S.V. v. R.V.

933 S.W.2d 1

• Court: Texas Supreme Court
• Decided: March 14, 1996
• Docket: No. 94-0856
• Status: Published

Opinions

HECHT, Justice,

delivered the opinion of the Court

in which PHILLIPS, Chief Justice, and ENOCH, SPECTOR, BAKER and ABBOTT, Justices, join.

R. intervened in her parents’ divorce proceeding, alleging that her father, S., was negligent by sexually abusing her until she was seventeen years old. (Given the sensitive nature of these allegations, we refer to the parties only by initials to avoid the use of proper names.) Because R. did not sue her father within two years of her eighteenth birthday as required by the applicable statutes of limitations, her action is barred as a matter of law unless the discovery rule permits her to sue within two years of when she knew or reasonably should have known of the alleged abuse. R. contends that the discovery rule should apply in this case because she repressed all memory of her father’s abuse until about a month after she turned twenty, some three months before she intervened in the divorce action. The district court directed a verdict against R. on the grounds that the discovery rule does not apply in this case, and that R. adduced no evidence of abuse. A divided court of appeals reversed and remanded for a new trial. 880 S.W.2d 804. We reverse the judgment of the court of appeals and affirm the judgment of the district court on limitations grounds.

I

Before we review the evidence in this case it is important to have clearly in mind the issue that is crucial in determining whether to apply the discovery rule. To pose that issue we begin with an analysis of our discovery rule jurisprudence.

We have long recognized the salutary purpose of statutes of limitations. In Gautier v. Franklin, 1 Tex. 732, 739 (1847), we wrote that statutes of limitations

are justly held “as statutes of repose to quiet titles, to suppress frauds, and to supply the deficiencies of proof arising from the ambiguity, obscurity and antiquity of transactions. They proceed upon the presumption that claims are extinguished, or ought to be held extinguished whenever they are not litigated in the proper forum at the prescribed period. They take away all solid ground of complaint, because they rest on the negligence or laches of the party himself; they quicken diligence by making it in some measure equivalent to right....” [Joseph P. Story, Conflicts of Law 482.]

More recently, we explained:

Limitations statutes afford plaintiffs what the legislature deems a reasonable time to present their claims and protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise. The purpose of a statute of limitations is to establish a point of repose and to terminate stale claims.

Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex.1990).

The enactment of statutes of limitations is, of course, the prerogative of the Legislature. At the time this case was filed and tried, the applicable statute was the one governing personal injury actions generally, which provided: “A person must bring suit for ... personal injury ... not later than two years after the day the cause of action accrues.” Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex.Gen.Laws 3242, 3252, formerly codified as Tex.Civ.PraC. & Rem. Code § 16.003(a). The code contains two other provisions relevant to this ease. One is: “If a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in the limitations period.” Tex.Civ.Prac. & Rem.Code § 16.001(b). The other is: “For the purposes of this sub-chapter, a person is under a legal disability if the person is: (1) younger than 18 years of age_” Id. § 16.001(a). Thus, a person has until his or her twentieth birthday (or the next business day, id. § 16.072) to bring suit for personal injury from sexual assault if — and here we come to the root of the problem in the case before us — the cause of action “accrued” while the person was a minor.

In 1995, the Legislature enacted a special five-year statute of limitations for sexual abuse cases: “A person must bring suit for personal injury not later than five years after the day the cause of action accrues if the injury arises as a result of conduct that violates: (1) Section 22.011, Penal Code (sexual assault); or (2) Section 22.021, Penal Code (aggravated sexual assault.” Tex.Civ.Prac. & Rem.Code § 16.0045(a); Act of May 27, 1995, 74th Leg., R.S., ch. 739, 1995 Tex.Gen.Laws 3850. This new statute was not enacted until long after the present case was filed and tried and therefore does not govern. Raley v. Wichita County, 123 Tex. 494, 72 S.W.2d 577, 579 (1934). We mention it here to point out that under both the new statute and its predecessor, the prescribed period begins to run on the day the cause of action “accrues”.

Many other statutes peg the beginning of the limitations period on the date the cause of action “accrues”. Occasionally the date of accrual is defined. E.g., Tex.Civ.Prac. & Rem.Code § 16.003(b) (a wrongful death cause of action “accrues on the death of the injured person”). More often, however, the definition of accrual is not prescribed by statute and thus has been left to the courts. As a rule, we have held that a cause of action accrues when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred. Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 262 (Tex.1994); Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438, 440 (1940). We have not applied this rule without exception, however, and have sometimes held that an action does not accrue until the plaintiff knew or in the exercise of reasonable diligence should have known of the wrongful act and resulting injury. Trinity River Auth., 889 S.W.2d at 262. (Deferring accrual and thus delaying the commencement of the limitations period is distinct from suspending or tolling the running of limitations once the period has begun.)

We first referred to this exception as the “discovery rule” in Gaddis v. Smith, 417 S.W.2d 577, 578 (Tex.1967). We have sometimes used the phrase to refer generally to all instances in which accrual is deferred, including fraud and fraudulent concealment. Williams v. Khalaf, 802 S.W.2d 651, 657 (Tex.1990) (citing a case that “involved the ‘discovery rule’ since there was a claim of fraudulent concealment”); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990) (citing fraud case as one in whieh discovery rule applied). See also Robinson v. Weaver, 550 S.W.2d 18, 24 n. 2 (Tex.1977) (Pope, J., dissenting) (“The ‘discovery rule’ applies in actions based on fraud ... and fraudulent concealment in medical malpractice cases_”). At other times we have distinguished between fraudulent concealment and the discovery rule. Willis v. Maverick, 760 S.W.2d 642, 647 (Tex.1988) (besides asserting the discovery rule, plaintiff also alleged that fraudulent concealment tolled limitations); Weaver v. Witt, 561 S.W.2d 792, 793-794 (Tex.1977) (per curiam) (noting that if defendant moves for summary judgment on limitations, the burden of proving fraudulent concealment to avoid summary judgment is on the plaintiff, but the burden of proving the date plaintiff knew or should have known of injury to obtain summary judgment is on defendant); Nichols v. Smith, 507 S.W.2d 518, 521 (Tex.1974) (noting that plaintiff asserted fraudulent concealment only and not the discovery rule). See also Murray, 800 S.W.2d at 831 (Spears, J., dissenting) (“Fraudulent concealment gives rise to another such practical exception [besides the discovery rule] to the injury based rule of accrual.”); Moreno, 787 S.W.2d at 367 n. 6 (Doggett, J., dissenting) (referring to “common-law tolling principles such as the doctrine of fraudulent concealment and the discovery rule.”) Strictly speaking, the cases in which we have deferred accrual of causes of action for limitations purposes fall into two categories: those involving fraud and fraudulent concealment, and all others. The deferral of accrual in the latter cases is properly referred to as the discovery rule. We observe the distinction between the two categories because each is characterized by different substantive and procedural rules. Weaver, 561 S.W.2d at 793-794. See American Petrofina, Inc. v. Allen, 887 S.W.2d 829 (Tex.1994); Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex.1988).

We have considered the applicability of the deferred accrual exception to the legal injury rule in an assortment of settings. See Willis, 760 S.W.2d at 646 (attorney malpractice in drafting divorce decree led to forced partition of home; held discovery rule applies when lawyer’s expertise and client’s ignorance of the law make wrong undiseovera-ble); Nelson v. Krusen, 678 S.W.2d 918, 923 (Tex.1984) (child bom with muscular dystrophy after doctor informed parents that mother did not carry muscular dystrophy gene; held statute precluding discovery rule was unconstitutional); Weaver, 561 S.W.2d at 794 (negligently performed hemorrhoidectomy damaged plaintiffs rectal nerves and muscles, causing loss of bowel control; held doctor’s affidavit of last examination date was insufficient to negate discovery rule); Robinson, 550 S.W.2d at 22 (misdiagnosis when one disc repaired and another later removed; held discovery rule did not apply when fact of injury was unclear and no physical evidence established negligence); Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex.1976) (false and libelous credit report unsuspected until plaintiff refused credit; held discovery rule applies despite strong counterargument based on “intangible nature of the evidence and of the injury”); Nichols, 507 S.W.2d at 519-520 (nerves severed during operation and plaintiff assured that nerves would heal, and plaintiffs digestive disorders attributable to mistake; held accrual not delayed because fraudulent concealment not shown and discovery rule not alleged); Hays v. Hall, 488 S.W.2d 412, 414 (Tex.1972) (negligence in performing vasectomy confirmed by subsequent pregnancy; held discovery rule applies); Gaddis, 417 S.W.2d at 580 (foreign object left in patient’s body during surgery; held discovery rule applies); International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 580 (Tex.1963) (corporate officers and directors engaged in self-dealing, received commissions on stock sales, and sold personal shares of corporate stock in competition with corporation’s own offerings; held accrual was delayed for property sale and commissions, and fact issue existed as to whether personal stock sales were discoverable by board); Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 394 (1945) (secret dealings by trustee who conceded application of discovery rule; held facts did not alert beneficiary to delve into transactions); Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738, 740 (1943) (use of inferior, noncomplying felt under roof shingles, spaced too far apart, discovered only when roof completely torn up; held fraud delayed accrual because roof and felt were invisible from ground and because homeowner trusted general contractor to inspect); Quinn, 140 S.W.2d at 441 (loan contract fraud discovered, but suit not brought until remedies under contract exhausted; held fraud action accrues from time of discovery, not when damages ascertained with certainty); Port Arthur Rice Milling Co. v. Beaumont Rice Mills, 105 Tex. 514, 143 S.W. 926, 929 (1912) (fraud in chattel mortgage admitted; held discovery rule applies when plaintiff did not and could not have discovered defendant’s representations were false); Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36, 38 (1888) (property damage to building; held discovery rule did not apply); Rowe v. Horton, 65 Tex. 89, 92 (1885) (mutual mistake in land conveyance; held even if discovery rule applied, plaintiff did not show due diligence); Kuhlman v. Baker, 50 Tex. 630, 637 (1879) (land fraud in giving an illiterate a quitclaim deed representing it as warranty deed; held while fraud tolls limitations, plaintiff failed to exercise due diligence in discovering fraud); Fibreboard Corp. v. Pool, 813 S.W.2d 658, 679 (Tex.App.-Texarkana 1991), writ granted, 35 Tex.Sup.Ct.J. 674 (Apr. 29, 1992), writ denied as improvidently granted, 36 Tex.Sup.Ct.J. 162 (Nov. 11, 1992), cert. denied, 508 U.S. 909, 113 S.Ct. 2339, 124 L.Ed.2d 250, 509 U.S. 923, 113 S.Ct. 3037, 125 L.Ed.2d 724, 509 U.S. 933, 113 S.Ct. 3064, 125 L.Ed.2d 746 (1993) (report stated plaintiff’s chest x-ray consistent with asbestosis, but plaintiff was not informed of the report; held discovery rule applied); Turner v. PV Int’l Corp., 765 S.W.2d 455, 468 (Tex.App.-Dallas 1988), writ denied per curiam, 778 S.W.2d 865 (Tex.1989) (extramarital affair admitted in alienation of affections suit; held discovery rule applied).

