In our last blog, we talked about the importance of using voir dire to examine the reliability and validity of expert witness’ testimony. Here, PsychLaw.net examines a specific case example, In re R.W.W., Montana, 2017, where Drs. Silberg and Geffner provide testimony that proliferates the spread of misinformation.
In re R.W.W., Montana, 2017:
In re R.W.W.[1] was instituted in 2014 when the court-appointed guardian ad litem (GAL) requested emergency relief from the Court due to Mother’s behavior.[2] The parents in In re R.W.W. divorced in 2011 and a shared parenting plan was entered for the parties’ child born in 2004.[3] Beginning in January 2014, the GAL “became concerned” because Mother was “applying significant pressure on R.W.W. to lie about his dad to law enforcement personnel, Child and Family Services …, and other third parties.”[4] This included taking the child to the:
Police Station and presented a story of [Father] and others plotting during a Thanksgiving celebration to kill [Mother], all in front of R.W.W. [Mother] presented the same story to CFS. Upon investigation, the story turned out to be false. Further, GAL …related that when she saw R.W.W. in January 2014, he was in extreme distress and presented in a fetal position, with his hood pulled over his eyes. When GAL … asked what was wrong, R.W.W. repeatedly said that he could not say and that his mom told him he would go to jail if he did. Eventually, R.W.W. recounted that [Mother] had made him lie about the incident.[5]
The GAL informed the court that this was the “worst case of attempted parental alienation” that the GAL had seen.[6] In response to the GAL’s opinion, Mother requested the GAL be removed, which the court did. The court also appointed a professional to investigate and make a recommendation.[7] The investigator met with R.W.W. 10 times, and recommended the child spend two weeks with Father and one with Mother on a rotating basis until “some” of Mother’s parenting deficiencies were corrected.[8] At an emergency hearing in January 2015, the investigator, who had conducted two further interviews with R.W.W., testified that Mother’s behavior had worsened, the child’s “stress level” had worsened, and he wanted to live with his father.[9]
In response to this testimony, Mother “issued subpoenas” to the investigator’s licensing board, filed a disciplinary complaint against Father’s counsel,[10] and hired Dr. Silberg. According to the record, allegations of abuse “mysteriously arose right when … Dr. Silberg came on the scene.”[11] Dr. Silberg testified that, in her opinion, this was a “classic case” of domestic abuse by Father against Mother.[12] The record reveals that the court “roundly dismissed the absurd contentions of abuse.”[13]
The court records document that in December 2015, at the hearing for a final parenting plan, the child’s counselor expressed concerns about Child’s suicidal ideas offering:
[W]hen R.W.W. has been at [Mother’s] home and then comes in for therapy, he is always agitated and has a sense of urgency and pressure to relate bad things about his father … insists that [the parenting coordinator] be told these bad things … has suicidal ideations … was concerned that his mother might not be able to live if he was taken away from her and … she does not get out of bed when he is gone.[14]
The child’s therapist testified that contrary to how the child is after being with his mother, “R.W.W. feels safe and relaxed with [Father] and … has a good relationship with his father.”[15] The parenting coordinator agreed, noting that while in Mother’s care, the child “was tired, his posture was defensive, and at times … would assume a fetal position …. In comparison, when … with his father, he appeared rested, laughing, and demonstrated a good sense of humor.”[16]
Apparently in response to this and other evidence that Mother’s parenting should be supervised, Mother hired Dr. Robert Geffner.[17] Father objected because it appeared Mother wanted to relitigate the abuse allegations Dr. Silberg described, which were “roundly dismissed” as “absurd.”[18] Nevertheless, the court allowed Dr. Geffner to testify for Mother “based on only a review of the records”[19] and only as to issues subsequent to the Court’s prior determinations.
When examining Dr. Geffner, Father’s attorney referred to prior cases in which Dr. Geffner had attempted to provide expert testimony, including O’Rourke v. O’Rourke, supra, Clark v. Collin[20]s(in which the court found that Dr. Geffner’s affidavit lacked credibility), and Hawaii v. French[21] (where “the court likewise excluded Dr. Geffner’s testimony”).[22] In this case, Father was worried that Dr. Geffner would attempt, as he had in O’Rourke, to disparage the other psychiatrists or psychologists who were testifying as experts.[23] Father’s attorney also confronted Dr. Geffner with two affidavits he executed in O’Rourke, in which he accused Mr. O’Rourke of abuse, when he had not spoken to him or any of the other witnesses.[24]
Then it got worse. In cross-examination, Father’s attorney asked Dr. Geffner: “I believe you told me … that you have testified in over 300 cases and your opinion has never been excluded; is that correct?” Similar to Dr. Silberg’s testimony in D.T. v N.O.[25] Geffner answered that his testimony had not been excluded.ccxiv Father’s attorney then presented the Court with a copy of a Tennessee appellate opinion in which that court noted, “The court likewise excluded Dr. Geffner’s testimony in Hawaii v. French.”[26]
Father’s attorney also confronted Dr. Geffner with the opinion of the O’Rourke trial judge—that Dr. Geffner had “adopted Mother’s scorched earth tactics” and that his testimony was “… completely without merit and that he truly fits the definition of a ‘hired gun.”[27] In response, Dr. Geffner claimed that O’Rourke “was the last case that judge ever heard,” and “he was basically forced to resign.”[28] Dr. Geffner also testified that the expert on the other side of the O’Rourke case was being investigated by the FBI for recommending a change of custody to a father who Dr. Geffner said was sexually abusing his child.[29] Dr. Geffner then went on to spontaneously offer that that expert’s opinion was not backed by research and the American Psychiatric Association had “repudiated him.”[30]
Given these remarkable statements, the trial court investigated them and specifically found that, regarding the judge in O’Rourke: he remained on the bench for 8 more years, then started a law firm, then was appointed a Senior Judge, taught at a law school, was an approved mediator, and then served as a Special Judge for the Tennessee Court of Appeals.[31] The trial judge also looked into the expert and found that he was never investigated by the FBI, and he was a “respected and distinguished professional.”[32]
The court set out its findings of fact and conclusions of law in a detailed 43-page Order, and after describing Mother’s conduct as “toxic litigation tactics”[33] concluded that the child was “not emotionally safe” when with his mother, ordered that she have no contact for a period of time and then only 4 hours of supervised parenting time every other week.[34] A five judge panel of the Montana Supreme Court affirmed the Order.[35]
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[1] In re R.W.W., 2017 MT 174N, 400 P.3d 230 (styled by the parties and district court as Wolf v Wolf).
