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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Maness v. Gordon (3/21/2014) sp-6880

Maness v. Gordon (3/21/2014) sp-6880

Notice:   This opinion is subject to correction before publication in the PACIFIC REPORTER .  Readers are requested  

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BRET F. MANESS,                                       )  

                                                      )        Supreme Court No. S-14753  

                           Appellant,                 )  

                                                      )        Superior Court No. 3AN-07-11407 CI  

         v.                                           )  

                                                      )        O P I N I O N  

MIKE GORDON, WILLIAM                                  )  

MILLER, SHELLEY (DOE)                                 )        No. 6880 B March 21, 2014  

GORDON, JOHN DOE, FRED                                )  

POTTS, MARK KOLSTAD, ARVID                            )  

AB.J.@ BJORTON, MICHAEL                               )  

JUSTICE, JAMES SERFLING,                              )  


PIPKIN, SR., JUDITH RAE                               )

MANESS,                                               )


                           Appellees.                 )

_______________________________ )

                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial District, Anchorage, John Suddock, Judge.  

                  Appearances:  Bret F. Maness, pro se, Anchorage, Appellant.  

                  Kevin T. Fitzgerald, Ingaldson Fitzgerald, P.C., Anchorage,  


                  for  Appellees  Gordon  and  Gordon.  Howard  S.  Trickey,  

                  Jermain Dunnagan & Owens, P.C., Anchorage, for Appellee  



                  Before:  Winfree, Stowers, and Bolger, Justices. [Fabe, Chief  


                  Justice, and Maassen, Justice, not participating.]  

                  BOLGER, Justice.  

----------------------- Page 2-----------------------


                    Bret  Maness  sued  for  assault  and  battery,  sexual  assault,  intentional  


infliction of emotional distress, and false imprisonment, based on incidents alleged to  

have occurred in the 1970s.  The superior court concluded that Maness's claims are  

barred by the statute of limitations.  In this appeal, Maness argues that the discovery rule  


tolled the statute of limitations because he provided an affidavit stating that he suffered  


from repressed memory syndrome and has only recently recovered memories of these  


assaults.  But we agree with the superior court's conclusion that expert testimony is  


necessary to support a claim based on repressed memory syndrome and affirm the grant  

of summary judgment.  



                    Bret  Maness  alleges  that  the  defendants  committed  a  series  of  sexual  

assaults against him in the 1970s, when he was still a child.  He further alleges that,  


although the defendants used a combination of date rape drugs and hypnosis to cause him  


to forget these incidents, he recovered memories of the assaults shortly before filing his  


                    Maness filed a complaint in the Anchorage superior court on October 30,  


2007, seeking "general and special" damages for "intentional and/or negligent torts" and  


intentional infliction of emotional distress. Defendants James Serfling, Michael Gordon,  

and Shelley Gordon deny all of his allegations.1  

                    Serfling and the Gordons moved for summary judgment on the ground that  


Maness's claims are barred by the statute of limitations.  Maness opposed their motions,  


          1         Although  some  of  the  other  defendants  have  responded  briefly  and  

sporadically  to  Maness's  filings,  only  Serfling  and  the  Gordons  have  participated  


consistently in this litigation.  No other party filed a brief in this appeal.  

                                                               2                                                           6880  

----------------------- Page 3-----------------------

arguing that, because he recovered repressed memories of the sexual assaults less than  


a year before filing his complaint, the discovery rule applies, and his claims are not time- 


barred. To rebut Maness's argument, Serfling produced an affidavit from expert witness  


Dr. Charles J. Brainerd, a developmental and experimental psychologist.  Dr. Brainerd  


concluded,  based  on  Maness's  deposition,  that  "what  Mr.  Maness  describes  having  

experienced regarding his memories is simply not an example of the condition known  

as repressed memory syndrome."  

                   On May 11, 2011, the superior court ordered Maness to "submit an affidavit  


of a qualified expert supporting his claim, within 120 days."  When Maness failed to  

provide any expert testimony, the court granted the defendants' motions for summary  

judgment, 2 explaining  

                    [b]ecause   Maness's   claims   of   hypnotic   deception   and  

                   recovered memory are outside of the lay expertise of a jury,  


                   expert testimony is required in order to prove these claims.  

                   Defendant Serfling has provided expert testimony and other  


                   evidence  demonstrating  that  he  is  entitled  to  summary  


                   judgment on these claims, and Maness has failed to provide  


                   the expert testimony necessary to refute that showing.  

Maness now appeals from the superior court's order granting summary judgment.3  


          2        Although  only  the  Gordons  and  Serfling  filed  motions  for  summary  

judgment, the court granted summary judgment in favor of the other defendants as well.  


