Lead Opinion
for the Court:
¶ 1. Luther W. McLain filed suit in 2004 against Illinois Central Railroad. He alleged that Illinois Central’s negligence caused his degenerative back injury. At trial, McLain had improper contact with a juror, committed perjury on the stand, and solicited a witness to commit peijury on the stand to corroborate his story. The trial judge reserved sanctioning McLain until after the jury verdict. The jury found for McLain, assessed his damages as $150,000, and judgment was entered accordingly. Thereafter, the trial judge sanctioned McLain $500 for juror contact and $10,000 for solicitation of a witness. We affirm the existing sanctions, but we hold that the trial judge abused her discretion in failing to impose further sanctions. Given the severity of committing perjury and solicitation and the cumulative effect of the violations taken as a whole, we reverse the judgment against Illinois Central, and we render judgment here in favor of Illinois Central.
Facts and Procedural History
¶ 2. Luther McLain began working for Illinois Central Railroad (d/b/a Canadian National/Illinois Central) in 1970 and retired in 2002.
¶ 3. During discovery, in his deposition, McLain stated the heaviest thing he had lifted while working at Right of Way Consultants was a flag. The following exchange took place:
Q. ... [Wjhat is the heaviest thing you’ve had to pick up while working for Right of Way Consulting?
A. We have flags that we talked about the time before we set.
Q. Right. I remember that. Is the heaviest things you’ve had to pick up—
A. Yes.
Q. —while working for Right of Way?
A. Yes, sir. They — they not heavy.
When the trial began, a juror was excused because, against the trial judge’s explicit instructions, McLain started a conversation with the juror on the elevator. The juror testified to the following:
We got on the elevator together, and [McLain] said good morning. I said good morning and said it was a good day to be alive. And he made a comment and said that — I said we know what’s on this side, but we don’t know what’s on the other side. And he said that you’ve got to be stayed up, packed up and*1282 ready to go. And I said yes, sir, and that was the end of the conversation.
The trial judge reserved sanctioning on the issue until the verdict was returned. During McLain’s testimony, the following exchange took place between Illinois Central’s attorney and McLain:
Q: Now, you were telling Mr. Schmieder that it’s not a very physical job working for Right of Way Consultants, correct?
A. Correct.
Q. And what’s the heaviest thing you have to lift; your flag?
A. Yes, the flag goes along with the job.
Q. All right. So you’re saying the heaviest thing that you have to lift for Right of Way Consultants on the job is just the flag that you use to flag people with?
A. You’ve got, you know, a small hammer you drive in the ground with.
Q. A small hammer?
A. Yes, sir.
Q. Okay. And that’s what you said in your deposition when we asked that question also, isn’t it?
A. I believe that’s right, yes.
Q. Just a small hammer and a flag, that’s the heaviest thing that you have to lift, right?
A. That’s right.
Q. All right. Now, do you recall talking to Mr. Cecil Coker here recently over the phone?
A. Pardon?
Q. You’re aware Mr. Coker is going to be testifying in this trial, aren’t you?
A. Yes, sir, as far as I know.
Q. You’re aware that he was going to be a witness in this trial, right?
A. That’s what I hear.
Q. And do you remember within the last month placing a phone call to Mr.-Coker?
A. We talked. We talked.
Q. And do you remember asking him not to mention that you actually have to lift and move a 40-pound portable derail? You remember asking Mr. Coker—
A. As a matter of fact I did.
Q. —not to mention that?
A. I sure did.
Q. So you asked Mr. Coker, who’s going to be testifying here, not to tell the jury that you actually have to pick up this 40-pound metal derail? That’s what you asked him to do?
A. As a matter of fact I did. I remember that.
Q. You asked Mr. Coker to he to this jury? You asked Mr. Coker to he to the jury?
A. If that’s what it amounts to, I guess.
Again, the trial judge reserved sanctioning McLain until the verdict was returned.
