Doe v. Archdiocese of Saint Paul & Minneapolis

ANDERSON, PAUL H., Justice,

dissenting.

I respectfully dissent. Unlike the majority, I would affirm the court of appeals’ holding that the district court erred when it (1) used our Frye-Mack standard to exclude plaintiffs expert testimony on repressed-memory theory, and (2) granted summary judgment in favor of the defendant religious organizations. I would hold that in this action based on alleged child sexual abuse, the admissibility of expert testimony regarding repressed-memory theory must be determined under the relevant provisions of Rule 702 of the Minnesota Rules of Evidence.

I reach the conclusion that Frye-Mack is not the proper standard here because we have said that the Frye-Mack standard does not apply to all questions involving scientific evidence. See State v. MacLennan, 702 N.W.2d 219, 230-31 (Minn.2005). More specifically, we have said that our Frye-Mack standard only applies to evidence based on “emerging scientific techniques.” Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 528 (Minn.2007) (stating that “the technique of using trained dogs to detect drug odors is neither emerging nor scientific”). Unlike the majority, I conclude that the expert testimony that John Doe seeks to have admitted here does not fit comfortably within the parameters of the type of evidence we have held is governed by our Frye-Mack standard, i.e., expert evidence based on emerging scientific techniques.

Rather, I conclude that the admissibility analysis of John Doe’s proffered expert testimony on repressed memory theory fits much more naturally within the ambit of Rule 702. Under a Rule 702 analysis, expert testimony is admissible if it will assist the trier of fact to understand the evidence or determine facts at issue and has foundational reliability. John Doe asserts that his proffered expert testimony meets both the foundational reliability and helpfulness mandates of Rule 702. I agree with the underlying premise of Doe’s assertion. Doe has made a sufficient show*174ing such that he is entitled to have the district court make a determination whether his proffered testimony meets the foregoing relevant provisions of Rule 702. Further, I conclude that because there may be a genuine issue of material fact as to when John Doe became aware of his memory that Father Thomas Adamson may have sexually abused him, the district court erred when it used the statute of limitations as the grounds upon which to grant summary judgment in favor of the defendant religious organizations.

On April 24, 2006, plaintiff John Doe commenced this action for negligence and fraud against the defendant religious organizations — the Archdiocese of Saint Paul & Minneapolis and the Diocese of Winona. In his action, John Doe alleges that the defendant religious organizations were negligent in allowing Father Thomas Adamson, a priest whom they supervised and controlled, to sexually molest him. Doe also alleges that the defendant religious organizations fraudulently concealed and intentionally failed to disclose that Father Adamson was a child molester.

The story that provides the backdrop to John Doe’s action overflows with tragedy, sorrow, and pathos. It also presents a profoundly sad tale about how the leadership of the defendant religious organizations failed to fulfill their responsibility to act in an appropriate manner to adequately protect vulnerable young children and adolescents entrusted to their care. Those in leadership positions within the defendant religious organizations failed to act in a manner that would provide sufficient protection of the health, welfare, and safety of these children and adolescents.

More specifically, the record before us demonstrates that it is beyond dispute that Father Adamson had a long history of sexually molesting children. It is well established that between the early 1960s and the 1990s, Father Adamson molested several children who were members of parishes where he served as a priest. It is also beyond dispute that the defendant religious organizations knew that Father Adamson molested children entrusted to their care. The record shows that the defendant religious organizations received reports that Father Adamson was molesting children; and, in fact, Father Adamson admitted to certain persons in leadership positions within the defendant religious organizations that he had been a party to several separate indecent incidents with young boys who were members of his parishes.

While the defendant religious organizations did in 1974 and 1981 refer Father Adamson to medical facilities for treatment of his condition, it is also beyond dispute that they did not make Father Adamson’s history of sexually molesting children public before the mid-1980s. More problematic is the defendant religious organizations’ response to the situation once they knew that Father Adamson was molesting children entrusted to their care. The defendant religious organizations’ long-term and recurring response was to transfer Father Adamson to a different parish.

John Doe belonged to one of those different parishes to which Father Adamson was reassigned after the defendant religious organizations received reports that Father Adamson was sexually molesting children in the parish to which he was assigned. More specifically, in February 1981, after approximately 1 month of treatment at a hospital, Father Adamson was assigned to John Doe’s parish — Church of the Risen Savior in Burnsville, Minnesota. It was during the time period when Father Adamson was assigned to Risen Savior parish that the acts of child abuse involving John Doe allegedly occurred.

