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In Herman v. Intracoastal Cardiology Center, 38 Fla. L. Weekly D169a (Fla. 4th DCA August 7, 2013), the 4th DCA affirmed the trial court's dismissal for fraud of a medical malpractice wrongful death claim after it was discovered that the plaintiff had failed to produce during discovery a diary of the decedent's medical care that contained information contradicting the plaintiff's sworn testimony on several key issues of the case.

The decedent in the wrongful death claim had succumbed to renal failure approximately four years after undergoing open heart surgery performed by the defendant cardiologist. The plaintiff, the surviving husband of the decedent, alleged that the defendant cardiologist's failure to obtain a renal consultation prior to the decedent's open heart surgery triggered her renal failure.

During discovery, the defense requested production of "any notes or diaries" containing information related to the subject medical care. Although the plaintiff had kept a diary chronicling the critical period of his wife's treatment, he did not produce it to the defense. The case proceeded to trial in 2006. The plaintiff testified about the timing of the onset of the decedent's renal insufficiency and that the defendant cardiologist had failed to explain the risks of open heart surgery and had failed to advise the decedent to transfer to another hospital with a more sophisticated cardiology unit.

The trial resulted in a hung jury and the case was to be retried. In 2009, the defense became aware of the existence of the plaintiff's diary and moved for a dismissal for fraud. During an evidentiary hearing, the defense established that the contents of the diary contradicted the plaintiff's own trial testimony on several key issues, including the timing of his wife's onset of renal insufficiency, the cardiologist's disclosure of the risks of surgery and whether his wife was given the option of having the surgery performed at a different hospital. The defense also established that the plaintiff had encouraged his adult daughter to testify falsely that the decedent was very physically active prior to her illness.

The trial court found that the plaintiff had set in motion a calculated scheme of fraud and, as a result, dismissed the plaintiff's wrongful death action with prejudice. On appeal, the 4th DCA affirmed the trial court's dismissal finding that the plaintiff's actions were calculated to hamper the defense and mislead the jury, thus warranting the harsh sanction of dismissal with prejudice.


This summary was prepared by Aaron Eagan of our firm.


Aaron Eagan

 

 

38 Fla. L. Weekly D1696a

 

Wrongful death -- Medical malpractice -- Dismissal -- Fraud on court -- Trial court did not abuse its discretion by dismissing case with prejudice based on fraud on court where there was competent, substantial evidence that plaintiff sentiently set in motion an unconscionable scheme calculated to interfere with judicial system's ability to adjudicate the matter impartially -- Plaintiff not only kept diary chronicling decedent's medical condition which he failed to disclose to defense in response to requests for production of any notes or diaries maintained by him that pertained to issues raised in lawsuit, but notations in diary, once it came to light, revealed repeated fabrications which contradicted plaintiff's trial testimony in several key aspects

EDWARD HERMAN, individually, and as Personal Representative of the Estate of Miriam Herman, his wife, Appellants, v. INTRACOASTAL CARDIOLOGY CENTER, MITCHELL D. SILVER, M.D., individually, and MITCHELL D. SILVER, M.D., P.A., Appellees. 4th District. Case No. 4D11-1214. August 7, 2013. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Glenn D. Kelley, Judge; L.T. Case No. 99-11107 CL. Counsel: Mark S. Weinstein of Weinstein & Weinstein, P.A., Weston, and Roy D. Wasson of Wasson & Associates Chartered, Miami, and George A. Vaka and Nancy A. Lauten of Vaka Law Group, Tampa, for appellants. Scott L. Mendlestein and Tiffany A. Hiller of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Coral Gables, and Rose Marie Antonacci-Pollack of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Fort Lauderdale, for appellees.

ON MOTION FOR REHEARING

[Original Opinion at 38 Fla. L. Weekly D908a]

(Levine, J.) We grant appellees' motion for rehearing, withdraw our previous opinion, and substitute the following in its place.

The issue presented for our review is whether the trial court erred in granting a motion to dismiss based upon the commission of fraud upon the trial court. We find that the trial court did not err since there was competent, substantial evidence to support the trial court's decision. We find, specifically, that there was competent, substantial evidence that appellant sentiently set in motion an unconscionable scheme calculated to interfere with the judicial system's ability to adjudicate the matter impartially. We affirm the order of the trial court, as we find that the trial court did not abuse its discretion in imposing the sanction of dismissal.

