GORDON KEENE VELLA. - On Point News

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANONYMOUS,
vs.
GORDON KEENE VELLA.
Plaintiff,
Defendant.
)
)
)
)
)
)
)
)
)
Case No. 8:04CV269
AMENDED BRIEF IN SUPPORT
OF MOTION FOR RELIEF FROM
JUDGMENT
The Defendant Gordon Keene Vella has filed a motion, pursuant to Fed. R. Civ. P.
60(b)(3) and/or 60(b)(6), for an Order granting him relief from the judgment entered against him
on claims of sexual assault and intentional infliction of emotional distress. (Filing No. 313.)
The Plaintiff’s case was built upon Dr. Daniel Brown’s testimony regarding the hypothesis of
“repressed memory” or “dissociative amnesia,” in general, and the verifiability and general
acceptance of that hypothesis. Having permitted Dr. Brown to testify, the Court implicitly found
that Dr. Brown presented sufficient evidence of his qualifications, so as to justify his testimony
as an expert witness, and that there was sufficient evidence put forward by the Plaintiff to
support the “dissociative amnesia” or “repressed memory” hypothesis under the standards
articulated in Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) and Kumho Tire Co. v.
Carmichael, 526 U.S. 137 (1999).
As it turns out, however, much of the testimony offered by Dr. Brown to satisfy the
pillars of Daubert, and thus justify admissibility, is not accurate. Misrepresentations or material
mistakes were made as to the error rate set forth by Dr. Brown, as well as the applicability to his
hypothesis of other studies and articles upon which he relied for support of the reliability and
relevance of his hypothesis, and the level of “general acceptance” of his hypothesis within the
00245078

elevant scientific community. Even the qualifications set forth by Dr. Brown are called into
question by this recently discovered information. 1
To be sure, the Defendant’s motion is not directed to a challenge of the methodology (if
any) employed by Dr. Brown in his analysis and subsequent testimony at trial. Rather, this
motion is focused directly upon the misrepresentations of fact made by Dr. Brown in testimony
intended to support the admissibility of his opinions. See Daubert, 509 U.S. at 589-93 (holding
that the district court operates as a gate-keeper with regard to proffered scientific expert
testimony).
In support of his motion, Vella has offered the declarations of three experts 2 in the fields
of psychiatry and psychology, Dr. Harrison G. Pope, Jr., Dr. Richard J. McNally, and Dr. R.
Christopher Barden. (Ex. 1, Pope Decl.; Ex. 2, McNally Decl.; Ex. 3, Barden Decl.) Their
opinions are based upon their review of Dr. Brown’s trial testimony, (see Filings 361-362), and
report (admitted at trial as Trial Exhibit 7). (Ex. 4, Trial Exhibit 7) (“Report”).
These experts have presented their credentials and qualifications as part of their
declarations. (See Pope Decl. 2-4 & Exs. 1-1, 1-2; McNally Decl. 1 & Ex. 2-A; Barden
Decl. 1, 4-10 & Exs. 3-A, 3-B.) Briefly, Harrison Pope is a Professor of Psychiatry on the
faculty of Harvard Medical School and a practicing board-certified psychiatrist and Director of
Biological Psychiatry Laboratory at McLean Hospital (the largest of Harvard’s teaching
hospitals). He has published more than 250 peer-reviewed papers, more than 100 chapters and
1 This information was newly discovered during the process of preparing the Defendant’s appeal
to the Eighth Circuit Court of Appeals.
2 Vella also has become aware of grand jury testimony by Brown in another case that reportedly
contains misrepresentations regarding the same or similar issues as those raised here. Vella’s
counsel is taking immediate steps to obtain that testimony and may, if successful, seek leave to
supplement this evidentiary showing in the near future.
- 2 -

eviews, and 7 books on different areas of psychiatry. Dr. Pope also is ranked among the 250
most widely cited psychologist and psychiatrists in the world, and among the 250 most cited
neuroscientists in the world. (Pope Decl. 2-3.) Similarly, Richard McNally is a full Professor
at Harvard and is among the 250 most widely cited psychologists and psychiatrists. He has
authored more than 300 publications, including peer-reviewed scientific research articles, books,
and essays. His recent book on memory, trauma, and the controversy over recovered memories
of abuse has been favorably reviewed in over 25 separate publications, including Science,
Journal of the American Medical Association, The New England Journal of Medicine, and The
New York Review of Books. (McNally Decl. 1.) Finally, Christopher Barden is a widely
published author and litigation consultant in the area of repressed memory testimony. That
involvement includes numerous licensing investigations, disciplinary processes, and/or license
revocation processes for therapists espousing theories of repressed and recovered memories, and
using recovered memory practices. (Barden Decl. 2, 4-10.)
JURISDICTION
This Court has jurisdiction to hear and rule upon the Motion under Rule 60(b)
notwithstanding the pendency of an appeal before the Eighth Circuit. Winter v. Cerro Gordo
County Conservation Bd., 925 F.2d 1069 (8th Cir. 1991) (recognizing that the district court
retains jurisdiction during appeal to consider a Rule 60(b) motion even though leave of the court
of appeals must be granted to enter order amending judgment if motion is to be granted) (citing
Pioneer Ins. Co. v. Gelt, 558 F.2d 1303 (8th Cir. 1977). 3
3
Contemporaneous with this filing, Defendant has requested that the Eighth Circuit Court of
Appeals stay the proceedings in that court pending resolution of the Rule 60 Motion.
- 3 -

