United States District Court, D. Connecticut
RULING ON DEFENDANT’S MOTION FOR SANCTIONS
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
before the Court is the motion of defendant the United States
(“defendant”) for sanctions against plaintiff
Anitra Knox (“plaintiff”). [Doc. #94]. Plaintiff,
appearing pro se, has filed a “Motion to Continue
Proceedings, ” which the Court construes as
plaintiff's response to the Motion for Sanctions. [Doc.
#109]. Defendant filed a Reply brief on June 28,
2016. [Doc. #112]. For the reasons articulated below, the
Court GRANTS, in part, and DENIES, in part, defendant's
Motion for Sanctions [Doc. #94].
December 12, 2012, plaintiff, through her then-counsel
Anthony Lasala, initiated this matter pursuant to the Federal
Tort Claims Act against the United States. [Doc.
Plaintiff alleges that she slipped and fell at the West Haven
Veterans Administration Hospital (the “VA”), and
as a result, sustained injuries. Id. Specifically,
plaintiff alleges that she “suffered and sustained the
following injuries and losses ... (a) radial head fracture of
the right elbow; (b) injuries to the right wrist, arm, elbow
and shoulder; (c) sprain/strain of the lumbar spine; (d)
sprain/strain of the cervical spine; (e) injuries to the
right knee; [and] injuries to the contiguous muscles,
ligaments, nerves, soft tissues, glands, bones and joints of
the injured parts.” [Doc. #1, at ¶11]. On February
28, 2013, defendant appeared and filed its Answer to the
Complaint. [Doc. ##7, 8]. The parties filed their Rule 26(f)
Report on July 3, 2013. [Doc. #13]. Thereafter, the parties
engaged in discovery and settlement discussions through
December 2015. The parties consented to the jurisdiction of a
United States Magistrate Judge on January 15, 2016. [Doc.
#50]. On February 1, 2016, this matter was transferred to the
undersigned. [Doc. #52]. Neither party has filed dispositive
response to this Court's final pretrial order [Doc. #55],
on March 1, 2016, the parties filed their Joint Trial
Memorandum. [Doc. #57]. Defendant also filed a motion in
limine, which sought to preclude plaintiff's
late-disclosed expert witness, Dr. Jonathan Grauer, M.D.,
from testifying at trial [Doc. #58]. On March 30, 2016, the
Court granted this motion, absent objection, and precluded
Dr. Grauer from testifying in an expert capacity, but not as
a fact witness. [Doc. #64]. Shortly after issuing this
Ruling, the Court scheduled a telephonic conference for April
20, 2016, to address the appropriate parameters of Dr.
Grauer's trial testimony as a fact witness. [Doc. #65].
this telephonic conference, on April 20, 2016, counsel for
plaintiff, Anthony Lasala informed the Court that on April
18, 2016, plaintiff had contacted him and Attorney Wynne in
writing and terminated their services as her counsel. [Doc.
#68]. In light of this development, the Court scheduled an
in-person hearing for April 25, 2016, to address
plaintiff's termination of her counsel's services and
her plans for proceeding with trial. [Doc. ##68, 69]. The
Court required plaintiff's personal appearance at this
April 21, 2016, defendant filed a “Report to the
Court” regarding plaintiff's proffered witness, Dr.
Grauer, and newly discovered evidence which purportedly
impacted the extent of Dr. Grauer's testimony
(hereinafter the “Report”). [Doc.
#79]. In this Report, defendant represents that
it “recently discovered a prior lawsuit the plaintiff
was involved which establishes that the plaintiff suffered
from prior injuries to her back.” Id. at 3
(sic). Defendant continues: “This lawsuit as well as
the plaintiff's prior back injuries were never disclosed
to the defendant. Moreover the plaintiff denied, under oath
during her deposition, that she had filed a prior lawsuit or
suffered prior back injuries and the plaintiff's prior
back injuries and accidents were not disclosed to her
treating physicians, the most important being Dr.
Grauer.” [Doc. #79 at 3]. In light of this information,
defendant contended that Dr. Grauer's testimony, even as
a fact witness, was unreliable, and that, as will be
discussed further below, plaintiff would be unable to sustain
her burden of proving damages.