Edward Herman, individually and as personal representative of the Estate of Miriam Herman, his late wife, timely appeals a final order dismissing his wrongful death medical malpractice lawsuit for fraud on the court. In 1999, Miriam Herman filed a medical malpractice lawsuit against her cardiologist, Dr. Mitchell Silver, alleging that Dr. Silver caused her to go into renal failure by negligently failing to obtain a nephrology consult before clearing her for open heart surgery in 1997. After her death in 2001, appellant Edward Herman was appointed as the personal representative of the estate and the case was converted to a wrongful death suit.

In late 2002, then-defendant Bethesda Memorial Hospital propounded requests for production, one of which asked for "any notes or diaries maintained by Edward Herman or Miriam Herman that pertain to the issues raised in this lawsuit." A few days later, Dr. Silver served the same request for production, including the same request for diaries.

Although Mr. Herman did keep a diary chronicling his wife's medical condition from March 1997 (when she was admitted into the hospital) to July 1997, this diary was never disclosed to the defense in discovery. Mr. Herman never responded to either Bethesda's or Dr. Silver's request for production. An August 2003 motion to compel production filed by Dr. Silver was never set for hearing or ruled on.

The case went to trial in 2006. Mr. Herman presented expert testimony from a cardiologist that Dr. Silver negligently failed to get a nephrology consult in spite of clear medical signs that Mrs. Herman needed treatment before being cleared for surgery. He also presented expert testimony that any reasonable nephrologist would have implemented treatment and medication that would have prevented her from going into renal failure, given her medical condition.

At trial, Mr. Herman testified at length about his background, his life with Mrs. Herman, and the medical care she received. Mr. Herman testified that the first time he ever learned anything about Mrs. Herman's renal insufficiency was when she was in the hospital after the surgery. He also testified that, before the surgery, his wife rode bicycles, went for walks, and danced.

Mrs. Herman's deposition was taken before her death and the deposition recording was played at trial. Mrs. Herman denied that she had problems with her kidneys prior to the surgery. She also testified that she would routinely take walks with her husband for exercise. She was not specifically asked about whether she rode bicycles or went dancing.

The Hermans' daughter, Ms. Susan Winograd, testified at trial regarding her mother's physical activity. She testified that the family would go bike riding when she was younger. She also testified that her mother was a vibrant woman who loved dancing, but explained that her mother had to give up dancing after the surgery.

The 2006 trial resulted in a hung jury, and the case was scheduled to be retried in 2010.

In late 2009, Mr. Herman and Ms. Winograd were involved in a major argument, and Mr. Herman threatened to take her out of his will. Ms. Winograd then sent a letter to defense counsel, asserting that her father's testimony at trial contained "many lies" and informing defense counsel of the existence of her father's diary regarding Mrs. Herman's medical condition.
Dr. Silver subsequently filed a motion to dismiss the case for fraud upon the court. The motion alleged, in pertinent part, that Mr. Herman committed perjury in his September 2000 deposition and in his trial testimony, and that Mr. Herman intentionally withheld a diary which contradicted his sworn testimony.

The trial court held an evidentiary hearing on the motion to dismiss. At the hearing, the defense presented testimony from Ms. Winograd, Mrs. Herman's sister, and Mrs. Herman's brother-in-law. Mr. Herman requested that the trial court review Mr. Herman's 2010 updated deposition, in which he responded to the allegations against him.

The defense presented evidence which was inconsistent with Mr. Herman's testimony on a number of issues. The contradictions relevant to this opinion are as follows:

Kidney Problems Pre-Surgery. At trial, Mr. Herman testified that the first time he ever learned anything about Mrs. Herman having renal insufficiency was when she was in the hospital after the surgery. However, Mr. Herman's diary contains several references to his wife's kidney problems during her hospitalization in the weeks leading up to the surgery.

Risks of Surgery. At trial, Mr. Herman gave the following testimony regarding whether the doctors explained the risks of stroke and renal failure: "They discussed the risk of the surgery, assuming or on the basis that it was going to go favorably, but they never did discuss with us the eventualities if it didn't go right, Dr. Silver. And that wasn't something that was explained to us." However, in his diary, Mr. Herman mentions that Dr. Silver discussed the risk of stroke and that Mrs. Herman would be placed on a blood thinner to reduce the risk of clotting.