          3        Although the superior court's order is titled "Order Granting Motion to  

Dismiss," the order was issued in response to Serfling's motion for summary judgment.  

Therefore, the order appears to grant summary judgment rather than judgment on the  

pleadings under Alaska Civil Rule 12(c).  

                                                             3                                                       6880

----------------------- Page 4-----------------------



                    Summary judgment is proper where the moving party demonstrates that  



there is no genuine factual dispute and that it is entitled to judgment as a matter of law. 


When considering an order granting summary judgment, we must draw all reasonable  


inferences  from  the  facts  in  favor  of  the  non-moving  party.     We  review  a  grant  of  

summary judgment de novo.6  

                   We review the superior court's construction of the Alaska and federal  

Constitutions de novo.7  



          A.	      Because Maness Did Not Support His Allegations Of Repressed  

                   Memory Syndrome With Expert Testimony, His Claims Are Time- 


                   Maness argues that his claims are timely under AS 09.10.065(a) and AS  



09.10.140(b),  which apply to claims based on sexual abuse or sexual assault.  However,  

          4        Egner v. Talbot's, Inc., 214 P.3d 272, 278 (Alaska 2009); Mitchell v. Teck  

Cominco Alaska Inc., 193 P.3d 751, 757 (Alaska 2008).  

          5	       Mitchell , 193 P.3d at 758.  

          6	       Id. at 757.  


                   State, Dep't of Revenue v. Andrade, 23 P.3d 58, 65 (Alaska 2001).  



                   AS 09.10.065(a) eliminates the statute of limitations for an action based on  


any "conduct that would have, at the time the conduct occurred" constituted felony  

sexual  abuse  of  a  minor  or  felony  sexual  assault.    AS  09.10.140(b)  provides  that  a  

plaintiff may bring a claim based on misdemeanor sexual abuse more than three years  

after the plaintiff reaches the age of majority if the plaintiff brings the action "within  

three years after the plaintiff discovered or through use of reasonable diligence should  


have discovered that the act caused the injury or condition" that is the basis of the claim.  


                                                              4	                                                       6880

----------------------- Page 5-----------------------



both of these statutes were enacted long after the events he describes in his complaint, 



and neither applies retroactively.                       Therefore, Maness's claims are barred under the two- 


                                                                unless  he  can  establish  that  the  discovery  rule  

year  statute  of  limitations  for  torts, 



                      Under the discovery rule, where an element of a claim is not "immediately  

apparent," the statute of limitations does not begin to run until a reasonable person would  


have enough information to alert him that he "has a potential cause of action or should  


                                                                             Maness alleges that, from the date the  

begin an inquiry to protect . . . her rights." 

alleged sexual assaults occurred until shortly before he filed his complaint, he suffered  


from repressed memory syndrome, a psychological condition that blocked his access to  

           9          The relevant provision of AS 09.10.065 was added to the Alaska Statutes       

in 2001. Ch. 86,  1, SLA 2001;                      see also Catholic Bishop of N. Alaska v. Does 1-6                                , 141  

P.3d 719, 722-23 (Alaska 2006). AS 09.10.140(b) was enacted in 1990. Ch. 4,  3, SLA                                         

1990.  The latest event Maness describes in his complaint occurred in 1985.  



                      "Statutes are not to be applied retroactively unless the language used by the  


legislature indicates the contrary."  Matanuska Maid, Inc. v. State , 620 P.2d 180, 187 n.8  

(Alaska  1980);  see  also  AS  01.10.090  ("No  statute  is  retrospective  unless  declared  

therein.").  Neither AS 09.10.140 nor the session laws contain any language indicating  


that the statute was intended to apply retroactively. And we have already held that AS  

09.10.065 does not have retroactive effect. Catholic Bishop of N. Alaska, 141 P.3d at  



           11         See AS 09.10.070(a). Although AS 09.10.070(a) does not explicitly include  


claims for intentional infliction of emotional distress, it includes "libel, slander, assault,  


battery, . . . personal injury," and other torts similar to intentional infliction of emotional  

distress.  Therefore, an emotional distress claim is subject to the same two-year statute  

of limitations.  



                      Egner v. Talbot's, Inc., 214 P.3d 272, 278 (Alaska 2002) (internal quotation  

marks omitted).  

                                                                      5                                                               6880

----------------------- Page 6-----------------------


memories of the assaults.  Relying on caselaw from other jurisdictions, he argues that the  


discovery rule tolled the statute of limitations until he recovered the repressed memories.  

