JOINT MOTION IN LIMINE TO EXCLUDE
"REPRESSED MEMORY" TESTIMONY AND TO EXCLUDE
TESTIMONY OF ALLEGED EXPERTS SUPPORTING "REPRESSED MEMORY"
Pursuant to SCRA 1986, Rule 11-104(A) (1994 Repl.), the Defendants move the Court in limine to exclude the testimony of the Plaintiff of purportedly repressed memories, which he now claims to have recovered, and to exclude expert testimony supporting the Plaintiff's claims of repressed memories and their recovery. As grounds for this motion, Defendants state:
1. Pursuant to SCRA 1986, Rule 11-104(A) (1994 Repl.), the admissibility of evidence in this action is to be determined by the Court as a matter of law. In State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993) and State v. Anderson, 118 N.M. , 881 P.2d 29 (1994), the New Mexico Supreme Court followed and adopted Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993), expanding the role of the trial court in determining the admissibility of scientific evidence and evidence based upon purported scientific hypotheses.
Given the trial court's expanded function in evaluating the reliability of expert evidence, it is now more important than ever for the trial court to take an active role in the presentation of expert evidence. Daubert may require pretrial or in limine 'Daubert hearings' under Rule 104 of the Federal Rules of Evidence to determine whether, and under what conditions, expert testimony is admissible.
Joint Eastern and Southern Districts Asbestos Litigation v. Blinken, 151 F.R.D. 540, 545 (S.D.N.Y. 1993).
2. Plaintiff testified at his deposition that he "repressed" his memories of the alleged sexual abuse for many years but has recently "recovered" the "repressed memories." Deposition of Plaintiff, Vol III., pp. 121-22. He can be expected to attempt to testify about and on the basis of such "recovered repressed memories" at trial.
3. The concept of "repressed memories" and their "recovery" is the subject of considerable skepticism within the scientific and therapeutic communities. Professional associations, as well as experts in psychiatry and psychology, have warned that "repressed memories" and their "recovery" have not been scientifically documented to allow a determination that the "recovered memories" are real memories rather than pseudo-memories, confabulations or otherwise false memories.
4. Any testimony of the Plaintiff of alleged events to which he claims to have "recovered repressed memories" is not probative.
5. Expert testimony which would support the Plaintiff's claims of repressed and recovered memories is also inadmissible under the New Mexico Rules of Evidence and the doctrine of State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993) and its progeny.
6. Pursuant to the New Mexico Rules of Evidence and relevant case law, the testimony of the Plaintiff as to and based on "recovered repressed memories" and any testimony supporting Plaintiff's claims of "recovery" of so-called "repressed memories" or the existence of so-called "repressed memories" are not admissible.
7. Pursuant to SCRA 1986, Rule 1-007.1, the concurrence of Plaintiff's counsel was sought but was withheld.
8. Pursuant to SCRA 1986, Rule 1-007.1, the Defendants submit herewith a brief in support of this motion. However, the Defendants respectfully submit that an evidentiary hearing is required on the motion.
9. Pursuant to LR 2-123(G) a list of witnesses who will or may be called at the evidentiary hearing is attached as Exhibit A.
WHEREFORE, the Defendants respectfully request that the Court:
1. exclude the testimony of the Plaintiff with respect to claims of "recovered repressed memories" and precluding Plaintiff from introducing any evidence of Plaintiff's "recovered repressed memories";
2. exclude the testimony of experts who would support the concept of "repressed memories" and their "recovery" by Plaintiff and precluding Plaintiff from introducing evidence regarding "repressed memories"; and
3. grant such other relief as is just and proper.
Respectfully submitted,
MEMORANDUM BRIEF IN SUPPORT OF DEFENDANTS'
JOINT MOTION IN LIMINE
TO EXCLUDE CERTAIN "REPRESSED MEMORY" TESTIMONY
Pursuant to SCRA 1986, Rule 1-007.1 (1994 Repl.), the Defendants submit this brief in support of their Joint Motion In Limine For Order Excluding Testimony (the "Motion"). This brief identifies the key legal matters raised in the Motion. A full evidentiary hearing, including an Alberico-Daubert hearing, is required.