April 21, 2016, plaintiff filed a Motion for Permission to
attend the April 25, 2016, hearing by video conference. [Doc.
#76]. The Court scheduled a telephone conference for April
22, 2016, to address this motion and required both plaintiff
and her counsel participate in this telephonic conference.
[Doc. #78]. During this conference, plaintiff orally sought a
six month continuance of the May 12 and 13, 2016, trial
dates. [Doc. #83]. The Court granted this motion, in part,
and rescheduled the bench trial to August 9 and 10, 2016.
[Doc. ##84, 85]. At this time, the Court also addressed the
then-pending motions filed by Attorneys Lasala and Wynne, and
set a deadline of May 13, 2016, for plaintiff's
replacement counsel, or plaintiff appearing pro se, to file
an appearance. [Doc. #85]. The Court directed defendant to
file any motions relating to matters raised in its April 21,
2016, Report no later than May 20, 2015. [Doc. #85].
Plaintiff filed her pro se appearance on May 12, 2016. [Doc.
#93]. On that same date, defendant filed the motion for
sanctions now at issue. [Doc. #94].
pro se appearance was improperly faxed to the District of
Connecticut Clerk's office and filed on a State Superior
Court form. See Doc. #93. Accordingly, the Court entered an
Order directing plaintiff to re-file her appearance on the
proper form, a copy of which was provided in the docket.
[Doc. #95]. The Court further required plaintiff to
participate in electronic filing, and provided for her
completion a Consent to Electronic Notice by Pro Se Litigant.
Id. The Court scheduled yet another telephonic
conference for May 19, 2016, to address plaintiff's pro
se appearance in this matter. [Doc. ##95, 96].
the May 19, 2016, telephonic status conference, the Court
granted the Motions to Withdraw previously filed by Attorneys
Lasala and Wynne. [Doc. ##96, 100]. The Court additionally
entered a scheduling order requiring any amendments to the
Joint Trial Memorandum, in light of the newly discovered
evidence, to be filed on or before the close of business on
June 30, 2016. [Doc. #98]. During this conference, the Court
also advised plaintiff that her response to defendant's
motion for sanctions was due on or before June 2, 2016.
Plaintiff expressed her understanding.
24, 2016, plaintiff re-filed her Notice of Pro Se Appearance,
as well as a Motion to Participate in Electronic Filing, and
Consent to Electronic Notice. [Doc. ##101, 102, 103]. The
Court granted plaintiff's Motion to Participate in
Electronic Filing on May 25, 2016. [Doc. #104]. The
Clerk's Office provided plaintiff with the materials and
hyperlinks necessary to complete the online PACER training
program, the completion of which was a prerequisite to
plaintiff receiving an ECF login and password. See Doc. #106.
On June 10, 2016, the Court entered an order requiring
plaintiff to notify the Clerk's office that she had
completed the PACER training so that she could receive an ECF
login and password. Id. The Court also entered an
Order requiring plaintiff to file her response to
defendant's motion for sanctions forthwith, or risk
having the Court grant the motion, in whole or in part,
absent objection. [Doc. #107]. The Clerk's office
provided plaintiff with her ECF login and password on June
13, 2016. [Doc. #108]. The Court, having received no response
to the motion for sanctions, entered a second order providing
plaintiff with a final opportunity to oppose the motion for
sanctions, and set a June 15, 2016, response deadline.
accordance with this Order, on June 15, 2016, plaintiff filed
her Motion to Continue Proceedings, which the Court construes
as her response to the pending motion for sanctions. [Doc.
#109] . The motion for sanctions seeks dismissal of this
matter, with prejudice. [Doc. #94]. Alternatively, defendant
requests that the Court preclude plaintiff from introducing
any evidence of her alleged back injury. Id. The
Court will further address the contentions of the parties
seeks to impose sanctions under two different theories: under
the Court's inherent authority, and under Rule 37 of the
Federal Rules of Civil Procedure. The basis for
defendant's request is that counsel for defendant
“discovered new evidence that greatly impacted Dr.
