Logerquist v. McVey

• Decision Date: 19 April 2000
• Docket Number: No. CV-98-0587-PR.,CV-98-0587-PR.
• Citation: 1 P.3d 113,196 Ariz. 470,320 Ariz. Adv. Rep. 15
• Parties: Kim E. LOGERQUIST, a single woman, Petitioner. v. Hon. Michael R. McVEY, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, John T. Danforth, M.D. and Mary Jean Danforth, his wife; John T. Danforth, P.C., Real Parties in Interest.
• Court: Arizona Supreme Court

1 P.3d 113

196 Ariz. 470

320 Ariz. Adv. Rep. 15

Kim E. LOGERQUIST, a single woman, Petitioner. v. Hon. Michael R. McVEY, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, John T. Danforth, M.D. and Mary Jean Danforth, his wife; John T. Danforth, P.C., Real Parties in Interest.

No. CV-98-0587-PR.

Supreme Court of Arizona, En Banc.

April 19, 2000.

Turley, Swan & Childers, P.C. By: Kent E. Turley, Phoenix, Attorneys for Petitioner.

Teilborg, Sanders & Parks, P.C. By: Frank A. Parks, Kari B. Zangerle, Donald A. Lawson, Phoenix, Attorneys for Real Parties in Interest.

OPINION

FELDMAN, Justice.

¶ 1 Applying the rule of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), the trial judge entered an order precluding "expert testimony of Plaintiff's alleged repressed memory." We granted review to clarify Rule 702, Arizona Rules of Evidence, which governs the admission of opinion testimony.

¶ 2 The construction and application of Rule 702 has become an issue of nationwide concern following the United States Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Daubert and its progeny reject the Frye test and construe Rule 702, Federal Rules of Evidence, to create a "gatekeeper" function for federal judges. The question of whether to apply Frye or Daubert to Ariz.R.Evid. 702 appears with increasing frequency and creates uncertainty in this and many other cases pending in our trial courts. To settle this policy question for Arizona courts, we take the rare step of reviewing the propriety of the trial court's interlocutory order. See Piner v. Superior Court, 192 Ariz. 182, 184-85, 962 P.2d 909, 911-12 (1998); Summerfield v. Superior Court, 144 Ariz. 467, 469, 698 P.2d 712, 714 (1985). We have jurisdiction under Arizona Constitution art. VI, § 5(4).

FACTS AND PROCEDURAL HISTORY

¶ 3 Kim Logerquist (Plaintiff) alleges that her pediatrician (Defendant) sexually abused her on several occasions between 1971 and 1973, when she was eight to ten years old. Plaintiff further alleges that she had amnesia about those events until 1991, when her memory was triggered by watching a television commercial featuring a pediatrician. She sought "to introduce evidence, through expert testimony, that severe childhood trauma, including sexual abuse, can cause a repression of memory, and that in later years this memory can be recalled with accuracy." Minute Entry Order, June 11, 1998, at 1 (hereafter June 11 Order).

¶ 4 Over objection, the trial judge granted Defendant's motion that a Frye hearing be held to assess the admissibility of expert testimony regarding repressed memory. Two experts testified at this hearing. Plaintiff called Dr. Bessell van der Kolk, a clinical psychiatrist who specializes in dissociative amnesia. He testified regarding the large number of patients who alleged such phenomenon and about his diagnoses of dissociative amnesia or post-traumatic stress disorder in such patients. He would testify, among other things, that his experience and observations over many years, together with the extensive literature on the subject, have led him to conclude the phenomenon exists in some patients. Defendant's expert, Dr. Richard Kihlstrom, a research psychologist, testified there were serious flaws in the many studies supporting repressed memory and cited other studies finding trauma usually enhances memory rather than causes amnesia. Doctor Kihlstrom did not, however, have any personal experience treating or dealing with people claiming to suffer from repressed memory; nor had he participated in any studies on trauma's effect on memory.

¶ 5 After a lengthy hearing, the trial judge determined the "theories advanced by Plaintiff's experts are not generally accepted in the relevant scientific community of trauma memory researchers." June 11 Order, at 4. The judge therefore "ORDERED excluding expert testimony of Plaintiff's alleged repressed memory, and Plaintiff's theory that such evidence can be recalled with accuracy." Id.

¶ 6 Because this interlocutory order was not appealable, Plaintiff sought review by special action in the court of appeals. See Rule 1, Arizona Rules of Procedure for Special Actions. The court of appeals declined jurisdiction, and Plaintiff sought review by this court. We granted review for the reasons stated at the beginning of this opinion, allowed supplemental briefing, and heard oral argument. The first question accepted for review was whether Frye or Daubert applied. We conclude Frye was inapplicable and reject Daubert as it has been interpreted in the cases that have followed it.¹ We now vacate the order excluding expert testimony.

