United States: The Degrees Of Truth: When Is Dismissal With Prejudice Warranted?

An essential principle of our legal system is that people are supposed to tell the truth, the whole truth, and nothing but the truth. Yet although individuals giving testimony swear an oath to tell the truth, they often have various motives to skirt the truth, omit relevant facts, or even outright lie. Perhaps one of the most obvious or common motivations is monetary gain, and many lawyers practicing in the field of personal injury defense have had the experience of obtaining testimony from a personal injury plaintiff that was simply untrue. Occasionally the untrue statement is the result of confusion or forgetfulness, and is very minor. Yet there are other occasions where the plaintiff is lying about an important fact in the case, such as the cause of the alleged accident or the extent of his or her injuries. When faced with a dishonest plaintiff, a potential recourse available to the defendant is to file a motion to dismiss the plaintiff's case with prejudice for fraud on the court. This, however, leads to an important question – when are the lies sufficiently egregious such that dismissal with prejudice is warranted?

A recent opinion from the Third District Court of Appeal provides some insight. In Eileen Diaz v. Home Depot USA, Inc., etc., et al., the plaintiff appealed an Order from the trial court dismissing her case with prejudice for fraud on the court. The plaintiff's case was dismissed with prejudice after an evidentiary hearing where the trial court considered the live testimony of the plaintiff, her sworn answers to interrogatories, her sworn deposition testimony, and other documents.1

The trial court's evidentiary hearing revealed the following: the plaintiff's Complaint alleged that while shopping at a Home Depot store a fire extinguisher serviced and maintained by co-defendant A.B. Fire Equipment allegedly fell from a wall and struck her. The plaintiff stated in her answers to interrogatories that the incident caused injury to her cervical spine and shoulder. When deposed, the plaintiff denied any prior history of neck pain. She further admitted that she had been involved in motor vehicle accidents both prior to and following the subject incident, but testified that the accidents were minor and that she did not seek medical treatment. Despite this deposition testimony as well as vague interrogatory answers that did not fully describe prior treatment, the evidence showed that the plaintiff had: (1) visited the emergency room nine months prior to the subject incident complaining of neck and back pain due to a motor vehicle accident; (2) visited the emergency room seven months prior to the subject incident complaining of neck and back pain after passing out and falling down; and (3) visited the emergency room eight months prior to her deposition in the underlying case complaining of injuries to her chest from a high-speed motor vehicle accident (120 mph) that had a severe impact and necessitated her extrication from her vehicle. Further, the evidence showed that when the plaintiff sought treatment from an orthopedic surgeon in connection with the subject incident, she completed a history form wherein she denied any prior injuries or similar symptoms in the past.

In light of the evidence submitted at the evidentiary hearing, defense counsel argued that the plaintiff had presented false and misleading testimony in three critical areas: her medical history which included prior neck injuries, her prior accident and medical treatment history, and her candor with her treating physicians. The plaintiff offered various excuses for her false testimony, including stating that she had been taking medication at the time of her deposition that may have caused her to have an inaccurate memory. The trial court agreed with the defendants, finding that the evidence showed the plaintiff had demonstrated a willingness to give false testimony under oath, and had exhibited "a total and flagrant disregard for the integrity of the civil justice system" that left "no doubt that [her] conduct [was] intentional and designed for improper purposes." The trial court continued that it was implausible that the plaintiff simply could not recall her prior accidents and medical treatment, and opined that the evidence showed a plan by the plaintiff to obfuscate.

On appeal, the District Court reviewed the trial court's dismissal under an abuse of discretion standard, but stated that the standard was "somewhat narrowed" because "it must take into account the heightened standard of clear and convincing evidence upon which an order of dismissal for fraud on the court must be based." The Court continued that dismissal is only appropriate where the clear and convincing evidence establishing that the plaintiff has "sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense."

In affirming the dismissal, the Court highlighted the various falsehoods proffered by the plaintiff and found that the trial court's findings were "amply" supported by the record. Though the Court did not provide lengthy analysis, it appears that the three factors that weighed heavily in its decision were the number of lies proffered by the plaintiff (both lies of omission or affirmative untruths), that the lies went to heart of the claim, and that the evidence indicated the lies were deliberate and calculated.

Thus, based on Diaz, in determining whether a plaintiff's lies are sufficient enough to form the basis for a motion to dismiss with prejudice due to fraud on the court, you must have evidence indicating that the lies were intentional and deliberate, not mere mistakes or misunderstandings, and you must show that the lies go to the heart of the case. However, while the plaintiff in Diaz offered numerous misrepresentations and the amount of same undoubtedly factored in the Court's analysis, other cases indicate that the severity of the lie may be more important than the number of lies. The Third District Court of Appeal's 2003 opinion in Long v. Swofford and 2010 decision in Brown v. Allstate Insurance Co. indicate that one lie, if "big" or "important" enough, can warrant dismissal with prejudice. In Long, the plaintiff was claiming that she sustained back injuries in a motor vehicle accident. After it was discovered that she concealed a pre-existing back injury, the trial court dismissed her claim. Similarly, in Brown, the Court dismissed the plaintiff's claim after it was discovered that he lied about his employment status, which was central to the issue of lost wages and an integral part of his claim.

Dismissal with prejudice is an extreme sanction that courts are often hesitant to use. However, as demonstrated in Diaz, a motion to dismiss for fraud on the court can be used to successfully defeat a dishonest plaintiff and lawyers on both sides should be mindful of this sanction when litigating a case.


[1] The trial court initially dismissed Plaintiff's case with prejudice without an evidentiary hearing. On appeal, the District Court reversed the dismissal, and remanded for an evidentiary hearing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.