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Florida Third DCA vacates trial court order which had set aside verdict for plaintiff in motor vehicle negligence case, finding that inconsistencies in plaintiff’s testimony did not rise to the level of fraud upon the court

On February 17, 2021, in Salazar v. Gomes, No. 3D19-1448, the Florida Third DCA vacated an order from the trial court which had set aside a jury verdict for the plaintiff in a motor vehicle negligence case. The trial court had set aside the jury verdict after concluding that the plaintiff had committed a fraud upon the court by perjuring himself regarding issues central to the case. During his deposition, the plaintiff disclosed that he had previously been involved in a minor fender bender in 2014 but that he did not sustain any injuries nor receive treatment following that accident. While he claimed that he had sustained injuries when competing for CrossFit and that he had received physical therapy for sports related muscle aches, at deposition he denied having been treated by an orthopedic surgeon. Records which defense counsel received a week before trial showed that the plaintiff had received pre-accident treatment for neck and back pain from an orthopedic surgeon. The plaintiff testified at trial that he may have misspoken regarding prior treatment by an orthopedic surgeon and maintained that his prior chiropractic treatment was related to fitness activities and not any accident. The Third DCA acknowledged that the plaintiff had given inconsistent testimony but pointed out that the facts were known to the defense before trial and the plaintiff was subject to cross-examination. The Third DCA further noted that the defense had made a tactical decision not to bring a motion to dismiss for fraud before trial and had instead chosen to present these issues to the jury and try to impeach the plaintiff. Quoting from a previous Third DCA decision in KMart Corp. v. Hayes, 707 So. 2d 957, 958 (Fla. 3d DCA 1998), the Court opined “that [the defendant’s strategy backfired neither requires not permits the court to allow [him] a new trial.” The Third DCA concluded: “while there may be inconsistencies or contradictions in the testimony, we find the record fails to demonstrate clearly and convincingly that Salazar engaged in a scheme designed to prevent the trier of fact from impartially adjudicating this matter through lies, misrepresentations and otherwise hiding the truth.”

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