Taylor v. Consolidated Pipe & Supply Company, Inc. et al

Filing 50

ORDER granting 34 Motion to Dismiss. Signed by District Judge Carlton W. Reeves on 7/20/17. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
LINDA TAYLOR

PLAINTIFF

V.

CAUSE NO. 3:15-CV-585-CWR-FKB

CONSOLIDATED PIPE & SUPPLY
COMPANY, INC.; BRUCE FREEMAN

DEFENDANTS

ORDER
Before the Court is the defendants’ motion to dismiss or for other sanctions. The matter is
fully briefed and ready for review.
I.

Background
On May 13, 2015, Linda Taylor was driving in Rankin County, Mississippi when her

vehicle was struck by Bruce Freeman’s truck. Freeman conceded liability at the scene. Taylor
subsequently filed this personal injury suit against Freeman and his employer, Consolidated Pipe
and Supply Company.
The legal battle focused on the extent of Taylor’s injuries. Taylor’s complaint alleged that
the accident caused “serious and permanent . . . injuries to her neck, back, right shoulder,
numbness in her right arm and tingling in her fingers, along with injury to her skeletal system,
muscular system, and nervous system.”
Written discovery commenced. When asked about her medical history, Taylor wrote that
she could “not remember the exact dates of treatment and/or all her complaints,” but “has never
[been] treated for neck or shoulder pain before the subject accident.” She gave the defendants
written permission to obtain all of her medical records.

The defendants’ search was thorough. They obtained records from medical providers who
had seen Taylor as far back as 1992. The defendants say they sent copies of these records to
Taylor’s attorney during the discovery period—a contested point to which we will return.
The defendants then deposed Taylor. She was asked whether prior to the accident she had
ever suffered from pain in her arm, shoulder, neck, or back. She answered “no.” Taylor was
asked whether prior to the accident she had sought medical treatment for pain to her arm,
shoulder, neck, or back. Again she answered “no.” Finally, Taylor was asked whether prior to the
accident she had ever been prescribed psychiatric medication like Xanax. Her answer was the
same: “no.”
The defendants now contend that those answers were lies. They say, and Taylor admits,
that decades of records show she had dozens of appointments for shoulder, neck, and back pain
before the accident. Taylor took pain medication and received injections for shoulder, neck, and
back pain; referrals to orthopedics and physical therapy followed.1 She also took Xanax for other
issues. The defendants argue that Taylor’s total lack of candor warrants dismissal of her case.
Taylor denies the allegations and counters with her own accusations. She argues that she
could not remember all of her medical visits over the years, and has suffered from memory loss
since the accident. Taylor adds that if anyone has committed a fraud upon the Court, it is the
defendants, who allegedly withheld her medical records during discovery to ambush her with this
motion.

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A sampling of medical records reveals the severity of her symptoms over the years. See, e.g., Records of 03/12/96
(“Left shoulder pain. For the last two years, but really bad over the last year and over the last several months she has
been miserable.”); 09/23/02 (“Low back pain for one month”); 09/26/02 (“In severe pain in lower back”); 10/27/03
(“Can’t turn neck (had this before . . .)”); 06/01/05 (“Hurt right shoulder/upper back for 2½ weeks”); 09/21/11
(“Left shoulder pain/numbness”); and 10/5/11 (“Left shoulder pain”).

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II.

Legal Standards
A.

The Evidence

The parties dispute whether the defendants’ attorney timely shared the medical records
with Taylor’s attorney. Because that issue required consideration of material outside the
pleadings, it “must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P.
12(d); see Stokes v. Dolgencorp, Inc., 367 F. App’x 545, 547 (5th Cir. 2010) (unpublished).
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A party seeking to avoid summary judgment must identify admissible evidence in
the record showing a fact dispute. Id. at 56(c)(1); Tran Enterprises, LLC v. DHL Exp. (USA),
Inc., 627 F.3d 1004, 1010 (5th Cir. 2010).
The Court views the evidence and draws reasonable inferences in the light most favorable
to the nonmovant. Maddox v. Townsend and Sons, Inc., 639 F.3d 214, 216 (5th Cir. 2011). But
the Court will not, “in the absence of any proof, assume that the nonmoving party could or would
prove the necessary facts.” McCallum Highlands, Ltd. v. Wash. Capital Dus, Inc., 66 F.3d 89, 92
(5th Cir.), as revised on denial of reh’g, 70 F.3d 26 (5th Cir. 1995).
B.