*175While the facts in the story that provides the backdrop to John Doe’s action are generally beyond dispute, what is in dispute is whether Father Adamson sexually molested John Doe while serving as Doe’s parish priest at Risen Savior. Doe alleges that Father Adamson sexually molested him on four occasions in 1980 or 1981. Doe claims that at some unspecified time after those incidents he repressed his memories of the alleged sexual abuse. Doe asserts that it was not until the summer of 2002 that he recovered some memory of these incidents and sought therapy from mental health professionals. He alleges that this therapy enabled him to more fully recover the memories of sexual abuse by Father Adamson that he had previously repressed. Doe commenced this action only after he allegedly recovered his memory of these alleged acts of sexual abuse.

The timing of the alleged recovery of Doe’s memory is very important here because the parties agree that the statute of limitations applicable to Doe’s negligence-based claims is Minn.Stat. § 541.073 (2010). Section 541.073 provides that an action for damages based on personal injury caused by sexual abuse or negligently permitting sexual abuse “must be commenced within six years of the time the plaintiff knew of or had reason to know that the injury was caused by the sexual abuse.” We have said that because the “concepts of sexual abuse and injury within the meaning of this statute are essentially one and the same, not separable — as a matter of law one is ‘injured’ if one is sexually abused.” Blackowiak v. Kemp, 546 N.W.2d 1, 3 (Minn.1996).

The “ultimate question” we must answer when determining whether the statute of limitations prohibits Doe’s action is quite simple when stated in the abstract — we must determine “the time at which” John Doe knew or should have known that he was sexually abused. Id. While the question can be stated simply, the answer is often difficult to ascertain and the route to be taken when seeking the answer is often open to dispute. But, our court has already provided some benchmarks for making this determination. We have said that our determination is subject to “the objective, reasonable person standard.” Id. We have also said that the limitations period for tort claims “begins to run once a victim is abused unless there is some legal disability, such as the victim’s age, or mental disability, such as repressed memory of the abuse, which would make a reasonable person incapable of recognizing or understanding that he or she had been sexually abused.” W.J.L. v. Bugge, 573 N.W.2d 677, 681 (Minn.1998) (emphasis added).

In addition, the Legislature has provided some of its own benchmarks for determining when the statute of limitations begins to run in a sexual abuse case. One such benchmark is provided by the legislative history of Minn.Stat. § 541.073. In drafting section 541.073 — also known as the “delayed discovery statute” — the Legislature “acknowledged that repressed memory ... may prevent sexual abuse victims from coming forward with actions against their alleged abusers in a timely fashion.” Bugge, 573 N.W.2d at 680 n. 5 (citing Hearing on S.F. 315, S. Judiciary Comm., Criminal Law Div., 76th Minn. Leg., Feb. 17, 1989 (audio tape)). The Legislature “sought to address this phenomenon by giving sexual abuse victims additional time to recognize the abuse they suffered while placing a limit on when such claims may be brought.” Id. at 680.

At the district court level during the pretrial in this case, John Doe proffered expert testimony in support of his repressed-memory theory. The defendant religious organizations asked the court to *176conduct a Frye-Mack hearing to determine the admissibility of Doe’s proffered testimony. The defendant religious organizations claim that Doe did not object to the court’s use of the Frye-Mack standard and appear to argue on appeal that because there was no objection our analysis on appeal must focus on whether Doe’s proffered testimony is admissible under Frye-Mack. But the record reflects that Doe did object to the court’s use of the Frye-Mack standard.1 Because Doe made an objection before the district court, I conclude that Doe has properly preserved for appeal the issue of which standard is the proper standard for the court to apply — Frye-Mack or Rule 702. Thus, for purposes of this appeal, the issue before us concerns which of the two evidentiary standards the court should apply when determining the admissibility of Doe’s proffered expert testimony on repressed memory. When we conduct this type of analysis, Rule 702 emerges as the proper standard.

The admissibility of expert testimony is governed by Minn. R. Evid. 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The opinion must have foundational reliability. In addition, if the opinion or evidence involves novel scientific theory, the proponent must establish that the underlying scientific evidence is generally accepted in the relevant scientific community.

