The opinion of the court was delivered by: Vollmer, Senior District Judge.
3. Second Response, (doc. 1842 in Master File 1:94-5000-RV-C;
doc. 149 in Individual File No. 1:94-5026-RV-C),
filed by plaintiff Farmer;*fn3,*fn4
4. Reply, (doc. 1844 in Master File 1:94-5000-RV-C; doc. 151 in
Individual File No. 1:94-5026-RV-C), filed by
defendants WGN and Odom;*fn5
5. "Motion to Strike," (doc. 1841 in Master File 1:94-5000-RV-C;
in Individual File No. 1:94-5026-RV-C), filed by
6. Response to Motion to Strike, (doc. 1846 in Master File
RV-C; doc. 153 in Individual File No.
1:94-5026-RV-C), filed by defendants;*fn7
7. "Notice of Filing Affidavit," (doc. 1843 in Master File
RV-C; doc. 150 in Individual File No.
1:94-5026-RV-C), filed by plaintiff Farmer;*fn8 and
8. "Motion to Strike Affidavit of Barbara Braddock," (doc. 1845
Master File 1:94-5000-RV-C; doc. 152 in Individual
File No. 1:94-5026-RV-C), filed by defendants WGN and
I. The Casualty
In the early morning of September 22, 1993, certain barges in
the tow of the M/V MAUVILLA struck the railroad bridge over Bayou
Canot (the "Striking"). Defendant WGN owned and operated the M/V
MAUVILLA and the tow of barges that struck the bridge. Defendant
Odom was the person in charge of the M/V MAUVILLA at the time of
the Striking. The bridge and railroad tracks on the bridge were
owned by CSX Transportation, Inc.
The Striking displaced the bridge's through-plate girder span
and tracks in the westerly (upstream) direction such that the
east steel girder of the span was moved into the path of oncoming
Shortly after the Striking, the northbound Sunset Limited
(owned and operated by the National Railroad Passenger
Corporation (Amtrak)) struck the east girder of the Bayou Canot
bridge and derailed at approximately 2:53-2:54 a.m., CDT, on
September 22, 1993 (the "Casualty"). Neither Amtrak nor CSX
received any warning before the Casualty that the M/V MAUVILLA's
tow had struck and displaced the Bayou Canot bridge and tracks.
Traveling between 72-74 mph when the Casualty occurred, the
Sunset Limited was below the 79 mph speed limit for that class of
tracks and that type of train.
The train consisted of three locomotives, a baggage car, a crew
dormitory car, three passenger coaches, a lounge car, a diner
car, and a sleeper car. The locomotives, the baggage car, the
crew dormitory car, and two passenger cars derailed into the
water of Bayou Canot. One passenger coach, the lounge car, the
diner car, and the sleeper car remained on the Bayou Canot bridge
and railroad roadbed.
Approximately 50 persons died in the Casualty, some upon impact
and some by drowning. The Casualty was the deadliest accident in
According to the testimony of plaintiff Gary Farmer, the
assistant conductor, he and the conductor were completing
paperwork in the diner car located between the passenger cars and
the sleeper car at the time of the Casualty.
Plaintiff Farmer testified as to the extent of the impact, how
it affected him, how he gave orders to the conductor, and how he
(plaintiff Farmer) took charge of the entire rescue operation.
Plaintiff Farmer proceeded to participate in the rescue of the
Plaintiff Farmer seeks to recover damages for past and future
mental injuries only. The bulk of his alleged mental injuries
arise from Post-Traumatic Stress Disorder (PTSD); he alleges that
he is totally disabled by the PTSD he developed as a result of
II. The Motion to Dismiss
Defendants request that this action be dismissed with prejudice
due to fraud perpetrated by plaintiff Farmer on them and on the
court in this litigation. For the following reasons, the court is
of the opinion that the motion is due to be granted.
A. Plaintiff Farmer's Interrogatory Answers
On November 7, 1994, plaintiff Farmer gave the following
answers, under oath, to written interrogatories served on him by
8. Have you ever pleaded guilty to or been convicted
of any crime punishable by imprisonment in excess
of one year, or any crime involving dishonesty or
false statement? If so, please state:
(a) The nature of the offense.