¶ 4. The jury returned a verdict in McLain’s favor for $150,000. The trial judge sanctioned McLain for two different violations: first, for McLain’s improper contract with an empaneled juror, and second for McLain’s unlawful solicitation of perjured testimony from a trial witness. For the improper contact, the tidal judge sanctioned McLain $500, and for the solicitation, the trial judge sanctioned McLain $10,000.
¶ 5. Illinois Central filed a motion for additional sanctions. Illinois Central claimed that the sanctions were not harsh enough to deter others from committing sohcitation and perjury, that McLain had committed perjury by stating that the heaviest thing he lifted at Right of Way was a flag, not a forty-pound derail, and
Analysis
¶ 6. On appeal, Illinois Central brings twelve issues. McLain responds with five more concise issues. Both parties address whether the trial judge appropriately sanctioned McLain based on his misconduct at trial. Given that we hold the issue on sanctions to be dispositive, we do not address the remaining issues.
Whether the trial judge appropriately sanctioned McLain.
¶ 7. The instant appeal is brought under the Federal Employers’ Liability Act (FELA). 45 U.S.C. § 56 (Rev.2012). The Court has stated the following in regard to the applicable law for FELA cases:
FELA creates a tort remedy for railroad workers injured on the job and serves as the exclusive remedy for a railroad employee injured as a result of his or her employer’s negligence. What constitutes negligence for [FELA] purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state or local laws for other purposes. Federal decisional law formulating and applying the concept governs. Accordingly, this Court is bound to enforce the federal law as Congress has provided and as the federal courts have read it. However, FELA cases adjudicated in state courts are subject to state procedural rules.
Illinois Cent. R. Co. v. Brent,
A. Whether Illinois Central is procedurally barred from appealing the sanctions imposed.
¶ 8. McLain argues that Illinois Central is procedurally barred from claiming on appeal that the trial judge did not impose the appropriate sanctions because Illinois Central failed to object at trial to the sanctions at trial. McLain cites Rubenstein v. State,
¶ 9. We agree with Illinois Central. The rule McLain cites addresses the need for evidentiary objections to preserve an argument for appeal. While we do not discredit the rule cited by McLain, it does not apply to the instant facts because the
¶ 10. In the instant case, sanctioning was the last issue addressed by the trial judge, as it was reserved for after the verdict was returned. After sanctioning McLain, the trial judge asked if there was anything further. Illinois Central responded in the negative, and the trial ended. Following trial, before appealing, Illinois Central moved to dismiss and for additional sanctions, stating that the sanctions were insufficient. When it was denied, Illinois Central entered a second motion. After the second motion was denied, Illinois Central appealed. We hold that the sanctions issue was presented to the trial judge prior to appeal. Thus, it is not waived.
B. Whether the sanctions imposed by the trial judge amount to an abuse of discretion.
¶ 11. Illinois Central argues the sanctions were insufficient to punish McLain’s conduct. Illinois Central also argues that the sanctions wholly fail to consider that McLain, himself, committed perjury in his deposition and at trial.
¶ 12. In Mississippi, our Court employs an abuse of discretion standard in reviewing the trial judge’s grant or denial of sanctions. Allen,
¶ 13. Under the abuse of discretion standard of review, the Court first must consider whether the lower court applied the correct legal standard. Pierce v. Heritage Props., Inc.,
¶ 14. When the juror contact was first brought to the trial judge’s attention, she cited Illinois Central Railroad Co. v. Hawkins,
¶ 15. Turning to McLain’s solicitation, the trial judge failed to consider the direct link between McLain’s solicitation and his
First, dismissal is authorized only when the failure to comply with the court’s order results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in situation[s] where the deterrent'value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party’s preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party’s simple negligence is grounded in confusion or sincere misunderstanding of the court’s orders.
