Herman v. Intracoastal Cardiology Ctr.

• Decision Date: 26 September 2013
• Docket Number: No. 4D11–1214.,4D11–1214.
• Citation: 121 So.3d 583
• Court: Florida District Court of Appeals
• Parties: Edward HERMAN, individually, and as Personal Representative of the Estate of Miriam Herman, his wife, Appellants, v. INTRACOASTAL CARDIOLOGY CENTER, Mitchell D. Silver, M.D., individually, and Mitchell D. Silver, M.D., P.A., Appellees.

121 So.3d 583

Edward HERMAN, individually, and as Personal Representative of the Estate of Miriam Herman, his wife, Appellants,

v.INTRACOASTAL CARDIOLOGY CENTER, Mitchell D. Silver, M.D., individually, and Mitchell D. Silver, M.D., P.A., Appellees.

No. 4D11–1214.

District Court of Appeal of Florida, Fourth District.

Aug. 7, 2013.

Rehearing and Rehearing En Banc Denied Sept. 26, 2013.

Mark S. Weinstein of Weinstein & Weinstein, P.A., Weston, and Roy D. Wasson of Wasson & Associates Chartered, Miami, and George A. Vaka and Nancy A. Lauten of Vaka Law Group, Tampa, for appellants.

Scott L. Mendlestein and Tiffany A. Hiller of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Coral Gables, and Rose Marie Antonacci–Pollack of Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Fort Lauderdale, for appellees.

ON MOTION FOR REHEARING

LEVINE, J.

We grant appellees' motion for rehearing, withdraw our previous opinion, and substitute the following in its place.

The issue presented for our review is whether the trial court erred in granting a motion to dismiss based upon the commission of fraud upon the trial court. We find that the trial court did not err since there was competent, substantial evidence to support the trial court's decision. We find, specifically, that there was competent, substantial evidence that appellant sentiently set in motion an unconscionable scheme calculated to interfere with the judicial system's ability to adjudicate the matter impartially. We affirm the order of the trial court, as we find that the trial court did not abuse its discretion in imposing the sanction of dismissal.

Edward Herman, individually and as personal representative of the Estate of Miriam Herman, his late wife, timely appeals a final order dismissing his wrongful death medical malpractice lawsuit for fraud on the court. In 1999, Miriam Herman filed a medical malpractice lawsuit against her cardiologist, Dr. Mitchell Silver, alleging that Dr. Silver caused her to go into renal failure by negligently failing to obtain a nephrology consult before clearing her for open heart surgery in 1997. After her death in 2001, appellant Edward Herman was appointed as the personal representative of the estate and the case was converted to a wrongful death suit.

In late 2002, then-defendant Bethesda Memorial Hospital propounded requests for production, one of which asked for “any notes or diaries maintained by Edward Herman or Miriam Herman that pertain to the issues raised in this lawsuit.” A few days later, Dr. Silver served the same request for production, including the same request for diaries.

Although Mr. Herman did keep a diary chronicling his wife's medical condition from March 1997 (when she was admitted into the hospital) to July 1997, this diary was never disclosed to the defense in discovery. Mr. Herman never responded to either Bethesda's or Dr. Silver's request for production. An August 2003 motion to compel production filed by Dr. Silver was never set for hearing or ruled on.

The case went to trial in 2006. Mr. Herman presented expert testimony from a cardiologist that Dr. Silver negligently failed to get a nephrology consult in spite of clear medical signs that Mrs. Herman needed treatment before being cleared for surgery. He also presented expert testimony that any reasonable nephrologist would have implemented treatment and medication that would have prevented her from going into renal failure, given her medical condition.

At trial, Mr. Herman testified at length about his background, his life with Mrs. Herman, and the medical care she received. Mr. Herman testified that the first time he ever learned anything about Mrs. Herman's renal insufficiency was when she was in the hospital after the surgery. He also testified that, before the surgery, his wife rode bicycles, went for walks, and danced.

Mrs. Herman's deposition was taken before her death and the deposition recording was played at trial. Mrs. Herman denied that she had problems with her kidneys prior to the surgery. She also testified that she would routinely take walks with her husband for exercise. She was not specifically asked about whether she rode bicycles or went dancing.

The Hermans' daughter, Ms. Susan Winograd, testified at trial regarding her mother's physical activity. She testified that the family would go bike riding when she was younger. She also testified that her mother was a vibrant woman who loved dancing, but explained that her mother had to give up dancing after the surgery.

The 2006 trial resulted in a hung jury, and the case was scheduled to be retried in 2010.