Expert testimony is admissible under Rule 702 if: (1) the witness is qualified as an expert, (2) the expert’s opinion has foundational reliability; (3) the expert testimony is helpful to the jury; and (4) if the testimony involves a novel scientific theory, it must satisfy the Frye-Mack standard. State v. Obeta, 796 N.W.2d 282, 289 (Minn.2011).

At issue is whether the Frye-Mack standard applies to Doe’s proffered expert testimony about repressed memory in cases involving child sexual abuse victims. See Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923); State v. Mack, 292 N.W.2d 764, 768 (Minn.1980). The Frye-Mack test has two prongs:

Under the first prong, the court asks whether experts in the field widely share the view that the results of scientific testing are scientifically reliable. Under the second prong of the Frye-Mack test, the court considers whether the laboratory conducting the tests in the individual case complied with appropriate standards and controls....

State v. Hull, 788 N.W.2d 91, 103 (Minn.2010) (footnote omitted) (citations omitted) (internal quotation marks omitted); see also Goeb v. Tharaldson, 615 N.W.2d 800, 815 (Minn.2000) (stating that questions of “general acceptance in the relevant scientific field” are questions of law, but questions of foundational reliability are reviewed under the abuse of discretion standard).

As previously noted, we have said the Frye-Mack standard does not apply to all questions involving the admissibility of scientific evidence. See MacLennan, 702 N.W.2d at 230-31. Application of the standard is limited to evidence based on *177“emerging scientific techniques.” See Jacobson, 728 N.W.2d at 528. We have explained that the application of the Frye-Mack standard supports a distinction between different types of expert testimony. More specifically, we stated that “[t]he requirements of the Frye-Mack standard support” a “distinction between scientific evidence derived from a specific test or diagnosis and expert testimony that offers an explanation for a person’s behavior.” MacLennan, 702 N.W.2d at 232-33; see also State v. Hennum, 441 N.W.2d 793, 797-99 (Minn.1989) (declining to use Frye-Mack standard for expert testimony regarding battered woman syndrome).

In MacLennan, a case which addressed the admissibility of expert testimony on battered child syndrome, we engaged in an extensive discussion on the proper use of the Frye-Mack standard. Our discussion in MacLennan is relevant and helpful here because that discussion took place in the context of circumstances that were significantly similar to the circumstances presented by this case. 702 N.W.2d at 230-35. We noted in MacLennan that we had previously “applied Frye-Mack to evidence falling into the general field of psychology,” but had not “applied Frye-Mack in cases addressing the admissibility of ‘syndrome’ evidence offered to explain behavior.” Id. at 230. In MacLennan we cited the following cases in support of this statement:

State v. Borchardt[,] 478 N.W.2d 757 (Minn.1991) (concluding that the trial court did not abuse its discretion in excluding expert testimony of “male sexual victimization”). Compare Mack[,] 292 N.W.2d at 768 (applying Frye to hypnotically-induced testimony), [and ] State v. Anderson[,] 379 N.W.2d 70, 79 (Minn.1985) (applying Frye and excluding the results of a personality assessment), with State v. Hennum[,] 441 N.W.2d 793 (Minn.1989) (holding that expert testimony on battered woman syndrome is .admissible); State v. Hall[,] 406 N.W.2d 503 (Minn.1987) (holding that the trial court did not abuse its discretion in admitting expert testimony concerning the behavioral characteristics typically displayed by adolescent victims of sexual assault); State v. Myers[,] 359 N.W.2d 604 (Minn.1984) (holding that expert testimony about the emotional and psychological characteristics often observed in children who are victims of sexual abuse was admissible); [and] State v. Saldana[,] 324 N.W.2d 227 (Minn.1982) (holding that expert testimony on rape trauma syndrome was inadmissible).

702 N.W.2d at 230 n. 3. In our analysis, we drew a specific distinction between cases involving physical science and cases involving syndromes. We said:

Unlike a case involving physical science such as . DNA testing, in the area of “syndromes” experts do not administer a specific set of tests to discern whether a defendant suffers from either battered woman syndrome or battered child syndrome. Further, such experts may not testify about whether a particular defendant actually suffers from a syndrome. Rather, experts on “syndromes” — including battered child syndrome — are only permitted to testify abput the syndrome in a general manner, provided that the testimony is “helpful” to the jury.

Id. at 233 (citations omitted). In essence, in MacLennan we concluded that expert testimony on syndromes, unlike DNA and other physical science evidence, is not the type of evidence that the analytic framework established by Frye-Mack was designed to address. Id.

