ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory Bowes, Esquire Mark A. Lienhoop, Esquire
BOWES, PERKINS & HUTCHINSON, P.C. NEWBY, LEWIS, KAMINSKI & JONES
6100 N. Keystone Avenue, Suite 400 P.O. Box 1816, 916 Lincolnway
Indianapolis, IN 46220-2452 LaPorte, IN 46350-1816
JANE F. DOE, and, ) JANE I. DOE ) Plaintiffs ) Supreme Court No. ) 64S05-9712-CV-658 v. ) ) Court of Appeals No. SHULTS-LEWIS CHILD AND ) 64A05-9510-CV-400 FAMILY SERVICES, INC. ) Appellee (defendant ). )ON PETITION TO TRANSFER
APPEAL FROM THE PORTER SUPERIOR COURT The Honorable Roger V. Bradford, Judge Cause No. 64D01-9008-CT-2111 Cause No. 64D01-9008-CT-2112
We grant transfer in this case to clarify 1) our decision in Fager v. Hundt, 610 N.E.2d 246 (Ind. 1993), and 2) the role of expert opinion evidence in cases where plaintiffs claim that repressed memory of childhood sexual abuse has caused them to delay filing until after the statutory period of limitations has expired. In so doing, we shall also discuss the degree to which the reliability of expert opinion testimony must be proved at the summary judgment stage of proceedings.
recollection of the events themselves, but she now remembers the circumstances surrounding the
events. She remembers being held down on a bed by Grantham for a period of time. She
remembers being taken to different parts of the foster home to be alone with Grantham. In one
instance, Jane I. recalls that Grantham took her to a part of the building and was alone with her,
she believes in one of the infirmary rooms. She remembers leaving this area, and remembers
blood running down her leg, but has no recollection of what happened in that room. She
remembers taking pills given to her by Grantham which induced intense pain and vaginal bleeding.
She reported inappropriate behavior to another Shults-Lewis employee, Lester Allen, who told
her that Grantham was just trying to be friendly. (R. at 58.) Grantham admits that he had sex
with Jane I. between fifty and seventy-five times, touched Jane I. inappropriately hundreds of
times, and gave her quinine pills to induce an abortion when he feared he had impregnated Jane I.
limitations as dictated by Fager. The trial court again entered summary judgment for Defendant.
The Plaintiffs again appealed and the Court of Appeals reversed as to Jane I. only, finding that fraudulent concealment had been sufficiently invoked by Jane I. This finding was based on the belief that Jane. I.'s expert opinion affidavit raised a material factual dispute regarding whether Jane I.'s memory had actually been obscured due to the fraudulent acts of Defendant, thus precluding summary judgment. See Cole v. Shults-Lewis Child and Family Servs., Inc., 677 N.E.2d 1069 (Ind. Ct. App. 1997). The Court of Appeals entered this finding without ruling on the reliability of the expert opinion, believing that Shults-Lewis had waived this argument. See id. The Court of Appeals then granted rehearing in order to address the question of whether, had Shults-Lewis adequately objected to the reliability of Plaintiff's expert opinion affidavit, this affidavit nonetheless created a question of fact which would preclude summary judgment. See Cole v. Shults-Lewis Child and Family Servs., Inc., 681 N.E.2d 1157 (Ind. Ct. App. 1997). The Court of Appeals held that the expert affidavit did raise a question of fact regarding whether the plaintiff had repressed her memory, because Fager did not require that scientific validity be established in order to survive summary judgment, but rather required only that a plaintiff alleging repressed memories provide expert testimony 'supporting' the scientific validity of the phenomenon. Id. at 1160.
impliedly required expert opinion evidence in these types of cases. We revisit this issue for two
purposes. The first is to correct a misconception of the Court of Appeals as to the purpose of
expert opinion evidence in these types of cases. The second is to determine the information which
must be contained in the expert opinion affidavit in order to survive summary judgment.
plaintiff had failed to meet her burden of pointing to those acts of the defendant which triggered
the fraudulent concealment exception. We also found that because plaintiff submitted no
affidavits or depositions of qualified witnesses providing expert opinion to support the scientific
validity of repressed memory and to establish that her normal powers of perception and
recollection had been obscured by the phenomenon as a result of her father's sexual acts with
her, she was unable to show that the fraudulent act actually delayed the commencement of her
claim. Id. at 252. However, because the doctrine of fraudulent concealment was unavailable to
the plaintiff at the time she brought her claim, the case was remanded for reconsideration.
foster parents/guardians and were not their adoptive or biological parents. Guardians of minors
have all of the responsibilities and authority of a parent . . . . Ind. Code § 29-3-8-1(a) (1994).