ARGUMENT
The Defendant has requested relief from judgment under Rule 60(b)(3) or, in the
alternative, under Rule 60(b)(6).
To prevail on a Rule 60(b)(3) motion, the moving party must show with clear and
convincing evidence that the opposing party engaged in fraud, misrepresentation or misconduct
that prevented the movant from fully and fairly presenting its case. 4
Harley v. Zoeschi, 413 F.3d
866 (8th Cir. 2005); Sellers v. Mineta, 350 F.3d 706 (8th Cir. 2003). See also In re Vioxx Prods.,
489 F. Supp. 2d 587, 589 (E.D. La. 2007). Such relief is appropriate where material information
has been withheld, or incorrect or perjured information has been intentionally supplied. Matter
of Emergency Beacon Corp., 666 F.2d 754, 759 (2d Cir. 1981).
Significantly, relief under subsection (b)(3) does not require the Court to find that “the
information withheld be such that it can alter the outcome of the case.” Hesling v. CVX Transp.
Inc., 396 F.3d 632, 641 (5th Cir. 2005). That onerous standard is reserved for instances
involving allegations of misconduct “directed to the court itself, such as bribery of a judge or
jury or fabrication of evidence by counsel.” Greiner v. City of Champlin, 152 F.3d 787, 789 (8th
Cir. 1998). Rather, Rule 60(b)(3) is aimed at judgments that are unfairly obtained, and not
necessarily at those that are factually incorrect. In re Vioxx, 489 F. Supp. 2d at 589 (ordering
4
In this Motion for relief, Vella is asserting that Dr. Daniel Brown made numerous and
varied misrepresentations before this Court and before the jury. In reviewing the Rule 60(b)(3)
Motion, the Court must find that misrepresentations where made; however, misrepresentation is
rarely susceptible of direct proof. Under Nebraska law, proof of misrepresentation and the
underlying intention to deceive can be established by circumstantial evidence and legitimate
inferences arising therefrom, rather than direct evidence. Such inferences may be gathered from
a chain of circumstances depending largely on the common sense knowledge of the motives and
intention of men in like circumstances. Lincoln Ben. Life Co. v. Edwards, 45 F. Supp. 2d 722
(D. Neb. 1999); Matter of Laursen, 214 B.R. 378 (D. Neb. 1997); Erickson v. Nat’l Trans. Safety
Bd., 785 F.2d 285 (8th Cir. 1985); Jensen v. Sohler, 601 F.2d 353 (8th Cir. 1975); Rowe Intern.
Inc. v. J-B Enter., Inc., 647 F.2d 830 (8th Cir. 1981).
- 4 -

new trial under Rule 60(b)(3) upon evidence that expert witness had misstated his credentials so
as to include a license that he did not, in fact, hold at the time of trial).
The recent decision in In re Vioxx is particularly instructive here because it also involved
misrepresentations relating to factors touching upon the admissibility of an expert witness. Id.
More to the point, the misrepresentations in that case were made by the expert himself. Also
similar to the instant case, the expert in Vioxx offered testimony on the issue of liability. In fact,
the only real difference between the cases is that the expert here was proffered by the Plaintiff,
while the expert in Vioxx was proffered by the defendant.
The specific misrepresentation in Vioxx occurred during direct examination about the
expert’s qualifications and consisted of the following question and answer:
Q. Are you board-certified, sir?
A. Yes. I passed boards in internal medicine and cardiovascular disease.
Id. at 592. The witness went on to testify that, in his expert opinion, Vioxx was not a substantial
contributing cause of the decedent’s fatal heart attack. The jury subsequently returned a defense
verdict. Id.
In testimony before a different court several months later, the expert testified that his
board certification had lapsed, both in cardiology and internal medicine, and that he was in the
process of renewing those certifications. Id. at 593. Moreover, he admitted that the certification
had lapsed prior to his earlier testimony. In fact, the witness sought to justify his misstatement
by rewriting the punctuation in the response and maintained that his prior testimony was accurate
because it focused upon having “passed” his boards, rather than on whether he was or was not
currently board certified:
- 5 -

Q. . . . [defendant’s] lawyer they said, “Are you board certified, sir”? You
answered, “Yes. I passed boards in internal medicine and cardiovascular
disease.” That wasn’t true, was it?
A. Well, actually, I wouldn’t put a period after the yes, I made it very clear I
passed my boards [in] internal medicine and cardiovascular disease, I did.
Q. But the question is: “Are you board certified, sir”? And you told a jury
under oath, yes, and you are not board certified.
A. I absolutely in no way intended to misrepresent the currency of my
certification, absolutely not.
Q. But you may not have intended it, but it was wrong, and you told a jury it
was wrong.
A. No, sir, I did not intend to represent that I wasn’t lapsed or expired at all.
Q. Are you board certified or not?
A. My boards have lapsed. I’m not currently board certified. I have been
very clear about that.
Q. So you think that was clear to the jury in New Orleans?
A. Yes, I believe so.
Id. at 593.
The Vioxx court summarily rejected that rationale in granting the plaintiff’s subsequent
rule 60(b)(3) motion. Despite the expert’s protestations, the court had no difficulty finding that
the subsequent testimony constituted clear and convincing evidence that the expert had
misrepresented his qualifications to the court and to the jury. Moreover, the testimony revealed
that the expert “sought to avoid admitting that he was no longer board certified by adding a
caveat to his answer.” Id.
Additionally, the court found that the misrepresentation had, in fact, prevented the
Plaintiff from fully and fairly presenting her case to the jury. As justification for its findings, the
court noted that the witness “was a central witness in this case, and he offered expert opinions on
specific causation, arguably the central issue in this entire litigation.” Id. at 594. Furthermore,
the court stated that the misrepresentation called into question the court’s acceptance of him as
an expert and called into question his propensity for truthfulness. Id. Accordingly, the original
judgment was vacated and a new trial ordered.
- 6 -