The court of appeals, in concluding that the district court erred when it applied the Frye-Mack standard to Doe’s proffered *178expert testing, stated that the “reasoning in MacLennan persuades us that Frye-Mack is not the appropriate analytical framework for evaluating the admissibility of the proffered expert testimony on the repressed-memory theory in this case.” Doe v. Archdiocese of St. Paul & Minneapolis, 801 N.W.2d 203, 207 (Minn.App.2011). The court of appeals went on to explain:

Unlike DNA evidence, for example, in this case, no “technique [or] procedure[ ] based on chemical, biological, or other physical sciences” exists for evaluation by the scientific community. Instead, the community is left to disagree about a social or psychological theory of behavior that cannot be subjected to a definitive scientific test. No “method” of testing the condition of repressed memory exists for general acceptance or nonacceptance by the scientific community. Similarly, no “scientific techniques” or “fancy devices” exist for presentation in court that could “mislead lay jurors awed by an aura of mystic infallibility.”

Id. at 207-08 (citations omitted).

I agree with the court of appeals’ analysis. That court correctly understood what we were getting at in MacLennan and applied the proper standard. The court then remanded this case to the district court for a determination of the admissibility of Doe’s proffered expert testimony under the relevant evidentiary standards articulated in Minn. R. Evid. 702. I would do the same.

I would remand this case to the district court and leave the question of the admissibility of Doe’s expert testimony to that court’s sound discretion. On remand the district court should evaluate whether Doe’s proffered expert testimony would assist the jury to understand the distinction between repressed memory and the ordinary process of forgetting — a distinction that may well be beyond the normal understanding of a layperson. Further, the court should consider our already articulated explanation for the delayed discovery statute. We have said:

The underlying rationale for the limitations period contained in Minn.Stat. § 541.073 is that many sexual abuse victims, especially young children, are psychologically and emotionally unable to recognize that they have been abused. As a result, these victims are often incapable of bringing their claims within the [ordinary] limitations period....

Bugge, 573 N.W.2d at 680. Here it is important to reflect upon the previously discussed benchmark established by the Legislature. As noted, the Legislature has “acknowledged that repressed memory, denial, shame, and other similar factors may prevent sexual abuse victims from coming forward with actions against their alleged abusers in a timely fashion.” Id. at 680 n. 5. And as the court of appeals said in this case:

The reaction of a child to sexual abuse, under the circumstances alleged in this case, may be outside the common understanding of an average juror. Armed with the additional understanding provided through expert testimony, the jury may be able to determine whether [Doe] suffered from repressed memory of his abuse, tolling the limitations period under Minn.Stat. § 541.073.

Doe, 801 N.W.2d at 209.

If upon remand the district court admits Doe’s expert testimony, that does not mean his experts have free rein to render their opinions on all matters involving repressed memory that are specific to Doe’s case. Any expert testimony should be limited to a description of memory repression and the characteristics that are present in an individual suffering from repressed memory. If allowed to testify, the experts *179may not testify to the ultimate fact of whether Doe suffered from repressed memory. Further, the defendant religious organizations can attempt to rebut Doe’s expert testimony through cross-examination and the presentation of their own expert testimony.

At this point, there is a need to address the defendant religious organizations’ argument that any decision affirming the court of appeals will establish a new standard of proof that will have far reaching consequences and will open up the court to many different kinds of psychological evidence. The defendant religious organizations also argue that if we affirm, we will be ignoring overwhelming scientific evidence in the record that supports the district court’s finding that the theory of repressed and recovered memory has not achieved general scientific acceptance and does not have foundational reliability — a finding they assert is supported by opinions from courts in other jurisdictions that have increasingly expressed concern over the validity of recovered memories.2

