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The Plaintiffs Make Three Different Claims Of Error That The Fraud Finding Was Not Supported

Extensive discovery was conducted by the defendants over many months. Andrew did not reveal, in response to questions fairly seeking this information, facts about his prior injuries and treatment--until the defense uncovered this information on its own. These included a rear-end automobile collision in 1982 in which Andrew suffered back injuries; a neck injury in 1995 leading to a diagnosis of nerve injury (neuropathy); and a 1996 slip and fall incident in an Orlando, Florida, hotel, resulting among other things in a diagnosis of Carpal-Tunnel syndrome.

The information was patently material. Various symptoms and conditions associated with Andrew's earlier injuries overlapped with those that he claimed had resulted from the more recent fall in Puerto Rico. This is obvious with respect to the Carpal-Tunnel syndrome but, in addition, the rear-end collision in 1982 was a possible source of some of the spinal damage, and nerve injury and sleep problems had been claimed as a result of one or both of the other two earlier accidents.

When taxed about these omissions, Andrew's position was that in the heat of his deposition he had not remembered any of these incidents or claims. As to their absence from interrogatory answers, Andrew said that defendants had not asked the right questions. The defendants moved for dismissal of the case on the ground that the litigation was being perpetrated through fraud.

In October 2002, the district court granted the motion and dismissed the case in a 23-page opinion and order, analyzing in detail Andrew's answers to interrogatories, deposition questions and in affidavit statements. The district judge concluded "by clear and convincing evidence" that Andrew had committed fraud, said that the proper remedy was a matter of discretion, and concluded that "weighing all of the circumstances in this case," dismissal was the proper sanction "commensurate with Mr. Hull's conduct" and to deter future misconduct.

On this appeal, the plaintiffs make three different claims of error: that the fraud finding was not supported by clear and convincing evidence; that dismissal was not an appropriate sanction; and that--independent of these arguments--dismissal of Patricia's claims for her own mental anguish and economic expense was not supported by any independent finding of fraud on her part. We reject the first two claims but conclude that a remand is required to determine whether Patricia's claims should be dismissed.

The first question is whether Andrew engaged in a pattern of deliberate deception in the course of discovery. It is common ground that clear and convincing evidence is required, Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989). On the other hand, the district court's findings as to whether Andrew dishonestly withheld information are reviewed only for "clear error." Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir. 2002). (The phrase "abuse of discretion" is sometimes used, e.g., Aoude, 892 F.2d at 1117-18, but the phrasing makes little difference.)

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