                    Many jurisdictions recognize that repressed memory syndrome may extend  

                                      13                                                                  14 


the statute of limitations,              but others have declined to adopt this rule.                          The superior  

court assumed, for purposes of its summary judgment order, that Maness could invoke  


the discovery rule based on his allegations of repressed memories.  However, the court  


granted summary judgment against Maness because it concluded that he could not prove  


his  repressed  memory  syndrome  claim  without  producing  expert  testimony.    That  

conclusion is consistent with the decisions of most courts considering repressed memory  

          13        See, e.g., Doe v. Roe, 955 P.2d 951, 960 (Ariz. 1998) (en banc) (noting that  

"[a]pplication of the discovery rule to tort sexual abuse cases is . . . the majority rule in  


this country" and collecting cases); Hearndon v. Graham , 767 So. 2d 1179, 1181 (Fla.  

2000); Doe v. Shults-Lewis Child & Family Servs., Inc. , 718 N.E.2d 738, 746 (Ind.  

1999); McCollum v. D'Arcy , 638 A.2d 797, 799 (N.H. 1994).  

          14        See, e.g., Bonner v. Roman Catholic Diocese of Boise , 913 P.2d 567, 568  


(Idaho  1996)  (noting  that  Idaho  does  not  apply   the  discovery  rule  under  any  


circumstances); Doe v. Maskell , 679 A.2d 1087, 1092 (Md. 1996) ("After reviewing the  


arguments on both sides of the issue, we are unconvinced that repression exists as a  


phenomenon separate and apart from the normal process of forgetting."); Lemmerman  


v. Fealk, 534 N.W.2d 695, 698 (Mich. 1995); Dalrymple v. Brown , 701 A.2d 164, 170- 


71 (Pa. 1997) (noting that a majority of jurisdictions have adopted the repressed memory  


syndrome rule but declining to adopt that rule).  

                                                                6                                                          6880

----------------------- Page 7-----------------------


syndrome  claims               as  well  as  Alaska  case  law  requiring  expert  testimony  to  prove  

medical or legal malpractice.16  


                    Maness  cites  Phillips  v.  Gelpke ,    for  the  proposition  that  he  need  not  


present expert testimony to invoke the discovery rule.  But he misreads that case.  The  

Phillips  court held that a plaintiff did not need to submit expert testimony in order to  


                                                                                            However, the court stated  

testify that she forgot, but later remembered, sexual abuse. 

that expert testimony would be a prerequisite to tolling the statute of limitations.19  


                    See, e.g., Doe v. Archdiocese of Saint Paul , 817 N.W.2d 150, 171 (Minn.                      

2012)  ("Without  expert  testimony  tending  to  prove  that  Doe  actually  suffered  from  

repressed memories from sometime before June 11, 1985, until sometime after April 24,  


2000, he cannot show that his claims are timely."); State v. King, 733 S.E.2d 535, 541-42  

(N.C. 2012) ("[I]f a witness is tendered to present lay evidence of sexual abuse, expert  


testimony is not an automatic prerequisite to admission of such evidence . . . . However,  

unless qualified as an expert or supported by admissible expert testimony, the witness  

may testify only to the effect that, for some time period, he or she did not recall, had no  


memory of, or had forgotten the incident, and may not testify that the memories were  


repressed or recovered." (citation omitted)); Moriarty v. Garden Sanctuary Church of  


God, 534 S.E.2d 672, 680 (S.C. 2000) (holding that expert testimony is required to prove  


that plaintiff recovered a repressed memory).  



                    See Parker v. Tomera, 89  P.3d  761, 766  (Alaska 2004)  ("[I]n  medical  


malpractice actions the jury ordinarily may find a breach of professional duty only on the  


basis of expert testimony. The primary exception to this rule is if the negligence claimed  


would be evident to lay people." (quoting Kendall v. State, Div. of Corr. , 692 P.2d 953,  


955 (Alaska 1984) (internal quotation marks, alterations, and citations omitted)); Ball v.  

Birch, Horton, Bittner & Cherot , 58 P.3d 481, 489 (Alaska 2002) ("Legal malpractice  

plaintiffs in Alaska must support their claims with expert opinion evidence unless the  

negligence alleged is sufficiently non-technical to be cognizable by laypersons.").  

          17        921 A.2d 1067 (N.J. 2007).  

          18        Id. at 1074.  

          19        Id. at 1075-76.  

                                                                7                                                          6880

----------------------- Page 8-----------------------


                     We  conclude  that  Maness's  claims  are  time-barred  because  he  cannot  


invoke the discovery rule without offering expert testimony.    Therefore, the superior  

court properly granted summary judgment on these claims.  


