Keller v. Maccubbin, et al.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR KENT COUNTY
JASON KELLER
Plaintiff,
v.
LARRY MACCUBBIN, et al.
Defendants.
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C.A. No: 11C-03-015 (RBY)
Submitted: November 29, 2012
Decided: January 3, 2013
Upon Consideration of Defendants’ Motion
for Daubert Hearing
GRANTED
ORDER
Thomas C. Crumplar, Esq., Jacobs & Crumplar, P.A., Wilmington, Delaware for
Plaintiff.
Roger D. Landon, Esq., and Kelley M. Huff, Esq. Murphy & Landon, Wilmington,
Delaware for Defendants.
Young, J.
Keller v. Maccubbin, et al.
C.A. No.: 11C-03-015 (RBY)
January 3, 2013
ISSUE AND STANDARD
This is Defendants’ Motion to preclude Plaintiff’s use of the testimony of
Dr. Carol A. Tavani, M.D., D.A.B.P.&N., a psychiatrist, as to her opinion of the
time of on-set of Plaintiff’s repression of any memory of certain events. While
this is Defendants’ Motion, the Plaintiff, as proponent of the proffered expert
testimony bears the burden of establishing the admissibility by a preponderance of
the evidence.1 That admissibility must satisfy the requirements of Daubert and its
progeny.2
A hearing, with testimony, upon this Motion was held on November 29,
2012. This is the Court’s decision thereon.
FACTUAL BACKGROUND
For purposes of this Daubert hearing, Plaintiff at fourteen years of age was,
essentially, a waif. He had apparently been supporting himself, at his young age,
on the streets of Rehoboth Delaware, by way of “non-traditional” employment
endeavors, which local authorities believed included burglaries.
At some point in the summer of 1988, Plaintiff and Defendant crossedpaths. Defendant became aware of Plaintiff’s circumstances, leading to
Defendant’s “taking in” Plaintiff for feeding and temporary housing. During the
course of a period of multiple days, it is now alleged, Defendant, in both Rehoboth
and Washington D.C., engaged in more than one act of sexual abuse of Plaintiff.
1
Minner vs American Mortg & Guar., Co., (Del. Super.) 791 A2 826 (2000) with
multiple citations of p. 843.
2
Daubert vs Merrell Dow Pharm. Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
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At a time while Plaintiff was still staying with Defendant, Plaintiff departed
Defendant’s shop. As he was walking on the boardwalk, Plaintiff observed two
Rehoboth police officers coming towards him. Plaintiff is said to have recognized
immediately that he was in a precarious situation, assuming (quite correctly, as it
turned out) that those officers were actively trying to locate and apprehend
Plaintiff. The dreaded confrontation occurred. Plaintiff was taken into custody.
He was specifically, though perhaps perfunctorily, questioned by the arresting
officers as to whether or not he had ever been subjected to sexual abuse. Later,
during the progression of his moving through the juvenile incarceration process,
he was interviewed by a child psychologist. In the course of that interview, which
was considerably more thorough, he was questioned at some length about any
history of having been subjected to sexual abuse. In both instances, Plaintiff
categorically denied any such experience.
It is the position of the Plaintiff that, as of the time of those interviews, his
memory of the events with Defendant had become the subject of dissociative
amnesia or repressed memory or traumatic amnesia – all used interchangeably.
Further, Plaintiff asserts that the memory remained unrecovered by Plaintiff until
more than 20 years had elapsed. At that time, Plaintiff was being given a massage,
which became “aggressive”, so to speak. Plaintiff, by his description, “freaked
out.” As a result, he began seeing a psychologist. During the course of that
treatment, his memory of past events was evoked, yielding a description of the
alleged sexual abuse by Defendant.
For the purposes of this consideration only, we are to presume that the
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alleged abuse took place, and that at some point, it ceased to be within the scope
of Plaintiff’s recall. Evidence as to its actually having occurred, and evidence of
whether the recall of it was “repressed” (which would, from the time of its
commencement until the time of its re-emergence in the memory, toll the running
of any applicable statute of limitations) or whether it was “forgotten” or “blocked”
or “suppressed” (none of which would toll the statute’s running) are all left for
another day.