In late 2009, Mr. Herman and Ms. Winograd were involved in a major argument, and Mr. Herman threatened to take her out of his will. Ms. Winograd then sent a letter to defense counsel, asserting that her father's testimony at trial contained “many lies” and informing defense counsel of the existence of her father's diary regarding Mrs. Herman's medical condition.

Dr. Silver subsequently filed a motion to dismiss the case for fraud upon the court. The motion alleged, in pertinent part, that Mr. Herman committed perjury in his September 2000 deposition and in his trial testimony, and that Mr. Herman intentionally withheld a diary which contradicted his sworn testimony.

The trial court held an evidentiary hearing on the motion to dismiss. At the hearing, the defense presented testimony from Ms. Winograd, Mrs. Herman's sister, and Mrs. Herman's brother-in-law. Mr. Herman requested that the trial court review Mr. Herman's 2010 updated deposition, in which he responded to the allegations against him.

The defense presented evidence which was inconsistent with Mr. Herman's testimony on a number of issues. The contradictions relevant to this opinion are as follows:

Kidney Problems Pre–Surgery. At trial, Mr. Herman testified that the first time he ever learned anything about Mrs. Herman having renal insufficiency was when she was in the hospital after the surgery. However, Mr. Herman's diary contains several references to his wife's kidney problems during her hospitalization in the weeks leading up to the surgery.

Risks of Surgery. At trial, Mr. Herman gave the following testimony regarding whether the doctors explained the risks of stroke and renal failure: “They discussed the risk of the surgery, assuming or on the basis that it was going to go favorably, but they never did discuss with us the eventualities if it didn't go right, Dr. Silver. And that wasn't something that was explained to us.” However, in his diary, Mr. Herman mentions that Dr. Silver discussed the risk of stroke and that Mrs. Herman would be placed on a blood thinner to reduce the risk of clotting.

Option of Different Hospital. At trial, Mr. Herman testified that he did not recall having a discussion with Dr. Silver in which Dr. Silver told the Hermans to consider going to a university hospital due to the seriousness of the situation. Specifically, Mr. Herman testified: “No. The essence of what you're saying is that they didn't have a cardiologist unit in Bethesda. It was as simple as that. They couldn't perform the procedure there, so they had to find another hospital. And that's how we ended up in Delray.” However, Mr. Herman's diary alluded to a possible transfer to a university hospital.

Mrs. Herman's Activity Levels. At trial, Mr. Herman testified that, before the surgery, his wife rode bicycles, walked, and danced. However, at the evidentiary hearing, Mr. Herman's daughter testified that none of this was true; she claimed that her father pressured her before the trial to lie and testify that her mother rode bicycles, danced, and did a lot of walking.

Jacket Testimony. At trial, Mr. Herman testified that his deceased wife was “with us today,” telling the jury that he was wearing a jacket that his wife bought for him. However, his daughter testified that he fabricated the story about the jacket, that his new wife actually bought him the jacket, and that he later joked with the new wife about his testimony regarding the jacket.

The trial court took the matter under advisement and later entered a written order dismissing the case for fraud on the court. The trial court concluded that Mr. Herman “has sentiently set in motion a scheme to defraud” after considering the standard set forth in JVA Enterprises, I, LLC v. Prentice, 48 So.3d 109, 112 (Fla. 4th DCA 2010). The trial court first noted that it found Mr. Herman's testimony at the trial regarding his personal background false, but that this testimony was “relatively minor and, alone, could be left as fodder for cross examination.” We quote the following from the trial court's well-reasoned order:

However, Mr. Herman also gave false testimony that goes to the very issues presented to the jury in this case. He falsely testified that his wife led an active life leading up to the subject surgery. He described her as actively biking, dancing and walking. All of this testimony was offered to establish the alleged damages occasioned by the surgery. All of this testimony was false.

More disturbingly, Mr. Herman persuaded his daughter to support this fiction. Prior to trial, Ms. Winograd was given a list of “topics” that would be covered at trial. Mr. Herman continued to stress to Ms. Winograd the importance of telling the jury that Miriam Herman was active prior to the subject surgery. Ms. Winograd testified she went along with her father at the time of trial, but this testimony was false.

Perhaps of more significance, the Plaintiff maintained a diary which chronicled his wife's medical treatment, including her interaction with Dr. Silver, the defendant in this case. This diary was never produced during discovery in this case and its existence was not revealed until December of 2009 when Ms. Winograd contacted defense counsel.... While the Plaintiff asserts that the diary was not requested, the Court concludes that multiple discovery requests...