(b) The date.
(c) The county and state in which you were tried.
(d) The sentence given you.
51. Have you ever applied for or drawn social
security benefits for disability? If so, state:
(a) The nature and extent of the disability;
(b) The length of time of such disability and the
53. Please state whether immediately before the
casualty you suffered from any physical aliments
or disability. If so, describe in detail each
such ailment or disability.
ANSWER: None, excellent health.
Mot. to Dis. Ex. 6 (emphasis added).
Also on November 7, 1994, plaintiff Farmer gave the following
oath, to written interrogatories served on him by co-defendants
Amtrak and CSX:
4. If you have ever been arrested for or convicted
of any misdemeanor or felony, state the date of the
arrest or conviction, the location of the arrest
or conviction, the case number of the action, the
charge or offense involved, the disposition of the
case, and the sentence served or fine paid, if any.
5. Describe in detail your medical history for the
past ten years, including but not limited to the
name, address and telephone number of each and
every physician, clinic of [sic] hospital or other
health care provider who has treated, examined or
cared for you, the approximate dates of that
treatment, the types of treatment provided, the
reasons for that treatment and the medicines
prescribed as part of that treatment.
ANSWER: In the past 10 years, I have enjoyed
excellent health with absolutely no medical
treatment other than the required company
physicals. Since the time of the derailment, I
have been continually treated for Post Traumatic
Stress Disorder by Dr. William Osborn at the
Sassafras Hill Counseling Center and by Dr. Gary D.
Carr at the Oak Grove Clinic in Hattiesburg,
Mot. to Dis. Ex. 6 (emphasis added).
Approximately ten months later, on August 23, 1995, plaintiff
Farmer supplemented his answers to defendant WGN's
38. State the name and address of each health care
professional (including hospital) who had
provided any examination, treatment or care to
you since 1990, stating the injury or condition
for which you were treated.
ANSWER: Dr. Mark S. Seigel, MD Springhill Memorial
Hospital 3719 Dauphin Street Mobile, AL 36608 Dr.
William T. Osborn Sassafras Hill Counseling Center,
Inc. 4824 Old Highway 11 Purvis, MS 39475-9339 Dr.
Gary D. Carr, MD Oak Grove Family Clinic 4902 Old
Highway 11 Hattiesburg, MS 39402
For ten years prior to the derailment in September
1993, the Plaintiff has enjoyed excellent health and
have [sic] not had any medical treatment or
examinations other than company physicals. On the
day of the accident, he was taken to the emergency
room of the Springhill Memorial Hospital. He was
having mild pain in the left side of his lower back
and low abdomen. He had some bumps on his shins. He
was discharged on the same day from the emergency
room. He has also been treated at the Oak Grove
Family Clinic in Hattiesburg, MS by Dr. Gary D. Carr.
Furthermore, he has been treated at the Sassafras
Hill Counseling Center, Inc. by Dr. William P.
Osborn. He has been diagnosed and currently being
treated for Post Traumatic Stress Disorder
Mot. to Dis. Ex. 7 (emphasis added).
As explained below, plaintiff Farmer's answers to the foregoing
interrogatories were false.
B. Plaintiff Farmer's Criminal History
As evidenced by the certified copies of records obtained from
various law enforcement agencies in Florida, plaintiff Farmer was
arrested/charged 23 times over a 6-year period (July 1982 - July
1988) for 41 crimes resulting in 20 convictions. Eight of the 20
convictions were felony convictions. As plaintiff Farmer now
served eighteen months of a 40-month sentence in a Florida
penitentiary for at least one of the convictions.
Plaintiff Farmer suggests that he had a "lapse of memory" when
he gave the false answers to the interrogatories. Such
explanation is incredulous, if only because of the sheer number
of felony convictions plaintiff Farmer amassed. However, the
suggestion that a person would forget that he had been confined
in a state penitentiary for 18 months is even more ludicrous.