DISCUSSION
The question for consideration is whether or not Plaintiff’s expert, Dr. Carol
Tavani, is to be permitted to offer to the jury the opinion that Plaintiff’s loss of
memory of the events he alleges took place at some specific time frame in 1988.
As indicated, according to the allegations concerning the circumstances, the
alleged events took place in the summertime period. On that basis, the Plaintiff
must have sustained traumatically produced repressed memory of the event
sometime during that period in 1988 in order to be able to present his case at this
time, free of any statute of limitations bar.
Plaintiff has offered Dr. Tavani as a witness to provide evidence, through
her expert opinion, that the repression occurred within two years of the event.
Because of Plaintiff’s prior testimony, this witness’ opinion is offered on the basis
of scientific probabilities without any corroborating evidence as to timing. To be
clear, this witness has considerable evidence on which to support a rational
demarcation decision. The evidence is irrefutable that, (as described above) on a
given date, Plaintiff was accosted by police, who questioned him about a series of
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burglaries. The question is whether or not sufficiently valid scientific support
exists for the expert to render to the jury an opinion that that event triggered, or at
least coincided with, a repression of Plaintiff’s memory.
Perhaps to be equally clear, if Plaintiff elected not to reveal those events to
anyone at that time, and over some more prolonged period forgot about the events,
only to have his memory jogged at a point some 20 years later, then no repression
of the memory, or dissociative amnesia, occurred.
Dr. Tavani, during the within Daubert hearing on that issue, testified that in
her opinion the repression took place; that it did so long before two years postevent passed by; and that it occurred specifically at or about the time of Plaintiff’s
confrontation with the police, which she interpreted as a traumatic event.
Testifying in opposition to Dr. Tavani was an expert, Dr. Toborowski. His
testimony provided little more than that, in his opinion, it is impossible to attribute
any particular time to the repression. That may very well be about all that can be
said from a scientific position. Hence, the analysis here will concern Dr. Tavani’s
offering.
The hearing progressed on the working assumption that, at the age of 14,
Plaintiff was raped by Defendant. That assumption was for the purposes of this
hearing only. As noted, the actuality of that would certainly be a contested matter
at trial.
Additionally, I am aware that extensive psychological literature exists
relative to the ability of the mind to form, or to “recall”, events as memories as a
result of their being suggested to someone, even though those events never
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actually occurred. That, also, is not a matter for consideration today.
Moreover, from impressions gleaned in the testimony, I presume that a
memory could be repressed, could be recalled for some period, could be repressed
again, and finally recalled again. If that understanding is correct, then a question
in this case could arise as to whether a two-year period ever (at any one time or
perhaps as accumulated) expired during which the memory was not repressed.
Again, that was not the subject of this hearing.
Those related matters may well be of ultimate concern, but they are not part
of this consideration.
To begin this analysis, we look to part of the testimony offered by Dr.
Tavani. Memory, she described, is simultaneous to an event. The instant one does
or experiences or thinks of something, a memory thereof is created. From that
simultaneous instant, the action or experience or thought is a memory. It is then
remembered past that instant, or else it is gone. Maybe it comes back. This is
obviously and frequently evident with thought. One knows – or remembers –
whatever it is at that time. An idea comes to mind. One either recalls it ten
seconds or a minute later, or loses it, at least for the time being. That is a very
recurring process.
In any event, the initial memory or awareness of the act, experience or
thought is simultaneous with its occurring. Then that thought is either
immediately gone (repressed, suppressed, blocked, forgotten or whatever) or it is
retained. If it is retained, it stays with the individual until is forgotten, blocked,
suppressed, repressed. Nothing stated in the Tavani testimony would suggest that
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there is anything controversial about that statement. Indeed, it would seem
axiomatic.
Hence, given an event that is, for any particular duration, not recalled,
several issues arise: was it repressed, or was it forgotten, blocked or suppressed?
Are there distinctions among them? When did the initial, simultaneous recall end?
When did it return? And (though, again, not for our purposes today) did it come
and go more than once over a course of many years, and for what duration?
According to the testimony of Dr. Tavani’s, which was, in fact confirmed by
Dr. Toborowski, and which seems self-evident, no individual is able to say, for
example: “I ceased recalling this event at 10:05 a.m. last Thursday,” because, of
course, then it would be recalled. Therefore, the timing of the loss of recall must,
perforce, be determined – if it can be – by other means.
