 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Amato v. Intindola9/10/2003
rial court rulings are given less deference when they are based upon the same cold document record that is before the reviewing court." Jacob, 840 So. 2d at 1170 (citing Hervey v. Alfonso, 650 So. 2d 644 (Fla. 2d DCA 1995)). Based upon that review, the court noted:
Mrs. Jacob either knowingly perpetrated a fraud, exaggerated her injuries, or unknowingly provided video evidence that her injuries are far less severe than she may believe. Only the first of these three possibilities would support the dismissal of all claims with prejudice. See Baker v. Myers Tractor Serv., Inc., 765 So. 2d 149 (Fla. 1st DCA 2000) (affirming dismissal because plaintiff knowingly, intentionally, and repeatedly concealed prior injuries to gain an unfair advantage in litigation).
Id. at 1169. In that case there was no clear and convincing evidence that Mrs. Jacob had "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." Id. (quoting Cox, 706 So. 2d at 46). While the videotape could lessen her credibility when compared with her testimony at the first trial, it should be submitted to the jury to determine the truth or falsity of the claims.
This case is a mirror image of Jacob. Here, appellant testified that he could not perform certain tasks or could not perform them without pain. The videotape captured appellant performing some of those tasks, although it cannot show that he performed them without pain. Whether Amato's claims of the extent of his injuries are accurate is for the trier of fact. Jurors may look at the same evidence and conclude that although appellant may not be injured to the extent he believes, he still has suffered some disability from the accident. The evidence presented through the depositions and the video surveillance does not show a knowing and unconscionable scheme to interfere with the judicial system's ability to impartially adjudicate a proceeding. Therefore, the court erred in concluding that a fraud on the court occurred and that dismissal with prejudice was appropriate.
Appellee cites to Cox v. Burke in support of its position. However, the false answers given in Cox referred to such past personal information as the plaintiff's names, places of residence, and failure to divulge significant prior injuries, all of which prevented the defendants from conducting their investigation and defending the claim. 706 So. 2d at 44-46. Similarly, in Savino v. Florida Drive In Theater Management, Inc., 697 So. 2d 1011, 1012 (Fla. 4th DCA 1997), we held that the trial court properly dismissed a claim where the plaintiff lied in discovery about his educational background, a matter critical to the damages claim. In Morgan v. Campbell, 816 So. 2d 251, 253-54 (Fla. 2d DCA 2002), dismissal was appropriate where the plaintiff lied about prior injuries and treatment. See also Distefano v. State Farm Mut. Auto. Ins. Co., 846 So. 2d 572 (Fla. 1st DCA 2003). These are examples of knowing deception intended to prevent the defense from discovery essential to defending the claim. The facts of this case are distinguishable.
In most cases of personal injury there is a disparity between what the plaintiff believes are the limitations caused by the injuries and what the defense thinks. Many times surveillance tapes are used to show that the plaintiff can do more than what he or she states are the limitations. The fact that a surveillance tape shows discrepancies usually affects the jury's view of the case, but in this case it does not merit a dismissal with prejudice t
Page 1 2 3 4 Florida Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|