Taus v. Loftus 4/1/05 CA1/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A104689

Case Date: 06/22/2005

Preview:Filed 4/1/05 Taus v. Loftus CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

NICOLE TAUS, Plaintiff and Respondent, v. ELIZABETH LOFTUS et al., Defendants and Appellants. I. (Solano County Super. Ct. No. FCS021557) A104689

INTRODUCTION

Plaintiff and respondent Nicole Taus (Taus) was the subject of a published "case study" relating to allegations that she was abused as a young child. The premise of her lawsuit is that defendants invaded her privacy and committed other legal wrongs by piercing a veil of confidentiality that protected her during the case study and using information about her private life to publicly challenge the theories and conclusions advocated by the author of her case study. Appellants filed special motions to strike Taus's first amended complaint pursuant to section 425.16 of the Code of Civil Procedure,1 California's anti-SLAPP statute.2 The trial court granted the motion in part and denied the motion in part. It struck Taus's claim for defamation as to one defendant and her claim for fraud as to another defendant.
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All further statutory references are the the Code of Civil Procedure unless otherwise indicated.

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However the court denied the motion to strike Taus's claims for negligent infliction of emotional distress and invasion of privacy which she alleged against all of the defendants in this action. Appellants contend the trial court erred by refusing to strike the entire first amended complaint because, they contend, Taus seeks to punish conduct involving speech relating to a matter of public interest and she did not carry her burden of proving a likelihood of success as to any of her claims. We agree in part with appellants but also disagree in part, and remand the case to the trial court so it may enter a new order consistent with this opinion. II. A. STATEMENT OF FACTS

Background - Published Articles The dispute between these parties relates to the content and publication of three

articles published between May 1997 and August 2002. 1. The 1997 Child Maltreatment Article

The May 1997 issue of Child Maltreatment, a scientific journal published by the American Professional Society on the Abuse of Children, contains an essay entitled "Videotaped Discovery of a Reportedly Unrecallable Memory of Child Sexual Abuse: Comparison With a Childhood Interview Videotaped 11 Years Before" (hereafter the Child Maltreatment article). The Child Maltreatment article, authored by David Corwin and Ema Olafson, contains the following summary of its contents: "This article presents the history, verbatim transcripts, and behavioral observations of a child's disclosure of sexual abuse to Dr. David Corwin in 1984 and the spontaneous return of that reportedly unrecallable memory during an interview between the same individual, now a young adult, and Dr. Corwin 11 years later. Both interviews were videotape recorded. The significance, limitations, and clinical implications of this unique case study are discussed. Five

SLAPP is an acronym for "strategic lawsuits against public participation." (See Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57 (Equilon).) 2

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commentaries by researchers from differing empirical perspectives who have reviewed these videotape-recorded interviews follow this article." The young woman who is the subject of the Child Maltreatment article was referred to throughout as Jane Doe (hereafter sometimes just "Jane") and all the names of persons and places relating to her story were changed with the exception of Corwin, who conducted the interviews. According to the article, Corwin became involved in Jane's case in 1984 after Jane's father accused her mother of physically and sexually abusing her. The allegations were made in the context of a custody dispute and Corwin was appointed by the court to conduct an evaluation. The Child Maltreatment article contains excerpts from three interviews that Corwin conducted in 1984 when Jane was six-years-old. During each interview, Jane told Corwin that her mother had rubbed her finger inside Jane's vagina while giving her a bath. The specific excerpts that are repeated in the article include Jane reporting that her mother had first done this to her when she was three, that it hurt, and that her mother had warned that she would do "something" to Jane if Jane told her father what her mother had done. During the third interview, Jane consistently maintained that nobody told her to say these things about her mother and that she was not lying. At one point, Corwin asked if Jane's mother said anything when she put her finger there. Jane reported that her mother asked "That feel good?" and that she said no. Jane also said that this happened more than 20 times and closer to 99 times during the time she lived with her mother. The excerpts from the 1984 interviews are interspersed with analysis and with Corwin's conclusions, first drawn and testified to in 1984, that: (1) Jane was physically and sexually abused by her mother and (2) Jane's mother falsely accused Jane's father of abusing Jane and attempted to coerce Jane to verify the false accusation. The authors of Child Maltreatment reported that they utilized background sources in addition to the 1984 interviews including reports by Child Protective Services and the police, court files and decisions pertaining to the parents' divorce and contentious custody battle, and reports by other evaluators and therapists. According to the article, Jane's statements to Corwin were consistent with statements she previously made to other evaluators. Jane's prior 3

