Plaintiff’s life: “What will be the ultimate impact on those
interviewed about abuse in early childhood of seeing their interviews years
later? ... Jane’s eventual view and feelings about this experience and its
effect on her life and relationships are important concerns that may be
addressed by future inquiry.” (App. 0172.) A commentator writing in the
same journal also emphasized the need for continued observation of “Jane
Doe’s” personality. (App. 0181.) These facts rendered Dr. Loftus’s actions
– including the purported misrepresentation to gather this newsworthy
information – not highly offensive.
44
2.
Plaintiff Did Not Meet Her Burden of Establishing
Dr. Loftus Obtained Confidential Court Records
about Plaintiff, Much Less That Dr. Loftus
Personally Committed Some Wrong in Obtaining
Such Records.
The Court of Appeal permitted the invasion of privacy claim to go
forward based on Plaintiff’s allegation that Defendants obtained information
from confidential juvenile court case files (including, the court assumed, the
name of Plaintiff’s foster mother, Margie Cantrell). In doing so, the court
was required to make two inferences: first, that Defendants had, in fact,
gained access to and obtained personal information from confidential
juvenile files, and second, that Defendants had engaged in “some form of
trickery or misconduct” to obtain access to those files. There is no evidence
in the record to support either inference. Instead, the Court of Appeal’s
conclusions appear to have been based on demonstrably incorrect
assumptions about the facts.
In the Skeptical Inquirer article, Defendants relied on court records
obtained from both Solano and Stanislaus Counties. In the trial court,
Plaintiff’s claims were based on Defendants’ review of the Stanislaus
County records alone. (App. 1106.) Unable to produce any evidence that
Defendants reviewed any confidential records in Stanislaus County, in the
Court of Appeal, Plaintiff shifted her focus to Solano County, relying on a
declaration submitted by Shapiro, a co-defendant in this matter, which stated
(referring to Solano County):
45
[Shapiro’s assistant] reported to me that she copied
voluminous public records which may have had relevance to
Corwin’s “Jane Doe” case.
(App. 0630.) Based on this sentence and a statement from the Defendants’
Reply Brief (Op. at 30), the Court of Appeal incorrectly concluded, “the
court files in Solano County were juvenile files, which are confidential.”
(Op. at 32.) The court opined, Defendants “have been less than candid
about the fact that they obtained ‘voluminous’ documents from court files in
Solano County.” (Op. at 32.) But the court’s inference – essentially that codefendant Shapiro lied in declaring the “voluminous records” his assistant
copied in Solano County were “public” – is supportable only if the only
records containing information about Plaintiff and the name of her fostermother available in Solano County are confidential juvenile files, or if the
record contained some evidence that Defendants obtained information that
was contained only in confidential files.
In fact, contrary to the Court of Appeal’s assumption, there are
“voluminous” court files in Solano County that are not juvenile files – files
that are publicly-available and contain all the information Defendants
obtained about Jane Doe. Moreover, there is no evidence Defendants ever
accessed any confidential juvenile file (if any exists). Multiple, publiclyavailable court files exist in Solano County, including a wrongful death
action filed by Ms. Cantrell on Plaintiff’s behalf (which contains both names
in full), guardianship proceedings related to Plaintiff following her father’s
46
illness (and resulting death), and a file related to the divorce of Plaintiff’s
father and stepmother. (MJN Exhs. A-G.) 8 These files establish that any
information Defendants purportedly obtained in Solano County is publiclyavailable today. Indeed, the key information Defendants allegedly obtained
from the juvenile file – Margie Cantrell’s name – almost certainly is not in
any such file, which presumably would relate to the custody dispute when
Plaintiff was a young child, because Ms. Cantrell did not enter Plaintiff’s
life until Plaintiff’s father became incapacitated when Plaintiff was a
teenager. (App. 0204-0219 (In re William T, 172 Cal.App.3d at 794); App.
0684.) As this Court recently made clear, Defendants cannot be held liable
for disclosing information from these publicly-available files. Gates v.
Discovery Communications, Inc., 34 Cal.4th 679 (2004).
The Court of Appeal also erred in suggesting a “jury could
reasonably infer that some form of trickery or misconduct was employed to
obtain” confidential juvenile files. (Op. at 32.) This is rote speculation.
Moreover, it perverts Plaintiff’s required evidentiary showing under the anti-
8
Defendants had no reason to ask the trial court to take judicial
notice of these Solano County records because this declaration was not an
issue there. Co-defendant Shapiro submitted it with his joinder in
Defendants’ anti-SLAPP motion. (App. 0629-0632.) Plaintiff did not rely
on the declaration in her opposition to that motion. (See generally App.
1077-1118, esp. 1098-1101.) Plaintiff only identified the declaration – and
the inference she argues it created – to support her position on appeal.
Defendants could not have been expected to address in their reply brief
evidence ignored by Plaintiff in her opposition.
47
SLAPP statute. Under Code of Civil Procedure Section 425.16(b)(1),
Plaintiff bears the burden of “establish[ing] that there is a probability that
the plaintiff will prevail on the claim.” To meet that burden, “the court shall
consider the pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” Id. §425.16(b)(2). “An
assessment of the probability of prevailing on the claim looks to trial, and
the evidence that will be presented at that time.” Wilcox v. Superior Court,
27 Cal.App.4th 809, 824 (1994), disapproved on other grounds, Equilon
Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53, 68 n.5 (2002). “[T]he
plaintiff ‘must demonstrate that the complaint is both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a favorable
judgment if the evidence submitted by the plaintiff is credited.’” Wilson v.
Parker, Covert & Chidester, 28 Cal.4th 811, 821 (2002) (citation omitted).
The Court of Appeal failed to hold Plaintiff to this evidentiary standard. No
jury would be justified in punishing Dr. Loftus based only on the statement
that her co-defendant Shapiro copied “voluminous public records” in Solano
County.
Finally, even if Plaintiff had established that somebody accessed
confidential juvenile files – and she did not – and that some impropriety was
committed in gaining access to those files – which she also failed to do –
Plaintiff did not establish that Dr. Loftus committed that wrong. Dr. Loftus
cannot be punished for merely receiving information, even if some statute
48
declares such information confidential. Florida Star v. B.J.F., 491 U.S. 526
(1989). This is true even if Dr. Loftus knows the information was obtained
illegally, so long as she did not participate in the illegal conduct. Bartnicki
v. Vopper, 532 U.S. 514, 535 (2001). The sentence from co-defendant
Shapiro’s declaration on which Plaintiff and the Court of Appeal relied –
that Shapiro’s assistant copied “voluminous public records” in Solano
County – does not establish that Dr. Loftus obtained confidential juvenile
court records through any wrongdoing.
The Court of Appeal drew its standard from Wilbanks v. Wolk, 121
Cal.App.4th 883, 905 (2004). (Op. at 23.) Yet, that court had announced a
new standard that is contrary to the Legislature’s intent in adopting the antiSLAPP statute, stating:
In resisting [an anti-SLAPP motion], the plaintiff need not
produce evidence that he or she can recover on every possible
point urged.
Id. at 905. The court cited no authority for this proposition, nor are
Defendants aware of any. Rather, because an anti-SLAPP motion tests
individual causes of action, see C.C.P. §425.16(b)(1), the plaintiff is
required to produce admissible evidence to substantiate each point urged.
Plaintiff did not meet this burden; this claim also should have been stricken.
49
3.
This Case Should Be Dismissed Now To Avoid
Protracted Litigation That Will Harm Interests
Protected by the First Amendment.
Cases implicating First Amendment rights should be resolved early,
to avoid protracted litigation. Baker, 42 Cal.3d at 258-59. Indeed, the
California Legislature specifically enacted the anti-SLAPP statute as a
procedural device to cut off, at an early stage, unmeritorious cases
threatening to chill First Amendment protected activities. C.C.P.
§425.16(a).
For years, Plaintiff has been trying to stop Defendants from
participating in this important debate. She admitted to filing her ethics
complaint with the University of Washington to prevent Dr. Loftus from
investigating and publicly challenging any other published study. (App.
0853.) Plaintiff lost in that forum (App. 0888) and turned to California’s
courts to further her goal. This Court should bring to an end Plaintiff’s
admitted and persistent attempts to chill and punish Defendants’ speech. To
protect the important First Amendment interests at stake here – and ensure
that Dr. Loftus and others are not restrained in their ability to participate in
such scientific debates in the future – this Court should order Plaintiff’s
intrusion claim stricken.
50
4.
At a Minimum, Plaintiff’s Claims Against Dr. Guyer
and the Corporate Defendants Should Have Been
Stricken Because Plaintiff Produced no Evidence of
their Involvement in the Alleged Intrusion.
Plaintiff bore the burden of establishing her claims against each
Defendant. C.C.P. §425.16(b)(1). She did not meet her burden as to
Dr. Melvin Guyer or the corporate defendants, The Committee For The
Scientific Investigation Of Claims Of The Paranormal (CSICOP), Skeptical
Inquirer and Center For Inquiry West. Following the Court of Appeal’s
opinion, the only claim against these Defendants is intrusion on seclusion,
based on purportedly making a misrepresentation to Ms. Cantrell and
obtaining confidential juvenile court records. (Op. at 28, 33, 40.) However,
Plaintiff offered no evidence to support these claims against these
Defendants and they also should have been stricken.
The record establishes that Dr. Guyer did not participate in the
interview of Ms. Cantrell. Plaintiff’s operative Complaint alleges that Dr.
Loftus and a private investigator interviewed Ms. Cantrell, and that Dr.
Loftus made purported misrepresentations regarding the purpose of her
interview. (App. 0031-0032.) Ms. Cantrell’s declaration mentions only Dr.
Loftus and an unidentified man. (App. 0684-0685.) Co-defendant
Shapiro’s declaration establishes that he was that man. (App. 0631.) No
evidence connects Dr. Guyer to this interview.
51
Similarly, the only evidence in the record regarding the files
Defendants received from Solano County – which Plaintiff claims contained
confidential juvenile court records – is co-defendant Shapiro’s declaration.
(App. 0629-0632.) Shapiro declares that he spoke with Dr. Loftus and
reviewed the Solano County records on her instructions. (App. 0630.) No
evidence connects Dr. Guyer with Shapiro’s actions in obtaining records
from Solano County.
So too with the corporate defendants. In her Answer Brief in the
Court of Appeal, Plaintiff argued that Defendants are not entitled to the
protection of the First Amendment because they were not journalists
investigating a story, declaring that during Drs. Loftus and Guyer’s
newsgathering, “the Skeptical Inquirer had not retained them for a story.”
(Answer Brief at 31-32 (emphasis added).) In her amended, verified
complaint and elsewhere, Plaintiff alleged her “newsgathering” claims only
against the individual defendants. (App. 0030, 1094.) Plaintiff even
conceded in her opposition to Defendants’ SLAPP Motion that “[n]o cause
of action accrued against Defendants TAVRIS, SKEPTICAL INQUIRER,
until after the publication of the articles because no cause existed before
then.” (App. 1064.) Plaintiff did not meet her burden of establishing that
the corporate Defendants participated in or otherwise were liable to her for
the investigation. Having failed to meet her burden in opposing Defendants’
anti-SLAPP Motion, and given Plaintiff’s repeated concessions, Defendants
52
had no obligation to come forward with evidence of their own establishing
that the corporate Defendants bore no liability to Plaintiff. Accordingly, the
claims against them also should have been stricken.
C.
Defendants Revealed No Private Fact About Plaintiff; This Claim
Should Have Been Stricken.
“[N]ewsworthiness is ... a constitutional defense to, or privilege
against, liability for publication of truthful information.” Shulman, 18
Cal.4th at 216. The analysis,
incorporates considerable deference to reporters and editors,
avoiding the likelihood of unconstitutional interference with
the freedom of the press to report truthfully on matters of
legitimate public interest. In general, it is not for a court or
jury to say how a particular story is best covered. The
constitutional privilege to publish truthful material “ceases to
operate only when an editor abuses his broad discretion to
publish matters that are of legitimate public interest.”
Id. at 224-25 (citations, footnote omitted; emphasis added).
The newsworthiness test is broad. In Shulman, this Court held that
the accident victim’s statement, “I just want to die,” and her medical
information could be published without liability because they were
“substantially relevant to the newsworthy subject matter of the broadcast
and did not constitute a ‘morbid and sensational prying into private lives for
its own sake.’” Id. at 211, 228-230 (citation omitted); see also Sipple v.
Chronicle Publ’g Co., 154 Cal.App.3d 1040, 1048-49 (1984) (plaintiff’s
homosexuality newsworthy when reported in connection with actions that
53
may have saved life of then-President Ford); Dora v. Frontline Video, Inc.,
15 Cal.App.4th 536, 543-44 (1993) (surfing documentary newsworthy).
“Uninhibited, wide-open, robust debate” is possible only if the media
and others have broad discretion to discuss newsworthy subjects. As the
Court explained long ago, in rejecting a claim for private facts revealed
about the children of a candidate for public office:
If the publication does not proceed widely beyond the bounds
of propriety and reason in disclosing facts about those closely
related to an aspirant for public office, the compelling public
interest in the unfettered dissemination of information will
outweigh society’s interest in preserving such individuals’
rights to privacy.... The children’s loss of privacy is one of the
costs of the retention of a free marketplace of ideas.
Kapellas v. Kofman, 1 Cal.3d 20, 37-38 (1969) (footnote omitted). The
Court of Appeal erred in not following this authority and rejecting Plaintiff’s
claim for public disclosure of private facts in its entirety. Both facts which
that court held might be actionable are newsworthy or otherwise protected.
Dr. Loftus’s disclosures cannot give rise to liability.
1.
Plaintiff’s Service in the Navy Is Newsworthy.
In holding that Plaintiff can pursue her claim based on Dr. Loftus’s
revelation that Plaintiff serves in the Navy, the Court of Appeal ignored the
test this Court established in Shulman, 18 Cal.4th at 225, 229-30. That court
asserted that this fact “do[es] not relate in any way to the validity of the Jane
Doe study, the repressed memory debate or to any other matter of legitimate
public interest.” (Op. at 27.) Yet, Plaintiff’s service in the military readily
54
meets this Court’s “logical nexus” test. The professional members of the
audience listening to Dr. Loftus speak were familiar with Dr. Corwin’s
“Jane Doe” case study. Given the scrutiny of Plaintiff’s sexual abuse
allegations as a child and later as a teenager, it was entirely reasonable for
Dr. Loftus to reveal this minimal information about Plaintiff’s current life.
E.g., Sidis v. F-R Pub. Corp., 113 F.2d 806, 807-10 (2d Cir. 1940) (article
that was “merciless in its dissection of intimate details of [former child
prodigy’s] personal life” newsworthy; plaintiff’s “subsequent history,
containing as it did the answer to the question of whether or not he had
fulfilled his early promise, was still a matter of public concern”).
Among other things, Plaintiff’s success as an adult reflects on
whether Plaintiff was abused at all, as well as any long-term effects she
might experience from having watched her interview videotapes. Dr.
Corwin noted the importance of continued study of subjects who watched
interviews of themselves talking about their childhood abuse. (App. 0172.)
Indeed, one commentator reiterated the need to monitor Plaintiff’s activities
as a young adult, stating, “[m]any questions remain unanswered and will
only be revealed over time as we can learn how her adult personality takes
shape,” and declaring that such information would be “of extraordinary
importance.” (App. 0181.) Plaintiff’s service in the Navy also is
newsworthy because it evidences Plaintiff’s character and her resolve
following a challenging childhood. This revelation adds valuable context to
55
the ongoing debate – this individual’s actions as a young adult following her
closely-watched experiences as a child and a teenager. Far from being a
“morbid and sensational prying into private lives for its own sake,”
Shulman, 18 Cal.4th at 229, this information is newsworthy and important to
this continuing scientific debate. Dr. Loftus’s revelation of this valuable
information about Dr. Corwin’s “Jane Doe” is not – by any stretch of the
imagination – highly offensive. Plaintiff’s claim against Dr. Loftus should
have been rejected.
2.
Defendants Cannot Be Held Liable for Disclosing
Plaintiff’s Initials Both Because They Are Reflected
in Numerous Public Records and Because Plaintiff’s
Initials – Indeed, Her Identity – Are Newsworthy.
In Discovery Communications, this Court held:
[F]ollowing Cox and its progeny, we conclude that an invasion
of privacy claim based on allegations of harm caused by a
media defendant’s publication of facts obtained from public
official records of a criminal proceeding is barred by the First
Amendment to the United States Constitution....
34 Cal.4th at 696 (citations omitted). Discovery Communications affirmed
the well-established principle that information contained in publiclyavailable records can be publicly disclosed without liability. E.g., Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Smith v. Daily Mail
Publ’g Co., 443 U.S. 97 (1979); Florida Star, 491 U.S. at 524.
These cases are controlling here. Dr. Loftus merely revealed
Plaintiff’s initials during a deposition that occurred two weeks after Plaintiff
56
filed this lawsuit using her full name. (Compare App. 0001 with App.
0890.) Years before Plaintiff sued Dr. Loftus, Plaintiff’s name and even the
identical, graphic allegations of abuse purportedly endured by “Nicole Taus”
(MJN Exh. B at 0102, 0104) also could be found in numerous publiclyavailable court files, including the Stanislaus County divorce file (App.
0221, 0226, 0230) and four Solano County files (MJN Exhs. B, C, D,
passim; Exh. E at 0009). Indeed, Plaintiff’s first name and last initial were
revealed eight years earlier in the published Court of Appeal opinion that
helped Drs. Loftus and Guyer find Plaintiff. In re William T., 172
Cal.App.3d at 794.9
A footnote from this Court’s decision in Discovery Communications
raises the specter that liability may be assessed for disclosing information
from publicly-available files. There, the Court left open the question of “the
extent to which invasion of privacy claims based on publication of
nonrecord facts linking the plaintiff to a past crime, or on facts obtained
from nonpublic records, remain viable.” 34 Cal.4th at 696 n.8 (emphasis in
original). If, as Plaintiff suggests, any records Defendants obtained are
9
Other protections apply to this information. For example,
California law affords absolute protection to statements made in connection
with judicial proceedings, as occurred here. Cal. Civ. Code §47(b)(2). This
Court has broadly construed that privilege to further its strong policies,
which certainly would protect Dr. Loftus’s actions here. Moore v. Conliffe,
7 Cal.4th 634 (1994).
57
confidential under California law, this Court should clarify that Defendants’
actions in obtaining and disclosing them are nonetheless protected because
the documents they accessed were publicly-available. Cox Broadcasting,
420 U.S. 469.
Dr. Loftus’s compelled disclosure of Plaintiff’s initials during a
deposition must be protected for the independent reason that Plaintiff’s
identity is newsworthy, notwithstanding Defendants’ consistent restraint in
publicly identifying her only as “Jane Doe.” As this Court recognized in
Shulman:
Thus, newsworthiness is not limited to “news” in the narrow
sense of reports of current events. “It extends also to the use of
names, likenesses or facts in giving information to the public
for purposes of education, amusement or enlightenment, when
the public may reasonably be expected to have a legitimate
interest in what is published.”
18 Cal.4th at 225 (citations omitted; emphasis added); accord Forsher v.
Bugliosi, 26 Cal.3d 792, 810-11 (1980) (the name of an individual involved
in a newsworthy event will itself be newsworthy if, for example, it might
lead to the discovery of information relevant to that event); Sipple, 154
Cal.App.3d at 1049-1050. Moreover, Defendants were entitled to presume
that disclosure of Plaintiff’s name was in the public interest because of the
many court records in which it can be found. Cox Broadcasting, 420 U.S. at
495. As a matter of law, Dr. Loftus’s actions are constitutionally-protected
58
because the information revealed is contained in numerous publiclyavailable court records and because it is newsworthy in and of itself.
