Hearndon v. Graham

• Decision Date: 14 September 2000
• Docket Number: No. SC92665.,SC92665.
• Citation: 767 So.2d 1179
• Parties: Paula Jean HEARNDON, Petitioner, v. Kenneth L. GRAHAM, Respondent.
• Court: Florida Supreme Court

767 So.2d 1179

Paula Jean HEARNDON, Petitioner, v. Kenneth L. GRAHAM, Respondent.

No. SC92665.

Supreme Court of Florida.

September 14, 2000.

Horace N. Moore, Sr., Gainesville, Florida; and Norm La Coe, Brighton, Colorado, for Petitioner.

Michael W. Jones, Gainesville, Florida, for Respondent.

PER CURIAM.

We have for review a decision passing upon the following certified question of great public importance:

WHERE A PLAINTIFF IN A TORT ACTION BASED UPON CHILD ABUSE ALLEGES THAT SHE SUFFERED FROM TRAUMATIC AMNESIA CAUSED BY THE ABUSE, DOES FULTON COUNTY ADMIN. v. SULLIVAN, 22 FLA. L. WEEKLY S578 (FLA.1997), PRECLUDE JUDICIAL RECOGNITION OF AN EXCEPTION TO OR A TOLLING OF THE STATUTE OF LIMITATIONS BASED UPON THE DOCTRINE OF DELAYED DISCOVERY RECOGNIZED IN CHAPTER 92-102, LAWS OF FLORIDA?

Hearndon v. Graham, 710 So.2d 87, 92 (Fla. 1st DCA 1998). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The certified question concerns the effect of our decision in Fulton County Administrator v. Sullivan, No. 87,110 (Fla. opinion filed Sept. 25, 1997). However, subsequent to the district court's decision in Hearndon, this Court reconsidered its original decision in Sullivan and rendered a decision on rehearing determining that the limitations period of a foreign jurisdiction (rather than Florida's) applied. Thus, the discussion of Florida's statute of limitations in the earlier Sullivan opinion was no longer applicable. See Fulton County Adm'r v. Sullivan, 753 So.2d 549, 552 (Fla. 1999). The certified question is therefore rephrased as follows:

WHERE A PLAINTIFF IN A TORT ACTION BASED ON CHILDHOOD SEXUAL ABUSE ALLEGES THAT SHE SUFFERED FROM TRAUMATIC AMNESIA CAUSED BY THE ABUSE, DOES THE DELAYED DISCOVERY DOCTRINE POSTPONE ACCRUAL OF THE CAUSE OF ACTION?

We answer the rephrased question in the affirmative and reverse the district court's decision.

The facts established by the district court and its ruling below are as follows:

Paula Jean Hearndon [filed a complaint in 1991] against Kenneth Graham, Hearndon's stepfather, for injuries that resulted from sexual abuses he allegedly committed upon her beginning in 1968 when she was 8, and continuing until 1975 when she turned 15 (at which time, according to the complaint, Graham allegedly murdered Hearndon's mother). The complaint was dismissed with prejudice on the sole ground that the alleged cause of action was barred, as a matter of law, by the four-year statute of limitations in section 95.11(3)(o), Florida Statutes (1987). Hearndon argued to the trial court that it should apply the doctrine of delayed discovery of an injury to toll the statute of limitations in her case on the basis that, as an adult survivor of childhood sexual abuse, she suffered from so-called "traumatic amnesia," or a related syndrome [until approximately 1988], caused by the abuses allegedly perpetrated by Graham, thereby explaining why earlier commencement of the action had not been possible. The trial court dismissed Hearndon's complaint citing the Third District Court of Appeal's decision in Lindabury v. Lindabury, 552 So.2d 1117 (Fla. 3d DCA 1989).

Hearndon, 710 So.2d at 87-88. The First District held that the statute of limitations was not tolled based on the delayed discovery doctrine in light of the fact that the Legislature provided explicit tolling provisions that did not include delayed discovery due to lack of memory. See id. at 90. We conclude that the doctrine should apply to causes of action alleging subsequent recollection of childhood sexual abuse.

POSTURE

This case is before the Court based on the district court's affirmance of the trial court order granting respondent's motion to dismiss the complaint. In reviewing the rephrased certified question, we do so from the perspective of viewing petitioner's complaint in a light most favorable to her case, and will consider all facts and reasonable inferences to her advantage. See Gladstone v. Smith, 729 So.2d 1002, 1003 (Fla. 4th DCA 1999), review dismissed, No. SC00-944, ___ So.2d ___ (Fla. May 3, 2000). For the sake of our review, petitioner suffered childhood sexual abuse that caused her to suppress or lose memory of the events for several years; she later recalled the abuse and filed suit. We do not pass on the merits of whether she actually lost and then retrieved her memory of these alleged events, and we do not pass on the reliability of any psychological techniques that may have been employed in arousing her memory.

