Plaintiff’s “appalling” conduct in response to employer’s investigation of his claim is significant and relevant, at least in federal court.
Editor’s comment: Plaintiff alleged permanent disability and inability to work due to a workplace injury on the railroad. His subsequent intentional contemptuous disregard for discovery deadlines, improper interference with evidence, and intentional deceptive and false statements constituted grounds for dismissal. Any subsequent gasp of righteous indignation heard did not emanate from the defense bar.
In Negrete v. National Railroad Passenger Corporation (Amtrak), (No. 07-3287 October 27, 2008), a male track-repair worker (Plaintiff) sued his employer (Defendant) in the United States District Court for the Northern District of Illinois, Eastern Division. He alleged permanent disability as a result of a fall off a welding truck. Defendant conducted an investigation into the allegations in Plaintiff’s law suit to determine the extent of Plaintiff’s injury and whether he was able to work. In response to Defendant’s request for the names of each treating doctor, Plaintiff provided only those names of the doctors whose findings helped his case and withheld the names of those who found him able to work.
In response to Defendant’s request for medical records kept by the Railroad Retirement Board (RRB), an entity which will only disclose records to the patient, Plaintiff provided 12 pages as a “complete record.” In response to Defendant’s Motion to Compel, Plaintiff produced an additional 236 pages of documents, including formerly undisclosed documents, as a complete record. The 236 pages did not include the 12 pages formerly produced.
In response to the U.S. District Court’s order to obtain and produce a sealed copy of his RRB file, Plaintiff submitted an envelope which purported to be the file. However, the envelope had been opened twice prior to its production.
At his deposition Plaintiff testified he had no post-accident income. He later admitted owing an apartment building with two tenants. Plaintiff testified each tenant paid him $450.00 per month in rent. However, Plaintiff’s tax returns from 2002 through 2005 established at least $160,000.00 in income from three apartment buildings. Plaintiff’s own rental receipt book indicated he received $650.00 per month from each tenant. Additional investigation established Plaintiff had 15 tenants. The District Court found Plaintiff’s hiding of his rental income relevant because he alleged an inability to earn a living due to his injury.
In addition, Plaintiff alleged an inability to perform even minor housework. However, his tenants told an investigator since the accident Plaintiff had personally “painted, changed windows, repaired a floor, laid tile, and installed a new toilet.” The District Court noted at his deposition Plaintiff testified his brother had maintained the apartments “in exchange for beer.” Finally, the District Court noted Plaintiff happened to miss 21 discovery deadlines. The District Court dismissed Plaintiff’s lawsuit under FRCP 37(b)(2)(A)(v) as a sanction for discovery violations. Plaintiff appealed.
The U.S. Court of Appeals for the Seventh Circuit upheld the District Court’s dismissal. The Appellate Court noted dismissal is a “drastic” penalty but in this case was no abuse of discretion in light of Plaintiff’s “repeated, willful efforts to hide evidence.” Plaintiff argued his mistakes were “innocent.” The Appellate Court found him a “poor liar.” In addition, Plaintiff argued dismissal was too harsh a penalty because he was “uneducated” and “lied only about collateral issues.” The Appellate Court found “it does not take a graduate degree to understand that is it unacceptable to hide evidence and lie . . . “ There were no dissenting opinions.
This article was researched and written by Matthew A. Wrigley, J.D. Please direct comments or inquiries to Matt at mwrigley@keefe-law.com.