Option of Different Hospital. At trial, Mr. Herman testified that he did not recall having a discussion with Dr. Silver in which Dr. Silver told the Hermans to consider going to a university hospital due to the seriousness of the situation. Specifically, Mr. Herman testified: "No. The essence of what you're saying is that they didn't have a cardiologist unit in Bethesda. It was as simple as that. They couldn't perform the procedure there, so they had to find another hospital. And that's how we ended up in Delray." However, Mr. Herman's diary alluded to a possible transfer to a university hospital.

Mrs. Herman's Activity Levels. At trial, Mr. Herman testified that, before the surgery, his wife rode bicycles, walked, and danced. However, at the evidentiary hearing, Mr. Herman's daughter testified that none of this was true; she claimed that her father pressured her before the trial to lie and testify that her mother rode bicycles, danced, and did a lot of walking.

Jacket Testimony. At trial, Mr. Herman testified that his deceased wife was "with us today," telling the jury that he was wearing a jacket that his wife bought for him. However, his daughter testified that he fabricated the story about the jacket, that his new wife actually bought him the jacket, and that he later joked with the new wife about his testimony regarding the jacket.

The trial court took the matter under advisement and later entered a written order dismissing the case for fraud on the court. The trial court concluded that Mr. Herman "has sentiently set in motion a scheme to defraud" after considering the standard set forth in JVA Enterprises, I, LLC v. Prentice, 48 So. 3d 109, 112 (Fla. 4th DCA 2010). The trial court first noted that it found Mr. Herman's testimony at the trial regarding his personal background false, but that this testimony was "relatively minor and, alone, could be left as fodder for cross examination." We quote the following from the trial court's well-reasoned order:

However, Mr. Herman also gave false testimony that goes to the very issues presented to the jury in this case. He falsely testified that his wife led an active life leading up to the subject surgery. He described her as actively biking, dancing and walking. All of this testimony was offered to establish the alleged damages occasioned by the surgery. All of this testimony was false.

More disturbingly, Mr. Herman persuaded his daughter to support this fiction. Prior to trial, Ms. Winograd was given a list of "topics" that would be covered at trial. Mr. Herman continued to stress to Ms. Winograd the importance of telling the jury that Miriam Herman was active prior to the subject surgery. Ms. Winograd testified she went along with her father at the time of trial, but this testimony was false.

Perhaps of more significance, the Plaintiff maintained a diary which chronicled his wife's medical treatment, including her interaction with Dr. Silver, the defendant in this case. This diary was never produced during discovery in this case and its existence was not revealed until December of 2009 when Ms. Winograd contacted defense counsel . . . . While the Plaintiff asserts that the diary was not requested, the Court concludes that multiple discovery requests required the production of the diary.

The diary directly contradicts Mr. Herman's sworn testimony at trial in several key respects. This false testimony included when Miriam Herman developed kidney problems, the risks explained to the Plaintiffs at the time of surgery and the option of having the surgery performed at a hospital in Miami.

Mr. Herman went so far in his efforts to mislead the jury that he testified at trial that he wore to court each day a jacket that Miria[m] Herman had purchased for him. He described at trial how she was "with us today" because he had the "pleasure" of wearing the jacket during the trial. Ms. Winograd's testimony, which the Court finds to be credible, established that the jacket was purchased by Mr. Herman's second wife . . . after Miriam's death. The jacket was purchased to wear in Florida at the trial.

This is not a case where Mr. Herman "fudged" a few facts to make himself look better in the eyes of the jury. The Court concludes that Mr. Herman consciously set out to mislead the Court and the jury with the only possible motivation being pecuniary gain.

The trial court denied Mr. Herman's motion for rehearing, and this appeal follows.