The Merits

“[D]ismissal with prejudice is an extreme sanction” appropriate “only if: (1) there is a
clear record of delay or contumacious conduct by the plaintiff, and (2) lesser sanctions would not
serve the best interests of justice.” Brown v. Oil States Skagit Smatco, 664 F.3d 71, 77 (5th Cir.
2011) (quotation marks and citations omitted). “[I]t is not a party’s negligence—regardless of
how careless, inconsiderate, or understandably exasperating—that makes conduct contumacious;
instead, it is the stubborn resistance to authority which justifies a dismissal with prejudice.”

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McNeal v. Papasan, 842 F.2d 787, 792 (5th Cir. 1988) (quotation marks and citation omitted). In
Brown, the Fifth Circuit recognized perjury as contumacious conduct. 664 F.3d at 77.
III.

Discussion
At the beginning of a deposition, the witness solemnly swears to tell the truth, the whole

truth, and nothing but the truth, under penalty of perjury. The oath “is not trivial.” Id. It has
power and force. It means something. Which makes it so disappointing to have to recount the
various ways the plaintiff committed perjury.
Taylor was asked straightforward questions about her medical history. She repeatedly
denied having any shoulder, neck, and back pain before the subject accident. Those answers were
false. She also misrepresented her prescription history.
Taylor says she answered to the best of her memory. It is true that her interrogatory
responses were prefaced with that (pro forma) qualification, and under the summary judgment
standard those will not be held against her. Taylor’s deposition answers, however, are
indefensible. Total memory loss as to every doctor’s visit, every course of treatment, and every
prescription written to treat her complaints of pain is fanciful. The record cannot support any
explanation for those misrepresentations other than a desire to conceal the truth.2
This Court has presided over cases where plaintiffs have proof of memory loss. E.g.,
Wells v. Robinson Helicopter Co., No. 3:12-CV-564-CWR-FKB, 2015 WL 1189847, at *1 (S.D.
Miss. Mar. 16, 2015). This is not one of them. There is no medical evidence to support Taylor’s
claim. The notion of memory loss first appears in her last-minute, self-serving affidavit. The
affidavit cannot help her: it contradicts her deposition testimony and attendant handwritten

2

Taylor, of course, could have refreshed her recollection before the deposition by obtaining her medical records.
See, e.g., Lawton-Davis v. State Farm Mut. Auto. Ins. Co., No. 6:14-CV-1157-ORL-DAB, 2016 WL 1383015, at *5
(M.D. Fla. Apr. 7, 2016) (“Plaintiffs cannot now claim that they were prejudiced by the late disclosure of her own
medical records by a third party.”).

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exhibit listing her ongoing symptoms. See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 496
(5th Cir. 1996).
Taylor then says there was no intent to deceive because she gave the defendants an
unlimited medical release. But an equally-plausible explanation is that Taylor gambled that the
defendants would not be able to locate her full medical history.3 The release does not change the
obvious untruthfulness of her testimony.
Finally, Taylor attempts to deflect responsibility by accusing her opponents of
withholding her medical records during the discovery period.4 But between February and
October 2016, the defendants’ attorneys sent six letters to Taylor’s counsel to share the records.
The letters, which were authenticated at an evidentiary hearing held on this issue, establish “a
rebuttable presumption that the document has been received by the addressee in the usual time.”
Geico Ins. Co. v. White, 339 F. App’x 394, 396–97 (5th Cir. 2009) (quotation marks and citation
omitted). Taylor has “provided no circumstantial evidence” to support that they were not
received. Id. As a result of the uncontroverted evidence that the defendants timely sent records to
Taylor during the discovery period, there was no discovery violation.5
What remains is the sanction. Taylor’s 35-page response brief does not suggest any
alternative, lesser sanction than dismissal. When pressed for alternatives at the hearing on the
motion, her counsel suggested that the Court might assess defendants’ attorney’s fees against him
or allow the defendants to re-depose Taylor.

