Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Walker v. Spina

United States District Court, D. New Mexico

November 19, 2018

SHIRLEY J. WALKER, Plaintiff,
v.
GREGORY J. SPINA, VALLEY EXPRESS, INC., and GREAT WEST CASUALTY COMPANY, Defendants.

          Shavon M. Ayala Ayala P.C. Albuquerque, New Mexico -and- Anthony James Ayala Law Offices of Anthony James Ayala Albuquerque, New Mexico Attorneys for the Plaintiff

          Raul Sedillo Alison Beaulieu Butt Thornton & Baehr PC Albuquerque, New Mexico Attorneys for the Defendants Gregory J. Spina, Valley Express, Inc., and Great West Casualty Company

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) Defendants' Motion to Dismiss for Plaintiffs Abuses of the Discovery Process, filed July 27, 2018 (Doc. 59)(“Motion”); and (ii) the Plaintiffs Response to Defendants Motion to Dismiss for Plaintiffs Abuses of the Discovery Process, filed August 4, 2018 (Doc. 62)(“Response”). The primary issues are whether: (i) the Court should dismiss Plaintiff Shirley Walker's claims against the Defendants, because, among Walker's Answer to Defendants Gregory J. Spina and Valley Express, Inc.'s First Set of Interrogatories to Plaintiff Shirley J. Walker, filed June 27, 2018 (Doc. 59-1)(“First Interrogatories Answer”); the First Supplement Answers of July 3, 2017, to Defendants Gregory J. Spina and Valley Express, Inc.'s First Set of Interrogatories to Plaintiff Shirley J. Walker, filed July 27, 2018 (Doc. 59-2)(“First Supp. Answers”); the Deposition of Shirley J. Walker (taken August 28, 2017), filed July 27, 2018 (Doc. 59-3)(“Walker Depo.”); the Deponent Signature/Correction Page (dated October 5, 2017), filed July 27, 2018 (Doc. 59-4)(“Correction Page”); and the Response, Walker provides inconsistent answers about her injuries, particularly whether her injuries prevented her from participating in the Rio Arriba County Local Senior Olympics and New Mexico State Senior Olympics (jointly, “Senior Olympics”)[1] for 2016 and 2017; and (ii) whether the Court should sanction the Defendants for bringing the Motion. While Walker's inconsistencies prejudice the Defendants and disrupt the judicial process, the inconsistencies do not substantially prejudice the Defendants or substantially interfere with the judicial process. Walker's culpability level, although difficult to determine, does not rise to the level warranting dismissal. The Court did not warn Walker that it might sanction her actions by dismissing her claims, and lesser actions would penalize Walker for her inconsistencies. Accordingly, the Court will deny the Defendants' Motion. Walker made, however, inconsistent statements, without explaining why she did so or correcting all of the inconsistencies. The Court, thus, will not require the Defendants to pay Walker's attorneys' fees.

         FACTUAL BACKGROUND

         The Court recited this case's facts and early procedural history in its Memorandum Opinion and Order at 2-3, No. CIV 17-0991 JB/SCY, 2018 WL 4100944, at *1. The Court incorporates that recitation here.

The Court takes its facts from Walker's Complaint for Personal Injuries and Damages (First Judicial District Court, County of Santa Fe, State of New Mexico), filed December 23, 2016, filed in federal court September 29, 2017 (Doc. 1-1)(“Complaint”). The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that the facts are largely Walker's version of events.
On July 23, 2015, Defendant Gregory J. Spina was speeding on U.S. Highway 84/285 in a commercial vehicle that Defendant Valley Express, Inc. owned. See Complaint ¶¶ 6-7, at 2. As Spina approached a red light, he realized that he was going too fast to brake, so, instead of hitting the vehicles stopped side by side in front of him, he attempted to slip between them. See Complaint ¶ 7, at 2. Rather than avoiding the stopped vehicles, however, he sideswiped both of them, causing both cars to roll into the intersection. See Complaint ¶ 7, at 2-3. Walker was driving one of the sideswiped vehicles and, because of Spina's actions, suffered physical and emotional injuries. See Complaint ¶¶ 7, 11, at 2-4.

MOO at 2, 2018 WL 4100944, at *1.