C. Plaintiff Farmer's Health Prior to the Casualty and His
Application for Social Security Benefits
Not only were plaintiff Farmer's answers regarding his criminal
history perjurious, his statements that he had never applied for
social security benefits and that he had "enjoyed excellent
health" prior to the 1993 Casualty were also false.
As evidenced by the certified copies of the Social Security
Administration (SSA) documents submitted by defendants, plaintiff
Farmer applied for benefits in 1987, claiming that he was totally
disabled as a result of Post-Traumatic Stress Disorder. He
further stated in his Social Security benefits application that
he had suffered from PTSD for 11 years, beginning in 1976.
D. The False Answers Constituted Perjury and Fraud on
Defendants and the Court
For the foregoing reasons, the court concludes that plaintiff
Farmer knowingly gave false answers in his answers to
interrogatories propounded on him by the defendants in this
litigation and that such conduct constituted perjury as well as
fraud on the defendants and the court.
After more than six years of this litigation, plaintiff Farmer
served a second
supplemental answer to defendants' interrogatories. On July 26,
2000, plaintiff Farmer admitted for the first time that he had
pled guilty to a crime in 1985 or 1986 and that he had filed an
application for disability benefits in 1987. Plaintiff Farmer
also states in his supplemental answer that it appears that the
records of his criminal history no longer exist.
Plaintiff Farmer's attempt to remedy his previous false answers
falls so woefully short of the whole truth that the supplemental
answer constitutes another fraud on the defendants and the court.
Specifically, plaintiff Farmer has yet to acknowledge his entire
criminal record in this litigation, and were it not for the
thoroughness of defendants' trial preparation, the truth might
have never been brought to the attention of the court. Further,
although plaintiff represents that he was unable to locate any of
his criminal records, defendants have obtained 225 pages of his
records. Additionally, even though plaintiff Farmer finally
admitted that he had applied for SSA benefits, he still failed to
answer the interrogatory fully, for he failed to state the nature
and extent of his alleged disability and the period of time he
was so disabled. (Mot. to Dis. Ex. 12). Plaintiff Farmer has yet
to identify the psychiatrists and psychologists who diagnosed and
treated him during the eleven-year period he had PTSD. Moreover,
plaintiff Farmer changed his interrogatory answer regarding the
SSA application only after defendants served a copy of the SSA
records on his counsel. Finally, plaintiff Farmer served his
supplemental answer approximately one week prior to trial, with
no explanation why he had not done so much earlier during the
course of this 6½-year litigation. This left the defendants
virtually no opportunity to conduct any formal discovery on these
F. The False Supplemental Answer Constituted Perjury and Fraud
on Defendants and the Court
For the foregoing reasons, the court concludes that plaintiff
Farmer's supplemental answer to the interrogatories propounded on
him by defendants in this litigation was so knowingly incomplete
and misleading that it constituted perjury as well as fraud on
defendants and the court.
III. Plaintiff Farmer's Response to the Motion to Dismiss
Ninety-five percent of plaintiff Farmer's response to the
motion to dismiss consists of picayune and inconsequential
arguments. The lack of any substantive response on the merits by
plaintiff Farmer underscores the legitimacy of defendants' motion
A. Plaintiff Farmer's Criminal History
1. Arrests v. Charges
First, plaintiff Farmer accuses defendants of "exaggerating the
truth" by representing to the court that plaintiff Farmer was
arrested on "23 different occasions." In fact, plaintiff Farmer
contends, he was only "`arrested' three, possibly five total
times," and that he was "charged" with the other crimes "[w]hile
in jail on these [3-5] arrests." (Resp., p. 2).
There is no dispute that plaintiff Farmer was either "arrested"
or "charged" on 23 occasions. See Mot. to Dis. Ex. 1. This red
herring argument over terminology does not alter the fact that
plaintiff was formally charged by the State of Florida with 41
felonies and misdemeanors on 23 occasions — and it does not alter
the fact that plaintiff Farmer knowingly failed to disclose his
admitted "3-5" arrests in his answers to defendants'
much less disclose his admitted 23 "charges" in his answers to
Interrogatory No. 4 propounded by co-defendants Amtrak and CSX
(which specifically inquired about "the charge or offense
involved" in each "arrest."). (Mot. to Dis. Ex. 6).*fn13
2. When Did Defendants Learn of Plaintiff Farmer's Criminal
Record and What was Their Motivation With Respect to Timing?
