Fed. Court Doesn't Buy Into Plaintiff's Repressed Memory Claim

Discovery rule not applicable to toll statute of limitations

Pennsylvania Law Weekly/May 17, 1999
By Danielle Rodier

The 3rd Circuit has essentially told a plaintiff to forget about pursuing her 20-year-old claim against the psychiatrist she said abused her in therapy sessions for 19 years.

The plaintiff claimed the discovery rule applied to toll the statute of limitations because she did not remember that the doctor sexually abused her until years later, nor did she realize until after she left the doctor's care how inappropriate his treatment was.

But the court said it did not believe that argument because the plaintiff openly admitted through the years that the doctor was hurting her and many other people the woman had contact with alerted her to the same problem.

In Hollister v. McGrath, PICS Case No. 99-0894 (3rd Circ. April 30, 1999) Scirica, J. (20 pages), the 3rd Circuit affirmed a Middle District Court ruling that Joy Hollister's malpractice claim against Joseph M. McGrath was barred by the statute of limitations.

In the opinion written by 3rd Circuit Judge Anthony Scirica, the court relied on the state Supreme Court case Dalrymple v. Brown, PICS Case No. 97-1857 (Pa. Aug. 25, 1997) Cappy, J.; Newman, J., concurring (30 pages) to bar Hollister's claim, despite the high court's later change of tune in allowing repressed memory evidence into the case Commonwealth v. Crawford, PICS Case No. 98-2097 (Sept. 30, 1998) Zappala, J. (12 pages).

Therapy sessions

Hollister was a registered nurse when she visited McGrath after she experienced convulsions and passing out at her job as a nursing instructor.

McGrath treated Hollister off and on between 1970 and 1994. Hollister claimed that between 1970 and 1975 McGrath forced her to have intercourse and engage in oral sex but that she blocked out the memories of those experiences until 1994, when she began receiving treatment from a new psychiatrist.

Among Hollister's other allegations were that McGrath placed her in a "body lock" several times in 1989 and subsequent years, that McGrath chased her down a city street while she tried to shoo him away by hitting him with her purse and that McGrath was verbally abusive and demeaning to her.

Hollister's son and ex-husband testified that she complained about being physically restrained by McGrath and that they saw her stockings were torn and her thighs bruised after sessions.

Hollister claimed she became suicidal after she started treatment with McGrath, an allegation confirmed by her ex-husband and son's testimony.

Testimony was also presented that Hollister's mental condition deteriorated during her treatment and that several doctors expressed concern over her sessions with McGrath.

For a period of three years, Hollister moved to Massachusetts and stopped seeing McGrath but the therapy resumed when she moved back in 1987.

In early 1989, Hollister diagnosed herself with Multiple Personality Disorder, which Scirica said is not known as Dissociative Identity Disorder.

McGrath was on vacation during that time, so she told his partner, Dr. Lawrence Altaker, her diagnosis and asked if she should begin treating with Dr. Richard Kluft, an expert in the field. Altaker said yes.

When Hollister eventually told McGrath her diagnosis and that she wanted to start seeing Kluft, McGrath allegedly became extremely hostile and wouldn't let her leave his office. Hollister tried seeing other therapists in the early 1990s, angering McGrath even more.

In 1994, Hollister developed Lyme disease. She told McGrath she was no longer physically able to visit his office. McGrath allegedly told Hollister her symptoms were psychosomatic.

Hollister terminated her therapy officially by letter and began seeing Kluft.

During sessions with Kluft, Hollister said she recovered memories of sexual and physical abuse she suffered during her childhood and teens.

Kluft and another doctor testified that Hollister would not have been able to recognize the inappropriateness of McGrath's behavior until she stopped treating with him.

One doctor said Hollister most likely experienced "transference" -- a phenomenon in which patients shift feelings from past relationships onto therapists -- with McGrath.

In 1996, Hollister filed a malpractice suit against McGrath. The Middle District Court granted summary judgment in the doctor's favor, finding the statute of limitations had been tolled.

Discovery rule

The malpractice claim was based on the therapy Hollister received from 1970 through April 3, 1994. The claim was filed on April 4, 1996.

The suit was not barred by normal statute of limitations rules, Hollister claimed, because the statute was tolled by the state's discovery and fraudulent concealment rules.

Under the discovery rule, the statute of limitations does not begin to run until the plaintiff knows or should know that he or she has been injured and that his or her injury has been caused by another party's conduct, Scirica said.

But Scirica said the court agreed with the District Court's conclusion that Hollister had too much information about her injury for the discovery rule to apply.

According to Hollister's testimony, Scirica said, she developed an eating disorder and experienced a severe mental breakdown.

"By her own testimony, there can be no dispute she was aware of these disorders at the time," Scirica said, adding that the fact that her husband was also aware of her troubles satisfies the first prong of the discovery rule test.