         Walker, who was eighty-one at the time of the collision with Spina, was seen at Presbyterian Hospital after the collision, see Response ¶ 1, at 2 (citing ED Provider Notes by Margie Teng at 1 (dated July 27, 2016), filed August 4, 2018 (Doc. 62)), and she continues to receive treatment for her injuries, see Response ¶ 1, at 2 (citing Arjan Khalsa Notes at 1-2, filed August 4, 2018 (Doc. 62)).[2] Dr. Jean A. Hamilton, a psychiatrist, and Michael D. Miller, a psychiatric certified nurse practitioner, diagnosed Walker with chronic post-traumatic stress disorder (“PTSD”) after the collision with Spina. See Response ¶ 2, at 2 ((citing Psychiatric Evaluation by Jean A. Hamilton at 2 (dated March 20, 2017), filed August 4, 2018 (Doc. 62); Medication Management by Michael D. Miller at 2 (dated January 15, 2018), filed August 4, 2018 (Doc. 62)).[3]

         Dr. Ellen Marder, a physician, recorded in her medical records for Walker that, on July 7, 2016, Walker reported training for the Senior Olympics. See Motion ¶ 12, at 3-4 (asserting this fact)(citing Progress Notes by Ellen Marder at 1 (dated July 7, 2016), filed July 27, 2018 (Doc. 59-5)(“Dr. Marder Progress Notes”).[4] Dr. Christopher Lyons, a neurologist, recorded in his medical records for Walker that Walker reported hurting her knee in March, 2016, “while running.” Motion ¶ 13, at 4 (asserting this fact)(citing Progress Notes by Christopher E. Lyons at 1 (dated July 21, 2016), filed July 27, 2018 (Doc. 59-6)(“Dr. Lyon Progress Notes”)).[5] Records from the New Mexico State Senior Olympics reflect that Walker registered for the 2017 New Mexico State Senior Olympics. See Motion ¶ 14, at 4 (asserting this fact)(citing 2017 Senior Olympics Summer Games Entry Form, filed July 27, 2018 (Doc. 59-8)); Response ¶ 16, at 6 (admitting this fact). Records from the 2016 Rio Arriba County Local Senior Olympics and 2016 New Mexico State Senior Olympics reflect that Walker “registered for and competed in the Rio Arriba local Senior Olympics and registered for the 2016 New Mexico Senior Olympics.” Motion ¶ 15, at 4 (admitting this fact)(citing Senior Olympics Summer Games Event Registration at 1-2, filed July 27, 2018 (Doc. 59-8); Work Order for Senior Olympic State Games at 1, filed July 27, 2018 (Doc. 59-8); Rio Arriba County Senior Olympics, Local Qualifying Games at 1 (dated May 18, 2016), filed July 27, 2018 (Doc. 59-8); 2016 Local Game Result Form at 1, filed July 27, 2018 (Doc. 59-8); New Mexico Senior Olympics 2016 Final On-Site Sheets at 1 (dated June 29, 2016), filed July 27, 2018 (Doc. 59-8); Senior Olympics Summer Games Swimming Check-in Sheet at 1 (dated July 15, 2016), filed July 27, 2018 (Doc. 59-8); 2017 Senior Olympics Summer Games Entry Form at 1, filed July 27, 2018 (Doc. 59-8)); Response ¶ 17, at 6 (admitting this fact). Walker did not sign in at the 2016 New Mexico State Senior Olympics, because she did not participate in the 2016 New Mexico State Senior Olympics. See Response ¶ 7, at 3.[6]

         PROCEDURAL BACKGROUND

Walker sues Spina and Valley Express, asserting negligence, [7] and sues Defendant Dixon Insurance Company, asserting that she has a claim for benefits against it under the [New Mexico Financial Responsibility Act, N.M. Stat. Ann. §§ 66-5-201 to 239] and Raskob[v. Sanchez, 1998-NMSC-045, 970 P.2d 580] for injuries that Spina's negligence caused. See Complaint ¶¶ 8-13, at 3-5. Spina and Valley Express removed the case to federal court on the basis of diversity jurisdiction. See Notice of Removal to the United States District Court for the District of New Mexico at 1, filed September 29, 2017 (Doc. 1)(“Notice of Removal”). . . .

MOO at 2-3, 2018 WL 4100944, at *1. The Amended Complaint at 1, filed August 28, 2018 (Doc. 68), terminated Dixon Insurance Company as a Defendant and added, in its place, Great West Casualty Company.