A guardian is a fiduciary and must therefore act in good faith to protect the minor. See Ind. Code
§ 29-3-1-6 (1994). However, guardians are not protected under Indiana's parental immunity
doctrine. For policy reasons, parental tort immunity shields parents from most personal injury
actions brought by minor children. See Barnes v. Barnes, 603 N.E.2d 1337, 1339 (Ind. 1992)
(citations omitted). In contrast, Indiana law has held that wards can bring actions for private
wrongs against guardians for neglect of duty or fraudulent conduct. See State ex rel. Botkin v.
Leffler, 232 Ind. 541, 545, 114 N.E.2d 804, 806 (1953). Therefore, the high bar in Barnes and
the first part of the Fager test above requiring Plaintiff to assert intentional felonious conduct
against a parent, rather than mere tortious conduct, does not apply to the present facts.
An additional nuance arises where the defendant is not plaintiff's parent because Indiana law imputes knowledge of parents to children. Parents have natural and legal obligations to protect and care for their children; therefore, 'discovery' of a cause of action by a child's parent, even absent actual cognition or memory by the child, shall be imputed to the child and requires plaintiff to file his or her claim within two years of reaching the age of majority. Fager, 610 N.E.2d at 251. Consequently, an adult plaintiff who brings an action for childhood injuries against a defendant who is not the plaintiff's parent has an additional burden to show either 1) his parent or parent(s) did not know of the tortious conduct, or 2) the parent(s) knew of the tortious conduct and engaged in collusion to conceal the tortious conduct. We recognize that this reading of Fager disapproves prior cases. See, e.g., Gilp v. Neville, 681 N.E.2d 1173 (Ind. Ct. App. 1997) (holding action by adults who claimed neighbor sexually abused them as children and
memories were repressed was barred by statute of limitations even when parents had no
knowledge of abuse because parents should have discovered the injury); A.M. v. Roman Catholic
Church, 669 N.E.2d 1034 (Ind. Ct. App. 1996) (holding action by adult, who recovered repressed
memories, against church and priest for sexual molestation of plaintiff as child was barred by
statute of limitations when parent knew of molestation and succumbed to pressure of Bishop to
keep the incidents quiet).See footnote
In summary, when an adult plaintiff asserts a claim for tortious conduct committed against him or her as a child and brings an action beyond the statute of limitations period against a defendant who is not a parent, Fager and Indiana law, properly construed, require plaintiff to: 1) show his or her parent(s) did not know of the tortious conduct, or the parent(s) knew of the tortious conduct and colluded to conceal the tortious conduct; 2) prove the tortious act alleged; 3) show that the defendant, through his own actions, breached a duty to inform or engaged in wrongful conduct which prevented the plaintiff from discovering the cause of action within the statutory period, see Fager, 610 N.E.2d at 251, 253; 4) provide expert opinion evidence which supports the validity of the phenomenon of repressed memory and opines that plaintiff actually repressed memory of the abuse, see id. at 252; and, 5) show that the plaintiff exercised due diligence in commencing her action after the equitable grounds ceased to operate (i.e., recovered her memories), see id. at 251, and therefore brought the claim within a reasonable time after recovering memories of the events.
contrast to the stricter rules of common law, are available to the courts to administer justice
according to fairness. With respect to fraudulent concealment, principles of equity always
intervene . . . to prevent a party from gaining an advantage by wrongfully concealing an injury
from one who does not become aware of the injury until a time after the statute of limitations has
run. Guy v. Schuldt, 236 Ind. 101, 111-12, 138 N.E.2d 891, 895-96 (1995). To successfully
invoke the equitable doctrine of fraudulent concealment and toll the statute of limitations to the
time when plaintiff discovered the tort or recovered memories, plaintiffs must establish that the
concealment or fraud was of such character as to prevent inquiry, or to elude investigation, or to
mislead the plaintiff claiming the cause of action. Hughes v. Glaese, 659 N.E.2d 516, 520 (Ind.