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Taylor’s counsel may have submitted the unlimited medical release because Taylor hid the truth from him as well.
Her related argument is that the defendants have somehow waived their right to file this motion. Her supporting
authorities are inapposite. See, e.g., MS Credit Ctr. v. Horton, 926 So. 2d 167, 179 (Miss. 2006).
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Taylor also asserts that her opponent was wrong to “informally” supplement the record—i.e., share responsive
documents without filing a formal notice of service on the docket sheet. The argument crumbled when the
defendants observed that Taylor’s counsel repeatedly did the same thing.
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If her counsel had lied, he could be admonished or sanctioned. In this case, though, the
misrepresentations came from the client herself. The consequences should be imposed upon her.
The Court has considered ordering Taylor to pay the defendants’ attorney’s fees, limiting
her damages claims at trial to those untainted by perjury, or simply allowing defendants to redepose her. Three facts counsel against those options. The first is that her perjury was so
overwhelming that it reaches almost every kind of physical and emotional injury she claims the
accident caused. Second, the record shows that Taylor not only misrepresented her situation to
the defendants, but also failed to disclose her medical history to her post-accident treating
physicians, who (it so happens) were different from the many medical providers who had
previously treated her. That pattern is exactly the kind of “stubborn resistance to authority which
justifies a dismissal with prejudice.” McNeal, 842 F.2d at 792 (quotation marks and citation
omitted). Finally, simply allowing her to be re-deposed at this juncture would alter the scales by
allowing Taylor to correct and clarify her tainted testimony. Taylor’s misconduct should not be so
easily excused.
In a similar case, the Fifth Circuit wrote that it “consider[s] dismissal with prejudice to be
a more appropriate sanction when the objectionable conduct is that of the client, and not the
attorney.” Brown, 664 F.3d at 77 (citation omitted). Brown affirmed a district court’s decision to
dismiss with prejudice rather than permit the case to go to trial with an adverse instruction
regarding the plaintiff’s perjury. Id. at 78; see also Snider v. L-3 Communications Vertex
Aerospace, No. 3:09-CV-704-HTW-LRA, 2016 WL 3648281, at *16 (S.D. Miss. Mar. 15, 2016)
(finding dismissal appropriate sanction “considering that every aspect of [plaintiff’s] claims now
is tainted by her abusive and contumacious conduct.”).

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Our situation is no different. Taylor “deceitfully provided conflicting testimony in order
to further [her] own pecuniary interests . . . and, in doing so, undermined the integrity of the
judicial process. Through [her] perjured testimony, [Taylor] committed fraud upon the court, and
this blatant misconduct constitutes contumacious conduct.” Brown, 664 F.3d at 78. The
undersigned has struggled to find, but does not see a less onerous sanction that would address
Taylor’s pattern of conduct, achieve deterrence, and preserve the integrity of the judiciary.
A few final words are necessary. Today’s result is unfortunate because liability is not at
issue in this case. Fault of the accident lies with the driver, but Taylor’s lies about the severity of
her injuries will preclude appropriate compensation for those injuries. They also stymie the
deterrent effect this lawsuit might have had on the defendants’ behavior.
Depositions are an important tool of discovery and should be used to seek the truth.
Parties’ strategies about whether a case will be litigated further or whether early resolution will
be pursued are shaped, in part, by what is revealed from a deposition—both the facts obtained
and how a deponent presents and performs. Lying throughout a deposition (or in other forms of
discovery) therefore serves no purpose.
“The proper administration of justice depends on people testifying truthfully under oath.”
Id. at 77 (quotation marks omitted). Courts have a duty to protect the public and safeguard the
judicial process. See Smith v. Cessna Aircraft Co., 124 F.R.D. 103, 106 (D. Md. 1989). As the
Supreme Court explained more than 70 years ago, “tampering with the administration of justice .
. . is a wrong against the institutions set up to protect and safeguard the public, institutions in
which fraud cannot complacently be tolerated consistently with the good order of society.”
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944).
But here, as in other areas of the law, the most severe in the spectrum of sanctions
provided by statute or rule must be available to the district court in appropriate
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cases, not merely to penalize those whose conduct may be deemed to warrant such
a sanction, but to deter those who might be tempted to such conduct in the absence
of such a deterrent.
Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976).
The harshest sanction imposed today is justified by the plaintiff’s extreme misconduct.
The Court hopes it sends a signal to litigants and attorneys about the importance of truth in our
system of justice.
IV.

Conclusion
The motion is granted. This case is dismissed with prejudice. A separate Final Judgment

will issue this day.
SO ORDERED, this the 20th day of July, 2017.

s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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