COMMENTARY
Bloom & Buell's

THE BIG STRETCH

Ever since Galileo spent some serious time in the slammer for claiming that the sun was the center of our solar system, and probably for a long time before that, the courts have had no trouble embracing highly dubious science if to do so advanced the courts' idea of what was right and just.  Hence, it should have come as no surprise to us that the courts latched on to the highly controversial psychological theory of "repressed memories" in their efforts to drive the final stake into the heart of the Statute of Limitations.  However, get ready for another slide down the slippery slope as we confront "repressed consciousness of causal connection."

It all started out so innocently when one court, and then another and another, ruled that the Statute of Limitations did not begin to run until a person who had a surgical instrument or a sponge left inside actually began to feel some symptoms or otherwise sense the offending object.  Here in Massachusetts, the "discovery rule" made its entrance onto the stage in a suit against a title attorney by someone who tried to convey what turned out to be questionable title, years after the title search.  After all, who could see any harm in tucking it to an attorney?  Only later did the "discovery rule" slide over into medicine.  OK, so there we were.  Then, with the camel's nose in the tent, a barrage of lawsuits began to try to force the other end of the camel under the canvas in the form of "repressed memories" of abuse of one kind or another.  Despite the fact that many in the mental health field found the sudden ubiquitousness of repressed memories hard to support scientifically, the courts opened their arms to the theory, and therapists (and their employers) found themselves trying to locate twenty-five years of records, and do some stretching of their own memories, to defend against claims such as these.  This lucrative little theory has now slid over into matters of an ecclesiastical nature, as bishops and elders try to prove that they were unaware of certain proclivities of some of their clergy decades after the fact. 

Now, however, we get to the last straw (or, at least, I hope it's the last straw).  What about the poor bereft claimants about whom there is ample proof that their memories were not suppressed?  The benighted bishop in a recent case actually thought he had a defense when it became amply apparent that the claimant had had a clear memory all along of all the events so many years ago, yet had not sued until now.  Well, the court wasted no time in disabusing the bishop of any notion that he might be allowed a statue of limitations defense in that set of circumstances.  After all, the claimant and her therapist both proclaimed that the claimant had just overcome "repressed consciousness of the causal connection" between the abuse and all of the psychic injuries she has been suffering over the years. ("Oh, so that's why I've been in therapy so long!"  This despite the fact that her parents discovered the abuse and told her she was wronged.  Who listens to parents, after all?)  So, we have now gone from "repressed memories" to "repressed consciousness of causal connection".  Are you following this?  At this point, we might suggest that the question of the Statute of Limitations be taken away from judges and juries and ruled upon by a panel of therapists.  Sure, they might have some problems in commercial litigation, say Xerox vs. IBM, but who knows, maybe those patent suits were delayed by an executive's inability to cope with a suddenly realized awareness that his golden parachute was smaller than the other guy's.  We might get whole new insights into the law from such a switch, and why should such a rich harvest be limited to health professionals, clergy, and their employers?  Maybe everyone should have the benefits!

Seriously, though, those of us who have the formidable task of defending these ancient claims are becoming increasingly aware that, for a successful defense, we are required in each case to establish early on a "teaching expert" relationship with one of the mental health professionals who still has a healthy respect for the scientific method and a corresponding skeptical eye towards rampant "repressed" memories and awareness.  Such professionals are willing to come on board and assist the defense team in holding these "repressed" memories and awarenesses up to the critical light of diagnostic standards.  A decent body of literature is beginning to appear, and it exposes these litigants for what they are, in large part.  One of the linchpins in each of these cases is the teaching support and expert opinions of well-credentialed professionals, retained much earlier than is the case in many other types of litigation.  Here at the office, we are getting to know many of them by first name, which, I suppose, is a sad commentary on the growing volume of this litigation.