S.V. v. R.V.

CORNYN, Justice,

concurring.

I withdraw my prior concurring opinion and substitute tMs one in its place.

I concur in the Court’s judgment. I question, however, whether the Court’s extended discussion of the tragic and no doubt embarrassing facts of tMs case is necessary to conclude that the discovery rule does not apply. While it is true, as the Court’s opinion notes, that when reviewing a directed verdict the evidence should be viewed in a light most favorable to the person suffering the adverse judgment, the only question the Court purports to answer is whether R.’s allegations of sexual abuse are objectively verifiable. Thus, only the evidence relating to that issue needs to be reviewed. Additionally, although it disclaims any intention of doing so, the Court’s obvious concern for the lack of scientific consensus about the reliability of repressed memories necessarily raises questions, not only about the objective verifiability of R.’s allegations for purposes of its discovery rule analysis, but also about the admissibility of expert testimony on this subject under the Court’s recent decision in E.I. duPont v. Robinson, 923 S.W.2d 549 (Tex.1995).

My first point needs little elaboration. The Court assumes without deciding that R. can satisfy one of the two elements required for the application of the discovery rule, the inherent undiscoverability element. The Court therefore addresses only the second requirement, that the allegations be objectively verifiable. 933 S.W.2d at 6. The plaintiff in this case, the Court observes, offers no objectively verifiable evidence: no confession by the abuser, criminal conviction, 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, objective eyewitness’s account, or ‘the like.’ 933 S.W.2d at 15. I agree with tMs assessment, but having reached tMs conclusion, I see no need for an extensive discussion of the intimate details of the parties’ lives when these ordinarily private matters can have no bearing on the objective verifiability inquiry.

My second point is that the centerpiece of the Court’s opmion is the validity of expert testimony about repressed memory syndrome, and in assessing such testimony, the Court obliquely implicates the admissibility of this evidence under Robinson . The Court writes: “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 tMs 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 *41 consensus on the truth or falsity of these memories.” 933 S.W.2d at 17. Then, after a review of some of the available scientific literature, the Court concludes:

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 verifiability” element for extending the discovery rule.

933 S.W.2d at 19-20. If there were a “settled scientific view,” the Court suggests, the objective verifiability element might be satisfied. 933 S.W.2d at 17. By contrast, the dissent argues that the testimony of a “qualified, reputable mental health expert[ ] should suffice” as verification. 933 S.W.2d at 38 (Owen, J., dissenting).

In Robinson , this Court followed the lead of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), by adopting six nonexclusive factors to determine admissibility of expert testimony under Rule 702. Four members of the Court dissented from that decision, Robinson, 923 S.W.2d at 560 (Cornyn, J., dissenting, joined by Hightower, Gammage, and Spector, JJ.), not because we disagreed with the Court’s desire to curb “junk science” in the courtroom, but because of the means the Court chose: usurpation of the jury’s historic role as the exclusive judge of the credibility of a witness.

Aside from the role of amateur scientist that Robinson unfortunately thrust upon them, trial courts face additional problems in behavioral science cases like this one because these disciplines cannot be readily evaluated under the nonexclusive factors enunciated in Robinson. See Robinson, 923 S.W.2d at 557 . Of the factors listed in Robinson , only the third (whether the theory has been subjected to peer review and/or publication) appears to have been satisfied in this case, and even this factor does not tip the scales either for or against admissibility because both champions and critics of repressed memory syndrome have published articles on this subject. JUSTICE Gonzalez, the author of Robinson , goes so far as to argue in his concurring opinion that application of the Robinson standard will result in the exclusion of all expert testimony of uncorroborated repressed memories of child sexual abuse. Even though Robinson now plainly controls the admissibility of some expert testimony, it cannot reasonably be construed to control the admissibility of all expert testimony. There are some types of expert testimony to which the nonexclusive factors adopted in Robinson are clearly inapplicable. As one legal scholar has noted:

Scientific evidence is only part of the larger domain of expert testimony. In addition to listing scientific testimony, Rule 702 expressly refers to “technical, or other specialized knowledge.” There are numerous examples of technical but nonseientific experts whose credentials normally include substantial formal instruction in the techniques of a discipline. Attorneys, historians, and musicians fall into this category. There are also many nonseientific experts who have informally acquired specialized knowledge through practical experience. This category includes auctioneers, bankers, railroad brakesmen, businesspersons, carpenters, farmers, security guards, and trapshooters.

Edward J. Imwinkelried, The Next Step After Daubert: Developing a Similarly Epistemological Approach to Ensuring the Reliability of Nonseientific Expert Testimony, 15 Cardozo L.Rev. 2272, 2278 (1994) (footnotes omitted); see also Federal Judicial Center, Reference Manual on Scientific Evidence 84 (1994) (questioning applicability of Daubert to social sciences, including psychology, economics, sociology, and political science). Thus, Justice GONZALEZ cannot be correct when he contends that under Robinson or Daubert , evidence from any discipline that is incapable of being “empirically tested” is categorically inadmissible. 933 S.W.2d at 26.

*42 This ease provides an example. Unlike some other scientific theories, theories or opinions about behavior, memory, and psychology depend largely on the subjective interpretation of the expert and usually do not have demonstrable rates of error. Scholars have observed that “the nature of certain social and behavioral science theories may be inherently inconsistent with Daubert criteria such as ‘falsifiability1 and ‘error rates’ ” and that some new theories “have simply not been sufficiently developed as theories to allow for proper consideration of the guidelines offered by Daubert.” Richardson et al., The Problems of Applying Daubert to Psychological Syndrome Evidence, 79 Judicature 10, 11, 12 (1995).

That Robinson should not apply to all types of expert testimony may also be inferred from the dissent’s conclusion that uncorroborated expert testimony about repressed memory can alone satisfy the objective verifiability requirement of the discovery rule. 933 S.W.2d at 38 (referring to psychiatry as the “penultimate gray area”). The dissent not only argues that expert testimony can satisfy the objective verifiability requirement of the discovery rule, but also assumes that such expert testimony would be unquestionably admissible at trial:

In this case the defendant had the benefit of cross-examining R.Y. and her experts and would have had the benefit of presenting his own expert testimony attacking the validity of recovered memories, if the trial court had not granted the motion for directed verdict at the conclusion of R.V.’s case in chief. These are all matters that would have been considered by the trier of fact in determining both when the plaintiff discovered that he or she was abused and whether the underlying abuse actually occurred.

933 S.W.2d at 38 (emphasis added). Recognizing the difficulties for the jury in reconstructing events occurring during R.’s minority with the aid of expert testimony, the dissent argues that these difficulties may be overcome by “expert testimony cautioning the jury of the dangers which the majority discusses and ... presenting] evidence that R.V.’s post-traumatic stress disorder stemmed from another traumatic event.” 933 S.W.2d at 38. In my opinion, Justice OWEN’s argument would not be viable after Robinson if Justice GONZALEZ is correct about Robinson’s scope.

As I have said before, I fear that the admissibility standard that the Court adopted in Robinson will prove unworkable in a wide variety of contexts in which Rule 702 of our Rules of Evidence is implicated, including cases like this one. See Robinson, 923 S.W.2d at 560 (Cornyn, J., dissenting). I believe the Court’s opinion today demonstrates the inevitability of that conclusion.