ROBERT ALLEN PERRINE, DEVON PERRINE (a minor), TIMOTHY PERRINti (a minor), and CHRISTINA PERRINE (a minor), Plaintifis,

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1 IN THE CIRCUIT COURII CIF THE FIFTH JUDICIAL CIRCUIIT, IN AND FOR LAKE COUNTY, FLORIDA ROBERT ALLEN PERRINE, DEVON PERRINE (a minor), TIMOTHY PERRINti (a minor), and CHRISTINA PERRINE (a minor), CASE NO.2008-CA-2635 Plaintifis, V. ROBERT EUGENE HENDERSON ANd SWELL CONSTRUCTIONS CO., INC., Defendants. The Defendants filed a Motion to Dismise for Fraud. After an evidentiary hearing, the court entered an Order on Defendants' Motion to Dismiss for Fraud ("prior Orde/') on January O, 2010, denying the Motion. The Defendants filed a Renewed Motion to Dismiss for Fraud, and the court conducted an evidentiary hearing on Mlarch 9, The findings o1'the prior Order are incorporated herein by referencel. ln the prior Order, the court found thathe Plaintiff complained that he suffered injuries to his head, neck and back as er result of an automobile accident caused by tlre Defrendants on August 30, The court found evidence thathe Plaintitf failed to diticlose in discovery responses that in 2005, he fell off some stairs and experienced thoracic and lumbar pain, and that he was hurt when he fell off some boxes in another incident. The coud also found that the Plaintiff failed to disclose the nature and extent of the injuries TIZVZVLZ,EE of ueuas eepnl l^ll/ B0 50 T I0Z- T T -rdi^l

2 he suffered in an accident in Puerto Rico in The court also found ttrat the Plaintiff appeared to ambulate without difficulty in a surveillance videotape, contrilry to his actions and teetimony at a deposition' $ince the prior Order, the Defendant, through additional investigation and discovery, has founcl other incidents of the Plaintiffs lack of truthfulness. Although the Plaintitf denied injuring his back prior to the 2002 accident in Puerto Ricc', the Defendant filed a document wherein the Plaintffi assefted a claim for a rrrork related back strain in 1gg4. The plaintiff's counsel argued that there was insutficriernt proof that the claim was made by the Plaintitf since the social security number is different (it is one number off), but there is ample evidence that it is the Plaintiff because it is the same name, date o1'birth and address. The Plalntiff presented no evidence to contradict this inforrnation. Although that one incident may be somewhat remote in time, there is more compelling evidence of the Plaintiff's fraud, The Plaintiff'$ own expert, Dr. Giannakopoulous, testified in his deposition that the Plaintiff had not been truthful with him when he reported that he lost consciousness following the accident in 2004' He also testified that the Plaintiffailed to disclose to him the two falls in 2005i, and that those types of falls can cause thoracic spinal injuries. Another expert, Dr. Gu, reported in his deposition that the Plaintiff related that he had hit his head and lost consciousness, but when he reviewed the emergency room recordg on the date of the accident in 2004, he could not relate the post-concussive syndrorne to the accident. Most significantly, the Plaintift failed to reveal in discovery his treatrnent by a pain management specialist, Dr. Swain. In his deposition testimony, the Ptaintiff said he was 9/Z ETZVZVLZEE olueuas eepnl Inllil 80 : 60 T T 0Z- T T -rdn

3 fully recovered from his 2002 accident by November, 2003, and was in grc,at physical health and able to wrrk from that time up until the 2004 accident. Although the Plaintiff failed to produce any records of Dr. Swain's treatment, the Defendant di(lfind those records and took Dr. Swain's deposition. Dr. Swain revealed that the Plaintiff was in treatment with him frcm October, 2003 through January, 2004, with spinal and chronic pain issues. Dr. Swain prescribed pain medications for the Plaintifl as his; pain was aggravated by walkir.rg and standing. The Plaintiff continued to complain olilow and midback pain while he vuas treated by Dr. Swain. Finally, the court previously obseryed the videotape of the Plaintiff en1;aging activities without apparent pain or discomfort, in direct contradiction to hi$ sworn deposition testimonli. The Plaintiff also recently completed a compulsory neuropsychological evaluation with Dr. Boone, who reported that there is a 99% probability that the Plaintiff is malingering by the intentional production of lalse or grossly exaggeratecl symptoms obtain financial compensation. Although that alone is an insufficient basis for dismissal, it shows the intentional nature of the Plilintitf's misrepresentations. An action may be dismissed for fraud where "it can be demonstrate,c, clearly and convincilgly, that a pafiy has sentiently set in motion some unconscionetble scheme calculated to interfere with the judicial system's ability to impartially adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the preserntation of the opposing party's claim or defense." Garnados v. Zehr,97g So.2d 1155, 1157 (Fla. 5th DCA 2008). Becausie dismissal ie the severest of all sanctions, it should bre used only in extreme circumstarrces. Brrd v. Hardrives of Delray,!nc.,644 $o.zd 89, 9r0 (Fla. 4th DCA a/e ElZVZVL7,9E olueu S eepn; illt 80 : 50 T T 0Z- T T -rpn