Plaintiff Farmer's second argument is really no argument at
all, but rather an attack on defense counsel's integrity offered
in an apparent attempt to divert the court's attention from the
bona fide perjury and fraud issues at hand. Specifically,
plaintiff Farmer makes much ado about defendants' representations
regarding the date(s) they discovered plaintiff Farmer's criminal
past, and he further challenges defendants' motives behind the
timing of their motion to dismiss.
Plaintiff Farmer accuses defense counsel of misleading, if not
outright lying, to the court about the date counsel obtained all
225 pages of plaintiff's criminal record. As plaintiff Farmer
point out, some of those records bear an April 2000
certification, some bear an August 2000 certification, and some
bear both April and August certifications. From this, plaintiff
Farmer draws the conclusion that defense counsel actually had all
of the documents in April 2000, but had them certified in August
2000 in an effort to mislead the court into believing that
defense counsel only learned of plaintiff's criminal history
shortly before the August trial date.
As defense counsel explain more fully in the reply, they first
learned in February 2000 that plaintiff Farmer had a criminal
conviction in Florida. At that time, they instructed their
private investigator to continue his search. Because the
investigator had to search by county, the search continued over
the course of several weeks. Given that the investigator had to
search records in multiple jurisdictions covering a substantial
period of time, it is no surprise that the search lasted several
weeks. At counsel's request, the investigator was instructed to
obtain certified copies in April 2000 for use at trial in June
2000, and to continue his search for additional records. After
the court postponed plaintiff Farmer's trial until August 2000
(for reasons unrelated to the issues addressed in this order),
defense counsel instructed the investigator to obtain more recent
certifications on the records previously certified, and to obtain
certified copies of any records not previously certified. As a
result, "[t]he investigator obtained new certifications on some
of those records, had others re-certified on the same page
showing both the April and the August certifications and was
unable to have some records re-certified at all." (Reply, p. 5).
Upon receiving the complete set of documents on August 3, 2000,
defendants immediately forwarded a copied set to plaintiff's
counsel. The court finds no fault in defendants' handling of this
matter and concludes that defense counsel did not mislead or
attempt to mislead it as to the date(s) they learned of
plaintiff's 41 crimes and 20 convictions.
Plaintiff Farmer also questions defense counsel's motive for
presenting this information via a motion to dismiss rather than
"springing it" on plaintiff during cross-examination at trial.
The court finds no fault in defendants' decision to present their
evidence of plaintiff Farmer's fraud on them and on the court by
way of sealed motion rather than through cross-examination in the
joint trial of
plaintiff Farmer and plaintiff Dwight Thompson as originally
scheduled. Given the various ways defense counsel could have
handled this sensitive and volatile matter, it is clear that they
chose the high road, electing to inform the court of plaintiff
Farmer's perjurious conduct in a sealed motion, supported with
all of the necessary documentation. One of the many benefits of
this chosen course was the avoidance of so tainting the trial of
co-plaintiff Dwight Thompson that a mistrial would have had to be
3. Defendants' Lost Discovery Opportunities
Plaintiff Farmer also faults defendants for pointing out that
they have not had the opportunity to depose him regarding his
criminal history; he implies that defense counsel should have
questioned plaintiff about his arrest and conviction record
during his deposition, notwithstanding his false interrogatory
answers that he had no such record. The court disagrees. A party
is entitled to rely on an opposing party's written responses to
interrogatory questions; he/she/it is not required to ask a
party-deponent every question in his/her deposition that the
party had previously answered in the set of interrogatories.
