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Is There a Defense Strategy on Motions to Dismiss for Fraud?

In a companion article, I discussed the concern expressed by some clients who fear they may not fully recall at their deposition all prior accidents or symptoms. Many expressed concern that their case could be dismissed if they have a failure to recall certain details about their prior history. (Failure to Recall Prior Physical Complaints and Treatments… Does It Mean Dismissal of Your Case? see Library tab at www.jwdodsonlaw.com)

This subject was discussed in a recent decision out of Florida's Fifth District Court of Appeal in Bologna v. Schlanger, 33 Fla.L.Weekly D1626 (June 20, 2008). In this case, the defendant filed a motion to dismiss alleging repeated intentional and fraudulent conduct in response to discovery. Discovery is the process by which both parties to a lawsuit exchange evidence and information. The fraud allegation in the Bologna case, was based upon sworn statements the plaintiff made during her deposition and written answers to her sworn interrogatories, in which she allegedly attempted to conceal information regarding prior back and neck injuries. The trial court granted the motion without taking any evidence. The District Court reversed the trial court’s order of dismissal finding that the evidence was insufficient to meet the high burden necessary to grant such a dismissal.

The District Court opinion discussed the argument made by the plaintiff on appeal, which suggested that there could be a “fraud” strategy by defense counsel. The theory put forth was that the defense lawyer would ask general questions to the plaintiff about prior treatments or injuries. If the plaintiff denied such prior treatments or injuries, defense counsel would not follow up with probing questions which might jog the witness’s memory and elicit more detail. That would create a record in which the plaintiff simply denied any prior history, allowing the defendant to file the motion to dismiss based upon the fraudulent failure of the plaintiff to answer the questions truthfully.

The court did not confirm whether such a strategy existed. It did point out that the skill or diligence of the defense counsel was not the issue under examination when considering a motion to dismiss for fraud. Such motions are determined based upon the testimony of the plaintiff and whether there exists evidence of fraud and purposeful misrepresentation.

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