1995) (quoting Guy v. Schuldt, 236 Ind. 101, 138 N.E.2d 891, 894 (1956)). The Court of
Appeals in the present case found that a plaintiff who claims repressed memory may carry this
burden by presenting an expert affidavit. It stated that a plaintiff may carry this burden by
submitting an affidavit by an expert witness supporting the scientific validity of repressed memory
and establishing that the plaintiff's normal powers of perception and recollection had been
obscured by the repressed memory as a result of the parent's sexual abuse. Cole, 677 N.E.2d. at
1074 (citing Fager, 610 N.E.2d at 252).
While it is certainly true that an expert opinion must be provided to show that a plaintiff's memories were in fact repressed as a result of the parent's sexual abuse, the expert opinion alone is not enough to trigger the fraudulent concealment exception, and this was not our intention in Fager. In Steward v. State, we reviewed the different purposes for which expert opinions are used in cases of childhood sexual abuse and explicitly disallowed the use of expert opinion evidence to prove the defendant's acts. See 652 N.E.2d 490, 496-97 (Ind. 1995). In other
words, an expert opinion cannot be used as proof of the defendant's actions themselves, but can
only be used to aid the jury in understanding conclusions drawn from these actions, if taken as
To reiterate, fraudulent concealment places a burden squarely on the plaintiff to point to the fraudulent or wrongful acts of the defendant. The purpose of the expert opinion evidence is to prove that, once the doctrine is invoked, a reason exists for the delayed commencement of a cause of action. Our finding that an expert opinion alone is insufficient to trigger the doctrine of fraudulent concealment does not leave Jane I. without a claim. Summary judgment was inappropriate in this case because Jane I., in her deposition testimony and through other designated evidence, pointed to those acts of the defendant which, when viewed in the light most favorable to her, constitute fraudulent concealment.
As stated above, fraudulent concealment estops a defendant from asserting the statute of limitation when he has prevented the plaintiff from discovering a potential cause of action either by engaging in wrongful conduct such as deception, or by a violation of duty. See Fager, 610 N.E.2d at 253. The facts of the present case are sufficient to raise a material factual dispute as to whether Shults-Lewis violated a duty toward Jane I. or engaged in wrongful conduct by deceiving her.
The evidence when viewed most favorable to Jane I. shows that Shults-Lewis may be estopped from asserting the statute of limitations by reason of fraudulent concealment. Shults- Lewis owed Jane I. the duty a guardian owes a child. Indeed, Jane I. was not able to pursue a claim against her caretakers because her caretakers failed in their ongoing duty to inform her of the facts and because the abuse under the facts of this case constituted wrongful conduct, all of
which concealed from her information necessary to bring her claim upon reaching the age of
There is evidence in the record that various employees were either engaging in the abuse, or made aware of the abuse.See footnote 5 Therefore, Jane I. raised a genuine issue of material fact regarding whether the fraudulent concealment exception to the statute of limitations was triggered by deception or a violation of this fiduciary duty, making summary judgment inappropriate on this basis.
an expert by knowledge, skill, experience, training, or education, may testify thereto in the form
of an opinion or otherwise. Evid. R. 702. Rule 702(b) imposes an additional requirement that,
in order for the testimony to be admitted, the court must be satisfied that the expert scientific
testimony is based on reliable scientific principles.
In Fager, we rejected plaintiff's claim in part because she had submitted no affidavits or depositions of qualified witnesses providing expert opinion to support the scientific validity of repressed memory and to establish that [plaintiff's] normal powers of perception and recollection had been obscured by the phenomenon as a result of her father's sexual acts with her. 610 N.E.2d at 252. However, the Plaintiff in the present case did submit an affidavit by a qualified witness opining that Jane I. had repressed memory of the abuse. This affidavit was submitted by Dr. Elgin Baker. Plaintiff's expert witness, Dr. Elgin Baker, is a licensed clinical psychologist and an associate professor at the Indiana University School of Medicine, Department of Psychiatry. He has treated several hundred survivors of childhood sexual abuse in his practice. His opinion that Jane I. repressed all memory of childhood abuse was based on his interview with Jane I., his experience with other victims of childhood trauma, and his analysis of the Minnesota Multiphasic Personality Inventory taken by Jane I.