Pierce,
¶ 16. Pierce states that dismissal is authorized only when the failure to comply with the court’s order results from willfulness or bad faith. Id. at 1389. McLain solicited Coker to commit perjury because he had lied in his deposition about the heaviest item he lifted at Right of Way Consultants. McLain then committed perjury on the stand, stating the heaviest thing he lifted was a flag, and he denied asking Coker to commit perjury until he became aware that Illinois Central knew he had spoken with Coker. See Pierce,
¶ 17. Second, the Pierce Court considered whether less drastic sanctions would achieve the deterrence. Id. at 1389; see also Jones,
I’ve been on the bench for 13 years in both criminal and civil cases. Not even in a criminal case where someone’s liberty is at stake has this Court ever had a witness attempt to have another witness — have a plaintiff or a party to have a witness lie and then come; into. Court and put that testimony before a jury.
She then sanctioned McLain $10,000 for solicitation, which comes out to be less than seven percent of the final jury verdict. Given the nondrastic nature of McLain’s sanction and that she failed to consider his perjury, we must determine, as the Jones Court opined, whether the sanction imposed is “severe enough to deter others.” Jones,
¶ 18. The Legislature has carved out a criminal penalty
It is difficult to contemplate a clearer or more abhorrent example of a litigant's attempt to abuse and subvert the integrity of the judicial process than an effort to suborn perjury from a material witness. Coercing or seeking to obtain or manufacture false testimony [] strikes at the heart of the judicial system. Lying cannot be condoned in any formal proceeding.... Our legal system is dependent on the willingness of the litigants to allow an honest and true airing of the real facts.
Johnese v. Jani-King, Inc.,
¶ 19. In the instant case, Coker was a material witness. Coker testified for Illinois Central. Between Coker’s employment at Illinois Central and Right of Way Consultants, he had worked with McLain for thirty years. He testified to Illinois Central’s safety programs and rules, and he testified to his and McLain’s job duties at Illinois Central and at Right of Way Consultants. Coker’s testimony addressed McLain’s negligence claims against Illinois Central. The severity of solicitation of a material witness — even without considering McLain’s other misconduct — warrants a sanction that amounts to more than seven percent of the verdict.
¶ 20. The trial judge neither made a finding of McLain’s own perjury nor imposed sanctions for it. Generally, we would remand for the trial judge to determine whether McLain committed perjury; however, under the instant facts, remand is not necessary because the record clearly establishes perjury. During his depositions and at trial, McLain stated that the heaviest thing he lifted was a flag. When pressed by Illinois Central, McLain admitted that he had asked Coker not to mention that he actually had lifted a forty-pound derail. It is clear from the record that McLain solicited perjury in order to conceal his own perjury. In other words, McLain’s perjury is directly tied to his solicitation — a court cannot find one without finding the other. Thus, the trial judge’s failure to sanction McLain is completely at odds with the importance of deterring others from committing perjury.
¶ 21. Third, the Pierce Court considered whether the other party was substantially prejudiced in the discovery process, but the Court also wrote that substantial prejudice is not required for dismissal to be the appropriate remedy. Pierce,
¶ 23. In Jones, during the trial, it became clear that one party had committed perjury on the stand. Jones,
¶ 24. Jones gives us further guidance in concluding, based on the Pierce factors, that the trial judge committed clear error for not imposing sanctions for McLain’s perjury. However, in Jones, the Court remanded for the chancellor to determine the appropriate sanctions. While we agree that the Jones Court was correct in remanding, as remand is generally the appropriate remedy, under the instant facts, remand is not warranted.
¶25. Unlike in Jones, McLain committed misconduct at least four times during discovery and at trial. He committed perjury during discovery and at trial. He solicited Coker to commit perjury, and although he was sanctioned, his sanction was an abuse of discretion as it constituted less than seven percent of the verdict. Lastly, he also engaged in inappropriate contact with a juror. Each act of misconduct, taken separately, may not warrant dismissal. However, given that the record before us clearly establishes all of McLain’s misconduct and that his misconduct includes perjury and solicitation of perjury — which strike to the heart of our judicial system and require sanctions to deter others — we hold that the trial judge abused her discretion in imposing only monetary sanctions on McLain. We further hold that, along with the monetary sanctions, the only appropriate remedy is ro reverse McLain’s judgment against Illinois Central and dismiss the case.