         On April 19, 2017, Walker filed the First Interrogatories Answer. See Motion ¶ 1, at 2 (asserting this fact)(citing First Interrogatories Answer); Response ¶ 3, at 2 (admitting this fact). In the First Interrogatories Answer, Walker alleges that, after the collision with Spina, she could not maintain her active lifestyle or train for or participate in the Senior Olympics. See Motion ¶ 2, at 2 (asserting this fact)(citing First Interrogatories Answer ¶ 17, at 10; id. ¶¶ 22-23, at 12-13); Response ¶ 4, at 2 (admitting this fact). On July 3, 2017, Walker provided Spina with the First Supp. Answers. See Motion ¶ 3, at 2 (asserting this fact)(citing generally First Supp. Answers); Response ¶ 5, at 2-3 (admitting this fact). In the First Supp. Answers, Walker reiterated that she could not continue her active lifestyle and that she could not train for or participate in the Senior Olympics. See Motion ¶ 4, at 2 (asserting this fact)(citing First Supp. Answers ¶ 17, at 13); Response ¶ 6, at 3 (admitting this fact).

         During the Walker Depo., on August 28, 2017, Walker “denied participating in” or training for the Senior Olympics, Motion ¶ 5, at 3 (asserting this fact)(citing generally Walker Depo.); Response ¶ 7, at 3 (admitting this fact), and testified that participating in the Senior Olympics was her dream, see Motion ¶ 7, at 3 (admitting this fact)(citing Walker Depo. at 93:6-14; id. at 94:20-95:3; id. at 169:1-14); Response ¶ 9, at 4 (admitting this fact). In the Walker Depo., Walker also stated that she “would suffer long-term permanent injuries.” Motion ¶ 6, at 3 (asserting this fact)(citing Walker Depo. at 105:11-12); Response ¶ 8, at 3-4 (admitting this fact). In the Walker Depo., Walker denied training for or participating in the Senior Olympics. See Motion ¶ 8, at 3 (asserting this fact)(citing Walker Depo. at 102:25-103:6); Response ¶ 10, at 4-5 (admitting this fact). Walker stated that she did not “report to her medical provider” that “she was training for the Senior Olympics or that she injured her knee while training.” Motion ¶ 9, at 3 (asserting this fact)(citing Walker Depo. at 103:7-14); Response ¶ 11, at 5 (admitting this fact). On October 5, 2017, Walker provided the Correction Page. See Motion ¶ 10, at 3 (asserting this fact)(citing Correction Page at 2); Response ¶ 12, at 5 (admitting this fact).

         The Defendants discovered documents that reflect “that she registered and competed at the local and state level of the Senior Olympics in 2016 and 2017, earning awards at the state competition, ” and the documents reflect that Walker registered for and competed in the 2017 Rio Arriba County Local Senior Olympics and 2017 New Mexico State Senior Olympics. See Motion ¶ 15, at 4 (citing Senior Olympics Summer Games Event Registration at 1-2; Work Order for Senior Olympic State Games at 1; Rio Arriba County Senior Olympics, Local Qualifying Games at 1; 2016 Local Game Result Form at 1; New Mexico Senior Olympics 2016 Final On-Site Sheets at 1; Senior Olympics Summer Games Swimming Check-in Sheet at 1; 2017 Senior Olympics Summer Games Entry Form at 1; Rio Arriba County Senior Olympic Registration Form at 1 (dated February 10, 2016), filed July 27, 2018 (Doc. 59-9); Rio Arriba County Local Qualifying Games at 1-2, filed July 27, 2018 (Doc. 59-9); Rio Arriba County Senior Olympics Registration Form at 1 (dated March 30, 2017), filed July 27, 2018 (Doc. 59-9); Rio Arriba County Local Qualifying Games at 1, filed July 27, 2018 (Doc. 59-9); 2017 Summer Games Unofficial Results -- Rio Arriba at 1, filed July 27, 2018 (Doc. 59-9); Letter from Cecilia Acoste to Allison M. Beaulieu at 1 (dated September 15, 2017), filed August 20, 2018 (Doc. 64-2); 2017 New Mexico Senior Olympics On-Site Sheets at 1-4 (dated July 8, 2017), filed August 20, 2018 (Doc. 64-3)).[8]

         1. The Motion.

         The Defendants argue that the Walker Depo., First Interrogatories Answer, and First Supp. Answers contradict information obtained through discovery -- whether Walker participated in the Senior Olympics. See Motion at 1-2. The Defendants note that Walker's injuries from the collision with Spina allegedly prevented her from participating in or training for the Senior Olympics. See Motion at 1-2. The Defendants explain that, in the initial discovery and in the Walker Depo., Walker stated that she could not participate in the Senior Olympics, but that later discovery reveals that Walker participated in the Senior Olympics. See Motion at 2-3. The Defendants aver that Walker's contradictions pervade the case and merit dismissal as a sanction, because the Defendants cannot determine her claims' validity. See Motion at 2.