"The trial court has the inherent authority, in the exercise of its sound judicial discretion, to dismiss an action when the plaintiff has perpetrated a fraud on the court . . . ." Kornblum v. Schneider, 609 So. 2d 138, 139 (Fla. 4th DCA 1992). As such, "[w]e review orders dismissing complaints for fraud upon the court to determine if there has been an abuse of discretion." Bass v. City of Pembroke Pines, 991 So. 2d 1008, 1010-11 (Fla. 4th DCA 2008); JVA Enters., 48 So. 3d at 112. This court has also stated that "[a]lthough a dismissal imposed as a sanction is reviewed under an abuse of discretion standard, the trial court's discretion is narrowed where dismissal is imposed for fraudulent conduct such as that alleged here, in which a more stringent abuse of discretion standard is appropriate." Bob Montgomery Real Estate v. Djokic, 858 So. 2d 371, 374 (Fla. 4th DCA 2003); Chacha v. Transport USA, Inc., 78 So. 3d 727, 730 (Fla. 4th DCA 2012).

The standard that must be met for a trial court to impose dismissal for fraudulent conduct is:

The requisite fraud on the court occurs where "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."

JVA Enters., 48 So. 3d at 113 (Fla. 4th DCA 2010) (quoting Arzuman v. Saud, 843 So. 2d 950, 952 (Fla. 4th DCA 2003)). The standard of appellate review of a "clear and convincing finding" is whether the finding is supported by competent, substantial evidence. Wigley v. Hares, 82 So. 3d 932, 946 (Fla. 4th DCA 2011).

When imposing the sanction of dismissal for fraud upon the court, trial courts should weigh the "policy favoring adjudication on the merits" with the need to "maintain the integrity of the judicial system." Arzuman, 843 So. 2d at 952. Trial courts should reserve this sanction "for instances where the defaulting party's misconduct is correspondingly egregious." Id. (citation omitted).

While "dismissal is a drastic remedy that should be used sparingly," Hogan v. Dollar Rent A Car Sys., Inc., 783 So. 2d 1211, 1213 (Fla. 4th DCA 2001), in this case, even under a narrowed abuse of discretion standard, a reasonable judge could find that the evidence of false testimony justified dismissal. There is competent, substantial evidence in the record to support the trial court's finding of clear and convincing evidence that Mr. Herman sentiently set in motion a scheme to defraud that was calculated to interfere with the judicial system's ability to adjudicate the matter impartially.

The trial court heard testimony at an evidentiary hearing on appellees' motion to dismiss, and determined that appellant's daughter and appellant's sister-in-law were credible witnesses. The trial court then determined, based on testimony the trial court expressly found credible, that appellant gave false testimony that went "to the very issues presented to the jury in this case." Significantly, the trial court relied in great part on the diary kept by appellant, which the trial court determined "directly contradicts Mr. Herman's sworn testimony at trial in several key respects."

In Bass v. City of Pembroke Pines, 991 So. 2d 1008 (Fla. 4th DCA 2008), this court "tested" "[t]he standard of review applicable to orders imposing sanctions for fraud upon the court." Id. at 1009. In Bass, the plaintiff, in answering interrogatories and in deposition testimony, omitted information regarding her medical history. The plaintiff primarily failed to disclose her history of migraine headaches and the names of several physicians who had treated her for these headaches. On appeal of the trial court's decision to dismiss for fraud on the court, this court first noted that "the limited scope of our review . . . dictates the outcome of this appeal." Id. at 1011. We ultimately deferred to the "specific findings by the trial court" that the plaintiff's discovery responses were "absolute, intentional, and untruthful," and affirmed the sanction of dismissal because "reasonable minds could differ on the imposition of this sanction." Id. at 1012.

Even if one were to find the analysis a "close call," that would not justify overturning the trial court's factual findings and final determination. This court found in another case regarding a trial court's decision concerning a motion to dismiss for fraud on the court, that "[t]he ultimate question is 'whether reasonable minds could differ as to the propriety of that decision.' " JVA Enters., 48 So. 3d at 113 (quoting Bass, 991 So. 2d at 1011). We found "that reasonable minds could differ under the facts of th[at] case." Id. Similarly, under the facts of the present case, reasonable minds could differ as to the propriety of the trial court's decision. See id. (noting "the issue is not whether any member of this panel would make the same decision as the trial judge").

Although one conceivably may find a lesser sanction to be a more appropriate sanction, that is not our standard of appellate review. "While this court might have imposed a lesser sanction, the question in this case is close enough that we cannot declare the lower court to have abused its discretion." Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998). Clearly, the trial court's determination that appellant's daughter and sister-in-law were credible witnesses, in conjunction with the trial court's reliance on a diary written by appellant himself would, at the least, constitute the type of evidence that is "close enough" for our court not to find the trial court to have abused its discretion.

