Recovered Memory Experts and FRE 702 Gatekeeping: Evaluating Whether Good Grounds Support Expert Testimony

It is no longer unusual for abuse claims to be lodged long after the alleged acts occurred. Although many states have lengthened or temporarily reopened the statute of limitations for child sexual abuse, it is still not unusual for plaintiffs to assert claims based on alleged "recovered" or "repressed" memories. This theory has been particularly controversial because of the possibility of counselors creating false memories.

The stakes in these kinds of cases are extremely high, with no margin for error. Attorneys bringing or defending abuse cases grounded in recovered memories—which may not be limited to sexual abuse—need to understand this exceedingly difficult and complicated subject in detail. 

In Cohen v. Cohen, the Third Circuit was confronted with a childhood sexual abuse case based on recovered memories. It reviewed how the district court should have analyzed the admissibility of the plaintiff's expert's opinion, specifically focusing on the requirements of FRE 702 and what happens when both sides present expert testimony. Cohen offers an in-depth analysis of the "recovered" memory theory and its experts, but more significantly sheds light on the nuances of FRE 702 and dueling experts that can be applied in any type of case.

Listen as this distinguished panel discusses expert evidence related to "repressed" or "recovered" memories and the lessons from Cohen that are applicable to any case involving experts and especially dueling experts. 

I. Repressed memory theory

II. Applying FRE 702 analysis to repressed memory theory

III. Lessons from Cohen

The panel will review these and other important questions:

• Is it repression or recovery of memories that is more controversial?
• What is an individualized Daubert analysis?
• How should courts assess studies under Rule 702?