Logerquist v. McVey

JONES, Vice Chief Justice,

specially concurring:

¶ 66 I concur and join in the opinion and judgment of the majority but write separately because of the growing debate over the admissibility of expert testimony touching on fields of scientific endeavor under the Dau-bert/Kumho line of cases. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993). In the context of childhood sexual abuse, my concern is heightened by Daubert’s adverse impact on child victims stemming from the potential exclusion of otherwise relevant evidence.

¶ 67 The issue is uncomplicated. The dissenting authors urge that we adopt Daubert , thereby vesting the trial judge with exclusive power to determine, as a matter of law, whether the statute of limitations should bar petitioner’s sexual abuse claim on the basis that theories of “repressed memory,” “dissociative amnesia,” and related mental disorders constitute invalid science.

¶ 68 The problem is this. To adopt Dau-bert will give the trial judge sole power to preclude expert testimony which, in the view of the majority, is both relevant and essential to a proper resolution of the case. Conversely, to admit evidence under Daubert depends not on the traditional evidentiary factors of relevance or materiality but on an extraordinary determination by the judge alone as to whether expert testimony, as proffered, accords with scientific principles about which the judge may know little or nothing. This constitutes weighing, rather than a determination of admissibility under the rules. Clearly, evidence weighing is the province of the jury as the trier of fact, not the judge. The great risk under Daubert is that the jury may never hear evidence that is both competent and relevant.

¶ 69 I believe application of Daubert in the instant case will undermine Rule 702, Ari *492 zona Rules of Evidence, which states in relevant part:

If ... 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 ... experience, ... may testify thereto in the form of an opinion or otherwise.

(Emphasis supplied.) I can think of no more succinct or accurate description of the testimony and evidence offered by Bessel A. van der Kolk, M.D., than Rule 702 as quoted. His testimony is founded on specialized knowledge and is based on real experience. His qualifications are extensive.

¶ 70 It is my general observation that a range of factual scenarios and a variety of cause and effect circumstances in specialized scientific fields may remain unexplained for generations, as in aspects of cosmic science or in medical or other forms of life science. But it is also true, as a practical matter, that their actual occurrence, repeated time and again, may be well within an expert’s specialized knowledge and experience. Notwithstanding the doubt that may encircle scientific theory, it is actual experience, whether in the laboratory, the clinic, or elsewhere, that has been the sine qua non of medical and scientific progress. And it seems to me such experience, under Rule 702, would assist the trier of fact to understand the issues and the evidence in the case at bar. The exclusion of uncertain or doubtful scientific theory is one thing, but the exclusion of specialized knowledge of actual trauma which stems from real experience is quite another.

¶71 I would admit the testimony of Dr. van der Kolk without reference either to Frye or Daubert. Frye v. United States, 293 F. 1013 (1923). It should be admitted to the extent it is based on actual experience, both as the factual basis on which to determine applicability of the statute of limitations and as the basis under Rule 702 to explain to the jury the nature of petitioner’s claims. Van der Kolk is a trained medical expert with a breadth of experience dealing with substantial numbers of childhood sexual abuse victims. A ruling that would exclude van der Kolk purely on the basis that the trial judge may believe the “science” is uncertain would leave petitioner Logerquist and others like her with little but their individual testimony based on childhood memory, with no opportunity to introduce specialized evidence to explain things actually experienced at a tender age in their lives. This would impair substantial justice. Contrary to the dissent at paragraph 79, any theory of repressed memory, valid or invalid, is easily distinguished from astrology because the former is invariably associated with severe mental or even physical trauma to the victim, whereas the latter involves no trauma and no victim. That is the whole point. Trauma caused by molestation is relevant, and to apply Daubert in these circumstances risks immunizing adult molesters against liability for acts of sexual abuse against children.

¶ 72 Petitioner Logerquist alleges that her life has been severely impacted, that sexual assaults on her person were of such traumatic magnitude and incapacitated her emotional and mental self to such an extent that for many years she was unable to cope with or discuss her past or even face life’s most essential decisions. In light of the complex medical implications and her young age at the time the alleged events occurred, she alone should not be expected to justify or even explain her symptoms. She claims depression. She was unable to remain employed and underwent years of mental therapy, allegedly necessitated by sexual abuse at the hands of the defendant. While the underlying scientific theories may remain uncertain, it is well known that child victims of sexual molestation by adults suffer profound forms of denial, anxiety, depression, and guilt. Their lives are often left in shock and degradation. Such conditions may endure for years, and experience-based testimony by a trained specialist would assist the jury to decide both the statute of limitations defense and the merits of petitioner’s case.

¶73 To date, none of petitioner’s allegations has been proved. They may never be proved to the satisfaction of a jury, and the statutory period of limitations may still bar her claim. Nevertheless, she should at least be accorded an opportunity to make her whole ease.

*493 ¶74 My reason in part for joining the majority is a current sense of resistance to the Daubert principle because it gives the trial judge, a non-expert in scientific matters, near absolute power to make a one-person determination of what is and what is not valid science. The dissenting justices present a legitimate, well-intentioned argument, but I remain unpersuaded that a judge alone should occupy a scientific fact-intensive role so powerful. For that reason, I remain skeptical of Daubert and Kumho, at least until a solid measure of acceptable consistency ■emerges under their application.