I. NATURE OF EXPECTED TESTIMONY DEFENDANTS SEEK TO EXCLUDE.
A. Plaintiff's Expert Testimony on "Recovered Repressed Memory."
Defendants expect that the Plaintiff will seek to introduce at trial expert scientific testimony on the existence and accuracy of so-called "recovered repressed memories." Plaintiff bases his claims on memories he purports to have "repressed" and now "recovered" of being molested hundreds of times from age 12 through age 18. See ¶ 13, Complaint for Sexual Abuse and Related Claims; see also Deposition of Plaintiff, Vol. I, p. 7, ln.9 and Vol. III, pp. 121-22. The "recovered repressed memory" hypothesis will be the subject of evidence at the hearing. It is a highly controversial, untested hypothesis used by a segment of the mental therapy community to explain certain thoughts and beliefs of some subjects. Such evidence is not admissible under New Mexico law, the Alberico-Daubert doctrine and other rules of evidence.
B. Plaintiff's Testimony Regarding His Alleged "Recovered Repressed Memories."
Where a witness plans to testify regarding his or her "recovered repressed memories," the relevancy, probative value, and personal knowledge aspects of the proposed testimony are necessarily intertwined with the determination of whether the concept of "recovered repressed memories" meets the test of State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993). (1) Because the "recovered repressed memory" hypothesis is fatally flawed under Alberico and Daubert, it necessarily follows that testimony of fact witnesses based on "recovered repressed memories" is inadmissible as not relevant, not probative, unfairly prejudicial, and likely to confuse or mislead the fact-finder. Moreover, such testimony would be incompetent because it would not be personal knowledge based on ordinary perception and memory, but instead nothing more than a belief, albeit perhaps one honestly held.
II. THE ALBERICO-DAUBERT DOCTRINE
In Alberico, the New Mexico Supreme Court rejected continued use of the "Frye test" as a sufficient test of admissibility of expert scientific testimony and established Rule 11-702 as the test of admissibility of such evidence. (2) 116 N.M. at 158, 861 P.2d a 194. This follows the holding of Daubert v. Merrell Dow Pharmaceuticals, Inc., in which the Frye test was formally discarded in favor of utilizing Fed. R. Evid. 702. In State v. Anderson, 118 N.M. , 881 P.2d 29, 36 (1994), the principles set forth in Daubert were further embraced. The New Mexico Supreme Court's following of Daubert and the fact that the language of New Mexico's Rule 11-702 and the Fed. R. Evid. 702 are identical mean that New Mexico courts should look to Daubert and its progeny, as well as Alberico and Anderson, for the standards for admissibility of such evidence.
Under Daubert and Alberico, it is the duty of the trial judge to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 113 S. Ct. at 2795; Alberico, 116 N.M. at 168, 861 P.2d at 204. To be admissible, the methodologies underlying the testimony must be scientifically valid and must be applicable to the facts at issue. Daubert, 113 S. Ct. at 2796; Alberico, 116 N.M. at 168, 861 P.2d at 204. The underlying methodologies must be "reliable enough to provide a sound basis for investigative conclusions and confident legal decision-making." Gier v. Educational Service Unit No. 16, 845 F. Supp. 1342, 1353 (D. Neb. 1994) (emphasis supplied), aff'd, 66 F.3d 940 (8th Cir. 1995). The determination of reliability of the evidence "provides the mechanism for screening junk science." Joint Eastern & Southern Dist. Asbestos Lit., 827 F. Supp. 1014, 1033 (S.D.N.Y. 1993). (3)
Consistent with Fed. R. Evid. 702 and 104(a), the trial court must act as the "gate keeper" and screen proffered scientific evidence. The trial court uses the preponderance of evidence standard in Fed. Evid. R. 104(a) in making that determination. Daubert, 113 S. Ct. at 2795-96, n.10.
When performing the gate keeping function, Alberico, 116 N.M. at 166, 861 P.2d at 202, prescribes the following three-step inquiry:
(1) Is the expert qualified? (4)
(2) Is the proffered testimony "scientific knowledge"? and
(3) Will the proffered scientific evidence assist the trier of fact in understanding the evidence or in determining a fact in issue?