The trial court acted within its discretion in finding that appellant's collective falsehoods at trial about the timing of Mrs. Herman's kidney problems, about what the Hermans had been told regarding the risks of surgery, and about Mrs. Herman's activity levels were sufficiently "central" to the case to satisfy the standard for dismissal. See Morgan v. Campbell, 816 So. 2d 251, 253 (Fla. 2d DCA 2002). The trial court also specifically found that Mr. Herman had coached Ms. Winograd into giving false testimony as to Mrs. Herman's activity levels at trial. The trial court adequately balanced the equities, and even noted in its order that certain inconsistencies, alone, were "relatively minor." See Piunno v. R.F. Concrete Constr., Inc., 904 So. 2d 658, 659 (Fla. 4th DCA 2005) (giving deference to imposition of dismissal sanction where "trial court's written order contains a thoughtful discussion of the facts and a well-reasoned conclusion, clearly showing the court balanced the equities"). In this case, we will not substitute our judgment for that of the trial court by assessing the effect of each falsehood on the potential ultimate outcome of Mr. Herman's case. See, e.g., McKnight v. Evancheck, 907 So. 2d 699, 701 (Fla. 4th DCA 2005) ("the trial court was within its discretion to determine that the misrepresentations made by [plaintiff] permeated the case"); Savino v. Fla. Drive In Theatre Mgmt., Inc., 697 So. 2d 1011, 1012 (Fla. 4th DCA 1997) (finding no abuse of discretion in dismissing personal injury action for fraud, where plaintiff "lied about matters which went to the heart of his claim on damages").

Our decision that the trial court's ruling on the motion to dismiss should be sustained naturally takes into account the unusual facts of this case. After all, as a practical matter, how many times would one expect to see the appearance of a litigant's diary, whose authorship is undisputed by both sides, contradict the previous trial testimony of the very author of the diary on "several key respects"?

In summary, where "repeated fabrications undermine[ ] the integrity of" a party's entire case, "the trial court has the right and obligation to deter fraudulent claims from proceeding in court." Savino, 697 So. 2d at 1012. The trial court's finding of clear and convincing evidence of the requisite calculated, unconscionable scheme allowing it to dismiss this case for fraudulent conduct is supported by competent, substantial evidence in the record. We, therefore, affirm the decision of the trial court.

Affirmed. (Ciklin, J., concurs. Taylor, J., dissents with opinion.)

__________________

(Taylor, J., dissenting.) I respectfully dissent. This case fails to present the type of egregious misconduct or extreme circumstance which would warrant dismissal with prejudice.

As the majority acknowledges, we apply a less deferential abuse of discretion standard when reviewing a dismissal imposed for fraud on the court.1 See Bob Montgomery Real Estate v. Djokic, 858 So. 2d 371, 374 (Fla. 4th DCA 2003). Although a trial court has discretion to dismiss an action for fraud on the court, it should exercise this severe sanction only in extreme circumstances. JVA Enters., I, LLC v. Prentice, 48 So. 3d 109, 113 (Fla. 4th DCA 2010). The requisite fraud on the court occurs where "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." Arzuman v. Saud, 843 So. 2d 950, 952 (Fla. 4th DCA 2003) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)). "Because 'dismissal sounds the death knell of the lawsuit,' courts must reserve such strong medicine for instances where the defaulting party's misconduct is correspondingly egregious.' " Arzuman, 843 So. 2d at 952 (citations omitted).

When imposing this harshest of sanctions, trial courts should weigh the "policy favoring adjudication on the merits" with the need to "maintain the integrity of the judicial system." Id. Except in the most extreme cases where it appears that the process of the trial has itself been subverted, simple factual inconsistencies and "even false statements" are well managed through the use of impeachment and traditional discovery sanctions. Granados v. Zehr, 979 So. 2d 1155, 1158 (Fla. 5th DCA 2008); Ruiz v. City of Orlando, 859 So. 2d 574, 576 (Fla. 5th DCA 2003). To support a dismissal, the court must find the "false testimony was directly related to the central issue in the case." Morgan v. Campbell, 816 So. 2d 251, 253 (Fla. 2d DCA 2002).