DISCUSSION

A. Contentions of the parties

¶ 7 Plaintiff contends the June 11 Order, based on the Frye principle, is incorrect because Frye is inapplicable. If the Frye test were applicable to the evidence Plaintiff seeks to adduce, Plaintiff argues that it should be discarded in favor of Daubert's test of reliability. Defendant, on the other hand, believes that Frye applies to the testimony and the trial judge correctly concluded the principles explained by Doctor van der Kolk had not gained general acceptance, so that expert testimony regarding these principles was therefore inadmissible. In the event Frye is found to be inapplicable or is abandoned by this court, Defendant argues that the Daubert test should be applied and the trial judge had discretion as "gatekeeper" to preclude the evidence.

¶ 8 Other courts have reached conflicting decisions on these questions. See, e.g., Shahzade v. Gregory, 923 F.Supp. 286 (D.Mass.1996) (applying Daubert but finding general acceptance and admitting evidence); Wilson v. Phillips, 73 Cal.App.4th 250, 86 Cal.Rptr.2d 204 (1999) (Frye inapplicable, testimony like Dr. van der Kolk's admissible under expert evidence rule); Doe v. Shults-Lewis Child & Family Serv., Inc., 718 N.E.2d 738, 750 and n. 1 (Ind.1999) (applying Daubert but refusing "to declare repressed memory syndrome unreliable"); New Hampshire v. Hungerford, 142 N.H. 110, 697 A.2d 916 (1997) (applying Frye and precluding evidence); New Mexico v. Alberico, 116 N.M. 156, 861 P.2d 192 (N.M.1993) (applying Daubert but finding general acceptance and admitting evidence); Rhode Island v. Quattrocchi, 1999 WL 284882 (R.I.Super. April 26, 1999) (applying Frye and precluding evidence); Moriarty v. Garden Sanctuary Church of God, 334 S.C. 150, 511 S.E.2d 699 (App.1999) (dissociative amnesia or repressed memory syndrome valid theory under South Carolina standard for admission of scientific evidence).

B. Proceedings in the trial court

¶ 9 We think it necessary to focus on the precise controversy as defined by the record before the trial court. Plaintiff's complaint, filed more than twenty years after the incidents and ten years after Plaintiff became an adult, initially raised questions regarding timeliness. The trial judge first granted Defendant's motion to dismiss on the basis that the action was barred by the statute of limitations. Our court of appeals reversed that order, without resolving the Frye issue, and remanded for proceedings not inconsistent with its opinion. Logerquist v. Danforth, 188 Ariz. 16, 23-24, 932 P.2d 281, 288-89 (App.1996). We denied review, with Justice Martone voting to grant.

¶ 10 On remand, and after extensive discovery, Defendant filed a Motion for Evidentiary Hearing Pursuant to Frye v. United States (hereafter Frye Motion). Defendant argued that Plaintiff's case is based on scientific theories that are not readily accepted by the medical and scientific communities. Further, he contended the memories alleged were not real or accurate but had been distorted, implanted, or suggested by improper techniques used by the physician and psychologist treating Plaintiff for emotional problems. Because the "medical community is unwilling to make a statement that there is scientific foundation for the accuracy of Ms. Logerquist's claims, it would be inappropriate to allow her to proceed forward to trial." Frye Motion at 14 (emphasis added).

¶ 11 In response, Plaintiff objected to a Frye hearing. As permitted by Ariz.R.Evid. 702, Plaintiff's treating doctors would testify to experience and observation with this and many other cases dealing with repressed memory, dissociative amnesia, and post-traumatic stress disorder. Even if they gave general testimony based on the literature covering the subject, and if such testimony were subject to Frye, they could show general acceptance need not be non-controversial or universal. Conceding that not all allegedly recovered memories are accurate or truthful, Plaintiff argued that the question of the accuracy and credibility of her recollection was for the jury.

¶ 12 In his reply to Plaintiff's response to the Frye Motion, Defendant argued that:

Plaintiff alleges she suffers from dissociative amnesia.... The manual in which `Dissociative Amnesia' is defined also indicates:

There are no tests or set of procedures that invariably distinguish Dissociative Amnesia from Malingering, but individuals with Dissociative Amnesia usually score high on standard measures of hypnotizability and dissociative capacity. Malingered amnesia is more common in individuals presenting with acute, florid symptoms in a context in which potential secondary gain is evident—for example, financial or legal problems....

Care must be exercised in evaluating the accuracy of retrieved memories, because the informants are often highly suggestible. There has been considerable controversy concerning amnesia related to reported physical or sexual abuse, particularly when abuse is alleged to have occurred during early childhood. Some clinicians believe that there has been an underreporting of such events, especially because the victims are often children and perpetrators are inclined to deny or distort their actions. However, other

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