7.
CONCLUSION
This nation’s commitment to the First Amendment ensures that
scientific debates such as this one, concerning the viability of claims of
“repressed memories,” are vigorous and lead to a more informed society.
Recently, this Court reiterated the fundamental structural role the First
Amendment plays in society:
[T]he First Amendment embodies more than a commitment to
free expression and communicative interchange for their own
sakes; it has a structural role to play in securing and fostering
our republican system of self-government.... Implicit in this
structural role is not only ‘the principle that debate on public
issues should be uninhibited, robust, and wide-open,’ ... but
also the antecedent assumption that valuable public debate – as
well as other civic behavior – must be informed.
NBC Subsidiary (KNBC-TV), 20 Cal.4th at 1200-01 (citations omitted).
Both parts of this structural role – obtaining information relevant to a public
debate and participating in that debate – are in jeopardy here.
For the past six years, Plaintiff’s willingness to allow her alleged
history of sexual and physical abuse to be part of the public debate over
“repressed memories” has necessarily influenced the course the debate has
taken. Plaintiff seeks to punish Drs. Loftus and Guyer for publicly
questioning the veracity of Dr. Corwin’s depiction of “Jane Doe’s” alleged
59
abuse, but her privacy and slander claims are legally unsupportable. This
Court should dismiss Plaintiff’s lawsuit in its entirety and, by so doing, give
assurance to those who participate in important public controversies that
they may do so without fear of civil liability.
Dated: October _____, 2005
DAVIS WRIGHT TREMAINE LLP
THOMAS R. BURKE
ROCHELLE L. WILCOX
By:
Thomas R. Burke
Attorneys for Defendants and Appellants
Elizabeth Loftus, Melvin Guyer, The
Committee For The Scientific Investigation
Of Claims Of The Paranormal (CSICOP),
Skeptical Inquirer and Center For Inquiry
West
60
CERTIFICATE OF WORD COUNT
Pursuant to California Rule of Court 14(c), the text of this brief,
including footnotes and excluding the table of contents, tables of authorities
and this Certificate, consists of 13,983 words in 13-point Times New Roman
type as counted by the Microsoft Word 2002 word-processing program used
to generate the text.
Dated: October _____, 2005
DAVIS WRIGHT TREMAINE LLP
THOMAS R. BURKE
ROCHELLE L. WILCOX
By:
Thomas R. Burke
Attorneys for Defendants and Appellants
Elizabeth Loftus, Melvin Guyer, The
Committee For The Scientific Investigation
Of Claims Of The Paranormal (CSICOP),
Skeptical Inquirer and Center For Inquiry
West
238676_5.DOC
61
TABLE OF CONTENTS
Page
1.
ISSUES PRESENTED FOR REVIEW................................................1
2.
INTRODUCTION................................................................................3
3.
STATEMENT OF FACTS...................................................................6
A.
With Plaintiff’s Informed Consent, Dr. Corwin Reveals
Plaintiff’s Intimate Experiences of Alleged Sexual
Abuse in Print and as Captured on Videotape, to
Advocate His Theories About the Efficacy of
Repressed Memory Claims. ......................................................6
B.
Drs. Loftus and Guyer Question Dr. Corwin’s Claims;
Using Routine and Legal Techniques, They Investigate
Plaintiff’s Background. ...........................................................10
C.
Plaintiff Files a Complaint Against Dr. Loftus with Her
Former Employer, the University of Washington; After
Dr. Loftus Is Absolved of Wrongdoing, She and Dr.
Guyer Publish Their Findings in the Skeptical Inquirer..........13
D.
The Public Debate About the Efficacy of Repressed
Memories Continues; With Plaintiff’s Consent, Dr.
Corwin Continues to Use Plaintiff’s Experiences and
Image to Support His Claims. .................................................14
4.
PROCEDURAL HISTORY ...............................................................17
5.
APPEALABILITY.............................................................................20
6.
ARGUMENT .....................................................................................20
A.
Given Plaintiff’s Repeated Written Consent to Dr.
Corwin to Use Her Intimate History of Alleged Sexual
and Physical Abuse to Support a Significant Public
Debate, She Is a Limited Purpose Public Figure for
Purposes of the Debate............................................................22
B.
Plaintiff’s Intrusion on Seclusion Claim Should Have
Been Stricken Because Plaintiff Had No Reasonable
Davis Wright Tremaine LLP
i
L AW O F FI CES
One Embarcadero Center, Suite 600
San Francisco, California 94111-3611
(415) 276-6500
Fax: (415) 276-6599
Expectation of Privacy in any Information Allegedly
Obtained by Defendants While Reviewing Publicly
Available Court Records and Interviewing Plaintiff’s
Foster-Mother..........................................................................32
1.
C.
Defendants Did Not Invade Plaintiff’s Privacy
by Obtaining Information Held by Plaintiff’s
Foster-Mother...............................................................33
a.
Plaintiff Had No Reasonable Expectation
of Privacy in Information Held by Her
Foster-Mother....................................................34
b.
Plaintiff’s Claim Is Wholly Dependent on
the Alleged Misrepresentation and
Consequently Is Actionable Only if
Plaintiff Establishes the Elements of
Fraud (Which She Cannot Do)..........................40
c.
Even if Dr. Loftus Made a
Misrepresentation to Ms. Cantrell, Her
Actions Were Not Highly Offensive. ................42
2.
Plaintiff Did Not Meet Her Burden of
Establishing Dr. Loftus Obtained Confidential
Court Records about Plaintiff, Much Less That
Dr. Loftus Personally Committed Some Wrong
in Obtaining Such Records...........................................45
3.
This Case Should Be Dismissed Now To Avoid
Protracted Litigation That Will Harm Interests
Protected by the First Amendment...............................50
4.
At a Minimum, Plaintiff’s Claims Against Dr.
Guyer and the Corporate Defendants Should
Have Been Stricken Because Plaintiff Produced
no Evidence of their Involvement in the Alleged
Intrusion. ......................................................................51
Defendants Revealed No Private Fact About Plaintiff;
This Claim Should Have Been Stricken..................................53
1.
Plaintiff’s Service in the Navy Is Newsworthy. ...........54
ii
2.
7.
Defendants Cannot Be Held Liable for
Disclosing Plaintiff’s Initials Both Because They
Are Reflected in Numerous Public Records and
Because Plaintiff’s Initials – Indeed, Her Identity
– Are Newsworthy. ......................................................56
CONCLUSION ..................................................................................59
iii
TABLE OF AUTHORITIES
Page
Cases
Aisenson v. American Broadcasting Co.,
220 Cal.App.3d 146 (1990) ......................................................................43
Alliance Mtg. Co. v. Rothwell,
10 Cal.4th 1226 (1995).......................................................................41, 42
Aroonsakul v. Shannon,
279 Ill.App.3d 345 (1996) ........................................................................31
Baker v. Los Angeles Herald Examiner,
42 Cal.3d 254 (1986) ..........................................................................22, 50
Bartnicki v. Vopper,
532 U.S. 514 (2001) .................................................................................49
Bily v. Arthur Young & Co.,
3 Cal.4th 370 (1992)...........................................................................41, 42
Brown v. Kelly Broadcasting Co.,
48 Cal.3d 711 (1989) ................................................................................28
Carey v. Brown,
447 U.S. 455 (1980) .................................................................................21
Comedy III Productions v. Gary Saderup, Inc.,
25 Cal.4th 387 (2001)...............................................................................21
Committee on Children’s Television v. General Foods Corp.,
35 Cal.3d 197 (1983) ................................................................................40
Corcoran v. Southwestern Bell Tel. Co.,
572 S.W.2d 212 (Mo. App. 1978) ............................................................37
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) ...........................................................................56, 58
Curtis Publishing Co. v. Butts,
388 U.S. 130 (1967) ...........................................................................23, 24
Desnick v. American Broadcasting Cos.,
44 F.3d 1345 (7th Cir. 1995) ....................................................................34
iv
Dietemann v. Time, Inc.,
449 F.2d 245 (9th Cir. 1971) ....................................................................38
Dora v. Frontline Video, Inc.,
15 Cal.App.4th 536 (1993) .......................................................................54
Equilon Enterprises v. Consumer Cause, Inc.,
29 Cal.4th 53 (2002).................................................................................48
Faigin v. Kelly,
978 F.Supp. 420 (N.H. 1997) ...................................................................28
Flanagan v. Flanagan,
27 Cal.4th 766 (2002)...............................................................................38
Florida Star v. B.J.F.,
491 U.S. 526 (1989) ...........................................................................49, 56
Forsher v. Bugliosi,
26 Cal.3d 792 (1980) ................................................................................58
Francis v. Dun & Bradstreet, Inc.,
3 Cal.App.4th 535 (1992) .........................................................................29
Garcia v. Superior Court,
50 Cal.3d 728 (1990) ................................................................................42
Garrett v. Young,
109 Cal.App.4th 1393 (2003) ...................................................................43
Garrison v. Louisiana,
379 U.S. 64 (1964) ...................................................................................21
Gates v. Discovery Communications, Inc.,
34 Cal.4th 679 (2004)...............................................................................47
Gawara v. United States Brass Corp.,
63 Cal.App.4th 1341 (1998) ...............................................................41, 42
Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974) ...........................................................................24, 27
Gray v. St. Martin’s Press, Inc.,
1999 WL 813909 (N.H. 1999)..................................................................27
v
Hill v. National Collegiate Athletic Ass’n,
7 Cal.4th 1 (1994).....................................................................................43
Humphers v. First Interstate Bank,
298 Or. 706 (1985) ...................................................................................39
In re Kay,
1 Cal.3d 930 (1970) ..................................................................................21
In re William T,
172 Cal.App.3d 790 (1985) ....................................................11, 12, 47, 57
Jopson v. Feather River Air Quality Mgmt. District,
108 Cal.App.4th 492 (2003) .....................................................................41
Kapellas v. Kofman,
1 Cal.3d 20 (1969) ....................................................................................54
Khawar v. Globe Int’l, Inc.,
19 Cal.4th 254 (1998)...............................................................................23
Leeper v. Beltrami,
53 Cal.2d 195 (1959) ................................................................................41
Lohrenz v. Donnelly,
350 F.3d 1272 (D.C. Cir. 2003)................................................................27
MacLeod v. Tribune Publ’g Co.,
52 Cal.2d 536 (1959) ................................................................................31
Mirkin v. Wasserman,
5 Cal.4th 1082 (1993)...............................................................................42
Moore v. Conliffe,
7 Cal.4th 634 (1994).................................................................................57
NAACP v. Claiborne Hardware Co.,
458 U.S. 886 (1982) .................................................................................21
NBC Subsidiary (KNBC-TV) v. Superior Court,
20 Cal.4th 1178 (1999).......................................................................21, 59
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) ...........................................................................21, 23
vi
Norris v. Bangor Publ’g Co.,
53 F.Supp.2d 495 (Me. 1999)...................................................................27
Pettus v. Cole,
49 Cal.App.4th 402 (1996) .......................................................................44
Randi W. v. Muroc Joint Unified School District,
14 Cal.4th 1066 (1997).............................................................................41
Reader’s Digest Ass’n v. Superior Court,
37 Cal.3d 244 (1984) ................................................................................28
Ribas v. Clark,
38 Cal.3d 355 (1985) ................................................................................38
Rifkin v. Esquire Publ’g,
8 Media L.Rptr. 1384,
1982 U.S. Dist. LEXIS 18405 (C.D. Cal. 1982).......................................37
Sanders v. American Broadcasting Cos.,
20 Cal.4th 907 (1999)...............................................................................38
Schomberg v. Walker,
132 Cal. 224 (1901) ..................................................................................31
Shulman v. Group W Prods., Inc.,
18 Cal.4th 200 (1998)........................................................................passim
Sidis v. F-R Pub. Corp.,
113 F.2d 806 (2d Cir. 1940) .....................................................................55
Sipple v. Chronicle Publ’g Co.,
154 Cal.App.3d 1040 (1984) ..............................................................53, 58
Smith v. Daily Mail Publ’g Co.,
443 U.S. 97 (1979) ...................................................................................56
Smith v. Maldonado,
72 Cal.App.4th 637 (1999) .......................................................................29
Smith v. National Broadcasting Co.,
138 Cal.App.2d 807 (1956) ......................................................................31
Stevens v. Snow,
191 Cal. 58 (1923) ....................................................................................31
vii
Thomas v. Los Angeles Times Comm’n, LLC,
189 F.Supp.2d 1005 (C.D. Cal. 2002) ......................................................28
Thompson v. Moore,
8 Cal.2d 367 (1937) ..................................................................................41
Trear v. Sills,
69 Cal.App.4th 1341 (1999) .......................................................................4
Underwager v. Channel 9 Australia,
69 F.3d 361 (9th Cir. 1995) ......................................................................30
United States v. Associated Press,
52 F.Supp. 362 (S.D.N.Y. 1943) ..............................................................21
Vantassell-Matin v. Nelson,
741 F.Supp. 698 (N.D. Ill. 1990)..............................................................31
Veilleux v. National Broadcasting Co.,
206 F.3d 92 (1st Cir. 2000).......................................................................42
Wilbanks v. Wolk,
121 Cal.App.4th 883 (2004) .....................................................................49
Wilcox v. Superior Court,
27 Cal.App.4th 809 (1994) .......................................................................48
Wilson v. Parker, Covert & Chidester,
28 Cal.4th 811 (2002)...............................................................................48
Wolf v. Regardie,
553 A.2d 1213 (D.C. App. 1989) .............................................................38
Wolston v. Reader’s Digest Ass’n,
443 U.S. 157 (1979) .................................................................................24
Statutes
42 U.S.C. § 1320d-6.....................................................................................38
California Civil Code § 45a..........................................................................30
California Civil Code § 47(b)(2) ..................................................................57
California Civil Code § 48a..........................................................................30
viii
California Code of Civil Procedure § 338....................................................40
California Code of Civil Procedure § 340.1(a)...............................................4
California Code of Civil Procedure § 425.16 ...............................................18
California Code of Civil Procedure § 425.16(b)(1)..........................48, 49, 51
California Code of Civil Procedure § 425.16(b)(2)......................................48
California Code of Civil Procedure § 425.16(j) ...........................................20
California Code of Civil Procedure § 904.1(d) ............................................20
Constitutional Provisions
First Amendment to the U.S. Constitution ............................................passim
ix
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Case No. S133805
DRAFT Version D
2-16-06 7 AM
IN THE SUPREME COURT OF CALIFORNIA
________________________________________________________
NICOLE TAUS,
Plaintiff and Respondent,
vs.
ELIZABETH LOFTUS, ET AL.,
Defendants and Appellants.
Appeal From an Order of the Solano County Superior Court
Honorable James F. Moelk, Judge
Review After Judgment of the Court of Appeal,
First Appellate District, Division Two
Justice Paul R. Haerle, Acting Presiding Justice
AMICUS CURIAE BRIEF of the
NATIONAL COMMITTEE OF
SCIENTISTS FOR ACADEMIC LIBERTY
IN SUPPORT OF DEFENDANTS and APPELLANTS,
ELIZABETH LOFTUS, ET. AL.
Drafted by R. Chris Barden, Ph.D., J.D., L.P. (pro hac vice) and Amici
1093 E. Duffer Lane, No. Salt Lake, UT 84054
Tel: 801-230-8328 ; E-mail: [email protected]
acting as Pro Bono Attorney for the National Committee of
Scientists for Academic Liberty
Submitted by pro bono California Counsel of Record
Mark C. Raskoff, S.B. No. 72330
Bishop, Barry, Howe, Haney & Ryder
2000 Powell Street 14th Floor, Emeryville, California 94608
Tel. No. 510.596.0888; Fax No. 510.596.089
TABLE OF CONTENTS
PAGE
IDENTITY AND INTEREST OF AMICUS CURIAE
SUMMARY OF ARGUMENTS
STATEMENT OF THE CASE
ARGUMENT
A.
This case involves a highly newsworthy, important, and contentious scientific debate of great
public interest. We are concerned about the use of this lawsuit as a strategic attempt to prohibit
public participation by the Defendants and thus improperly control the outcome of the debate.
B.
Continuation of this lawsuit is likely to chill, impede, or destroy significant areas of research
within the biomedical and social sciences especially in research involving interviews.
C.
Important areas of scientific research will be imperiled if research subjects who voluntarily inject
themselves into national science controversies are later permitted to sue researchers for invasion of
privacy.
D.
Research involving public documents is essential to scientific progress and should not be subject to
improper privacy litigation.
E.
Slander litigation based on newsworthy, factually accurate comments at professional and
educational conferences, could chill, impede, or destroy debate on important scientific issues.
CONCLUSIONS
TABLE OF AUTHORITIES
Cases
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
Duffy v. Father Flanagan’s Boys Town, Case No. 8:03CV31, United States District Court for the District of
Nebraska, Memorandum and Order of January 26, 2006 by Hon. Laurie Smith Camp, U.S. District Judge.
Engstrom v. Engstrom California App., 2nd App. Dist., Div 2, (CA 1997) "[Repressed memory] is not
generally accepted as valid and reliable by a respectable majority of the pertinent scientific community..."
In the Matter of George B. Greaves, Ph.D., License No. 636, State of Georgia Board of Examiners of
Psychologists, Docket No. 93-598,
Kumho Tire, Inc. v. Carmichael, 119 S.Ct.1167 (1999
Hamanne, et al. v. Humenansky, Ramsey County Minnesota File No. C4-94-203, Judge Betrand
Poritsky, June 30, 1995, Transcript page 83-84.
Carlson v. Humenansky (Minnesota Trial Ct), Judge Betrand Poritsky (January, 1996).
State of New Hampshire v. Hungerford and State of New Hampshire v. Morahan 698 A.2d 1244 (N.H.
1997)
State of New Hampshire v. Walters 697 A.2d 916 (N.H. 1997)
State of Rhode Island v. Quattrocchi, C.A. No. P92-3759 (R.I. 1999) [on remand from the Rhode Island
Supreme Court 681 A.2d 879 (R.I. 1999)]
State of New Hampshire vs. Bourgelais, Docket No. 02-S-2834, Judge T. Nadeau, April 4, 2005.
Rivers v. Father Flanagan’s Boys Town, Doc 1024, Case No. 743, Nebraska State Court Judge Sandra
L. Dougherty, November 25, 2005.
Duffy v. Father Flanagan’s Boys Town, Case No. 8:03CV31, United States District Court for the District of
Nebraska, Memorandum and Order of January 26, 2006 by Hon. Laurie Smith Camp, U.S. District Judge.
In the Matter of the License to Practice Psychology: Mark D. Stephenson, License No. Psy-253, Before the
Board of Psychologists, State of Idaho, Case No. PSY-03-95-005..
In the Matter of the Medical License of Diane Bay Humenansky, M.D., License No. 32,069, Before the
Minnesota Board of Medical Practice. Findings of Fact, Conclusions and Final Order dated December 20,
1996.
Hamanne, et al. v. Humenansky, Ramsey County Minnesota File No. C4-94-203, Judge Betrand Poritsky,
June 30, 1995, Transcript page 83-84. “
Other Authorities:
Acocella, J. The Politics of Hysteria, The New Yorker, April 6, 1998, pg. 64-79.
American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorderstext revision (4th ed.). Washington, DC.
AP News Wire story, Psychiatrist loses license over satanic [repressed memory] allegations Friday
Oct. 8, 1999.. Chicago (AP.
