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A renowned trial expert on the malleability of the memory certainly had the right to challenge a psychiatrist’s study of a woman who claimed to recall childhood abuse, California 1st District Justice Paul Haerle said during oral argument Monday. But Haerle and another justice seemed to be struggling with how to balance academic freedom against the woman’s privacy rights. Where they come out will determine whether expert witness Elizabeth Loftus can get the woman’s suit dismissed under California’s anti-SLAPP statute. “No one is going to contest [Loftus'] right to get into this” repressive memory argument and refute another academic, Haerle said. “The question is: Is it a) necessary and b) appropriate” for Loftus and her private investigator to track down and interview the woman’s relatives?, the justice said. The woman is Nicole Taus, the subject of a 1997 case history in a professional journal about repressed memory. The article, by Taus’ therapist, David Corwin, simply calls her Jane Doe. Loftus, who has written a book called “The Myth of Repressed Memory,” is a defense favorite when it comes to challenging the idea that therapists can help patients retrieve long-forgotten incidents of sexual abuse. She claims she was skeptical of Corwin’s conclusions from his Jane Doe case history. So she and a colleague hired private investigation firm Shapiro Investigations to help gather information about Jane Doe’s past. Loftus and co-author Melvin Guyer wrote a two-part article for Skeptical Inquirer magazine in 2002, titled “Who Abused Jane Doe? The Hazards of the Single Case History.” Their stories still called her Jane Doe, but Taus made her own name public when she filed suit in Solano County Superior Court against Loftus, Guyer, Shapiro Investigations and Skeptical Inquirer. Loftus and the co-defendants tried to get the case dismissed under the state’s anti-SLAPP law, but a trial court judge refused. On Monday, the 1st District seemed reluctant to squelch scientific debate. But Justices Haerle and Ignacio Ruvolo suggested that Loftus and Shapiro Investigations may have crossed the line if all of Taus’ allegations hold up. Surely Loftus had a right to poke holes in Corwin’s study, Haerle said. But he questioned if it was necessary for the professor and her investigator to interview Taus’ birth mother, stepmother and foster mother. Thomas Burke, a Davis Wright Tremaine First Amendment lawyer who represents Loftus and some of the other defendants, countered that if academic scientists and private investigators can’t ask those questions, “You can’t be in that business.” But, Ruvolo interjected, Taus’ foster mother has alleged that Loftus told her she was “working with Dr. Corwin,” not working to refute him. The two justices also seemed to be giving much thought to Taus’ allegations that the defendants disseminated information from confidential court files about her, and that Loftus’ alleged comments about Jane Doe at a Chicago conference may have defamed her or invaded her privacy. Demosthenes Lorandos, a lawyer for the private investigation firm, said investigators found documents from the juvenile record inside a divorce file that was public. “The apparently juvenile record was sandwiched into some other record,” Lorandos told the court. The justices also took aim at Taus’ attorney, Julian Hubbard of Redwood City, Calif.’s McCloskey, Hubbard, Ebert & Moore. If academics have to evaluate case histories in order to debate, Ruvolo asked, “Where do you draw the line?” There is a difference between consenting to be part of a confidential study that comes with protocols and signing up for public scrutiny, Hubbard responded. Though Taus signed at least six consent forms allowing Corwin to use her story, they “established the parameters of her reasonable expectation of privacy.” The panel’s ruling in Taus v. Shapiro Investigations, A104689, is expected within 90 days.

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