Among those means offered by Plaintiff is the evaluation by Dr. Tavani of
the psychologically probable selection. Her testimony was based upon her own
experience, her reference to DSM IV (TR-revised), and her reference to a variety
of peer reviewed treatises (the Mechanic study; the Dallinger study; and others).
One difficulty that presents something of an undercurrent to any discussion
of this or any reference to literature is that, to a very large extent, the witness’
experience and all cited materials pertain to treating someone who has sustained
dissociative amnesia rather than determining its onset or duration (which is seldom
of much consequence to the therapist). Hence, empirical examples of good
practices in treatment are not terribly relevant to this consideration. Thus, while
they frequently make somewhat incidental observations related to the timing of the
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loss of recall, the focus of their analysis is directed elsewhere.
Be that as it may, Dr. Tavani opined as to her view on the “likelihood” of
the commencement of the loss of recall. Her testimony was that, by reasonable
psychological probability, the loss of recall was “quick,” which was said to mean
within days, certainly weeks, of the event. This, she said, was the experience of
“most people.” From that background, although it had been established that
knowledge of the point of recall loss is impossible for anyone to determine for
himself or herself, Dr. Tavani extrapolated that Plaintiff’s loss was within a few
days of the event. She then testified as to the frequency with which a loss would
be triggered by an event marked by stress or fear or a similar experience. In this
case, she stated, there was the confrontation with the police.
The point then arose as to why Plaintiff wouldn’t have mentioned such
abuse when presented with the opportunity to do so immediately, and then later,
while still in custody, during a psychological examination when he was
specifically asked about abuse. Dr. Tavani believed that the memory had at that
juncture been suppressed. Plaintiff would have had good reason to mention that to
both the police and the psychologist if he had the memory, because he was
“terrified” of going to Ferris School. Mentioning that event might well, Dr.
Tavani testified, have aided his avoidance of Ferris. “He had nothing to gain by
not mentioning it.” Thus, Dr. Tavani stressed that she considered that
confrontation to be the (or, at least, a) principle reason to believe it was
dissociative amnesia.
When asked, though: “what if he thought the word of this event might, in
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some distorted fashion, get back to those already at the school, branding him for
further abuse, thereby inclining him to avoid bringing it up,” Dr. Tavani
recognized that as an alternate motivation.
Other issues arose. In Dr. Tavani’s original affidavit, she never rendered
any opinion concerning the timing of any repression. She explained that she was
unaware of any such issue, and had no cause to address it. She did, however,
address it at her deposition. Yet, even then, she indicated that nothing had been
published on the topic of repression on-set timing. Only later, she testified, did
she locate material. As mentioned earlier, she stated that the on-set location is not
“clinically relevant” for treatment. Still, she testified, “the mainstream of thought”
is that on-set is quick. That phrase would appear to be inimical to the testing and
peer review requirements of Daubert discussed below.
Question was made regarding the referenced studies; the later-discovered
other material. For example, distinctions were drawn between dissociative
symptoms and dissociative amnesia. The Dahlberg essay seemed to stress
repression of symptoms as opposed to repression of an entire traumatic event (or
actual dissociative amnesia). In this case, there was little discussion of whether a
repression of a given set of symptoms (eg: names of alleged perpetrators or
address of events or potential witnesses or surrounding activities) would be
enough to avoid the ramification of the statute of limitations. However, this is not
an issue of the accuracy of details. This concerns the tolling of the statute of
limitations. Hence, here this event in its entirely – which is quite a prolonged
“event” (encompassing multiple days and different assaults) – would seem to be
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required as a sine qua non. The position of Dr. Tavani and the Plaintiff, having
meals with Defendant, traveling from D.C. and back; being raped in two locations;
working in the tobacco shop; the entire several days of involvement; all constitute
“an event” the entirely of which was lost by confrontation with the police. Then,
upon psychiatric delving more than 20 years later, all of the events were recovered
as a prolonged episode.
As mentioned, distinctions are drawn among merely forgetting an event,
intentionally blocking an event from one’s recall, and repression of an event
(typically as a result of a traumatic incident – here determined to be the
confrontation with the police). Plaintiff, at least for the purposes of this
consideration, recognizes those distinctions, accepting that if he “merely” forgot
or blocked the event, the statute would not toll. He would be barred from pursuing
his claim. Dr. Tavani, likewise, recognized those distinctions and ramifications.