[2] Id. at ¶ 5, 400 P.3d 230.
[3] Id. at ¶ 3, 400 P.3d 230.
[4] Id. at ¶ 4, 400 P.3d 230.
[5] Id. at ¶ 4, 400 P.3d 230.
[6] Brief of Petitioner and Appellant, In re R.W.W., 2017 MT 174N, 2017 WL 1102240, at *5 (Mont. Mar. 13, 2017).[hereinafter Wolf Brief]
[7] In re R.W.W., 2017 MT 174N at ¶ 5, 400 P.3d 230.
[8] Id. at ¶ 6, 400 P.3d 230.
[9] Id. at ¶ 7, 400 P.3d 230
[10] Id. at ¶ 8, 400 P.3d 230.
[11] Transcript at 10, 30, 117, Wolf v. Wolf, No. DR-13-380CX (J Gallatin Co., Mont. June 3, 2016) [hereinafter Wolf Tr.]
[12] Wolf Brief, supra note 194, at 9. A voir dire prepared attorney may seek to inquire whether this behavior by Dr. Silberg may have violated the ethical principles and guidelines prohibiting bias, providing opinions about people who have not been properly assessed or examined and intentional misrepresentations. Ethical Principles & Standards, supra note 47, at 5.01. Specialty Guidelines, supra note 48, at 9.01, 9.03, 11.01.
[13] Wolf Tr., supra note 199, at 10, 30, 117. Findings of Fact and Conclusions of Law, Wolf v. Wolf, No. DR-13-380CX ¶¶ 90-102 (Gallatin Co., Mont. Apr. 24, 2015)[hereinafter Wolf Findings (4/24/15)]
[14] In re R.W.W., 2017 MT 174N at ¶ 10, 400 P.3d 230. See also Wolf Tr., supra note 199, at 143.
[15] In re R.W.W., 2017 MT 174N at ¶ 10, 400 P.3d 230.
[16] Id. at ¶ 11.
[17] Id. at ¶ 13. And see Findings of Fact, Wolf v. Wolf, No. DR-13-380CX ¶ 53 (Gallatin Co., Mont. July 20, 2016) [hereinafter Wolf Findings (7/20/16)]
[18] Id., at ¶¶ 57, 90-102. See also Wolf Tr., supra note 199, at 10, 30, 117.
[19] In re R.W.W., 2017 MT 174N at ¶ 13, 400 P.3d 230.
[20] Clark v. Collins, 956 F.2d 68, 72 (5th Circuit 1992).
[21] Hawaii v. French, 129 P.3d 581 (Hawaii 2006).
[22] O’Rourke v. O’Rourke, 2010 WL 4629035, at *7 (Tenn. Ct. App., April 5, 2013).
[23] Id.
[24] Id. at *6.
[25] Tr. (1/27/14), supra note 49, at 200-01. Tr. (1/28/14), supra note 67 at 239.
[26] Wolf Tr., supra note 199, at *28.
[27] O’Rourke, 2010 WL 4629035, at 7.
[28] Id.
[29] Wolf Tr., supra note 199, at 178.
[30] Id. at 180-181. Investigation indicates that the case Dr. Geffner was referring to is Cone v Cone, which was affirmed by the Court of Appeals of Tennessee. Cone v. Cone, No. M2008-02303-COA-R3-CV, 2010 WL 1730129 (Apr. 29, 2010). The expert being criticized was Professor William Bernet of Vanderbilt University, the co-editor of this text. Dr. Bernet has not been investigated by the FBI. The father in that case was a doctoral level licensed health care practitioner with no indication when his state licensing board was queried that he had ever been sanctioned or suspended from practice.
[31] Wolf Tr., supra note 199, at 180. NOTE There is no document, report, letter, press release etc. published by the American Psychiatric Association repudiating Professor Bernet. The proposal referred to was Professor Bernet’s book. See William Bernet, Parental Alienation, DSM-5, and ICD-11 (2010).
[32] Wolf Findings (7/20/16), supra note 205, at ¶ 61.
[33] Id. at ¶ 62.
[34] In re R.W.W., 2017 MT 174N at ¶ 15, 400 P.3d 230.
[35] Id. at ¶ 24. See also Ethical Principles & Standards, supra note 47, at D, 5.01. Specialty Guidelines, supra note 48, at 11.01.