The Plaintiffs appealed the grant of summary judgment in favor of Defendant, arguing that the Baker affidavit raised a genuine issue of material fact, making summary judgment inappropriate. Shults-Lewis responded that the affidavit could not be considered because it was not based on reliable scientific principles. The Court of Appeals, when they reversed the grant of summary judgment against Jane I., found that any challenge to the reliability of Baker's affidavit had been waived. On rehearing, the Court of Appeals found that, even had the claim of reliability
not been waived, the affidavit was sufficiently reliable to raise a material factual dispute regarding
whether Jane I. had repressed memories of the tortious conduct. The court concluded that:
Shults-Lewis's argument to the contrary notwithstanding, we do not read Fager as requiring, at the summary judgment stage of the proceedings, that a party asserting the phenomenon must establish the scientific validity of the repressed memory. Indeed the court acknowledged that its existence as well as its validity is in dispute. Rather, we read Fager as requiring only that the party at least provide expert testimony 'supporting' the scientific validity of the phenomenon.
681 N.E.2d 1157, 1159-60 (Ind. Ct. App. 1997).
We disagree with the Court of Appeals that Defendant waived any argument regarding the reliability of Dr. Elgin Baker's affidavit. In order to object to an affidavit in a summary judgment proceeding, the objecting party must direct the trial court's attention to a defective affidavit. See Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990); Avco Financial Servs. v. Metro Holding Co., 563 N.E.2d 1323, 1327 (Ind. Ct. App. 1990) (citations omitted). An affidavit which does not satisfy the requirements of T.R. 56 (E) is subject to a motion to strike, and formal defects are waived in the absence of a motion to strike or other objection. Gallatin Group v. Central Life Assurance Co., 650 N.E.2d 70, 73 (Ind. Ct. App. 1995) (citing Avco, 563 N.E.2d at 1327). However, Shults-Lewis did direct the court's attention to the Baker affidavit, and did object to the affidavit on the grounds that it did not meet the requirements governing expert opinion testimony. Shults-Lewis, in their Reply to Plaintiffs' Response to Second Motion for Summary Judgment filed by Shults-Lewis, made the following argument:
Even if the affidavit of Dr. Baker is considered by this court, and even if the court does not grant Shults-Lewis any continuance of the trial and the deadline for submitting materials in reply to the affidavit of Dr. Baker, the affidavit of Dr. Baker does not create a question of fact to prevent summary judgment against plaintiff. Fager requires expert testimony to establish the scientific validity of the theory of repressed memory. Fager, at 252. In addition, Indiana Rules of
Evidence 702 (b) provides that any of Dr. Baker's expert scientific testimony is
admissible only if the scientific principles on which it rests are reliable. Dr. Baker
does not assert that the theory of repressed memory, or any of his other opinions,
rest on reliable scientific principles as required by Fager and by IRE 702(b).
(R. at 371.)
Having determined that the reliability of the Baker affidavit was properly before the court, we are now squarely faced with the question of whether the record raised a question of fact as to whether Jane I.'s memories were, in fact, repressed. We agree with the Court of Appeals that in order to raise a question of fact regarding whether Jane I. actually repressed memory of the abuse, the plaintiff need only present information supporting the scientific validity of the methodologies and processes used to form his opinion.See footnote 6 This result is reached by a careful reading of Indiana Trial Rule 56(e), which governs the use of affidavits in summary judgment proceedings, and Indiana Rule of Evidence 702(b), which governs expert opinion testimony. Indiana Trial Rule 56 requires that [s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Indiana Rule of Evidence 702(b) was designed
to control the use of expert opinion testimony at trial.
On the other hand, the trial court is considered the gatekeeper for expert opinion evidence. See Ford Motor Co. v. Ammerman, 705 N.E.2d 539, 550 (Ind. Ct. App. 1999) (citation omitted) (petitions for transfer pending); see generally Steward, 652 N.E.2d at 498. The trial court must weed out unreliable junk science from reliable scientific evidence. To fulfill this function, it is entrusted with the discretion to rule on the admissibility of expert opinion evidence. In order to fulfill this function at the summary judgment stage of the proceedings, the trial court certainly needs something more than a list of admissible facts and a bald conclusion drawn therefrom. Indeed, if a bald conclusion by an expert were enough to defeat a summary judgment motion, the nonmoving party would always be able to defeat such a motion by the mere presence of an expert opinion.
