Day on Torts
The male plaintiff said that he slipped, fell, and sustained various injuries on the sidewalk outside of his apartment early one morning. He and his wife brought suit.
Defendant found a medical record (from a provider not listed in answers to interrogatories by the plaintiffs) that indicated that plaintiff was treated for a dog bite on the morning of the alleged incident. He made no reference to his alleged fall. A scar he said was related to the fall was in a location similar to the site of the dog bite.
There were other problems with plaintiff’s medical history as well – the type of stuff that a defense lawyer drools over. This defense lawyer, however, stopped drooling long enough to file a motion to dismiss the case for fraud. The case was dismissed, and the Florida District Court of Appeal, First District, affirmed.
The test for dismissal: “”‘A trial judge has the inherent authority to dismiss actions based on fraud and collusion.'” The requisite fraud on the court occurs when “‘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.'” (Citations omitted.)
The case is Hutchinson v. Plantation Bay Apartments, LLC, CASE NO. 1D05-1679. It was decided on May 15, 2006. Read it here.
How does a plaintiff’s lawyer protect himself or herself from this type of situation? Do your own investigation into the plaintiff’s medical history before you file suit. Get the medical records from the providers who are revealed to you by your client, read the records to look for other providers, and get those records as well. Get pharmacy records and look for additional providers. Do this before you answer interrogatories or submit your client for a deposition – and educate your client on what you find. Chances are your client has simply forgotten the prior health care provider you found during your search, but you can stop your client from being called a liar by doing this work for them.
And if you discover you are representing a liar? Drop ’em. Fast. And hard. Life is too short to represent people who cannot tell the truth. Plaintiff’s cases are too hard to win when people try to tell the truth. A couple of lies, even on small points, will cost your client (and you) the case.