         In explaining Walker's contradictions, the Defendants note that the Correction Page did not cure the false statements in the Walker Depo but rather elaborated on the inconsistencies. See Motion ¶ 10, at 3. The Defendants further argue that Andrew Sanchez, a physical therapist, recorded in his medical records for Walker that Walker reported injuring her knee while “power walking.” Motion ¶ 12, at 3 (asserting this fact)(citing Patient Information at 1, filed July 27, 2018 (Doc. 59-7)(“Patient Information”)).

         The Defendants argue that, to warrant dismissal, a party must act willfully, in bad faith, or with fault. See Motion at 4 (citing Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992)). According to the Defendants, Ehrenhaus v. Reynolds provides the test for determining appropriate discovery sanctions and, according to the Defendants, Walker's actions warrant dismissal under the test. See Motion at 5. First, according to the Defendants, Walker's actions have highly prejudiced the Defendants, because she stated to the Defendants and to physicians “that her injuries have severely impacted her qualify of life, ” but the Defendants discovered documents that contradict her allegations. Motion at 6. See Motion at 5-9. The Defendants allege that, unless Walker is sanctioned, they will be “forced to defend a fraudulent lawsuit pervaded by false evidence.” Motion at 9. Second, according to the Defendants, Walker's falsities “fundamentally interfere . . . with the judicial process.” Motion at 10. According to the Defendants, Walker's Correction Page is an attempt to cover her lies, and, by lying to her physicians, Walker increases the damages that she alleges. See Motion at 11. Third, the Defendants contend that Walker acted intentionally, as evidenced by her lies under oath and her Correction Page. See Motion at 11. Fourth, the Defendants admit that the Court has not warned Walker that her actions will result in a sanction, but the Defendants contend that a warning is not a prerequisite to sanctions when the improper action, like Walker's, is lying under oath. See Motion at 12. Fifth, the Defendants aver that no lesser sanction than dismissal will be effective, because, unless the case is dismissed, the Defendants must defend a case based on false evidence. See Motion at 12-13. The Defendants request that, if the Court does not dismiss the case, the Court exclude Walker's experts, exclude evidence about injuries to Walker's left knee, instruct the jury that Walker perjured herself during discovery, and/or exclude evidence of pain and suffering, loss of enjoyment of life, and/or future medical treatment. See Motion at 13.

         2. The Response.

         Walker begins her response by complaining that Spina and Valley Express, Inc., initially named Dixon Insurance Company as their insurer, although Great West Casualty Company insured them, and that the Defendants filed a motion in limine about another automobile accident in which Walker was involved as evidence that Walker continued to drive after the collision with Spina, although Walker admitted, in the Walker Depo., that she continued to drive following the collision with Spina. See Response at 1-2. Walker contends that the Defendants misrepresented the facts underlying the Motion and requests that the Court sanction the Defendants, including imposing on them Walker's attorney's fees and costs for the Motion. See Response at 2.

         In response to the Defendants' allegations, Walker makes additional factual allegations, some of which dispute the Defendants' arguments. See Response ¶ 7, at 3; id. ¶ 9, at 4; id. ¶ 11, at 5; id. ¶ 12, at 5; id. ¶ 14, at 5-6; id. ¶ 16, at 6; id. ¶ 17, at 6. Walker argues that she clarified, in the Correction Page, that she applied to participate in and swam one or two laps at the 2017 New Mexico State Senior Olympics. See Response ¶ 7, at 3. Additionally, Walker asserts that she was not hurt while training for the Senior Olympics and, after the collision with Spina, continued to hope that she would participate in the Senior Olympics. See Response ¶ 11, at 5. Walker denies that she “trained” for the Senior Olympics, because her activities following the accident did not constitute “training” for her. See Response ¶ 14, at 5-6. Walker clarifies that she swam after the collision with Spina, but she did not train for the Senior Olympics, as training included swimming “up to sixteen laps” and activities, like “kayaking, track, dancing, ” other than swimming. Response ¶ 9, at 4 (citing generally Affidavit of Shirley J. Walker (dated August 1, 2018), filed August 4, 2018 (Doc. 62)(“Walker Aff.”); Walker Depo. at 59:15-61:21). Walker asserts that she accurately stated, in the Correction Page, that she swam only one or two laps at the 2017 New Mexico State Senior Olympics. See Response ¶ 12, at 5 (citing Correction Page at 2). Walker notes that she paid for an application for the 2017 New Mexico State Senior Olympics but swam only one or two laps, and she “was a no show” at the 2016 New Mexico State Senior Olympics. Response ¶ 16, at 6 (citing Correction Page at 2). Walker avers that she “had never denied that she was involved in” the 2016 Rio Arriba County Local Senior Olympics. Response ¶ 17, at 6 (citing Walker Aff. ¶ 4, at 1).