Associated Press, "$2.5 million for fake sex abuse memories; verdict "a stunning warning to
therapists,'" The Philadelphia Daily News, August 2, 1995.
Associated Press, Doctor Loses False-memory Suit, Chicago Tribune, Wed. Aug. 2, 1995, Sec. 1,
pg. 12
Associated Press, False-Memory Patient Wins Suit [$2.5 Million dollars], The Globe and Mail
(Canada), Aug. 2, 1995.
Associated Press, March 3, 1997, "Doctor accused of planting false memories settles suit [with N.
Cool] for $2.4 million."
Barden, R. C. (with signatories Paul E. Meehl, Terence W. Campbell, Richard Ofshe, Richard A.
Gardner, M.D., Margaret Singer, William Grove, Michael D. Yapko, Robyn Dawes, Richard Flyer, Robert
Kinscherff, Mel Guyer, Francis Fincham, Thom Moore, Henry E. Adams, E. Mark Cummings, Lewis P.
Lipsitt, Donald M. Kaplan, Robert R. Holt, Richard M. McFall, Hans H. Strupp, Stephen J. Lepore, Lee
Sechrest, Paul Ekman, Hans J. Eysenck. Signers of Version II Jerome Kagan, George Stricker, Debra Ann
Poole, Mark L. Howe, J. Don Read, Howard Shevrin) (1994) Letter to the Congress of the United States of
America regarding reform of the mental health system. reprinted in Dineen, Tana. Manufacturing Victims.
Montreal. Robert Davies Publishing, First Edition, 1996.
Barden, R.C. (2001) Informed Consent in Psychotherapy: A Multidisciplinary Perspective, The
Journal of the American Academy of Psychiatry and the Law, Vol 29, No. 2, pgs. 160-166, 2001.
Beitchman, Zlucker, Hood, DaCosta, Akman & Cassavia (1992). "A review of the long term
effects of child sexual abuse," Child Abuse and Neglect, 16: 101-118
Bauerlein, M., "The mirror cracked: Vynnette Hamanne spent three years losing her mind with the
help of her recovered memory therapist," City Pages, Vol. 17, No. 768, August 23, 1995.
Belluck, P. She Recovered Memories, Then Millions in Damages, The New York Times, Nov 9,
1997, Sec. 4, Week in Review, page 2, Column 3.
Belluck, P. Memory Therapy Leads to a Lawsuit and Big Settlement [$10.6 Million], The New
York Times, Page 1, Column 1, Nov. 6, 1997.
Brown, D., Scheflin, A. W., & Hammond, D. C. (1998). Memory, trauma treatment, and the law.
New York: Norton.
Brown, D., Scheflin, A. W., & Whitfield, C. L. (1999). Recovered memories: The current weight
of the evidence in science and in the courts. Journal of Psychiatry and Law, 27, 5-156.
Bruck, M. and Ceci, S. , Amicus Brief for the case of State of New Jersey v. Michaels presented by
Committee of Concerned Social Scientists. [Docket Number 36,633, State of New Jersey, Appellant vs.
Margaret Kelly Michaels, Respondent.] Psychology, Public Policy, and Law (1995) Vol. 1, No. 2, 272-322.
Chicago Daily Herald, November 4, 1997 , Woman Settles for $10.6 Million with Her Former
Psychiatrist and Chicago Hospital over Allegations she had been Brainwashed
Corwin, D. L., & Olafson, E. (1997). Videotaped discovery of a reportedly unrecallable memory
of child sexual abuse: Comparison with a childhood interview videotaped 11 years before. Child
Maltreatment, 2, 91-112
DiStefano, J.N. (2003, June 30). Pennsylvania liquidates insurer Legion. Philadelphia Inquirer at D1. Legion Insurance Company.
Frueh, B. C., Elhai, J. D., Grubaugh, A. L., Monnier, J., Kashdan, T. B., Sauvageot, J. A., Hamner,
M. B., Burkett, B. G., & Arana, G. W. (2005). Documented combat exposure of US veterans seeking
treatment for combat-related post-traumatic stress disorder. British Journal of Psychiatry, 186, 467-472.
Giordana, Kevin, False memory syndrome: As women bring lawsuits, therapists are having to pay
for their mistakes, Dec. 22, 1999, www.Salon.com magazine.
Glenn, David. Nightmare Scenarios: Science and Psychotherapy, Chronicle of Higher Education,
October 24, 2003
Grove, W. M. and Barden, R.C. (2000) Protecting the Integrity of the Legal System : The
Admissibility of Testimony from Mental Health Experts Under Daubert/Kumho Analyses, Psychology,
Public Policy and Law, Vol 5, No. 1, 234-242. Excerpts reprinted in Fisher, George (Prof. Stanford Law
School), Evidence: University Casebook Series, Foundation Press - West Group, New York, 2002, pg. 688.
Gustafson, Paul, Board suspends license of psychiatrist Diane Humenansky, Minneapolis/St. Paul
Star Tribune, Feb. 8, 1997, Pg 1B
Gustafson, Paul. Jury awards $2.5 million in lawsuit against psychiatrist: 'Memories' were induced.
Minneapolis/St. Paul Tribune, January 25, 1996, 1B
Gustafson, Paul. Jury awards patient $2.6 million: Verdict finds therapist Humenansky liable in
repressed memory trial Minneapolis St. Paul Tribune, 1995 WL 3673222, August 1, 1995.
Hammond, Cory Ph.D., “Hypnosis in MPD and Ritual Abuse,” , 4th Annual Eastern Regional
Conf. on Abuse and MPD, Alexandria, VA, June 25-29, 1992
Hansen, M. More False Memory Suits Likely, AMERICAN BAR ASSOCIATION JOURNAL,
Aug. 1994, pg. 36-37.
Hanson, Cynthia, Dangerous Therapy, Chicago Magazine, June, 1998.
Herman, J. L., & Schatzow, E. (1987). Recovery and verification of memories of childhood sexual
trauma. Psychoanalytic Psychology, 4, 1-14.
Lerner, Maura, Psychologist barred from treating cases involving false memories, Minneapolis/St.
Paul Tribune, June 3, 1999.
McGaugh, J. L. (2003). Memory and emotion: The making of lasting memories. New York:
Columbia University Press.
McKenna, M.A.J., ""Abuse' backlash builds: "Victims' deny "memories,' sue therapists," The
Boston Herald, April 8, 1994, p. 45.
McNally, R. J. (2003). Remembering trauma. Cambridge, MA: Belknap Press/Harvard
University Press.
Mooney, Tom. Recovered Memory Rejected: Judge rules out key element in landmark case. The
Providence Journal (Rhode Island). April 28, 1999.
Ofshe, R. and Watters, E. (1996) Making Monsters: False Memories, Psychotherapy, and Sexual
Hysteria. 2nd Edition. University of California Press
Piper, A., Jr., Pope, H. G., Jr., & Borowiecki, J. J., III. (2000). Custer’s last stand: Brown,
Scheflin, and Whitfield’s latest attempt to salvage “dissociative amnesia.” Journal of Psychiatry and Law,
28, 149-213.
Pope HG Jr, Oliva PS, Hudson JI. Repressed memories. The scientific status of research on
repressed memories. In: Faigman DL, Kaye DH, Saks MJ, Sanders J, eds. Science in the law: social and
behavioral science issues. St. Paul, MN: West Group, 2002, pp 487-526.
Pope HG Jr, Barry S, Bodkin JA, Hudson JI. Tracking scientific interest in the dissociative
disorders: a study of scientific publication output from 1984-2003. Psychother Psychosom 2006;75:19-24
Popper, K. Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989).
Public Broadcasting Systems, FRONTLINE Documentary exposing the dangers of repressed
memory therapy, "The Search for Satan," aired October 24, 1995
Rabinowitz, D. No Crueler Tyrannies : Accusation, False Witness, and Other Terrors of Our
Times, Free Press (February 24, 2004).
Repressed Memory, U.S.A. Today, Pg. A1, Col 1, Aug. 1, 1995.
Rierden, A., "When a buried truth wants out, is it real?" The New York Times, April 24, 1994,
Section 14 CW, p. 1, Connecticut Weekly Desk.
Shuit, D., Verdict heats up memory debate, LA TIMES, May 22, 1994, pg. A3, Col 1.
Sileo, C. Couches, Quacks and the Therapy Backlash, INSIGHT MAGAZINE, Aug. 29, 1994, pg.
6-11.
Smith M: Jury Awards $5.8 Million in Satanic Memories Case, Houston Chronicle, Aug. 15, 1997.
Smolla, Law of Defamation, §2.32 (2d ed. 2005)
Spiegel, D. (1997). Foreword. In D. Spiegel (Ed.), Repressed memories (pp. 5-11). Washington,
DC: American Psychiatric Press.
Terr, L. C. (1991). Childhood traumas: An outline and overview. American Journal of Psychiatry,
148, 10-20
United Press International, Woman wins $10 M in false memory suit, Chicago, Ill. November 4,
1997
Wallace, C.G., Idaho Falls Post Register, "State board suspends psychologist's license," July 3,
1996, p. A-8.
Worsnop, R. The Recovered Memory Debate, The U.S. Congressional Quarterly, Vol 6, No. 25,
July 5, 1996. pg. 579-599
TO THE HONORABLE RONALD M. GEORGE, CHIEF JUSTICE OF THE STATE OF
CALIFORNIA, AND TO THE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME
COURT:
Amici Curiae, The NATIONAL COMMITTEE OF SCIENTISTS FOR ACADEMIC LIBERTY,
respectfully submit this brief in support of Defendants and Appellants, Elizabeth Loftus, et. al., and urge this
Court to dismiss this case and uphold First Amendment and other legal protections for scientific research,
publication, and discussion regarding newsworthy issues of public debate.
This lawsuit threatens essential processes of scientific inquiry and debate as Defendant scientists,
internationally renowned experts in the science of human memory, face years of chilling, wasteful litigation.
The alleged offense of Defendants was investigating, exposing, discussing, and debating significant errors in
the collection and publication of controversial research. The kinds of investigative, publication, debate and
free-speech activities that Plaintiff challenges by this action are essential to the process of science. These
Defendants, and scientists engaged in similar research, should not face improper litigation as a consequence
of contributing truth to a newsworthy scientific debate. Defendants should not face improper litigation for
debating information obtained from sources readily available to the general public. Defendants should not
face improper claims of invasion of privacy from research subjects who repeatedly, deliberately and
contractually made themselves public figures in an international scientific debate.
Continuation of this lawsuit will surely chill biomedical and social science research involving
interviews with subjects. Continuation of this lawsuit will also surely chill forms of research involving
information obtained from records available to the general public. Continuation of this lawsuit will encourage
similar suits that pose a significant risk of impeding or destroying significant new areas of biomedical and
social science research. Dismissal of this litigation will preserve and protect current legal standards regarding
privacy as well as the essential processes of scientific inquiry, peer review, and debate.
IDENTITY AND INTEREST OF AMICUS CURIAE
The NATIONAL COMMITTEE OF SCIENTISTS FOR ACADEMIC LIBERTY
(“SCIENTISTS”) is a group of nationally and internationally prominent psychiatrists, psychologists, and
behavioral scientists, Federal grant recipients, private foundation grant recipients, members of professional
journal editorial boards, journal reviewers, recipients of national research awards, collectively publishers of
thousands of peer-reviewed scientific journal articles, tenured professors at major universities, recipients of
lifetime achievement awards, journal editors, and/or licensed clinical health care practitioners (See,
SCIENTISTS Amicus, Exhibit A for a list of the names, addresses, e-mail addresses, university positions and
other affiliations of the amici). Put simply, this group of internationally acclaimed scientists reads like a
“Who’s Who” in the worlds of psychiatry, psychology and cognitive (including the field of memory) science.
These amici have extensive experience with conducting and publishing peer-reviewed scientific research,
serving on the editorial boards of the leading journals, providing clinical services, administering programs,
serving as expert witnesses, and advising on public policy issues germane to the fields of cognition, memory,
development, trauma, and posttraumatic stress disorder (PTSD) for the full range of relevant populations,
including civilians and veterans, adults and children. These Amici are, in essence, the relevant scientific
community for the theoretical disputes underlying this litigation.1 Prior to the litigation at issue, they were
not organized in any formal way, and many, if not most, of them have never met the individual defendants in
this case.
As argued infra, the issues in the case of Taus vs. Loftus et al. are so relevant to the past, present,
and future work of Amici as scientists and practitioners that they have joined together to form The
Committee of Scientists for Academic Liberty to raise scientific and policy issues they feel are essential to
the future of free and unfettered scientific investigation and debate. This group of esteemed international
experts fear for the continued viability of the social science and biomedical research enterprises if lawsuits
such as this one are permitted to impede the scientific process and improperly hamper or control the
processes of scientific discourse, debate, and investigation.
As with any expert witness opinion, the ultimate goal of this brief is to assist the court by providing
detailed, technical, scientific, historical and other relevant information.
1
e.g. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire, Inc. v.
Carmichael, 119 S.Ct.1167 (1999); See also, Grove, W. M. and Barden, R.C. (2000) Protecting the Integrity
of the Legal System : The Admissibility of Testimony from Mental Health Experts Under Daubert/Kumho
Analyses, Psychology, Public Policy and Law, Vol 5, No. 1, 234-242
SUMMARY OF ARGUMENTS
This brief will focus on several issues including the importance of protecting essential scientific
research processes from the potentially damaging effects of improper litigation.
A.
This case involves a highly newsworthy, important and contentious scientific debate
of great public interest. We are concerned as an analysis of the history of the “repressed-recovered
memory” controversy supports the hypothesis that this lawsuit is a strategic attempt to prohibit public
participation by the Defendants. We are concerned that if this suit is allowed to continue, similar
litigation will increasingly be used to control the outcome of important scientific debates.
We will demonstrate, as members of the relevant scientific community involved in such research,
that the debate over “repressed and recovered memories of trauma” is one of the most contentious, important
and newsworthy debates in the history of psychology, psychiatry, and the mental health system. As the public
record and the record of this case demonstrates, the Plaintiff’s custody evaluator-psychiatrist-researcheradvocate’s (Dr. Corwin’s) interpretations of the Plaintiff’s videotaped interviews have played an important,
highly controversial and very public role in the ongoing debate known as the “memory wars.” Further, we
will demonstrate why the public examination of Dr. Corwin’s mistakes, scientific errors, and misreporting of
essential background information was and remains crucial to the integrity of the scientific process. In
addition, we will review the scientific and historical events that have led to this litigation.
In understanding this case, it is essential that this court review the historical and scientific
background of several issues. Throughout the 1990’s tens of thousands of families were torn apart as
psychotherapy patients reported “recovering repressed memories” of abuse by once trusted and beloved
parents, spouses, teachers, and others. Some of these reports included abuse in “past lives” and even
abduction and mistreatment by “space aliens.” Despite an almost total lack of credible scientific support for
the notion of “repressed memories of trauma”, by the mid 1990s hundreds of therapists were practicing
“recovered memory therapy” on tens of thousands of vulnerable patients. Thousands of civil lawsuits were
filed and many criminal prosecutions launched. Some state legislatures, failing to apply even the minimal
filters offered by the Frye-Daubert-Kumho doctrines, rushed to apply controversial research and unreliable
anecdotal evidence to amend statute of limitations rules. Despite the enormous cultural-legal-media
momentum generated by this controversial theory, by the year 2001, the “repressed memory” movement had
largely collapsed under the weight of dozens of scientific and media exposés, many successful and nationally
reported psychotherapy malpractice lawsuits, and repeated exclusions of so-called “recovered memory”
experts from courtrooms using Frye-Daubert-Kumho legal standards to expose the fallacies of “repressed
memory” research. The scientific community, under the leadership of world memory experts like Defendant
Professors Elizabeth Loftus, Melvin Guyer and colleagues, had risen to the challenge, publishing dozens of
studies documenting the hazards of “repressed-recovered memory” theories, the lack of competent, reliable
scientific information to support “repressed memory” therapies, and scientifically based explanations for why
some adults may make false allegations of childhood abuse.
Under the weight of this multi-pronged attack, over the years from 1994-2001, the repressed
memory industry largely collapsed and the number of patients claiming to “recover repressed memories” of
abuse declined dramatically. Similarly, the rate of scientific publications regarding "repressed memory"
tumbled equally dramatically, from a peak in the late 1990s to only a fraction of that rate by 2001 and
thereafter. 2 Furthermore, the few articles still appearing after 2000 on the subject of "repressed memory of
trauma" were often frankly skeptical of the concept, and hardly any of articles continue to present cases of
actual individuals with putative "repressed" or "recovered" memories of trauma. As the public record
reflects, by the turn of the century, the “repressed-recovered memory” (i.e.,“dissociation”) movement was not
only losing scientific credibility but, in addition, several of the major figures in this field suffered wellpublicized prosecutions and disciplinary actions by licensing boards, State Attorneys General, the U.S.
Justice Department, and law enforcement officials. In addition and most relevant to this suit, a stream of
evidence emanating from malpractice actions and licensing prosecutions documented that a substantial
amount of “repressed-recovered memory” research was tainted by irregularities including but not limited to:
the misreporting of results, failures to permit data review, and the destruction of all copies of essential data.
As the historical record shows, the loss of many of the top tier “repressed memory” theorists to
licensing and related problems left Dr. Corwin’s interviews with the Plaintiff as a rare, scandal-free empirical
study which he and others claimed demonstrated the existence of so-called “repressed-recovered memories of
trauma”. However, with the exposure of essential data never disclosed in Dr. Corwin’s publications,
2
Pope HG Jr, Barry S, Bodkin JA, Hudson JI. Tracking scientific interest in the dissociative
disorders: a study of scientific publication output from 1984-2003. Psychother Psychosom 2006;75:19-24
Professors Loftus and Guyer greatly reduced the credibility and thus the importance of Corwin’s “Jane Doe”
research.
This brief history of the “memory wars” illustrates our concerns regarding the potential motivation
for S.L.A.P.P. (Strategic Lawsuit Against Public Participation) legal cases and other efforts to silence
opposing points of view in science. In sum, we are concerned that silencing and punishing Dr. Loftus and
Dr. Guyer for exposing flaws in Corwin’s research could well be the leading motivation in this lawsuit. It
also seems probable on these facts that this lawsuit would not have been filed if Drs. Loftus and Guyer had
supported Plaintiff’s point of view in the great memory debate or if they had not so successfully cast doubt on
Plaintiff’s abuse allegations.
As we examine these issues in greater detail throughout this brief, it is important for the court to
remember that it is the consensus opinion of the relevant scientific community that there is no credible,
methodologically sound scientific evidence whatsoever for the theory that trauma survivors truly “repress”
and then later “recover” memories of events that were experienced as traumatic at the time. Although a
vocal subset of clinicians (therapists) believe in the “repression” hypothesis, research conducted over many
years involving thousands of trauma-abuse victims demonstrates and emphasizes the persistence of trauma
memories. “Repressed and recovered memory of trauma” is thus best described as a dangerous, piece of
psychiatric folklore devoid of convincing scientific evidence.3 In our collective opinion, this unsupported
theory has caused incalculable harm to the fields of psychology and psychiatry, damaged tens if not hundreds
of thousands of families, severely harmed the credibility of mental health professionals, and also misled the
legislative, civil, criminal and family legal systems into many miscarriages of justice.
B.
Continuation of this lawsuit will chill, impede or destroy significant areas of
research within the biomedical and social sciences.
Permitting personal lawsuits against scientists who investigate, locate and expose errors or
misconduct in controversial research publications would have damaging effects in all areas of science.
