California Appellate Court Allows Some Claims to Proceed in Case Against Loftus, Other Defendants in Defamation Case

In 2002, Skeptical Inquirer, the house publication of the Committee for the Scientific Investigation of Claims of the Paranormal (CSICOP) published two articles by Elizabeth Loftus and Melvin Guyer arguing that “case studies, although useful to scientists, are `bounded by the perceptions and interpretations of the storyteller,’ and should be used `to generate hypotheses to be tested, not as answers to questions.’ To illustrate their point, Loftus and Guyer provide `a case study of a case study–a cautionary tale.’ The case study they scrutinize is Corwin’s Child Maltreatment article.” The Child Maltreatment article in question is a famous one in the recovered memory literature and forms the basis of various ongoing defamation, libel, slander, negligent infliction of emotional distress and invasion of privacy suits against Loftus, Guyer, the Skeptical Inquirer, Carol Tavris, who wrote a companion article about the study, the University of Washington, where Loftus worked when she wrote the articles in question, and Shapiro Investigations, which “allegedly performed investigation services for Loftus.”

Briefly, the plaintiff in this lawsuit, Nicole Taus, was the subject of a “published `case study’ relating to allegations that she was abused as a young child. The premise of her case is that defendants invaded her privacy and committed other legal wrongs by piercing a veil of confidentiality that protected her during the case study and using information about her private life to publicly challenge the theories and conlusions advocated by the author of her case study.”  The case study at issue appeared in the May 1997 issue of Child Maltreatment, and was written by David Corwin and Ema Olafson. Corwin had conducted the original interviews with Taus, who was originally identified as “Jane Doe.” In the Skeptical Inquirer articles, Loftus and Guyer “summarize[d] the content of the Child Maltreatment article and offer[ed] the following summary of the reactions of professionals who had read about the Jane Doe case: “Corwin’s case study was vivid and compelling. Leading scientists were persuaded by it; indeed, emotionally moved by it. Few considered any other possible explanations of Jane’s behavior at six or at seventeen. Few were skeptical that Jane really had been abused by her mother…But we were.” (Emphasis supplied). ”

On September 18, 2003 the trial court “denied the motion to strike Taus’s emotional distress and invasion of privacy claims. It granted the motion to strike the third cause of action for fraud against Loftus but denied the motion as to the University. The court also granted the motion. The court also granted the motion to strike the fourth cause of action for defamation against Tavris but denied the motion as to Loftus. The court did not separately rule on Shapiro’s concurring motion.”

According to the Tavris article, “Loftus and Guyer were encouraged to pursue their story after finding that documents in the public record were not consistent with the Child Maltreatment article. The Tavris article describes how Loftus and Guyer were treated by the IRB’s at the universities were they were employed. The IRB at the University of Michigan, where Guyer was employed, allegedly initially took the position that its approval for this project was not necessary because Guyer would not be doing “human subject research” but then reversed its position a month later, “disapproved” the project, and recommended that Guyer be reprimanded. Then, several months later, a new chair of the IRB determined that this project was exempt from IRB consideration because it did not involve human subjects research and found there was no basis for recommending a reprimand.”

However, Loftus was treated quite differently. An “`investigation’ conducted by the University of Washington lasted more than twenty-one months, consisted of a series of shifting charges against Loftus which were often kept secret from her, and was fueled by improper outside influences including a scathing memorandum drafted by a member of the University of Michigan’s IRB who was critical of Guyer, and the litigation strategies of counsel in an out of state court case in which Loftus was a defense expert and Corwin was a plaintiff’s expert. Ultimately…Loftus was exonerated of charges of `scholarly misconduct’…”

As to Taus’ causes of action,