The justifications we have offered for deferring accrual have been diverse, somewhat inconsistent, and often overly broad. Fraud, we have said, in and of itself prevents running of the statute of limitations, e.g., Ruebeck, 176 S.W.2d at 739; Port Arthur Rice Milling, 143 S.W. at 929, as does fraudulent concealment, e.g., Nichols v. Smith, 507 S.W.2d 518, 519-520 (Tex.1974); Estate of Stonecipher v. Estate of Butts, 591 S.W.2d 806, 809 (Tex.1979); Borderlon v. Peck, 661 S.W.2d 907, 908-909 (Tex.1983). We have applied the discovery rule because of a special relationship between the plaintiff and defendant. E.g., Willis, 760 S.W.2d at 645-646 (attorney and client); Slay, 187 S.W.2d at 388-393 (trustee and beneficiary). Even apart from such a relationship, we have indicated that the discovery rule applies when it is otherwise difficult for the injured party to learn of the wrongful act. Gaddis, 417 S.W.2d at 580 (leaving surgical sponge in plaintiffs body). We have characterized barring claims before plaintiffs knew they had them “shocking results”. Id. at 581. On the other hand, we have observed:

Statutes of limitations are not directed to the merits of any individual case, they are a result of legislative assessment of the merits of cases in general. The fact that a meritorious claim might thereby be rendered nonassertible is an unfortunate, occasional by-product of the operation of limitations. All statutes of limitations provide some time period during which the cause of action is assertible. However, preclusion of a legal remedy alone is not enough to justify a judicial exception to the statute. The primary purpose of limitations, to prevent litigation of stale or fraudulent claims, must be kept in mind.

Robinson, 550 S.W.2d at 20. A principal factor in deciding whether to apply the discovery rule has been to what extent the claim was objectively verifiable. E.g., Gaddis, 417 S.W.2d at 581 (leaving a surgical sponge in a body “is a peculiar type of case which is not particularly susceptible to fraudulent prosecution”); Robinson, 550 S.W.2d at 21 (“Unlike Gaddis v. Smith there exists in the present case [alleging misdiagnosis of herniated intervertebral disc] no physical evidence which in-and-of-itself establishes the negligence of some person.”); Kelly, 532 S.W.2d at 949 (credit defamation clear from written report).

While the language in the opinions in these cases varies, a general principle unites them. Computer Associates International, Inc. v. Altai Inc., 918 S.W.2d 453 (Tex.1996). Accrual of a cause of action is deferred in two types of cases. In one type, those involving allegations of fraud or fraudulent concealment, accrual is deferred because a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run. The other type, in which the discovery rule applies, comprises those cases in which “the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable.” Id. at 456. These two elements of inherent undiscoverability and objective verifiability balance the conflicting policies in statutes of limitations: the benefits of precluding stale or spurious claims versus the risks of precluding meritorious claims that happen to fall outside an arbitrarily set period. Restated, the general principle is this: accrual of a cause of action is deferred in cases of fraud or in which the wrongdoing is fraudulently concealed, and in discovery rule cases in which the alleged wrongful act and resulting injury were inherently undiscoverable at the time they occurred but may be objectively verified. This principle, while not expressed in every deferred accrual case, is derived from them and best defines when the exception to the legal injury rule has been and should be applied.

We have considered the “inherently undis-coverable” element of the discovery rule in several cases. Willis, 760 S.W.2d at 645 (lawyer’s error could not be discovered by client who was ignorant of the law); Nelson, 678 S.W.2d at 923 (malpractice in muscular dystrophy gene screening could not be discovered by parents until child showed symptoms); Kelley, 532 S.W.2d at 949 (false credit report could not be discovered until credit denied); Hays, 488 S.W.2d at 414 (“One who undergoes a vasectomy ... and then after tests is told that he is sterile, cannot know that he is still fertile ... until either his wife becomes pregnant or he is shown to be fertile by further testing.”); Gaddis, 417 S.W.2d (“it is often difficult, if not impossible, to discover that a foreign object has been left within the body within the statutory period of limitation”); International Bankers, 368 S.W.2d at 580-581 (disinterested directors could not discover certain corporate self-dealing); Ruebeck, 176 S.W.2d at 739 (homeowner could not discover faulty construction of roof); Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 321-322 (Tex.1941) (allegedly fraudulent deed was available for perusal by attorney of illiterate plaintiff); Houston Water-Works, 8 S.W. at 37 (cut into plaintiffs building not discoverable until walls cracked). The common thread in these cases is that when the wrong and injury were unknown to the plaintiff because of their very nature and not because of any fault of the plaintiff, accrual of the cause of action was delayed.

To be “inherently undiscoverable”, an injury need not be absolutely impossible to discover, else suit would never be filed and the question whether to apply the discovery rule would never arise. Nor does “inherently undiscoverable” mean merely that a particular plaintiff did not discover his injury within the prescribed period of limitations; discovery of a particular injury is dependent not solely on the nature of the injury but on the circumstances in which it occurred and plaintiffs diligence as well. An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence. Computer Associates, 918 S.W.2d at 456.

We have also considered the “objectively verifiable” element of the rule in a number of cases. In Gaddis, a patient claimed that her doctors were negligent in leaving a sponge inside her body after surgery. The presence of the sponge in her body — the injury — and the explanation for how it got there — the wrongful act — were beyond dispute. The facts upon which liability was asserted were demonstrated by direct, physical evidence. In contrast, Robinson involved a claim by a patient against his doctors for misdiagnosis of his back condition. We summarized the issue this way:

Plaintiff, to prove his cause of action, faces the burden of proving both a mistake in professional judgment and that such mistake was negligent. Expert testimony would be required. Physical evidence generally is not available when the primary issue relevant to liability concerns correctness of past judgment. Unlike Gaddis v. Smith there exists in the present case no physical evidence which in-and-of-itself establishes the negligence of some person. What physical evidence was to the cause of action alleged in Gaddis v. Smith, expert testimony is to the cause of action in the present case. Even the fact of injury is a matter of expert testimony.

550 S.W.2d at 21. Expert testimony, we concluded, did not supply the objective verification of wrong and injury necessary for application of the discovery rule.

We have adhered to the requirement of objective verification fairly consistently in our discovery rule cases, although we have not always emphasized the requirement because the alleged injury was indisputable. Willis, 760 S.W.2d at 643 (attorney’s error apparent in divorce decree); Nelson, 678 S.W.2d at 923 (child born with muscular dystrophy after doctor informed parents that mother did not carry muscular dystrophy gene); Weaver, 561 S.W.2d at 793 (negligent hemorrhoidectomy damaged nerves and muscles of plaintiffs rectum, causing loss of bowel control); Robinson, 550 S.W.2d at 21-22 (misdiagnosis of back condition not susceptible to objective verification); Hays, 488 S.W.2d at 414 (negligent vasectomy confirmed by subsequent pregnancy); International Bankers Life, 368 S.W.2d at 580 (stock transfer records and board meeting minutes proved officers’ and directors’ misdealing); Slay, 187 S.W.2d at 385-387 (paper trail detailed self-dealing); Ruebeck, 176 S.W.2d at 739 (improper construction and inferior underlying materials proved by examining and tearing up roof); Sherman, 152 S.W.2d at 319-321 (land title records showed defendants could not warrant good and merchantable title); Quinn, 140 S.W.2d at 438-439 (value of notes and subsequent value of property showed defendant’s misrepresentations); Houston Water-Works, 8 S.W. at 37 (misconstruction of building was apparent).

In the present case plaintiff R. claims that her father sexually abused her and that she unconsciously repressed all memory of it for years. If the legal injury rule were applied, R.’s claims against S. would each have accrued on the date the alleged incident of abuse occurred. In applying the statute of limitations, however, the years of her minority are not included. In effect, then, under the legal injury rule, R. is in the same position as if her claims all accrued on her eighteenth birthday and limitations began to run on that date, expiring about four months before she filed suit. R.’s claims are therefore barred unless she is entitled to an exception to the legal injury rule. R. does not allege fraud or fraudulent concealment, nor could she. R. was not deceived into thinking that she was not being abused when she was. To the contrary, R.’s contention is that she was fully aware of the episodes of abuse, so painfully so that she repressed all memory of them for years. Thus, for accrual to be deferred the discovery rule must apply. For the discovery rule to apply, R.’s claim must have been inherently undiscoverable within the limitations period and objectively verifiable.

We have twice held a fiduciary’s misconduct to be inherently undiscoverable. Willis, 760 S.W.2d at 645 (attorney); Slay, 187 S.W.2d at 394 (trustee). The reason underlying both decisions is that a person to whom a fiduciary duty is owed is either unable to inquire into the fiduciary’s actions or unaware of the need to do so. Willis, 760 S.W.2d at 645 (“Facts which might ordinarily require investigation likely may not excite suspicion where a fiduciary relationship is involved.”); Slay, 187 S.W.2d at 394 (knowledge of facts did not cause trust beneficiaries or co-trustees to suspect wrongdoing by other co-trustees). While a person to whom a fiduciary duty is owed is relieved of the responsibility of diligent inquiry into the fiduciary’s conduct, so long ás that relationship exists, when the fact of misconduct becomes apparent it can no longer be ignored, regardless of the nature of the relationship. Because parents generally stand in the role of fiduciaries toward their minor children, see Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex.1962), R. was not obliged to watch for misconduct by her father as long as she was a minor. Again, however, R. does not claim to have been misled.

Nevertheless, given the special relationship between parent and child, and the evidence reviewed in detail below that some traumas are by nature impossible to recall for a time, we assume without deciding that plaintiff can satisfy the inherent undiscovera-bility element for application of the discovery rule. We therefore focus on the second element of objective verifiability. The question is whether there can be enough objective verification of wrong and injury in childhood sexual abuse cases to warrant application of the discovery rule. To answer this question, we look first at the facts of this case and then at the general nature of such cases.

