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Mar 28th, 2024 in by admin

Goga v. Publix, 49 Fla. L. Weekly D233 (Fla. 4th DCA Jan. 24, 2024):

The plaintiff slipped and fell at Publix and had seven months of medical treatment to her spine.  

More than two years after her fall and more than a year after her last medical treatment, she answered interrogatories asking her to specify the injured parts of her body, and the effects of those injuries which she claimed were permanent.  

The woman responded she could not lift anything heavy, could not do any physical or sports activities, could not walk or stand for long periods of time, and could not go places with both of her children if she were alone.  

Less than a month later, the defendant took the plaintiff’s deposition. She again stated unequivocally that she could not lift her young children, and had not lifted them at all since her fall.  She also said she could not bend at the waist, and advised that there were a lot of things that she could not do.

Video surveillance exposed that these responses were not true.  The defendant had amassed hours of footage of her picking up and carrying her children across parking lots, loading and unloading her vehicle with multiple bags of purchases, walking, and bending at the waist, all done without hesitancy or movements indicating pain or limitation.  

After the evidentiary hearing, the trial court specifically found by clear and convincing evidence that the plaintiff intentionally lied on multiple occasions about her limitations, found her testimony at the evidentiary hearing to be incredible, and noted that the cumulative effect of the plaintiff’s lies evinced the plaintiff’s gamesmanship and disrespect towards the judicial process. The trial court found that the plaintiff’s lies permeated the entire proceedings just to find dismissal of the entire action.

The appellate court reversed (but in a limited way), noting how severe of a remedy dismissal is.  The court explained that when dismissing for fraud upon the court, trial court should weigh the policy favoring adjudication on the merits with the need to maintain the integrity of the judicial system. The integrity of the civil litigation process depends on the truthful disclosure of the facts.  

In balancing the policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system, the trial court must keep in mind that there is a lot of “misconduct” that falls short of what is needed for dismissal for fraud on the court; inconsistency, nondisclosure, poor recollection, and even lying is not sufficient to support a dismissal for fraud in many cases, and is best resolved by bringing the issue to the jury’s attention through cross-examination.  

The court found that while the plaintiff had intentionally lied about the extent of her movement and limitations, the court abused its discretion in dismissing the  entire action as a sanction. It held that instead, given the evidence that the plaintiff underwent extensive medical treatment and procedures from her injuries, the proper remedy was to permit her to pursue her claim for medical expenses relying on the objective evidence, while precluding her from pursuing her claims for pain and suffering and lost wages, which would have relied on plaintiff’s subjective testimony. A pyrrhic victory for sure.