Significantly, the court so held even though the plaintiff had ample opportunity at trial to
cross-examine the doctor concerning the certification and did not do so. Id. Also of
significance, the court did not require or seek to find evidence of actual prejudice to the plaintiff.
Nor did the court seek to determine whether the outcome would have been different but for the
misrepresentation. It was enough to conclude that his testimony was central to the case and that
it falsely represented evidence relevant to the admissibility and credibility of that testimony.
As will become apparent from the evidence offered in support of the instant motion, the
“misstatement” in Vioxx pales in significance to the varied and numerous misrepresentations and
material omissions that were advanced by Dr. Brown in the trial before this Court last April. The
Defendant has provided compelling evidence of Dr. Brown’s misrepresentations.
In the alternative, relief may be granted in this case under Rule 60(b)(6). Even if the
Court does not conclude that the testimony in this case satisfied the requirements of subsection
(b)(3), the Defendant has shown “exceptional circumstances that have denied [him] a full and
fair opportunity to litigate his claim and have prevented [him] from receiving adequate redress.”
Harley v. Minnesota Mining & Mfg. Co., 413 F.3d 866 (8th Cir. 2005). Under this portion of the
Rule, the Court has discretion to enter such relief for “any other reason justifying relief from the
operation of the judgment.” Fed. R. Civ. P. 60(b)(6). Indeed, Rule 60(b)(6) provides a grand
reservoir of equitable power to afford justice where relief is not warranted by the preceding
causes. As noted by the Fifth Circuit, the “broad language of clause (6) gives the court ample
power to vacate judgment whenever such action is appropriate to accomplish justice.” Harrell v.
DCS Equip. Leasing Corp., 951 F.2d 1453, 1458 (5th Cir. 1992).
- 7 -

THE MISREPRESENTATIONS AND MATERIAL OMISSIONS IN DR. BROWN’S
TESTIMONY AND REPORT WARRANT RELIEF FROM THE JUDGMENT UNDER
RULE 60(b) AND THE JUDGMENT SHOULD BE VACATED.
There is no dispute that Dr. Brown’s testimony in the underlying trial was admissible
only if it satisfied the requirements of Rule 702, and the cases construing that evidentiary
standard – most particularly, Daubert and Kumho. See, e.g., Duffy v. Father Flanagan’s Boy’s
Home, No. 8:03cv31, 2006 WL 308832, at *4 & n.4 (D. Neb. Jan. 26, 2006) (recognizing that
admissibility of expert opinions regarding the reliability of the theory of “repressed memory”
would be “subject to judicial screening” under Daubert). In particular, the opening portions of
Dr. Brown’s testimony reveal lines of questioning by Plaintiff’s counsel clearly intended to
address that standard of admissibility (i.e. qualifications, applicable error, general acceptance in
the relevant scientific community, and peer-review). (See generally Tr. Vol. I.)
In the context of expert testimony proffered under Rule of Evidence 702, district courts
play a pivotal role of “gatekeeper” in determining whether to allow a jury even to hear the
expert’s testimony. This “gatekeeper” function protects the jury from receiving at trial “expert”
evidence that fails to meet required standards of reliability and relevance. Further, the Court’s
role is critical because of the testimonial latitude granted to expert witnesses and to the
imprimatur of credibility that such witnesses present to a jury. See Daubert, 509 U.S. at 595.
Although not expressly set forth by the court in Vioxx, that court’s response to
falsification of the testifying expert’s credentials indicates its keen awareness of the mantle of
authority with which “expert” witnesses are generally bestowed.
There also is no question that “there is disagreement among experts and courts regarding
the validity and reliability of the phenomenon referred to as ‘repressed memory.’” Duffy, 2006
WL 208832, at *4 n.4. (See also Barden Decl. 7 n.1 and decisions listed therein.) This Court
- 8 -

is presumed to have been aware of that “disagreement” during the period leading up to and
during the trial last April. For that very reason, the Court was entitled to rely upon Dr. Brown’s
testimony as being truthful and complete, without “word-smithing” or material omission.
Regrettably, the Court’s reliance was misplaced and, as discussed at length below,
numerous misstatements and omissions were offered, including a number that went directly to
the heart of the admissibility of Dr. Brown’s expert testimony under Daubert, and all of which
impaired the integrity of the judicial process in this case in such a manner as to warrant relief
from the judgment.
A. Dr. Brown Misrepresented the Known Error Rate Applicable To His
Hypothesis Of Repressed Memory.
The most glaring misrepresentation in the record below is Dr. Brown’s assertion of an
error rate applicable to his hypothesis of repressed memory. Perhaps in response to the fact that
Dr. Brown has been excluded from testifying in other cases as a result, at least in part, of being
unable to articulate an error rate, 5 Plaintiff’s counsel asked Dr. Brown in the initial stages of his
testimony to explain the term “error rate” and to provide the error rate applicable to his
“science.” (Tr. Vol. 1, 43:1 - 44:5-6.) Dr. Brown’s response both “misrepresents the nature of
error rate and provides a series of statistics that falsely give the impression of scientific
precision.” (Pope Decl. 31.) The relevant portions of the exchange are set forth here:
A. Would you explain what a base rate of dissociative amnesia would
be?
Q. A base rate is after you factor out the error rate in science . . . .
5
(See Barden Decl. 33) (citing State of N.H. v. Hungerford, 697 A.2d 916 (N.H. 1997); State
of R.I. v. Quattrocchi, No P92-3759, 1999 WL 284882 (R.I. Super. Ct. Apr. 26, 1999); and State
of N.H. v. Bourgelais, No. 02-S-2834 line 3 (N.H. Super. Ct. Apr. 4, 2005).
- 9 -