II

In reviewing a directed verdict, we examine the evidence in the light most favorable to the person suffering an adverse judgment. Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex.1976). Here that is the plaintiff, R. If the question to be decided were whether R. raised a material fact issue that she was entitled to have the jury resolve — such as when she knew or reasonably should have known of the claimed abuse — we would limit our consideration to the evidence in her favor and discard all contrary evidence and inferences. Id. However, as our focus is on a legal issue — namely, the applicability of the discovery rule in this context — we consider all of the evidence adduced at trial, viewing it, nevertheless, as much in R.’s favor as the record allows. From this perspective, the evidence is as follows.

S. was bom in 1942. He received a B.A. degree and an M.B.A. degree, entered the U.S. Army as a commissioned officer, and served eighteen months in the medical corps in Vietnam. In March 1970, a few months after his discharge from the Army, S., then 27, married B., then 22, who had received her B.A. degree in elementary education and had just begun teaching when she met S. Neither had previously been married. Shortly after the birth of their first child, R., on October 15, 1970, S. was fired from his job, and the family moved to Texas. S. and B.’s only other child, H., was bom in August 1975.

While S. testified that he considered B. a good sexual partner for most of their marriage, B. testified that she felt early on that S. had become dissatisfied and that the problems were hers more than his. B. specifically recalls S.’s wanting to tie her hands while being intimate, something she particularly disliked. Though S. and B. each characterize the problems differently, it is fair to say that their sexual relationship deteriorated slowly but steadily after R. was bom until it ceased altogether some three to five years before the couple separated in 1989.

B. and S.’s marriage was also adversely affected by S.’s inability to remain employed. B. felt S. was mostly to blame for being terminated from one job after another; S. attributed his misfortune to changes in his employers’ businesses. B. had sufficient income to support the family from a large trust set up by her father. Eventually she provided S. an office from which he conducted a commercial real estate business. While he appears to have worked diligently at the business, he was largely unsuccessful.

S. and B. agree that after B.’s parents died in 1978 and 1979, their marriage began a steep decline. From all outward appearances, however, they seemed a model family. R. and H. were bright, well-behaved children. They attended a private girls’ school. R. was at least an average student and her teachers liked her. She was a class officer in junior high school. In high school, she was awarded several prizes for citizenship, won speech contests, and was active in community service. In fact, R. graduated with over 500 hours of community service, more than any other senior at her school. Much of her work was devoted to tutoring children with learning disabilities and serving food to the homeless.

R. expressed interest in the subject of incest. She participated in an improvisational theater group for teenagers, taking part in a sketch dealing with incest. In 1988, her junior year in high school, she wrote a term paper on father-daughter Incest. Citing several books on the subject, the paper described the impact of incest on the victim daughter, the abusing father, and innocent family members. R. worked on another paper on incest her freshman year of college.

R. considered her relationship with her own father growing up as satisfactory but somewhat distant. S. was not, in her view, comfortable showing affection, and S. admits that this was true. R. recalls that S. hugged her only occasionally and never kissed her on the cheek or forehead, as a father might. She felt that when she was a little girl she could never sit in his lap and be close. He came to her school whenever parents were invited but never seemed very interested. Once, she recalls, he approached her at a school event and shook her hand, which she thought was silly. S. seemed cold to R., expressing no emotion and little or no interest. He was, she testified, “just there”. H. shares essentially the same view of her father.

By contrast, R.’s relationship with her mother was very close. In college, R. came to believe that she and her mother were “enmeshed”, a term R. and her counselor used to refer to an overly dependent relationship. Until she left high school, R. was very dependent on B. And B. was very protective of her daughters, watching them, she said, “like a mother hawk” and even spying on them occasionally to make sure they were all right.

R. dated several young men in high school and college. None of these relationships included sexual intercourse, but several did involve other sexual activities. She recalls being tied up during one encounter, although she does not remember whether that was her idea.

In January 1989, as R. was nearing the end of her high school senior year, S. and B. separated. B. and the girls stayed in their home, and S. moved in with his mother. In July, B. filed for divorce. R. was very angry with her parents for divorcing and sought counseling from a psychiatrist during the summer. She looked forward to getting away to college out of state, and as it turned out, she very much enjoyed her freshman year. She kept a diary in which she expressed how glad she was to be maMng her own decisions. She again involved herself in community service and still maintained the necessary grade point average to rush and join the sorority she wanted.

At the end of her first year she returned to Dallas. On May 18,1990, B. told R. that she, B., had been sexually abused as a child. B.’s first recollection of her own experiences had come to her a year earlier during an annual physical examination administered by her physician. She remembers that he asked her without warning, “Who sexually abused you as a child?” Instantly she recalled two instances, both involving her mother’s father, that she had never before remembered. On one occasion, when she was 12 or 13 years old, her grandfather came into the kitchen partially exposed, and she picked up a knife and said, “No!”, or, “Stay away!” Her grandfather did not do anything. The other incident she recalled was this:

T was ucjjjg — j was tied to a wrought iron bed and I had pink shorts on, and he had pulled them down. And he was standing at the foot of the bed and he had a razor strap, a leather razor strap, and he always used a straight-edged razor, and he was sharpening the razor on the razor strap and he was just looking at me and laughing at me. He didn’t do anything. He just laughed.

B. never recalled any other instances of this nature in her childhood.

Two days after B. shared these memories with R., R. wrote in her diary:

It has been very hard learning that my mother is an incest victim. It has been very interesting to watch her slowly recall some of the many things that happened to her. It is amazing how the mind is truly able to erase things like this from the mind!! In many ways I am scared to find out more.

A few weeks later R. went to see Alice Frazier, a licensed profession.¹! counselor whom B. had been seeing for some ume. B. had continued to see various counselors since R.’s birth to cope with problems in her sexual relationship with S., her concerns about his inability to hold a job, weight problems, and various physical problems. R. was mainly seeking help in breaking up with her longtime boyfriend. Frazier told R. that her boyfriend was more like a father to her, saying, “Sounds like incest to me.” R. also discussed other problems with Frazier, including her growing anger toward her father over the divorce. R. was concerned that her parents had not yet settled the divorce and that their financial problems were jeopardizing her returning to college. R. told Frazier that she had become aware of her first feeling of “dissociation” (a term we discuss in detail below) while talking about the divorce at a lawyer’s office, where she became “very rageful at S.’s demands”. R. described her extreme fear of sexual intimacy despite her interest in dating. Frazier commented in her notes that R.: “Sees some relationship with father. Very resistant to working on anything to do with S.” In ten meetings with Frazier over the summer, R. never mentioned that she might have been sexually abused.

Her parents’ divorce did not prevent R. from returning to college in the fall of 1990. She asked her father to drive her there, and he did. In the weeks that followed S. began to call R. at college and even sent her cards and flowers. R. found this attention very disturbing, and she asked him to stop, but he persisted. The emotional stress of the divorce and her father’s attentions began to take its toll on both her studies and her social life.

Just before Thanksgiving, R. had her first image of incest. She testified that she had been napping in her room

and was kind of half asleep and half awake, and was dreaming. And I had this dream of this authority — this man, but it was an authority figure — and he didn’t have a face, it was just this, it was just that authority figure over this young girl. And he was forcing himself upon her. And it wasn’t all real clear, it was a dream. The girl just had kind of brownish, blondish hair, kind of long, and as I r-clr¹. :he man didn’t have a face.

At first R. assumed the little girl was her. mother, but then she began to feel what the little girl must have felt. She did not recognize the faceless man at the time, and never has.

R. called Frazier and told her about the dream. Frazier suggested that they meet at Thanksgiving while R. was home. During that meeting R. told Frazier that she believed the dream had something to do with her father. Frazier had her lie on the floor, breathe deeply, and say whatever crossed her mind. Frazier refers to this as “imagery work” or free association. R. testified: “I had this, just this picture of myself and my dad and we were sitting on the edge of the bed in his room and he just had his hand on my chest, like inside my blouse. That was all.”

Later the same day R. was trying to do homework when she started writing about the little girl she had seen in her first dream. The little girl was three or four years old, and her father was forcing her to touch his genitals, telling her that she was loving him and making him feel good. As she wrote, R. realized that she was the little girl and S. was the father.

A week or so later R. met with her mother and sister in Frazier’s office and told them what she had recalled. B. and H. knew nothing to indicate that S. had abused R., and they found it hard to imagine, but they nevertheless believed R. Knowing the family as she did, Frazier was surprised by R.’s account of abuse, but as their discussions continued, Frazier also became convinced R. was telling the truth.

As the days passed, R. continued to recall other instances when S. had abused her. Outraged that S. was demanding visitation with H., and concerned that he would abuse her, too, R. intervened in her parents’ divorce proceeding on February 19,1991. The divorce settled several months later with S. being allowed to visit H. only when she wished, but R. persisted in her action against S.

As her memories flooded back, R. became increasingly dysfunctional. She did not return to college until January 1992 but remained at home with her mother and sister. She continued to meet with Frazier and began seeing a psychiatrist. Eventually R. recalled numerous instances when S. forced her to engage in a variety of sexual contacts. She also recalls that S.’s father fondled her.

The memories R. took longest in recalling were of the two occasions S. had intercourse with her. The first time she was at home with her family on her seventeenth birthday, in October 1987. The second time was in a motel room in August 1990, when S. had driven R. back to college for the start of her sophomore year. Although R. was nearly twenty years old at the time, and began to recall instances of abuse three months later, she had no memory of the occurrence until shortly before trial, which took place in June 1992. (R. does not include the August 1990 event in her allegations in this case. In her pleadings she specifically limited the period for which she is claiming damages to 1973-1988, and she does not seek recovery for any abuse that occurred within two years of her filing suit.)

At trial, R.’s experts explained how she could have been abused so often for so long without remembering anything until November 1990. They attributed the phenomenon to two psychological defense mechanisms— dissociation and repression — which we discuss more fully in Part IV. As explained by the experts at trial, dissociation is the segregation of part of a person’s mental process from the rest of it, so that certain ideas or experiences are removed from the main stream of consciousness. See Robert J. Campbell, Psychiatric Dictionary 211-212 (6th ed. 1989). Repression, according to the experts, is an active banning from consciousness of things that are unacceptable. See id. at 546-547. Repression blocks all memory of a traumatic event until the mind is prepared to cope with it. The experta testified that because S.’s abuse was so traumatic, she insulated herself first by being mentally “absent” while it was happening, and then by blocking all memory of it. Although the experts indicated that the distance R. felt toward her father growing up could be attributed to her unconscious awareness of his abuse, she was never actually aware of why she felt the way she did. R. is convinced that she engaged in certain sexual activities with her boyfriends because of her experiences with her father. The experts also testified that R.’s study of incest in high school and college and her enjoyment in having her hands tied during a sexual encounter with her boyfriend were examples of repetition compulsion — an unconscious desire to repeat what her father had done to her in a setting in which she did not fear it. Despite this acting out, the experts agreed that R. was not consciously aware of S.’s abuse until November 1990.

