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[W] Laschke v. R.J. Reynolds Tobacco Co.11/14/2003
Jane Laschke and her husband, Rudolph Laschke, challenge the trial court order dismissing with prejudice their product liability suit against R.J. Reynolds Tobacco Company; Lorillard Tobacco Company; Brown & Williamson Tobacco Corporation, individually and as successor by merger to the American Tobacco Company; and Liggett Group, Inc. (collectively "the tobacco companies"). In dismissing the Laschkes' action with prejudice, the trial court found that actions taken by Mrs. Laschke amounted to a fraud on the court. Although we recognize that this is a very close case, because we conclude that dismissal with prejudice was too harsh a sanction, we reverse and remand for further proceedings.
In 1996, the Laschkes filed suit against the tobacco companies for damages Mrs. Laschke sustained as the result of laryngeal cancer. The suit alleged that Mrs. Laschke had smoked cigarettes manufactured by the tobacco companies from 1956 to 1995 and that in 1995 Mrs. Laschke was diagnosed with cancer. The complaint further alleged that the cancer was the result of her cigarette smoking.
During the discovery phase of the proceedings, Mrs. Laschke apparently telephoned her oncologist's office and requested that he make a note on her medical records that her cancer was the result of cigarette smoking. She made this request of the doctor's nurse, who in turn talked to the doctor. Through his nurse, the doctor informed Mrs. Laschke that he did not retroactively change charts. However, he did state that he would testify on her behalf at trial. The nurse memorialized Mrs. Laschke's request and the doctor's response on a "sticky note" and placed the note in the file with the medical records.
After obtaining a complete copy of Mrs. Laschke's medical records from the doctor, the tobacco companies found the note. The appellees took Mrs. Laschke's deposition three years after the date of the telephone call. During that deposition, Mrs. Laschke denied asking anyone to change the medical records in any way and denied asking that something be added to the records to show that her cigarette smoking was the cause of her cancer.
The tobacco companies then moved to dismiss the Laschkes' suit alleging that Mrs. Laschke had committed fraud on the court by attempting to have her medical records "altered, defaced or falsified." To support the request for dismissal as a sanction for the alleged misconduct, the tobacco companies submitted portions of the depositions of Mrs. Laschke and the oncologist's nurse.
Because it concluded that the inappropriate request to change the medical records, together with Mrs. Laschke's untruthful denial of the request made while under oath, constituted fraud on the court, the trial court granted the tobacco companies' request to dismiss the complaint with prejudice. The Laschkes now appeal the final judgment entered based on this ruling.
On appeal, the Laschkes argue that the facts of this case as presented in their motion for reconsideration do not support the finding of fraud and ask this court to reverse the trial court's ruling. We note that, due to some procedural issues not addressed herein, most of these facts were not before the trial court at the time of its ruling. It is not necessary, however, for us to address the Laschkes' argument as to the disputed facts because we conclude that, accepting the facts as found by the trial court, it was error to grant the dismissal with prejudice.
Although the trial court entered a detailed order and closely examined the case law regarding this issue, subsequent to the dismissal of the Laschkes' suit below, this court adopted a stringent standard as to what level of misconduct will
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