Grauer's testimony as well as the overall merits of this
lawsuit.” [Doc. #94-1 at 4].“During the final
preparation for the plaintiff's cross examination for
trial, ” defense counsel discovered a summary judgment
ruling issued by District Judge Robert N. Chatigny, in a case
where plaintiff claimed she was denied a position as a City
of New Haven firefighter as a result of gender and race
discrimination. [Doc. #94-1 at 8]; see also Knox v. New
Haven, 357 F.Supp.2d 449 (D. Conn. 2005). Judge Chatigny
found the following facts established for purposes of summary
judgment: “Plaintiff was examined on February 25, 2002.
In connection with the examination, she reported that she had
injured her back in 1993 and again in 2000, and that she was
currently having back pain due to a bulging disc sustained in
a car accident.” Id. at 450. (internal
citation to record omitted). Defendant represents that these
prior back injuries are in the same location where plaintiff
claims to have injured herself in the present matter. [Doc.
#94-1]. The record supports this representation. Compare,
e.g., Doc. #94-6 (August 30, 2015, Dr. Grauer report noting,
inter alia: “no documentation of preexisting
condition”; degenerative changes and disc herniation at
L5-S1 of plaintiff's lumbar spine; and that “[b]y
histories provided and records reviewed, the onset of
symptoms are temporally linked to the injury in question
[i.e., the slip and fall at the VA]”), with Doc. #80-1
at 2, 6 (plaintiff's medical records noting that she
sustained a herniated disc in L5 as a result of the 1993 car
accident). Compare, e.g., Doc. #1 at ¶11(d) (Complaint
alleging plaintiff sustained a “sprain/strain of the
cervical spine” as a result of the slip and fall at the
VA), with Doc. #80-1 at 7 (plaintiff's medical records
noting assessment of “Cervical Sprain Strain” as
result of 2001 car accident). Accordingly, because
plaintiff's prior back injuries and prior lawsuit were
never disclosed, defendant now seeks the imposition of
sanctions, including dismissal. The Court turns first to
whether sanctions are warranted under the Court's
Sanctions Under the Court’s Inherent Authority
addition to seeking sanctions under Rule 37, defendant,
although not specifically referring to it as such, also seeks
to invoke the inherent authority of the Court to impose
sanctions on the theory that plaintiff has perpetrated a
“fraud on the Court[.]” [Doc. #94-1 at 14]. See
Jung v. Neschis, No. 01CV6993(RMB)(THK), 2009 WL
762835, at *13 (S.D.N.Y. Mar. 23, 2009) (“In the
instant situation, where Defendants contend that Plaintiffs
have committed fraud on the court by fabricating evidence and
making misrepresentations to the Court, it is the Court's
inherent authority that provides the primary basis on which
“Court has the inherent power to do whatever is
reasonably necessary to deter abuse of the judicial process
and assure a level playing field for all litigants.”
Shangold v. Walt Disney Co., No. 03CV9522(WHP), 2006
WL 71672, at *4 (S.D.N.Y. Jan. 12, 2006) (citing Chambers
v. NASCO, Inc., 501 U.S. 32, 44 (1991)). “Because
of their very potency, inherent powers must be exercised with
restraint and discretion.” Chambers, 501 U.S. at 44
(citing Roadway Express, Inc. v. Piper, 447 U.S.
752, 764 (1980)). “Sanctions for fraud are warranted if
it is established by clear and convincing evidence that [a
party] has sentiently set in motion some unconscionable
scheme calculated to interfere with the judicial system's
ability impartially to adjudicate the action.” N.Y.
Credit & Fin. Mgmt. Grp. v. Parson Ctr. Pharmacy,
Inc., 432 F. App'x 25 (2d Cir. 2011) (citation and
internal quotation marks omitted)(alteration modified); see
also Almeciga v. Ctr. for Investigative Reporting, Inc.,
No. 15CV4319(JSR), 2016 WL 2621131, at *17 (S.D.N.Y. May
6, 2016) (“[A]s a general matter, a court should not
impose sanctions on a party or attorney pursuant to its
inherent authority unless it finds, by clear and convincing
evidence, that the party or attorney knowingly submitted a
materially false or misleading pleading, or knowingly failed
to correct false statements, as part of a deliberate and
unconscionable scheme to interfere with the Court's
ability to adjudicate the case fairly.” (citation
essence of fraud on the court is when a party lies to the
court and his adversary intentionally, repeatedly, and about
issues that are central to the truth-finding process.”
