GORDON KEENE VELLA. - On Point News

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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 -
Page 1 and 2: IN THE UNITED STATES DISTRICT COURT
Page 3 and 4: eviews, and 7 books on different ar
Page 5 and 6: new trial under Rule 60(b)(3) upon
Page 7 and 8: Significantly, the court so held ev
Page 9 and 10: is presumed to have been aware of t
Page 11: [S]etting aside the question of whe
Page 15 and 16: subjects are asked if they recall h
Page 17 and 18: of “complete forgetting.” Nonet
Page 19 and 20: And the list continues. Dr. Brown m
Page 21 and 22: accurately it is akin to a land war
Page 23 and 24: which is mentioned by Dr. Brown in
Page 25 and 26: when many of those publications eit

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