4 19e4), A dismissalwas found appropriate where a plaintiff misrepresented his prior medical problems, anrd the medical records directly contradicted his sworn testimony' McKnight v. Evancheck, 907 so.2d 699, 701 (FIa. 4th DcA 2005). Even iif the party later "come$ clean," a dismissal may be appropriate because truthful dist;ltlsure required to maintain the integrity of the civil litigation procese. Morgan v. C,ampbel/, 816 So.2d 251,254 (Fla,2d DCA 2002). Here, the Plaintiff's misrepresentatione went to the core issues of tht: case: whether his head, nreck and back injuries were caused by the accident. l-hose misrepresentations unfairly hampered the presentation of the opposing party's defense, and, if they had been successful, would have interfered with the jury's ability to adjudicate the issue,s. See, Ramey v. Havefty Furniture Companies, lnc.,lj93 So.2d j014,1019 (Fla. 2d DCA 2008). "The integrity of the civillitigation procers$ depends on truthful disclosure of facts. A system that depends on an adversary's ability to uncover falsehoods is doomed to failure, which is why this kind of conduct must be discouraged in the strongest possibte way." Cox v. Burke,706 So.Zd 43,47 (Fla. Sth DOA 1998). ln Long v. Swofford, 805 So.2d 882 (Fla. 3d DCA 2001), a dismissal lbr fraud was affirmed because a plaintiff seeking damages for a back injury had lied urrder oath that she had never had a previous back injury. ln Bass v. City of Pembrahe frtnes, 991 $o.2d 1008 (Fla.4th DCA 1998) a dismissalforfraud was affirmed because a plaintiff seeking damages frrr a head and neck injury had been untruthful for failing to disclose prior migraine headaches and the medical treatment for them' Although factuirl inconsistencies and even false statements are typiically well otuaues afpng 9/V ETT,VZVLZEE N,U 80 : 60 T T OZ- T T -rnfi

5 managed through thr: use of impeachment and traditionaldiscovery sanctions, Ruizv. Gity of Or!ando,962 So.zd 574, 576 (Fla. 5th DCA 2007), the process of triial has been subverted here. The Plaintiff was untruth{ul on more than one occasion. l-le did not refute the overwhelnring evidence of his misrepresentations. The evidenoe here demonstrates that tl're Plaintiffs repeated non-disclosures, false statements and omissions were interrtional and designed to interfere with the administratiion of justice. See, Williams v. Miami-Dade County Public Health Trust, 17 So,3d 859 (Fla. 3d DCA 2009). There is clear and convincing evidence of the Flaintiff'scheme calculated to evade or stymie the discovery of facts central to the case. The Plaintiffs deceitful behavior was intentionally set in motion to interfere with the judicial systerm's ability to adjudicate this case fairly and impartially. Wenweisun v. Avrles, 2010 \ rl (Fla. App. 5 Dist,). l.his case must be dismissed fur the Plaintiff's fraud. The Plaintiff hars argued that even if the requisite fraud is found, the entire action cannot be dismiseerj because there are other plaintifts. That argument is not persuasive. The other Ptaintiffs are the minor children of the Plaintiff, Rob,eft Allen Perrine. They were not involved in the accident, and their claims are entirely derivative of and dependent upon Mr. Perrine's claims. lt does not make sense thetthe action should continue as to them and that they benefit by the Plaintiffs fraud. Thus, the action must be dismissed entirely. Based upon thr; foregoing, it is: ORDERED AND ADJUDGED as follows: 1. The Defendants' Renewed Motion to Dismiss for Fraud is granted. 2. This action is dismissed with prejudice. The trial set to begin March 28, 2011 is 9/E ETZVZVLZEE oluerxas e6pn; N'f 50 : 60 T T OZ- T I -rdi^i

6 cancelled. tl DONE AND ORDERED in chamberc at Tavares, Lake County, Florida, this l/ day of March, I HEREBY CERTIFYlhat copies of the foregoing have been provided by U.S. Mail to the following on this -\ day of March, 2011: L. Gray $anders 1802 W. Cleveland Street Tampa, FL Matthew C. Scarborough 9/9 ErzvzvLz.gE oluauas eepng n'il 50:60 TTOZ-IT-rDl.l