Frazier, the counselor who helped R. recover her memories, based her therapy on the treatment for post-traumatic stress disorder. In more than seventy sessions with R., Frazier encouraged her to recognize that her symptoms were based on a trauma, then re-experience the trauma, and then “own” the experience. Frazier considered that it was her responsibility, not to attempt to verify R.’s recollections, but to provide R. a safe place in which to remember them. Although Frazier never hypnotized R., she had her relax and recount whatever came into her head, a technique Frazier described as similar to hypnosis. Frazier also used a technique’ she called “guided imagery”: she would read aloud memory fragments R. had written down earlier, and R. would fill in other recollections. Frazier had R. write down her dreams and then helped her interpret them. Frazier also instructed R. to write questions about her experiences with one hand and answers with the other. Switching hands, Frazier testified, helps a patient access her subconscious.

Frazier also helped R. interpret her “body memories” — physical reactions to repressed experiences, such as episodes of gagging that Frazier considered to be indicative of forced oral sex. R. often saw herself as the little girl in her first dream. She described her recollection process like this:

Well, first you remember them [i.e., abusive experiences]. It’s just like relive— like remembering — the child would write what happened to her, but it was like it happened to someone else. And so, there’s no feelings and no emotions and no body reactions connected with it. And for me, I just then kind of put it aside and then, usually it’s like three weeks to a month and a half, or, depending on the incident, three months, later that my body starts to react and go through what that little girl went through when the incident was going on.

Frazier testified that she had never known a patient to have a false memory of childhood abuse and did not believe that it happened. Two other experts who testified for R., Dr. Madigan, a psychiatrist, and Dr. Powitsky, a forensic clinical psychologist, acknowledged that patients sometimes have false memories, but they were both convinced, for several reasons, that R.’s recollections were valid. First, her symptomatology was consistent with that of other survivors of childhood sexual abuse: headaches, gastrointestinal problems, fatigue, nightmares, low self-esteem, depression, anxiety, body memories, gagging, distraction, fear of sexual intercourse, and lack of emotion in recounting memories. All three experts diagnosed R. as suffering from post-traumatic stress disorder, the symptoms of which include all-pervading fear, anxiety, depression, intrusive thoughts, memories, flashbacks, mood swings, feelings of helplessness and confusion. However, the experts admitted that all of R.’s symptoms could have been caused by something other than child abuse.

Second, the Minnesota Multiphasie Personality Inventory test administered to R. showed a classic “V” profile, shared by many survivors of sexual abuse. The experts admitted, however, that the test was not conclusive of abuse. Dr. Powitsky also noted that R. has traits of a borderline personality disorder, although she does not have that disorder. People with this disorder, he testified, are prone to distort the truth.

Third, the MMPI, administered several times to S., and his Millón Clinical Multiaxial Inventory test, showed traits similar to those in sexual offenders: narcissistic traits like self-centeredness, overvaluation of self, high need for recognition, and a high need for control; reality distortion; and problems in his ability to express emotions, especially negative ones. However, Dr. Powitsky admitted that S. did not fit other profiles of sex offenders, that the tests had some contradictory results and did not show him to be a sex abuser, and that even if S. had fit the profile of a sex offender perfectly it did not mean that he had abused R. Further, one of S.’s personality tests showed no sexual deviancy, and his penile plethysmograph — a test for determining what subjects cause arousal in a man — revealed a “flat affect” indicating no arousal at all. On the other hand, while S. told Dr. Powitsky that he had not abused R., he also asked whether it was possible that he could have done it and not remembered.

Finally, all three experts noted the consistent, vivid details of R.’s memories. They were each convinced that R. could not have made up the events she claimed to recall. Dr. Madigan testified that R. did not appear to be the sort of person who was highly suggestible or who could be brainwashed. As Dr. Powitsky confirmed at trial, R. would “have to get an Oscar to give those details if they weren’t true.”

S. denies that he ever abused R. in any way, and testified specifically that he never did any of the abusive things R. had accused him of doing. Neither S. nor anyone else in the family ever used drugs, or used alcohol to excess. B. testified that she had never seen S. abuse R., and that given her strong interest in protecting her daughters, it was hard for her to imagine how S. could have done what R. claimed he did for fifteen years in their three-bedroom homes without her ever once finding out. H. stated that S. had never abused her and that she had never seen him abuse R. However, B. and H. both testified that they believed R. unequivocally.

Ill

R. sued S. for negligence “[djuring the years 1973 through 1988, inclusively,” in engaging or attempting to engage in sexual acts or contacts with her, and exposing himself to her while he was nude and aroused. She alleged that S.’s negligence was a breach of her right to privacy and caused her damages not in excess of $10 million. (The record does not reflect why R. alleged negligence rather than an intentional tort. One reason, presumably, would be to claim coverage under S. and B.’s homeowners’ insurance policy. See Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993).) As we have already explained, R.’s claims were subject to the two-year statute of limitations which did not begin to run until R.’s eighteenth birthday, October 15, 1988. R. has not complained of any occurrence after her eighteenth birthday. R.’s claims were thus barred by limitations after October 15, 1990, more than four months before she filed suit. She pleaded, however, that she was entitled to the benefit of the discovery rule.

Trial commenced to a jury. At the close of plaintiffs case, S. moved for directed verdict on two grounds: that the discovery rule did not apply and R.’s action was therefore barred by limitations as a matter of law; and that R. had failed to offer any evidence of sexual abuse. The district court granted S.’s motion without explanation and rendered judgment accordingly. The court of appeals, by a divided vote, reversed the judgment of the district court and remanded the case for further proceedings. 880 S.W.2d 804. In a brief opinion, the appeals court held that application of the discovery rule was controlled by its en banc decision two months earlier in L.C. v. A.K.D., No. 05-92-02867-CV, 1994 WL 59968, — S.W.2d -(Tex.App.-Dallas Mar. 1, 1994, no writ) (en banc).

In L.C., plaintiff claimed that her father had oral sex with her in 1959, when she was two years old, and that he had intercourse with her in 1966, when she was nine. Twenty-five years later, on December 24, 1991, plaintiff filed suit against her father. She asserted that while undergoing psychological treatment in 1988 and 1989 she was asked whether she had been a victim of incest or other sexual abuse. At the time she did not think she had been, but the questions made her suspicious. In her lawsuit she alleged that she repressed all memory of the abuse until February 1, 1990. Defendant moved for summary judgment on three grounds: that the discovery rule did not apply and plaintiffs claim was barred by limitations; that even if the discovery rule applied, plaintiff knew or should have known of her claims more than two years before she filed suit; and that there is no cause of action for the acts plaintiff alleged. The district court granted summary judgment without specifying the grounds. After hearing the case en banc, the court of appeals, by a vote of eight to five, reversed.

In a plurality opinion, six justices looked first to the law of other jurisdictions, both caselaw and statutes. The plurality summarized:

From our review of the law in other jurisdictions, it is clear that courts have moved more cautiously than legislatures in this area. Courts have split almost evenly on the issue now before us and, for the most part, have declined to apply the discovery rule when no suppression of memory is alleged. The presence or absence of corroborative evidence of the plaintiffs allegations has often been critical to these decisions.

Id. at *5, at -. The plurality concluded that the “overwhelming trend” among state legislatures had been to apply the discovery rule in childhood sexual abuse cases, although it noted that in following this pattern the Oklahoma Legislature, heeding concerns expressed by its supreme court, had also required objective, verifiable evidence of both abuse and repression of memory.

Concerning Texas law, the plurality stated:

In determining whether to apply the discovery rule, Texas courts have been most concerned with (1) the presence of documentary or physical evidence to support the claim, which alleviates concerns about stale and fraudulent claims, and (2) the injustice of requiring an injured party to bring suit before discovering the injury.

Id. The plurality concluded that these two factors should be weighed against one another, and that the balance in that case favored the plaintiff. The plurality also considered that the special relationship between parent and child justified application of the discovery rule.

The plurality added, however, that it was “mindful of the tremendous evidentiary problems presented by claims based on events that occurred decades ago in which there may be no physical evidence of the abuse.” Id. Consequently, the plurality held “that as a prerequisite to application of the discovery rule, a plaintiff must present objective evidence of the fact of the abuse and resultant, continuous suppression of memory of the abuse until discovery.” Id. The plurality concluded that the necessary objective evidence was supplied by the expert testimony of plaintiffs psychiatrist describing the symptoms of childhood sexual abuse and resultant memory repression, describing plaintiffs therapy through which her memory emerged, diagnosing plaintiff as suffering from post-traumatic stress disorder, and explaining the general symptoms and memory repression associated with PTSD. Id. at *5-*6, at -.

Two justices concurred in the plurality’s conclusion that the discovery rule should apply but disagreed that plaintiff should be required to produce objective evidence of abuse and repression in response to a motion for summary judgment. The concurring justices also disagreed that a psychiatrist’s opinion could qualify as objective evidence. The concurring opinion is not clear on whether plaintiff should be required to adduce objective evidence of abuse and repression at trial. Id. at *7, at - (Maloney, J., concurring). Five justices dissented, arguing that this Court’s decision in Robinson rejected expert testimony as sufficient evidence of wrong and injury to justify application of the discovery rule. These dissenters concluded that absent physical evidence of abuse plaintiffs claim was too uncertain to avoid the bar of limitations. Id. at *9-*10 at - (Barber, J., dissenting). One of the dissenting justices also joined in the concurring justices’ views that plaintiffs burden to avoid summary judgment should not be increased, and that a psychiatrist’s testimony is not objective evidence. Id. at *8 at - (Kinkeade, J., dissenting).

The decision of the court of appeals is not entirely clear from its opinions. Eight of the thirteen justices would apply the discovery rule in childhood sexual abuse eases. It appears, however, that ten justices would require objective evidence of abuse before applying the discovery rule, and that seven would not recognize expert testimony as objective evidence.

