The California Supreme Court today issued a decision in Taus v. Loftus, S133805. This is the civil suit by the subject of a controversial case study in recovered memory of childhood abuse against debunker Dr. Elizabeth Loftus et al. The Court of Appeal had whittled the plaintiff's claims down to four, and now there is one.
For the reasons discussed above, we conclude that the Court of Appeal erred in holding that plaintiff’s action should be permitted to go forward with regard to (1) Loftus’s alleged statements at the October 2002 conference relating to Jane Doe’s position in the military, (2) Loftus’s disclosure of plaintiff’s initials at the March 2003 deposition, and (3) defendants’ alleged action in obtaining information from confidential court records. At the same time, we also conclude that the Court of Appeal correctly determined that plaintiff’s action for improper intrusion into private matters could proceed based upon the claim that Loftus obtained personal and sensitive information regarding plaintiff from her former foster mother by misrepresenting herself as an associate of Corwin, a psychiatrist with whom plaintiff had a close professional relationship.
In footnote 11 on page 32, the court refuses to consider the argument of an amicus that the defendants had violated federal standards on human-subject research, which protect the identity of subjects. The plaintiffs had lost that point in the Court of Appeal and had not petitioned for review, so the issue was not properly before the Supreme Court. That would have made an interesting issue. The federal standards were a response to abuse in research. In most studies, there are a large number of participants (the word "subject" is now disparaged), no good reason for tracking down individuals, and very good reasons for assuring confidentiality to promote candid answers and broaden participation. For individual case studies, however, reconsideration of the individual case would seem to be a necessary check against bad science. Bad science can, as we all know, result in conviction of the innocent and acquittal of the guilty, and there is a very strong public interest in uncovering it.
The one cause of action that remains sounds very similar to the tactic of some capital habeas investigators who introduce themselves to jurors or witnesses as something other than representatives of the defendant.