It’s the stuff of television shows.
In the middle of trial, a plaintiff (who is claiming his employment was terminated, among other reasons, in retaliation of his exercise of FMLA rights) drops a bombshell:
[In the prior October], I learned that I had — have stage III prostate cancer with a metastatic brain lesion."
While the cancer may have been known in the abstract, the "metastatic brain lesion" is not. The employer’s counsel moves for a mistrial and the court orders an immediate hearing (and disclosure of medical records) to receive some additional facts.
During the hearing, however, there’s another another unexpected development: The medical records show that the employee did not have (and never had) a metastatic brain lesion. Because the jury already heard the testimony, the court grants the request for a mistrial.
But the fireworks continue. Counsel for the employer says that a dismissal of the whole claim may be appropriate and asks the court to allow for some discovery.
And in a deposition, the plaintiff/employee discloses that some six months before trial, he knew that he definitely did not have a brain tumor.
Dismissal, according to a federal court decision released on Friday.
In Radecki v. GlaxoSmithKline (download here), the court concluded that the plaintiff committed perjury in his testimony and that because the perjury was so serious, dismissal was the only appropriate mechanism.
Having "concluded that the plaintiff willfully provided false testimony for the improper purpose of causing the jury to feel sympathy for him", the Court discussed how perjury during trial is "intolerable." Any sanction other than dismissal would give the appearance of the court’s tacit approval of such conduct:
To have the plaintiff in this case pay a monetary penalty and then return to court and present his case before a new jury would give the appearance of tolerating “a ‘flagrant affront’ to the truth-seeking function of adversary proceedings,”, even if (or perhaps especially if) the court allowed the defendant to use the plaintiff’s perjurious testimony from the first trial to attack his credibility. Therefore, the court concludes that the most appropriate sanction in this case is a sanction of dismissal with prejudice.
As the court noted, this situation is extraordinarily rare. Indeed, the Court struggled to find comparable cases from which to draw its conclusion. (For a case out of Ohio, check out this post by the Ohio Employer’s Law Blog.)
But the message the court sends through this case is anything but muddled: If you think real-life trials are just like television shows, where perjury is either condoned or is a plot device, think again.