Goldman v. Quanta Utility Services et al

Filing 48

ORDER denying 42 Motion to Dismiss. Signed by District Judge William H. Barbour, Jr on 05/16/2012 (Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

HEATHER EASTERLING GOLDMAN

VS.

PLAINTIFF

CIVIL ACTION NO. 3:11-cv-310-WHB-LRA

NORTH HOUSTON POLE LINE, LP; and
John Does 1-5

DEFENDANTS

OPINION AND ORDER
This cause is before the Court on the Motion of Defendant,
North Houston Pole Line, LP (“North Houston”), to Dismiss.1

Having

considered the pleadings, the attachments thereto, as well as
supporting and opposing authorities, the Court finds the Motion is
not well taken and should be denied.

I.

Discussion

Plaintiff, Heather Easterling Goldman (“Goldman”), alleges she
was severely injured when she drove her automobile into a sinkhole
that had formed on Highway 49 in Rankin County, Mississippi. North
Houston has admitted liability for the formation of the hole.
North Houston now moves for the dismissal of Goldman’s personal
injury claims on the grounds that she allegedly gave perjured
testimony

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during

her

deposition.

North

Houston

argues

that

The subject Motion was filed by both North Houston and
Quanta Utility Services, LLC (“Quanta”). Quanta has since been
dismissed from the lawsuit.

dismissal is an appropriate sanction in this case.

See e.g.

Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 997 (Miss. 1999)
(affirming

dismissal

as

a

sanction

upon

a

finding

that

the

plaintiff “wilfully submitted false answers to interrogatories and
knowingly did not answer deposition questions truthfully.”); Pierce
v. Heritage Props., Inc., 688 So.2d 1385, 1391-92 (Miss. 1997)
(affirming dismissal as a sanction in a case in which the plaintiff
“knowingly refused to be forthcoming and actively withheld the
truth from the court and gave a great deal of perjured testimony”,
upon a finding that “[s]uch action by any party should not and will
not be tolerated.”).
In support of its Motion to Dismiss, North Houston first cites
portions of Goldman’s deposition in which she testified that her
initially scheduled deposition had to be cancelled because she was
too ill to attend.

See Mot. to Dismiss [Docket No. 42], 3 (citing

Ex. 4 (Goldman Dep.) at 15).

North Houston argues this testimony

was false as, on the day before her initially scheduled deposition,
surveillance showed Goldman shopping at a local retail store and
conversing with the driver of another vehicle at the store.

See

id. at 3 (citing Ex. 6 (video surveillance of October 17, 2011)).
In response, Goldman submitted an affidavit in which she avers that
she did have “cold and flu symptoms” on the day before her
initially scheduled deposition, which improved at some point, and
that she had gone to a local convenience store to “get soda and

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crackers since [she] was nauseous.”

Resp. [Docket No. 44], Ex. B

(Goldman Aff. at ¶ 4).
In support of its Motion to Dismiss, North Houston also cites
portions of Goldman’s deposition in which she testified that she
basically “cannot function”; that she “cannot bend”; that she
cannot walk for long periods of time, and that she “can’t handle”
shopping, and needs to have someone else do it for her.

See Mot.

to Dismiss, at 3-4 (citing Ex. 4 (Goldman Dep.) at 159-61).

North

Houston argues this testimony was false as repeated surveillance
shows Goldman carrying heavy objects; walking for distances greater
than twenty feet; grocery shopping; repeatedly bending, reaching,
squatting, lifting, and carrying; and pushing and pulling a heavy
shopping cart, all without any apparent restrictions or difficulty.
See Mot. to Dismiss, 3-4 (citing Ex. 5-9 (video surveillance)). In
response, Goldman again cites to her affidavit in which she avers,
inter alia, that when she “attempt[s] to act normal by bending,
pushing a cart or walking [she] is successful, but then at night
[she] hurt[s] severely and [has] to spend time in bed.”
B (Goldman Aff.) at ¶ 4.

Resp., Ex.

Goldman also avers that her medications

allow her “to handle ... movement easier” and that, although she
has “pain 24-hours a day”, there are “some days” when she is “able
to function because the pain is at a lower level than other days.”
Id. Ex. B (Goldman Aff.) at ¶¶ 4, 11.

Additionally, Goldman

submitted an affidavit from her treating physician who avers, inter

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alia, that Goldman’s movements on the surveillance video “are
consistent with her range of motion” and “objective neurological
findings”; that Goldman has a “history of flare ups”; and that
“Goldman will have good days and bad days” so that “a glimpse of
her day on any particular day does not indicate her overall
limitations or her experience of pain.”

Id. Ex. D (Ilercil Aff.)

at ¶¶ 5, 6.
Having reviewed the pleadings, the Court finds North Houston
has presented evidence that certainly questions the veracity of
statements made by Goldman during her deposition regarding her
alleged physical injuries and resulting limitations.
Goldman’s

countervailing

conclusively

determine

evidence,

that

she

however,

committed

the

In light of
Court

perjury

cannot

during

her

deposition. Instead, the Court finds Goldman’s testimony regarding
the nature and extent of her alleged injuries raises a credibility
issue, which is generally a matter for the jury to decide.

See

e.g. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000)(“Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury
functions.”).
For these reasons, the Court finds the Motion of North Houston
to Dismiss should be denied.

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II.

Conclusion

For the foregoing reasons:
IT IS THEREFORE ORDERED that the Motion of Defendant to
Dismiss [Docket No. 42] is hereby denied.
SO ORDERED this the 16th day of May, 2012.

s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE

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