70 F.3d 1172 (10th Cir. 1995), 94-2215, Archibeque v. Atchison, Topeka and Santa Fe Ry. Co.

Docket Nº:94-2215.
Citation:70 F.3d 1172
Party Name:Linda Sue ARCHIBEQUE, Plaintiff-Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellee.
Case Date:November 24, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1172

70 F.3d 1172 (10th Cir. 1995)

Linda Sue ARCHIBEQUE, Plaintiff-Appellant,



No. 94-2215.

United States Court of Appeals, Tenth Circuit

November 24, 1995

Page 1173

        Michael B. Michelson, of Gaines & Stern Co., L.P.A., Cleveland, Ohio (Michael J. Rogan, of Gaines & Stern Co., L.P.A., Cleveland, Ohio, and Mark Riley, of Padilla, Riley & Shane P.A., Albuquerque, New Mexico, with him on the briefs), for Plaintiff-Appellant.

        John S. Thal (J.H. Mahaney, with him on the brief), of Atkinson & Thal, P.C., Albuquerque, New Mexico, for Defendant-Appellee.

        Before KELLY and SETH, Circuit Judges, and BROWN, District Judge [*].

        SETH, Circuit Judge.

        Appellant Linda Sue Archibeque appeals the dismissal with prejudice of her complaint against the Atchison, Topeka & Santa Fe Railway Company (AT & SF). The dismissal was based on the district court's determination that Appellant willfully provided false and misleading answers on a continual basis during the discovery process. See Fed.R.Civ.P. 37(d).

        Appellant brought her complaint under the Federal Employers' Liability Act, 45 U.S.C. Secs. 51-60, seeking damages for personal injuries allegedly sustained while working for AT & SF. Specifically, she maintains that she suffered a herniated disk in her lower back as a result of a December 29, 1990 unwitnessed work-related accident.

        In its answer to Appellant's complaint, AT & SF asserts that the injury predated December 1990, or that it was a result of an accident suffered subsequent to the alleged December 1990 mishap. Because Appellant had suffered other injuries, including automobile accidents in July 1990 and July 1992, AT & SF requested a complete set of medical records by which its experts could evaluate Appellant's claim and plan a defense. AT & SF also raised the question as to the number of accidents in which Appellant had been involved. This was on October 8, 1993 during a conference before the magistrate judge.

        In response to AT & SF's request for complete medical records and a complete list of health care providers that had treated Appellant in the past, Appellant listed a variety of providers and a corresponding list of the medical conditions. In her responses, there was no mention of any lower back or tailbone symptoms in existence prior to December 1990. In fact, when asked what other serious physical injuries she had experienced since 1975, Appellant listed the alleged December 1990 accident, the car accidents mentioned above, and a...

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