Continuation of this lawsuit alone would send a chilling message to essential forms of research in
psychological, psychiatric, biomedical and other areas of science involving interview data and the use of
public records. If, as in this case, researchers may be personally sued for analyzing and discussing
information already contained in public documents, many important scientific areas could be severely
crippled. Areas of inquiry involving public records, no matter how important to scientific debate, might
quickly be deemed “high risk” and freedom of inquiry, debate and discussion within those areas could be
crushed thus injuring science, journalism, and ultimately the citizens of California.
In sum, scientists, clinicians and journalists must be free to investigate and expose errors and
misconduct in important, controversial research published to the public. This is one of the most essential
functions of science -- to expose and correct errors. Such investigations would be chilled or halted if research
subjects were able to make themselves public figures (by consent or contract with friendly researchers) then
later sue those who might expose errors in the original research and come to conclusions that the research
subject did not comprehend or agree with. Such a chilling precedent would tarnish the integrity of the
scientific process and could lead to an increase in unreliable, insufficiently tested theories that would
ultimately imperil the integrity of the scientific, legislative and justice systems. We are concerned that this
case may become that chilling precedent.
C.
Important areas of scientific research will be imperiled if research subjects who
voluntarily inject themselves into national science controversies are later permitted to sue researchers
for invasion of privacy.
As active researchers and reviewers of scientific research projects, we are very familiar with
consent forms and privacy obligations. Research subjects who repeatedly and contractually waive rights to
privacy and knowingly inject themselves into contentious scientific debates should not be able to sue
researchers who expose errors in the methods and data of the original study. More specifically, with regard to
the case now before this court, it appears that a research subject voluntarily waived claims to privacy by
giving formal, repeated written consent for very public displays including full facial image, voice, words and
other identifying information to be broadcast around the world for “educational, treatment and research”
3
See detailed reviews of studies of thousands of trauma-abuse victims in Pope HG Jr, Oliva PS,
Hudson JI. Repressed memories. The scientific status of research on repressed memories. In: Faigman DL,
Kaye DH, Saks MJ, Sanders J, eds. Science in the law: social and behavioral science issues. St. Paul, MN:
West Group, 2002, pp 487-526 ; See a very current and complete review of the science of so-called
“repressed and recovered memories” in McNally, R. J. (2003b). Remembering trauma. Cambridge, MA:
Belknap Press/Harvard University Press.
purposes. Notwithstanding such written permissions, this plaintiff has now brought suit against other
researchers who released far less important, far less identifying, far less invasive, and far less significant
information. Given her voluntary, deliberate and very public entry into a vividly contentious public debate,
Plaintiff should not now be permitted to assert a claim of privacy that was waived, in writing, years ago. The
continuation of cases like this one could throw the current use and meaning of research privacy waivers into
chaos, with long-term damaging effects on important areas of science.
As argue in greater detail infra, we urge the court to carefully examine this Plaintiff’s series of
written contracts permitting very public displays of her image, words, voice, and other identifying
information. In sum, it appears that the Plaintiffs agreement could have led to her unedited image, words,
voice, and other identifying information being displayed on international television as part of a show on
“professional education, research and treatment.” That this Plaintiff could overcome these clear waivers to
file suit against scientists investigating the integrity of a research study is a precedent that will sow confusion,
uncertainty and anxiety in the relevant scientific community.
D.
Research involving public documents is essential to scientific progress and should
not be subject to improper privacy litigation.
It is apparently uncontested on this record that much or all of the identifying information disclosed
by the defendants (and very much more) was easily available in public documents at a county courthouse.
Permitting lawsuits for the disclosure of information already freely available for public review would
severely damage many areas of science, journalism, finance and other essential areas of public discourse.
In our argument, we urge the court to consider the important example of research on post-traumatic
stress disorder (PTSD). This illustration clearly demonstrates why researchers must be able to access
publicly accessible records to corroborate reports of trauma exposure whenever these records are available.
The integrity of the scientific process requires such corroboration whenever possible. Such research is highly
relevant to the present case as permitting those who make false or mistaken reports of traumatic stress to
personally sue researchers who uncovered the deception or error by using public records would clearly
cripple many important areas of scientific inquiry.
E.
Slander litigation based on newsworthy, factually accurate comments at
professional and educational conferences, could chill, impede, or destroy debate on important scientific
issues.
We are concerned that comments at scientific meetings that are newsworthy and factually true
could form the basis of slander litigation. It is not hard to imagine the chilling effect such a precedent would
have upon a wide range of scientific meetings, conferences, and conventions. In addition, in the present case
it appears that comments viewed as slanderous could not reasonably be construed as harmful or defamatory
to the Plaintiff in any way. For example, we are not aware of any scientific evidence or research to support a
claim that being identified as someone serving in the U.S. Navy -- a fact displayed in many public records -is somehow harmful or injurious. On the contrary, it is our view that such service is highly valued, prized,
and honored. Permitting litigation to proceed on the basis of such ephemeral “injuries” or irrational
“implications” as defined by individual members of an audience will create instability and uncertainty in
scientific discourse that will surely chill free speech at scientific meetings.
In addition, to us it seems reasonable that the behavior of individuals who have placed themselves
at the center of very public scientific, legal controversies is quite newsworthy. Certainly, the dispute over
“repressed-recovered memories of trauma” has generated a decade-long avalanche of publications in all
forms of the media. The long-term competence and functioning of victims of abuse -- and victims of false
memories of abuse produced by suggestive interviewing over time -- are both highly newsworthy topics that
have been subject to research investigations and media reports over many years.
STATEMENT OF THE CASE
We accept the statement of the case as briefed by the Defendant-Appellants.
ARGUMENT
A.
THIS CASE INVOLVES A HIGHLY NEWSWORTHY, IMPORTANT AND
CONTENTIOUS SCIENTIFIC DEBATE OF GREAT PUBLIC INTEREST. WE ARE
CONCERNED ABOUT THE USE OF THIS LAWSUIT AS A STRATEGIC ATTEMPT TO
PROHIBIT PUBLIC PARTICIPATION BY THE DEFENDANTS AND THUS IMPROPERLY
CONTROL THE OUTCOME OF THE DEBATE. IT IS IMPERATIVE THAT THIS COURT
UNDERSTAND THE HISTORICAL, SCIENTIFIC AND CULTURAL BACKGROUND TO THIS
LITIGATION.
1.
The debate over “repressed and recovered memories of trauma” is one of the most
contentious, important and newsworthy debates in the history of psychology, psychiatry and the mental
health system. Because this highly acrimonious debate has contentiously embroiled the legal, legislative,
medical, licensing, and journalism systems of the U.S. it is often referred to as the “memory wars.” This case
now threatens to contaminate the scientific research process with personal, wasteful, irrational, and improper
lawsuits.
Clinical researchers capable of understanding the relevant science realize that traumatic events -those experienced as overwhelmingly terrifying and life-threatening -- are remembered all too well (McNally,
2003, pp. 105-124). Informed clinicians and scientists realize that emotional arousal enhances memory for
trauma (McGaugh, 2003); it does not result in blocked memory for trauma. Indeed, people who develop
posttraumatic stress disorder (PTSD) are haunted by intrusive memories of horrors that they cannot forget –
facts embodied in the diagnostic criteria for PTSD (American Psychiatric Association, 2000, pp. 467-469).
Yet a subset of clinicians has made the controversial claim that the mind somehow protects itself
by banishing memories of trauma from consciousness, making it impossible for victims to recall their most
terrifying experiences until it is safe to do so years later (e.g., Herman & Schatzow, 1987; Terr, 1991). Some
clinicians believe that sexual abuse victims, especially those who repeatedly suffer abuse, are likely to
experience amnesia for their abuse. Although these notions fly in the face of scientific laws governing
emotion and memory, Spiegel (1997) has argued, for example, that “the nature of traumatic dissociative
amnesia is such that it is not subject to the same rules of ordinary forgetting; it is more, rather than less,
common after repeated episodes; involves strong affect; and is resistant to retrieval through salient cues” (p.
6).
These clinicians believe that a significant minority of sexual abuse victims, perhaps as many as
30% (Brown, Scheflin, & Hammond, 1998, p. 196) repress, dissociate, or block out these memories precisely
because the memories are so upsetting.
Despite the clinical beliefs of some therapists, there is simply no credible, methodologically
sound, replicable scientific evidence whatsoever for the claim that victims repress and recover memories of
traumatic events (McNally, 2003, pp. 186-228; Pope, et. al, 2002). The relevant scientific community has
long rejected such notions. To be sure, some victims may not think about disturbing events for many years, if
the events were not experienced as traumatic -- terrifying and life-threatening -- at the time of their
occurrence. But not thinking about something for a long time is not the same thing as being unable to
remember it, and it is an inability to remember that lies at the heart of repression theory.
For example, a child exposed to an episode of nonviolent sexual abuse (e.g., being inappropriately
touched by a stepfather) and who fails to understand the experience as abuse, may experience confusion,
anxiety, and disgust, but not traumatizing terror. Such a child may not think about the event, only to be
reminded of it years later. But this would not constitute repression, nor would it constitute a recovered
traumatic memory because the event was neither understood as abuse nor experienced as terrifying at the
time of its occurrence.
Decades of research and scientific debate have clarified over and over again, that the notion of
traumatic events being somehow “repressed” and later accurately recovered is one of the most pernicious bits
of folklore ever to infect psychology and psychiatry. 4 This folklore provided the theoretical basis for
4
Competently conducted Frye/Daubert/Kumho hearings increasingly reflect the state of scientific
knowledge in this area and routinely reject “repressed-recovered memory” testimony. See, e.g., Grove, W. M.
& Barden, R.C. (2000) Protecting the Integrity of the Legal System : The Admissibility of Testimony from
Mental Health Experts Under Daubert/Kumho Analyses, Psychology, Public Policy and Law, Vol 5, No. 1,
234-242. ; See, also Hammane, et al. v. Humenansky, Ramsey County Minnesota File No. C4-94-203,
Order of Judge B. Poritsky, June 30, 1995, Transcript page 83-84. “there is no agreement by experts that
there is general acceptance that such [recovered memory] evidence is reliable and trustworthy. That’s the
Frye standard. As to the Daubert standard, it is also my ruling that such [recovered memory] evidence is not
reliable nor helpful to the jury.”; See similar trial court ruling in Carlson v. Humenansky (Minnesota Trial
Ct), Judge B. Poritsky (January, 1996). ; State of New Hampshire v. Hungerford and State of New
Hampshire v. Morahan 698 A.2d 1244 (N.H. 1997) "The phenomenon of recovery of repressed memories
has not yet reached the point where we may perceive these particular recovered memories as reliable."; State
of New Hampshire v. Walters 697 A.2d 916 (N.H. 1997) "[W]e conclude, as we did in Hungerford , that "
[t]he indicia of reliability present in the particular memories in [this] case do not rise to such a level that they
overcome the divisive state of the scientific debate on the issue."; State of Rhode Island v. Quattrocchi, C.A.
No. P92-3759 (R.I. 1999) [on remand from the Rhode Island Supreme Court 681 A.2d 879 (R.I. 1999)]
"The State has not met its burden of establishing that repressed recollection is reliable and admissible as
scientific evidence."; State of New Hampshire vs. Bourgelais, Docket No. 02-S-2834, Judge T. Nadeau,
April 4, 2005. “the State’s motion [to use repressed memory evidence at trial] is denied… the court
determines, based on the law and the evidence, that the reliability of memory retrieval has not been
“recovered memory therapy” -- arguably the worst catastrophe to befall the mental health field since the
lobotomy era.
2.
The case of Jane Doe has assumed extraordinary significance in the fierce debate over the
reality of repressed and recovered memories of trauma. Videotapes of Dr. Corwin’s interviews have been
shown at professional conferences, and the case has routinely been cited by repression/dissociation theorists
as “proof” that horrific memories can be blocked from awareness and later recovered (e.g., Brown, Scheflin,
& Whitfield, 1999). In fact, an entire special section of the journal Child Maltreatment was devoted to Dr.
Corwin’s interviews with the Plaintiff (Corwin & Olafson, 1997), including commentaries on it by memory
researchers. Accordingly, the work of Loftus and Guyer has profound scientific, clinical, legal, and public
significance because it reveals that Corwin’s case history, is, in fact, far more complicated, confused, and
inconclusive than Dr. Corwin led us to believe. More specifically, it is not at all clear that Jane Doe was ever
actually abused, and the second videotape may thus simply depict her recollection of making (true or false)
allegations of abuse, not of any abuse itself. Dr. Corwin’s role in reporting, skewing, deleting, or
manipulating essential background evidence or in providing leading and suggestive questioning to the
plaintiff in her youth has yet to be fully explored.
3.
During the late 1980s and well into the mid-1990s the theory of repressed memory and
associated practices of memory recovery therapy grew into a tragic, national epidemic of pseudo-therapy.
Thousands of American families were destroyed as children were turned against their parents, and as courts
across the country used this now discredited and unsupported theory to curtail parental rights and even falsely
convict many citizens of heinous crimes. 5 The epidemic of repressed memory theory and therapists spread
widely through the creation of dozens of multiple personality disorder and recovered memory clinics and
therapist practices across North America. Many such clinics treated from dozens to thousands of patients
every year; these patients, under intensive hypnotic treatments and/or suggestive interviewing, came to
believe that they too had been abused and somehow “repressed the memories.” In contrast, during this time
frame, the extensive, careful scientific research casting serious doubts about the repressed memory notion
went largely ignored by this rapidly expanding and sadly profitable industry. A public letter to the U.S.
Congress, signed by several dozen of the most distinguished members of the scientific community, warned of
the predictable and serious dangers of this controversial theory.
"Consumer, patient, and professional groups are just now realizing that psychotherapy patients
across America are being subjected to experimental and potentially dangerous forms of
"psychotherapy," including "memory retrieval/ enhancement" therapy, at taxpayer expense. Even
more disturbing is the almost universal practice of subjecting patients to these controversial and
potentially dangerous procedures without any semblance of informed consent. We believe that
fraud investigations by the F.B.I. and other agencies would reveal that virtually none of the
therapists engaged in "memory retrieval" or "memory enhancement" procedures are informing
their patients (or insurance companies) of the experimental, very controversial and potentially
dangerous nature of these "treatments.... Child abuse is too serious a social problem to be dealt
with in this irresponsible manner. We strongly support the implementation of effective programs
to reduce the incidence of child abuse, assist victims of abuse and punish those who harm children.
sufficiently established…” ; Rivers v. Father Flanagan’s Boys Town, Doc 1024, Case No. 743, Nebraska
State Court Judge S. Dougherty, November 25, 2005. “... the Court finds and concludes that Plaintiff has not
met his burden of establishing that repressed and recovered memory is reliable and admissible as scientific
evidence or that it is properly applied in this case. The Plaintiff’s evidence lacks the scientific reliability and
proper application necessary... the Court finds and concludes that the Defendants’ Motion [banning all
testimony regarding repressed and recovered memories] shall be sustained.” ; Given the state of the evidence
many litigants are simply withdrawing Daubert motions, See, e.g., Duffy v. Father Flanagan’s Boys Town,
Case No. 8:03CV31, United States District Court for the District of Nebraska, Memorandum and Order of
January 26, 2006 by L. Smith Camp, U.S. District Judge. “[Plaintiff] ... filed a motion of withdrawal of
expert testimony on the issue of repressed memory.... [thus] judgment will be granted to [Defendant].”; and
many other cases.
5
See, Pulitzer Prize winner Dorothy Rabinowitz’s reporting on a series of errors in the criminal
justice system. Rabinowitz, D. No Crueler Tyrannies : Accusation, False Witness, and Other Terrors of Our
Times, Free Press (February 24, 2004); See also, Bruck, M. and Ceci, S. , Amicus Brief for the case of State
of New Jersey v. Michaels presented by Committee of Concerned Social Scientists. [Docket Number 36,633,
State of New Jersey, Appellant vs. Margaret Kelly Michaels, Respondent.] Psychology, Public Policy, and
Law (1995) Vol. 1, No. 2, 272-322.
Efforts to attain these important goals must, however, be based in fact rather than prejudice,
science rather than hysteria and reason rather than political ideology." 6
4.
A watershed in the acrimonious debate of the early and mid-1990s occurred in August of
1995 when a jury listened carefully to several months of scientific research and expert testimony from
national experts in psychology, psychiatry and social work. The jury returned a verdict of $2.67 million in
damages for Vynette Hamanne, a patient whose psychiatrist, Diane Humenansky, M.D. spent months
suggestively implanting false memories of sexual abuse using “repressed memory” theories.7 A second jury
verdict of $2.54 million was awarded to patient Elizabeth Carlson for injuries caused by “repressed memory”
therapy.8 These were probably the first financially viable psychotherapy negligence lawsuits in history, but
they were certainly not the last. Dozens of additional cases produced similar results, as the junk-science
nature of repressed memory theories and practices was exposed to daylight. The most dramatic defeat of the
repressed and recovered memory therapy epidemic occurred in 1997, with the Burgus v. Braun litigation,
when a family abused by “repressed memory” therapy settled their claims of false memory implantation for
$10.6 million. 9 This settlement was reported on page one, column one of the New York Times and in
hundreds of newspapers around the world, as well as on national and international television and in dozens of
magazines. The Burgus settlement followed on the heels of the Texas case of Carl v. Keraga, which resulted
in a jury verdict for the plaintiff of $5.8 Million. 10 These and many other litigation outcomes across dozens
of states combined with 1- the public education efforts of the False Memory Syndrome Foundation, 2- the
scientific work of nationally prominent psychiatric and psychological experts, and 3- the national media
attention on the pseudoscientific, dangerous nature of repressed memory theory, all helped to ensure that
health care organizations, government licensing bodies, prosecutors, and public interest groups were all ready
to regulate or prosecute irresponsible practitioners of “repressed memory” therapy.
It is vitally important to note in this historical analysis the critical importance of the scientific and
expert testimonial work done by Professor Loftus and her colleagues in hastening the demise of the
repressed-recovered memory therapy industry. Dr. Loftus’s essential role in the demise of the recovered
memory industry made her a target of many ardent supporters of “repressed-recovered memory” theory and
practice.
5.
During the mid to late 1990s an increasing body of evidence documented serious flaws in
published studies claiming to support the notion of “repressed and recovered memories”. This evidence
showed that such research was tainted by bias, incompetence, or worse. Of great relevance to the present
case is the fact that many of the top tier of repressed memory theorists, leaders, therapists and researchers
were eliminated from the ranks of credible scientists and therapists by licensing actions, criminal
prosecutions, and other self-inflicted disasters. During the years from 1994 to 1999, a number of the most
prominent and once respected international leaders of the “repressed-recovered memory” movement
6
See, Barden, R. C. (with signatories Paul E. Meehl, Terence W. Campbell, Richard Ofshe,
Richard A. Gardner, M.D., Margaret Singer, William Grove, Michael D. Yapko, Robyn Dawes, Richard
Flyer, M.D., Robert Kinscherff, J.D., Mel Guyer, J.D., Francis Fincham, Thom Moore, Henry E. Adams, E.
Mark Cummings, Lewis P. Lipsitt, Donald M. Kaplan, Robert R. Holt, Richard M. McFall, Hans H. Strupp,
Stephen J. Lepore, Lee Sechrest, Paul Ekman, Hans J. Eysenck,; Signers of Version II Jerome Kagan,
George Stricker, Debra Ann Poole, Mark L. Howe, J. Don Read, Howard Shevrin) (1994) Letter to the
Congress of the United States of America regarding reform of the mental health system. reprinted in Dineen,
Tana. Manufacturing Victims. Montreal. Robert Davies Publishing, First Edition, 1996.