Moreover, "if the motion to dismiss for fraud would not likewise survive a motion for summary judgment, the trial court should presume the matter not subject to dismissal." Gilbert v. Eckerd Corp. of Fla., 34 So. 3d 773, 776 (Fla. 4th DCA 2010); accord Jacob v. Henderson, 840 So. 2d 1167, 1170 (Fla. 2d DCA 2003) ("The same facts for which this case was dismissed would not [support] a motion for summary judgment nor a motion for directed verdict, for there are questions of material fact.").

The Fifth District's decision in Cox v. Burke, 706 So. 2d 43 (Fla. 5th DCA 1998), is one of the leading decisions on dismissals for fraud. In Cox, the trial court dismissed a plaintiff's legal malpractice action due to fraud on the court. The legal malpractice action was based on the defendants' representation of her in an underlying medical malpractice claim. The plaintiff gave false or inconsistent information regarding her identity, whether she had a driver's license, her social security number, and whether she had sustained any fractures or other trauma prior to the accident at issue. Id. at 45-46. The trial court dismissed the action with prejudice. Id. at 46. On appeal, the Fifth District reasoned that although some of the alleged fraud was unproven, the plaintiff "has been shown to have given many false or misleading answers in sworn discovery that either appear calculated to evade or stymie discovery on issues central to her case." Id. at 47. Although the Fifth District expressed some doubt about the trial court's decision to dismiss, the appellate court nonetheless deferred to the trial court's judgment because it was a close case: "While this court might have imposed a lesser sanction, the question in this case is close enough that we cannot declare the lower court to have abused its discretion." Id.

Case law after Cox has emphasized that "Cox presented an extremely unusual fact pattern, wholly unlike the more conventional impeachment issues that have shown up in some more recent decisions . . . ." Ruiz, 859 So. 2d at 576. Indeed, the Fifth District acknowledged that in Cox it had "apparently underestimated" the "seductive power" of the remedy of dismissal. Id. at 575. Therefore, subsequent cases "have tried very, very hard to explain, and to emphasize, that this power to dismiss a lawsuit for fraud is an extraordinary remedy found only in cases where a deliberate scheme to subvert the judicial process has been clearly and convincingly proved." Bologna v. Schlanger, 995 So. 2d 526, 528 (Fla. 5th DCA 2008). "A testimonial discrepancy is usually not enough; there should be clear and convincing evidence of a scheme calculated to evade or stymie discovery of facts central to the case. This will almost always require an evidentiary hearing." Id. As Judge Griffin pointed out in her specially concurring opinion in Bologna: "We all know that the capacity to remember and the categories of what we remember varies widely among individuals and depends on a number of common factors, such as age, stress, fatigue, emotion. I am skeptical that all of the plaintiffs in the recent profusion of 'fraud on the court' cases are thieves and perjurers." Id. at 530 (Griffin, J., concurring).

In this case, the trial court concluded that Mr. Herman committed a fraud upon the court. However, as explained below, the alleged falsehoods or inconsistencies by Mr. Herman were either: 1) subjective assessments about his wife's activity levels; 2) not actual inconsistencies at all; or 3) immaterial to the central issues in the case.

As a preliminary matter, there is no clear and convincing proof that Mr. Herman lied at trial about his wife's activity levels before the surgery. Nor is there clear and convincing proof that he persuaded his daughter to lie at trial. Even with the trial court's finding that Mr. Herman's daughter and sister-in-law gave credible testimony at the evidentiary hearing, their testimony did not establish that Mr. Herman knew himself to be testifying falsely at trial about his subjective assessment of how active his wife was before the surgery. I fail to see how the trial judge -- who did not preside over the original trial -- could conclude, based solely on the testimony at the evidentiary hearing, that Mr. Herman gave false testimony at trial when he testified that his wife rode bicycles, went for walks, and danced. The testimony of Ms. Winograd and Mr. Herman's in-laws established nothing more than their subjective opinion that Mrs. Herman was inactive and lethargic. Although Ms. Winograd claimed at the hearing that her mother "never" rode a bicycle and "never" took walks with Mr. Herman, she did not live with her parents and was not in a position to testify that Mrs. Herman never rode bicycles, went for walks, or danced.

