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.
Footnotes
[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.
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