Cent. N.Y. Laborers' Health & Welfare Fund v.
Fahs Constr. Grp., Inc., No. 5:13CV226, 2016 WL 1106445,
at *4 (N.D.N.Y. Mar. 21, 2016) (citation and internal
quotation marks omitted). “[T]he concept [of fraud upon
the court] should embrace only that species of fraud which
does or attempts to, defile the court itself, or is a fraud
perpetrated by officers of the court so that the judicial
machinery cannot perform in the usual manner its impartial
task of adjudging cases that are presented for
adjudication.” Kupferman v. Consol. Research & Mfg.
Corp., 459 F.2d 1072, 1078 (2d Cir. 1972) (citation and
internal quotation marks omitted) (alterations added).
contends that plaintiff perpetrated a fraud on the court by:
(1) providing false testimony at her deposition; (2) failing
to disclose her prior back injury throughout the course of
this litigation, including discovery; and (3) making false
representations about her injuries to United States
Magistrate Judge Donna F. Martinez during a settlement
conference. [Doc. #94-1 at 21-23]. Plaintiff responds:
I did not willfully or intentionally answer. I forgot about a
20-year old diagnosis that has not inhibited any part of my
life[.] I thought the question to be in direct relation to
the VA and injuries sustained there.
[Doc. #109 at 1]. Plaintiff continues:
Discovery abuse was unaware and unintentional by plaintiff.
Not disclosed by plaintiff's own previous counsel still
to date, discovered by defendant. ... Accurate, honest
testimony given by plaintiff of what was believed to be in
reference only to this case and issues of back injury or
lawsuits filed. Previous counsel never corrected or informed
plaintiff, questioning was generalized, not case or back
injury specific as she believed.
[Doc. #109-1 at 1 (sic)]. In reply, and for substantially the
same reasons set forth in their motion for sanctions,
defendant contends that plaintiff's arguments are without
merit. See generally Doc. #112. For the reasons articulated
below, the Court declines to dismiss this case under its
judicial system generally relies on litigants to tell the
truth and participate in discovery in good faith.”
McMunn v. Mem'l Sloan-Kettering Cancer Ctr., 191
F.Supp.2d 440, 445 (S.D.N.Y. 2002) (collecting cases).
“Thus, when a party lies to the court and his adversary
intentionally, repeatedly, and about issues that are central
to the truth-finding process, it can fairly be said that he
has forfeited his right to have his claim decided on the
merits.” Id. Here, although the Court has
concerns regarding the conduct of plaintiff and her former
attorneys, the record fails to reflect the “clear and
convincing evidence” necessary to support the dismissal
of this matter, with prejudice, under the Court's
initial matter, defendant alleges only one instance of
perjury committed by plaintiff. “Perjury 'is false
testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.'''
Radecki v. GlaxoSmithKline, 646 F.Supp.2d 310, 315
(D. Conn. 2009) (quoting U.S. v. Dunnigan, 507 U.S.
87, 94 (1993)), aff'd, 375 F.App'x 46 (2d Cir. 2010).
Plaintiff, now pro se, represents that her deposition
testimony was not made with the willful intent to provide
false testimony, but rather a result of impaired memory and
confusion. See generally Doc. #109 at 1; 109-1 at 1.
Defendant responds that plaintiff's deposition transcript
demonstrates plaintiff understood the questions posed to her.
[Doc. #112 at 7].
review of plaintiff's deposition transcript, the Court is
hard pressed to discern how plaintiff was confused by the
line of questioning posed by defense counsel with respect to
her prior injuries. For example, following defense
counsel's inquiry into plaintiff's Achilles injury,
the following exchange occurred:
Q: No other accidents? No other falls, car ...