The balancing test formulated by the court of appeals plurality — weighing the availability of objective evidence against the injustice of requiring that suit be filed before injury is discovered — does not correctly state Texas law. As we have already noted, for the discovery rule to apply a plaintiffs claim must be inherently undiscoverable and objectively verifiable. The concern that meritorious claims will be barred is already taken into account in fashioning these two elements. The two elements strike the proper balance between the beneficial purposes of statutes of limitations and the real concern that a person’s rights may be cut off. To reweigh this concern, which is of course a legitimate one, against the very balance it has produced would be to make it the determinative factor. As we stated in Robinson, the “preclusion of a legal remedy alone is not enough to justify a judicial exception to the statute. The primary purpose of limitations, to prevent litigation of stale or fraudulent claims, must be kept in mind.” 550 S.W.2d at 20. Allowing late-filed claims that are inherently undiscoverable while requiring objectively verifiable injury reduces the likelihood of injustice in cutting off valid claims while affording some protection against stale and fraudulent claims.

The only physical evidence to support R.’s allegations consists of her symptoms and to a lesser extent her behavioral traits, as described by her and the experts who testified on her behalf. In every instance this evidence was inconclusive. The experts testified that R.’s symptoms could have been caused by other things than sexual abuse by her father. While R. fit a behavioral profile for someone who has been sexually abused, the experts acknowledged that that did not mean she had actually been abused. Tests on S. were also inconclusive. While he had many of the characteristics of a sex abuser, he did not match a characteristic profile, and even if he had, it would not prove that he abused R. Thus, there is no physical or other evidence in this case to satisfy the element of objective verifiability for application of the discovery rule.

The kinds of evidence that would suffice would be a confession by the abuser, e.g. Meiers-Post v. Schafer, 170 Mich.App. 174, 427 N.W.2d 606, 610 (1988); a criminal conviction, e.g. Petersen v. Bruen, 106 Nev. 271, 792 P.2d 18, 24-25 (1990); contemporaneous records or written statements of the abuser such as diaries or letters; medical records of the person abused showing contemporaneous physical injury resulting from the abuse; photographs or recordings of the abuse; an objective eyewitness’s account; and the like. Such evidence would provide sufficient objective verification of abuse, even if it occurred years before suit was brought, to warrant application of the discovery rule.

Although we indicated in Robinson that expert testimony would not alone provide the objective verification of a claim necessary to invoke the discovery rule, we have not held that such testimony can never suffice, at least in connection with other evidence, such as the symptoms of a survivor of abuse. We have held only that the bar of limitations cannot be lowered for no other reason than a swearing match between parties over facts and between experts over opinions. It is quite possible that recognized expert opinion on a particular subject would be so near consensus that, in conjunction with objective evidence not based entirely on the plaintiffs assertions, it could provide the kind of verification required. That is not true in this case, but we must explain why.

IV

Dr. Madigan, a psychiatrist who examined R. and testified at trial on her behalf, stated that psychiatry is not an exact science. Recognizing the reality of false claims of sexual abuse and the danger they pose to innocent people, Dr. Madigan told the jury: “I think it’s a tremendous burden for everybody in this room to figure it out.”

Dr. Madigan accurately characterized the problems of trying to determine whether childhood sexual abuse has occurred when the victim has repressed all memory of it for a long period of time. The scientific literature on memory in general and recovered memory in particular establishes the wealth of uncertainty about these subjects. There is some agreement among psychiatrists concerning psychiatric treatment in this area. See American Psychlatric Ass’n, Statement on Memories of Sexual Abuse (1993), reprinted in 42 Int’l J. Clinical & Experimental Hypnosis 261 (1994) [hereinafter Memories of Sexual Abuse]. But there is little agreement on the validity of recovered mem-ones or on the techniques used to retrieve them.

Researchers and therapists view the question of repressed memory from disparate vantage points, and with strong disagreements about the phenomena. E.g., John G. Watkins, Dealing with the Problem of “False Memory” in Clinic and Court, 21 J. Psychiatry & L. 297 (1993). The schism between the controlled world of the laboratory and the working theories of practice demonstrates that science has simply not evolved to the point that it can give definite guidance in determining whether childhood sexual abuse has occurred in a particular instance.

There is basic agreement about the workings of the memory process. The senses register an event; these sense images are organized into meaningful units; the organized images are stored or “encoded” in the brain’s neural structure; and finally, memories are retrieved and recounted. See Memories of Sexual Abuse, supra, at 261-262; Michael D. Yapko, Suggestions of Abuse: True and False Memories of Childhood Sexual Abuse 66-71 (1994); Australian Psychological Soc’y, Bd. of Directors, Guidelines Relating to the Reporting of Recovered Memories § C.I. (1994) [hereinafter Reporting of Recovered Memories]; Elizabeth Loftus & Katherine Ketcham, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse 75 (1994). See also Roberta L. Klatzky, Human Memory: Structure and Processes 2-9 (2d ed. 1980). People commonly recall little from the first five to seven years of life, and very infrequently anything before the age of two or three, principally because the brain has not matured sufficiently to assimilate and carry forward meaningful memories. E.g. Yapko, supra, at 77. See also Donald P. Spence, Narrative Truth and Putative Child Abuse, 42 Int’l J. Clinical & Experimental Hypnosis 289, 293-295 (1994).

Explicit, or declarative, memory refers to the ability to consciously recall events or facts. Memories of Sexual Abuse, supra, at 262. Implicit, or procedural, memory is behavioral knowledge of an experience without conscious recall. Examples of the latter are knowing how to ride a bicycle and a combat veteran’s feeling of panic upon hearing helicopters without remembering specifically the helicopter crash that killed a friend. Id. These two types of memory appear to be supported by different brain systems. Id. Some have posited that procedural memory may remain after declarative memory of the event that generated it has vanished. See Matthew H. Erdleyi, Repression, Reconstruction, and Defense: History and Integration of the Psychoanalytic and Experimented Frameworks, in Repression and Dissociation: Implications for Personality Theory, Psychopathology, and Health, 1, 16 (Jerome L. Singer ed. 1990) [hereinafter Repression and Dissociation]. Procedural memory could therefore play a role in tending to confirm or belie an accusation of abuse. The problem, of course, is that a certain type of procedural memory, like gagging, may indicate child abuse, but the fact that a person gags does not indicate why; it does not eliminate all other possible causes except abuse. Thus, procedural memories may be misinterpreted by a patient or therapist, and that misinterpretation may solidify into “truth”.

Memory is a multifarious, complex, usually reconstructive process. It does not retrieve information the way a video recorder or computer does. Everything sensed is not stored; recall of picture-perfect images is not automatic. A variety of social, psychological, and developmental factors commonly cause distortions at each stage of the process. Memories of Sexual Abuse, supra, at 262-263; Loftus & Ketcham, supra, at 3-5, 73-101; see also, e.g., Maryanne Garry & Elizabeth Loftus, Pseudomemories Without Hypnosis, 42 Int’l J. Clinical & Experimental Hypnosis 363 (1994). The real possibility of such distortions cannot be overlooked or minimized in determining what relation recalled memories bear to what really happened. See generally Richard J. Ofshe & Margaret T. Singer, Recovered-Memory Therapy and Robust Repression: Influence and Pseudomemories, 42 Int’l J. Clinical & Experimental Hypnosis 391, 397-398, 404-405 (1994).

Repression is the term used to describe unconscious forgetting of events that cause the individual pain. E.g., Campbell, supra, at 181-182; David S. Holmes, The Evidence for Repression: An Examination of Sixty Years of Research, in Repression and Dissociation 85, 85-86 (Jerome L. Singer ed. 1990); Elizabeth Loftus & Katherine Ketcham, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse 49-56 (1994). The terms “repression” and “dissociation”, however, have variable meanings, and different scholars and therapists may use them differently. Id,; George E. Vaillant, Repression in College Men Followed for Half a Century, in Repression and Dissociation: Implications for Personality Theory, Psychopathology, and Health 259, 259-260 (Jerome L. Singer ed. 1990). There is overwhelming consensus that repression exists. It differs from “simple forgetting”, but there is debate in the scientific community about the extent to which amnesia stems from repression or simple forgetting. See Erdelyi, supra, at 5-6. A number of theorists distinguish repression from suppression, which is the conscious forgetting of unpleasant thoughts or emotions. E.g. Vaillant, supra, at 262. With unconscious repression, a plaintiff may be said to be “blamelessly ignorant” of her amnesia. See generally Camille W. Cook & Pamela Kirkwood Millsaps, Redressing Wrongs of the Blamelessly Ignorant Survivor of Incest, 26 U. Richmond L.R. 1, 5 n. 20 (1991) (attributing the phrase to Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282 (1949)). On the other hand, a plaintiff who consciously suppresses memories of an event might not be as “ignorant”.

Some therapists believe that repressed material can be restored to consciousness if the anxiety associated with the memory is removed. See Yapko, supra, at 52-53, 84-87; Holmes, supra, in Repression and Dissociation at 86. This belief, of course, assumes that the material has not been “simply forgotten” or confabulated. In addition, since recalling is a constructive process, a host of defense mechanisms may distort images or feelings at that phase as well. Erdelyi, supra, at 22-26; Memories of Sexual Abuse, supra, at 263-264. One nineteenth-century psychologist cautioned of the dangers inherent in recall of partial memories:

Total forgetfulness is not serious; but partial forgetfulness is treacherous.... [W]e are liable to fill in from our imagination and disjointed fragments furnished by memory.... We unwittingly become creative artists....

P. Jessen, Versuch einer wissenschaftlichen Begründung der Psychologie (1855) (Hugh A. Erdelyi trans), quoted in Erdelyi, supra, at 20-21.

Because the second requirement for applying the discovery rule is an objectively verifiable wrong, the central determination that must be made is whether recovered memories meet this requirement. The question whether recovered memories are valid has elicited the most passionate debate among scholars and practitioners, and the consensus of professional organizations reviewing the debate is that there is no consensus on the truth or falsity of these memories. American Medical Ass’n, Council on Scientific Affairs, Report on Memories of Childhood Abuse 3:43-45 (1994), reprinted in 43 Int’l J. Clinical & Experimental Hypnosis 114, 116 (1995) [hereinafter Childhood Abuse] (“In short, empirical evidence can be cited for both sides of the argument. While virtually all would agree that memories are malleable and not necessarily fully accurate, there is no consensus about the extent or sources of this malleability. The issue is far from settled....”); Memories of Sexual Abuse, supra, at 262 (“It is not known how to distinguish, with complete accuracy, memories based on true events from those derived from other sources.”); id. at 263 (“It is not known what proportion of adults who report memories of sexual abuse were actually abused.... [T]here is no completely accurate way of determining the validity of reports in the absence'of corroborating information.”); Reporting of Recovered Memories, supra, § C.I. (“The available scientific and clinical evidence does not allow accurate, inaccurate, and fabricated memories to be distinguished in the absence of independent corroboration.”).

