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A state appellate court has dealt psychology professor Elizabeth Loftus, a well-known critic of repressed memory therapy, a memorable setback. On Friday, San Francisco’s First District Court of Appeal ruled that the UC Irvine professor can be sued for defamation and invasion of privacy arising from her public critique of a psychological case history. Loftus had sought to debunk the case of Nicole Taus, a formerly anonymous patient who had claimed repressed memories of childhood sexual abuse, in a magazine dedicated to “separating fact from myth.” The court also allowed a privacy suit to proceed against several other defendants, including Melvin Guyer, a University of Michigan psychiatry professor who worked with Loftus in challenging Taus’ claims. “Taus has presented evidence,” Justice Paul Haerle wrote, “that appellants used deception and trickery to penetrate a zone of privacy surrounding Taus’ close family members in order to obtain private information about Taus that would not have been disclosed in a truthful encounter.” He also said Loftus and the others may have “improperly accessed and used information from confidential court files.” “If a jury finds appellants engaged in such conduct, it could also reasonably conclude that such conduct was ‘highly offensive to a reasonable person,’” Justice Haerle wrote. “Thus, Taus has made a prima facie case of invasion of privacy based on an intrusion theory.” Justices James Lambden and Ignazio Ruvolo concurred in the 40-page unpublished decision. The court did strike Taus’ claims against the author of a separate Skeptical Inquirer article, and her negligent infliction of emotional distress claims against all the appellants. Taus, a Naval officer, was the subject of a 1997 case history by therapist David Corwin, who had interviewed Taus when she was 6 and again at 17. Identified only as “Jane Doe,” Taus had accused her mother of sexually abusing her. Loftus, author of a book called “The Myth of Repressed Memory,” questioned Corwin’s conclusions and hired Shapiro Investigations, an Elk Grove private eye firm, to gather information about Jane Doe’s past. Loftus and Guyer then wrote a two-part article in Skeptical Inquirer, a magazine published by the Committee for the Scientific Investigation of Claims of the Paranormal. The 2002 story was titled, “Who Abused Jane Doe? The Hazards of the Single Case History.” The articles referred to Jane Doe, but Taus made her name public when she filed suit in Solano County Superior Court in 2003. Loftus and the other defendants filed a motion to have the case dismissed as a SLAPP — Strategic Lawsuit Against Public Participation. In his opinion, Haerle also said Loftus might have slandered Taus at a 2002 conference by saying: “Jane Doe engaged in destructive behavior that I cannot reveal on advice of my attorney. Jane is in the Navy representing our country.” “When viewed in its totality, this challenged statement could reasonably be interpreted as implying that Taus’ ongoing destructive behavior or the effects of past behavior make her unfit for military service,” Haerle wrote. “Even if we were to find that fitness for military service is a subjective concept upon which reasonable minds could differ,” he continued, “the challenged statement directly communicates to the listener that the speaker has knowledge of undisclosed facts supporting a conclusion that Taus is unfit.” The court remanded the case back to Solano County for further proceedings. Julian Hubbard, a partner at Redwood City’s McCloskey, Hubbard, Ebert & Moore who argued the case for Taus, didn’t return a telephone call on Friday. Loftus’ attorney, Thomas Burke, a partner in the San Francisco office of Davis Wright Tremaine, declined comment, saying he hadn’t had a chance to review the decision or talk to his client.

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