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State v. Zimlich5/5/2000
Wayne Zimlich, a registered nurse-anesthetist, and his supervising physicians were sued in a medical-malpractice case; the plaintiff alleged that they had negligently caused the death of a patient during a surgical procedure. Zimlich testified at the trial of the malpractice case in October 1995. After the trial, Zimlich sued his insurance company, alleging that it had acted in bad faith in failing to settle the malpractice claim against him. After a trial in November 1997, he was awarded $15,000 against the insurance company. In the trial of his claim against the insurer, he alleged that he had been coerced into giving false testimony at the malpractice trial, and that the coercion was by the insurance company and its employees, the doctor who employed him, and the defense attorney for the insurance company.
Zimlich was indicted in June 1998 for perjury. The indictment read:
"WAYNE ZIMLICH, whose name is to the Grand Jury otherwise unknown than as stated, did, on or about October 9, 1995, after having been sworn to tell the truth, knowingly testified under that oath in an official proceeding, to-wit: a jury trial in the Circuit Court of Mobile County, Alabama as follows:
"Q. And according to the [EKG (echocardiogram)] monitor this period, this second episode of bradycardia and hypotension would have lasted for what period of time?
"A. About three minutes from the time it went down below like forty-three and I started to treat it until she responded to the drugs.
"That said Wayne Zimlich did, on or about November 3, 1997, after having been sworn to tell the truth, knowingly testify under that oath at an official proceeding, to-wit: a jury trial in the Circuit Court of Mobile County, Alabama as follows:
"Q. Page eighty-one, I'll read this, starting at line four (of a prior deposition of the said Wayne Zimlich), question: is it your testimony that the bradycardia in the second episode lasted three to five minutes[?]
"Answer: Yes
"Question: Is it your testimony that Ms. McGahagin would not have been bradycardic for longer than three to five minutes?
"Answer: Correct, severe sinus bradycardia no longer three to five minutes.
"Q. That was a lie?
"A. That was what we had decided we were going to say and that was not the truth.
"Q. That's not the truth?
"A. That's correct.
"....
"That said Wayne Zimlich having knowingly made each said statement, one or the other of which is false and not believed by the said Wayne Zimlich to have been true when made, in violation of section 13 -10-101, of the Code of Alabama against the peace and dignity of the State of Alabama."
Zimlich moved to dismiss the indictment, arguing that it failed to allege the offense of perjury in the first degree because it made no allegation that the alleged perjurious statement was "material." The trial court dismissed the indictment, stating:
"Even though the indictment is brought pursuant to ยง 13A-10- 104, Code of Alabama (swearing falsely to inconsistent statements to the degree that one is necessarily false), it does not extinguish the essential component of materiality as an element of perjury in the first degree. `To constitute perjury (in the first degree), the matter falsely sworn to must be material to the issue in controversy.' Ikner v. State, 600 So.2d 435 (Ala. Cr. App. 1992). No such allegation is made, nor does the indictment recite facts and use language which, taken as a whole, indicate materiality. United States v. Haas, 583 F.2d 216 (5th Cir. 1981)."
A second indictment was returned i
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