Is the "Fraud on the Court" Doctrine Eroding in Florida?

With the explosion of personal injury litigation in this country over the last two decades, the legitimacy of many injury claims is suspect. Injury claimants have been known to lie about their medical histories, extent of injuries, disabilities, and other facts to enhance their case values.

Florida courts have long recognized the principle that a party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve his or her ends. Carter v. Carter, 88 So.2d 153, 157 (Fla. 1956). This "fraud on the court" can and should result in the case being dismissed with prejudice.

Ten years ago, the fraud on the court doctrine was infused with decisions which took an increasingly harsh stance on fraud committed by personal injury plaintiffs. As the Fifth District Court of Appeal stated in Cox v. Burke, 706 So.2d 43, 47 (Fla. 5th DCA 1998):

The integrity of the civil litigation process depends on truthful disclosure of facts. A system that depends on an adversary's ability to uncover falsehoods is doomed to failure, which is why this kind of conduct must be discouraged in the strongest possible way.

A number of decisions followed which affirmed dismissals of claims where plaintiffs lied about their medical histories or causes of injury. Commentators chronicled these cases, noting the new found vigor of the fraud on the court doctrine. Donald A. Blackwell, "The 'Big Lie'," Fla. Bar J., 20 (July/August, 1999).

However, over the last decade, perhaps in response to the increased use of motions to dismiss these cases, Florida's appellate courts appear to be backpedaling and making it increasingly difficult to obtain a dismissal. Two recent cases are good examples. Last year, the Fifth District Court of Appeal decided Bologna v. Schlanger, 995 So.2d 526 (Fla. 5th DCA 2008). Without conducting an evidentiary hearing, the trial court granted a motion to dismiss Bologna's case with prejudice after finding that she committed fraud on the court by intentionally failing to disclose her previous treatment for the same conditions for which she sought damages.

The Fifth District Court of Appeal reversed after going to great lengths to reexamine the records and testimony about Bologna's prior injury. The court also criticized the defense attorney for what it characterized as a "fraud" strategy, "If a plaintiff denies a particular prior injury or treatment or pattern of pain, rather than probe in detail - which may risk the jogging of the plaintiff's memory - the questioning on this point just stops until the inevitable motion to dismiss for fraud is ruled on."

The majority ruling in the Bologna case appears to have hinged on the absence of an evidentiary hearing by the trial court before granting the dismissal. Judge Thompson, in his dissent, noted that there is no "rule, statute or case that requires an evidentiary hearing to be held when a motion to dismiss for fraud is filed." He felt that the trial court had a sufficient evidentiary basis for determining that fraud on the court had occurred, even without a hearing.

More recently, the Third District Court of Appeal has reversed an order dismissing a case with prejudice for fraud on the court in Laurore v. Miami Automotive Retail, Inc., 34 Fla. L. Weekly D1160a (Fla. 3rd DCA June 10, 2009). There, the court took a new stance in reversing the trial court's dismissal, remanding the case for consideration of whether the injured plaintiff's misrepresentations warranted the striking of some of his damage claims, but not his entire case. Again, it appears that the appellate court is hesitant to apply the ultimate sanction of dismissal. Judge Shepherd noted in his dissent, "[I]f this record is sufficient to sanction Laurore for concealment of his damage claim, it necessarily is sufficient to sanction him for concealment of evidence related to liability," and the Judge also warned that the appellate court cannot substitute its own judgment for that of the trial judge, who is in the best position to analyze the evidence.

Thus, the Bologna and Laurore cases are two examples of recent appellate decisions in Florida serving to reverse lower courts' dismissals of cases based upon a finding of fraud on the court. There would appear to be an unsettling trend of similar decisions overturning dismissals.

What can be done to stem the tide of this erosion of the commendable fraud on the court dismissal stance previously taken by the courts?

1. Keep up the good fight against "professional" plaintiffs who seek to conceal their true accident and medical histories.
2. Be thorough, ask good questions, and conduct the necessary follow-up discovery to uncover false testimony.
3. Request an evidentiary hearing on motions to dismiss cases for committing fraud on the court.
4. Do not underestimate the value of a well-timed motion to dismiss for fraud on the court as leverage if the intent is to settle the case.
5. Choose your cases wisely so that the arguable erosion of the fraud on the court doctrine in Florida can be corrected at the appellate level.

* Robert is a shareholder in our Orlando, Florida, office. He can be reached at (407) 420-4409 and rakingsford@mdwcg.com.

Defense Digest, Vol. 15, No. 3, September 2009