Indeed, such a practice would render the interrogatories
superfluous and unnecessarily increase the expense of a
deposition. Defendants are not to be penalized for accepting as
true plaintiff Farmer's answers to the interrogatories — answers
which were made under oath and were plainly responsive. Because
of plaintiff Farmer's perjurious answers, defendants were
deceived into believing that there was no reason for them to ask
him questions about a criminal record during his deposition; his
own conduct effectively took away defendants' opportunity to
depose him on those issues.*fn15
Plaintiff Farmer's failure to disclose timely and completely
his criminal record has other, critical ramifications in this
action. Plaintiff Farmer's treating psychologist, Dr. William
Osborn, testified in his deposition (video-taped for the June
2000 trial on April 18, 2000) that a diagnosis of post traumatic
stress disorder was very subjective as its symptoms are elastic
and vary from individual to individual. Dr. Osborn further
testified that one symptom of plaintiff Farmer's PTSD is his
inability to manage his own finances, forcing his mother to take
over that aspect of his life following the September 1993
Casualty. According to Dr. Osborn, plaintiff Farmer's inability
to retain gainful employment is due in part to this one symptom
of his PTSD.
Because plaintiff Farmer knowingly failed to disclose his
previous criminal history
— the vast majority, if not all, of which was for writing bad
checks — the defendants were not able to cross-examine Dr. Osborn
on the effect on his PTSD diagnosis the fact that plaintiff
Farmer had demonstrated an inability to manage his own finances
for nearly a decade prior to the Casualty. As defendants note,
"Farmer's deliberate and intentional concealment of his obvious
inability to handle his personal finances long before the 1993
derailment has denied [defendants] of [their] right to conduct
full discovery and have honest and complete information from an
opposing party during the course of discovery." (Mot. to Dis., p.
5). Additionally, as evidence by the doctor's notes and records,
plaintiff Farmer told Dr. Osborn that he had no history of mental
illness or emotional problems. Because defendants did not learn
of plaintiff Farmer's SSA application and his claim that he had
been totally disabled for 11 years due to PTSD until after Dr.
Osborn's video-taped deposition, defendants were denied the
opportunity to cross-examine Dr. Osborn on the effect of that
information on his diagnosis and treatment. Finally, plaintiff
Farmer's false representation that he had no history of mental
problems was a major factor (if not the factor) in the
defendants' decision not to retain a psychiatric expert by which
to challenge plaintiff's PTSD claims.
B. Plaintiff Farmer's Social Security Benefits Application
1. Evidentiary Challenges
Plaintiff Farmer contends that the statements in his benefits
application are hearsay and further states that he only applied
for the benefits because he "was desolate and in need of public
assistance," having just been released from the "work center"
following his 18-month stint in the penitentiary. He also
suggests that it was the SSA case worker, not he, who identified
his purported disability on the application form as PTSD.
These contentions are meritless and/or irrelevant. First, the
SSA application — which plaintiff Farmer undisputedly
signed — clearly warns the applicant that "anyone who knowingly
misrepresents the truth or arranges for someone to knowingly
misrepresent the truth is committing a crime which can be
punished under Federal law, State law, or both." Additionally, on
the first page of the application is the following statement
which is adopted by the applicant upon signing: "Everything on
this application is the truth as best I/we know it." Moreover,
the application contains the following question (located directly
above the applicant's signature) which plaintiff Farmer
specifically answered in the affirmative: "Do you affirm that all
information you have given on this application is true?" (Mot. to
Dis. Ex. 3). Thus, whether plaintiff Farmer wrote "Post Traumatic
Stress Disorder" as his disability on the application or whether
a case-worker wrote it in on the form, Mr. Farmer plainly adopted
it as his own answer.*fn16 As such, it is clearly an admission
by a party admissible under Federal Rules of Evidence 801(d)(2)
and 803(1) & (3). The records themselves are admissible under
Rule 803(6) & (8).
Second, whether any of these documents are admissible at trial
and what plaintiff Farmer's motivation was for seeking disability
benefits in 1987 is simply irrelevant to the court's inquiry. The
question is whether plaintiff Farmer's negative answers to the
interrogatory questions regarding application for Social Security
benefits were perjurious. Without question,
plaintiff Farmer's answers to those interrogatory questions were
false, and he knew of the falsity when he gave those answers.
