Caught on Camera: Shopping, Pumping Gas, and Driving After Claiming Serious Injuries.
The Third District Court of Appeal court recently affirmed the decision of a trial court to dismiss a personal injury claim based upon the plaintiff’s ‘scheme to defraud’ the court. Pino v. CGH Hospital, Ltd., No. 3D18-2517. L.T., No. 14-32621 (Fla.3d DCA 2019). The court held that the plaintiff committed fraud upon the court when, in proving her case, she testified and submitted evidence that was false, and such falsities went beyond mere ‘discrepancies.’ The trial court’s order dismissing the plaintiff’s case with prejudice, as affirmed by the appellate court, means that the plaintiff is barred from ever filing that claim again, or one based on the same facts, against the defendant.
The Defendant is a hospital located in Coral Gables, Florida and the plaintiff was a visitor of a patient at the hospital. While in the patient’s room at the Defendant’s hospital, the plaintiff allegedly tripped on cables attached to the patient’s bed, and suffered serious and permanent injuries as a result. Subsequently, the plaintiff filed a personal injury action against the defendant, seeking monetary damages for her injuries.
Over the course of the litigation, testimony and evidence revealed that the plaintiff fabricated false sworn testimony and evidence with the intention of misleading and influencing the jury. The plaintiff lied about material facts which went to the heart of the issue of the case – that is, whether the Defendant was responsible for the plaintiff’s injuries when she allegedly tripped on the cables. The plaintiff’s fraud included false testimony and evidence about facts such as the accuracy of photographs of the location of the accident, as well as the recanting of previous sworn testimony.
In perhaps the most egregious instance of fraud, the plaintiff was video-recorded performing activities such as driving, pumping gas, shopping, moving groceries into her home, moving her neck and using her cell-phone; all activities which she had previously testified that she could no longer engage in because of her injuries. When faced with irrefutable, and authenticated video-evidence of her dishonesty, the plaintiff simply asserted that she did not remember the details of her previous sworn testimony, and also suggested that she never stated she was completely incapable of engaging in the activities she was recorded doing.
Importantly, an order to dismiss a case with prejudice on grounds of fraud, must be made using a “clear and convincing” standard. The “clear and convincing” standard was used to determine whether fraud had been committed upon the court by the plaintiff in this case. The “clear and convincing” standard is described as,
“An intermediate level of proof that entails both a qualitative and quantitative standard; the evidence must be credible, the memories of the witnesses must be clear and without confusion, and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” In re S.F. et al, 34 Fla. L. Weekly D2138, 22 So.3d 650, 653 (Fla. 2nd DCA 2009).
Here the court found that the trial court properly applied this standard in its decision to dismiss the case. Clear and convincing evidence meant that the plaintiff’s testimony was properly found by the trial court to be riddled with intentional falsities, with the intent to deceive the court. The court held that the trial judge was correct in finding that the plaintiff had “consciously decided to fabricate events and give false testimony…”
The court, in its ruling found that the “ultimate sanction” of dismissing the plaintiff’s case with prejudice was appropriate because of the plaintiff’s extensive and flagrant false testimony in seeking to prove her case. Perhaps, if the plaintiff’s conduct was a matter of mere “discrepancies” or the falsities did not go to the material issues of the case, the court may have imposed a less harsh sanction (such as an award of costs in the Defendant’s favor for any motions filed).
Litigants can learn from this case, as a finding of fraud upon the court is not limited to the conduct of one party – either party can engage in fraud in presenting its case, or in its defense. Here, the Court made clear that it will not tolerate fraud in adjudicating a matter. The issues to be decided by the fact finder, whether it be a judge or jury, can only properly be decided if the court is presented with an accurate record of the evidence and honest testimony of witnesses. The court impressed upon its necessity to maintain the integrity of the litigation process. This is achieved with litigants’ truthful admissions of facts. Litigants are also minded to recognize that an attorney’s attempt to bandage previous falsehoods, whether made in sworn testimony, or provided in evidence, can only go so far and will not cure what the court finds to amount to fraud by that litigant. Here, the plaintiff‘s first attorney ended representation upon determining the extent of the plaintiff’s falsehoods. The plaintiff’s subsequent attorney sought to cure these falsehoods, and ultimately failed. The plaintiff’s intentional dishonesty throughout the course of the litigation prevailed in ending her claim with the order of dismissal with prejudice. Fraud upon the court is so significant that a court, based upon this case, will not allow the offending party to rectify its conduct. A party who commits fraud will not, as a matter of fundamental fairness “….be permitted to continue to employ the very institution it has subverted to achieve her ends.” Hanono v. Murphy, 723 So. 2d 892, 895 (Fla.3d DCA 1998).