Cultic Studies Journal, Vol. 13, No. 1, 1996, page 6
While Borawick‟s objections to the magistrate judge‟s initial and supplemental ruling were
pending before the district judge, the United States Supreme Court decided Daubert v.
Merrell Dow Pharmaceuticals, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993). Accordingly, the
plaintiff moved for reconsideration of the in limine rulings [*7] on the ground that the
therapeutic use of hypnosis and her resultant testimony satisfied Daubert. Borawick
submitted as additional evidence copies of two letters purportedly received from her
younger sister in 1989. Both referenced sexual assault against the sister, and one expressly
identified the defendants as the perpetrators. Borawick also submitted two expert affidavits,
one from a board-certified psychiatrist, Matthew Klein, M.D., and one from a clinical and
forensic psychologist, Anne Pratt, M.D., as further support that the therapeutic use of
hypnosis is widely accepted in the mental health community and is used for treatment of
victims of sexual abuse. The defendants filed a reply and objection to plaintiff‟s objections,
including a letter dated August 1, 1992, also allegedly written by the younger sister, that
recanted her earlier allegations. Upon reconsideration, the magistrate judge adhered to her
earlier recommended ruling. Borawick, 842 F.Supp. at 1509. On January 10. 1994, the
district court adopted the magistrate judge‟s recommendation. Id. at 1501.
Shortly thereafter, the defendants moved for summary judgment. After the magistrate
judge issued a recommended [*8] ruling granting the defendants‟ motion, the plaintiff
refiled and the district court retained and denied a motion by Borawick dated February 10,
1993 to reopen discovery and to enlarge the time for taking depositions. On May 10, 1994,
final judgment was entered in favor of the defendants. Borawick appeals from this
judgment. n1
n1 The Record on Appeal includes both an original record from the district court
after oral argument and a supplemental record submitted pursuant to a stipulation
approved by the district judge.
Discussion
Borawick raises the following claims on appeal: (1) the district court erred in granting the in
limine motion because it applied the incorrect legal rule regarding the admissibility of
hypnotically refreshed testimony (2) the district court‟s ruling was inconsistent with the
holding in Daubert v. Merrell Dow Pharmaceuticals, 125 L. Ed. 2d 469, 113 S. Ct. 2786
(1993) (3) the district court violated Borawick‟s right to a jury trial in granting the in limine
motion, which resulted in a summary judgment [*9] in favor of the defendants (4) the
district court deprived her of due process in its rulings on Borawick‟s numerous motions.
1. Admissibility of Post-Hypnotic Testimony
This circuit has yet to address the admissibility of post-hypnotic testimony of memories
elicited as a result of hypnosis. While numerous state and federal courts have considered
this issue, nearly all of them dealt with recall in the context of hypnosis that was specifically
intended to enhance a memory of a particular known or suspected occurrence. The parties
have not cited, nor are we aware of, any case concerning the specific issue before us: the
admissibility of testimony about memories of childhood sexual abuse that are recalled for
the first time in adulthood following the use of hypnosis as part of psychotherapy.
A. District Court’s Approach
Judge Daly and Magistrate Judge Margolis were highly sensitive to the various concerns
surrounding post-hypnotic testimony. The district court recognized that, although most of
the case law concerns situations in which hypnosis was used to refresh a victim‟s or
witness‟s memory of a crime or accident, the hypnosis in this case was used for therapeutic
as opposed [*10] to investigative purposes. Borawick, 842 F. Supp. at 1503-05. Giving
credence to Borawick‟s claim that her “psychological injuries caused by childhood sexual
abuse are different than for victims of other torts, and that victims of sexual abuse may

Cultic Studies Journal, Vol. 13, No. 1, 1996, page 7
repress conscious memories of the abuse for years,” the district court concluded that
hypnosis is appropriate for the type of repression and loss of memory Borawick allegedly
experienced. Id. at 1505.
Before testimony induced by hypnosis would be admissible, however, the district court
determined that certain safeguards were necessary “not only to bolster a plaintiff‟s
legitimate claims for childhood sexual abuse, but also to protect a defendant against
devastating charges.” Id. These safeguards were that (1) the hypnotist be appropriately
qualified, (2) the hypnotist “avoid adding new elements to the subject‟s description,” (3) “a
permanent record be available to ensure against suggestive procedures,” and (4) there be
“other evidence to corroborate the hypnotically enhanced testimony.” Id. The linchpin of the
district court‟s ultimate decision to exclude Borawick‟s testimony was its finding as to the
first safeguard: that St. [*11] Regis was not qualified. n2 Id. at 1509 &n.5. The district
court did not address the third element, but noted that St. Regis was not able to produce
the reports that he claimed to have prepared contemporaneously, Id. at 1507. The district
court suggested, however, that the second safeguard was met in that there was “no
indication that St. Regis added new elements to plaintiff‟s descriptions while under
hypnosis.” Id. at 1508. Given these findings, particularly St. Regis‟s lack of qualifications,
the district court saw no need to decide whether the corroborating evidence Borawick
offered satisfied the fourth safeguard. Id. at 1508 n.5. With two of the four safeguards not
met, the district court granted the in limine motion to exclude Borawick‟s testimony of
sexual abuse.
n2 The court initially found the record devoid of any information regarding St.
Regis‟s qualifications and any safeguards he may have used in conducting the
hypnosis of Borawick. Borawick was given the opportunity to supplement the
record by deposing St. Regis and to offer any corroborating evidence. Id. at 1505.
[*12]
B. Borawick’s Claims
Borawick first contends that the district court erred in characterizing her recall of sexual
abuse as hypnotically refreshed. Rather, she asserts, these memories may have “unfolded
on their own” even without therapeutic hypnosis. Based on the timing and nature of the
recollections, however, we discern no basis for disturbing the district court‟s finding that the
memories were in fact refreshed by hypnosis.
The gravamen of Borawick‟s appeal is that even if her testimony were to be construed as
post-hypnotic, the district court erred in adopting its legal test in requiring both independent
corroborating evidence and a permanent record of the hypnosis. She also argues that the
district court clearly erred in concluding that St. Regis was not qualified as a hypnotist.
Instead, Borawick argues, she should be deemed competent to testify under Federal Rule of
Evidence 601, which reflects a strong presumption in favor of witness competency, and that
this circuit should adopt a rule of per se admissibility of testimony related to memories
following the use of hypnosis for therapeutic purposes.
C. Standard of Review
Before turning to the merits of this case, [*13] we address the appropriate standard of
review. Borawick argues that because the exclusionary rule resulted in her inability to
oppose the summary judgment motion, which led to her ultimate defeat on the summary
judgment motion, we should review the challenge de novo. The Shays contend that because
this is an evidentiary issue, the district court had broad discretion and we should therefore
review its decision for abuse of discretion.