2. Dan Kibodeaux's Affidavit and Statement
In support of their motion to dismiss, defendants submitted the
affidavit of Dan Kibodeaux, the Assistant District Manager in the
office of the Social Security Administration in Hattiesburg,
Mississippi, in which he states that the SSA "was unable to
locate the medical records portion of Mr. Farmer's file." (Mot.
to Dis. Ex. 14). Mr. Kibodeaux also states that after a second
request for the medical records portion, the Hattiesburg office
was informed by another part of the SSA that the records had been
destroyed. Finally, Mr. Kibodeaux states: "If a request had been
made for Mr. Farmer's file in late 1995 or early 1996, it is
likely that the medical records portion of the file would not
have been destroyed and those records would be available for
Mr. Kibodeaux's affidavit was drafted by one of the defense
attorneys following their telephone conversation(s) regarding
plaintiff Farmer's file. Counsel mailed the affidavit to Mr.
Kibodeaux, who executed it and returned it without making any
changes or expressing any reservations to defense counsel about
Counsel for plaintiff Farmer subsequently met with Mr.
Kibodeaux in person and took his sworn statement for purposes of
responding to the motion to dismiss.
a. Lost or Destroyed?
In his statement, Mr. Kibodeaux clarified his affidavit
representation regarding the second search, saying that the
Baltimore office of the SSA reported that the medical records
portion of the file had been either destroyed or lost. Based on
this clarification, plaintiff's counsel accuses defense counsel
of knowingly drafting an affidavit containing a false statement
(i.e., stating that the medical records portion was destroyed
without mentioning the possibility that it was lost).
The distinction plaintiff Farmer draws is one without a
difference, for it makes no difference whether the medical
records portion was lost or destroyed — either way, it is equally
unavailable for defendants to examine. Plaintiff's counsel's
accusation that defense counsel suborned perjury on this matter
is totally unfounded.
b. Was There Ever a Medical Records Portion in Plaintiff
Farmer's SSA File? and SSA's Records Retention Policy
Plaintiff's counsel again accuses defense counsel of
"subourning [sic] false and misleading testimony," (Resp. p. 9),
by not including in Mr. Kibodeaux' affidavit (1) the fact that he
had no personal knowledge of whether a medical records portion
ever existed as part of plaintiff Farmer's SSA file (Resp.Ex. 3,
pp. 26-27) and (2) the fact that the SSA's record retention
policy permits a file regarding disability benefits to be
destroyed after five years (beginning from the date of the
(1). Mr. Kibodeaux's Lack of Personal Knowledge of the Medical
Records Portion of Plaintiff Farmer's SSA File
Mr. Kibodeaux's affidavit is not misleading as to whether he
had personal knowledge of the medical records in plaintiff
Farmer's SSA file; it is clear that he did not. Plaintiff's
counsel takes Mr. Kibodeaux's lack of personal knowledge a step
further and suggests that there might not have ever been a
medical records portion. (Resp. p. 14 — "[T]he only thing clear
is that . . . no one can state more likely than not that there
were any medical records
contained in this file that can no longer be produced."). This
suggestion is fully rebutted by Mr. Kibodeaux's statement taken
by plaintiff's counsel, as well as by the SSA documents. Mr.
Kibodeaux testified that a SSA disability benefits decision would
be based on the medical records obtained from the applicant and
the medical sources identified by the applicant. (Resp., Ex. 3,
p. 19). If those medical records were not available or were
insufficient, the SSA would send the applicant to "an outside
physician for an examination." Thus, the SSA would either obtain
medical records already existing based on previous examinations
by the applicant's treating physicians or obtain medical records
by having an outside physician create them based on an
examination given for the purpose of the benefits determination.
Whichever is the case, it is clear from Mr. Kibodeaux's statement
that the SSA considers medical records when it makes its
decision; conversely, the agency does not make a benefits
decision without supporting medical records.
Additionally, two items of information in plaintiff Farmer's
SSA documents indicate that medical records were actually
considered in his case. The "Disability Determination and
Transmittal" form (Form SSA-831-U5) (Mot. to Dis., Ex. 3, p. 6)
was signed off by Steven D. Dobbs, who, according to Mr.
