Borawick v. Shay

• Decision Date: 17 October 1995
• Docket Number: D,No. 690,690
• Citation: 68 F.3d 597
• Parties: , 42 Fed. R. Evid. Serv. 1201 Joan S. BORAWICK, Plaintiff-Appellant, v. Morrie SHAY and Christine Shay, Defendants-Appellees. ocket 94-7584.
• Court: U.S. Court of Appeals — Second Circuit

Page 597

68 F.3d 597

64 USLW 2263, 42 Fed. R. Evid. Serv. 1201

Joan S. BORAWICK, Plaintiff-Appellant, v. Morrie SHAY and Christine Shay, Defendants-Appellees.

No. 690, Docket 94-7584.

United States Court of Appeals Second Circuit.

Argued Dec. 19, 1994.

Decided Oct. 17, 1995.

Helen L. McGonigle, Brookfield, CT, for Plaintiff-Appellant.

Charles W. Fleischmann, Bridgeport, CT (Gulash & Fleischmann, Bridgeport, CT), for Defendants-Appellees.

Before: VAN GRAAFEILAND, WALKER, and CABRANES, Circuit Judges.

WALKER, Circuit Judge:

This case presents an issue of first impression: the circumstances under which an alleged victim of sexual abuse may testify as to memories of abuse following therapeutic hypnosis. Plaintiff-appellant, Joan S. Borawick, appeals from a final judgment entered on May 10, 1994 by the United States District Court for the District of Connecticut (T.F. Gilroy Daly, District Judge ), adopting the recommendations of Magistrate Judge Joan G. Margolis and entering summary judgment in favor of defendants, Morrie and Christine Shay, whom Borawick accused of sexually abusing her as a child. This judgment for defendants followed an in limine ruling prohibiting the plaintiff from testifying based on hypnotically-refreshed recollections of sexual abuse. Borawick v. Shay, 842 F.Supp. 1501, 1508 (D.Conn.1994).

BACKGROUND

Borawick, who is currently thirty-eight years old and a citizen of California, brought a diversity tort action alleging that her aunt and uncle, Christine and Morrie Shay, Connecticut citizens, sexually abused her in the summers of 1961 and 1964, when she visited them at their home at the ages of four and seven, respectively. At the time, she lived in Seattle. Borawick had no memory of the alleged abuse for more than twenty years.

During the fall of 1984, Borawick began to experience panic attacks. When they continued, in the winter of 1985, she sought and received treatment on five or six occasions with a psychiatrist, Dr. Irwin Ruben. From April, 1986 through July, 1987, Dr. Anthony Reading, a clinical psychologist, continued the treatment. In the spring of 1987, she also sought medical treatment for chronic physical illness with Dr. Ronald Peters, a medical doctor and part owner of the Pacific Medical Center ("PMC") in Santa Monica, California. PMC's clientele was largely composed of people from the entertainment industry.

After reviewing Borawick's medical history of chronic illness, Dr. Peters referred Borawick to Valerian St. Regis, a hypnotist who worked under Peters's supervision, since "problems in childhood" sometimes cause chronic illness and are susceptible to recall through hypnosis. Borawick underwent twelve to fourteen hypnotic sessions with St. Regis from the summer of 1987 through the fall of 1988. Before and immediately following these sessions, she had no recollection of When deposed in 1993, St. Regis testified that he had no permanent records relating to the hypnosis of Borawick; however, prior to his deposition, he had read a portion of Borawick's deposition. St. Regis maintained that, before hypnotizing Borawick, he had no expectation of the type of information that the hypnosis would reveal. He explained that he used "regression therapy" to take Borawick back to the age of between three and five years old. St. Regis also testified that, in general, instead of using hypnotic suggestion with Borawick, he asked broad questions such as "what happened?," "what do you remember?," or "what do you recall?."

abuse, much less of any abuse by these defendants.

St. Regis testified that Borawick revealed under hypnosis that her aunt, defendant Christine Shay, persuaded Borawick, at age four, to strip and engage in "ritual dancing." St. Regis further stated that during hypnosis Borawick described anal object penetration by Christine Shay, as well as another incident in which her aunt inserted a "cap pistol in [Borawick's] vagina." St. Regis also testified that during hypnotic sessions, Borawick disclosed that her uncle, defendant Morrie Shay, anally raped her. St. Regis did not know whether the alleged anal rape involved penile insertion or object insertion.

St. Regis testified that he did not reveal to Borawick what she had described during the sessions, because, in his opinion, such revelations would have been "devastating" and would probably surface in time. Borawick attended her last session with St. Regis in the fall of 1988.