Therefore, we believe that an expert opinion affidavit submitted in a summary judgment proceeding, in addition to asserting admissible facts upon which the opinion is based, must also state the reasoning or methodologies upon which it is based. The reliability of the scientific principles need not be established, but the trial court must be provided with enough information to proceed with a reasonable amount of confidence that the principles used to form the opinion are reliable. The trial court is in the best position to make such determinations, as it is in the trial court that the issue may be fully explored. This approach both allows the trial court to perform its gatekeeping function at the summary judgment stage of the proceedings and avoids placing an onerous burden upon the nonmoving party.
Further, this approach is consistent with the approach taken by several federal appellate
courts. Although not bound by a federal court's interpretation of the Federal Rules of Evidence,
this Court has noted the similarity between the Indiana Rules of Evidence and the Federal Rules of
Evidence, and recognized that federal case law interpreting the Federal Rules of Evidence may be
of some utility, particularly with regard to the rules governing expert evidence. See Steward v.
State, 652 N.E.2d at 498. The Seventh Circuit, in Mid-State Fertilizer v. Exchange Nat. Bank,
877 F.2d 1333 (7th Cir. 1989), was asked to consider whether an expert opinion affidavit raised a
genuine issue of material fact sufficient to avoid summary judgment. After considering the federal
rules governing both summary judgment proceedings and expert opinion evidence, it found that
an expert opinion must do more than supply a bottom line. Id. at 1339. Federal Rule 702(b)
requires that scientific expert opinion testimony be based on reliable scientific principles. See,
e.g., Kumho Tire Co. Ltd. v. Carmicheal, 526 U.S. ___, ___, 119 S. Ct. 1167, 1175, 143 L. Ed.
238, 251 (1999). The expert opinion must contain the underlying methodologies used to form the
opinion, because the trial judge must look behind [the expert's] ultimate conclusion . . . and
analyze the adequacy of its foundation. Id. at 1339 (citing Richardson v. Richardson-Merrell,
Inc., 857 F.2d 823, 929-32 (D.C. Cir. 1988)). In National Diamond Syndicate, Inc. v. UPS, 897
F.2d 253, 260 (7th Cir. 1990), the Seventh Circuit found that if the affiant offers an expert
opinion, she must give reasons for the opinion, and not merely state her conclusions. See also
Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 92 (1st Cir. 1993); Iacobelli Constr., Inc. v. County
of Monroe, 32 F.3d 19, 24-26 (2d Cir. 1994); Ambrosini v. Labarraque, 966 F.2d 1464, 1470
(D.C. Cir. 1992).
We must analyze the Baker affidavit to determine if it provides the court with more than a bald conclusion based on admissible facts, and we find that it does. Dr. Baker based his opinion
that Jane I. had repressed memory of the tortious conduct on his interview with her, his personal
experience with survivors of childhood sexual abuse, and the Minnesota Multiphasic Personality
Inventory (MMPI). Through his experience with his patients and his reading on the subject, he
developed a list of symptoms or traits commonly shared by those who repress memories of
childhood sexual abuse. He applied these factors to Jane I., and found that she had repressed her
memories. He analyzed the results of Jane I.'s MMPI and found that she registered high on the
repression subindex. The underlying methodologies and reasons informing Baker's opinion were
adequately expressed. This affidavit therefore raised a genuine issue of material fact regarding the
validity of the phenomenon of repressed memory and whether Jane I. actually repressed memories
of childhood sexual abuse, and summary judgment was inappropriate on this basis.
existence of a genuine issue of material fact as to all elements of her claim. When viewed in the
light most favorable to her, the evidence shows that Shults-Lewis violated its duty to protect and
care for her well-being while she was a child in the Shults-Lewis foster home. The evidence also
shows that this violation is sufficient to trigger the fraudulent concealment doctrine and toll the
statute of limitations because the abuse caused her to repress all memory of the abuse until shortly
before bringing her claim. Furthermore, the expert opinion testimony advanced by Dr. Elgin
Baker raises a genuine issue of material fact regarding whether she actually repressed memories of
the tortious conduct. Finally, we believe that Jane I. brought this claim within a reasonable period
of time after discovering the abuse. We affirm the result reached by the Court of Appeals, and
remand to the trial court for proceedings consistent with this opinion.
DICKSON and BOEHM, J.J., concur.
SULLIVAN, J., concurs in result without separate opinion.
SHEPARD, C.J., not participating.
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