So what a base rate is is what the general rate of the
population is after we subtract the error rate to the extent to which
we know that.
So a very conservative estimate would be of all the people
who are sexually abused as children, in my conclusion about 14 to
16 percent of those will completely forget the abuse and then
remember it years later. . . .
Q. What is the error rate? . . .
A. . . . So one way of looking at the error rate is what I call the direct
method.
And what we have is a number of studies, there are six
studies that actually when people completely forget the abuse they
had ways of estimating over time the estimate of people whose
reports were likely to be false. And in one study it was 2.5
percent. In another it was 5 percent. Another was 3.9 to 13.6
percent. Another was 4 percent. Another was 1.9 percent.
Another was 1.7 percent. If you average that out –
. . . .
(Id. at 43:1 - 45:20) (emphasis added.)
The average error rate across these studies is about five
percent, but that doesn’t mean in this given case it’s within that
five percent. It just means that that’s the general rate for all the
people who are abused who forget it.
Thus, Dr. Brown employed figures from studies addressing the “accuracy” of recovered
memories to provide an error rate for the hypothesis of dissociative amnesia or repressed
memory. According to Dr. Pope, this testimony is materially misleading:
These figures give the impression of great precision . . . because he
implies that the only source of the error in such studies was the possibility
of “people whose reports were likely to be false.” But in fact, the leading
source of error in such studies is that the assumption of “complete
forgetting” in such studies may itself be false, and indeed is very likely to
be false . . . .
(Pope Decl. 31.) Additionally:
- 10 -

[S]etting aside the question of whether these people’s reports were or were
not false, it is not possible to state with confidence that any of the people
“completely forgot the abuse.” In other words, the error rate for
diagnosing “dissociative amnesia” in the studies could effectively be as
much as 100%.
(Id.)
Indeed, Dr. Brown’s “passing off” his accuracy error rate as an error rate applicable to
the theory of repressed memory itself represents an overt misrepresentation, and Dr. Pope’s
characterization of it as being only “misleading” is generous to a fault.
The distinction between the theory itself and the accuracy of recovered memories is a
critical distinction and must not be overlooked, especially not in the present case. The question
of whether or not the “memories” are accurate, while relevant to the question of liability, does
not address the statute of limitations issue in this case. In fact, Dr. Brown’s representation of
error rate was in response to a question regarding the underlying hypothesis and not the
purported accuracy of allegedly recovered memories. The desire for an articulated error rate for
the hypothesis flowed naturally from the fact that Dr. Brown’s entire premise, and indeed the
ability to maintain Plaintiff’s case, was predicated upon the validity of Dr. Brown’s hypothesis
that an individual can “completely” forget or repress a memory and then fully recover that
memory years later. 6
(See Filing 225, Mem. & Order on Summ. J. at 15-17) (finding that Dr.
Brown’s testimony created genuine issue of material fact as to whether Plaintiff had, in fact,
been unable to access memories until long after limitations period ended.)
6
“Dissociative amnesia” refers to the hypothesis that an individual could develop
amnesia for a traumatic event, such that the person was unable to remember the event
afterwards. The term does not apply to individuals who simply tried not to think about
an event, or who had simply not recalled the event for a long period of time, but who
would have been perfectly capable of recalling the event if specifically asked about it.
(Pope Decl. 9.)
- 11 -

The Court and the jury relied upon the testimony of Dr. Brown for more than simply
whether or not there was a scientific theory supporting the accuracy of Plaintiff’s allegations.
The threshold question, as repeatedly noted by the Court during the trial, was whether Plaintiff
had, in fact, completely forgotten the alleged memories and recovered them less than one year
prior to the filing of the suit. Thus, the Court and the jury undeniably relied upon Dr. Brown’s
testimony concerning the Plaintiff’s position that she did not and could not remember the alleged
abuse prior to “recovering” the repressed memories.
Dr. Christopher Barden has offered additional information regarding the paucity of any
“peer review published, credible error rate” for Dr. Brown’s repressed memory hypothesis and
the absence thereof as a major reason for the exclusion of expert opinion testimony seeking to
apply this hypothesis. According to Dr. Barden,
[O]ne of the essential issues with regard to the admissibility of testimony
regarding “repressed memories,” “dissociative amnesia”, and related ideas
has been the lack of a peer reviewed published, credible error rate.
(Barden Decl. 33.) Indeed, the lack of a peer reviewed, credible error rate for “dissociative
amnesia” has plagued Dr. Brown’s ability to testify before other courts, and he has been “among
the expert witness proponents whose testimony was rejected in the fully litigated Hungerford,
Quattrochi, and Bourgelais cases.” (Id.)
In light of these previous exclusions, it is reasonable to assume that Dr. Brown was aware
that, in the absence of credible error rates to support the hypothesis, courts would continue to
question the validity of “dissociative amnesia” and that the possibility of exclusion was
significantly greater in the absence of an articulated error rate for the hypothesis in general.
It is also important to note that Dr. Brown mentioned no supporting evidence when
espousing an error rate related to this hypothesis, and probably for good reason. As explained by
- 12 -