         According to Walker, she told her medical providers that she was active, that she planned to participate in the Senior Olympics, and that, following the collision with Spina, she experienced increased knee pain, which she exacerbated by “power walking.” Response ¶ 11, at 5 (citing Patient Information at 1). According to Walker, Walker did not tell Sanchez how she injured her knee, but she told him that she exacerbated the injury by power walking. See Response ¶ 14, at 5-6 (citing Patient Information at 1). Walker alleges that she did not tell Dr. Marder that she was training for the New Mexico Senior Olympics, see Response ¶ 14, at 5-6, and that she did not tell Dr. Lyons that she injured her knee while running, see Response ¶ 15, at 6.

         In conclusion, Walker asserts that her conflicting answers “were involuntary and not intentional, ” and, to warrant dismissal as a sanction, a party must act with an “intent to deceive or not to comply with discovery requests.” Response at 7. In her affidavit, Walker explains that she does not have dementia, but that she gets “a bit confused about dates.” Walker Aff ¶ 4, at 1.

         3. The Reply.

         The Defendants reply that the Court should disregard the Walker Aff, because it is “self-serving.” Defendants Reply in Support of Their Motion to Dismiss for Plaintiffs Abuses of the Discovery Process at 2, filed August 20, 2018 (Doc. 64)(“Reply”). The Defendants argue that the Court “cannot guarantee [them] a fair trial, ” because Walker has provided false information under oath and obstructed discovery. Reply at 2 (citing United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, ¶ 397, 629 P.2d 231, 242). The Defendants aver that the Walker Aff. is a sham, because Walker “was cross-examined regarding her testimony at which time she had the opportunity to clarify her testimony; her affidavit is not based on newly discovered evidence; and the affidavit does not seek to explain any confusion reflected in her earlier testimony.” Reply at 3. The Defendants note that Walker, in the Walker Depo. “unequivocally stated” that she did not participate in the Senior Olympics. Reply at 3.

         Further, according to the Defendants, the Walker Aff. does not indicate that she participated in and received awards at the 2017 Rio Arriba County Local Senior Olympics, and that she did not register for the 2015 Senior Olympics. See Reply at 3-4. The Defendants further note that Walker did not state in the Correction Page that she participated in the 2017 New Mexico State Senior Olympics “by swimming one or two laps in the warmup area, ” and, further, according to the Defendants, she “participated and received medals” in the 2017 Rio Arriba County Local Senior Olympics. Reply at 4 (citing 2017 New Mexico Senior Olympics On-Site Sheets at 1-4).

         Finally, the Defendants state that, before deposing William Patterson, the expert witness whom Walker plans to have testify about her economic damages, see Defendants' Motion to Exclude Expert Testimony of William Patterson at 1, filed August 30, 2018 (Doc. 72), the Defendants received Patterson's file for the case, which includes, on a transcript of the Walker Depo., a handwritten note, which the Defendants assume is in Walker's handwriting, see Reply at 5. The note states: “There seems to be a lot of confusion over Senior Olympic because I pd. [sic] Donations in 2015 in 2016 in 2017.” Reply at 5. The Defendants read the note as suggesting that Walker did not intend to reveal her participation in the Senior Olympics. See Reply at 5.

