'Memories trial' nearing end

Attorneys give closing arguments in lawsuit involving psychiatrist

The Associated Press, August 31, 1999
By Robert Imrie

WAUSAU, WIS. A psychiatrist deserves to pay for wreaking havoc with a woman's life by negligently allowing her to believe she was sexually abused as a child and had other horrible memories, an attorney told a jury Monday.

"The way he is suggestive is remarkably akin to brainwashing," William Smoler said of Dr. Juan Fernandez III, calling him a "therapist with an agenda" who failed to recognize what he was doing was harmful.

"What Dr. Fernandez did without realizing it was plain and simply brainwashing Joan Hess," Smoler said in the closing arguments of a malpractice trial that began six weeks ago. "We have to establish that Dr. Fernandez caused damage. We believe we have met that standard."

A jury, which met for about 10 minutes Monday evening, picked foreman and said they would resume deliberations Tuesday morning.

Fernandez's attorney, Tom Rusboldt, told the jury Hess suffered deep emotional problems before she began seeing Fernandez and he provided her reasonable care.

Hess, the ex-wife of former Wausau Mayor John Hess, fell into a deep, dark hole of the mental disease called depression for whatever reasons, some perhaps related to the sudden death of her mother when she was a teen-ager, Rusboldt said.

"It is nobody's fault," he said.

No one will know for sure exactly where Hess' horrible memories about her childhood came from, Paul Grimstad, an attorney for Fernandez, said in his closing argument.

"If she believed these were true and were causing her pain and harm, they needed to be treated whether they were true or false or a combination of true or false," Grimstad said.

At the time, Fernandez followed the only treatment course recommended for dealing with a person with symptoms of multiple personality disorder, Grimstad said.

Fernandez did everything he could as a responsible psychiatrist to help Hess, Grimstad said.

"Dr. Fernandez did what good psychiatrists do," Grimstad said. "He followed his training and he followed the textbook."

None of the woman's conditions were caused by the doctor's treatment and she has experienced no permanent injuries, Rusboldt said.

Hess has accused Fernandez of implanting false memories during hypnosis, leading her to believe she was sexually abused by her father, that she had more than 75 personalities and that her parents were members of a cult that forced others to have sex with animals and witness human sacrifices.

The dispute has focused on repressed memory therapy and the diagnosis of multiple personality disorder.

Repressed-memory therapy contends victims of childhood trauma can forget the abuse for decades and later be cured of adult disorders by recovering their memories of the trauma.

The trial has featured testimony from psychiatrists and experts in hypnosis from around the country.

Smoler told the jury he paid $150,000 for the experts he called to the witness stand.

Hess, her ex-husband and her two daughters are seeking up to $1.2 million in actual damages and unspecified damages for such things as pain and suffering and loss of companionship.

Fernandez began caring for Hess in 1991 by monitoring the medication she was taking to treat depression while she was getting counseling from another therapist because of stress in her marriage and at work.

Fernandez eventually authorized several hospitalizations for Hess because she was suicidal and he took over her care, including hypnosis. The care continued until 1994.

Smoler's colleague, Pam Schmelzer, said Fernandez never explained to Hess the risks of hypnosis and the chance that any memories being recovered could be false.

"Dr. Fernandez broke her into a million pieces and he walked away. Just like Humpty Dumpty, all the king's horses and all the king's men can't put her back together," Schmelzer said. "She will always be wounded. She will always have scars. She will never have these things erased from her soul."

Schmelzer asked the jury to consider Hess' humiliation, the guilt she feels and the turmoil she caused her family in coming up with damages.

The attorney said Hess' two daughters, for a period of their lives, grew up without a mother and they learned to cope with different personalities that would emerge because of the negligent care she received from Fernandez.

As the attorney described some of the turmoil that rocked the Hess family because of Hess' behaviors, her ex-husband wiped tears from his eyes and one of her daughters sobbed openly, her arms wrapped around her mother.

Joan Hess was awarded $850,000.00