The district court recognized that there is credible medical support for the proposition that many victims of childhood sexual abuse develop amnesia because of the horrible nature of the abuse so that they completely lose or suppress the memory for years, only to later recall the events as adults. See Jocelyn B. Lamm, Easing Access to the Courts for Incest Victims: Toward an Equitable Application of the Delayed Discovery Rule, 100 Yale L.J. 2189, 2194 (1991). The district court cited to the dissenting opinion in Lindabury v. Lindabury, which stated that:

In my view psychiatry "represents the penultimate grey area," Nesbitt v. Community Health of South Dade, 467 So.2d 711, 717 (Fla. 3d DCA 1985) (Jorgenson, J., concurring in part, dissenting in part), particularly with regard to issues of foreseeability and predictability of future dangerousness. However, it does not necessarily follow that this area of medicine cannot serve the courts and litigants by providing useful testimony with respect to past events. Expert testimony regarding past acts and their consequences can readily be evaluated by a fact finder and considered with other evidence in the case to determine whether the alleged repression in fact occurred and, accordingly, whether the plaintiff ever had an opportunity to bring an earlier action. Repression, moreover, can hardly be deemed a novel concept; it appears in the literature as early as the late 19th century and is integral to any number of psychoanalytic theories.

552 So.2d at 1118 (Jorgenson, J., dissenting). Nevertheless, we recognize that the acceptance of theories supporting memory loss of childhood sexual abuse is a disputed area of psychological study. It is debated whether such memory loss actually occurs or whether plaintiffs are coached into believing that such abuse occurred by suggestions posed by psychologists. For example, one law journal article advocated the application of the delayed discovery doctrine in the case of childhood sexual abuse based on view that:

The classic psychological responses to incest trauma are numbing, denial, and amnesia. During the assaults the incest victim typically learns to shut off pain by "diss[as]ociating," achieving "altered states of consciousness ... as if looking on from a distance at the child suffering the abuse." To the extent that this defense mechanism is insufficient, the victim may partially or fully repress her memory of the assaults and the suffering associated with them: "Many, if not most, survivors of child sexual abuse develop amnesia that is so complete that they simply do not remember that they were abused at all; or ... they minimize or deny the effects of the abuse so completely that they cannot associate it with any later consequences." Many victims of incest abuse exhibit signs of Post-Traumatic Stress Disorder ("PTSD"), a condition characterized by avoidance and denial that is associated with survivors of acute traumatic events such as prisoners of war and concentration camp victims. Like others suffering from PTSD, incest victims frequently experience flashbacks and nightmares well into their adulthood.

Lamm, supra at 2194 (footnotes omitted). On the other hand, another author has stated that

Without some objective corroboration courts probably ought not to allow delayed recall incest litigation, [Note 158] and thus avoid the ... task of attempting to sort out `retrieved' recollections of actual events from similarly retrieved fantasies.

. . . .

[Note 158]: A number of courts have taken this position. See, e.g., ... Peterson[Petersen] v. Bruen, 792 P.2d 18, 25 (Nev.1990) ("We recognize that injustice may result from our ruling in instances where (childhood sexual abuse) has occurred but cannot be demonstrated by corroborative evidence that is clear and convincing. We are persuaded, however, that the potential for fraudulent claims is sufficiently great to warrant such a ruling."); State v. Hungerford, No. 94-S-045, 1995 WL 378571 (N.H.Super.Ct., May 23, 1995) (holding that the repressed memory of assaults shall not be admitted at trial because the process of therapy used in these cases to recover the memories is not scientifically reliable); S.V. v. R.V., 933 S.W.2d 1 (Tex.1996) (holding that expert opinions regarding recovered memories of childhood sexual abuse could not meet objective verifiability element for extending discovery rule in childhood sexual abuse case)....

Edward Greer, Tales of Sexual Panic In the Litigation Academy: The Assault on Reverse Incest Suite, 48 Case W. Res. L.Rev. 513, 553-54 & n.158 (1998) (footnote 157 omitted). Organizations have been founded to counter what is believed by some to be the inappropriate use of psychology to invent "repressed" memories of abuse:

Repressed memory became headline news in November 1993 when Steven Cook accused Cardinal Joseph Bernardin of sexually abusing him on the basis of a hypnotically recovered memory that Cook subsequently recanted (Woodward 1994). More than 300 "retractors"—individuals who, like Cook, first came upon their memories of abuse in therapy and later realized them to be false—have disavowed their initial accusations and denounced recovered memory therapy (Macnamara 1995, 41). As of October 1994 more than 17,000 families had contacted the False Memory Syndrome Foundation (FMSF) reporting false accusations of childhood sexual abuse (Lindsay and Read 1995, 850). To its supporters, the FMSF seeks to promote education and public

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