Dr. Barden, “As a national expert who has reviewed this literature for decades, I am aware of no
credible research, theory, or journal articles to support Dr. Brown’s idiosyncratic and fanciful
claim to error rates. . . . It is my opinion that Dr. Brown’s method for concocting error rates is
highly unreliable and without credible scientific support.” (Id.)
As noted earlier, the point of this Motion is not to challenge the admissibility of Dr.
Brown’s testimony under Daubert. Rather, it is to expose the material misrepresentations and
omissions of Dr. Brown that infringed upon the legitimacy of the trial in this matter. Dr.
Brown’s subtle reference to an error rate for “accuracy” when asked about an error rate for the
scientific hypothesis itself is strikingly similar to the “word-smithing” that entangled the expert
in Vioxx. He may argue that his testimony was quite clear, and that the Court and the jury had no
reason to be confused about his answer – just as the expert in Vioxx insisted that his “yes”
response went to whether or not he had passed his boards. Yet that argument must be rejected in
the same manner as did the court in Vioxx.
In light of the absence of an applicable error rate for the hypothesis itself, and Dr.
Brown’s previous exclusions due to his inability to adduce an error rate as to that hypothesis, it is
more than fair to attribute a motivation to Dr. Brown to find an error rate, regardless of the
inappropriateness of his method for concocting it and then subtly attributing it to the general
hypothesis that “complete forgetting” does in fact exist.
judgment.
This basis alone is sufficient to warrant relief under Rule 60(b) and to vacate the
B. Dr. Brown Misrepresented to the Court That the Theory of “Dissociative
Amnesia” Has Been Subjected to Peer Review and Publication.
Another significant component of Dr. Brown’s testimony focused upon his representation
that the hypothesis of dissociative amnesia had, in fact, been subject to peer review and
- 13 -

publication. Indeed, during Dr. Brown’s testimony, he was specifically asked if the theory of
dissociative amnesia had been subjected to peer review and publication.
In his response, Dr. Brown loosely mentioned some 87 studies which he claims support
the hypothesis of dissociative amnesia. In fact, he testified that “all of the studies found at least a
certain subportion of individuals completely forgot the abuse for many years and later
remembered it. In fact, there is not one study of the 87 that failed to find complete forgetting, at
least in some percentage of the samples studied, which is unusual in science.” (Tr. at 42:15-21)
(emphasis added.) Thus, he pointedly testifies that the studies concluded that participants had,
in fact, “completely forgotten” sexual abuse, only to remember it years later. He did not testify
that a portion of participants may have “claimed” to have repressed and then recovered
memories. 7
However, in the process of trolling for evidence to support his theory, Dr. Brown has
elected to include numerous studies that either directly contradict the theory of dissociative
amnesia or that require misrepresentation of the data in order to afford them favorable
application to his hypothesis. These misrepresentations created an unmistakable impression that
dissociative amnesia finds wide support in peer reviewed publications. As revealed by an
examination of some of those studies, such is not the case.
Simply put, to one degree or another, Dr. Brown’s testimony is not a valid representation
of the studies. The error of his representation is seen with respect to both “retrospective” and
“prospective” studies involving memory.
The majority of the 87 studies mentioned by Dr. Brown, purporting to demonstrate
“dissociative amnesia” are retrospective investigations. (Pope Decl. 13.) In such studies, the
7 Additionally, his Report, made reference to numerous published articles and studies which he
alleged support the existence of “dissociative amnesia.” (Report at 2-3.)
- 14 -

subjects are asked if they recall having been sexually abused in the past. The individuals are
then asked if they ever did not remember having been sexually abused. Generally, a small
percentage of the participants say “yes.”
Dr. Brown cites as supportive of dissociative amnesia these studies where people selfreport
that they forgot some traumatic event and then later remembered it. However, Dr. Brown
does not explain that almost none of those studies made an effort to validate or explain the
meaning of a “yes” answer. (Pope Decl. 14.)
For example, Dr. Brown cites a study by Melchert and Parker as one of the “87” peer
review studies that supports his hypothesis. (See Tr. Ex 7 at 3.) As one of the few studies cited
by Dr. Brown where an attempt was made to assess the validity of a “yes” answer, the results
here are particularly compelling with regard to Dr. Brown’s persistent misrepresentation of
scientific authority. In that study, individuals who claimed to have had a period of forgetting
were given the opportunity to answer a multiple choice question exploring what they meant by
having a period of forgetting. (Pope Decl. 15, Ex. 1-3 (referencing the Melchert and Parker
study.))
The unmistakable conclusion from that study is that it offers no support for Dr. Brown’s
hypothesis notwithstanding his assertion to the contrary. Participants were permitted to choose
from various options to explain their responses that they had once “forgotten” the abuse, such as
“because I didn’t want to think about it,” and “because I was afraid of remembering it.” The
option closest to “complete forgetting” was “because I simply had no memories of it ever
happening.” Yet not one of the 46 subjects reporting that they had forgotten responded that they
simply had no memories of it ever happening. Despite that fact, Dr. Brown presents the
- 15 -

Melchert and Parker study as one of the 87 studies in which the authors found “complete
forgetting” when the study actually contradicts that theory. (Pope Decl. 16.)
Another study cited by Dr. Brown as supportive of dissociative amnesia, the Epstein and
Bottoms study, repeatedly questions the legitimacy of the theory, rather than offering support for
it. As Dr. Pope explains, Epstein and Bottoms opined that “some victims who report temporary
forgetting might have always remembered an event but thought about it differently during certain
periods of their lives . . . .” (Pope Decl. 17) (emphasis added.) Additionally, Epstein and
Bottoms noted that some respondents may have “forgotten” their abuse because they chose not to
think about it and not because the memories were actually unavailable. (Pope Decl. 18.)
The Epstein and Bottoms study is especially significant here because it confronted headon
Dr. Brown’s theory that repressed memories are “inaccessible” so as to constitute a basis for
tolling a limitations period. The authors of that study concluded that the temporary forgetting
reported by their test subjects would “not meet the [legal] standard set by the more common
delayed discovery doctrine adopted by many states to accommodate repressed memories of
abuse, wherein victims seek redress after normal statutes of limitations have lapsed must prove
that they had no memory (classic repression) of the sexual abuse until filing suit (Brown et al.,
1998).” (Pope Decl. 19.) Significantly, the “Brown et al., 1998” cited by Epstein and
Bottoms is the very same Daniel Brown who testified at trial in this matter. (Id. 20.)
Thus, the Epstein and Bottoms study repeatedly questions whether true amnesia has
occurred in any of the test subjects and explicitly concludes that the reports of forgetting would
not meet Dr. Brown’s own definition of repressed memories sufficient to toll a statute of
limitations, specifically calling out Dr. Brown by name, and contradicts Dr. Brown’s hypothesis
- 16 -