Conclusion
¶ 26. Generally, when we determine a trial judge committed clear error in her imposition of sanctions, we will remand for the trial judge to reconsider the facts and apply appropriate sanctions. However, under the special circumstances of the instant case, in which McLain committed numerous egregious acts, dismissal is the only appropriate remedy. We uphold the trial judge’s imposition of the $500 sanction for improper juror contact and the $10,000 sanction for solicitation of perjury. Further, given that a monetary fine alone is not enough in the instant case for the solicitation of perjury and committing perjury, we reverse the judgment against Illinois Central, and we render judgment here in favor of Illinois Central that McLain takes nothing and that his complaint and this case are finally dismissed with prejudice and with court costs assessed against McLain.
¶ 27. AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.
Notes
. After retirement, in 2002, McLain began working for Right of Way Consultants.
. Mississippi Code Section 97-9-65 states that a conviction for bribing a witness to commit perjury shall be punishable by up to five years imprisonment. Miss.Code Ann. § 97-9-65 (Rev.2014). -However, to be guilty under Section 97-9-65, one must "offer any valuable consideration.” 'Id. In the case sub judice, the record clearly shows that McLain only asked Coker to commit perjury on the stand.. McLain did not offer any valuable consideration in exchange for Coker's testimony.
. Under different facts, where the solicitation is not accompanied by multiple other acts of misconduct, we hold no opinion on what constitutes an appropriate heavier sanction. We only hold that, where the trial judge failed to cite any law for her decision, a monetary sanction of less than seven percent of a verdict is not sufficient for solicitation of peijury.
Dissenting Opinion
dissenting:
¶ 28. Because a trial court’s order' imposing sanctions is reviewed for abuse of discretion, and because dismissal of an action is reserved for thé most extreme circumstances, I believe that the trial judge did not abuse her discretion in issuing monetary sanctions. ’ Further, I believe that the majority’s holding to dismiss McLain’s ease without remanding to the trial court for reconsideration of greater sanctions would require this Court to adopt a per se rule of dismissal in cases involving perjury.
¶29. This Court will affirm a trial court’s imposition of sanctions unless there is a “definite and firm conviction that the court below committed a , clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Pierce v. Heritage Props., Inc.,
¶ 30. “If the trial court applies the ‘correct legal standard,’ we must affirm the decision, regardless of what any one of us individually might have ruled had we been the judge, unless there .is a ‘definite and firm conviction that the court below committed clear error.’ ” Ashmore v. Mississippi Auth. on Educ. Television,
¶ 31. The majority states that the trial judge failed to consider that McLain committed perjury himself. I believe the record reflects that the trial judge was fully aware of McLain’s perjury. As the majority states, “a court cannot find one without finding the other.” Illinois Central did not to object to the trial court’s order until two weeks after the imposition of sanctions. Further, had the trial judge merely failed to consider McLain’s perjury, her oversight easily could have been corrected in the two additional motions Illinois Central brought after the imposition of sanctions, arguing this exact claim. McLain stated in his deposition and trial testimony that the heaviest thing he was required to lift at Right of Way was a flag. McLain also asked Coker to refrain from mentioning that he lifted derails at Right of Way Consulting. McLain’s solicitation of Coker and his perjury were attempts to cover up the fact that McLain lifted derails after his employment at Illinois Central. McLain readily admitted in front of the jury that he had attempted to influence Coker and that he was required to lift something heavier than a flag after he left Illinois Central. Because these acts were intertwined and inseparable, the $10,000 sanction imposed on McLain encompassed both McLain’s perjury and his solicitation of Coker.
