MOTIONS TO DISMISS FOR FRAUD – A HISTORICAL PERSPECTIVE
Andrew D. Stone, Esq. & Jesse L. Cohen, Esq. • Volume 3, Issue 2 February 2009

WHAT IS THE STANDARD?
Under Florida law, in order to prevail on a motion to dismiss for fraud, defense counsel must demonstrate clearly and convincingly that the plaintiff has “sentiently set in motion an unconscionable scheme calculated to interfere with the judicial system's ability to impartially adjudicate a matter”. Cox v. Burke, 706 So.2d 43 (5th DCA 1998)(quoting Aoude v. Mobile Oil Corp., 892 F.2d at 1118 (1st Cir.1989)).

HISTORICAL OVERVIEW
A historical overview of dismissals for fraud reveals that during the 1990's and beginning of this decade, appellate courts seemed determined to demonstrate that perjury would not be tolerated. See O'Vahey v. Miller, 644 So.2d 550 (3rd DCA 1994)(Repeated lies under oath regarding background information constituted obvious affront to the administration of justice.); Metro. Dade County v. Martinsen, 736 So.2d 794 (3rd DCA 1999) (A party that is guilty of fraud should not be permitted to continue to employ the very institution it has subverted since out society needs a reminder that no crime strikes more viciously against the integrity of our system than perjury.); Baker v. Myers Tractor Services, Inc., 765 So.2d 149 (1st DCA 2000)(While every litigant has the right to proceed forward, that right can be forfeited under certain circumstances).

However, in 2003, the tide of defense outcomes shifted with the Fourth DCA's decision in Amato v. Intindola, 854 So.2d 812 (holding that surveillance evidence contradicting plaintiff's deposition testimony was not sufficient to warrant dismissal). Following Amato, appeals courts have reversed dismissals for fraud even though trial courts found discrepancies, misstatements, and outright lies regarding plaintiffs' damages claims. See Ruiz v. City of Orlando, 859 So.2d 574 (5th DCA 2003)(reversing dismissal where plaintiff deliberately misstated lengthy medical history and concealed history of back pain); Cross v. Pumpco, Inc. ,910 So.2d 324 (4th DCA 2005)(reversing dismissal where plaintiff intentionally concealed existence and nature of prior accident and medical treatment).

“FRAUD STRATEGY”
In Bologna v. Schlanger, 995 So.2d 526 (5th DCA 2008), the plaintiff denied that she sustained prior injuries to the same parts of her body that were the subject of her lawsuit. The trial court granted defendant's motion to dismiss for fraud. However, the 5th DCA reversed that decision and held that “poor recollection, dissemblance, and even lying, can be well managed through cross-examination”. The 5th DCA further held that a testimonial discrepancy is usually not enough to warrant dismissal, but rather, what is required is a showing that the plaintiff engaged in a calculated scheme to suppress relevant facts.

The court noted that defense counsel may have employed a “fraud strategy” by giving the plaintiff an opportunity to be honest about her past medical history and then not attempting to refresh her recollection with the records that he gathered as a result of her interrogatory disclosure. Lastly, the court noted that the trial court entered the order without conducting an evidentiary hearing.

TIDE SHIFT?
Two recent cases suggest that courts may still be willing to uphold orders of dismissal. See Ramey v. Haverty Furniture Companies, Inc., 993 So.2d 1014 (2nd DCA 2008)(holding that dismissal was warranted where plaintiff misrepresented his medical history in interrogatory answers and deposition testimony and where trial court conducted an evidentiary hearing and entered an order explaining its reasoning) and Bass v. City of Pembroke Pines, 991 So.2d 1008 (4th DCA 2008)(holding that where plaintiff failed to disclose prior relevant treatment and where trial court held evidentiary hearing to allow plaintiff an opportunity to explain her misconduct, dismissal was warranted).

CONCLUSION
Based upon the precedent outlined above, it seems that the appellate courts feel that plaintiffs who commit perjury regarding issues that are directly related to their personal injury claims are still entitled to their day in court. It seems that the appellate courts look for evidence where the plaintiff fails to disclose any information about a relevant part of their medical history and the defense practitioner finds the information on his or her own either through diligent efforts or by chance.

It also appears that in order to avoid being accused of employing a “fraud strategy”, some appellate courts think that the defense practitioner has an obligation to attempt to refresh plaintiffs' recollections after they have perjured themselves. Lastly, it should be noted that the recent decisions where appellate courts have upheld trial court orders granting dismissals for fraud have been where the court held evidentiary hearings prior to the same. Accordingly, while dismissals for fraud are still viable, they should be used only in the most egregious circumstances in conjunction with an evidentiary hearing.


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