         RELEVANT LAW REGARDING RULE 37 SANCTIONS

         Rule 37(b) of the Federal Rules of Civil Procedure provides that, if a party fails to disclose or supplement information which the discovery rules require it to provide, the court “may impose other appropriate sanctions, including any of the orders listed in Rule 37(B)(2)(A)(i-vi).” Fed.R.Civ.P. 37(c)(1)(C). Those orders allow the court to impose various sanctions upon a party for failure to comply with “an order to provide or permit discovery, ” including: (i) ordering that designated facts be taken as established; (ii) precluding the disobedient party from supporting or opposing matters at issue, or “introducing designated matters in evidence”; (iii) ”striking pleadings in whole or in part”; (iv) ”staying further proceedings until the order is obeyed”; (v) dismissing the action; and (vi) ”rendering a default judgment against the disobedient party.” Fed.R.Civ.P. 37(b)(2)(A)(i)-(vi). “Determination of the correct sanction for a discovery violation is a fact- specific inquiry that the district court is best qualified to make.” Ehrenhaus v. Reynolds, 965 F.2d at 920. The United States of America Court of Appeals for the Tenth Circuit has noted: “Our case law makes it clear that a district judge may dismiss an action for discovery violations.” Archibeque v. Atchison, Topeka & Santa Fe Ry., 70 F.3d 1172, 1174 (10th Cir. 1995). Dismissal, however, is “an extreme sanction” that is appropriate only if there has been “willful misconduct.” Ehrenhaus v. Reynolds, 965 F.2d at 920 (citing Meade v. Grubbs, 841 F.2d 1512, 1520 (10th Cir. 1988); M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869, 872-73 (10th Cir. 1987); In re Standard Metals Corp., 817 F.2d 625, 628-29 (10th Cir.)). The Supreme Court of the United States has held that “Rule 37 should not be construed to authorize dismissal of [a] complaint because of petitioner's noncompliance with a pretrial production order when it has been established that failure to comply has been due to inability, and not to willfulness, bad faith, or any fault of petitioner, ” and noted that a district court “possesses wide discretion to proceed in whatever manner it deems most effective” and just in the realm of discovery. Societe Internationale Pour Participations Industrielles Et Commerciales, S. A. v. Rogers, 357 U.S. 197, 212-13 (1958). Accord Archibeque v. Atchison, Topeka & Santa Fe Ry., 70 F.3d at 1174 (“Because of the harshness of dismissal, however, due process requires that the discovery violation be predicated upon ‘willfulness, bad faith, or some fault of petitioner' rather than inability to comply.” (quoting Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 640 (1976))).

         The Tenth Circuit has held that a district court may not dismiss a complaint with prejudice as a sanction for failing to obey a discovery order without considering the non-exhaustive factors listed in Ehrenhaus v. Reynolds:

“Before imposing dismissal as a sanction, a district court should . . . evaluate the following factors on the record: ‘(1) the degree of actual prejudice to the [other party]; (2) the amount of interference with the judicial process; . . . (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.'” Gripe v. City of Enid, 312 F.3d 1184, 1187 (10th Cir. 2002)(quoting Ehrenhaus [v. Reynolds], 965 F.2d at 921). “This list, ” hereinafter referred to as the Ehrenhaus [v. Reynolds] factors, “is not exhaustive, nor are the factors necessarily” of equal weight. Chavez[ v. City of Albuquerque, 402 F.3d 1039');">402 F.3d 1039, ] 1044 [(10th Cir. 2004)]. “Only when the aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits is dismissal an appropriate sanction.” Ehrenhaus[v. Reynolds], 965 F.2d at 921.

Procter & Gamble Co. v. Haugen, 427 F.3d 727, 738 (10th Cir. 2005).