With respect to the "scientific knowledge" inquiry, the Daubert Court stated that "[m]any factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test." Daubert, 113 S. Ct. at 2796; accord Alberico, 116 N.M. at 168, 861 P.2d at 204. However, the Daubert Court enunciated four factors which are pertinent when evaluating the reliability of the underlying scientific principle and the technique or process that applies it.
(1) Can the evidence be empirically tested? Can the evidence be refuted? This is called falsifiability or refutability. "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other forms of human inquiry." 113 S. Ct. at 2796, quoting Green, "Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation," 86 Nw. U. L. Rev. 643, 645 (1992). This also goes to the initial question of relevance. Id.; Alberico, 116 N.M. at 168, 861 P.2d at 204.
(2) Has the theory or technique been subjected to peer review or publication? The Court adds that some well-grounded theories are innovative and will not have been published so that this factor is not determinative. 113 S. Ct. at 2797; 116 N.M. at 168, 861 P.2d at 204.
(3) If the evidence at issue involves a scientific technique rather than a scientific theory, is there a known potential rate of error? And are there standards controlling the technique's operation? Id. The more standardized the procedure, the easier it is to re-test the proposition.
(4) The Frye "general acceptance" inquiry can be performed but is not sufficient or required. Id.
In Alberico, the New Mexico Supreme Court "set out another non-determinative factor -- 'whether the scientific technique is based upon well-recognized scientific principle and whether it is capable of supporting opinions based upon reasonable probability rather than conjecture." 116 N.M. at 167, 861 P.2d at 203; see also Anderson, 881 P.2d at 36.
The proponent of scientific evidence must now lay a more extensive foundation than previously required under the Frye test. As Professor Edward J. Imwinkelried has noted:
The proponent can no longer be content to elicit the expert's conclusory testimony that the overwhelming majority of the specialists in the expert's discipline subscribe to the proposition. Under Daubert, the proponent will have to elaborate to some extent about the scientific methodology used to verify the hypothesis -- for example, the tests conducted, the standards used, and the error rate.
Imwinkelried, "The Daubert Decision: Frye is Dead, Long Live the Federal Rules of Evidence," Trial, September, 1993, at 64.
The initial focus in determining whether proffered scientific testimony is of assistance to the trier of fact is "on the proof of reliability of the scientific technique or method upon which the expert testimony is premised." Alberico, 116 N.M. at 168, 861 P.2d at 204. In this way, the "scientific knowledge" prong and the "assist the trier of fact" prong are closely related. Alberico, 116 N.M. at 166, 861 P.2d at 202; Anderson, 881 P.2d at 36. However, the "assist the trier of fact" requirement is "primarily one of relevance" and also requires the proponent of the testimony to "demonstrate that the evidence bears 'a valid scientific connection to the pertinent [factual] inquiry.'" Anderson, 881 P.2d at 36, citing Daubert. Consideration of relevance, including materiality and probative value, is necessary to determine whether the evidence would be of assistance to the fact-finder. Id. As the New Mexico Supreme Court has instructed:
[T]he proper inquiry under Rule 702 is whether the subject of the expert's testimony is grounded in valid, objective science, that is 'scientific, technical, or other specialized knowledge', and whether the underlying scientific technique or method is reliable enough to prove what it purports to prove, that is probative, so that it will assist the trier of fact.
Id.
In Daubert, the Court offered an illustrative example with respect to astronomy (a valid science including knowledge of the phases of the moon, with scientifically demonstrable relevance for nighttime visibility) vis-a-vis astrology (a pseudo-science that "assumes [with no demonstrable relevance] and attempts to interpret the influence of the heavenly bodies on human affairs," The Random House Dictionary of the English Language 2d ed. (unabridged) at 128 (1987) (emphasis added)):
The study of the phases of the moon, for example, may provide valid scientific "knowledge" about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However, (absent credible ground [i.e., based upon valid scientific methodology] supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night. Rule 702's "helpfulness" standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.
