HANOVER INSURANCE COMPANY (THE) v. USA

Filing 176

REPORTED ORDER; ECF No. 169 reissued with redactions. Signed by Judge David A. Tapp. (jm) Service on parties made.

In the United States Court of Federal Claims
NO. 13-499C; 13-500C; 13-800C; 16-1187
(Filed: December 17, 2019)
(Refiled January 29, 2020) 1

THE HANOVER INSURANCE COMPANY, et al.,

Plaintiffs

v.
THE UNITED STATES OF AMERICA

Defendant

SEALED MEMORANDUM OPINION AND ORDER
Tapp, Judge.
Plaintiff Hanover Insurance Company moves to strike a sealed notice filed by the United
States relating to an alleged misrepresentation of witness
. For the reasons set
forth below, that motion is DENIED.
“No lying to the court. And if some misinformation has
somehow seeped into a proceeding, correct it. Now.” 2
Background
Hanover Insurance Company (“Hanover”) seeks monetary damages from the United
States related to termination of a contract between the United States and Lodge Construction,
Inc. (“Lodge”). (See Pl.’s Second Am. Compl., ECF No. 122). From this rudimentary beginning,
the current litigation encompasses multiple related monetary claims against the United States,
counterclaims of fraud, discovery disputes, and now, witness conduct issues. A detailed
recitation of facts relating to the substantive claims and counterclaims is not essential to
resolution of the dispute regarding witness
.
On May 25, 2017, Lodge submitted its response to the United States’ Motion for Leave
to Amend to Assert an Affirmative Defense. (Lodge’s Resp. Opp. Def’s Mot. for Leave
(“Lodge’s Opp.”), ECF No. 84). In its Response, Lodge sought to preclude the United States
from asserting the defense that Lodge had submitted fraudulent claims: “At worst, with hindsight
five years later, some of Lodge’s calculations of the time and cost impacts it suffered on the
Project have been shown to contain unintentional, honest, understandable, and explainable errors
that were made during the difficult task of quantifying a delay and inefficiency claim.” (Lodge’s
Opp. at 1, ECF No. 84). More specifically, Hanover alleged that the United States’ Motion to
Amend should be denied because the United States failed to plead fraud with sufficient
1

This opinion has been reissued subject to the parties’ redactions contained herein.

2

Phil Pattee, Nobody Lies to the Court, Not Even Your Client, Nevada Lawyer Magazine, June 2007, at 41.

process falters in that respect, the people are then justified in abandoning support
for the system in favor of one where honesty is preeminent.
United States v. Shaffer Equipment Co., 11 F.3d 450, 457 (4th Cir. 1993). This duty of candor is
“required to protect the integrity of the entire judicial process.” Id. at 458. The credentials of
witnesses, whether it be a medical doctor in a personal injury case who fails to disclose that her
license to practice has been suspended, an engineer who misleadingly and falsely suggests
possession of an accreditation from an agency which does not exist, or a social worker who
never graduated college in a state which mandates a possession of a degree, is not only fair game
for opposing litigants but a matter for the court before which the witness appears.
Conclusion
For these reasons, Hanover’s Sealed Motion to Strike is hereby DENIED.
IT IS SO ORDERED.
s/ David A. Tapp
DAVID A. TAPP, Judge

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