# S.V. v. R.V.

> Texas Supreme Court · March 14, 1996 · 933 S.W.2d 1

URL: https://www.frixlaw.com/law-library/cases/5091517

## Case

- **Full name:** S.V. v. R.V.
- **Court:** Texas Supreme Court
- **Decided:** March 14, 1996
- **Citations:** 933 S.W.2d 1
- **Precedential status:** Published
- **Opinion:** Concurrence by Gonzalez
- **Judges:** Abbott, Baker, Cornyn, Enoch, Gonzalez, Hecht, Owen, Phillips, Spector
- **Cited by:** 774 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5091517

## How later opinions describe it (automated extraction)

- recognizing possibility “that recognized expert opinion on a particular subject would be so near consensus that, in conjunction with objective evidence not based entirely on the plaintiff’s assertions, it could provide the kind of verification required” to apply discovery rule
- explaining that the rationale for finding a fiduciary’s misconduct to be inherently undiscoverable 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”
- explaining that under the legal injury rule, a cause of action accrues when a wrongful act causes an injury, even if the fact of the injury is not discovered until, later and all resulting damages have not yet occurred
- explaining that the fraudulent concealment doctrine defers accrual because “a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run”
- holding that expert opinions regarding recovered memories of childhood sexual abuse could not meet objective verifiability element for extending discovery rule in childhood sexual abuse case

## Opinion text

GONZALEZ, Justice,
concurring.
Although I concur in the Court’s judgment, I wish to make two additional points. First, the trial court correctly rendered a directed verdict in this case because R. failed to state a negligence cause of action. Second, expert testimony regarding repressed memories does not meet the guidelines for admissibility this Court adopted in du Pont v. Robinson, 923 S.W.2d 549 (Tex.1995).
R.’s pleadings allege that S., her father, “was negligent in committing the following acts: engaging or attempting to engage in sexual acts or contacts with the plaintiff; exposing himself while nude to the plaintiff; [and] exposing his genitals while in an aroused state in the presence of the plaintiff.” Additionally R. claims that S.’s acts constituted a breach of R.’s right to privacy and negligent infliction of mental anguish. 1
It is a matter of common sense that no one negligently commits pedophilia or incest. One does not engage in this type of conduct through inadvertence, thoughtlessness, or inattention. As recounted at length in the majority opinion, R. testified in support of her allegations that S. forced her to engage in numerous sexual acts, including intercourse. Such conduct can hardly be described as negligence. It is obvious that R.’s attorney alleged negligence so that S.’s homeowners’ insurance policy would cover his misconduct. See Boyles v. Kerr, 855 S.W.2d 593, 604 (Tex.1993) (Gonzalez, J., concurring on rehearing) (noting that homeowners’ insurance policies generally do not cover intentional acts). Because the conduct alleged was intentional and does not fit within the classic definition of negligence, the trial court’s directed verdict should not be disturbed.
The second issue I wish to address is the admissibility of expert testimony on repressed memory. In Robinson , this Court set forth a number of non-exclusive factors to be considered by the trial court when deciding the admissibility of expert testimony:
(1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique.
Robinson, 923 S.W.2d at 557 .
The testimony of R.’s experts is not admissible under these guidelines. One reason that repressed memory theory is not admissible is because it cannot be empirically tested. The key question in determining whether a theory or technique can be classified as science is whether it can be tested empirically. “ ‘Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.’ ” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 593 , 113 S.Ct. 2786, 2796 , 125 L.Ed.2d 469 (1993) (quoting Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw.U.L.Rev. 643, 645 (1992)); see also Hempel, Philosophy ob’ NATURAL Science 49 (1966) (“[T]he statements constituting a sci *27 entific explanation must be capable of empirical test.”); Kihlstrom, Hypnosis, Delayed Recall, and the Principles of Memory, 42 Int’l J. Clinical & Experimental Hypnosis 337, 342 (1994) (“[TJhere do not appear to be any internal criteria — that is, standards that can be applied to the statements themselves — that can serve to reliably distinguish between accurate recollections and fabrications and confabulations.... In the absence of such independent corroboration, we have no means of reliably distinguishing between fact and fantasy.”); Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) (“[TJhe criterion of the scientific status of a theory is its falsifiability, or refutability, or testability.”).
Moreover, repressed memory diagnosis relies heavily upon the subjective interpretation of the expert. This reliance is a sobering reality in sexual abuse cases: “[EJxperts constitute a highly variable and therefore unreliable source of opinion formation in cases of alleged sexual abuse.” Horner et al., The Biases of Child Sexual Abuse Experts: Believing is Seeing, 21 Bull. Am. Acad. Psychiatry L. 281, 286-87 (1993); see also Campbell, Repressed Memories and Statutes of Limitations: Examining the Data and Weighing the Consequences, 16 Am.J.Forensic Psychiatry 25, 32 (1995) (“The potential for psychotherapists altering and/or distorting the memories of their clients cannot be underestimated.”); Watkins, Dealing with the Problem of “False Memory” in Clinic and Court, 21 J. Psychiatry & L. 297, 301 (1993) (“[I]t must be conceded that patients ... are especially vulnerable to suggestive influence from their doctors. Therapists, who are very aware of the prevalence and perniciousness of child abuse, may at times ‘push’ their clients to recall such incidents.”).
In addition, the potential error rate is high in cases of repressed memory. See Nash, Memory Distortion and Sexual Trauma: The Problem of False Negatives and False Positives, 42 Int’l J. Clinical & Experimental Hypnosis 346 (1994). This high rate of error is unacceptable in light of the devastating consequences false allegations of abuse can have on the accused and his or her family. Silberg, Note, Memory Repression: Should It Toll the Statutory Limitations Period in Child Sexual Abuse Cases?, 39 Wayne L.Rev. 1589, 1599 (1993). Finally, repressed memory theory has not been generally accepted within the scientific community. In fact, the American Psychiatric Association has admitted that “it is not known how to distinguish, with complete accuracy, memories based on true events from those derived from other sources.” APA Board of Trustees’ Statement on Memories of Sexual Abuse, 42 Int’l J. Clinical & Experimental Hypnosis 261, 262 (1994); see also Campbell, supra, at 27 (recognizing that, as of 1990, there was no laboratory evidence supporting the concept of repression); Spence, Narrative Truth and Putative Child Abuse, 42 Int’l J. Clinical & Experimental Hypnosis 289, 301 (1994) (“No matter how traumatic, this kind of instant recovery of an early memory would seem to violate a good deal of what we know about archival memory, long-term storage and decay, and fly in the face of conclusions that have been accumulating in the experimental study of memory for the past 60 years.”).
There may be some value to repressed memory theory as a therapeutic tool, but because it does not meet the admissibility guidelines we have established, it should not be admitted as evidence. As one commentator has noted:
Asking these questions does not make us enemies of therapy, nor does it mean that we doubt the reality or the horror of childhood sexual abuse. We would only suggest that the “literal” and the “metaphorical” be respected as separate and distinct entities. If therapy chooses to deal with myth and metaphor ..., it would seem wise and prudent to appreciate the metaphor for what it is — a symbolic representation rather than a literal re-creation. If therapy chooses to search for meaning in history ..., then memory must be recognized and appreciated as a creative mechanism in which fact and fiction are inextricably interwoven.
Loftus & Ketcham, The Myth of Repressed Memory 265-66 (1994). Given what we know today about the subject, expert testimony *28 regarding repressed memory is the type of junk science that should be kept out of our courtrooms under the guidelines set forth in Robinson .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5091517. Public record. Not legal advice.