113 S. Ct. at 2796 (emphasis added).
III. CONCEPT OF "REPRESSED MEMORY" AND ITS "RECOVERY", AND TESTIMONY OF ALLEGED "RECOVERED REPRESSED MEMORIES" ARE INADMISSIBLE.
A. The Testimony in Question Is Not Based on Valid, Objective Science, Is Not Material, and Is Not Probative.
As will be shown at the evidentiary hearing, the topic of repressed memory is the subject of heated debate in the medical and psychological communities. The evidence will show that "repressed memory" is a hypothesis which has not yet been subjected to scientifically valid testing. "'Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry'." Daubert, 113 S. Ct. at 2796 (citations omitted). (5)
No methodology based on principles of scientific analysis underlies the "repressed memory" hypothesis. The Defendants will provide evidence in the form of expert testimony and learned treatises and articles, which will show that the concept of "repressed memory" is not grounded in valid, objective science. The testimony of Plaintiff's experts supporting the hypothesis of "repressed memory" and its "recovery" (and, a fortiori, the expected testimony by Plaintiff regarding his alleged "repressed memories" and his purported "recovery" of the "repressed memories") is not reliable, and, therefore, not probative, making it inadmissible. See Alberico, 116 N.M. at 168, 861 P.2d at 204.
There is no valid scientific connection between the "recovered repressed memory" concept and the pertinent inquiry in this case, i.e., whether Plaintiff truly remembers actual sexual molestation or abuse. This deficiency renders such testimony inadmissible. See Daubert, 113 S. Ct. at 2796; see also Alberico, 116 N.M. at 168, 861 P.2d at 204. Even if there were a demonstration that some memories have been "repressed" and later "recovered" with accuracy, there is no "underlying scientific technique or method" to determine whether particular "recovered repressed memories" are memories of real events or pseudo-memories of events which never occurred. (6) There is not now, and may never be, a reliable basis for proving (a) that the subject (i.e., Plaintiff) has recovered real memories regarding any sexual molestation or abuse, or (b) whether Plaintiff's "recovered repressed memories" accurately reflect the facts of the abuse (e.g., the time, place, the perpetrator, the act, etc.), or (c) whether the "recovered repressed memories" are pseudo-memories, confabulations, fantasies, or any mix of a number of possibilities. Such "recovered repressed memories" are, therefore, not admissible. Id. Thus, the testimony of Plaintiff's experts and of Plaintiff himself (regarding and based on "recovered repressed memories") is neither material nor probative as to whether the events complained of actually occurred.
B. The Concept of "Recovered Repressed Memory" Is Not Generally Accepted in Psychiatric or Psychological Fields.
The professional journals have just begun to discuss the "recovered repressed memory" hypothesis and the nature of "recovered repressed memories." However, as evidence at the hearing will show, the American Medical Association and researchers have warned that so-called "recovered repressed memories" may be nothing more than "imagined events . . . of uncertain authenticity, which should be subject to external verification." "Memories of Childhood Abuse," American Medical Association House of Delegate Proceedings of the 143rd Annual Meeting, June 12-16, 1994, 327 at 330. The November 1994 Interim Report of the Working Group [of the American Psychological Association] on Investigation of Memories of Childhood Abuse, approved for release by the APA Board of Directors, also includes interim conclusions including the possibility of constructing "convincing pseudo-memories for events that never occurred" and acknowledges "gaps in our knowledge about the processes that lead to accurate and inaccurate recollections of childhood abuse."
Thus, although the concept has been the subject of some discussion, the result has been a sharp division within the medical and psychological communities. "Repressed memories" and their "recovery" are not generally accepted in the fields of psychiatric medicine or psychology. Returning to the issue of "first and foremost" concern (see Alberico, 116 N.M. at 168, 861 P.2d at 204), the lack of "established scientific analysis" is one major cause for the sharp division.