                     B.	        Requiring Maness To Prove His Claims With Expert Testimony  

                                Did Not Deprive Him Of Due Process.  


                     On appeal, Maness argues that requiring an indigent plaintiff "to hire an  


expert witness or suffer a summary judgment dismissal" violates the due process clauses  

of the Alaska and United States Constitutions.  Accordingly, he asks that this court  

remand his case "with the instruction that Mr. Maness is not required to produce any  

expert affidavit or testimony."  

                     Under  both  state  and  federal  law,  we  analyze  a  due  process  claim  by  


comparing the private interest involved and the risk of erroneous deprivation of that  

interest against the government's interest, including the fiscal and administrative burdens  


of additional procedural safeguards.                          


                     In this case, the private interest involved is the right of access to the courts  



to  pursue  a  personal  injury  claim.    This  right  is  important  but  not  fundamental. 



Accordingly, while courts have appointed expert witnesses in criminal trials                                                and civil  


                     Therefore, we need not, and do not, decide whether properly supported                  

allegations of repressed memory syndrome might extend the statute of limitations.  

           21        Titus v. State, Dep't of Admin., Div. of Motor Vehicles, 305 P.3d 1271, 1280  


(Alaska 2013) (citing Mathews v. Eldridge , 424 U.S. 319, 339-40 (1976)).  

           22	       Sands ex rel. Sands v. Green, 156 P.3d 1130, 1134 (Alaska 2007).  

           23        See  Ake  v.  Oklahoma,  470  U.S.  68,  76-77,  83-84  (1985)  (holding  that  

government's failure to provide criminal defendant with an expert witness violates the  

Due Process Clause of the United States Constitution where expert testimony is "basic  


tool[] of an adequate defense" and defendant cannot afford to pay for it).  

                                                                    8	                                                                6880  

----------------------- Page 9-----------------------



proceedings implicating fundamental interests,                            they have not recognized a right to an  

appointed expert in an ordinary civil case.25  

                    The  courts  have  adopted  a  similar  distinction  in  cases  considering  a  

litigant's  right  to  court-appointed  counsel.    An  indigent  criminal  defendant  has  a  



constitutional right to court-appointed counsel.                          And, in this state, that right extends to  


                                                 But a civil litigant does not have a right to appointed  

post-conviction proceedings. 

counsel unless the case involves a fundamental interest.28  

                    There is indeed some risk that Maness could be unjustly foreclosed from  

pursuing his personal injury claim.  Under the rule applied by the superior court, any  

          24        See, e.g., State ex rel. Children Youth & Families Dep't v. Kathleen D.C.                                     ,  

157 P.3d 714, 719 (N.M. 2007) ("[I]n certain circumstances, due process may require  

the appointment of an expert witness at the State's expense to an indigent parent in a  

neglect and abuse proceeding."); In re Shaeffer Children , 621 N.E.2d 426, 431 (Ohio  


App. 1993) (stating that due process requires the appointment of a psychiatric expert in  


certain permanent custody proceedings).  But see In re J.T.G., 121 S.W.3d 117, 130  

(Tex. App. 2003) (declining invitation to extend Ake to parental termination cases).  

          25        See  Brown  v.  United  States,  74  F.  App'x  611,  614-15  (7th  Cir.  2003)  


("Brown seeks to compel the government to bear the cost of and responsibility for hiring  


an expert witness to testify on his behalf in order to establish a fundamental element of  


his [medical malpractice] case.  However, no civil litigant, even an indigent one, has a  

legal right to such aid."); Kennis v. Mercy Hosp. Med. Ctr. , 491 N.W.2d 161, 167 (Iowa  

1992) (rejecting plaintiff's claim that statute requiring expert testimony to prove medical  

malpractice violated due process rights of plaintiffs who cannot afford to hire experts);  


see also Willoya v. State, Dep't of Corr., 53 P.3d 1115, 1122 (Alaska 2002) ("[Alaska  


Evidence Rule] 706[, which permits courts to appoint expert witnesses on their own  


motion,] was not intended as a means for an indigent party to obtain expert testimony at  


public expense.").  

          26        Gideon v. Wainwright, 372 U.S. 335, 344 (1963).  

          27        Grinols v. State, 74 P.3d 889, 895 (Alaska 2003).  



                    Bustamante  v.  Alaska  Workers'  Comp.  Bd. ,  59  P.3d  270,  274  (Alaska  


                                                                 9                                                             6880  

----------------------- Page 10-----------------------

plaintiff relying on repressed memory syndrome will forfeit his tort claim if he cannot  



produce an expert affidavit, whether or not his claims are meritorious or application of  

the discovery rule is warranted.  