Recovered memories come to be regarded as true for a variety of reasons. Therapists who expect to find abuse often do. And because the therapist occupies a position of authority and trust with the patient, this “confirmatory bias” can lead to leading questions and other forms of suggestion. E.g., Yapko, supra at 45, 60 & 86 (19% of therapists surveyed knew of cases where it was highly likely that a victim’s trauma was somehow suggested by the therapist instead of by genuine experience). Some therapists may jump to conclusions and may fail to explore other causes for the memories. E.g., Reporting of Recovered Memories, Supra, § C.II; Loftus & Ketcham, supra, at 266; Spence, supra, at 295-296. Therapists also may interpret certain symptoms as indicating childhood sexual abuse, but those symptoms may be so general that they do not eliminate other possible ills.

In short, the preconceptions of the therapist, the suggestibility of the patient, the aleatory nature of memory recall, and the need to find a clear culprit for a diffuse set of symptoms may lead to false memories. Or they may not. Even assuming the reliability of all the studies and reports on the theory and techniques underlying recovered memory, the possibility of confabulation still exists. But it does not always occur. The point is this: the scientific community has not reached consensus on how to gauge the truth or falsity of “recovered” memories. E.g., Memories of Sexual Abuse, supra, at 263 (“While aspects of the alleged abuse situation, as well as the context in which the memories emerge, can contribute to the assessment, there is no completely accurate way of determining the validity of reports in the absence of corroborating information.”) To rely on memories alone for objective verification of abuse, this gauge is necessary. For purposes of applying the discovery rule, expert testimony on subjects about which there is no settled scientific view — indeed, not even a majority scientific view — cannot provide objective verification of abuse.

Professional organizations have recognized that the danger of confabulated memories is substantial enough to caution therapists of the danger of facilitating their creation. Reporting of Recovered Memories, supra, § C.II; Memories of Sexual Abuse, supra, at 263-264; Childhood Abuse, supra, at 4 (“The AMA considers recovered memories of childhood sexual abuse to be of uncertain authenticity, which should be subject to external verification”). These organizations have also asked therapists to recognize a difference between the truth that emerges from therapy and the truth that obtains in a court of law. Reporting of Recovered Memories, supra, § C.II.

The expert testimony in this case, from qualified, competent therapists, shows the pitfalls of recalled memory therapy and the difficulties in using the results of such therapy as objective verification of abuse. Before she entered therapy, R. had no memories of abuse. She recovered her memories with Frazier, a licensed therapist who was not a specialist in memory. Some of Frazier’s views may have influenced R.: Frazier had never had a patient make an untrue allegation of childhood sexual abuse, did not know of an instance when anyone had made such an untrue allegation, and did not think it could happen; she felt it was not her role to question the veracity of R.’s memories; she accepted the idea that R. could recover memories from around age three; and she had already found that R.’s mother had been the victim of childhood sexual abuse. The American Psychiatric Association has recognized clinicians’ need to guard against their own possible preconceptions:

Psychiatrists should maintain an empathic, non-judgmental, neutral stance towards reported memories of sexual abuse.... [C]are must be taken to avoid prejudging the cause of the patient’s difficulties, or the veracity of the patient’s reports. A strong prior belief by the psychiatrist that sexual abuse, or other factors, are or are not the cause of the patient’s problems is likely to interfere with appropriate assessment and treatment.

Memories of Sexual Abuse, supra, at 263.

In addition to Frazier’s possible confirmatory bias, her technique to recover memories may have increased R.’s suggestibility. Frazier had R. relax and recount whatever came into her head, a technique she described as similar to hypnosis. She also used what she called “guided imagery”, reading aloud fragments R. had written down earlier and having R. fill in other recollections. Both hypnosis and guided, leading questioning have been criticized as oversuggestive. E.g. Yapko, supra, at 96-98. See also Loftus & Ketcham, supra, at 73-101; Maryanne Garry & Elizabeth Loftus, Pseudomemories Without Hypnosis, 42 Int’l J. Clinical & Experimental Hypnosis 363 (1994). Frazier’s interpretation of various events may have also stemmed from a “confirmation bias”. R.’s first dream involved a faceless man; this man never got a face. R.’s procedural memory, gagging, did not of itself point to having been forced to perform oral sex. The record does not show that other possible causes were sufficiently explored. Other possible influences on or sources of R.’s recovered memories include: B.’s detailing of her own abuse, R.’s research on incest, her anger with her father, and Frazier’s comment that R.’s relationship with a boyfriend “sounded like incest” to her.

We do not mean to discount Frazier’s testimony. It may be that her treatment and diagnosis of R. were flawless. Certainly, there is much scientific evidence, both in the record of this case and in psychological literature, to support R.’s position. Three experts, two of whom at least were initially neutral about or skeptical of her stories, concluded without doubt that she was telling the truth. Her physical symptoms, while not proof positive of abuse, were at least consistent with it. Yet they were equally consistent with other causes. Had R. brought suit against S. before she turned twenty, the conflict in the evidence would be for the jury to resolve. Because she did not, however, and because she thus relies on the discovery rule, the evidence must rise to a higher level of certainty. The point is, the area of science in which the experts at trial work can at present neither confirm nor negate their opinions. Two of the experts who testified for R. acknowledged this fact.

In addition, post-traumatic stress disorder, from which R. suffered, presupposes “an event outside the range of usual human experience that would be markedly distressing to almost anyone.” American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders [hereinafter Manual of Mental Disorders] § 309.81, at 424-429 (4th Ed.1994). Obviously, a PTSD diagnosis cannot establish the occurrence of a trauma that it presupposes. Even if a diagnosis of PTSD were some indication that a trauma occurred, it could not indicate what kind of trauma occurred, and more importantly, who caused it. See generally Alan A. Stone, Post-Traumatic Stress Disorder and the Law: Critical Review of the New Frontier, 21 Bull.Am.Acad.Psychiatry & L. 23 (1993). PTSD’s paradoxical symptomatology cannot provide objective verification of an injury because its symptoms include both avoidance behavior (active or unconscious repression of memories) and re-experiencing criteria (flashbacks). See Manual of Mental Disorders, supra, § 309.81, at 424-425, 428. Thus, the PTSD diagnosis of itself indicates that a patient could suffer from both too much and not enough memory of a trauma. The editors of the Manual of Mental Disorders caution that when its criteria, categories, and textual descriptions are used for forensic purposes, they carry significant risks of misuse or misunderstanding: “These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis.” Id. at xxiii. As to the more specific use of trying to attribute a certain disorder to a specific cause, the Manual of Mental Disorders advises: “Nonclinical decision makers should also be cautioned that a diagnosis does not carry any necessary implications regarding the causes of the individual’s mental disorder or its associated impairments. Inclusion of a disorder in the Classification (as in medicine generally) does not require that there be knowledge about its etiology.” Id.

In sum, the literature on repression and recovered memory syndrome establishes that fundamental theoretical and practical issues remain to be resolved. These issues include the extent to which experimental psychological theories of amnesia apply to psychotherapy, the effect of repression on memory, the effect of screening devices in recall, the effect of suggestibility, the difference between forensic and therapeutic truth, and the extent to which memory restoration techniques lead to credible memories or confabulations. Opinions in this area simply cannot meet the “objective verifiability5’ element for extending the discovery rule.

y

As the court of appeals observed in L.C., other states are divided over whether to apply the discovery rule in childhood sexual abuse eases. The easelaw of other jurisdictions is a confusing patchwork that does not seem to indicate any overwhelming trend.

Some courts have applied the rule when plaintiff alleges repression of the memory of abuse or resulting injury. See Farris v. Compton, 652 A.2d 49, 63-64 (D.C.1994); Callahan v. State, 464 N.W.2d 268, 273 (Iowa 1990); McCollum v. D’Arcy, 138 N.H. 285, 638 A.2d 797, 799-800 (1994); Osland v. Osland, 442 N.W.2d 907, 909 (N.D.1989); Ault v. Jasko, 70 Ohio St.3d 114, 637 N.E.2d 870, 873 (1994); Olsen v. Hooley, 865 P.2d 1345, 1349-1850 (Utah 1993); Simmons v. United States, 805 F.2d 1363, 1368 (9th Cir.1986) (applying federal law); Ulibarri v. Gerstenberger, 178 Ariz. 151, 871 P.2d 698, 705 (Ct.App.1993); Mary D. v. John D., 264 Cal.Rptr. 633, 639 (Ct.App.1989), review dism’d, 275 Cal.Rptr. 380, 800 P.2d 858 (1990); Phillips v. Johnson, 231 Ill.App.3d 890, 174 Ill.Dec. 458, 461, 599 N.E.2d 4, 7 (1992); Franke v. Geyer, 209 Ill.App.3d 1009, 154 Ill.Dec. 710, 712, 568 N.E.2d 931, 933 (1991); Hammer v. Hammer, 142 Wis.2d 257, 418 N.W.2d 23, 25-26 (Ct.App.1987), review denied, 144 Wis.2d 953, 428 N.W.2d 552 (1988); Johnson v. Johnson, 701 F.Supp. 1363, 1370 (N.D.Ill.1988) (applying Illinois law).

A few states have refused to apply the discovery rule when the plaintiff did not repress memories of the abuse when it occurred, but did not realize that the abuse was injurious, or did not appreciate the extent of injury, or could not take action because of the psychological effects of the abuse, or simply waited. See E.W. v. D.C.H., 231 Mont. 481, 754 P.2d 817, 819-820 (1988) (superseded by statute as noted in Cosgriffe v. Cosgriffe, 262 Mont. 175, 864 P.2d 776, 780 (1993); Lovelace v. Keohane, 831 P.2d 624, 632 (Okla.1992); Doe v. R.D., 308 S.C. 139, 417 S.E.2d 541, 542 (1992); O’Neal v. Division of Family Servs., 821 P.2d 1139, 1145 (Utah 1991); Cassidy v. Smith, 817 P.2d 555, 558 (Colo.Ct.App.1991); Franke v. Geyer, 209 Ill.App.3d 1009, 154 Ill.Dec. 710, 712, 568 N.E.2d 931, 933 (1991); E.J.M. v. Archdiocese of Philadelphia, 424 Pa.Super. 449, 622 A.2d 1388, 1394 (1993); Schmidt v. Bishop, 779 F.Supp. 321, 330 (S.D.N.Y.1991) (applying New York law).