Hamanne v. Humenansky, Minn. Dist. Ct., 2nd Dist., Ramsey Co., Minnesota, Case No. C4-94203; Gustafson P: Jury awards patient $2.6 million: Verdict finds therapist Humenansky liable in repressedmemory trial. Minneapolis Star Tribune, August 1, 1995, 1B ; Associated Press, Doctor Loses FalseMemory Suit, Chicago Tribune, August 2, 1995, A12;
7
8
Guthrey, M. and Kaplan, T., 2nd Patient Wins Against Psychiatrist: Accusation of planting
memories brings multi-million dollar verdict. St. Paul Pioneer Press, Jan. 25, 1996, 4B.
Belluck, P. She Recovered Memories, Then Millions in Damages, The New York Times, Nov 9,
1997, Sec. 4, Week in Review, page 2, Column 3.
Belluck, P. Memory Therapy Leads to a Lawsuit and Big Settlement [$10.6 Million], The New
York Times, Page 1, Column 1, Nov. 6, 1997.
9
10
1997.
Smith M: Jury Awards $5.8 Million in Satanic Memories Case, Houston Chronicle, Aug. 15,
effectively self-destructed. The legal, licensing, civil justice and criminal justice systems exposed widespread and serious problems in the repressed memory movement as the national media watched and reported.
11
In addition to these widely known examples, following the 1990s torrent of scientific analysis, the
waves of malpractice litigation, the many licensing-prosecution disasters, and examples of missing data, a
number of repressed memory therapists quietly left the mental health professions and became unlicensed
consultants, massage therapists, life coaches or related occupations.
The well-documented and widely reported problems within the repressed memory movement made
it essential that research purporting to prove the existence of “repressed-recovered memories” -- research like
Dr. David Corwin’s as noted in the present case -- should be fairly yet rigorously examined. In understanding
the relationship of this newsworthy history to the case before the court, it is important to note that, amidst all
of these once-famous researchers, Dr. David Corwin was one of the few remaining still claiming evidence of
actual “repressed-recovered memories of trauma” that could be readily observed by others.
Although Dr. Corwin’s interview study is really nothing more than a single case clinical interview,
the chaotic, troubled state of the recovered memory movement (as documented above) makes Dr. Corwin’s
filmed interview with the Plaintiff one of the most contested pieces of information in the ongoing
international repressed memory debate. Given this background and historical context, the extraordinary
newsworthiness of the issues in this case is readily apparent. With a well-documented history of professional
misconduct and research irregularities in the “repressed-recovered memory” world, with thousands of
Americans being trained to believe they had “repressed” memories of parental abuse, and the with legal
system prosecuting citizens based upon nothing more than the recovered memory allegations of therapy
patients, the question as to whether or not Dr. David Corwin had scientifically responsible and unbiased in
reviewing and reporting essential background facts became a matter of grave concern throughout the world of
memory researchers.
6.
Given the well documented licensing and related troubles within the repressed memory
movement, Dr. David Corwin, the plaintiff’s custody evaluator-psychiatrist-researcher-advocate, assumed
ever greater importance as one of the very few licensed, credentialed researchers remaining in the field who
claimed to possess proof of “repressed and recovered memories” of abuse. Given the historic pattern of
irregularities in the ranks of the repressed memory movement, it would be hard to overestimate the
importance of examining Dr. Corwin’s research data for errors, distortions and inaccuracies. Professor
Elizabeth Loftus, as one of the most renowned and esteemed experts in human memory in the world, was
clearly the logical choice to investigate the credibility of Dr. Corwin’s very controversial data.
7.
Given her unique status as one of the most esteemed memory experts in the world and
thus one of the chief critics of the repressed memory movement, Dr. Loftus has been the target of many
inappropriate personal attacks. For example, a 1996 article in Psychology Today, featuring her memory
research work, noted that Loftus “is violently hated by some women and psychotherapists” and that “they’ve
been trying to destroy her reputation.” The article also suggested a strategy behind the attacks:
“Why Loftus? And why now? The tide has turned. Many recovered memory convictions
have been overturned. Much of this is due to Loftus; [the repressed memory movement
thinks] it would help if she could be discredited as an expert witness.” Staff. (1996).
Dispatch from the memory wars. Psychology Today, May/June, 6-7.
Professor Loftus, also poses grave dangers to the “repressed memory” movement because her
research so clearly and elegantly demonstrates that people (including mental patients, normal adults,
adolescents, and children) can be led to believe in wild and frightening events about their own childhoods
that could not possibly have happened.12 In addition, Professor Loftus and her colleagues have demonstrated
11
See, See, State of Illinois v. Bennett G. Braun MD, License No. 036042542, Department of
Licensing Regulation Case No.1998-10343-01 (1998); (See, Ofshe & Watters, 1996, p. 245; See also, Grove
& Barden (2000),) See, In the Matter of George B. Greaves, Ph.D., License No. 636, State of Georgia Board
of Examiners of Psychologists, Docket No. 93-598; Lerner, Maura, Psychologist barred from treating cases
involving false memories, Minneapolis/St. Paul Tribune, June 3, 1999; See, Hammond (1992). See, Piper, A.,
Jr., Pope, H. G., Jr., & Borowiecki, J. J., III. (2000) ; See, U.S. Attorney Settles Drug Lawsuit with
Cambridge Psychiatrist , PR Newswire, Boston Globe, July 5, 1995, Wednesday; See e.g., In the Matter of
the License to Practice Psychology: Mark D. Stephenson, License No. Psy-253, Before the Board of
Psychologists, State of Idaho, Case No. PSY-03-95-005; See, In the Matter of the Medical License of Diane
Bay Humenansky, M.D., License No. 32,069 and many others.
12
Loftus. E.F. (1997, September). Creating false memories: Researchers are showing how
suggestion and imagination can create “memories” of events that did not actually occur. Scientific American,
70-75.
the power of imagination to create utterly false memories that many subjects will believe with firm
conviction.13 Her research efforts and expert witness work pose a powerful, emotional, and professional
threat to a non-scientific community of clinicians who cling to an unshakeable, data-resistant belief in the
reality and accuracy of “repressed-recovered memories of trauma”.
Professor Loftus is also a powerful threat to unreliable or disreputable theories due to her unique
stature in the field of memory research, For example, in 2005 Professor Loftus received the Grawemeyer
Award, often referred to as “the Nobel Prize in psychology.” In recent years, Professor Loftus was elected to
the National Academy of Sciences. She was also elected a fellow of the American Academy of Arts and
Sciences and given a Distinguished Scientific Applications of Psychology Award from the American
Psychological Association. When Dr. Loftus received the prestigious William James award from the
American Psychological Society (“APS”) – the Society’s highest award for scientific contributions – her
work was described as having “advanced substantially both the quality of basic memory research and the
fairness of the criminal justice system.” In introducing Dr. Loftus, the APS explained:
Over the past 15 years, Dr. Loftus’s attention has turned to a related but considerably
more controversial issue, that of the validity of “recovered memories” of childhood
abuse. As a result of her pioneering scientific work as well as her activity within the
legal system, society is gradually coming to realize that such memories, compelling
though they may seen when related by a witness, are often a product of recent
reconstructive memory processes rather than of past objective reality. In bringing to light
these facts of memory, Dr. Loftus has joined the ranks of other scientists, past and
present, who have had the courage, inspiration, and inner strength to weather the
widespread scorn and oppression that unfortunately but inevitably accompanies clear and
compelling scientific data that have the effrontery to fly in the face of dearly held beliefs.
(Id.) (emphasis added)
Perhaps most telling this regard, Dr. Loftus’ is listed as one of the 99 Most Eminent Psychologists
of the 20th Century (See, Review of General Psychology, 6(2); 2001). She is also the highest ranked woman
on that highly esteemed and historic list. Dr. Loftus’s unique, outstanding role in the world of science gives
her an unprecedented platform to expose quack theories and bogus notions about human memory. It also
makes her a target for improper litigation including S.L.A.P.P. suits and efforts to slow her work and punish
her for exposing errors or misconduct.
8.
As glaring errors were found in the judgment, ethics, and methodology of more and more
repressed memory researchers, how would Dr. Corwin’s data fare under investigation? Corwin’s “Jane Doe”
article, as a lone example of actual data an apparent recovery of a repressed memory of trauma, captured on
videotape, became an increasingly important part of the memory debate. An entire issue of a journal devoted
to the study and commentaries about this single case, quoted noted researchers regarding the importance of
this project.14 Clearly some researchers were impressed with Corwin’s study, but they had not yet seen the
actual background records that allegedly supported Corwin’s conclusions. Only Corwin and his colleagues
had reviewed those essential files. Most memory researchers were, at that time, also completely unaware of
the avalanche of licensing revocations and disciplinary actions against leaders of the “repressed-recovered
memory” field making their way through the regulatory and legal systems. Given the dearth of credible
evidence for repression, proponents of “repressed-recovered” memories began citing the Corwin article.
Some even claimed it provided “evidence documenting the occurrence of essentially accurate recovered
13
Garry, M. Manning, C.G., & Loftus, E.F. (1996). Imagination Inflation: Imagining a childhood
event inflates confidence that it occurred. Psychonomic Bulletin & Review, 3, 208-214. Loftus, E.R. &
Mazzoni, G.A. (1988). Using imagination and personalized suggestion to change people. Behavior Therapy
29, 691-706. Loftus. E.F. (1997, September). Creating false memories: Researchers are showing how
suggestion and imagination can create “memories” of events that did not actually occur. Scientific American,
70-75.
14
Professor Ulric Neisser said of Corwin’s study that “All students of human memory, whatever
their views, have reason to be grateful to David Corwin and Erna Olafson for making this valuable material
available. Neisser, U. (1997) Jane Doe’s memories: Changing the past to serve the present. Child
Maltreatment, 2(2), 123-125.
memories.” 15 But would such bold claims withstand a fair and unbiased, public examination of Dr. Corwin’s
actual background material? Had he accurately, fairly and responsibly described the context for the interview
with Ms. Taus? Or was Dr. Corwin simply another in a long line of repressed memory supporters who
seemed to skew, misreport, misrepresent, suppress or possibly even invent vital evidence? It became
increasingly important to answer such fundamental questions.
9.
As predicted by the history of the “repressed-memory” movement and as the public
record now documents, the meticulous and thorough interviews, research, and examinations by Dr. Loftus
and her colleagues have uncovered serious concerns about the accuracy of Dr. Corwin’s research. Their
investigations indicate that the “Jane Doe” case-study presented by Drs. Corwin and Olafson is, at best, far
more complicated than initially presented. Indeed, a fair reading of the background material, possible only as
a result of Loftus et al’s investigation, shows that it is not at all clear that the abuse depicted in the
Plaintiff’s“recovered memories” ever, in fact, occurred. The Plaintiff’s reports may simply represent a
firmly believed-in yet factually false belief, much like thousands of other patients interviewed by repressed
memory therapists who developed “memories” of abuse including reports of alien abduction or abuse in past
lives or abuse by international satanic cults. Such mental images, borne of leading questions, can be easily
mislabeled by patients as memories under the suggestive interviewing influences of a therapist, researcher, or
custody evaluator. If such is the case, and Corwin’s work in now as suspect as other “repression” research,
the concept of repressed traumatic memories may have even less empirical support that many of its most
ardent theorists would have others believe. In sum, the discovery by Loftus and colleagues of potentially fatal
flaws in Dr. Corwin’s methods, procedures, and conduct has profound implications for a- the science of
trauma and memory, b- clinical practice for trauma survivors, c- civil and criminal legal proceedings
(including Daubert/Kumho and related hearings) and d- the scientific process in general.
10.
As we have seen in this review, precise, powerful and wholly improper motivations for
the present lawsuit are predictably found in the long and ongoing history of the repressed memory debate. In
sum, the controversial theoretical positions of the Plaintiff and her custody evaluator-psychiatrist-researcheradvocate have fared very poorly indeed over the past decade. As reams of public records (see supra)
demonstrate, many of the most prominent leaders of the repressed memory movement have been disciplined
for serious misconduct of various kinds by professional licensing boards, state attorneys general offices, U.S.
District Attorneys, U.S. District judges, and many malpractice case juries. The decimated ranks of repressed
memory theorists have left Plaintiff’s custody evaluator-psychiatrist-advocate as one of the dwindling
number of untainted voices in the repressed memory choir. Simply put, the Defendants in this case have been
sued because they dared to investigate scientifically and methodologically and thus cast doubts on the
increasingly controversial recovered memory claims of Plaintiff and Dr. Corwin. This suit appears to be an
attempt to derail a scientific public debate while intimidating and silencing (SLAPP) those who dare to
challenge Plaintiff’s personal point of view.
11. If allowed to proceed, this lawsuit appears to represent a pernicious legal strategy that we fear
will be used again—quite possibly against individuals whose research is scientifically or socially
controversial. Such a suit could set a dangerous precedent that would serve to further stifle scientific inquiry
into other contentious topics. We, as a group, are involved in a wide range of clinical and research activities
that could leave us vulnerable to improper lawsuits aimed at ending or altering the direction of these
empirically-based activities. In addition to memory for traumatic events, other specific examples include
research on topics such as: scientific and pseudo-scientific mental health treatments, veracity and
documentation of traumatic event reporting, malingering and symptom distortion, eyewitness testimony,
safety of medications used with children and adolescents, hypnosis, treatment for PTSD among children,
civilians, and combat veterans, memory recovery techniques, memory errors and distortions, personality
assessment with objective and projective techniques, mental health crisis intervention immediately following
large-scale natural disasters and terrorist attacks, cognition and development, psychiatric disability and
litigation among both verified and alleged trauma survivors, and racial disparities in mental health care
service delivery.
Advocates of “repressed-recovered memory” theory and therapies have long attempted to
intimidate and thus prevent clinical scientists from investigating and learning the truth about cases regarding
alleged repressed and recovered memories of trauma. It is our collective opinion that the present legal action
15
Freyd, J.J. (1998). Science in the memory debate. Ethics & Behavior 8(2). 101-113; Corwin’s
study is also listed in the Appendix of Studies on Repressed Memory (Prospective Studies) in Scheflin, A.W.
& Spiegel, D.S. (1998). From courtroom to couch: Working with repressed memory and avoiding lawsuits.
Psychiatric Clinics of North America, Diagnostic Dilemmas, Part II, 21(4), 847-867 Corwin & Olfason is
one of several that “offer compelling ‘existence proof’” for the phenomenon of amnesia and later memory
recovery. Gleaves, D.H., Smith, S.M., Butler, L.D., & Spiegel, D. (2004). False and recovered memories in
the laboratory and clinic: A review of experimental and clinical evidence. Clinical Psychology: Science and
Practice VII(1), 3-28.
against Dr. Loftus et al. is nothing more than an effort to silence this powerful, public exposé of yet another
set of research irregularities in the long-troubled world of “repressed memory” advocates.
B.
CONTINUATION OF THIS LAWSUIT IS LIKELY TO CHILL, IMPEDE, OR DESTROY
SIGNIFICANT AREAS OF RESEARCH WITHIN THE BIOMEDICAL AND SOCIAL SCIENCES
ESPECIALLY REASEARCH INVOLVING INTERVIEWS.
Permitting suits against scientists who methodically investigate and expose errors or misconduct in
newsworthy, controversial research areas would cause deep and lasting harm to all areas of science involving
human subjects including biomedical, pharmaceutical, military, and other research areas of great public
interest. If, as in this case, researchers may be sued for investigating, analyzing and discussing information
already contained in public documents, many important scientific areas could be severely crippled. Areas of
inquiry involving public records, no matter how important to scientific debate, will quickly be deemed “high
risk” and freedom of inquiry and free speech within those areas will be injured or ended. Such a result could
cause lasting harm to science, journalism, and ultimately the citizens of California.
Should this case continue, we are concerned that other areas of science will be adversely affected as
the case is reported in law review articles, science journals, and legislative committees. In sum, significant,
newsworthy scientific debates should be not be halted, tainted, skewed, or controlled by therapy patients or
research subjects who wish to punish responsible researchers studying questions of enormous clinical,
scientific and public interest.
It is important for this court to note that concepts make their way into education by first going
through the process of science; this involves researching, publishing, defending, confirming, and earning
consensus. 16 Derailing this scientific process by personal litigation could simply end many important types
of research inquiry. As a result, few will be willing to take the risks involved in exposing research errors and
misconduct and this predictable effect of the present litigation could lead directly to significant increases in
research fraud.
In sum, scientists, clinicians and journalists must be free to investigate and expose errors and
irregularities in important, controversial research published to the public. This is one of the most essential
functions of science -- to expose misrepresentations, irregularities and error. Such investigations would be
chilled or halted if research subjects were able to make themselves public figures (by consent or contract with
friendly researchers) then sue anyone who came to conclusions the research subject did not comprehend or
agree with. Such a chilling precedent would tarnish the integrity of the scientific process and produce many
false and unreliable notions that could ultimately imperil the integrity of the scientific, legislative and justice
systems.
C.
IMPORTANT AREAS OF SCIENTIFIC RESEARCH WILL BE IMPERILED IF
RESEARCH SUBJECTS WHO VOLUNTARILY INJECT THEMSELVES INTO NATIONAL
SCIENCE CONTROVERSIES ARE LATER PERMITTED TO SUE RESEARCHERS FOR
INVASION OF PRIVACY.
As researchers, editors and reviewers of scientific research projects, we are very familiar with
consent forms and privacy obligations. Research subjects who repeatedly and contractually waive rights to
privacy and knowingly inject themselves into contentious scientific debates should not be able to turn around
and later sue researchers who expose errors in the original study data and methodology. More specifically,
with regard to this issue, we are concerned about the case now before this court. In the present case, it
appears that a research subject clearly, repeatedly, and voluntarily waived claims to privacy by giving formal,
repeated written consent for very public displays including full facial image, voice, words and other
identifying information to be broadcast around the world for “educational, treatment and research” purposes.
Notwithstanding the written permission for very public displays, this plaintiff has now been permitted to
bring suit against other researchers who released far less important, far less identifying, far less invasive and
far less significant information. Given her repeated, contractual, deliberate, and very public entry into a
vividly contentious public debate, Plaintiff should not now be permitted to assert a claim of privacy that was
apparently waived, in writing, many years ago. The continuation of cases like this one, we fear, will throw
the current use and meaning of written research waivers of privacy into chaos with long-term damaging
effects on important areas of science.
We urge the court to carefully examine this Plaintiff’s series of written contracts permitting very
public displays of her image, words, voice and other identifying information. These contracts apparently did
16
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993) (citing Karl
Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989).
NOT include any firm restrictions on the number of displays, residual media portrayals, re-publications by
other parties, re-filming of the original tape by other professionals, reprinting of stills of the video in book
form for unlimited “educational” release, re-disclosure in the media, or other forms of highly predictable
public display. In sum, it appears that the Plaintiff’s agreement could have led to her unedited image, words,
voice and other identifying information being displayed on international television as part of a show on
“professional education, research and treatment’. That this Plaintiff could overcome these clear and
contractual privacy waivers to file suit against scientists investigating the integrity of a research study is a
precedent that will sow confusion, uncertainty and anxiety in the relevant scientific community.