C. No Known Potential Rate of Error, No Standards of Control.
The evidence produced at the hearing will show that no scientifically established potential rates of error exist with respect to the "recovery" of "repressed memories" or their accuracy. Nor are there any established standards of control to determine the accuracy of validity of "recovered repressed memories." In light of the absence of valid, objective scientific testing, the lack of these factors is not surprising. Due to the absence of a known potential rate of error and of standards of control, the potential rate of error is presently one hundred percent. (7)
D. Techniques Employed by Proponents of "Recovered Repressed Memory" Are Not Based Upon Recognized Scientific Principle and Their Opinions Are Based Upon Mere Conjecture.
Evidence at the hearing will show that the proponents of "recovered repressed memory" have not employed techniques based upon recognized scientific principle. This, coupled with the lack of scientific testing, and the concept not being susceptible to scientific testing, mandates the conclusion that the hypothesis of "repressed memories" and their "recovery," as well as any determination of the truthfulness of "recovered repressed memories," are based on conjecture and not on reasonable probability.
Because the expert testimony would neither assist the trier of fact nor convey scientific knowledge it cannot pass the test of Alberico and Daubert. Moreover, Plaintiff's own testimony, based upon "recovered repressed memories," cannot be shown to be from personal knowledge (8) and is not probative of the actual events in question (9) and must also be excluded.
Respectfully submitted,
C:\wwwfpd\represse.wpd
1. If the Court finds the "recovered repressed memory" hypothesis to fail the Alberico-Daubert test, Plaintiff's "recovered repressed memories" will not be admissible. The converse is not true. If the Court finds the "recovered repressed memory" hypothesis passes the Alberico-Daubert test, the Court must still separately apply Rules 11-401, 11-403, and 11-602 (as well as the hearsay rules, etc.) to any proffered testimony of Plaintiff, his experts, or any other witness.
2. The Frye test required scientific evidence to have received "general acceptance in the particular field to which it belongs." State v. Gallegos, 104 N.M. 247, 253, 719 P.2d 1268, 1274 (Ct. App. 1986).
3. In Daubert, the Court recognized that its ruling would keep out some evidence which was not necessarily "junk science" but was, as of the time of trial, insufficiently reliable or valid. Thus, a hypothesis which is merely plausible, and would have some use in the "quest for truth in the laboratory" is nonetheless inappropriate evidence in the "quest for truth in the courtroom." 113 S. Ct. at 2798. This difference is explained by the focus of science vis-a-vis the courts: "[T]he Rules of Evidence [are] designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes." Id.
4. The issue of expert qualifications is not raised in the Motion. The Defendants reserve the right to challenge the qualifications of any expert(s) called by Plaintiff at the evidentiary hearing on the Motion, or any other evidentiary hearing, including trial. This brief focuses on the latter two requirements. See Alberico, 116 N.M. at 166, 861 P.2d at 202; Anderson, 881 P.2d at 36.
5. In a post-Daubert case, the Seventh Circuit has held that mere hypotheses, which were not subjected to adequate scientific method-type testing, are properly excluded under the Daubert principles. Bradley v. Brown, 42 F.3d 434, 438 (7th Cir. 1994).
6. If the expert proponents of a particular "recovered repressed memory" purport to testify that it is a true memory solely on the basis of the subject's statements, such expert testimony would be inadmissible pursuant to Rule 11-703 (being based on inadmissible hearsay) as well as failing to satisfy Alberico and Daubert.
7. Such a potential rate of error renders the testimony inadmissible in any lawsuit. However, the danger of admitting such unreliable testimony in a sexual abuse case is particularly apparent. False accusations of child sexual abuse, even when ultimately proven untrue, carry with them a horrible taint.
8. New Mexico Rule of Evidence SCRA 1986, Rule 11-602 (1994 Repl.) provides that no fact witness may testify "unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." The lack of scientific foundation for the concept of "recovered repressed memories" nd the absence of any scientific technique or method to determine whether Plaintiff's "recovered repressed memories" are pseudo-memories means that there is no evidence sufficient to support a finding that Plaintiff has personal knowledge of the matter in the same sense as Rule 11-602 intended.
9. Even if evidence passes the Daubert-Alberico test and is probative, "it might not be so accurate or consistent as to outweigh its prejudicial effect." Alberico, 116 N.M. at 169, 861 P.2d at 205. A Rule 11-403 analysis may then still be required.