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Phillips v. Gelpke

May 17, 2007

MELISSA PHILLIPS, PLAINTIFF-APPELLANT,
v.
JOHN GELPKE, DEFENDANT-RESPONDENT, AND BARBARA GELPKE, DEFENDANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 382 N.J. Super. 505 (2006).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal the Court considers whether a case based on repressed memories of sexual abuse can be submitted to a jury without expert testimony explaining how the victim came to recall the abuse.

Melissa Phillips was living in Florida with her drug-addicted mother, Susan Phillips, when her maternal grandmother, Betsy Phillips, asked John Gelpke to search for them while he was in Florida on business. Gelpke's wife, Barbara, is Melissa's maternal aunt. Gelpke found Melissa and her mother living in squalid conditions. At Betsy's instruction and with Susan's consent, he brought three-year-old Melissa to New Jersey to live with her grandmother. Melissa came to reside at her grandmother's home next door to John and Barbara Gelpke.

Melissa testified that approximately seven years after she traveled to New Jersey with her uncle, she remembered they had stopped at a motel for the night. She believed that night was the first time Gelpke sexually abused her, although she admitted she could not actually remember what had occurred. Melissa further testified that while living with her grandmother, she would visit the home of her aunt and uncle next door. On morning visits, she would climb in bed with them and, when her aunt would leave to shower, she would remain alone in bed with Gelpke. Melissa climbed on top of Gelpke and would touch his genitals under his clothing.

When Melissa completed kindergarten, her mother returned to New Jersey and Melissa went to live with her. Melissa continued to visit her grandmother on weekends and, during those visits, similar incidents involving Gelpke would occur. The last of the incidents apparently occurred when Melissa was eight years old. Melissa also testified that she had a dream when she was eleven during which she imagined herself as a young woman having sexual relations with Gelpke. After that dream, Melissa's recollections of the earlier-described acts of sexual abuse returned to her episodically in flashbacks. When Melissa was fourteen and learned that her four-year-old half-sister was spending nights at Gelpke's home, she finally told her mother about her dream and her recollections.

Melissa filed the instant civil action against John and Barbara Gelpke when she was nineteen, claiming injuries based on sexual abuse that allegedly occurred when Melissa was between three and eight years old. Melissa submitted an expert report of a psychologist who opined on Melissa's injuries arising from the abuse and described, in general, repressed memories. The expert, however, did not diagnose Melissa with any disorder that caused repressed memory.

Defendants' counsel moved for summary judgment on the basis that Melissa did not produce expert testimony to support a diagnosis of a memory impairment and also because Melissa did not proffer independent corroborative evidence that any act of abuse occurred. The motion court denied the application. However, it later granted a motion barring Melissa's expert from testifying that she suffered from repressed memory syndrome because the report contained no such diagnosis.

Both John and Barbara Gelpke testified, denying that any sexual abuse occurred. In addition, they produced expert testimony from a psychologist who found that Melissa was not in acute distress and did not exhibit any current emotional difficulties. The expert also addressed Melissa's explanation that she recalled the acts of sexual abuse because she had a dream followed by intermittent recollections of events. He expressed the opinion that this was not "how memory works" because Melissa was suggesting she had forgotten not just pieces of information, but "a whole file of information." The expert concluded by stating that the concept of the "whole file" disappearing and then suddenly coming back "in my opinion is not how memory works."

At the close of the evidence, the Gelpkes moved for a directed verdict. The motion was granted as to Barbara Gelpke, but denied as to John. The jury returned a verdict against John Gelpke in Melissa's favor and awarded $750,000 in compensatory damages. The trial court denied the motion for a judgment notwithstanding the verdict, added interest and costs, and entered an aggregate judgment of $863,520.

On appeal, Gelpke claimed that the verdict should be vacated because Melissa failed to produce expert testimony to support her assertion that she had forgotten and then recovered her recollection of being abused. The Appellate Division agreed, concluding that repressed memory is a highly complex and controversial subject that should not be considered by a jury without expert testimony.

The Supreme Court granted Melissa's petition for certification.

HELD: Melissa Phillips's case did not require expert proof about her recall of the earlier sexual abuse as a condition of its submission to the jury. Melissa's ability to recall the events went to the weight to be accorded her testimony, not its admissibility.