The court may also note that this Plaintiff’s entry into the memory wars debate was apparently a
series of deliberate events. Plaintiff apparently remained in contact with Dr. Corwin over a period of years
“to assist in the development of understanding human [repressed] memory.” (App. 0858.) The record reflects
that this plaintiff personally approved of Dr. Corwin using her no-longer private information for very public
displays for “educational purposes.” (App. 0169.) The record reflects that this Plaintiff gave Dr. Corwin
written, contractual consent to continue to display her image to the public, display her voice to the public, and
display her allegations to the public. She apparently never asked to have her image, voice, or story altered in
any way and even failed to complain about Dr. Corwin’s public display of her first name and home city
“Modesto” in the unedited tape displayed at public meetings open to the national media. (See contract at
App. 0753-0756.).
The record in this case is thus of deep concern to us because it strongly suggests, by default, that
this plaintiff’s complaints were directed toward the scientific content of Dr. Loftus’ analysis. For example,
this Plaintiff apparently did not tighten, restrict. or withdraw her consent for public displays of her image,
voice and story by Dr. Corwin when she first learned of Defendants’ investigation (App. 0754), or even after
Defendants’ Skeptical Inquirer article was published years later, which Plaintiff now claims was a “roadmap”
to her identity. (App. 0756, 1127.) Through the entire time period, Plaintiff was apparently happy to let Dr.
Corwin use her as part of his traveling educational seminars. In sum, and ominously for the research
community, the record of this case indicates that Plaintiff only sued the Defendants after they dared to expose
flaws in Dr. Corwin’s methods and conclusions, thus threatening plaintiff’s esteemed role as an advocate for
‘repressed memories” and abuse victims. Given Plaintiff’s detailed awareness of Dr. Corwin’s pro-repression
beliefs and his intent to show the world that the “Jane Doe” article was of “significance with regard to the
ongoing questions about human [repressed] memory,” Plaintiff signed on to the public debate and
“educational” agenda when she gave her full written, voluntary consent (App. 0753, 0825-0849) to her
custody evaluator-psychiatrist-researcher-advocate, Dr. David Corwin.
We note that the uncontested record demonstrates that the plaintiff’s voluntary enlistment in Dr.
Corwin’s cause was an essential cause of the current conflict. Corwin’s “important paper” (App. 0791) could
not have been written and no public displays of Corwin’s “repression evidence” could ever have occurred
without Plaintiff’s repeated approval and contractual permissions. Even more telling, the record appears to
us to indicate that Plaintiff clearly and repeatedly consented to Dr. Corwin’s repeated and very public use of
her image, voice and allegations for the express purpose of supplying Corwin with powerful ammunition in
the memory wars debate. (App. 0169, 0753-0756.)
In sum, the Plaintiff in this matter has been publicly participating (via expressly and contractually
authorized videotapes of her image, voice, allegations, and story) for many years in one of the most
contentious of all social science-medical debates. It is uncontested on this record that Plaintiff voluntarily,
repeatedly, and contractually injected her uncensored visual image, words, opinions, allegations of horrific
abuse, and claims of “recovered memories” into a national scientific, legal and public policy debate of great
importance. Persons who voluntarily, repeatedly, and contractually inject themselves into great public
controversies should not be able to later claim invasion of privacy. Continuation of this lawsuit threatens to
send the settled rules of consent and privacy waivers into an uncertain state of disarray.
D.
RESEARCH INVOLVING PUBLIC DOCUMENTS IS ESSENTIAL TO SCIENTIFIC
PROGRESS AND SHOULD NOT BE SUBJECT TO IMPROPER PRIVACY
LITIGATION.
We urge the court to consider whether the identifying information disclosed by the defendants (and
very much more) was readily available in public documents, including marriage records in a county
courthouse. We are concerned that permitting lawsuits for the disclosure of information already disclosed in
public documents would severely damage many areas of science, journalism, finance, and other essential
areas of public discourse.
As a specific example, consider research on posttraumatic stress disorder (PTSD). Until recently,
researchers studying individuals seeking treatment for combat-related trauma, service-connected disability
compensation, or both, did not attempt to confirm reports of combat trauma by consulting publicly available
archival data (e.g., personnel records). However, one recent landmark study revealed that as many as 59% of
these individuals have no convincing evidence of exposure to trauma in their military personnel files. Some
were either never in Vietnam or never served in the military at all. Another recent study on subjects reporting
war trauma indicated that 53% had no evidence of combat exposure in their personnel files. 17 Although no
source of data in science is infallible, including archival records, the aforementioned findings indicate that
researchers must be able to access publicly accessible records to corroborate reports of trauma exposure
whenever these records are available. The integrity of the scientific database requires such investigations.
This research is highly relevant to the present case as permitting those who make false or mistaken reports of
traumatic stress to personally sue researchers who uncovered the deception or error by using public records
would clearly cripple this and many other important areas of scientific inquiry.
In sum, we are concerned that continuation of this lawsuit will throw the biomedical and social
sciences into a state of confusion regarding the use of public records.
E.
SLANDER LITIGATION BASED ON NEWSWORTHY, FACTUALLY ACCURATE
COMMENTS AT PROFESSIONAL AND EDUCATIONAL CONFERENCES, COULD CHILL,
IMPEDE, OR DESTROY DEBATE ON IMPORTANT SCIENTIFIC ISSUES.
Scientists must feel free to enter even contentious debates and publish public information they
lawfully gather as well as conclusions regarding such data, even though it presents a new perspective that
others may disdain. In this case, the information Defendants learned through their investigation and published
in Skeptical Inquirer regarding errors in Dr. Corwin’s research, are highly relevant to the national memory
wars debate and reflect on the accuracy of Dr. Corwin’s claims and Plaintiff’s claim of “recovered
memories”.
We are concerned that comments at scientific meetings that are newsworthy and factually true
could form the basis of slander litigation. It is not hard to imagine the chilling effect such a precedent would
have upon a wide range of scientific meetings, conferences and conventions. In addition, in the present case
it appears that comments viewed as slanderous could not reasonably be construed as harmful or defamatory
to the Plaintiff in any way. For example, we are aware of no scientific evidence or research to support a
claim that being identified as someone serving in the U.S. Navy -- a fact displayed in many public records -is somehow harmful or injurious. On the contrary, it is our view that such service is highly valued, prized
and honored. Permitting litigation to proceed on the basis of such ephemeral “injuries” or even more
irrational “implications” creates instability and uncertainty in scientific discourse that will surely chill free
speech at scientific meetings.
In addition, to us it seems reasonable that the behavior of individuals who have placed themselves
at the center of very public scientific, legal controversies is quite newsworthy. Certainly, the dispute over
“repressed-recovered memories” has generated a decade-long avalanche of publications in all forms of the
media. Further, the long-term competence and functioning of victims of abuse -- and victims of false
memories of abuse produced by suggestive interviewing over time -- are both highly newsworthy topics that
have been subject to research investigations and media reports over many years. 18
17
Frueh, B. C., Elhai, J. D., Grubaugh, A. L., Monnier, J., Kashdan, T. B., Sauvageot, J. A.,
Hamner, M. B., Burkett, B. G., & Arana, G. W. (2005). Documented combat exposure of US veterans
seeking treatment for combat-related post-traumatic stress disorder. British Journal of Psychiatry, 186, 467472; See also, Kimbrell, T., Leulf, C., Cardwell, D., Komoroski, R. A., & Freeman, T. W. (2005).
Relationship of in vivo medial temporal lobe magnetic resonance spectroscopy to documented combat
exposure in veterans with chronic posttraumatic stress disorder. Psychiatry Research: Neuroimaging,140,
91-94.
18
See, e.g., Beitchman, Zlucker, Hood, DaCosta, Akman & Cassavia (1992). "A review of the
long term effects of child sexual abuse," Child Abuse and Neglect, 16: 101-118.; Media including Acocella,
J. The Politics of Hysteria, The New Yorker, April 6, 1998, pg. 64-79; Associated Press, "$2.5 million for
fake sex abuse memories; verdict "a stunning warning to therapists,'" The Philadelphia Daily News, August
2, 1995.; Associated Press, March 3, 1997, "Doctor accused of planting false memories settles suit [with N.
Cool] for $2.4 million."; Bauerlein, M., "The mirror cracked: Vynnette Hamanne spent three years losing her
mind with the help of her recovered memory therapist," City Pages, Vol. 17, No. 768, August 23, 1995;
Belluck, P. She Recovered Memories, Then Millions in Damages, The New York Times, Nov 9, 1997, Sec.
4, Week in Review, page 2, Column 3.Belluck, P. Memory Therapy Leads; Chicago Daily Herald, November
4, 1997 , Woman Settles for $10.6 Million with Her Former Psychiatrist and Chicago Hospital over
Allegations she had been Brainwashed; Giordana, Kevin, False memory syndrome: As women bring
lawsuits, therapists are having to pay for their mistakes, Dec. 22, 1999, www.Salon.com magazine; Glenn,
David. Nightmare Scenarios: Science and Psychotherapy, Chronicle of Higher Education, October 24,
2003; Guthrey, M. and Kaplan, T., 2nd Patient Wins Against Psychiatrist: Accusation of planting memories
brings multi-million dollar verdict. St. Paul Pioneer Press, Jan. 25, 1996, 4B.; Public Broadcasting Systems,
FRONTLINE Documentary exposing the dangers of repressed memory therapy, "The Search for Satan,"
The behavior of individuals who are at the center of national scientific, legal controversies is
certainly newsworthy. Further, the long-term competence and functioning of victims of abuse and victims of
false memories of abuse produced by suggestive interviewing remain highly newsworthy topics.
CONCLUSION
For most of the past decade, it appears that the Plaintiff in this case contractually and repeatedly
authorized Dr. Corwin to publicize her full image, voice, abuse allegations, and version of her story as part of
a concerted effort to sway public and scientific opinion in the ongoing, newsworthy controversy surrounding
so-called “repressed-recovered memories.” Without question, this most emotional of public scientific
debates has broad and important implications for society, particularly in civil and criminal cases throughout
the country where the reliability of childhood memories is often the focus of inquiry. Drs. Loftus and
Guyer’s Skeptical Inquirer article has raised serious concerns and questions about the accuracy of Dr.
Corwin’s “Jane Doe” case history. Plaintiff’s repeated efforts to punish and stifle Drs. Loftus and Guyer’s
conclusions and contributions to the public debate – based on their lawful, scientific research – must not
continue.
Principles of free speech, debate, discussion, and other essential scientific processes are endangered
by attempts to use the courts to stifle and control scientific research. Drs. Loftus and Guyer’s lawful
investigation – reviewing public records freely available to the public and interviewing citizens to gather
relevant information – should be fully protected scientific activities.
Discussions of newsworthy information on issues of great public interest at scientific and
educational forums should not be subject to the crushing burdens of SLAPP litigation. Continuation of this
and similar lawsuits will surely taint, impede, and eventually corrupt the scientific process and ensure that
future debates may be hobbled by incomplete and inaccurate information screened by scientists’ attorneys.
This is the dark scenario this lawsuit could bring to pass. Future scholars should not be faced with the kinds
of personal and legal assaults that these Defendants have had to endure simply to publish truth to the world.
For these reasons, Amici urge the Court to find in favor of the Defendants-Appellants, Professor
Elizabeth F. Loftus, et al. and dismiss this case in its entirety before lasting harm is done to the scientific
process.
DATED: February _____, 2006
Respectfully submitted,
By _____________________________
R. Christopher Barden, Ph.D., J.D.
Attorney at Law (MN), Licensed Psychologist (MN, TX)
Author of this Amicus and Counsel of Record for the NATIONAL COMMITTEE OF SCIENTISTS
FOR ACADEMIC LIBERTY
and
By _____________________________
Mark C. Raskoff, J.D.
California Counsel of Record
Mark C. Raskoff, J.D. S.B. No. 72330
Bishop, Barry, Howe, Haney & Ryder
2000 Powell Street 14th Floor
Emeryville, California 94608
Tel. No. 510.596.0888; Fax No. 510.596.0899
aired October 24, 1995 ; Repressed Memory, U.S.A. Today, Pg. A1, Col 1, Aug. 1, 1995. ; Rierden, A.,
"When a buried truth wants out, is it real?" The New York Times, April 24, 1994, Section 14 CW, p. 1,
Connecticut Weekly Desk. ; Shuit, D., Verdict heats up memory debate, LA TIMES, May 22, 1994, pg. A3,
Col 1. ; Sileo, C. Couches, Quacks and the Therapy Backlash, INSIGHT MAGAZINE, Aug. 29, 1994, pg.
6-11. ; Smith M: Jury Awards $5.8 Million in Satanic Memories Case, Houston Chronicle, Aug. 15, 1997;
Worsnop, R. The Recovered Memory Debate, The U.S. Congressional Quarterly, Vol 6, No. 25, July 5, 1996.
pg. 579-599 and hundreds of other stories in the U.S. and international media demonstrating the
“newsworthy” nature of this subject matter.
E-mail: [email protected]
CERTIFICATE OF WORD COUNT
Pursuant to CRC 14(c), the text of this brief, including footnotes and excluding the table of contents
and tables of authorities, consists of less than ________ words in 14-point Times New Roman type as
counted by the Microsoft Word word-processing program used to generate the text.
DATED: FEBRUARY 16, 2006
Amicus Drafted by:
R. Chris Barden, Ph.D., J.D., L.P. (pro hac vice) and Amici
1093 E. Duffer Lane
No. Salt Lake, UT 84054
Tel: 801-230-8328 ;
E-mail: [email protected]
By
February 16, 2006
acting as Pro Bono Attorney for the National Committee of
Scientists for Academic Liberty
Submitted by pro bono California Counsel of Record
Mark C. Raskoff, S.B. No. 72330
Bishop, Barry, Howe, Haney & Ryder
2000 Powell Street 14th Floor
Emeryville, California 94608
Tel. No. 510.596.0888; Fax No. 510.596.089
By ____________________________
Mark C. Raskoff, J.D.
APPENDIX A
DESCRIPTION OF AMICI CURIAE
Aaron T. Beck, M.D., University Professor of Psychiatry Emeritus at the University of Pennsylvania School
of Medicine, is the founder of cognitive therapy. He has received numerous awards, including research
awards from the American Psychiatric Association, the American Psychological Association, and the
Institute of Medicine. He has also been listed as one of the ten Americans with the greatest influence in the
history of American psychiatry. Dr. Beck is the author or co-author of over 500 publications, including 17
books. His cognitive therapy, the most heavily researched form of psychotherapy, represents a major
advance in the understanding and treatment of a variety of psychiatric disorders including affective disorders,
anxiety disorders, substance abuse, personality disorders, and schizophrenia.
Harrison G. Pope, Jr, M.D. is Professor of Psychiatry at Harvard Medical School and Director of the
Biological Psychiatry Laboratory at McLean Hospital, Harvard’s principal psychiatric teaching hospital. Dr.
Pope is the author of more than 250 peer-reviewed scientific papers in a wide range of fields within
psychiatry, and has published extensively on the controversy surrounding “repressed memory” and childhood
sexual abuse. Professor Pope is among the approximately 260 psychologists and psychiatrists in the world
identified by the Institute for Scientific Information as the most “highly cited” (i.e., top one half of one
percent of all published psychologists and psychiatrists worldwide in terms of citation impact).
Richard J. McNally, Ph.D., is Professor of Psychology and Director of Clinical Training at Harvard
University. Dr. McNally is the author of over 260 publications, many in the field of traumatic stress and
memory, including the book Remembering Trauma (2003, Harvard University Press). His research, funded
by the National Institute of Mental Health, includes laboratory studies on cognitive functioning in adults who
report having been sexually abused as children. He served on the American Psychiatric Association’s
committee for revising the DSM-IV diagnostic criteria for posttraumatic stress disorder (PTSD). Dr McNally
is among the approximately 260 psychologists and psychiatrists in the world identified by the Institute for
Scientific Information as the most “highly cited” (i.e., top one half of one percent of all published
psychologists and psychiatrists worldwide in terms of citation impact).
James I. Hudson, M.D., Sc.D. -- is Associate Professor of Psychiatry at Harvard Medical School, and CoDirector of the Biological Psychiatry Laboratory and the Psychiatric Epidemiology Research Program at
McLean Hospital, Harvard's principal psychiatric teaching hospital. Dr. Hudson is the author of more than
160 peer reviewed scientific publications in a wide range of psychiatric fields. Professor Hudson has
published extensively on the controversy surrounding "repressed memory" and childhood sexual abuse.
Professor Hudson is among the approximately 260 psychologists and psychiatrists in the world identified by
the Institute for Scientific Information as the most "highly cited" (i.e., top one half of one percent of all
published psychologists and psychiatrists worldwide in terms of citation impact.
Richard Ofshe, Ph.D. is a Professor (emeritus, recalled to service) in the Department of Sociology of the
University of California at Berkeley. He is the recipient of a John Simon Guggenheim Foundation
Fellowship, the Dorcus Award of the International Society for Clinical and Experimental Hypnosis and
shared in the award of the Pulitzer Prize for Pubic Service given to the Point Reyes Light Newspaper. He has
been the recipient of Federal research grants and has served on the editorial boards of scientific journals. His
research in recent years has focused on two topics, the misuse of influence by incompetent psychotherapists
leading to pseudomemories of sexual abuse (so called recovered memories) and the misuse of influence by
police detectives during interrogation leading to false confessions by the innocent. His work on both topics is
internationally recognized.
William M. Grove, Ph.D. -- is Assoc. Professor and former Co-Director of the Ph.D. Clinical Training
Program at the University of Minnesota, Department of Psychology. Professor Grove of the University is an
internationally recognized expert in psychopathology, diagnosis, behavior genetics and scientific
methodology. Professor Grove has served as a reviewer for virtually every leading journal in psychology and
psychiatry, and is the author of over 100 professional publications. Dr. Grove has been awarded several
millions of dollars of research grants from the National Institutes of Health. He has also testified as an expert
witness on the methods of science in many legal cases involving so-called “repressed memories”.
Paul R. McHugh M.D. Presently University Distinguished Service Professor of Psychiatry, Johns Hopkins
University, Dr. McHugh was Psychiatrist-in-chief at Johns Hopkins Hospital from 1975-2001. He has
published 4 books and over 150 scientific papers on psychiatry and related subjects. He is a member of the
Institute of Medicine (NAS) and of the President's Council on Bioethics and recipient of the Menninger
Award from the American College of Physicians and the Zubin Award from the American
Psychopathological Association.
Robert Perloff, Ph.D. is the Distinguished Service Professor Emeritus of Business Administration and of
Psychology at the Joseph M. Katz Graduate School of Business, University of Pittsburgh. A past president of
the American Psychological Association, Dr. Perloff was also president of the American Psychological
Foundation, the Eastern Psychological Association, the Evaluation Research Society, and several other
regional and national associations. He is the author of over 400 publications, reviews, commentaries, and
presentations at universities and professional conferences. In 2000, the American Psychological Foundation
awarded him its Gold Medal for Lifetime Achievement in Psychology in the Public Interest.
Stephen J. Ceci, Ph.D. is a Chaired Professor of Developmental Psychology and Co-Director of the Cornell
Institute for Research on Children in the Department of Human Development at Cornell University. Dr. Ceci
is the author of over 300 articles, chapters, reviews and books many in the field of children’s memory,
including the award-winning book Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony
(1995), published by the American Psychological Association. In 1994-1995, Dr. Ceci served on the
American Psychological Association’s Task Force on Recovered Memories of Childhood Abuse. Dr. Ceci is
the recipient of the 2004-05 American Psychological Society's James McKeen Cattell Award. The award
states, "His research … findings have led to significant advances in how we think about intelligence and
children's testimonial competence.” Dr. Ceci is a fellow of the American Association for the Advancement of
Science (AAAS), APS and APA (7 divisions). Currently he serves on the White House Commission on
Developmental Research, the National Science Foundation's Advisory Board and the National Academy of
Science's Board on Behavioral, Cognitive and Sensory Sciences.