of “complete forgetting.” Nonetheless, Dr. Brown explicably cites the Epstein and Bottoms
study as supportive of his theory of dissociative amnesia.
Dr. Brown also cites numerous studies known as prospective studies where a traumatic
event is known to have occurred in the past. (See Pope Decl. 23-24.) However, these studies
also fail to demonstrate “complete forgetting” and prompt Dr. Pope to opine that Dr. Brown’s
misrepresentations have misled the Court and the jury by using that term. (Pope Decl. 23.)
In these prospective studies, individuals known to have suffered from some traumatic
event were interviewed at a later date to ascertain whether they recalled the experience. In many
of these tests, the subjects are not actually asked if they remember the specific trauma event.
Instead they were simply asked about traumatic events, in general. They were not asked whether
they remembered the known trauma even if they failed to disclose it. As Dr. Pope explained,
attributing “nondisclosure” to “complete forgetting” is misleading. (Pope Decl. 24.)
In fact, one prospective study cited by Dr. Brown as support for “dissociative amnesia”
reported finding no “special memory mechanisms unique to traumatic events.” (Pope Decl.
26.) A conclusion precisely opposite Dr. Brown’s hypothesis. In that study, Goodman and
colleagues followed numerous known victims of childhood trauma. Some of the victims did not
report their sexual abuse following interviews about trauma. At the conclusion of the study,
Goodman and colleagues cautioned that “failure to report CSA [childhood sexual abuse] should
not necessarily be interpreted as evidence that the abuse in inaccessible to memory.” (Id.)
(emphasis added.) Yet, despite the fact that the Goodman study questions whether failure to
report childhood sexual represents compete forgetting, Dr. Brown presents the study as
supporting that very theory. (Pope Decl. 27.)
- 17 -

Similarly, in another prospective study cited by Dr. Brown, a survey showed that some
individuals with confirmed abuse histories failed to mention their abuse when asked about it by
survey interviewers (e.g., Widom & Morris, 1997; cited in Exhibit 7, p. 9). The study authors,
however, emphasized that it was not known whether the nondisclosure was due to “loss of
memory, denial, or embarrassment is not known.” One cannot equate a failure to disclose with
an inability to remember. (McNally Decl. 10, citing Widom & Morris, 1997, p. 44.) Yet, Dr.
Brown repeatedly does so.
Dr. Brown also references a recent study by Bonanno in his Report, as supporting the
hypothesis of dissociative amnesia, despite the fact that “Bonanno and colleagues report no
evidence of ‘dissociative amnesia.’” (Pope Decl. 29.) In the Bonanno study, a group of 67
documented victims of sexual abuse were interviewed concerning the most distressful event or
series of events they had ever experienced. The interviewers did not disclose to the subjects that
they were aware of the previous sexual abuse. In response to the initial question to identify the
“most distressful event,” only 44 (66%) of the interviewees described the experience of sexual
abuse, whereas 23 (34%) did not. The interviewers then conducted a second, structured
interview asking more directly about sexual abuse experiences. “On this second interview,
virtually all of the formerly non-disclosing subjects acknowledged experiences of sexual abuse,
with only 2 still denying abuse.” (Pope Decl. 28.) Even in relation to these final two subjects,
Bonanno and colleagues made no suggestion that they suffered from “dissociative amnesia,”
because both subjects displayed high levels of shame during the interview process, suggesting
that they had not forgotten the abuse, but were simply choosing to withhold the information from
the interviewer. (Id.)
- 18 -

And the list continues. Dr. Brown misrepresented a 1983 study by Wilkinson as being
relevant to dissociative amnesia although the author found no such “memory mechanism.”
(McNally Decl. 6.) First, Wilkinson assessed PTSD symptoms among 102 witnesses of the
disastrous collapse of the skywalks within the Kansas City Hyatt Regency Hotel. Of those, 27%
reported memory difficulties, and 88% of them complained of repeated recollections of the
traumatic event. As is obvious to even the most causal observer, individuals who repeatedly
recollect traumatic events are not suffering from amnesia in relation to that trauma.
Nevertheless, Dr. Brown represented this study as supportive of his hypothesis of traumatic
amnesia even though Wilkinson did not report that the survivors were suffering from some
memory difficulties or exhibited repressed memories of the event. (McNally Decl. 6.)
An even more serious and suspect mistake is Dr. Brown’s citation to the Dollinger (1985)
study as support for “dissociative amnesia.” In that study, Dollinger interviewed 38 children
who were present at a soccer game when one of the children was struck and killed by lightning.
Dr. Brown’s misrepresentation as to this study is summarized by Dr. McNally:
In his book, cited in his report (Exhibit 7, page 1), Brown wrote that
“Dollinger (1985) found that two of the 38 children studied after watching
lightning strike and kill a playmate had no memory of the event” (Brown
et al., 1998, pp. 609-610). Although that statement is correct, Brown
inexplicably fails to mention that both amnesic children had themselves
been struck by side flashes from the main lightning bolt, knocked
unconscious, and nearly killed. Their inability to recall the trauma is
directly attributable to the brain damage they suffered – crucial facts
omitted by Brown. The other children present on the soccer field who had
not been struck by lightning remembered the horrific event all too well.
(McNally Decl. 7.) Once again, Dr. Brown inappropriately claimed that a study, which does
nothing more than document organic amnesia, supports “dissociative amnesia.”
Finally, Dr. Brown’s Report also cites Wagenaar and Groeneweg’s (1990) study of
former inmates of a concentration camp as supportive of the hypothesis of “dissociative
- 19 -

