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Amato v. Intindola9/10/2003
d that he could not lift excessive weight. The court cited Amato's testimony that he could not get underneath a car, change a tire, or repair a car, and concluded that the videotape of the car repair was in absolute contradiction to his deposition testimony. Concluding that the deposition testimony was nothing short of an attempt to perpetrate fraud on the court, the court dismissed the case with prejudice.
We have examined the videotape at regular speed, and we have read the deposition of the appellant. The videotapes do show the appellant working on his truck and climbing up on the roof. At regular video speed these activities are done relatively slowly. Amato appears to go up the ladder with effort, and it is impossible to tell from the tape the weight of the motor which he hauled to the roof. In the deposition, appellant testified that he could not go up and down stairs or an incline without pain. He did not testify, as the court stated, that he could not go up and down stairs at all.
The car repair on the video required the appellant to go under the left wheel well of the vehicle, but only the upper part of his chest and head are seen under the car. In each videotape he appears to walk with a slight limp. In the deposition he testified that he could not lift excessive weight, but he did not define what excessive weight was, although he denied that twenty pounds was excessive, depending upon how he lifted the weight.
A nearly identical situation occurred in Jacob v. Henderson. At trial, the plaintiff testified that she could not perform a number of tasks as a result of her injuries. The plaintiff obtained a verdict in her favor and both parties moved for a new trial, which was granted. Before the new trial, the defendant obtained surveillance videotape of the plaintiff performing the very same tasks that she testified she could not perform. The court reviewed the trial evidence and videotape and determined that the inconsistencies between the two amounted to fraud on the court. It dismissed the case with prejudice.
In reversing, the second district first relied on a more stringent abuse of discretion standard set forth in Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998):
The requisite fraud on the court occurs where "it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense." Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989). When reviewing a case for fraud, the court should "consider the proper mix of factors" and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at 1117-18. Because "dismissal sounds the 'death knell of the lawsuit,' courts must reserve such strong medicine for instances where the defaulting party's misconduct is correspondingly egregious." Id. at 1118. The trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court, or where a party refuses to comply with court orders. Kornblum v. Schneider, 609 So. 2d 138, 139 (Fla. 4th DCA 1992). Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances. Id.; Bird v. Hardrives of Delray, Inc., 644 So.2d 89, 90 (Fla. 4th DCA 1994).
The court reviewed the facts of the case, including the videotape and the deposition. The court noted that "
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