¶ 82. Dismissal is appropriate only when no lesser sanctions will suffice. This Court, in Pierce, emphásized its reluctance to dismiss a cause of action and, consequently, to deprive a plaintiff of her day in court. Pierce,
¶33. Pierce gave us four factors, to consider when analyzing whether dismissal was appropriate. Admittedly, the first factor in Pierce leans towards dismissal, in that McLain’s conduct resulted from willfulness and bad faith. Under the second factor, however, dismissal is proper only when less drastic sanctions will not suffice. In reasoning that the imposed monetary sanctions were insufficient, the majority states that the sanctions totaled less than seven percent of the overall verdict; however, monetary sanctions should not be based on the amount of the jury verdict. If sanctions were based on the amount of the jury verdict, seven percent of a $1,000,000 verdict would merit a $70,000 sanction. This would be a considerable sanction to any reasonable mind. The trial judge ordered McLain' to pay the $10,500 sanctions personally, without payment, advance, or loan from his attorneys or others. Thus, monetary sanctions in this amount to be paid personally and without help certainly would deter others from similar conduct and uphold the integrity of judicial proceedings.
¶ 34. Factor three in Pierce looks at whether the defendant suffered substantial prejudice as a result of the discovery violation. Coker promptly disclosed to Illinois Central that McLain had requested he stay silent about the derails. Illinois Central was able to*.ask McLain about his perjury .and solicitation in front of the jury. Substantial prejudice is not required
¶ 35. As this Court has stated before, “[dismissal for discovery violations is a “draconian” remedy or a “remedy of last resort,” only to be applied in extreme circumstances.” White v. White,
¶36. For McLain’s failed attempt to cover up the fact that he lifted derails at Right of Way, the majority holds that he should be sanctioned $10,000, to be paid without help, and that his case additionally should be dismissed. . The majority’s holding would effectively strip away McLain’s judgment in his favor and leave McLain with no compensation for his back injury, which the jury found was caused by McLain’s thirty-two-year employment at Illinois Central, plus add a sizeable $10,500 sanction to be paid personally, without help.
¶ 37. Moreover, should this Court find that the sanctions issued by the trial court were insufficient, I believe the correct procedure is to remand to the trial court to consider the imposition of greater sanctions. As the majority states, when we determine a trial judge committed error in imposing sanctions, we generally remand to the trial judge to reconsider. The Court of Appeals correctly stated that “[w]e recognize the chancellor possesses sole discretion as to whether sanctions should be imposed for discovery violations, and we employ an abuse-of-discretion standard of review when considering a chancellor’s order of sanctions.” Williamson v. Williamson,
¶ 38. The Pierce majority stated that “such action by any party should not and will not be tolerated.” Pierce,
¶ 39. This Court’s role in looking at the trial court’s imposition of sanctions is to “consider whether the decision was one of several reasonable ones which could have been made.” Ashmore,
KITCHENS, J., JOINS THIS OPINION.
. In fact, a’ per se rule of dismissal in cases involving perjury would havé a profound effect on the judicial system. As Professor Alan M. Dershowitz stated while testifying before the House of Representatives Judiciary Committee, "[I] believe that no felony is committed more frequently in this country than the genre of perjury and false statements. Perjury during civil depositions and trials is so endemic that a respected appellate judge once observed that ‘experienced lawyers say that, in large cities, scarcely a trial occurs in which some witness does not lie.’ ” Testimony of Alan M. Dershowitz, House of Representatives Judiciary Committee (Dec. 1, 1998).
. In addition, McLain was thoroughly cross-examined about his perjury and solicitation of Coker, and the jury presumably took this into consideration in rendering the verdict. McLain’s attorney asked the jury to compensate McLain in the amount of $250,000 to $300,000 and the jury instead found in the amount of $150,000.
. The correct standard is instead abuse of discretion. See Schmidt v. Bermudez,
Concurrence Opinion
concurring in part and dissenting in part:
¶ 40. I agree with the majority opinion with the exception of the disposition. Significant to my opinion, I agree that a sanction of $10,000, in light of the $150,000 jury verdict, was inadequate to have any deterrent effect on similar future behavior, and therefore constituted an abuse of discretion. See Jones v. Jones,
¶ 41. I would find, however, that under these circumstance, these issues should be remanded to the trial court for a determination of an appropriate sanction, including dismissal. This Court has repeatedly held that sanctions are squarely within the discretion of the trial judge, and that the trial judge should be afforded great latitude. See, e.g., Ashmore v. Miss. Auth. on Educ. Television,
CHANDLER, J., JOINS THIS OPINION.