1. The rules governing lay and expert testimony frame the start of the Court's analysis. The foundation for admission of lay testimony is simply the witness's personal knowledge. Once a lay witness's testimony, based on personal knowledge, is admitted, the extent to which the testimony is to be believed is for the jury. The admissibility of expert opinion testimony is addressed by Evidence Rule 702, which is permissive in nature. It provides that the lay finder of fact should be permitted to have the assistance of an expert's explanatory testimony when making determinations in areas of specialized knowledge. That said, certain claims do require expert testimony -- those involving esoteric matters to determine if there is a breach of duty; and in other types of actions in connection with proof of special tort elements. The question here is whether there is something peculiar about Melissa's recall of earlier events, which is beyond the ken of the average juror or is so esoteric that it requires explanation through an expert's testimony. (p. 11-14)

2. Melissa's case, plainly stated, was one of, "I forgot, and then I remembered" the incidents of sexual assault. This was not a case in which the jury was being asked to analyze the validity of a memory prodded by medication, hypnosis, or other third-party means of memory stimulation that requires explanation to assist a fact-finder in evaluation. The Court agrees with the trial court's conclusion that it was the jury's responsibility to consider Melissa's story of recollection and to determine whether it was credible, even though unadorned by expert validation. John Gelpke could, and did, present expert testimony to impeach Melissa's claimed ability to recollect the alleged childhood sexual abuse events. (pp. 14-16)

3. The Appellate Division, however, concluded differently because it imported into its analysis cases involving distinguishable settings. First, the panel relied heavily on a New Hampshire case where witnesses' repressed memories were brought forth only through the intercession of therapy. Melissa's recollections were not dependent on therapeutic retrieval. The Appellate Division also relied on cases where a complaint had been filed after the statute of limitations had run and a party had the burden of demonstrating tolling. Melissa's complaint was timely filed, so she did not have to meet any tolling discovery-rule requirement. (A cause of action does not accrue for a minor until he or she reaches the age of eighteen, and Melissa filed her complaint within two years of her eighteenth birthday.) Thus, the Court finds the cases relied on by the Appellate Division inapplicable. (pp. 16-21)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Appellate Division for consideration of John Gelpke's further issues on appeal.

JUSTICE RIVERA-SOTO has filed a separate, CONCURRING opinion, expressing the view that Melissa's testimony was admissible not because of some idiosyncratic theory of recall, but simply based on Melissa's competence as a witness.

CHIEF JUSTICE ZAZZALI and JUSTICES LONG, ALBIN, WALLACE, and HOENS join in JUSTICE LaVECCHIA's opinion. JUSTICE RIVERA-SOTO has filed a separate, concurring opinion.

The opinion of the court was delivered by: Justice LaVECCHIA

Argued November 13, 2006

At age nineteen, plaintiff Melissa Phillips sued her uncle, John Gelpke,*fn1 for injuries resulting from his sexual abuse that occurred when she was between three and eight years old. The jury awarded plaintiff $750,000 in compensatory damages. That verdict was reversed, however, when the Appellate Division accepted defendant's argument that plaintiff's case never should have advanced to the jury. Phillips v. Gelpke, 382 N.J. Super. 505, 507 (App. Div. 2006). Plaintiff's case was faulted for not including expert testimony to explain how she came to recall "repressed memories" of childhood sexual abuse events. Ibid.

We certified this appeal to review the reversal of plaintiff's judgment, 187 N.J. 79 (2006), and now, reverse. Plaintiff's case did not require the production of an expert to explain to the jury how she recalled her past sexual abuse. In this matter, there was no prodding of plaintiff's memory that necessitated an expert's explanation. The credibility of her memory was a matter for the finder of fact. Plaintiff was entitled to present her case of, "I forgot and then I remembered," and to take her chances before the jury. Moreover, to the extent the Appellate Division bolstered its holding by relying on statute of limitations tolling cases that involved an expert's explanation for a plaintiff's inability to recall repressed memories, the court's reliance was misplaced. Tolling cases, premised on a plaintiff's asserted inability to have "discovered" the tort injury, involve different proof requirements. An added showing is demanded of an untimely plaintiff as a condition for late entry to the courts for redress. In that setting, a plaintiff's testimony about forgetfulness, standing alone, cannot supply the justification for an asserted inability to have discovered the injury and timely filed the action.

In this matter, plaintiff's tort action was filed timely. Her cause of action never should have been subjected to a discovery-like threshold as a condition of its submission to the jury.

I.

Plaintiff was living in Florida with her drug-addicted mother, Susan Phillips, when her maternal grandmother, Betsy Phillips, asked defendant to search for them while he was in Florida on business. Defendant found Susan and Melissa living in squalid conditions. At Betsy's instruction and with Susan's consent, defendant brought three-year-old Melissa to New Jersey to live with her grandmother. Thus, plaintiff came to reside in her grandmother's home next door to defendant and his wife, Barbara, who is plaintiff's maternal aunt.

In relevant part, the following are the events plaintiff said she recalled concerning the alleged sexual abuse. Plaintiff testified that, approximately seven years after she traveled with her uncle to New Jersey, she remembered that they had stopped at a motel for the night. She described the motel room as having two beds and remembered that she started to rub her private parts on the end of one of the beds. She recalled defendant "ask[ing] me where I learned that from . . . [a]nd he . . . told me to come near him." Although she believed that night was the first time defendant sexually abused her, she admitted that "that[ was] all I can actually remember" about that event.

She further testified that while living with her grandmother, she often went next door to her aunt and uncle's home. On morning visits, she would climb in bed with them and play a game concerning who would shower first. Plaintiff testified that she would choose her aunt and, as a result, she would remain alone in the bed with her uncle. During those times ...


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