California Supreme Court Allows Intrusion Case to Proceed to Trial

The closely watched case of Taus v. Loftis is apparently proceeding to trial, after the California Supreme Court found that plaintiff Nicole Taus presented  enough evidence to proceed to trial under a common law theory of intrusion into seclusion. Noted expert witness Elizabeth Loftus, who testifies regularly in "false memory" cases, is one of the defendants here.

In this particular case, the plaintiff, Ms. Taus, claims that Dr. Loftus improperly obtained information about Ms. Taus' foster mother, from whom Ms. Taus was estranged, by misrepresenting herself as associated with Ms. Taus' former mental health professional. Dr. Loftus denied that allegation. For many years Ms. Taus had been under the care of a psychiatrist, who had reported on her care in the medical literature. Dr. Loftus had investigated that case and wanted to critique it. Read more about her criticism of Ms. Taus' treatment in a pair of Skeptical Inquirer articles (also mentioned in the opinion) here and here.

"In the present case, Loftus was seeking to obtain from Cantrell, plaintiff's former foster mother, personal information about plaintiff relating both to plaintiff's memory of ostensible sexual abuse to which plaintiff had been subjected as a child by her mother, and to the effect of plaintiff's asserted recovery of that memory on plaintiff's subsequent behavior and emotional well-being — certainly the type of information as to which a person ordinarily would possess a reasonable expectation of privacy. (In this regard, it is relevant to recall that at the time Cantrell agreed to speak to Loftus about these matters, the fact that plaintiff was the “Jane Doe” referred to in Corwin and Olafson's 1997 Child Maltreatment article, or, indeed, the circumstance that plaintiff assertedly had been sexually abused as a child, was not a matter of general or public knowledge.) Furthermore, as revealed by Loftus's declaration, through her questioning of Cantrell, Loftus was able to obtain access to previously undisclosed information concerning plaintiff's alleged promiscuity and drug use following her 1995 session with Corwin — again, the kind of very personal and potentially embarrassing or detrimental information as to which a person ordinarily would possess a reasonable expectation of privacy.

"Of course, unlike some of the hypothetical scenarios described above, in the present case Loftus did not obtain access to this very personal information about plaintiff by breaking into Cantrell's home or by wiretapping her telephone, but instead obtained the information by questioning Cantrell. Because plaintiff had agreed to permit Corwin to use her case study at educational seminars and in an article published in a scientific journal — albeit without identifying plaintiff by name — it may well be that plaintiff could not have had an objectively reasonable expectation that an investigator or academic researcher, like Loftus, would not discover her identity and pose probing questions to Cantrell relating to such personal matters. In any event, because, as explained below, as a matter of law Loftus's simple engagement in such questioning would not constitute “highly offensive” conduct...it is clear that plaintiff would have no cause of action under the intrusion tort if, in response to such questioning by Loftus, Cantrell freely and voluntarily revealed this personal information about plaintiff to Loftus.

"According to Cantrell's declaration, however, Loftus did not simply approach Cantrell with questions about plaintiff, but instead misrepresented her (Loftus's) relationship with Corwin (a psychiatrist with whom plaintiff had a friendly and trusting professional relationship) — stating that she (Loftus) was Corwin's associate or supervisor — in order to persuade Cantrell to disclose personal information about plaintiff to Loftus. If Loftus engaged in such behavior, we cannot say, as a matter of law, that such questionable and unorthodox action constitutes conduct that plaintiff reasonably should have foreseen or anticipated. Instead, we believe a jury could find that plaintiff reasonably expected that an investigator would not seek and obtain access to such personal information about her from a relative or friend by falsely posing as an associate or supervisor of a mental health professional in whom plaintiff had confided."

The case is Taus v. Loftus, 40 Cal. 4th 683; 151 P. 3d 1185; 54 Cal. Rptr 3d 775; 35 Med. L. Rptr. 1657 (2007).