Moreover, Mr. Herman's trial testimony was also largely confirmed by the deposition of Mrs. Herman herself, which was taken before her death, wherein she testified that she and her husband would routinely take walks for exercise. Mr. and Mrs. Herman would have been in the best position to know Mrs. Herman's activity levels before the surgery. And there has been no accusation that Mrs. Herman's deposition testimony was fraudulent.

With respect to the claim that Mr. Herman persuaded Ms. Winograd to perjure herself, it is important to examine Ms. Winograd's actual testimony at trial. In her brief testimony at trial, Ms. Winograd stated that her family would go bike riding when she was younger, that her mother "loved" music and dancing, and that after the surgery Mrs. Herman would have to sit down when Mr. Herman tried to dance with her. Assuming, as the trial court found, that Mr. Herman did stress to Ms. Winograd the importance of telling the jury that Mrs. Herman was active prior to the surgery, this would not constitute fraud unless he believed it to be false. It is also worth noting that the only person who has admitted to giving contradictory testimony in this matter is Ms. Winograd, a witness whose bias may have resulted from being cut out of Mr. Herman's will. In short, rather than constituting clear and convincing proof of fraud, the dispute about Mrs. Herman's activity levels involved conflicting assessments as to a largely subjective issue. This was a credibility dispute better left for a jury to resolve.

The trial court also found that Mr. Herman misled the jury when he testified at trial that the jacket he wore to court was purchased by Mrs. Herman. However, in my view, this testimony was immaterial to the central issues in the case. Mr. Herman's testimony at trial that he was wearing a jacket purchased by his deceased wife was completely irrelevant to any issue that was of consequence to the determination of the case. This testimony would have been properly excluded had there been an objection. Thus, it cannot be said that this testimony concerned a "central" issue in the case. In any event, although Ms. Winograd testified that Mrs. Herman did not purchase the jacket that her father wore at the 2006 trial, Mr. Herman again testified in his 2010 deposition that Mrs. Herman in fact purchased the jacket. Again, any alleged falsehood on this issue was a credibility dispute better left for cross-examination at trial.

The trial court also focused on three alleged inconsistencies between Mr. Herman's diary2 and his trial testimony: "This false testimony included when Miriam Herman developed kidney problems, the risks explained to the Plaintiffs at the time of the surgery and the option of having the surgery performed at a hospital in Miami." However, contrary to the trial court's findings, much of Mr. Herman's trial testimony as to these matters either did not go to the heart of the claim or was not materially inconsistent with his diary. Thus, I disagree with the majority's characterization of the diary as contradicting the previous trial testimony of Mr. Herman in "several key respects."

To be sure, there was an inconsistency on the issue of when Mr. Herman remembered his wife developing kidney problems. Mr. Herman testified at trial that the first time he learned of any renal insufficiency in his wife was after the surgery, but in his diary (which he started keeping a few weeks before the surgery) he made several references to his wife experiencing kidney problems during her hospitalization before the surgery. This discrepancy, however, is not particularly pertinent to the medical malpractice claim. The entire theory of the plaintiff's case was that Dr. Silver negligently failed to get a nephrology consult in spite of clear signs that Mrs. Herman was having kidney problems before the surgery. Indeed, the second amended complaint specifically alleged that Mrs. Herman had a "known history of renal insufficiency" and that Dr. Silver failed to take proper precautions before the surgery in light of this renal insufficiency. Therefore, any inconsistency between Mr. Herman's testimony at trial that the first time he learned of his wife's renal insufficiency was after the surgery, and his notes in his diary mentioning the renal insufficiency a little over two weeks before the surgery, is the type of simple factual inconsistency best left for cross-examination. This inconsistency was not particularly material to the claim and cannot be deemed to have been a calculated scheme to interfere with the judicial system's ability to adjudicate the matter impartially.

Second, Mr. Herman's testimony regarding the doctors informing him and his wife of the risks of surgery was not actually inconsistent with his diary. Mr. Herman's diary did mention some of the risks explained to the Hermans before the surgery. However, when Mr. Herman's testimony at trial is read fully and in context, it was not inconsistent with his diary. His testimony at trial acknowledged that he and his wife consented to the ordinary risks attendant to the surgery, which included renal failure. He was merely suggesting in his testimony that he and his wife were not warned of, and did not consent to, the risks of surgery occurring as a result of the doctors doing something wrong. In any event, even if there were a discrepancy on this issue, it is hardly relevant given that the plaintiffs never asserted a claim that the surgery was performed without Mrs. Herman's informed consent.