Unfortunately, during the course of her testimony she interchanged “forgotten”
and “repressed” on several occasions. That, to some extent, underscored the
importance to treating therapists of treating the patient who has, for one reason or
another, in one context or another, generated in his available mindset a traumatic
episode. That is to say: a patient now believes that, in his past, he sustained a
traumatic event; he doesn’t know how to deal with it; a psychiatrist or
psychologist is retained to help him work through the concept in his mind.
Exactly at what point, the idea ceased being in the patients’ consciousness is not
the concern. As a result, little is – or, according to some, including Dr.
Toborowski, ever could be – understood about the timing of repression or
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forgetting or blocking. On the other hand, that is the one thing that is critical to
this entire question.
Therefore, while Dr. Tavani certainly has credentials permitting her to
testify as to how to deal with and threat people who have repressed memory or
dissociative amnesia, that expertise does not address the question under
examination.
As this is all viewed in the contexts of Daubert and Bowen vs E.I. DuPont
de Nemours & Co.,3 we look to the standards that must be met.4 Relative to
Daubert: One: has the theory been tested? While substantial analysis exists
relative to the validity of the concept of dissociative amnesia, analysis of the
ability to time its on-set is largely tangential and non-specific. “Frequently” at
least “some symptoms” appear “quickly” is not the same thing as “repression
occurs within three weeks.”
Two: has the theory been peer reviewed? Much of the discussion pivoted
on DSM, which is not a peer reviewed publication. The peer reviewed
publications brought to light fall into the same category described under the first
factor.
Three: are there measurable standards and error rates extent? While this is a
concept that does not easily play into our consideration, the fact is that nothing of
the sort exists here.
3
Bowen vs E.I. DuPont de Nemours & Co., 906 A2 787 (Del. 2006).
4
Daubert vs Merrell Dow Pharm, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
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Keller v. Maccubbin, et al.
C.A. No.: 11C-03-015 (RBY)
January 3, 2013
Four: does the theory enjoy general acceptance in the scientific community?
The theory of dissociative amnesia may be said to. The concept of designation of
its inception does not appear to be at that point.
Concerning Bowen: One: is the witness qualified? Certainly as someone
treating a patient who is subject to dissociative amnesia, Dr. Tavani would be
qualified. The question lingers, though, as to whether she or anyone else is
qualified to testify as to its on-set.
Two: is the evidence relevant? Clearly, it is.
Three: is the expert’s opinion based on information reasonably relied upon
by experts in her field? This is, essentially, the same consideration discussed
above under “Daubert Four”. As indicated, it is not.
Four: would the testimony assist the time of fact? It probably would, but
that assistance would be subject to criterion five.
Five: will the testimony create unfair prejudice? Because the testimony
would be emanating from a person so well-credentialed in her field, the jury could
easily be misled into over-emphasing anything she opined concerning a particular
issue, when that issue is, in fact, so unreliably established in the scientific
community.
In sum, the gatekeeping function, so critical to the determination of the
admissibility of particular expert testimony, prevents the testimony of Dr. Tavani
on the timing of the on-set of Plaintiff’s dissociative amnesia or repressed
memory.
The determination that, to a medical probability (which is the standard
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required, of course) most (not all, but more than half) of the people, who sustain
some degree, (maybe of only some symptoms; perhaps completely) of dissociative
amnesia, experience it “quickly” can be offered by a witness testifying to a jury as
an expert that an experience (the police confrontation) of this Plaintiff at some
point which was before two years had expired cannot be sustained. Permitting its
expression would violate the minimum requirements of expert testimony. Among
the legal requirements for such expert testimony, pursuant to Daubert and
progeny, the testimony must satisfy minimal standards, which this does not.
Accordingly, Plaintiff will not be permitted to educe any testimony from Dr.
Tavani bearing on the subject of when Plaintiff’s loss of memory of the alleged
events took place or began. Defendant’s Motion for an Order precluding any such
testimony from Dr. Tavani is SUSTAINED.
SO ORDERED this 3rd day of January, 2013.
/s/ Robert B. Young
J.
RBY/lmc
oc: Prothonotary
cc: Opinion Distribution
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