Most of us agree that lying is never a good thing, but few know what can happen when a party lies in a civil lawsuit for personal injury or wrongful death in Florida. I have been practicing personal injury law in courtrooms across Florida for more than twenty years; most of the time when parties lie or misstate the truth, the other side tries to catch them up in cross examination in front of the jury.
It usually goes something like this:
“Mrs. Smith, you testified in your deposition that you never had been treated for a neck or back injury before you allegedly slipped and fell on a wet floor at a Miami Target store, isn’t that true?”
“And when you testified to that at your deposition, you were under oath, an oath to tell the truth, isn’t that true.”
“And today, Mrs. Smith, now that we are in this trial, here in front of this jury, because you sued Target, claiming to have hurt your back, you are under oath again. Isn’t that true.”
“Yes, I am.”
“Then how . . . (metaphoric drum roll, please) can you explain to the jury this? (continued drum roll)”
And then Target’s lawyer pulls out a pile of records from Mrs. Smith’s primary care doctor (PCP) of her complaining of neck and back problems for years before the alleged slip at Target.
That sort of dialog is why noted legal scholar, John Henry Wigmore, described cross examination as “the greatest legal engine ever invented for the discovery of truth.”
Civil Personal Injury Cases in Florida Dismissed for Fraud
However, some parties in civil litigation who either lie or misstate the truth may never be subjected to cross examination in front of a jury because their cases are dismissed with prejudice (meaning permanently dismissed from the court) for committing what is commonly referred to as “fraud on the court” when it is found that the party “sentiently set in motion an unconscionable scheme calculated to interfere with the judicial system’s ability to adjudicate a matter impartially”–in other words, lied on purpose to win a case unfairly.
Lying Leads to Mistrial
Take the recent case of Edward Herman, a husband suing Dr. Mitchell Silver, a Boca Raton cardiologist, for failing to order certain pre-surgical diagnostic testing that allegedly resulted in the death of his wife, Miriam Herman. During the course of the litigation and trial, Mr. Herman testified to several things, including the existence of a diary that he kept, the general health and activity level of his wife, conversations about the risks of surgery, and even that the jacket he was wearing at trial was purchased by his deceased wife. That trial resulted in a mistrial.
During the interim period between the first trial and the second trial, Mr. Herman’s daughter, Susan Winograd, got into a dispute with her father over his will, and she contacted the defendant doctor’s lawyers, advising them that her father had lied under oath about a number of facts, including that he had maintained a diary, and that he had encouraged her to lie under oath about her mother’s premorbid health.
The defense lawyers then sought to have Mr. Herman’s entire case dismissed for his having committed a fraud on the court. A new trial judge, who was not the same judge who heard the first trial, conducted an evidentiary hearing and obtained testimony from both Mr. Herman and his daughter and several other family members. Then he compared what they told him with both Mr. Herman’s deposition and first-trial testimony and found that Mr. Herman had lied. The new judge ordered his entire case dismissed.
Dismissal for Fraud Eclipses the Real Issue: Did the Dr. Commit Medical Malpractice?
An appeal followed to Florida’s 4th District Court of Appeal. In a lengthy opinion, the Appellate court upheld the trial court’s dismissal, finding that Mr. Herman had repeatedly fabricated testimony. I respectfully disagree.
This case, in my opinion, does not involve the egregious or extreme misconduct that would mandate the complete dismissal of a wrongful death medical malpractice suit in Florida. Trial judges should exercise their discretion to dismiss cases for fraud, which is the severest penalty that can be assessed against a party, in only the rarest and most blatant situations.
Florida law has for decades enjoyed a strong policy in support of having claims determined on their merits by a jury, rather than being dismissed by judges. Here is yet another example of a heavy-handed trial and appellate court depriving a person of his day in court–a trial by jury–on a legal technicality determined by a judge. This case, as Judge Taylor’s dissenting opinion correctly points out, “could seriously jeopardize the invaluable right to trial by jury.”
Without question there are inconsistencies in Mr. Herman’s testimony, but all of those could and should have been weighed by a jury. And, in my opinion, none was relevant or material to the core issue of the case: Did the doctor commit medical malpractice?
As a lawyer in Florida who sues doctors and hospitals, I am frightened by this ruling as it shows once again just how difficult it is for injured patients and their families to obtain justice. If you have been hurt by a careless healthcare provider, please email me, Spencer Aronfeld, or call our office today for a free legal consultation, at 866-597-4529.