Borawick testified in her deposition that during the second week of February, 1989, several months after her final hypnotic session, she experienced her first non-hypnotic memory of sexual abuse by her father, who is not a defendant in this case. Following this initial recollection, according to Borawick, subsequent memories surfaced in "bits and pieces." Her first memory concerning defendant Christine Shay allegedly occurred on February 10, 1989. On that date, Borawick first recalled her aunt vaginally raping her with a pistol. In late 1990 or early 1991, she first remembered an incident when Christine Shay forced "a broomstick into [Borawick's] vagina." Borawick also stated that she regained memory of being naked in the presence of her aunt and "having to dance around."

Borawick testified that her memory of being anally raped by defendant Morrie Shay surfaced in 1990. In addition to recalling sexual abuse by her father, aunt, and uncle, Borawick also claims sexual abuse by numerous others, including family members and her father's friends. More detailed references to these individuals and their various "rituals" and other alleged abusive conduct are described in the sealed portion of the appendix.

On January 24, 1992, Borawick commenced this action, seeking compensatory and punitive damages from Morrie Shay and Christine Shay for their alleged willful, wanton, and malicious sexual exploitation of her in 1961 and 1964. Borawick, 842 F.Supp. at 1501. Judge Daly denied plaintiff's motion to enlarge time for discovery on July 23, 1992. On November 4, 1992, defendants filed a motion in limine seeking to exclude the plaintiff's testimony. The in limine motion was referred to Magistrate Judge Joan Glazer Margolis. Borawick's second motion to enlarge time for discovery, filed on February 10, 1993, was not ruled upon.

After an initial ruling on March 24, 1993 that set forth the test the magistrate judge would follow in deciding the in limine motion and after receiving further written submissions, the magistrate judge issued a supplemental ruling on May 26, 1993. The ruling recommended granting the defendants' motion in limine to exclude Borawick's testimony, principally on the ground that St. Regis was "not appropriately qualified." Borawick, 842 F.Supp. at 1508.

While Borawick's objections to the magistrate judge's initial and supplemental ruling were pending before the district judge, the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Accordingly, the plaintiff moved for reconsideration of the in limine rulings on the ground that the therapeutic use of hypnosis Shortly thereafter, the defendants moved for summary judgment. After the magistrate judge issued a recommended ruling granting the defendants' motion, the plaintiff refiled and the district court retained and denied a motion by Borawick dated February 10, 1993 to reopen discovery and to enlarge the time for taking depositions. On May 10, 1994, final judgment was entered in favor of the defendants. Borawick appeals from this judgment. ¹

                and her resultant testimony satisfied Daubert.   Borawick submitted as additional evidence copies of two letters purportedly received from her younger sister in 1989.  Both referenced sexual assault against the sister, and one expressly identified the defendants as the perpetrators.  Borawick also submitted two expert affidavits, one from a board-certified psychiatrist, Matthew Klein, M.D., and one from a clinical and forensic psychologist, Anne Pratt, M.D., as further support that the therapeutic use of hypnosis is widely accepted in the mental health community and is used for treatment of victims of sexual abuse.  The defendants filed a reply and objection to plaintiff's objections, including a letter dated August 1, 1992, also allegedly written by the younger sister, that recanted her earlier allegations.  Upon reconsideration, the magistrate judge adhered to her earlier recommended ruling.  Borawick, 842 F.Supp. at 1509.   On January 10, 1994, the district court adopted the magistrate judge's recommendation.  Id. at 1501
                

DISCUSSION

Borawick raises the following claims on appeal: 1) the district court erred in granting the in limine motion because it applied the incorrect legal rule regarding the admissibility of hypnotically-refreshed testimony; 2) the district court's ruling was inconsistent with the holding in Daubert v. Merrell Dow Pharmaceuticals, --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); 3) the district court violated Borawick's right to a jury trial in granting the in limine motion, which resulted in a summary judgment in favor of the defendants; 4) the district court deprived her of due process in its rulings on Borawick's numerous motions.

I. Admissibility of Post-Hypnotic Testimony

This circuit has yet to address the admissibility of post-hypnotic testimony of memories elicited as a result of hypnosis. While numerous state and federal courts have considered this issue, nearly all of them dealt with recall in the context of hypnosis that was specifically intended to enhance a memory of a particular known or suspected occurrence. The parties have not cited, nor are we aware of, any case concerning the specific issue before us: the admissibility of testimony about memories of childhood sexual abuse that are recalled for the first time in adulthood following the use of hypnosis as part of psychotherapy.

A. District Court's Approach

Judge ...