Phillips v. Gelpke

921 A.2d 1067, 190 N.J. 580, 2007 N.J. LEXIS 584
CourtSupreme Court of New Jersey
DecidedMay 17, 2007
StatusPublished
Cited by8 cases

This text of 921 A.2d 1067 (Phillips v. Gelpke) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phillips v. Gelpke, 921 A.2d 1067, 190 N.J. 580, 2007 N.J. LEXIS 584 (N.J. 2007).

Opinions

Justice LaVECCHIA

delivered the opinion of the Court.

At age nineteen, plaintiff Melissa Phillips sued her uncle, John Gelpke,1 for injuries resulting from his sexual abuse that occurred [583]*583when she was between three and eight years old. The jury awarded plaintiff $750,000 in compensatory damages. That verdict was reversed, however, when the Appellate Division accepted defendant’s argument that plaintiffs case never should have advanced to the jury. Phillips v. Gelpke, 382 N.J.Super. 505, 507, 889 A.2d 1108 (App.Div.2006). Plaintiffs case was faulted for not including expert testimony to explain how she came to recall “repressed memories” of childhood sexual abuse events. Ibid.

We certified this appeal to review the reversal of plaintiffs judgment, 187 N.J. 79, 899 A.2d 302 (2006), and now, reverse. Plaintiffs case did not require the production of an expert to explain to the jury how she recalled her past sexual abuse. In this matter, there was no prodding of plaintiffs memory that necessitated an expert’s explanation. The credibility of her memory was a matter for the finder of fact. Plaintiff was entitled to present her case of, “I forgot and then I remembered,” and to take her chances before the jury. Moreover, to the extent the Appellate Division bolstered its holding by relying on statute of limitations tolling cases that involved an expert’s explanation for a plaintiffs inability to recall repressed memories, the court’s reliance was misplaced. Tolling eases, premised on a plaintiffs asserted inability to have “discovered” the tort injury, involve different proof requirements. An added showing is demanded of an untimely plaintiff as a condition for late entry to the courts for redress. In that setting, a plaintiffs testimony about forgetfulness, standing alone, cannot supply the justification for an asserted inability to have discovered the injury and timely filed the action.

In this matter, plaintiffs tort action was filed timely. Her cause of action never should have been subjected to a discovery-like threshold as a condition of its submission to the jury.

[584]*584I.

Plaintiff was living in Florida with her drug-addicted mother, Susan Phillips, when her maternal grandmother, Betsy Phillips, asked defendant to search for them while he was in Florida on business. Defendant found Susan and Melissa living in squalid conditions. At Betsy’s instruction and with Susan’s consent, defendant brought three-year-old Melissa to New Jersey to live with her grandmother. Thus, plaintiff came to reside in her grandmother’s home next door to defendant and his wife, Barbara, who is plaintiffs maternal aunt.

In relevant part, the following are the events plaintiff said she recalled concerning the alleged sexual abuse. Plaintiff testified that, approximately seven years after she traveled with her uncle to New Jersey, she remembered that they had stopped at a motel for the night. She described the motel room as having two beds and remembered that she started to rub her private parts on the end of one of the beds. She recalled defendant “ask[ing] me where I learned that from ... [a]nd he ... told me to come near him.” Although she believed that night was the first time defendant sexually abused her, she admitted that “that [was] all I can actually remember” about that event.

She further testified that while living with her grandmother, she often went next door to her aunt and uncle’s home. On morning visits, she would climb in bed with them and play a game concerning who would shower first. Plaintiff testified that she would choose her aunt and, as a result, she would remain alone in the bed with her uncle. During those times she would move on top of him. She also testified to touching his genitals under his clothing.

About the time that plaintiff completed kindergarten, plaintiffs mother returned to New Jersey and plaintiff went to live with her. Plaintiff continued to visit her grandmother on weekends and, during those visits, similar incidents involving defendant would occur. Her testimony also included descriptions of other sexual incidents, the last of which occurred when she was eight years old. [585]*585In that instance, plaintiff was lying on the couch with defendant when several Girl Scouts rang the front doorbell. Plaintiff testified that, at the time, she believed that the girls saw what she and defendant were doing, and she became embarrassed. That embarrassment, coupled with the fact that she was older and had a better understanding of the sexual nature of what was occurring with defendant, combined to end the abuse.

At the age of eleven, which was approximately three years after the last-claimed act of sexual abuse, plaintiff had a dream during which she imagined herself as a young woman (between eighteen and twenty years old) 'having sexual relations with defendant. After that dream, plaintiffs recollections of the earlier-described acts of sexual abuse by defendant returned to her episodically in flashbacks. Plaintiff did not divulge the dream or the subsequent memories until age twelve or thirteen, when she told a friend. Approximately a year later, she told a few more friends about the dream. When plaintiff was fourteen years old and learned that her four-year-old half-sister was spending nights at defendant’s home, she finally told her mother about the dream and her separate recollections of the acts of sexual abuse by defendant.2

When she was nineteen, plaintiff filed the instant civil action against defendants John and Barbara Gelpke, claiming injuries based on sexual abuse that allegedly occurred when plaintiff was between three and eight years old. In support, plaintiff submitted a report from Dr. Madelyn Milchman, a psychologist who opined on plaintiffs injuries arising from the alleged abuse and described, in general, repressed memories. Dr. Milchman, however, did not diagnose plaintiff with any disorder that caused repressed memory.

[586]*586Defendants moved for summary judgment on the basis that plaintiff did not produce expert testimony to support a diagnosis of dissociative amnesia3 and also because plaintiff did not proffer independent corroborative evidence that any act of abuse occurred. The motion court denied the application. Defendants thereafter moved for an in limine order barring Dr. Milchman from testifying that plaintiff suffered from repressed memory syndrome because her expert report contained no such diagnosis. The court granted the in limine motion.

At trial, consistent with her report and based on twenty-eight hours of evaluation, Dr. Milchman testified about plaintiffs psychological injuries. Dr. Milchman also testified about the process by which plaintiff recalled the alleged acts of sexual abuse, specifically plaintiffs dream when she was an eleven-year-old, that she was older and having sex with defendant, which was followed by additional memories or flashbacks of abuse by defendant. Consistent with the in limine order, Dr. Milchman did not opine that plaintiff suffered from repressed memory syndrome to explain or bolster plaintiffs testimony about why she remembered when she did. Dr. Milchman did testify about memories generally and explained that “anything can act as a recall cue, including dreams.”

In their testimony, both defendants denied that any sexual abuse occurred.

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Phillips v. Gelpke
921 A.2d 1067 (Supreme Court of New Jersey, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
921 A.2d 1067, 190 N.J. 580, 2007 N.J. LEXIS 584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-gelpke-nj-2007.