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Logerquist v. Hon. McVey6/12/2000
Special Action from the Superior Court in Maricopa County The Honorable Michael R. McVey, Judge
VACATED AND REMANDED
Turley Swan & Childers, P.C. Phoenix
Applying the rule of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the trial judge entered an order precluding "expert testimony of Plaintiff's alleged repressed memory." We granted review to clarify Rule 702, Arizona Rules of Evidence, which governs the admission of opinion testimony.
The construction and application of Rule 702 has become an issue of nationwide concern following the United States Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993). Daubert and its progeny reject the Frye test and construe Rule 702, Federal Rules of Evidence, to create a "gatekeeper" function for federal judges. The question of whether to apply Frye or Daubert to Ariz.R.Evid. 702 appears with increasing frequency and creates uncertainty in this and many other cases pending in our trial courts. To settle this policy question for Arizona courts, we take the rare step of reviewing the propriety of the trial court's interlocutory order. See Piner v. Superior Court, 192 Ariz. 182, 184-85, 962 P.2d 909, 911-12 (1998); Summerfield v. Superior Court, 144 Ariz. 467, 469, 698 P2d 712, 714 (1985). We have jurisdiction under Arizona Constitution art. VI, § 5(4).
FACTS AND PROCEDURAL HISTORY
Kim Logerquist (Plaintiff) alleges that her pediatrician (Defendant) sexually abused her on several occasions between 1971 and 1973, when she was eight to ten years old. Plaintiff further alleges that she had amnesia about those events until 1991, when her memory was triggered by watching a television commercial featuring a pediatrician. She sought "to introduce evidence, through expert testimony, that severe childhood trauma, including sexual abuse, can cause a repression of memory, and that in later years this memory can be recalled with accuracy." Minute Entry Order, June 11, 1998, at 1 (hereafter June 11 Order).
Over objection, the trial judge granted Defendant's motion that a Frye hearing be held to assess the admissibility of expert testimony regarding repressed memory. Two experts testified at this hearing. Plaintiff called Dr. Bessell van der Kolk, a clinical psychiatrist who specializes in dissociative amnesia. He testified regarding the large number of patients who alleged such phenomenon and about his diagnoses of dissociative amnesia or post-traumatic stress disorder in such patients. He would testify, among other things, that his experience and observations over many years, together with the extensive literature on the subject, have led him to conclude the phenomenon exists in some patients. Defendant's expert, Dr. Richard Kihlstrom, a research psychologist, testified there were serious flaws in the many studies supporting repressed memory and cited other studies finding trauma usually enhances memory rather than causes amnesia. Doctor Kihlstrom did not, however, have any personal experience treating or dealing with people claiming to suffer from repressed memory; nor had he participated in any studies on trauma's effect on memory.
After a lengthy hearing, the trial judge determined the "theories advanced by Plaintiff's experts are not generally accepted in the relevant scientific community of trauma memory researchers." June 11 Order, at 4. The judge therefore "ORDERED excluding expert testimony of Plaintiff's alleged repressed memory, and Plaintiff's theory that such evidence can be recalled with accuracy." Id.
Because this interlocutory order was not appealable, Plaintiff sought review by
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