Wednesday, December 6, 2006
Court Probes Whether ‘Recovered Memory’ Patient May Sue Psychologist
By a MetNews Staff Writer
The California Supreme Court heard argument yesterday in a case where a woman who was the subject of a child abuse study 20 years ago sued a prominent psychologist who has criticized the study and questioned the accuracy of the plaintiff’s account of what transpired.
The plaintiff, Nicole Taus, is now a naval aviator overseas. But as a child, she was the subject of a child custody battle in which her father—who won full custody—claimed Taus had been abused, sexually and otherwise, by her mother.
The defendant, Dr. Elizabeth Loftus, is a professor at UC Irvine. Her work over the past three decades, described as both groundbreaking and controversial, has largely focused on the inaccuracy of memory.
The case was on appeal from a partial grant of an anti-SLAPP motion.
Most of the court’s questions yesterday concerned Taus’ claim for intrusion, and focused on allegations that Loftus misrepresented herself to Taus’ foster mother in order to obtain and release information about Taus. Taus alleged that Loftus told the foster mother that Loftus was the supervisor of Dr. David Corwin, who interviewed Taus during her parents’ divorce.
During that interview, Taus told Corwin she was sexually abused by her mother. In an article co-authored by Corwin years later, he claimed that Taus subsequently blocked memories of the abuse, but spontaneously recovered them during an interview with him 11 years later.
Taus allowed Corwin to release the details regarding her abuse and memory recovery in the article.
Loftus’ attorney, Thomas R. Burke of Davis Wright Tremaine in San Francisco, told the court that Taus had no reasonable expectation of privacy in any information the foster mother gave Loftus because Taus previously released intimate details to Corwin.
But Justice Carol A. Corrigan appeared skeptical, asking:
“So once I’ve given permission to reveal some intimate information, then others can go to my family members and get other information, and I’m out of luck?”
Corrigan, along with Chief Justice Ronald M. George, and Justices Joyce L. Kennard and Carlos R. Moreno pressed Burke on what the limits were to the methods one could use to obtain information, assuming Taus no longer had a privacy expectation in the information.
“What if they committed a burglary?” George asked.
“It would be a burglary, but it would not be an intrusion.”
Later in the hearing he retracted a little, conceding that it would be a physical intrusion.
Justice Ming W. Chin noted that Taus and her foster mother had become estranged, and asked whether that affected Taus’ expectation of privacy.
Justice Marvin R. Baxter asked Loftus’ attorney, Julian Hubbard of Hubbard & Ebert in Redwood City, whether a ruling in his client’s favor would have repercussions in criminal procedure. Baxter noted that police officers routinely engage in trickery to obtain information from suspects.
After the hearing, both Burke and Hubbard declined to predicted the outcome, but both expressed optimism. Hubbard noted the court’s focus on the allegations of misrepresentation, while Burke said he thought it went “very well” because the justice only asked about intrusion, and not Taus’s other claims.
When asked whether she would consider it a victory if the court narrowed the case to a single cause of action for intrusion, Loftus replied:
“I can’t believe this whole thing, but we’re here almost four years later. I hope this will be the end of it, finally.”
“The hardest part for me is that so much time was spent on something that isn’t true. I did not misrepresent who I was. I didn’t, and never would have, said I was Corwin’s supervisor.”
Loftus, who has testified as an expert in more than 250 cases, has questioned the claims of many of her colleagues to be able to revive patients’ long-suppressed memories of traumatic events.
In 2003, Taus sued Loftus and others, disclosing publically for the first time the fact that she was the Jane Doe referred to in the earlier articles. She accused Loftus of infliction of emotional distress, invasion of privacy, intrusion, fraud and defamation, for allegedly calling Taus’ mental health and fitness for military duty into question, not only in the Skeptical Inquirer, but also in subsequent public statements.
The defendants moved to strike Taus’ claims under the anti-SLAPP statute. With respect to Loftus, Solano Superior Court Judge James Moelk struck the fraud claim but allowed the causes of action for infliction of emotional distress, invasion of privacy, and defamation to stand.
The Court of Appeal affirmed in part and reversed in part. It struck the claim for infliction of emotional distress, but said Taus was sufficiently likely to prove invasion of privacy and defamation to survive the anti-SLAPP motion.
The case is Taus v. Loftus, S133805.
Copyright 2006, Metropolitan News Company