Florida Appellate Court Finds No Fraud Upon the Court in Wrongful Death Case

1239008_memento_mori.jpgEgregious conduct during a Florida personal injury or medical malpractice lawsuit can lead to the court dismissing a case with prejudice. This is an extreme measure that means a plaintiff cannot come back and have a jury hear his or her case.

What is egregious conduct? One example is extreme dishonesty — conscious dishonesty so serious it threatens to subvert the system. When you have suffered a great loss, such as the death of a spouse or child, it can be difficult to remember everything that needs to be remembered for legal proceedings. Nonetheless, it is important to be as honest as you can during the entire process.

In a recent case, a Florida appellate court considered facts in which a defendant hospital asked the plaintiff for notes or diaries related to his lawsuit against the hospital and doctors for his wife’s wrongful death. In that case, the plaintiff’s husband maintained a diary about his wife’s medical condition from March 1997-July 1997, but didn’t turn it over to the other side.


When trial started, the plaintiff presented expert testimony that one of the defendant doctors had failed to consult a nephrologist even though it was necessary. The plaintiff testified about his life with his wife and her medical care, including how she used to dance and had to give it up after the surgery. His wife’s deposition recording (taken before she passed away) was played at trial. At deposition she had denied problems with her kidneys before surgery. The couple’s daughter testified about how her mother had to give up dancing and other activities after the surgery.

When the daughter and father had a serious argument, the daughter revealed to defense counsel that her father had hidden a diary about her mother’s medical condition and that he’d lied during trial.

The doctor filed a motion to dismiss the case asserting fraud upon the court due to the plaintiff’s alleged perjury and intentional withholding of information that contradicted his testimony. At the hearing, the defense presented evidence that it believed was contradictory. For example, the plaintiff had testified that pre-surgery his wife rode bikes, walked and danced. At an evidentiary hearing, the daughter testified none of this was true.
In another example, the daughter claimed the father fabricated a story about a jacket. In another example the father testified there had been no warnings about what could go wrong during the surgery, but in his diary he talked about the doctor telling him that there was a risk of stroke and risk of clotting.

The trial court dismissed the plaintiff’s case for fraud upon the court regarding the major issues. It was particularly troubled by the withholding of the diary.

The plaintiff appealed, claiming the trial judge had abused his discretion. There was no clear and convincing evidence of his fraud.

The appellate court reasoned that a judge must only dismiss a case for a fraud upon the court in very extreme circumstances, where it seems the process of trial has been actually subverted. More minor issues can be managed through the use of impeachment and traditional sanctions.

In this case, there was no record of clear and convincing evidence that the plaintiff had consciously put forward a scheme calculated to thwart the judicial system’s ability to adjudicate the case. The only solid evidence was that the daughter had perjured herself, and she was biased. Other evidentiary conflicts were best decided by a jury. The appellate court reversed the lower court.

If a loved one has been severely injured or killed due to another person’s or company’s negligence, call the experienced South Florida wrongful death attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

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Florida Appellate Court Reviews Issue of Privacy in Auto Accident Case, South Florida Personal Injury Lawyers Blog, May 10, 2013
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