121 So. 3d 583
Fla. Dist. Ct. App.2013Background
- Miriam Herman sued her cardiologist, Dr. Mitchell Silver, for medical malpractice; after her 2001 death the claim continued as a wrongful-death action with Edward Herman as personal representative.
- Defense requests for production in 2002 asked for any diaries or notes; Edward Herman kept a contemporaneous diary from March–July 1997 but did not produce it and never responded to the requests.
- The 2006 trial produced a hung jury; Herman testified about his wife’s pre‑surgery activity, lack of prior renal problems knowledge, and statements by doctors; Mrs. Herman’s earlier deposition generally supported some testimony.
- In 2009 Herman’s daughter informed defense counsel of the diary and alleged her father’s trial testimony contained lies; the defense moved to dismiss for fraud on the court alleging perjury and intentional withholding of the diary.
- After an evidentiary hearing the trial court found Herman’s trial testimony contradicted by the diary and credible witnesses, concluded he ‘‘sentiently set in motion a scheme to defraud,’’ and dismissed the case with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for fraud on the court was warranted | Herman: inconsistencies were subjective, immaterial, or credibility disputes; dismissal is extreme | Defendants: withheld diary + false testimony were part of an unconscionable scheme to mislead the jury and impede adjudication | Affirmed — trial court had competent, substantial evidence of clear & convincing fraud |
| Whether failure to produce the diary constituted fraud sufficient for dismissal | Herman: diary non‑production not proven to be willful fraud and discovery motion to compel was never decided | Defendants: diary directly contradicted key trial testimony and its nondisclosure was part of the scheme | Court relied heavily on diary contradictions as support for fraud finding (affirmed) |
| Whether alleged falsehoods were central to the case (materiality) | Herman: many discrepancies were subjective or peripheral (e.g., activity level, jacket) and not central to malpractice claim | Defendants: false testimony concerned timing of kidney problems, informed‑risk discussions, and hospital options—matters central to causation/notice | Court found falsehoods went to central issues and justified dismissal |
| Whether trial court abused its discretion in imposing dismissal (standard of review) | Herman: dismissal is drastic; lesser sanctions appropriate; evidence did not meet clear and convincing standard | Defendants: appellate review is deferential but acknowledges a narrowed abuse‑of‑discretion standard for fraud dismissals | Court: under narrowed review, reasonable minds could differ; no abuse of discretion — dismissal affirmed |
Key Cases Cited
- JVA Enters., I, LLC v. Prentice, 48 So.3d 109 (Fla. 4th DCA 2010) (defines "fraud on the court" standard)
- Arzuman v. Saud, 843 So.2d 950 (Fla. 4th DCA 2003) (adopts Aoude standard for fraud on the court)
- Kornblum v. Schneider, 609 So.2d 138 (Fla. 4th DCA 1992) (trial court’s inherent authority to dismiss for fraud)
- Bass v. City of Pembroke Pines, 991 So.2d 1008 (Fla. 4th DCA 2008) (appellate deference to trial court findings in fraud dismissals)
- Cox v. Burke, 706 So.2d 43 (Fla. 5th DCA 1998) (cautionary primer on the extraordinary nature of dismissal sanctions)
- Savino v. Fla. Drive In Theatre Mgmt., Inc., 697 So.2d 1011 (Fla. 4th DCA 1997) (dismissal appropriate where lies go to the heart of damages claim)