Finally, the alleged inconsistency regarding whether the surgery could have been performed at a university hospital in Miami does not go to the heart of the case. Any inconsistency on this issue is immaterial, as it would not unfairly hamper Dr. Silver's defense. Indeed, the fact that Mrs. Herman could have gone to another hospital is not a defense at all to the medical malpractice claim. The entire basis for the lawsuit is that Dr. Silver negligently cleared her for surgery. The hospital where the surgery ultimately occurred was wholly irrelevant.

The cases where appellate courts have affirmed dismissals for fraud typically involved situations where the fraud was blatant or uncontroverted. See, e.g., Bass v. City of Pembroke Pines, 991 So. 2d 1008, 1011-12 (Fla. 4th DCA 2008) (noting that the plaintiff "intentionally omitted significant information" on multiple answers and that "there was no excuse given for these blatant omissions"); Gilbert v. Eckerd Corp. of Fla., Inc., 34 So. 3d 773, 776 (Fla. 4th DCA 2010) (distinguishing "cases where fraud or misrepresentation is uncontroverted"). This case does not fall into that category. The case at bar presented conventional impeachment issues and was unlike the "extremely unusual fact pattern" in Cox, where "there was a significant amount of evidence suggesting that the court could not even be confident of who the plaintiff was, much less what had happened to her." Ruiz, 859 So. 2d at 576. Indeed, the evidence in this case "wouldn't even support a summary judgment or directed verdict." Id.

The majority's holding, if taken to its logical conclusion, could seriously jeopardize the invaluable right to trial by jury. In my view, no reasonable trial judge would have dismissed this case for fraud, where many of the alleged inconsistencies did not pertain to central issues in the case, and where the remaining evidence regarding the alleged fraud failed to establish that Mr. Herman knew himself to be lying. "The power to resolve disputes over the truth or falsity of claims belongs to a jury." Jacob v. Henderson, 840 So. 2d 1167, 1169 (Fla. 2d DCA 2003). As the Jacob court explained:

Trials result from factual disputes. In these disputes, the facts on one side are, at best, less true and, at worst, false or fraudulent. In nearly every intersection collision, there is only one person with the right of way. Is the fact that both drivers believe they had the right of way the result of fraud? If there are ten eyewitnesses to the collision and all agree driver A had the right of way, does that make driver B's claim fraudulent and subject to dismissal?

Id. Here, the factual disputes regarding Mr. Herman's alleged inconsistent or false statements should have been decided by a jury.

In sum, the nature and substance of any inconsistencies and contradictions in this case required the trial court to consider a lesser sanction, reflecting the proper balance between the policy favoring adjudication on the merits and the need to maintain the integrity of the judicial system. See Suarez v. Benihana Nat'l of Fla. Corp., 88 So. 3d 349, 353 (Fla. 3d DCA 2012) ("Even if the record in this case could give rise to some inference of willful or intentional conduct, the nature and substance of the inconsistencies and contradictions required the trial court to consider some lesser sanction, reflecting the proper balance of competing interests and appropriately tailored to address the party's conduct and the resulting prejudice."). This case simply fails to present the type of egregious misconduct or extreme circumstance which would warrant dismissal with prejudice. Because I believe the trial court abused its discretion in imposing the sanction of dismissal, I would reverse.

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1. However, even applying an ordinary abuse of discretion standard, I would find that the trial court abused its discretion.

2. It is not completely clear whether the trial court was, at least in part, relying upon Mr. Herman's failure to produce the diary in discovery as a ground for dismissal. If the trial court in fact meant to rely upon the failure to produce the diary as a ground for dismissal, this would have been error, as the trial court never issued an order compelling Mr. Herman to respond to the discovery. See Garvin v. Tidwell, __ So. 3d __, 2012 WL 5232224, 37 Fla. L. Weekly D2506 (Fla. 4th DCA Oct. 24, 2012) (sanctions for a discovery violation are not an appropriate remedy where the opposing party did not file a motion to compel and the trial court did not issue an order compelling discovery).

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