Herman v. Intracoastal Cardiology Center, 4D11-1214 (Fla. 4th DCA 2013):
Mr. Herman appealed a final order dismissing his wrongful death medical malpractice lawsuit for fraud on the court. The lawsuit started when Mrs. Herman filed a medical malpractice lawsuit against her cardiologist. After her death, Mr. Herman was appointed as a personal representative of her estate and the case converted to a wrongful death suit.
During discovery, the Defendants propounded requests for production which asked for any notes or diaries maintained by Mr. or Mrs. Herman that pertained to the issues raised in the lawsuit. Mr. Herman kept a diary chronicling his wife’s medical condition, but never disclosed the diary to the defense.
The case went to trial and Mr. Herman provided allegedly false testimony. The testimony in question included: (1) Mrs. Herman’s activity level prior to surgery; (2) a jacket bought for Mr. Herman by Mrs. Herman; (3) Mrs. Herman’s pre-surgery kidney problems; (4) discussions with doctors about risks of surgery; and (5) discussions about the option to use a different hospital. The allegedly false testimony was discovered when Mr. Herman and his daughter had an argument which led to her informing the defense counsel of her father’s “lies.”
The Defendant filed a motion to dismiss the case for fraud upon the court. Defendant alleged that Mr. Herman committed perjury and that he intentionally withheld a diary which contradicted sworn testimony. The trial court entered a written order dismissing the case for fraud on the court. Mr. Herman argued that the trial court’s dismissal of the case was an abuse of discretion because there was no clear and convincing evidence that he perpetrated a fraud on the court.
Although a trial court has discretion to dismiss an action for fraud on the court, it should exercise this severe sanction only in extreme circumstances. JVA Enters., I, LLC v. Prentice, 48 So. 3d 109, 113 (Fla. 4th DCA 2010). The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party 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.” Arzuman v. Saud, 843 So. 2d 950, 952 (Fla. 4th DCA 2003). “Because ‘dismissal sounds the death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.” Id. at 952.
Except in the most extreme cases where it appears that the process of the trial has itself been subverted, simple factual inconsistencies and “even false statements” are well managed through the use of impeachment and traditional discovery sanctions. Granados v. Zehr, 979 So. 2d 1155, 1158 (Fla. 5th DCA 2008). To support a dismissal, the court must find the “false testimony was directly related to the central issue in the case.” Morgan v. Campbell, 816 So. 2d 251, 253 (Fla. 2d DCA 2002).
The Fourth District Court of Appeal (“4th DCA”) concluded that the trial court abused its discretion in imposing the most severe sanction of dismissal and that this case failed to present the type of egregious misconduct or extreme circumstance which would warrant dismissal with prejudice. The 4th DCA reasoned that the alleged falsehoods or inconsistencies were either: (1) in the nature of disputed issues of credibility which were best left for the jury to decide; (2) not actual inconsistencies at all; or (3) immaterial to the central issues in the case. This case does not fall into the category of blatant and uncontroverted fraud. Mr. Herman’s daughter’s testimony cannot be accepted to provide clear and convincing evidence warranting dismissal. Her testimony may be biased as a result of being cut out of Mr. Herman’s will. This is a simple credibility dispute, better left for the jury to resolve.