Henry L. Roediger, III, Ph.D. is the James S. McDonnell Distinguished University Professor and
Department Chair at Washington University in St. Louis. Dr. Roediger’s research has centered on human
learning and memory, and he has published 180 articles and chapters on various aspects of cognitive
processes involved in remembering. His recent research has focused on illusions of memory (how we
sometimes remember events differently from the way they actually occurred) and effects of testing memory
(how retrieving events from memory can change their representation, often making them more likely to be
retrieved in the future. Dr. Roediger served as Editor of the Journal of Experimental Psychology: Learning,
Memory and Cognition (1985-1989) and was founding editor of Psychonomic Bulletin & Review (19941999). He has served as President of the American Psychological Society (2003-2004), Chair of the
Governing Board of the Psychonomic Society (1989-1990) and Chair of the Society of Experimental
Psychologists (2003-2004). He was recently elected fellow of the American Academy of Arts and Sciences.
August Piper, M.D. is a clinical and forensic psychiatrist in Seattle, WA. Dr. Piper has testified as an expert
in a number of prominent “repressed memories” trials. He is the author of several important works in the
field including “Hoax and Reality :The Bizarre World of Multiple Personality Disorder”, “Custer's last stand:
Brown, Scheflin, and Whitfield's latest attempt to salvage "dissociative amnesia." and "Multiple Personality
Disorder”. Dr. Piper is Medical Director of the Psychiatry Service at Swedish/Providence Medical Center in
Seattle, Washington.
B. Christopher Frueh, Ph.D. is Professor and Director, Division of Public Psychiatry, within the
Department of Psychiatry at the Medical University of South Carolina. A clinical psychologist, he also
serves as Director of the PTSD clinic at the VA Medical Center, Charleston, South Carolina. He has been
Principal Investigator on 7 federally-funded research grants in the arena of PTSD, has over 100 scientific
publications, and provides editorial board service for 4 scientific journals—this includes currently serving as
an Associate Editor for the Journal of Traumatic Stress. He has testified before a U.S. congressional
committee on mental health service delivery for veterans, and consults for the South Carolina Dept. of Mental
Health.
Steve Lynn, Ph.D. is a Professor in the Department of Psychology at the State University of New York at
Binghamton. He has 237 publications, including the book Truth in Memory. Many of these publications
cover the topics of hypnosis and memory recovery techniques, traumatic stress, dissociation and purportedly
repressed memories, and psychopathology. Professional distinctions include: a) past president of the
American Psychological Association Division of Scientific Hypnosis; b) Diplomate in both Clinical and
Forensic Psychology (ABPP); c) editorial board or editor service for 13 scientific journals; d) research funded
by the National Institute of Mental Health; e) Fellow in 6 professional organizations, including the American
Psychological Association and the American Psychological Society; and f) numerous professional awards
including the Chancellor's Award of the State University of New York for Scholarship, Creativity, and
Professional Activity.
Peter van Koppen, Ph.D. is a tenured Senior Chief Researcher at the Netherlands Institute for the Study of
Crime and Law Enforcement (NSCR) in Leiden, the Netherlands, as well as a tenured Professor of Law and
Psychology at the Departments of Law of both Maastricht University and the Free University Amsterdam, the
Netherlands. Both an experimental psychologist and a lawyer, he has over 200 scientific publications in the
field of psychology and law and serves as Co-Editor of Psychology, Crime, and Law. He has served as expert
witness in more than 200 cases in the Netherlands, Belgium, and England. He served on a committee for the
Dutch minister of Justice to investigate cases of ritual sexual abuse. He wrote a report for the Dutch minister
of Justice on how the police and prosecution should handle cases with repressed and recovered memories.
Currently he serves on the Dutch National Expert Group on Unusual Sexual Crimes of the College of
Attorneys-General to which the prosecution is obliged to turn for advice before any arrest is made in cases in
which claims of recovered memories are made.
John F. Kihlstrom, Ph.D. is Professor in the Department of Psychology, University of California, Berkeley,
where he is also a member of the interdisciplinary Institute for Cognitive and Brain Sciences and the Institute
for Personality and Social Research. He has published more than 100 articles, chapters, and books, many on
the subject of memory and its pathology, including a number of articles on trauma and memory as well as a
textbook and handbook chapters on the dissociative disorders and on functional amnesia. He has chaired two
review groups for the National Institute of Mental Health. Among other editorial appointments, he has served
as Associate Editor of the American Journal of Psychology, the International Journal of Clinical and
Experimental Hypnosis, the Journal of Abnormal Psychology and as Editor of Psychological Science.
Gerald M. Rosen, Ph.D. is a practicing psychologist in Seattle, Washington, and holds an appointment as
Clinical Professor in the Department of Psychology, University of Washington. He is editor of the text
Posttraumatic Stress Disorder: Issues and Controversies, and author of over 60 articles, many in the field of
posttraumatic studies.
Sally Satel, M.D. is a psychiatrist and Resident Scholar at the American Enterprise Institute. She has
published two books, PC MD and One Nation Under Therapy, and writes frequently for the Wall Street
Journal and the Science section of the New York Times. Her writings have included extensive discussion of
issues germane to trauma, memory and reporting of trauma, and treatment of PTSD. She has testified before
a U.S. congressional committee on matters related to PTSD funding for the Veterans Affairs system.
Maryanne Garry, Ph.D. is a Senior Lecturer (the U.S. equivalent of Associate Professor) in Psychology at
Victoria University of Wellington, in New Zealand. Her area of expertise is memories for personal
experiences, particularly false memories from childhood. She has numerous scholarly publications, has been
Principal Investigator on grants from both the U.S. and New Zealand, and is the Chair of her human research
ethics committee.
Dr, Hans F.M. Crombag, Ph.D. is Professor Emeritus of Law & Psychology at the Universities of Antwerp
(Belgium), Leiden and Maastricht (both in the Netherlands). He has published approximately 200 scientific
publications in Dutch or English, most of which are concerned with problems of legal evidence. The most
relevant in the present context is his book (written in collaboration with prof. Harald Merckelbach)
Hervonden Herinneringen en Andere Misverstanden (Recovered Memories and Other Misconceptions.
Amsterdam: Contact, 1996), that was also translated into German (Missbrauch Vergisst Man Nicht: Erinnern
und Verdrängen - Fehldiagnosen und Fehlurteile. Berlin: Ullstein Buchverlag, 1997).
David F. Bjorklund, Ph.D. is a Professor of Psychology at Florida Atlantic University. He is the author of
Children’s Thinking: Cognitive Development and Individual Differences, co-author, of Looking at Children:
An Introduction to Child Development, and The Origins of Human Nature: Evolutionary Developmental
Psychology; he is the co-editor of False-Memory Creation in Children and Adults: Theory, Research, and
Implications, among others. He has served as Associate Editor of Child Development (1997-2001) and will
become the next Editor of the Journal of Experimental Child Psychology (January, 2007). He has served on
the editorial boards of Developmental Psychology, Cognitive Development, Journal of Comparative
Psychology, Journal of Cognition and Development, and Journal of Experimental Child Psychology. He has
published more than 120 scholarly articles and has received funding for his research from the National
Science Foundation, the Spencer Foundation, and the German Research Foundation.
Phillip W. Esplin, Ph.D. is in private practice in forensic psychology. He is also a senior research
consultant with the National Institute of Child Health & Development: Child Witness Project.
James M. Wood, Ph.D. is tenured Professor in the Department of Psychology of the University of Texas at
El Paso. He has 58 publications, including the book What’s Wrong With the Rorschach? Much of his
research addresses child interviewing in sexual abuse cases, suggestibility of child and adult witnesses, and
the use of controversial assessment techniques such as the Rorschach Inkblot test in clinical and forensic
contexts. His work has been reported in the New York Times, the New York Review of Books, and Scientific
American. He is on the editorial board of three professional journals: Child Maltreatment, Assessment, and
the Scientific Review of Mental Health Practice.
Richard Gist, Ph.D. is the Principal Assistant to the Director of the Kansas City, Missouri Fire Department.
He has written and consulted all over the world on matters related to first-responding in the aftermath of
disasters and terrorist attacks.
Irving Kirsch, Ph.D. is Professor of Clinical Psychology at the University of Plymouth. He is an author of
more than 200 scientific journal articles, books, and book chapters, most of which focus on the effects of
suggestion in various contexts, including the effects of suggestion on memory. He is a past president of the
American Psychological Association Division of Psychological Hypnosis, an editorial consultant to
numerous scientific journals in the field of psychology, a Fellow of the American Psychological Association
and American Psychological Society, and a recipient of many professional awards.
Steven C. Hayes, Ph.D. is Nevada Foundation Professor at the Department of Psychology at the University
of Nevada. An author of 25 books and 340 scientific articles, he has developed a widely-researched
experimental analysis of human language and cognition, as well as psychotherapy methods that link this work
to a variety of disorders. In 1992 he was listed by the Institute for Scientific Information as the 30th “highest
impact” psychologist in the world during 1986-1990 based on the citation impact of his publications. He has
been President of Division 25 of the American Psychological Association, of the American Association of
Applied and Preventive Psychology, and of the Association for Advancement of Behavior Therapy. He was
the first Secretary-Treasurer of the American Psychological Society. He has received the Don F. Hake Award
for Exemplary Contributions to Basic Behavioral Research and Its Applications from Division 25 of the
American Psychological Association and was appointed by U.S. Health and Human Services Secretary
Donna Shalala to a 5 year term on the National Advisory Council on Drug Abuse in the National Institutes of
Health.
James D. Herbert, Ph.D. is a tenured Associate Professor and Director of Clinical Training in the
Department of Psychology at Drexel University, where he also currently serves as Associate Dean of the
College of Arts and Sciences. He is Associate Editor of two scientific journals (The Scientific Review of
Mental Health Practice and Cognitive and Behavioral Practice). He is a Fellow of the Commission for
Scientific Medicine and Mental Health, and is on the Board of Scientific Advisors of the American Council
on Science and Health. His research on anxiety disorders has been funded by the NIMH, and he has
published over 80 scientific papers on a variety of psychological topics, including the scientific basis of
clinical practice and the proliferation of pseudoscience in mental health.
Robert Montgomery, Ph.D. is a clinical psychologist who served on the American Psychological
Association’s Task Force on Empirically Validated Treatments and as Chair of the Clinical Interest Group of
Association for Behavior Analysis. He has published in a variety of professional journals on such topics as
PTSD, medication effects on developing brains, reduction of aggression, and overcorrection. He currently
serves as a fellow and editorial board member of the Commission for Scientific Medicine and Mental Health,
and as an editorial board member of The Journal of Early and Intensive Behavioral Intervention.
Harald Merckelbach, Ph.D. is a Professor of Experimental Psychology at the Faculty of Psychology,
University of Maastricht, the Netherlands. He is also a Vice-Dean of this faculty. He has published more than
300 research papers, most of them in domain of psychopathology, forensic psychology, and psychology &
law. He frequently serves as an expert witness in court cases that require expert opinions on malingering,
confessions, PTSD, schizophrenia, memory loss, and/or recovered memories. Recently, he served on a
committee appointed by the Dutch Minister of Health to investigate cases of recovered memories (2004).
James Ost, Ph.D. is a Senior Lecturer at the University of Portsmouth, United Kingdom and a Chartered
Psychologist of the British Psychological Society. He teaches courses on Advanced Cognitive Psychology
and the Psychology of False and Recovered Memory. He has given over 30 presentations at international
conferences, and published several articles on the Recovered Memory controversy in peer-reviewed journals
(e.g., Applied Cognitive Psychology, British Journal of Psychology, Memory). He is also regularly invited to
give presentations to professional audiences about issues surrounding contested claims of childhood abuse.
He is a member of the Scientific Advisory Board of the BFMS, a registered charity who provide support to
individuals and professionals in contested cases of child abuse.
Scott O. Lilienfeld, Ph.D. is a tenured Associate Professor of Psychology at Emory University. He is
founder and editor of the new journal, Scientific Review of Mental Health Practice and is past (2001-2002)
President of the Society for a Science of Clinical Psychology, which is Section III within Division 12
(Society of Clinical Psychology) of the American Psychological Association. He is a member of eight
journal editorial boards, including the Journal of Abnormal Psychology, Psychological Assessment, and
Clinical Psychology Review. He has published over 130 articles, book chapters, and books in the areas of
personality assessment, anxiety disorders, psychiatric classification and diagnosis, and questionable practices
in clinical psychology. He has published several peer-reviewed articles and chapters on the controversy
concerning false memories of abuse and suggestive therapeutic procedures that can give rise to such
memories. His work on psychological pseudo-science has been widely featured in the media.
Marc Sageman, M.D., Ph.D., is psychiatrist and Clinical Assistant Professor of Psychiatry and a lecturer
at the Department of Psychology at the University of Pennsylvania; a senior fellow at the Foreign Policy
Research Institute in Philadelphia; a fellow of the American Psychiatric Association; and a fellow at the
College of Physicians of Philadelphia. He is the coordinator of the Law and Psychiatry program at the
University of Pennsylvania and has taught a year-long seminar of the same title for the past four years. He
has published and lectured on the concept of emotional trauma for the past ten years.
Grant J. Devilly, Ph.D. is a Professorial Fellow in Neuropsychology at the Swinburne University and an
adjunct research fellow at the University of Melbourne, Australia. A clinical psychologist, he directs the
Clinical and Forensic Psychology, Neuropsychology and Psychiatry Research Unit within the Centre for
Neuropsychology at Swinburne University. He conducts both treatment and experimental psychopathology
studies and has published widely on the nature, concomitants and treatment of trauma reactions in
international journals. He has acted as an expert witness in forensic cases relating to trauma and memory of
events and is a frequent “first-call” for the media on topics related to the above.
Anthony Pratkanis, Ph.D. is currently Professor of Psychology at the University of California, Santa Cruz
where he studies social psychology, social influence, and prejudice reduction. He earned his Ph.D. in 1984
from Ohio State University. A frequent contributor to scientific journals and the popular press (over 80
publications) on the topics of persuasion and influence, he is a co-editor of Attitude Structure and Function,
Social Psychology, The Science of Social Influence, and a past associate editor for the Journal of Consumer
Psychology. His research program has investigated such topics as the delayed effects of persuasion, attitudes
and memory, groupthink, affirmative action, subliminal persuasion, mass communications, source credibility,
persuasion and democracy, and a variety of influence processes. In 1995, he was elected a fellow of the
American Psychological Association. Dr. Pratkanis is the founding editor of a new scientific journal, Social
Influence. Currently, he is working with various groups including law enforcement agencies on strategies for
preventing economic fraud crimes, with government agencies including the United States military on
countering the propaganda of terrorists and dictators, and with the National Association of Attorneys
General’s Tobacco Litigation Group as an expert on marketing and consumer behavior.
Jon D. Elhai, Ph.D. is an Assistant Professor of Psychology at the Disaster Mental Health Institute and
Department of Psychology at The University of South Dakota. He has published more than 40 scientific
papers in mental health journals and books, and he is the Co-Editor of the Journal of Trauma Practice, and
Managing Editor of the Journal of Trauma and Dissociation.
Timothy Tumlin, Ph.D. is a clinical psychologist in private consulting practice in Burr Ridge, Illinois. For
seven years his clinical practice has focused on assessment and treatment of individuals in medical treatment
for chronic pain. This has included the assessment and treatment of many individuals diagnosed with PTSD.
He has served as an expert witness in federal and state court cases in which PTSD diagnoses were at issue.
D. Stephen Lindsay, Ph.D. is a Professor of Psychology at the University of Victoria in Victoria, British
Columbia, Canada. He is a cognitive psychologist specializing in human memory, with a particular specialty
in memory errors and distortions. He has published 57 articles and 11 chapters, co-edited two volumes, and
co-authored an introductory psychology text. He is currently Editor of the Journal of Experimental
Psychology: General, published by the American Psychological Association.
Peter A. Ornstein, Ph.D. is the F. Stuart Chapin Distinguished Professor of Psychology at the University of
North Carolina at Chapel Hill. He is a developmental psychologist who served as Co-Chair of the American
Psychological Association’s Working Group on Adult Memories of Childhood Abuse. He has long been
interested in the development of children’s memory and cognition. His research has explored the
development of strategies for storing and retrieving information, long-term retention of salient, personallyexperienced events, and the implications of children’s memory skills for understanding their testimony in
legal settings. He served as Associate Editor of Developmental Psychology, and serves on numerous editorial
boards.
Susan A. Clancy, Ph.D. is a research psychologist in experimental psychopathology who, broadly, studies
the impact of trauma on memory functioning. Her research focuses on the relationship between personality
and clinical characteristics and false memory creation.
John W. Bush, Ph.D. is in private practice of clinical psychology in Brooklyn, NY. He is also Chairperson
of the New York Institute for Cognitive and Behavioral Therapies, a training institute for mental health
professionals, and author since 1996 of the most-consulted Web site on cognitive behavior therapy.
Paul R. Lees-Haley, Ph.D. y is a clinical psychologist specializing in the evaluation of trauma victims
across the entire spectrum of human tragedy. He is the recipient of the Nelson Butters National Academy of
Neuropsychology Award for Research Contributions to Clinical Neuropsychology. He is the author or coauthor of 200 publications, including articles related to assessment of PTSD in forensic settings. He has
served as a consultant to the U.S. Department of Justice, NASA, New York Times, FBI, Rand Corporation,
State of California, University of California (UCLA, UCSD, UCI, UCSF), California Department of Justice
(Attorney General), California Board of Psychology, National Security Agency, JFK Special Warfare Center,
California Bar Association, U.S. Army Intelligence Center & School, U.S. Army Missile Command
(MICOM), and U.S. Ballistic Missile Defense Systems Command. He was the first non-physician to conduct
a court-ordered independent examination in Canada.
Howard D. Eisman, Ph.D. is the Director of Psychology and Behavioral Health at the Coney Island
Hospital in Brooklyn, NY. He is also Executive Director of the New York Institute for Cognitive and
Behavioral Therapies and conducts research on child and adult psychopathology.
Mark Creamer, Ph.D. is Director of the Australian Centre for Posttraumatic Mental Health and a Professor
in the Department of Psychiatry at the University of Melbourne. He is a clinical psychologist with many
years of experience in the field of traumatic stress from both research and clinical perspectives. He has
provided advice to a variety of government and non-government agencies on psychological recovery
following disaster and trauma. He has published widely in the area and is on the editorial board of the
Journal of Traumatic Stress.
W. Jake Jacobs, Ph.D. is a Professor of Psychology and Psychiatry, a Fellow in Sports Medicine, and
founder and director of the Anxiety Research Group at the University of Arizona. In addition, he is the Head
of Psychology at the University of Arizona South. He currently serve on the Editorial Boards of
Traumatology and Psychological Review and on an APA Presidential
Task Force mandated to specify criteria that psychologists must meet to claim Proficiency or Specialization
in a field of practice. He served on the Continuing Education Committee of the APA where he helped to set
current standards for Continuing Education in psychology. He has published over 60 peer-reviewed papers
examining fear, stress, memory, and their role in the etiology of various anxiety disorders.
Timothy E. Moore, Ph.D. is a Professor and Chair of the Department of Psychology at Glendon College,
York University in Toronto, Canada. He is a cognitive psychologist who teaches Psychology & Law. He has
published articles on the reliability of children’s courtroom testimony, is on the editorial board of the Journal
of Emotional Abuse, and is associate editor of the Scientific Review of Mental Health Practices. He often
serves as an expert witness in criminal trials.
