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Phillips v. Gelpke

January 30, 2006

MELISSA PHILLIPS, PLAINTIFF-RESPONDENT,
v.
JOHN GELPKE, DEFENDANT-APPELLANT, AND BARBARA GELPKE, DEFENDANT,
JOHN GELPKE, DEFENDANT/THIRD-PARTY PLAINTIFF,
v.
SUSAN PHILLIPS, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-650-01.

The opinion of the court was delivered by: Coburn, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 20, 2005

Before Judges Coburn, Collester and Lisa.

In 2001, Melissa Phillips, then nineteen years old, sued John and Barbara Gelpke, alleging that John had frequently abused her sexually from the time she was three until she was eight and that Barbara had negligently permitted the abuse to occur. Melissa alleged that her memory of the events had been repressed until she became eleven and had a dream of engaging in sexual relations with John as a young woman.

Before trial, Melissa submitted a psychologist's report in support of her claims. It described repressed memory, which the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) defined as "Dissociative Amnesia," but did not conclude that Melissa suffered from that condition; nor did it address the controversy among psychiatrists, psychologists and physicians respecting whether repressed memories can be accurately retrieved or retrieved at all. Consequently, on defendants' pretrial motion, the judge ruled that the although the expert could testify at trial on other aspects of the case, the testimony could not include the opinion that Melissa had dissociative amnesia.

During trial, the judge dismissed the claim against Barbara but permitted the jury to consider the claim against John. The jury found John liable and awarded compensatory damages of $750,000 but no punitive damages. After John's motion for judgment notwithstanding the verdict was denied, judgment was entered with interest and costs in the amount of $863,520.

John appeals, arguing primarily that the judge erred in permitting the case to go to the jury without expert testimony that Melissa's recall was the result of dissociative amnesia and without expert testimony explaining and supporting the concept that repressed memories may be recalled. Since we agree with him, we reverse. But, we also remand to permit Melissa to seek a new trial.

I.

In 1985, John and Barbara Gelpke lived in New Jersey and operated a limousine service out of their home in Gladstone. Barbara's mother, Betsy Phillips, lived next door. In March, John went to Florida to pick up a car for a New Jersey client. At Betsy's request, John looked in Florida for Betsy's other daughter, Susan and Susan's three-year-old daughter, Melissa Phillips. Susan, a heroin addict, had recently moved to Florida with Melissa's father who was also a heroin addict. John found Susan and Melissa living in a filthy shack, reeking of vomit, urine, and alcohol. He persuaded Susan to allow him to take Melissa back to New Jersey to live with Betsy.

For the next two years, Melissa lived with Betsy but often visited John and Barbara. Susan returned to New Jersey, and in June 1987, Melissa, then age six, began living with her, but continued to see Betsy, Barbara and John on weekends. In 1989, Susan gave birth to Melissa's half-sister, Jessica, and Jesica's father, Laszlo Repas, began insisting that Melissa eat apart from the rest of the family. In 1990, Susan married Repas, who did not like Melissa and often referred to her as "fat," "stupid," and "retarded." That same year, Susan told Melissa that her father had been murdered in 1988.

In 1992, Melissa, then age eleven, had the dream that is of central importance to this case. She dreamed that she was almost twenty and was having sex with John. She said that after having the dream, she began to remember previously forgotten incidents of sexual abuse perpetrated on her by John and beginning when she was three years old on the trip back from Florida. She recalled that in New Jersey, John regularly abused her sexually while Barbara was taking a shower. He would permit her to "hump" him in bed and touch his penis while he touched her vagina. She recalled masturbating in front of him at his request and playing with his erect penis while he spoke on the telephone. She recalled him telling her to tell no one so he would not get into trouble. She said she stopped engaging in these sexual activities when she was eight out of embarrassment after two girl scouts came to his door and possibly saw her "humping" John in the living room. She said that he apologized thereafter and said that he was happy she had not told anyone about what he had done.

In 1995, Melissa told Susan about the abuse, and Susan confronted Barbara with the information in Melissa's presence, but Melissa was too upset to discuss it. Over the next three years, she had no contact with John or Barbara. In 1998, Melissa complained to ...


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