reports of inappropriate behavior by her mother included "`striking her on several parts of her body, burning her feet on a hot stove, and invading and hurting her genitals and anus with her hands.'" The Child Maltreatment article also contains a transcript of an interview of Jane that Corwin conducted on October 15, 1995, when Jane was 17-years-old. According to the article, the 1995 interview was arranged after Corwin contacted Jane and her father to obtain their consent to continue to use the 1984 videotaped interviews for "professional education," and learned that Jane could not remember the events that were the subject of those earlier interviews. The transcript of the 1995 interview reflects that Jane was accompanied by her foster mother and that Corwin had agreed to show them the videotapes of the 1984 interviews. Jane stated that she did remember statements and allegations she had made during those interviews but that "[i]t's the memory of if what I said was true that I'm having a problem with." Corwin asked Jane to share what she could recall about that period of time, about the 1984 interviews, and the things she may have said then. Jane described the room where she was interviewed in 1984, a sweatshirt she may have worn, and began to recount some of the allegations she had made. She recalled accusing her mom of abusing her by burning her feet on a stove but stated that she could not remember if that was in fact how her feet were burned. Jane told Corwin that she had recently been in contact with her mother, who denied all the abuse allegations. When Corwin focused the discussion on sexual abuse, the following occurred: "DC3 Okay. Do you remember anything about the concerns about possible sexual abuse? "JD: No. (Eye closure) I mean, I remember that was part of the accusation, but I don't remember anything--(inhales audibly and closes eyes) wait a minute, yeah, I do. "DC: What do you remember?

"DC" refers to David Corwin. "JD" refers to Jane Doe. The parenthetical comments were added by the authors of the Child Maltreatment article. 4

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"JD: (Pauses) Oh my gosh, that's really, (. . . Close eyes and holds eyes) really weird. (Looks at foster mother) I accused her of taking pictures (starts to cry and foster mother puts hand on Jane's shoulder) of me and my brother and selling them and I accused her of--when she was bathing me or whatever, hurting me, and that's-"DC: As you're saying that to me, you remember having said those things or you remember having experienced those things? "JD: I remember saying about the pictures, I remember it happening, that she hurt me. "DC: Hurt you, where? How? "JD: She hurt me. She-". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "JD: You see. I don't know if it was an intentional hurt--she was bathing me, and I only remember one instance, and she hurt me, she put her fingers too far where she shouldn't have, and she hurt me. But I don't know if it was intentional, or if it was just accidental. "DC: Can you be more specific because I--? "JD: I know what was said on the tape. On the tape it was said that she put her fingers in my vagina. And she hurt me. DC: Okay. Is that what you recall or--

"JD: That's what I recall. I recall saying it, and I recall it happening. "DC: You recall it happening? "JD: I recall. I didn't--that's the first time I've remembered that since saying that when I was 6 years old, but I remember." According to the Child Maltreatment article, Corwin showed Jane the videotapes of the 1984 interviews, took a two and one-half hour break, and then recommenced the 1995 videotaped interview. During that part of the interview, Corwin asked Jane to describe her feelings about viewing the videotapes. Jane responded that the tapes reinforced her belief that her mom had abused her. In her view, the girl she saw on the tapes would not have made up the accusations. Jane also expressed relief that she no 5

longer had to entertain the possibility that her father, who had recently died, had lied to her about her mother. At the end of the 1995 interview, Jane agreed that Corwin could use her interviews for educational purposes. She stated: "Yeah, I think it's--I mean, I'm prepared to give my life, devote my life, to helping other kids who have gone through what I've gone through, well not necessarily what I've gone through, that have gone through traumatic . . . experiences, by becoming a psychologist or psychiatrist, whichever I decide but, and I by no means want to stand in your way." In the final pages of the Child Maltreatment article, the authors reconciled possible inconsistencies between Jane's recalled memory in 1995 and the accusations she made in 1984, and concluded that "[t]he core recollection, then, is true to her earlier disclosures." The authors also suggested that, assuming Jane's memory of abuse had actually been unavailable to her prior to the 1995 interview, Corwin's presence may have helped trigger her recall. Finally, the authors posed questions and issues to explore and address in the future. 2. The 2002 Skeptical Inquirer Article

The May/June 2002 and July/August 2002 issues of the Skeptical Inquirer, a magazine published by appellant the Committee for the Scientific Investigation of Claims of the Paranormal (CSICOP), included a two-part article entitled "Who Abused Jane Doe? The Hazards of the Single Case History" (hereafter, the Skeptical Inquirer article.) The Skeptical Inquirer article was written by appellants Elizabeth Loftus and Melvin Guyer. The stated premise of this article is that case studies, although useful to scientists, are "bounded by the perceptions and interpretations of the storyteller," and should be used "to generate hypotheses to be tested, not as answers to questions." To illustrate their point, Loftus and Guyer provide "a case study of a case study--a cautionary tale." The case study they scrutinize is Corwin's Child Maltreatment article. According to the Skeptical Inquirer article, psychological researchers and clinicians disagree as to whether the human mind represses memories of traumatic experiences in such a way that they can be accurately recovered years later through such 6

tools as therapy and hypnosis. The article also states that the Child Maltreatment article has been offered and accepted as proof that traumatic memories can eventually be reliably recovered. The Skeptical Inquirer article summarizes the content of the Child Maltreatment article and offers the following summary of the reactions of professionals who had read about the Jane Doe case: "Corwin's case study was vivid and compelling. Leading scientists were persuaded by it; indeed, emotionally moved by it. Few considered any other possible explanations of Jane's behavior at six or at seventeen. Few were skeptical that Jane really had been abused by her mother before age six, that her retrieved memories were accurate, or that `repression' accounted for her forgetting what her mother supposedly had done to her. [

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