Daniel David, Ph.D. is an Associate Professor at the Babes-Bolyai University, Cluj-Napoca, Romania and
the President of the International Institute for the Advanced Studies of Psychotherapy and Applied Mental
Health. He is also the Editor of the Journal of Cognitive and Behavioral Psychotherapies. His expertise
includes evidence-based psychotherapy, cognitive science, cognitive-behavioral interventions, clinical trials
research. He has a private clinical practice and has published 4 books and over 60 scientific articles.
Maggie Bruck, Ph.D. is a Professor of Psychiatry and Behavioral Sciences at Johns Hopkins School of
Medicine. One of her major teaching responsibilities is to provide residents and postdoctoral fellows a solid
background in the empirical literature on memory and memory distortion, on scientifically validated
interviewing techniques, and on the perils of junk science. She is Associate Editor of Journal of Experimental
Child Psychology and sits on the editorial board of several other peer-reviewed journals in psychology and
psychology and the law. She has published extensively in many fields of psychology including: children’s
autobiographical memory, developmental dyslexia, second language acquisition, and first language
acquisition.
Dr Amina Memon, Ph.D. is a Professor of Forensic Psychology at Aberdeen University. Over the last 20
years she has published over 50 scientific articles in psychology and law, and she has obtained numerous
research grant awards. Her expertise is in applied cognitive and social psychology. She is a fellow of the
British Psychological Society and provides expert advice and training in the UK.
Jeffrey M. Lohr, Ph.D., is a Professor within the Department of Psychology at the University of Arkansas.
He has published widely on the PTSD treatments and the pseudo-sciences.
Giuliana Mazzoni , Ph.D. is Senior Reader in Cognitive Psychology at the University of Plymouth. She is
an author of more than 100 scientific journal articles, books and book chapters, many of which are on the
effects of suggestion on memory. She has been the recipient of two Fulbright scholarships, and her work has
received extensive media attention.
Dr Jean-Roch Laurence, Ph.D. is a tenured Associate Professor of Psychology and currently Ph.D.
Program Director at the Department of Psychology, Concordia University in Montreal, Canada. He is the
author of over 100 articles, book chapters, and scientific presentations on autobiographical memories,
pseudo-memories, dissociation and hypnosis. He published in 1983 the seminal article and experiment
demonstrating the possibility of implanting a pseudo-memory in an unsuspecting subject. His 1988 book,
Hypnosis, will, and memory: A
psycho-legal history, documented the fact that the issue of false memory of abuse was already noted and
discussed at the end of the 19th century.
Elizabeth A. Meadows, Ph.D. is an Associate Professor within the Department of Psychology, and the
Director of the Trauma and Anxiety Disorders Clinic at Central Michigan University. She has published
important scientific articles on the treatment of PTSD and other anxiety disorders, including a seminal review
of PTSD treatments in the Annual Review of Psychology.
Ron Acierno, Ph.D. is an Associate Professor of Psychiatry at the Medical University of South Carolina. He
is a clinical psychologist, with an emphasis on PTSD and Depression in older adults. He has received
funding from the National Institute of Mental Health and the National Institute on Aging, among others. He
has published over 60 articles and book chapters in the field of clinical psychology. He is past president of
the Charleston-area Tri-County Victims Council, and current board member of the local domestic violence
shelter My Sister's House.
Steven E. Clark, Ph.D. is a tenured Associate Professor of Psychology at the University of California,
Riverside. He is also the Chair of the Faculty Committee on Law and Society at UC-Riverside, and Chair of
the University’s Institutional Review Board, which oversees the protection of human subjects in research. He
is the author of 25 publications in the areas of cognition, human memory, eyewitness identification, and
mathematical modeling.
Saul Kassin , Ph.D. is the Massachusetts Professor of Psychology and founder of Legal Studies at Williams
College, in Williamstown, Massachusetts. He is a former U.S. Supreme Court Judicial Fellow and a visiting
professor in the Psychology and Law Program at Stanford University. He has 107 publications, including
several general textbooks and scholarly books (e.g., Confessions in the Courtroom, The Psychology of
Evidence and Trial Procedure, and The American Jury on Trial: Psychological Perspectives). Many of
Kassin’s scientific publications are on the topic of police interrogations and confessions, including false and
internalized confessions and the impact of this evidence on juries. He has testified as an expert witness in
state, federal, and military courts; lectures frequently to judges, lawyers, psychologists, and law enforcement
groups; has written op-ed articles for the New York Times and Boston Globe; and has frequently appeared in
the national media.
Richard Shiffrin, Ph.D. is one of the world’s leading authorities on memory, and is an author of the leading
theories and models of memory phenomena. He has had over 120 publications, has received continuous
federal grants supporting his research on human memory, has trained many students who have gone on to
major research careers in this field, and among his editing duties has served as Editor of the Journal of
Experimental Psychology: Learning, Memory, and Cognition, the leading journal specializing in publications
concerning memory. He is a member of the National Academy of Sciences, the American Academy of Arts
and Sciences, and the American Philosophical Society. He has received several of the major awards his field
confers, including the Howard Crosby Warren Medal of the Society of Experimental Psychologists, the
David E, Rumelhart Prize for Contributions to the Formal Analysis of Human Cognition, and the
Distinguished Scientific Contribution Award of the American Psychological Association.
Michael Toglia, Ph.D. holds the rank of Professor in the Department Psychology at the State University of
New York-Cortland. Since 2003 he has served as the Executive Director of an international organization, the
Society for Applied Research in Memory and Cognition (SARMAC). He has authored over 50 scientific
publications which include 7 books, most of which are edited volumes devoted to issues on eyewitness
memory. Dr. Toglia’s other editorial experience includes: editor service for 13 journals, a term as Action
Editor for the journal Memory, a current appointment on the editorial board for SARMAC's official journal
Applied Cognitive Psychology, and reviewer of National Science Foundation grant proposals. Similarly, he
recently completed a two-year position as a consultant on a NIH grant concerning false memory in special
populations. He has testified and/or consulted in numerous cases involving the suggestibility of memory. He
is a Fulbright Senior Specialist as well as a Fellow in Division 3 (Experimental), and Division 41
(Psychology and the Law) of the American Psychological Association.
Robert V. Kail, Ph.D. is a Professor of Psychological Sciences at Purdue University, West Lafayette,
Indiana. He is a fellow of the American Psychological Society and a member of the Society for Research in
Child Development. He serves as editor of the Journal of Experimental Child Psychology and editor of
Advances in Child Development and Behavior. He has published over 100 scientific articles and is the author
of The Development of Memory in Children.
J. Don Read, Ph.D. is a Professor and Director of the Law and Forensic Psychology Program at Simon
Fraser University in Burnaby, Canada. He is a cognitive psychologist with a special interest in long-term
autobiographical memory for a variety of events, including trauma. He was the most recent North American
Editor for the Applied Cognitive Psychology journal and serves on Editorial Boards of Law and Human
Behavior, and Legal and Criminological Psychology. He co-edited (with Professor Steve Lindsay) the 1997
volume Recollections of trauma: Scientific evidence and clinical practice, a volume that summarizes the
international NATO conference in1996 on recollections of childhood abuse, attended by 100 scientists and
practitioners.
Loren Pankratz, Ph.D., served from 1970 to 1995 as a Consultation
Psychologist at the Portland VA Medical Center and was a Professor in the Department of Psychiatry at
Oregon Health Sciences University where for ten years he chaired the Promotion and Tenure Committee. In
1983, he introduced a strategy for the assessment of malingering that became the gold standard in
neuropsychology. In that same year, he coauthored the first description of factitious posttraumatic stress
disorder and, in1989, a paper that defined and outlined the management of drug-seeking behavior. He has
authored one highly relevant book, Patients who deceive. He now maintains an independent forensic
consulting practice, writes, and collects books that chronicle the history of deception and harmful ideas. He
is currently a Clinical Professor at OHSU.
Michael A. Persinger, Ph.D., C. Psych., is a Full Professor of Behavioral Neuroscience, Psychology, and
Biology at Laurentian University in Sudbury, Ontario, Canada and is the Coordinator of the Neuroscience
Research Group. He has published over 300 articles in refereed journals and six books. His research
includes the analyses of anomalous experiences, the experimental replication of these experiences within the
laboratory, and the pursuit of the correlative neuro-mechanisms. His research has shown how experiences
attributed to "memories" can be easily generated. Other major experimental work involves understanding the
molecular and histological correlates of "mild" closed head injury. His private practice in Neuropsychology
focuses upon the thorough assessment of individuals who display complex partial epileptic-like symptoms
following mild to moderate brain trauma and who report experiences of sensed presences as well as
"intrusive memories".
Debra Poole, Ph.D. - is a Professor of Psychology at Central Michigan University. Her research on
children's eyewitness testimony, which has been funded by grants from the National Institutes of Health, the
National Science Foundation, and the Skillman foundation, has appeared in numerous scientific journals. She
drafted the investigative interviewing protocol that is used in Michigan and has worked with Family
Independence Agency and the Prosecuting Attorneys Association to train investigative interviewers. Her
book on investigative interviewing with Michael Lamb was published by the American Psychological
Association, and she is the author of a forthcoming human development textbook from Prentice Hall. Debra
is a fellow of the American Psychological Society, and she has received a Governor's award from Family
Independence Agency for public service to the State of Michigan.
Charles A. Weaver, III, Ph. D., has been at Baylor University since 1989, where he is currently a Professor
of Psychology and Neuroscience. He has published more than 30 scientific articles and two books, and
delivered more than 60 professional and scientific presentations, primarily in the areas of memory, cognition,
and language. He has served on the editorial boards of five journals, several grant review panels, and was
named Associate Editor of the Journal of Experimental Psychology: Learning, Memory and Cognition in
2000. He has also consulted on numerous legal cases involving eyewitness testimony in a number of states,
giving expert testimony in both civil and criminal trials on the reliability of eyewitness memory as well as
memory for exceptional and traumatic events.
Joseph de Rivera, Ph.D. is Professor of Psychology and Director of the Peace Studies Program at Clark
University. The author of numerous works on emotions and their impact on experienced reality, he is the coeditor of Believed-in Imaginings, and has published a number of articles on persons who have realized that
their purported memories were erroneous.
David S. Holmes, Ph.D., Distinguished Chancellor's Club Professor of Psychology, University of Kansas.
Professor Holmes is the author of more than 130 articles in scientific journals, the author of a widely used
textbook on abnormal behavior, and is a former Chairman of the Board of Scientific Affairs of the American
Psychological Association.
Terence W. Campbell, Ph.D. is a clinical and forensic psychologist from Michigan. Dr. Campbell is a
Fellow of the Association for Psychological Science in recognition of "a distinguished contribution to
psychological science." Dr. Campbell is the author or co-author of more than 40 articles published in various
peer-reviewed scientific and professional journals. He is also the author or co-author of five books. His
"Cross-Examining Experts in the Behavioral Sciences" has assisted numerous attorneys to better understand
legitimate science versus junk science in psychology.
Emily Carota Orne is a Senior Research Psychologist of the Unit for Experimental Psychiatry, Department
of Psychiatry, University of Pennsylvania Medical School. She is Executive Director and Trustee of the
Institute for Experimental Psychiatry Research Foundation and a Director of the False Memory Syndrome
Foundation. She is on the editorial board of the International Journal of Clinical and Experimental
Hypnosis. She has co-authored journal articles on hypnosis, and suggestibility in memory.
John Cannell, MD, is a board certified psychiatrist practicing at
Atascadero State Hospital who has treated thousands of trauma victims. He has written several articles on
recovered memory therapy and has appeared as an expert witness in dozens of cases of recovered memory
therapy, including three cases rendering multimillion dollar verdicts for victims of recovered memory therapy
Howard Fishman, M.Ed., M.S.W., is a national forensic consultant in the areas of child custody, abuse and
neglect who has qualified as an expert witness in thirteen states and in Canada. He has served as director of
continuing medical education at both Massachusetts Mental Health Center, a teaching hospital of Harvard
Medical School, and The Menninger Clinic. He also served as associate publisher and senior editor of The
Psychiatric Times and has published more than one hundred articles including a series of peer-reviewed
clinical supplements on best practices in psychopharmacology. A veteran clinician and educator, his major
interests include the protection of children in medical research settings, the standard of care in the child
protection enterprise, and pseudoscience in the clinic and courtroom.
Dr. Richard A. Leo, Ph.D., J.D., is an Associate Professor of Criminology, Law and Society and Associate
Professor of Psychology and Social Behavior at the University of California, Irvine and will soon be joining
the University of San Francisco Law School as an Associate Professor of Law. He is an internationally
recognized expert on police interrogation practices, false confessions, Miranda requirements, and
miscarriages of justice. He has published dozens of articles and book chapters on these subjects and has
received awards for distinguished research from the American Psychological Association, the American
Academy of Forensic Psychology and the American Society of Criminology.
Deborah C. Beidel, Ph.D. is Professor of Psychiatry at Penn State College of Medicine. She was the 1990
recipient of the Association for Advancement of Behavior Therapy's New Researcher Award and the 1995
recipient of the Distinguished Educator Award from the Association of Medical School Psychologists. Dr.
Beidel holds the American Board of Professional Psychology (ABPP) Diplomate in Clinical Psychology and
Behavioral Psychology and is a Fellow of the American Psychological Association and a past-president of
the Society for a Science of Clinical Psychology. She is a past Chair of the American Psychological
Association's Committee on Accreditation. She serves on the editorial board of a number of scientific
journals. Her academic, research, and clinical interests focus on child and adult anxiety disorders, including
their etiology, psychopathology and behavioral treatment. Her research is characterized by a developmental
focus, and includes high risk and longitudinal designs, psychophysiological assessment, treatment outcome
and treatment development. She is the recipient of NIMH grants addressing the development and efficacy of
behavioral interventions for adults and children with anxiety disorders.
James Coyne, Ph.D. is a Professor of Psychology in Psychiatry, University of Pennsylvania School of
Medicine and Co-Director, Cancer Control and Outcomes Program, Abramson Cancer Center of the
University of Pennsylvania. He has previously served on the faculties of University of California, Berkeley
and University of Michigan. According to the Institute for Scientific Information, he is among the 225 most
cited and psychologists and psychiatrists in the world.
Fred H Frankel, MBChB DPM is Professor Emeritus of Psychiatry, Harvard Medical School, Boston
Psychiatrist in Chief, Emeritus, of Beth Israel Deaconess Medical Center, Boston Editor in Chief, emeritus,
International Journal of Clinical and Experimental Hypnosis. He has been retired since 2001, after a half
century of psychiatric practice, administration and clinical teaching. Dr. Frankel is the author of more than
seventy articles in peer reviewed journals, numerous chapters in psychiatric text books, editorials, and a book
titled "Hypnosis: Trance as a Coping Mechanism.”
Nora S. Newcombe, Ph.D. is a Professor of Psychology and James H. Glackin Distinguished Faculty Fellow
at Temple University. She has also been a Visiting Scholar at the University of Pennsylvania, at Princeton
(supported by a Cattell Fellowship), and at the Wissenschaftskolleg in Berlin. Dr. Newcombe received her
Ph.D. in Psychology and Social Relations from Harvard University. Her research focuses on spatial
development and the development of episodic and autobiographical memory. Dr. Newcombe has served as
Editor of the Journal of Experimental Psychology: General and as Associate Editor of Psychological
Bulletin, as well as on the Human Cognition and Perception Panel at the National Science Foundation and
many editorial boards. She is the author of numerous scholarly chapters and articles on aspects of cognitive
development, and the author or editor of three books, including Making Space: The Development of Spatial
Representation and Reasoning (with Janellen Huttenlocher) published by the MIT Press in 2000. Her work
has been recognized by the George A. Miller Award from the American Psychological Association and by
the Paul W. Eberman Research Award from Temple University. She is a fellow of four divisions of the
American Psychological Association (General, Experimental, Developmental, and Psychology of Women),
of the American Psychological Society and of the American Association for the Advancement of Science.
Gordon J. G. Asmundson, Ph.D., R. D. Psych is currently a Full Professor of Health Studies and
Psychology at the University of Regina, an Adjunct Professor of Psychiatry at the University of
Saskatchewan, a Canadian Institutes of Health Research (CIHR) Investigator, and the leader of a CIHR New
Emerging Team focusing on mechanisms and treatment of PTSD. Dr. Asmundson holds several editorial
posts, including North American Editor of Cognitive Behaviour Therapy, the Behavioral Medicine Section
Editor for Cognitive and Behavioral Practice, and serves on the editorial boards for the Journal of Anxiety
Disorders, the Journal of Behavior Therapy and Experimental Psychiatry, and the Clinical Journal of Pain. He
has published over 150 journal articles and book chapters (regarding the anxiety disorders, chronic pain, and
overlap between the two) as well as 5 books, including Understanding and Treating Fear of Pain (with Johan
W. S. Vlayen and Geert Crombez). He is actively involved in clinical research and clinical research
supervision with specific interests in assessment and basic mechanisms of the anxiety disorders (particularly
PTSD), health anxiety (hypochondriasis, disease phobia), acute and chronic pain, and the association of these
with disability and behavior change.
Howard N. Garb, Ph.D. directs the largest psychological screening program for the United States Air Force.
Screening is conducted during basic training, and the purpose is to identify trainees with severe
psychopathology. Dr. Garb serves on several committees for the Department of Defense and national
psychological organizations including the American Psychological Association. With more than 75 scientific
publications, he has published extensively in the area of psychological assessment. (Dr. Garb is required to
include the following statement: The views expressed in this amicus brief are not the official policy of the
Department of Defense or the United States Air Force.)
William G. Reiner, M.D. is a triple-board certified psychiatrist, urologist, and child and adolescent
psychiatrist and is an Associate Professor on the full time faculty of the University of Oklahoma Health
Sciences Center (OUHSC) and part-time faculty of the Johns Hopkins Medical Institutions (Department of
Psychiatry). Dr. Reiner has published over 20 articles in peer-reviewed journals and 10 chapters in textbooks
of child psychiatry, urology, and pediatric urology. He is the Director, Psychosexual Development Clinic
(Child and Adolescent) at OUHSC, where he conducts research and provides clinical evaluation of and
interventions for children with a wide variety of psychosexual concerns.
Mahzarin Rustum Banaji, Ph.D. formerly taught at Yale University from 1986 until 2001 where she was
Reuben Post Halleck Professor of Psychology. In 2002 she moved to Harvard University as Richard Clarke
Cabot Professor of Social Ethics in the Department of Psychology and Carol K. Pforzheimer Professor at the
Radcliffe Institute for Advanced Study. Banaji is a Fellow of the American Association for the Advancement
of Science, the American Psychological Association (Divisions 1, 3, 8 and 9), and the American
Psychological Society. She served as Secretary of the APS, on the Board of Scientific Affairs of the APA,
and on the Executive Committee of the Society of Experimental Social Psychology. She was elected fellow
of the Society for Experimental Psychologists in 2005. She has served as Associate Editor of Psychological
Review and of the Journal of Experimental Social Psychology and is currently Co-Editor of Essays in Social
Psychology (Psychology Press) and the advisory board on Social Cognition and Social Neuroscience for
Oxford University Press. Her research, represented in over 100 papers, has been funded by the National
Science Foundation, the National Institute of Mental Health, the Third Millennium Foundation, the Mind
Science Institute, the Wallace Foundation, and the Russell Sage Foundation. Among her awards, in 2000, her
work with R. Bhaskar received the Gordon Allport Prize for Intergroup Relations.
For Amici Contact information see Appendix A of
APPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORTOF DEFENDANTS and
APPELLANTS, ELIZABETH LOFTUS, ET. AL.