Plaintiff’s poor memory is insufficient to overcome dismissal for fraud upon the court when he concealed history of chronic back pain.

The plaintiff filed a cause of action for negligence as a result of injuries sustained in a motor vehicle accident. During discovery, he disclosed that he sustained an injury to his lower back in the early 1980s, but testified that the injury had healed and he had not had any problems with his lower back for 30 years. He also denied having been to see a doctor for low back pain since 2000. The plaintiff’s medical records revealed incidents of lower back pain approximately twice before the subject accident. The trial court dismissed the plaintiff’s action for fraud upon the court. The appellate court affirmed the trial court’s decision and discounted the plaintiff’s contention that his testimony was a result of “poor memory.” Specifically, the court relied on the plaintiff’s criminal history, including numerous crimes of dishonesty. Further, the court held that the plaintiff’s ability to remember his prior back pain in the 1980s, but inability to recall having excruciating pain approximately seven months prior to the subject accident, was not enough to set aside the trial court’s finding that he fraudulently concealed his medical history. Focusing on the need to maintain the institutional integrity of the judicial system and the desirability of deterring future misconduct, the trial court’s order to dismiss the case with prejudice for fraud on the court was affirmed.

_{Case Law Alerts, 4^th Quarter, October 2018}

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