"Because a reasonable person would have known that Mrs. Hollister was suffering from serious psychological disorders that had gotten significantly worse since she began treatment, we conclude that the District Court was correct in holding that she had both actual and reasonable notice of the harm she suffered.

The second prong of the test was also fulfilled because Hollister's testimony was fraught with statements that she knew McGrath made her feel worse and that she fled from him "countless times" and because other people readily knew that McGrath's treatment was inappropriate.

"Hence by her own testimony she was on notice that Dr. McGrath was the cause of her alleged injuries. Indeed, her ex-husband was able to attribute her decline to Dr. McGrath's counseling," Scirica wrote.

Fraudulent concealment rules could also not help Hollister, Beck said.

It was obvious that McGrath's treatment was detrimental to Hollister's mental health, he said.

"[G]iven the strength of the external evidence of alleged wrongdoing by Dr. McGrath and the many warnings Mrs. Hollister had received from medical professionals ...a reasonable person could not have been misled by the alleged concealment," Scirica wrote.


The court's decision apparently was strongly influenced by the state Supreme Court's decision in Dalrymple v. Brown.

In Dalrymple, the high court said that just because a person can't remember an assault doesn't mean the statute of limitations can be tolled.

The justices threw out Linda Dalrymple's lawsuit against a man she claimed sexually assaulted her when she was a child, ruling the statute of limitations had expired.

Dalrymple had argued the discovery rule should apply because she didn't recover the memories of the alleged assaults until 20 years later. Since she filed suit within two years of recovering the memory, she argued, the suit should have been allowed to continue.

A concurring justice said the majority's ruling was really motivated by its distrust of the entire theory behind repressed memory.

Writing for the court, Justice Ralph Cappy said the discovery rule should only be applied to situations where "the injured party is reasonably unaware that an injury has been sustained."

He said Dalrymple was trying to "fit herself within this rule," by arguing she couldn't remember the incident because the battery was so traumatic.

Dalrymple argued the repressed memory was a natural reaction for a child to have after being sexually abused.

But Cappy said it "would be absurd to argue" that a person would repress sexual abuse "so that no amount of diligence would enable that person to know of the injury."

"[Dalrymple's] argument, though admittedly quite ingenious, is still an assertion of an incapacity particular to this plaintiff's ability to know that she suffered a battery," he said.

Hollister alleged the Eastern District Court's decision in Hewczuk v. Sambor, 803 F.Supp. 1063 (E.D. Pa. 1992), should have supported her claim against McGrath.

The Hewczuk court allowed a plaintiff's claim against her foster parents for childhood sexual abuse where she alleged she had repress memories of the abuse for many years.

But Scirica said the state Supreme Court has spoken out directly against the decision in Hewczuk, saying it "ignored the legal principles adhered to within this jurisdiction."

Scirica said that made it clear the high court was "not receptive to Hewczuk's general argument."

New take on repressed memories

Just last year, the Supreme Court stepped back from its harsh view on repressed memories and ruled that a man's testimony about his repressed memory of a murder was admissible.

The justices in Commonwealth v. Crawford allowed the evidence in a criminal case because the Commonwealth didn't try to persuade the jury that the "phenomenon of revived repressed memory" was accepted by the scientific community but instead allowed the testimony to stand on its own.

The defense had tried to get a psychiatrist's testimony admitted saying the witness' memory could not be trusted, but the court said it was inadmissible because it would attack the credibility of the prosecution's witness.

Before Crawford, the court was loath to consider repressed memories as a vehicle for escaping statute of limitations restrictions.

The court in one case even said it was "absurd" that someone would repress a memory of sexual abuse.

But the justices didn't touch the issue of the validity of revived repressed memories in Crawford.

In Crawford, the court said expert evidence refuting John Reed's testimony could not be admitted because the scientific community's acceptance of repressed memories was not at issue.

"The jury was capable of assessing Reed's credibility without the expert testimony regarding revived repressed memory," Supreme Court Justice Stephen Zappala said in the court opinion.

"The reliability of revived repressed memory was never an issue that needed to be resolved by the jury. The assessment of Reed's credibility, which was at issue, was properly left to the jury."

According to the opinion, 20 years after Pearl Altman's body was found in the Allegheny River, Reed contacted the police and told them about events he witnessed leading up to the drowning, claiming he had repressed the memory. Reed's actions led to Franklin Crawford being charged with the murder.

At the request of Crawford's counsel, Reed underwent a psychological examination by Dr. Jonathan Himmelhoch.

According to Himmelhoch's report, Reed's memory of the events was jarred when he saw a woman outside an IGA supermarket who looked "exactly" like Altman. He said he remembered seeing Altman's eyes right before Crawford threw her into the river.

Reed also claimed he heard Altman's voice telling him to "tell the truth" that he saw Crawford murder her.

Based on his evaluation, Himmelhoch said Reed's memory was unreliable. Most repressed memories from more than 10 years in the past are wrong, he said.

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