I have represented thousands of plaintiffs in personal injury cases across the country since 1991, and I believe one of the surest ways a person making a claim for a personal injury can destroy the case is by providing misleadingly incomplete responses to discovery questions about previous claims and/or injuries. Failure to disclose accurate information can often lead to the defense’s asking the court to dismiss a plaintiff’s entire lawsuit and seek sanctions. When insurance is involved–as is usually the case in a Florida car accident claim–there is also criminal exposure for insurance fraud.
Recently, a Florida trial court was asked to dismiss the personal injury claim of Edelmiro Duarte, who had sued Snap-On. This case was not handled by our Florida car accident law firm. Mr. Duarte alleged that he was badly hurt when his car was rear-ended by a delivery truck owned by Snap-On. The accident occurred while Mr. Duarte was sitting in traffic on 1-75. With him in his car, which he was driving, were his girlfriend, daughter, son, and grandson. The evidence suggested that the Snap-On truck hit them at 60 miles per hour–without even applying the brakes. At the accident scene, the Snap-On truck driver failed a field sobriety test and was arrested for driving under the influence and causing serious bodily injury.
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The injuries were catastrophic. Mr. Duarte’s girlfriend was rendered a paraplegic. She sued Snap-On and settled her claim for many millions of dollars. Mr. Duarte’s son and grandson also sued, obtaining sizeable settlements.
Mr. Duarte filed suit for his own injuries, claiming that he lost earnings in the past and future, incurred medical expense, and experienced pain and suffering related to his back and arm. There was no defense as to liability, but rather Snap-On’s lawyers disputed the severity of Mr. Duarte’s injuries. Complicating matters, Mr. Duarte was involved in another rear-end car accident while this claim was pending–nearly four years to the day of the Snap-On crash.
As is typical of any personal injury case in Florida, Snap-On served Mr. Duarte with interrogatories, which are written questions that require written answers to be given under oath. This means that the person answering the questionnaire swears that the answers are true and correct. These questions typically seek information about previous and subsequent accidents, injuries, and medical care–asking for the names, addresses, telephone numbers, and dates of treatments for the care, sometimes going back as far as ten years.
This allows defense lawyers to then subpoena these records, obtain surveillance videos of plaintiffs to see if they can come up with an argument that the claimed injuries are either nonexistent or preexisting, and then claim that the plaintiff was not truthful in the interrogatory responses. They then will take a deposition from the plaintiff, which is an interrogation in person, rather than in writing. If they find a glaring inconsistency, they will use it as ammunition in a motion asking the court to dismiss the entire case as a fraud upon the court.
Apparently in Mr. Duarte’s case, he failed to reveal the names of a chiropractor and a radiologist who treated him after the second accident. Then in his deposition, which took two days, he testified to being rear-ended by stating it was a minor tap that did not result in any additional medical care. Then, seemingly inconsistently, he testified that after the second accident, his “back hurt even more, much more.” Upon learning this, Snap-On filed a motion to dismiss the case with prejudice, based on fraud upon the court, arguing that Mr. Duarte (1) testified falsely about the severity of the second car accident during his deposition and (2) failed to disclose the second car accident and the subsequent treatment by the radiologist and chiropractor in his initial answers to the interrogatories. Mr. Duarte then appropriately filed an amended response to his interrogatories, listing the additional providers.((Snap-On attached both the deposition transcript and interrogatory responses to its motion but did not mention that Mr. Duarte file a supplemental answer to his initial responses. This was very shady- since it cured any potential issue as to his credibility. Now who’s credibility is at issue? ))
The trial court should have heard Snap-On’s motion by conducting an evidentiary hearing, like a trial, where evidence would be produced and witnesses permitted to testify; however, it did not. Snap-On argued that Mr. Duarte was trying to parlay each accident and injury into maximizing the value of each claim. In turn, Mr. Duarte’s lawyers argued that Mr. Duarte does not speak, read, or write English and did not intend to mislead anyone, and that he suffers from memory loss due to his age and the medication he takes. Snap-On’s argument was persuasive, and the judge dismissed the entire case. Mr. Duarte appealed, and what happened proved highly instructive.
The appellate court reviewed what the trial court did, agreeing that trial courts have the authority to dismiss cases in extreme circumstances, such as when it is found by clear and convincing evidence that the plaintiff committed a fraud upon the court by lying((Howard v. Risch, 959 So. 2d 308, 310 (Fla. 2d DCA 2007), distinguished on other grounds by Ramey v. Haverty Furniture Cos., 993 So. 2d 1014 (Fla. 2d DCA 2008). )) or creating some scheme calculated to interfere with the judicial system.((Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998.)) To rule this way, judges are required to apply a balancing test of our justice system’s preferred policy of deciding disputed civil cases on the merits, and the public’s policy of maintaining the integrity of Florida’s judicial system.((Pena v. Citizens Prop. Ins. Co., 88 So. 3d 965, 967 (Fla. 2d DCA 2012) (citing Gilbert v. Eckerd Corp. of Fla., 34 So. 3d 773, 776 (Fla. 4th DCA 2010)).
On appeal, it would have to be shown that a trial court abused its discretion in dismissing the case for the dismissal to be reversed. However, when a trial court dismisses a case without an evidentiary hearing, as it did here, less deference is given to that judge’s decision than an appellate court would normally apply when a trial judge could have heard the evidence from live witnesses. Accordingly, in reviewing the court file, the appellate court found that there simply was not enough evidence to conclude that Mr. Duarte was committing a fraud. I agree with this result.((EDELMIRO DUARTE, Appellant, v. SNAP-ON, INCORPORATED, a foreign corporation, and NORMAN MULLINS, Appellees. 2nd District. Case No. 2D15-1952. Opinion filed March 15, 2017. Appeal from the Circuit Court for Lee County.))
As a Miami personal injury lawyer, I believe that the key lesson here for both plaintiffs and the lawyers who represent them is to be as accurate and detailed as possible in the answers to discovery during litigation and at trial. The failure to disclose information can be viewed as intentional. In this case, Mr. Duarte came dangerously close to losing his entire claim. I applaud the appellate court’s decision and wish Mr. Duarte and his lawyers the very best in his pursuit of justice.
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