Some courts have refused to apply the discovery rule even if the plaintiff repressed all memory of the event. See Lemmerman v. Fealk, 449 Mich. 56, 534 N.W.2d 695, 703 (1995); Shippen v. Parrott, 506 N.W.2d 82, 85-86 (S.D.1993) (legislation prohibits discovery rule); Tyson v. Tyson, 107 Wash.2d 72, 727 P.2d 226, 230 (1986) (partially superseded by statute as stated in North Coast Air Servs., Ltd. v. Grumman Corp., 111 Wash.2d 315, 759 P.2d 405, 409 (1988)); Lindabury v. Lindabury, 552 So.2d 1117, 1118 (Fla.Dist.Ct.App.1989) (per curiam), cause dism’d as untimely filed, 560 So.2d 233 (Fla.1990); Baity v. Lewis, 763 F.Supp. 802, 810 (E.D.Pa.) (applying Pennsylvania law), aff'd, 950 F.2d 721 (3d Cir.1991).

Compounding the difficulty of ascertaining any convincing trend in the easelaw is the effect of statutes. At the time many of these cases were pending, state legislatures had already enacted legislative discovery rules specifically covering childhood sexual abuse cases. Callahan, 464 N.W.2d at 272; Olsen, 865 P.2d at 1348 n. 2 (woman filing before statute’s effective date claimed sexual abuse by adoptive father and sibling had memories triggered by adoptive brother’s admission to mental institution for abusing his own daughter; held discovery rule delays accrual but requiring plaintiff on remand to corroborate allegations of abuse with, for example, contemporaneous physical manifestations of the abuse or evidence that a defendant committed similar acts against others); D.P. v. M.J.O., 266 Ill.App.3d 1029, 203 Ill.Dec. 950, 953-955, 640 N.E.2d 1323, 1326-1328 (1994); Phillips, 174 Ill.Dec. at 461, 599 N.E.2d at 7. Legislative enactments have been taken to be strong evidence of the public policy of the forum. See Callahan, 464 N.W.2d at 272 (“Iowa Code § 614.8A [implementing the discovery rule] is not involved in this case, but it evidences a strong public policy that, we believe, is relevant in determining whether adoption of the discovery rule is compatible with other legislation such as [the Iowa tort claims statute].”); see also Shippen, 506 N.W.2d at 85 (refusing to apply the discovery rule because the legislature had considered and rejected it). We also note that several state court rulings on the discovery rule have been superseded by statutes. E.g., E.W., 754 P.2d at 819-820 (superseded by statute as noted in Cosgriffe, 864 P.2d at 780; Tyson, 727 P.2d at 230 (partially superseded by statute as stated in North Coast Air Servs., 759 P.2d at 409).

In sum, any trend in state easelaw is simply too small, contradictory and intermixed with legislative initiative to provide clear guidance as to the rule a court should adopt.

Legislatures have been far more active than courts in addressing the problem. Though fewer than fifteen state supreme courts have addressed the problem of limitations and childhood sexual abuse, since the mid-1980s, over half of the state legislatures have enacted or amended statutes of limitations to specifically address the problem of childhood sexual abuse claims. See Alaska Stat. § 09.10.140 (1994); Ark.Code Ann. § 16-56-130 (Michie Supp.1995); Cal.Civ.Proc.Code § 340.1 (West Supp.1996); Colo.Rev.Stat.Ann. § 13-80-103.7 (West Supp. 1995); Conn.Gen.Stat.Ann. § 52-577d (West 1991); Ga.Code Ann. § 9-3-33.1 (Michie Supp.1995); Ill.Ann.Stat. ch. 735, para. 513-202.2 (Smith-Hurd 1992); Iowa Code Ann. § 614.8A (West Supp.1995); Kan.StatAnn. § 60-523 (1994); Me.Rev.Stat.Ann. tit. 14, § 752-C (West Supp.1995); Mass.Gen.Law Ann. ch. 260, § 4C (West Supp.1995); Minn.Stat.Ann. § 541.073 (West Supp.1996); Mo.Ann.Stat. § 537.046 (Vernon Supp.1996); Mont.Code Ann. § 27-2-216 (1995); Nev.Rev.Stat. § 11.215 (1993); N.J.Stat.Ann. 2A:61B-1 (West Supp.1995); N.M.Stat.Ann. § 37-1-30, as amended by Act of Apr. 5, 1995, 1995 N.M.Laws 626; Okla.Stat.Ann. tit. 12, § 95 (West Supp.1996); Or.Rev.Stat. § 12.117 (1995); R.I.Gen.Laws § 9-1-51 (Michie Supp.1995); S.D.Codified Laws § 26-10-25 (1992); Utah Code Ann. § 78-12-25.1 (Michie Supp.1995); Vt.Stat.Ann. tit. 12, § 522 (Michie Supp.1995); Va.Code Ann. § 8.01-249 (Michie Supp.1995); Wash.Rev. Code Ann. § 4.16.340 (West Supp.1996); Wyo.Stat. § 1-3-105(b) (Michie Supp.1995).

Statutory solutions have not always consisted of merely adopting the discovery rule. Essentially, there are two generations of statutes addressing the problem of delayed accrual for childhood sexual abuse cases. The first generation simply adopted the discovery rule or extended the statute of limitations for some fixed, extended period after the minor reached majority. E.g. Alaska Stat. § 09.10.140 (three years after discovery); Ga.Code Ann. § 9-3-33.1 (five years after majority). The second generation of statutes, including amendments to existing statutes, is more complex and gives greater weight to avoiding the danger of possibly fraudulent claims. For example, in 1986 the California Legislature adopted the discovery rule for childhood sexual abuse. Later amendments to the statute require “certificates of merit” for plaintiffs 26 years or older. These certificates of merit must be executed by the plaintiff’s attorney and a licensed mental health practitioner. The attorney must state that he has reviewed the facts of the case with at least one licensed mental health practitioner, who is not a party to the litigation, and that on the basis of this review and consultation, there is reasonable and meritorious cause to file the action. Cal.Civ.Proc.Code § 340.1(e)(1). The mental health practitioner must state that he is licensed in California, is not treating or has not treated the plaintiff, has interviewed the plaintiff, and on the basis of that interview has concluded the plaintiff was subject to childhood sexual abuse. Later amendments to California’s Section 340.1 require greater protection of the defendant’s identity. Cal.Civ.Proc.Code § 340.1(k)(1) (West Supp.1996). In the same vein, Colorado’s statute, amended in 1993, requires that persons who claim psychological inability to acknowledge the abuse must prove both the disability and that the harm occurred. Colo.Rev.Stat.Ann. § 13-80-103.7; see also N.M.Stat.Ann. § 37-1-30(A)(2) (claim must be corroborated by “competent medical or psychological testimony”); Okla.Stat.Ann. tit. 12, § 95(6) (requiring “objective verifiable evidence [that] should include both proof that the victim had psychologically repressed the memory of the facts upon which that claim was predicated and that there was corroborating evidence that the sexual abuse ... actually occurred”).

This newly-emerging complexity of legislation indicates that categorically adopting or rejecting the discovery rule does not address the welter of public policies surrounding late-filed childhood sexual abuse claims. The second generation of statutes shows that legislatures do not uniformly see simple adoption of the discovery rule in such cases as viable. Legislatures have begun to strike a more complex balance between the risk of cutting off meritorious claims and the dangers of fraudulent claims.

The Texas Legislature entered this area just last year, enacting a special statute of limitations for civil actions for sexual abuse which extends the period for filing suit from two years to five years. However, the new limitations period, like the old one, begins on the day the cause of action accrues. The Legislature did not define accrual for purposes of the new statute, although it certainly could have done so, just as it could have chosen a different starting date altogether. It could also have prescribed application of the discovery rule as it has done in other statutes. E.g., Tex.Bus. & Com.Code § 17.565 (“All actions brought under [the Deceptive Trade Practices-Consumer Protection Act, id. §§ 17.41-.63] must be commenced within two years after the date on which the false, misleading, or deceptive act or practice occurred or within two years after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice.”) It did not do so, just as it has not done so in criminal sexual abuse eases. Tex.Code Crim.Proc. arts. 12.01(2)(D) & 12.03 (criminal action must be brought within ten years from the date of the commission of the offense). We must assume that the Legislature did not intend for sexual abuse cases to be treated differently from any other case in applying the discovery rule. The Legislature is in the best position to determine and accommodate the complex and conflicting policies involved in determining an appropriate limitations period, and it has done so.

YI

We are constrained to respond briefly to the dissenting opinion and the concurring opinions.

A

The dissent opens declaring, “There are no simple answers”, post at 28, and then proceeds to suggest one: the discovery rule should be applied whenever there is “direct testimony from the victim, supported by the opinions of reputable, experienced specialists that [the victim] has been sexually abused and that she exhibits traits and behavior associated with sexual abuse.” Post at 37. In other words, no claim of sexual abuse should be barred by limitations as long as a competent expert thinks it may have merit. Were this the rule, few claims of sexual abuse would ever be barred by limitations. The claim in L.C. would not be barred, even though plaintiff filed suit when she was 34 years old, 25 years after the last alleged occurrence of abuse. Claims in divorce cases, like the one in the present case, would never be barred, adding to the acrimony in such cases. The dissent is “concerned that statutes of limitations ... have been steadily eroded by doctrines such as ... the discovery rule”, post at 40, but nevertheless advocates a rule that would practically exempt sexual abuse claims from any statute of limitations. As the dissent states, “if ‘repressed’ memory can support a verdict in a suit brought before the victim reaches the age of twenty, there is no basis for denying the applicability of the discovery rule in cases where repressed memory is recalled after the age of twenty.” No basis, ever. Post at 29.

In the dissent’s view, the traditional purposes served by limitations do not reach sexual abuse cases. Repose would be an injustice:

I am not persuaded, however, that the defendant’s interest in repose should carry the day in the context of childhood sexual abuse because of the degree of culpability associated with the defendant’s actions, because it is the defendant’s actions that have led to the delay, and because of the lifelong effects of abuse on the victim.

Post at 33. This, of course, assumes that all defendants are guilty. Some are not. Limitations always bars some valid claims, but this is the price of repose. If limitations applied only to claims which cannot be proved, it would serve no purpose at all. The danger of stale or fraudulent claims is also unimportant for the dissent because “the evidence in childhood sexual abuse cases often will not be ‘fresh’ even if the case is brought within the statutory period.” Post at 33. The dissent sees no significant difference in evidence a few years old and evidence a few decades old.