         In Archibeque v. Atchison, Topeka and Santa Fe Railway, the Tenth Circuit affirmed the order of the Honorable C. LeRoy Hansen, United States District Judge for the District of New Mexico, granting the motion to dismiss the plaintiffs complaint for failure to disclose her past medical history. See 70 F.3d at 1172. The plaintiff sought workers' compensation damages for personal injury to her back allegedly occurring at an unwitnessed work-related accident occurring in December, 1990. See 70 F.3d at 1173. The defendant requested a complete set of medical records and asked through an interrogatory the number of accidents in which she had been involved. See 70 F.3d at 1173. The Tenth Circuit noted that her responses did not mention any lower back pain before 1990; she listed only two car accidents, in 1990, and 1992, and a bicycle accident in 1987; she stated that she had not had her lower back x-rayed before the alleged work-related incident in 1990; and she stated that she had no recollection of lower back pain before the alleged 1990 incident. See 70 F.3d at 1173. When the defendant independently sought to verify her answers, it found documents proving that, for over ten years before 1990, “on over fifteen occasions, involving at least six physicians, Appellant sought treatment for a variety of lower back ailments and related symptoms.” 70 F.3d at 1173. The documents revealed that she had x-rays taken multiple times at least as far back as 1984. See 70 F.3d at 1174. When the defendant filed its motion to dismiss under rule 37, asking Judge Hansen to dismiss the case for these discovery abuses, she responded that the problems were with her tailbone, not her back, and “that her failure to disclose her past medical history was merely oversight.” 70 F.3d at 1174. The Tenth Circuit noted that “[s]he did not file amended interrogatory responses or an affidavit regarding her compliance with the discovery process. She has [not], even in her arguments to this court on appeal, explained her conduct.” 70 F.3d at 1174. The Tenth Circuit upheld Judge Hansen's dismissal of the case, noting:

The district court . . . noted the degree of prejudice suffered . . . and the impact Appellant's actions had with regard to AT & SF's ability to prepare for trial. The court noted the culpability of Appellant which we described above, specifically addressing the failure to disclose, the false statements, and the court's determination as to the credibility of Appellant's statements that her failures were mere oversight. The court found that Appellant's willful conduct seriously interfered with the judicial process, and expressly stated that it had considered lesser sanctions and determined that they were not appropriate.

70 F.3d at 1175.

         In Garcia v. Berkshire Life Ins. Co. of Am., 569 F.3d 1174 (10th Cir. 2009), the Tenth Circuit upheld the district court's dismissal sanction where the district court concluded that it “was ‘an especially egregious case,' finding that ‘the [plaintiffs] fabrications were prepared over a period of years and are calculating, carefully constructed, and self-serving.'” 569 F.3d at 1179 (quoting Garcia v. Berkshire Life Ins. Co. of Am., No. CIV 04-01619 LTB-BNB, 2007 WL 6757307, at *8 (D. Colo. Nov. 29, 2007)(Boland, M.J.)). The issue litigated was whether the plaintiff, Garcia, was entitled to full benefits from her disability policy, because she was suffering from total disability “due to cognitive defects.” 569 F.3d at 1177. The defendant paid Garcia's claims under protest, because during the time that she was allegedly fully impaired, she had received her Doctor of Jurisprudence “from the University of Denver College of Law, where she was named an ‘Outstanding Law Graduate,' and subsequently . . . a Masters . . . . Moreover . . . Ms. Garcia had operated a real estate business during 2002, three years after the time she had first claimed total disability.” 569 F.3d at 1177. The defendant brought a motion for dismissal as a sanction for discovery abuses, “asserting that Ms. Garcia falsified or fabricated at least four documents submitted during discovery.” 569 F.3d at 1177. Two of the four allegedly fabricated documents were a “smoking gun” letter that the defendant's adjuster allegedly wrote and a letter to the Colorado Board of Bar Examiners in support of her request to be allowed double time for the bar examination, which her doctor allegedly wrote. Garcia v. Berkshire Life Ins. Co. of Am., 569 F.3d at 1177-78. Both the alleged author of the smoking-gun letter and the doctor alleged to have written the letter to the bar examiners testified at the sanctions hearing, and repudiated the assertion that they authored the documents. See 569 F.3d at 1178. The Tenth Circuit noted that the district court “found Ms. Garcia's testimony at the Sanctions hearing to be ‘incredible,' . . . 'refused to rely on any of it.' . . . [And] concluded that Ms. Garcia prepared fabricated evidence ‘willfully, knowingly, intentionally, after careful contemplation, for self-serving purposes, and with a full understanding of the impropriety involved.'” 569 F.3d at 1177 (quoting Garcia v. Berkshire Life Ins. Co. of Am., 2007 WL 6757307, at *7-8). The Tenth Circuit agreed with the district court's dismissal, reasoning:

Ample evidence supported the conclusion that Ms. Garcia was herself culpable for the fabrications submitted in this case. Numerous inauthentic documents were submitted over a several year period, counseling against an explanation of mistake. Moreover, the fabrications were carefully constructed to look like authentic documents. Letters were made to look as though they were printed on authentic letterhead; emails were carefully spliced together so as to appear accurate; fax banners were added to documents to disguise their origin. . . . Finally, Ms. Garcia's evasive, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.