                  However, this case also implicates substantial state interests.  The statute  


of limitations protects  against the injustice that may result from prosecution of stale  

claims29 and the difficulties caused by "lost evidence, faded memories, and disappearing  



                  The expert testimony requirement, in turn, addresses legitimate concerns  

about the accurate diagnosis of memory disorders:  

                  The     primary       reasons      other    courts     have     imposed        the  

                  requirement are the disagreement among the psychological  

                  and  medical  communities  about  the  validity  of  repressed  

                  memory syndrome, the danger a plaintiff's memories could  

                  be faked or implanted during therapy, and the desire that a  

                  plaintiff  not  have  the  ability  to  control  the  running  of  the  

                  statute of limitations solely by allegations whose only support  

                  is contained within the plaintiff's mind.[31]  


And it would require considerable expense for the public to provide expert testimony for  

all indigent civil litigants pursuing claims like this one.32  


                  The right to court access protected by the due process clause of the Alaska  


Constitution  is  broader  than  the  corresponding  federal  right,  but  it  is  "ordinarily  

         29       Bradshaw v. State,  Dep't of Admin., Div. of Motor Vehicles , 224 P.3d 118,  

122 (Alaska 2010).  

         30       Lee Houston & Assocs. v. Racine , 806 P.2d 848, 855 (Alaska 1991).  

         31       Moriarty v   .  Garden Sanctuary Chur             ch of God,  534 S.E.2d 672,  680 (S.C.  


         32        Cf. Bustamante, 59 P.3d at 274 ("Requiring the state to pay for counsel for  

workers' compensation claims would be an extraordinary fiscal burden.").  

                                                          10                                                       6880  

----------------------- Page 11-----------------------


implicated only when a legislative enactment or governmental action erects a direct and  


                                                                                            Accordingly, we have held  

insurmountable barrier in front of the courthouse doors." 



that due process is violated by a direct prohibition on filing suit                                or a prohibitively high  


filing  fee.          But  a  party  may,  consistent  with  due  process,  be  required  to  bear  the  


                                                                                                                    In a similar  

reasonable expenses involved in proving or defending a routine civil case. 


context,  we  have  sustained  a  court  order  denying  an  indigent  medical  malpractice  


                                                                                                                         The  due  

plaintiff's  request  for  appointment  of  a  medical  expert  at  state  expense. 

process balancing test requires the same result here.  

          33        Sands ex rel. Sands v. Green, 156 P.3d 1130, 1134 (internal quotation  

marks omitted).  

          34        Bush v. Reid , 516 P.2d 1215, 1220 (Alaska 1973) (invalidating a statute        

preventing parolees from filing suit); see also Sands, 156 P.3d at 1134 ("By forfeiting  

the personal injury claims of minors injured  before  the age of eight after their tenth  


birthdays, [the statute of limitations] effectively closes the courthouse doors to minors  

unfortunate  enough  to  have  parents  or  guardians  who  fail  to  diligently  pursue  their  



          35         Varilek v. City of Houston, 104 P.3d 849, 855 (Alaska 2004) (holding that  


a landowner's right to access the courts is violated by a mandatory administrative appeal  


fee if the landowner can demonstrate that he is unable to pay the fee).  



                    See McNeil v. Lowney, 831 F.2d 1368, 1373 (7th Cir. 1987) ("[T]he right  


of access to the courts does not independently include a waiver of witness fees so that  


the indigent litigant can present his case fully to the court."); Johnson v. Hubbard , 698  

F.2d 286, 288-89 (6th Cir. 1983) ("In clarifying the 'right of access' the courts have  

developed a distinction between actual access to the court and procedures essential to the  


trial process.  While allowing potential plaintiffs and defendants access to law libraries  


and other legal assistance, or the waiver of certain pretrial fees, there is no constitutional  


requirement  to  waive  costs  of  transcripts,  expert  witness  fees,  and  fees  to  secure  

depositions."); Kennis v. Mercy Hosp. Med. Ctr. , 491 N.W.2d 161, 167 (Iowa 1992).  



                    See Willoya v. State, Dep't of Corr., 53 P.3d 1115, 1121-22 (Alaska 2002).  

                                                                 11                                                          6880

----------------------- Page 12-----------------------


                   The state's  interest in an accurate and timely resolution of this dispute  


outweighs the risk that Maness will be erroneously deprived of a meritorious tort claim.  


We conclude that requiring Maness to support his claim of repressed memory syndrome  

with an expert affidavit did not violate due process.  


                   The judgment of the superior court is AFFIRMED.  

                                                           12                                                    6880

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