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Little court guidance on repressed memory litigation results in trial court split

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Reaching into a person's mind to revive repressed memories is an issue that's settled law in one sense, but what remains unsettled is how such memories are used during litigation and whether a lawsuit should be tossed or allowed to proceed to trial.

The Indiana Supreme Court said these memories are reliable enough to be taken to a jury, but in the decade since the court ruled, it's yet to happen. Judges throughout the state and country have been divided in their findings about the time that should be allowed to file a lawsuit once memories are recovered about possible molestation that happened to someone during childhood, decades after the abuse may have happened.

Now, in the context of Catholic priest abuse cases, questions that have lingered within Hoosier caselaw since the early 1990s could be closer to a final bright-line resolution. That is, if attorneys decide to appeal a recent ruling from Marion Superior Judge David Dreyer, who on Jan. 20 declined to grant summary judgment in a Catholic priest abuse case. The trial judge's decision allows a jury to consider those repressed memories and keeps the Archdiocese of Indianapolis as a defendant.

Analyzing the issues involving repressed memories that are the subject of the Marion County cases and others statewide and nationally, Indiana University Maurer School of Law - Bloomington professor Alex Tanford said this might be the time for Indiana appellate courts to offer more guidance on the practical aspects of repressed memory cases. While it's settled law that repressed memory validity is something for a jury's consideration, he said state courts haven't yet worked out a bright line for the admissibility of this type of expert testimony or how those memories were actually recovered.

In John Doe RG v. Archdiocese of Indianapolis, et al., No. 49D10-0509-CT-035390, a 44-year-old man claims that during the 1970s when he was a 10-year-old parishioner at St. Andrew Catholic Church, he was repeatedly molested by former Indianapolis priest Harry Monroe. He kept quiet about it until later in life, but when he started experiencing problems at work and in relationships, he began counseling in 2003. That's when an initial "image flash" of one of the abuse instances came to light, and more detailed memories followed before he eventually hired legal counsel. RG filed a lawsuit against the archdiocese in 2005 after going through counseling and rediscovering what had happened, and he accused the church of keeping the priest's abuse hidden.

Arguing for summary judgment, the archdiocese filed multiple motions - one that stated RG filed the suit past the twoyear statute of limitations that exists once he turned 18. But Judge Dreyer's ruling keeps the claims alive, finding that the man took due diligence in filing the suit after the memories resurfaced.

Judge Dreyer wrote that the man experienced a "tumultuous journey" after that initial image flash, and the subsequent confusion and avoidance all led up to his eventual lawsuit being filed just before the two years expired from the time the memories were initially recovered.

The guiding standard on whether repressed memories about childhood abuse can be used during litigation comes from the Indiana Supreme Court case of Doe v. Shults-Lewis Child & Family Services, 718 N.E.2d 738, 748 (Ind. 1999). Justices established a five-prong test that any adult plaintiff must meet when asserting a claim of tortious conduct committed against him or her as a child, and when that action is beyond the typical statute of limitations period for someone who isn't a parent.

A person must: show a parent didn't know about the conduct or worked to conceal it; prove what happened; show the defendant breached a duty to inform or engaged in wrongful conduct preventing the plaintiff from discovering what happened within that statutory timeframe; provide expert opinion supporting the repressed memory validity; and show the plaintiff exercised due diligence in commencing the action after a reasonable time of recovering memories.

That fifth prong is one of the most significant aspects of Judge Dreyer's ruling: whether due diligence was taken. Other judges throughout the state, including Marion Superior Judge John Hanley, have ruled opposite of what their colleague did in priest abuse cases involving repressed memories and due diligence. Allen Circuit Judge Alan Levine in August 2009 made a similar finding to what Judge Dreyer now has, finding that a client there used due diligence despite a lack of guidance from higher courts on what that means. That Fort Wayne case is still ongoing, though Judge Levine last year dismissed the archdiocese as a defendant.

Meanwhile, Judge Hanley in Marion County ruled in late 2007 that a litigant there wasn't diligent in filing a suit against a Catholic priest 25 years after alleged abuse; repressed memories led to re-discovering the abuse in November 2001 but the person waited more than 16 months to file the suit.

But in analyzing due-diligence standards on which other jurists have ruled differently, Judge Dreyer in the RG decision turned to the standards used to determine due diligence in medical malpractice cases.

"On the other hand, Indiana common law also shows an analogous bright line rule from some medical malpractice cases, that is, if the 'discovery' date is more than two years beyond the occurrence, the patient has two more years after discovery within which to file the action," he wrote. "There is no evidence of tardiness in this tale."

Aside from the issue of repressed memories, Judge Dreyer's ruling also deals with the church's respondeat superior: whether the archdiocese can be held liable for conduct of one of its employees, the priest. He ruled that Indiana precedent shows there is a factual question about whether there was any duty or fraudulent concealment, and that's something a jury should decide.

Judge Dreyer issued another ruling on a different case, John Doe CT v. Archdiocese of Indianapolis, et al., No. 49D10-0509-CT-037304, that doesn't involve repressed memories but does relate to whether the archdiocese can be held liable. In that case, he decided differently and granted summary judgment on the respondeat superior claims but denied dismissal on duty and fraudulent concealment.

Attorneys expressed reactions that were consistent with the parties they represent in this litigation, but it's clear all sides are forced to handle the issues on a case-bycase basis because of the little guidance currently available.

Minnesota attorney Pat Noaker, who's representing RG and all 13 plaintiffs suing Father Monroe and the archdiocese, said this reinforces Indiana's tradition of letting cases go before a jury.

"Most other states allow repressed memory cases to go before a jury, and if that happens here, it could be the first time in Indiana," he said. "But the archdiocese has left no stone unturned in filing motions in this litigation, so it's tough to say what will happen next."

Indianapolis attorney John S. "Jay" Mercer, who represents the archdiocese, said a decision hasn't been made about whether to file an interlocutory appeal. He has until mid-February to make a decision.

"This does come as a surprise, particularly when a judge right across the hall has reached a different conclusion," he said about Judge Dreyer's ruling. "He doesn't make a final decision about repressed memory being reliable but that he'll allow that at this stage. I think it says that at this summary judgment stage, there's a lower standard of reliability than what you might have in court at trial. I'm not sure if this is a change in the law or not, but it's significant when you're bringing a new science into courts about how reliable that is."

Following the ruling, Mercer filed a motion for bifurcation so that a jury could split the issue of statute of limitations and then decide whether to proceed once that decision has been reached.

Mercer added that the church's position remains that repressed memory use is a new science that's heading in the direction of not being a recognized theory, and that it's being discredited. He also said a question could arise about whether repression expert witnesses will be allowed to testify or how reliable their theories might be, but that falls under the Evidence Rule 702 standard on expert witnesses.

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