amnesia.” (Report at 2.) Similar reference to this study is made in his book to the effect that
“amnesia for Nazi Holocaust experiences has also been reported.” However, that
characterization of the study’s findings is misleading, at best. In that regard, the study noted a
“remarkable degree of remembering” when comparing the survivors’ current recollections of
their internment with depositions that they had provided shortly after their liberation. The study
did not note “dissociative amnesia.” (McNally Decl. 8.) The study’s authors remarked that
“There is no doubt that almost all witnesses remember Camp Erika in great detail, even after 40
years” (p. 84). (Id.) It is simply inexplicable that Dr. Brown would cite this study as supportive
of the hypothesis of “dissociative amnesia” when the study apparently contradicts the theory.
In summary, the instances documented above reveal an extensive pattern of
misrepresentation with regard to the peer review publications that support his theory of traumatic
amnesia and dissociative amnesia. There can be little question that the purpose of these
erroneous citations was to bolster the “reliability” and “relevance” of his theory, when in fact
these very studies either reach conclusions contrary to that theory or completely fail to address
the point. What is most significant here is that he was under no obligation to cite these studies.
But, having done so, he was assuredly under an obligation to truthfully represent the nature of
the study and the conclusions reached therein. The misrepresentations constitute grounds for
vacating the judgment under Rule 60(b).
C. Dr. Brown Misrepresented That the Theory of Dissociative Amnesia Is
Generally Accepted by the Relevant Scientific Community.
Dr. Brown also testified that the dissociative amnesia hypothesis is “generally accepted”
amongst the relevant scientific community; however, that assertion is patently false. At best, this
issue represents a heated controversy within the relevant scientific community – perhaps more
- 20 -

accurately it is akin to a land war. (See generally Barden Decl. 12-20 and authorities cited
therein.)
However, rather than simply admit the controversial nature of his theory, Dr. Brown
persists in misrepresenting surveys and studies as supporting a conclusion of general acceptance
when they do no such thing.
For instance, Dr. Brown cites certain surveys and testifies that a combined figure of 89%
of respondent members of the relevant scientific community either consider dissociative amnesia
valid or possibly valid. (Tr. at 46:14 – 47:4.) There are two major errors with Dr. Brown’s
conclusion. First, the surveys to which Dr. Brown cites involved mostly practicing clinicians
including psychiatrists, psychologists, social workers, counselors, and other types of therapists.
However, practicing clinicians are not the “relevant scientific community” in this case. (Pope
Decl. 36.) This is so because “such clinicians may or may not have sufficient training to be
able to evaluate the merits of a theory such as ‘dissociative amnesia.’ Indeed, many types of
practicing clinicians have had little formal scientific training, and very little ability to evaluate
the methodology and conclusions of peer-reviewed scientific studies.” (Id.)
Furthermore, even if clinicians are members of the relevant scientific community, Dr.
Brown has misled this Court as to the meaning of these surveys. In particular, the inclusion of
individuals responding “possibly valid” as being among those in general acceptance of the theory
is without support. As Dr. Pope notes:
The truth is that a response of “possibly valid” does not mean that a
hypothesis is scientifically accepted. For example, many scientists would
agree that there is “possibly” some form of life on Mars, at least on a
bacterial level. A search for evidence of such life is currently underway.
But the fact that many scientists think there is “possibly” life on Mars
does not mean that it is generally accepted in the relevant scientific
community that there is life on Mars.
- 21 -

(Pope Decl. 37.)
Further, the bitter opposition over the theory of “dissociative amnesia” is very well
documented within the scientific community.
The profound absence of general acceptance of dissociative amnesia among the relevant
scientific community was recently detailed in an Amicus brief to the Supreme Court of the State
of California in Tau v. Loftus, 151 P.3d 1185 (Cal. 2007). In fact, “dozens and dozens of the
most prominent mental health and social science professionals in the world on the issue of socalled
‘repressed and recovered memories’” joined as Amici to demonstrate the lack of
acceptance of the “dissociative amnesia” hypothesis was (Barden Decl. 12, Ex. 3-D.)
Dr. Pope recently conducted his own study concerning the general acceptance of
“dissociative amnesia” by asking 301 randomly chosen board-certified psychiatrists if they
believed that “dissociative amnesia” should continue to be included in the American Psychiatric
Association’s diagnostic manual, DSM-IV, as an official diagnosis. “Only 35% of the
psychiatrists responded that “dissociative amnesia” should be included as an official diagnosis
without reservations, with 48% feeling that it should be included only with reservations (for
example as a “proposed” diagnosis in the Appendix), 9% feeling that it should not be included at
all, and 9% having no opinion.” (Pope Decl. 38, Ex. 8.) This study demonstrates that there is
no general consensus amongst the relevant scientific community.
In addition to the Dr. Pope study, numerous articles published over the last 15 years
demonstrate widespread skepticism over the theory of “dissociative amnesia.” (Pope Decl., Ex.
9.) Among the numerous articles is one entitled “Custer’s Last Stand: Brown, Scheflin, and
Whitfield’s Latest Attempt to Salvage “Dissociative Amnesia”, which specifically addressed the
claims of Dr. Brown himself. (Pope Decl., Ex. 10.) “In the face of these publications – none of
- 22 -