I acknowledge that the arguments of the defendant religious organizations have some merit. Courts in other jurisdictions are divided oh the issue of whether a Frye or Daubert3 hearing is needed to assess the admissibility of repressed memory evidence, and courts are also divided on the ultimate admissibility of this type of evidence.4 But, that is not the situation in Minnesota. We have endorsed a distinction between “scientific evidence derived from a specific test or diagnosis” and “expert testimony that offers an explanation for a person’s behavior.” MacLennan, 702 N.W.2d at 232-33. In MacLennan we decided that the Frye-Mack analytic framework is not suitable to expert testimony in the area of syndromes — specifically, battered child syndrome. But, we also acknowledged that we had applied the Frye-Mack test to psychological evidence. Id. at 230. That said, I cannot ignore the *180fact that the Legislature has enacted the delayed discovery statute, which enactment indicates that the Legislature has already concluded that repressed memory and “other similar factors may prevent sexual abuse victims from coming forward ... in a timely fashion.” Bugge, 573 N.W.2d at 680 n. 5. The Legislature’s decision to codify the concept of repressed memory should be a clear indication that in Minnesota expert repressed memory testimony should not be viewed under the lens of the Frye-Mack “emerging scientific techniques” standard. Rather, given the position taken by the Legislature and the other reasons I have listed, the analysis to be undertaken when determining the admissibility of Doe’s proffered expert testimony falls much more comfortably within the ambit of the foundational reliability and helpfulness provisions of Rule 702.5

For many of the same reasons I have articulated for reversing the district court’s grant of summary judgment on Doe’s negligence claim, I would also reverse the district court’s grant of summary judgment on Doe’s fraud claims. I conclude that once the court has sorted out the admissibility of Doe’s expert testimony under the proper evidentiary standard, the court will be in a much better position to make a decision on whether Doe’s fraud claims are timely under the relevant statute of limitations.

For all the foregoing reasons, I would affirm the court of appeals’ decision reversing the district court and would remand to the district court so that it can properly evaluate and consider the admissibility of Doe’s proffered expert testimony under the relevant provisions of Rule 702.

. Despite his objection to the use of the Frye-Mack standard, Doe argues in the alternative on appeal that the two expert opinions he seeks to admit in support of his claims related to repressed memory meet the Frye-Mack standard. Perhaps because of this argument, the majority has chosen to focus its analysis on Frye-Mack.

. See Friedman v. Rehal, 618 F.3d 142, 160 (2d Cir.2010) (discussing "consensus within the social science community that suggestive memory recovery tactics can create false memories”); State v. Hungerford, 142 N.H. 110, 697 A.2d 916, 923-24 (1997) (applying Daubert and concluding that "a case-by-case approach, tempered with skepticism, is most appropriate in this context”); Franklin v. Stevenson, 987 P.2d 22, 28 (Utah 1999) (concluding that testimony concerning therapeutic recovery techniques used in connection with revived memories was unreliable).

. Like Frye-Mack, the terms Frye and Daubert refer to rules of evidence which are used in other jurisdictions on the admissibility of scientific evidence and again, like Frye-Mack, the terms take their respective names from the court cases that originally articulated the rule of evidence they represent. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

. See, e.g., Shahzade v. Gregory, 923 F.Supp. 286, 289-90 (D.Mass.1996) (applying Daubert and finding general acceptance and admitting evidence); Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113, 133-34 (2000) (holding that Frye does not apply and admitting evidence); Wilson v. Phillips, 73 Cal.App.4th 250, 86 Cal.Rptr.2d 204, 208 (1999) (concluding that Frye does not apply and admitting evidence); Doe v. Shults-Lewis Child & Family Servs., Inc., 718 N.E.2d 738, 750-51 & n. 6 (Ind.1999) (applying Daubert but refusing "to declare repressed memory syndrome unreliable”); State v. Hungerford, 142 N.H. 110, 697 A.2d 916, 929-30 (1997) (applying Frye and precluding evidence); Moriarty v. Garden Sanctuary Church of God, 334 S.C. 150, 511 S.E.2d 699, 710-11 (S.C.Ct.App.1999) (concluding that' repressed memory syndrome is a valid theory under South Carolina standard for admission of scientific evidence), aff'd, 341 S.C. 320, 534 S.E.2d 672 (2000). Sometimes the result depends on how the memory was recovered — for example, whether the memory was recovered as a result of counseling or suggestive memory techniques. See generally 6 Clifford S. Fishman & Anne T. McKenna, Jones on Evidence § 41:20 (7th ed.1992).

. The majority asserts that there is no need to remand to the district court for a foundational reliability determination under Rule 702 because the court engaged in a “de facto” Rule 702 analysis. I disagree with following this procedure. It is undisputed that the district court analyzed John Doe’s proffered testimony under the Frye-Mack standard. As I have discussed in this dissent, Frye-Mack is the wrong standard. There is no guarantee, given the nuances in the Frye-Mack standard and Rule 702, that the court’s result would be the same if the foundational reliability determination were made under Rule 702. John Doe is entitled to have his proffered expert testimony on repressed memory analyzed under the correct standard.