Kibodeaux, is a clinical psychologist. First, if there were no
medical records under consideration, review of the SSA
application by a clinical psychologist would not be necessary.
Second, the DDT form shows that plaintiff Farmer was diagnosed as
having a specific mental disorder.*fn17 This is clearly a
medical diagnosis for which medical records would have been
generated. Third, according to Mr. Kibodeaux, plaintiff Farmer's
application was denied even though he was diagnosed with this
mental disorder because it was determined that the illness would
not disable plaintiff for the twelve month minimum required to
qualify for benefits. Again, such a determination must have been
made by a psychologist or psychiatrist with medical records
having been generated in the process. For the foregoing reasons,
the court concludes that there was a medical records portion in
plaintiff Farmer's SSA file that is now unavailable for discovery
in this litigation.
(2). SSA's Records Retention Policy
Plaintiff's counsel also takes defense counsel to task for Mr.
Kibodeaux's affidavit representation that it was likely the
medical records portions would have been available for review in
late 1995 or early 1996. As grounds, plaintiff Farmer notes that
the SSA record retention policy for denied disability claims is
five years from the date of the denial. Because plaintiff
Farmer's SSA application was denied on January 21, 1988, the last
date the records were required to be retained was January 21,
1993 — seven months before the Casualty.
The record does not contain any evidence as to how quickly the
SSA destroys records once the applicable retention period has
run, and the agency apparently keeps no record of the date it
destroys a record. For that reason, the court cannot determine
with certainty if the medical records portion of plaintiff
Farmer's SSA application would have been available for discovery
had he been truthful in his interrogatory answers in 1994. But of
this the court is certain: plaintiff Farmer has still failed to
identify to defendants any of the psychiatrists or psychologists
who diagnosed and/or treated him during the 11-year period he
suffered from PTSD, and he has still failed to identify to
defendants the psychiatrist or psychologist who diagnosed
him with the specific mental disorder identified by the SSA on
the DDT as its "primary diagnosis." It is uniquely within
plaintiff Farmer's ability to identify to defendants the
diagnosing and/or treating doctors upon whose medical records the
SSA relied when it made its benefits decision, yet he continues
to withhold that information, hiding instead behind the argument
that "no one from the Social Security office can testify that
more likely than not had a request been made in late 1995 or
early 1996, that the medical records portion of this file would
not have been destroyed and those records would have been
available for review." (Resp. p. 14).*fn18 Without knowing how
quickly the SSA destroys records in 1993 after the retention
period expires, it is reasonable to conclude that the medical
records portion was more likely to exist in late 1995 or early
1996 than in mid-2000. In any event, plaintiff Farmer's conduct
created the impossibility of knowing if the documents still
existed in late 1995 or early 1996.
c. Whether the Defendants' Certified Copy of Plaintiff
Farmer's SSA File is Complete
When plaintiff's counsel took Mr. Kibodeaux' statement, Mr.
Kibodeaux produced four documents from plaintiff Farmer's SSA
file which had not been included in the copy of his SSA file
submitted by defendants in support of their motion to dismiss.
From this, plaintiff's counsel attributes to defense counsel an
intent to mislead the court. This argument merits little
First, the set of documents from plaintiff Farmer's SSA file
submitted by defendants was certified by SSA Claims Development
Clerk Shelly Bowman and identified by her as true and correct
copies of the original record. (Mot. to Dis. Ex. 3). This
certification was authenticated by Mr. Kibodeaux. Id. If the
set is in fact incomplete, it is not the fault — much less the
unethical design — of defense counsel.
Second, the court has reviewed the four documents which Mr.
Kibodeaux now states are part of plaintiff Farmer's SSA file
which were not included in the set certified by Ms. Bowman.
(Resp.Ex. 3, Depo.Ex. 4). These documents contain no information
that is material to the issues before the court.*fn19,*fn20
IV. Legal Analysis
A. Authority to Impose Sanctions
There is no question but that the court has the authority to
impose sanctions, including dismissal of a case based on
plaintiff's abuse of the judicial process.