If the same rule the dissent urges were extended to other types of claims, as it surely should be unless there is some reason to limit its application, the principles that support statutes of limitations would be significantly impaired. It is clear, however, that the dissent has no such intention. In Computer Associates, also decided today, the dissenting Justice agrees that the discovery rule should not apply in trade secret cases. This suggests that the dissent contemplates a special limitations jurisprudence unique to sexual abuse cases.

The dissent contends that its conclusion is compelled by decisions of this Court with which it does not agree but which it must nevertheless follow. Post at 32. We do not read the cases cited to provide support to the dissent’s argument. Willis v. Maverick, 760 S.W.2d at 642, which we have discussed above, did apply the discovery rule in a legal malpractice case, but that case met both discovery role standards of inherent undis-cover ability and objective verifiability. The Court did not find the reasoning of Robinson convincing in the circumstances presented in Willis, but it certainly did not disapprove or overrule Robinson.

While we recognize that language in some of our opinions can be read to justify use of the discovery rule in a broad range of circumstances, none of our cases requires such a result. The discovery rule is an exception, and a narrow one at that. We do not agree with the dissent that past inconsistencies doom us to perpetual inconsistency. In this case and in Computer Associates we have attempted to formulate a principle for applying the discovery rule that will make future decisions more consistent. The dissent argues that the two elements we have identified for applying the discovery rule should not be “a hard and fast rule”, and that “other factors” should be considered. Post at 32. Yet the dissent makes no effort to identify these factors or formulate a discovery rule that incorporates them.

In essence, the dissent’s position is that if there are to be any exceptions to the legal injury rule, sexual abuse cases must be among them. But sexual abuse cases are subject to the same rules that apply in other cases. We have used the discovery rule in eases alleging a breach of fiduciary duty, but as in other discovery rule cases the injury must be objectively verifiable. Willis, 760 S.W.2d at 643 (attorney’s error apparent in divorce decree); Slay, 187 S.W.2d at 385-387 (paper trail detañed self-dealing). R.’s father owed her a fiduciary duty, see Thigpen v. Locke, 363 S.W.2d at 253, at least as long as she remained a minor, and because of that relationship S.’s abuse may have been inherently undiscoverable. The dissent states: “The Court agrees that S. owed a fiduciary duty to R., but concludes that this is immaterial since she was not ‘misled’. Post at 34. We conclude no such thing. The discovery rule does not apply in this case, not because R. was not misled, but because she cannot satisfy the objective verifiability element of the rule.

The dissent argues that “policy reasons” warrant use of the discovery rule in this case, just as in Sanchez v. Hastings, 898 S.W.2d 287 (Tex.1995) (per curiam). Sanchez did not involve application of the discovery rule at all; rather, the issue there, as the dissent notes, was whether the running of limitations should be tolled. In Sanchez, as in Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex.1991), we held that limitations on a claim of legal malpractice in the conduct of litigation is tolled until the litigation is finished “based in part on the policy that a client should not be forced to take inconsistent positions.” Sanchez, 898 S.W.2d at 288. There was no argument the claim accrued at any time other than when legal injury occurred. The “policy" referred to was not simply an expression of judicial preference but a recognition of the practical impossibility of requiring a client to argue in one proceeding that his attorney acted properly and in a contemporaneous proceeding that his attorney was negligent. The legal policies underlying the discovery rule are encompassed in the principle requiring that a claim be inherently undiseoverable and objectively verifiable. By contrast, the amorphous “policy reasons” invoked by the dissent do not appear to be grounded in anything other than one judge’s personal views.

The dissent argues that the Court should not require objective verifiability of the injury in this case because it does not impose the same requirement in cases of fraud and fraudulent concealment. While the injuries in the two cases the dissent cites, Borderlon, 661 S.W.2d at 908 (surgical needle left in patient’s intestines later removed), and Kelley, 532 S.W.2d at 949 (false credit report), plainly met the objectively verifiable requirement, we need not decide here whether that requirement applies in fraud and fraudulent concealment cases. R. has not pleaded fraud or fraudulent concealment. Even if repressed memory eases are like fraud, as the dissent argues, because the wrongdoer’s conduct makes evidence unavailable to the victim, post at 35, these similarities do not warrant waiving the objective verifiability requirement. The uncertainties in such cases require that injuries be objectively verifiable before the discovery rule is applied, just as in other cases.

The dissent argues that an objectively verifiable injury is not required in fraud and fraudulent concealment cases because of “the degree of culpability associated with the defendant’s conduct”, post at 36, and that no conduct is more reprehensible than sexual abuse of a child. While we deplore sexual abuse as much as the dissent, we are unable to find support in our decisions for the idea that the discovery rule should apply whenever the conduct complained of is especially egregious. The dissent states, “Obviously, it has been a factor.” Post at 36. Yet no authority is cited. In Computer Associates we did not list egregiousness of alleged conduct as a factor governing application of the discovery rule because it cannot provide a workable standard. What seems egregious varies from time to time and person to person; judges have no special qualifications to make such determinations.

The dissent argues: “The wrong and the injury inflicted on R.V. was by its very nature unknown to her through no fault of her own. Nevertheless, the Court declines to apply its own rationale in this ease.” Post at 30-31. This is not true. We have assumed that R.’s injury was inherently undiseovera-ble. The dissent refuses to contend with the fact that R. cannot demonstrate an objectively verifiable injury. The dissent also argues: “The Court cannot have it both ways. If the injuries are obvious, ... they cannot be ‘inherently undiseoverable’.” Post at 32. Actually, they can be. In Borderlon, to pick an obvious example, a surgical needle left in a patient’s intestines cannot readily be seen or detected and is thus inherently undiseovera-ble, but when the needle is found and removed, the fact that it was left there during surgery becomes indisputable.

The essence of the dissent’s position is that “[t]he perpetrator of childhood sexual abuse should not obtain the relief of knowing that after two years have passed, the victim cannot seek to hold him or her accountable in a court of law for an intentional tort absent ‘corroboration’.” Post at 33. The flaw here — which pervades the dissent’s position — lies in the presumption that the defendant in a lawsuit is a perpetrator of abuse. The issue is not whether limitations should bar a sexual abuse claim assuming it is valid; the issue is whether limitations should bar such claim, as it would any other, irrespective of whether it is valid. The more certain it is that wrong has occurred, the more reason there is to apply the discovery rule. That is the objective verifiability standard. There is far less reason to believe that R.’s father abused her than there is that the defendant in Computer Associates misappropriated trade secrets, or that the defendant in Gaddis left a surgical sponge in plaintiffs body. Had R. asserted her claim within the period prescribed by the Legislature, she would have been entitled to prosecute her claim despite any weaknesses in her proof. Because she did not do so, greater verifiability is necessary at the threshold for invocation of the discovery rule.

In sum, while we agree that today’s decision should follow precedent as closely as possible, we have also tried, as in Computer Associates, to bring more consistency to this area of the law. The dissent’s baseless insinuation that our decision today would impair rape prosecutions, post at 32, is empty rhetoric. Requiring objective verifiability for application of the discovery rule in civil cases is plainly unrelated to prosecutions for the crime of rape. Today’s decision reiterates that exceptions to the legal injury rule should be few and narrowly drawn — a principle that the dissent endorses in every case but this one. The Court does not single out sexual abuse cases for special treatment; the dissent does. Today’s decision follows, and is consistent with, our prior decisions.

B

The concurring opinions take up the debate over the admissibility of scientific evidence where E.I. du Pont de Nemours and Company v. Robinson, 923 S.W.2d 549 (Tex.1995), left off. Justice Gonzalez favors the rule in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), adopted in Texas in du Pont, which requires a determination of the reliability of expert opinion before it is admitted in an effort to exclude what has come to be called “junk science”. Justice Comyn opposes assessing experts’ reliability, considering this to be a “usurpation of the jury’s historic role as the exclusive judge of the credibility of a witness.” Post at 41 (Comyn, J., concurring).

The issue is simply not in this case. None of the parties has ever raised it. We intimate no view on whether the evidence in this case was or was not admissible, and nothing we have written suggests the answer to that question, “obliquely”, to use Justice Comyn’s word, post at 40, or otherwise. Evidence can be reliable and still not provide objective verification of an injury. An example is Robinson v. Weaver, 550 S.W.2d at 22, where a medical expert could have testified that a back injury had been misdiagnosed, but there was no way to objectively verify the “expert hindsight”. By the same token, an injury can be objectively verified though evidence of causation is unreliable. An example is du Pont itself, where the damage to plaintiffs’ pecan trees was undeniable, but the trial court held that the expert testimony on causation was unreliable and therefore inadmissible.

The concurring Justices’ ongoing debate is simply out of place in this case. Much as they try to enlist this case in their war, it owes no allegiance to either side. This case does not speak to whether expert testimony about repressed memories is ever admissible or inadmissible, contrary to what Justice Gonzalez and Justice Comyn appear to believe, and it does not make the demise of the rule in du Pont an “inevitability”, as Justice Cornyn hopes. The inevitability is their refusal to lay down arms off the battlefield.

VII

Accordingly, we conclude that the discovery rule does not apply in this ease. R. argues in this Court that the Open Courts provision of the Texas Constitution, Tex. Const, art. I, § 13, requires application of the discovery rule. We do not address this argument because it was not made in the trial court. City of San Antonio v. Schautteet, 706 S.W.2d 103, 104-105 (Tex.1986) (per curiam) (holding that Open Courts argument not made in the trial court cannot be made on appeal).

We do not, of course, impose any additional requirements on proof of a childhood sexual abuse case brought within the applicable limitations period. The objective verifiability requirement of the discovery rule does not apply in proving the case on the merits.

Nor are we insensitive to the terrible wrong of childhood sexual abuse and the strong public policies condemning it as reflected in the criminal statutes. False accusations of abuse are equally devastating to families, however. As several state legislatures have already realized, the law must approach these difficult cases with an appreciation of all the interests affected. We believe the best approach is to apply the discovery rule in the same manner that we have applied it today in Computer Associates and would apply it in any other case.

The judgment of the court of appeals is reversed and the judgment of the district court is affirmed.

GONZALEZ and CORNYN, JJ., concur. OWEN, J., dissents.

1 . There is no cause of action in Texas for negligent infliction of mental anguish. Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex.1993).