which is mentioned by Dr. Brown in his testimony – it would be impossible to assert that there is
any ‘general acceptance’ of the ‘dissociative amnesia’ hypothesis in the relevant scientific
community . . . .” (Pope Decl. 39.)
As previously noted with regard to the other areas of misrepresentation, the absence of
“general acceptance” is not raised here for the purpose of lodging a formal Daubert challenge to
Dr. Brown’s testimony. Rather, the focus of this Motion is the varied and numerous
misrepresentations made by Dr. Brown in his testimony – representations that constitute far more
egregious and extensive offenses than those involved in the Vioxx case, and that warrant relief
from the judgment.
D. Dr. Brown’s Testimony Contains Other Misrepresentations That, When
Taken Together, Support Relief from the Judgment.
During the course of Dr. Brown’s testimony, and as part of his Report submitted to the
Court, Dr. Brown committed numerous other misrepresentations which raise questions about his
overall propensity for truthfulness. While the following misrepresentations and omissions may
not individually rise to the level necessary to support a Rule 60(b)(3) and/or 60(b)(6) Motion,
when taken together with the others, reveal a disturbing picture.
o Dr. Brown misled the court into believing that he is a member of the relevant
scientific community, when he is not. Under cross examination in other cases,
Dr. Brown has been forced to admit that he has he has zero years of experience as
a tenured faculty member at any accredited college, university or medical school;
zero years of experience as a tenure track faculty member at any accredited
college, university or medical school; zero publications in journals published by
the American Psychological Association; zero publications in journals published
by the American Medical Association; zero publications in journals published by
the American Psychiatric Association; zero publications in journals published by
the American Psychological Society; zero advanced degrees from any American
- 23 -

Psychological Association approved training program, and zero relevant research
experience in the relevant field. (Barden Decl. 31.)
o Dr. Brown claimed that the inclusion of “dissociative amnesia” in the DSM-IV
provided evidence that the hypothesis of dissociative amnesia was generally
accepted in the relevant scientific community. However, he failed to note that the
DSM-IV lists dissociative amnesia as a “pseudoneurological symptom” or
conversion system – symptoms that have no genuine neurological or medical
basis. Moreover, Dr. Brown wholly failed to inform the Court that “pseudoseizures”
– a condition attributed to Plaintiff by Brown – is contained in the very
same list of pseudonueorlogical symptoms. (Pope Decl. 47-58.)
o Dr. Brown failed to disclose the number of times he has been disqualified to
testify as an expert witness on the topic of dissociative amnesia. Prior to his
testimony in the Vella case, Dr. Brown is known to have been excluded from
testifying as an expert witness on the hypothesis of dissociative amnesia in State
of New Hampshire v. Hungerford and State of New Hampshire v. Walters, 698
A.2d 1244 (N.H. 1997); State of New Hampshire vs. Phillip Bourgelais, Case No.
02-S-2834, Judge Tina Nadeau, April 4, 2005. See State of Rhode Island v.
Quattrocchi, C.A. No. P92-3759 (R.I. 1999). (Barden Decl. 26.)
o Dr. Brown failed to apprise the Court of the history of the movement associated
with dissociative amnesia, including theories concerning international satanic
cults and CIA mind control experiments. (Barden Decl. 35-40.)
CONCLUSION
Dr. Brown’s numerous and varied misrepresentations, taken together, demonstrate either
an intentional attempt to mislead this Court on the issue of dissociative amnesia, or demonstrate
a truly reckless presentation of the facts concerning the hypothesis. Dr. Brown engaged in wordsmithing
to suggest an error rate, where none is recognized by the relevant scientific community.
Dr. Brown inexplicably cited to numerous publications as supportive of dissociative amnesia,
- 24 -

when many of those publications either directly refute the hypothesis or have to be taken so out
of context as to render the “interpretation” disingenuous. Dr. Brown alleges a general consensus
for the validity of dissociative amnesia while failing to address, or even mention, the dearth of
scientific evidence opposing the hypothesis.
Such misrepresentations and errors are more than sufficient to support the Defendant’s
motion for relief under Rule 60(b).
WHEREFORE, pursuant to Fed. R. Civ. P. 60(b)(3) and/or 60(b)(6), Vella respectfully
requests that the Court provide relief from its May 1, 2007 judgment by amending that judgment
or granting Vella a new trial.
Dated this 9th day of October, 2007.
GORDON KEENE VELLA, Defendant
By:
/s/Krista L. Kester
Krista L. Kester, No. 19320
Allen M. Tate, No. 23246
WOODS & AITKEN LLP
301 South 13th Street, Suite 500
Lincoln, Nebraska 68508
Telephone: (402) 437-8500
Fax: (402) 437-8558
krista@woodsaitken.com
atate@woodsaitken.com
- 25 -

CERTIFICATE OF SERVICE
I hereby certify that on October 9, 2007, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system that sent notification of such filing to the
following:
Herbert J. Friedman
Daniel H. Friedman
hfriedman@friedmanlaw.com
dfriedman@friedmanlaw.com
/s/Allen M. Tate
Allen M. Tate, No. 23246
Attorney for Defendant
WOODS & AITKEN LLP
301 South 13th Street, Suite 500
Lincoln, Nebraska 68508
Telephone: (402) 437-8500
Fax: (402) 437-8558
E-Mail: atate@woodsaitken.com
- 26 -