It is well established that the district court has
the authority to dismiss or to enter default
judgment, depending on which party is at fault, for
failure to prosecute with reasonable diligence or to
comply with its orders or rules of procedure.
While the authority is reiterated in some of the
Federal Rules of Civil Procedure for particular
situations, the power is one inherent in the courts
"in the interest of the orderly administration of
justice." It may be exercised sua sponte under proper
circumstances. The exercise of the authority is
discretionary, and is subject to review for abuse of
discretion. Dismissal of an action with prejudice and
entry of judgment by default are drastic remedies
which should be used only in extreme situations, as
the court has a wide range of lesser sanctions.
Flaksa v. Little River Marine Construction Co.,
887-88 (5th Cir.), cert. denied,
20 L.Ed.2d 1387 (1968) (footnotes and citations omitted).
Donaldson v. Clark,
, 1557 n. 6 (11th Cir. 1987).
Beck v. Bassett, (In re Southeast Banking Corp.),
, 1335 (11th Cir. 2000) (first and second brackets added).
Although plaintiff Farmer's perjurious interrogatory answers
are likely covered by Rule 11,*fn23 his failure to supplement
those answers with truthful, complete answers violates
Rule 26(e); therefore, Rule 11 is insufficient to sanction plaintiff
Farmer for all of his conduct. Additionally, plaintiff Farmer's
acts do not nicely fall within Rule 37's ambit of sanctionable
conduct because his perjury was not done directly in violation of
a court order regarding discovery; therefore, Rule 37 is
insufficient to sanction plaintiff Farmer for all of his conduct.
For similar reasons, it appears that Rule 41(b) does not cover
the situation before the court and is, therefore, an insufficient
sanction mechanism. Title 28 U.S.C. § 1927 (governing counsel's
liability for excessive costs) is inapplicable. Accordingly, the
court concludes that its authority to impose sanctions in this
case falls within the court's "inherent power to protect the
orderly administration of justice and to preserve the dignity of
the tribunal," Kleiner v. First National Bank of Atlanta,
751 F.2d 1193, 1209 (11th Cir. 1985) (citing Roadway Express, Inc.
v. Piper, 447 U.S. 752, 764-65, 100 S.Ct. 2455, 2463, 65 L.Ed.2d
488 (1980)), for "[a]t the very least, the inherent power . . .
exist[s] to fill in the interstices [between the other
sanctioning mechanisms]." Chambers v. NASCO, Inc., 501 U.S. at
46, 111 S.Ct. at 2134.*fn24
B. Factors Considered
1. Prejudice to Defendants WGN and Odom
Without question, defendants have been prejudiced by the
multiple instances of perjury committed by plaintiff Farmer and
his continued failure to answer those interrogatories completely.
Defendants relied, to their detriment, on plaintiff Farmer's
interrogatory answers that he had been in excellent health prior
to the Casualty and that, concomitantly, he had never filed a
claim for Social Security benefits. Defendants' decision not to
retain an psychiatric expert to challenge the conclusion of
plaintiff's expert that Mr. Farmer was totally disabled by the
PTSD caused by the Casualty was based in large measure, if not
entirely, on his false representations regarding his health.
Plaintiff Farmer's failure to disclose his numerous criminal
convictions for bad checks also prejudiced defendants in that
they were unable to challenge plaintiff's treating psychologist's
reliance on plaintiff's inability to handle his financial affairs
as a symptom of his alleged PTSD. Defendants were also unable to
cross-examine plaintiff Farmer's expert on how his diagnosis
would have been affected by the knowledge that plaintiff had lied
to him about his mental health history; that plaintiff had
suffered from PTSD since 1976; and that the SSA had determined
that he had another psychological disorder in 1987. Plaintiff's
expert's deposition was video-taped for trial shortly before
defendants obtained the SSA records. Moreover, plaintiff's
perjurious conduct continued for approximately six years. Indeed,
as noted above, plaintiff Farmer has yet "to come clean" with
respect to his false interrogatory answers. Defendants have
surely been prejudiced by such conduct in that they have not been
allowed to defend this action on a level playing field.
2. Interference With the Judicial Process