Keller v. MacCubbin

60 A.3d 427, 2013 WL 632959, 2013 Del. Super. LEXIS 1
CourtSuperior Court of Delaware
DecidedJanuary 3, 2013
DocketC.A. No. 11C-03-015 (RBY)
StatusPublished

This text of 60 A.3d 427 (Keller v. MacCubbin) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keller v. MacCubbin, 60 A.3d 427, 2013 WL 632959, 2013 Del. Super. LEXIS 1 (Del. Ct. App. 2013).

Opinion

OPINION

YOUNG, J.

ISSUE AND STANDARD

This is Defendants’ Motion to preclude Plaintiffs use of the testimony of Dr. Carol A. Tavani, M.D., D.A.B.P. & N., a psychiatrist, as to her opinion of the time of on-set of Plaintiffs repression of any memory of certain events. While this is Defendants’ Motion, the Plaintiff, as proponent of the proffered expert testimony bears the burden of establishing the admissibility by a preponderance of the evidence.1 That admissibility must satisfy the requirements of Daubert and its progeny.2

A hearing, with testimony, upon this Motion was held on November 29, 2012. This is the Court’s decision thereon.

FACTUAL BACKGROUND

For purposes of this Daubert hearing, Plaintiff at fourteen years of age was, essentially, a waif. He had apparently been supporting himself, at his young age, on the streets of Rehoboth Delaware, by way of “non-traditional” employment endeavors, which local authorities believed included burglaries.

At some point in the summer of 1988, Plaintiff and Defendant crossed-paths. Defendant became aware of Plaintiffs circumstances, leading to Defendant’s “taking in” Plaintiff for feeding and temporary housing. During the course of a period of multiple days, it is now alleged, Defendant, in both Rehoboth and Washington D.C., engaged in more than one act of sexual abuse of Plaintiff. At a time while Plaintiff was still staying with Defendant, Plaintiff departed Defendant’s shop. As he was walking on the boardwalk, Plaintiff observed two Rehoboth police officers coming towards him. Plaintiff is said to have recognized immediately that he was in a precarious situation, assuming (quite correctly, as it turned out) that those officers were actively trying to locate and apprehend Plaintiff. The dreaded confrontation occurred. Plaintiff was taken into custody. He was specifically, though perhaps perfunctorily, questioned by the arresting officers as to whether or not he had ever been subjected to sexual abuse. Later, during the progression of his moving through the juvenile incarceration process, he was interviewed by a child psychologist.. In the course of that interview, which was considerably more thorough, he was questioned at some length about any history of having been subjected to sexual abuse. In both instances, Plaintiff categorically denied any such experience.

It is the position of the Plaintiff that, as of the time of those interviews, his memory of the events with Defendant had become the subject of dissociative amnesia or repressed memory or traumatic amnesia— all used interchangeably. Further, Plaintiff asserts that the memory remained un-recovered by Plaintiff until more than 20 years had elapsed. At that time, Plaintiff was being given a massage, which became “aggressive”, so to speak. Plaintiff, by his description, “freaked out.” As a result, he began seeing a psychologist. During the course of that treatment, his memory of past events was evoked, yielding a descrip[429]*429tion of the alleged sexual abuse by Defendant.

For the purposes of this consideration only, we are to presume that the alleged abuse took place, and that at some point, it ceased to be within the scope of Plaintiffs recall. Evidence as to its actually having occurred, and evidence of whether the recall of it was “repressed” (which would, from the time of its commencement until the time of its re-emergence in the memory, toll the running of any applicable statute of limitations) or whether it was “forgotten” or “blocked” or “suppressed” (none of which would toll the statute’s running) are all left for another day.

DISCUSSION

The question for consideration is whether or not Plaintiffs expert, Dr. Carol Tavani, is to be permitted to offer to the jury the opinion that Plaintiffs loss of memory of the events he alleges took place at some specific time frame in 1988. As indicated, according to the allegations concerning the circumstances, the alleged events took place in the summertime period. On that basis, the Plaintiff must have sustained traumatically produced repressed memory of the event sometime during that period in 1988 in order to be able to present his case at this time, free of any statute of limitations bar.

Plaintiff has offered Dr. Tavani as a witness to provide evidence, through her expert opinion, that the repression occurred within two years of the event. Because of Plaintiffs prior testimony, this witness’ opinion is offered on the basis of scientific probabilities without any corroborating evidence as to timing. To be clear, this witness has considerable evidence on which to support a rational demarcation decision. The evidence is irrefutable that, (as described above) on a given date, Plaintiff was accosted by police, who questioned him about a series of burglaries. The question is whether or not sufficiently valid scientific support exists for the expert to render to the jury an opinion that that event triggered, or at least coincided with, a repression of Plaintiffs memory.

Perhaps to be equally clear, if Plaintiff elected not to reveal those events to anyone at that time, and over some more prolonged period forgot about the events, only to have his memory jogged at a point some 20 years later, then no repression of the memory, or dissociative amnesia, occurred.

Dr. Tavani, during the within Daubert hearing on that issue, testified that in her opinion the repression took place; that it did so long before two years post-event passed by; and that it occurred specifically at or about the time of Plaintiffs confrontation with the police, which she interpreted as a traumatic event.

Testifying in opposition to Dr. Tavani was an expert, Dr. Toborowski. His testimony provided little more than that, in his opinion, it is impossible to attribute any particular time to the repression. That may very well be about all that can be said from a scientific position. Hence, the analysis here will concern Dr. Tavani’s offering.

The hearing progressed on the working assumption that, at the age of 14, Plaintiff was raped by Defendant. That assumption was for the purposes of this hearing only. As noted, the actuality of that would certainly be a contested matter at trial.

Additionally, I am aware that extensive psychological literature exists relative to the ability of the mind to form, or to “recall”, events as memories as a result of their being suggested to someone, even though those events never actually occurred. That, also, is not a matter for consideration today.

[430]*430Moreover, from impressions gleaned in the testimony, I presume that a memory could be repressed, could be recalled for some period, could be repressed again, and finally recalled again. If that understanding is correct, then a question in this case could arise as to whether a two-year period ever (at any one time or perhaps as accumulated) expired during which the memory was not repressed. Again, that was not the subject of this hearing.

Those related matters may well be of ultimate concern, but they are not part of this consideration.

To begin this analysis, we look to part of the testimony offered by Dr. Tavani. Memory, she described, is simultaneous to an event. The instant one does or experiences or thinks of something, a memory thereof is created. From that simultaneous instant, the action or experience or thought is a memory.

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Related

Daubert v. Merrell Dow Pharmaceuticals, Inc.
509 U.S. 579 (Supreme Court, 1993)
Minner v. American Mortgage & Guaranty Co.
791 A.2d 826 (Superior Court of Delaware, 2000)
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906 A.2d 787 (Supreme Court of Delaware, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
60 A.3d 427, 2013 WL 632959, 2013 Del. Super. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keller-v-maccubbin-delsuperct-2013.