Garcia v. Berkshire Life Ins. Co., et al, No. 08-1022 (10th Cir. 2009)

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FILED United States Court of Appeals Tenth Circuit June 10, 2009 PUBLISH Elisabeth A. Shumaker Clerk of Court U N IT E D STA T E S C O U R T O F A PPE A L S T E N T H C IR C U IT TINA GARCIA , Plaintiff-Appellant , v. No. 08-1022 BERKSHIRE LIFE INSURANCE COM PANY OF AM ERICA, a wholly owned subsidiary of The Guardian Life Insurance Com pany of Am erica, and THE GUARDIAN LIFE INSURANCE COM PANY OF AM ERICA, a foreign insurance com pany , Defendants-Appellees . A PPE A L FR O M T H E U N IT E D ST A T E S D IST R IC T C O U R T FO R T H E D IST R IC T O F C O L O R A D O (D .C . N O . 1:04-C V -01619-LT B -BN B ) Bennett Cohen, Polsinelli, Shughart P.C., Denver, Colorado (Jon Hertzog, Attorney at Law, Colorado Springs, Colorado and Jeff Nobel, Attorney at Law, Denver, Colorado, with him on the briefs) for Plaintiff-Appellant . Rachel A. Yates, Holland & Hart, LLP, Greenwood Village, Colorado (M ichael S. Beaver, Holland & Hart, LLP, Greenwood Village, Colorado and M arcy G. Glenn, Holland & Hart, LLP, Denver, Colorado, with her on the briefs) for DefendantsAppellees . Before O B R IE N , A N D E R SO N and M cC O N N E L L , Circuit Judges. M cC O N N E L L, Circuit Judge. In 2004, Tina Garcia filed this action against her insurer, seeking paym ent of benefits under a disability policy. Over the course of the litigation, the district court concluded that M s. Garcia willfully, knowingly, [and] intentionally fabricated a num ber of discovery docum ents in an effort to win her case. M ag. Op. 15; Dist. Ct. Op. 12 14. As a result, in addition to granting Berkshire s m otion for sum m ary judgm ent on the m erits, the district court separately and independently dism issed the action as a sanction for M s. Garcia s abusive litigation practices. Because we conclude that the district court did not abuse its discretion by dism issing M s. Garcia s action as a sanction for her im proper actions, we affirm its judgm ent without reaching the m erits of her claim s. I. Background In 1991, M s. Garcia purchased a disability policy from Berkshire, under which she would receive benefits if due to injury or sickness [she was] unable to perform the material and substantial duties of [her own] occupation, and she was not engaged in any occupation in which [she] m ight reasonably be expected to engage with due regard for [her] education, training, experience, and prior econom ic status. Aple. Supp. App. 305. At the tim e that she purchased the policy, M s. Garcia was the CEO of a real estate com pany called Special Properties, Inc. ( SPI ), which held a contract with -2- the United States Departm ent of Housing and Urban Developm ent ( HUD ). In 1998, HUD undertook a crim inal investigation of SPI and term inated its contract after finding billing irregularities and fraudulent invoices. The following year, SPI sued HUD in a m atter ultim ately dism issed without prejudice by stipulation of both parties. At around this tim e, M s. Garcia first filed for benefits under her policy, claim ing that she was suffering from post-traum atic stress disorder and a chronic sleep disorder. She later argued that her disability was aggravated by two subsequent developm ents. First, the psychiatrist treating M s. Garcia adm itted to having sex with her. Second, M s. Garcia suffered m ultiple injuries from a rearend m otor vehicle collision in Septem ber 2002. This accident allegedly resulted in cognitive im pairm ent. Berkshire eventually paid full benefits on M s. Garcia s claim through August 6, 2003, under a reservation of rights until its investigation of her claim could be com pleted. As of that date, however, Berkshire suspended payment of benefits, contending that M s. Garcia had failed to com ply with certain provisions of her policy requiring her to establish proof of her loss. See Aple. Supp. App. 281. Although Berkshire ultim ately approved M s. Garcia s claim for total disability benefits as of February 1, 2007, it refused to pay benefits for the period between August 2003 and February 2007, prim arily because of M s. Garcia s alleged failure to com ply with critical policy provisions. Am ongst other -3- deficiencies, Berkshire claim ed that M s. Garcia had failed to subm it to an independent m edical exam ination until 2007, and withheld the authorization Berkshire required in order to get access to her medical records. See id. at 281 82. These omissions were important because Berkshire questioned the legitim acy of M s. Garcia s disability claim before 2007. In particular, it noted that during the period before 2007 in which M s. Garcia had claim ed to be totally disabled due to cognitive defects, M s. Garcia had obtained a Juris Doctor degree from the University of Denver College of Law, where she was nam ed an Outstanding Law Graduate, and subsequently com pleted a M asters program . M oreover, Berkshire noted that it appeared that M s. Garcia had operated a real estate business during 2002, three years after the tim e she had first claim ed total disability. Berkshire concluded that because of M s. Garcia s alleged failure to com ply with Berkshire s requests for an independent m edical exam ination and access to m edical records during the 2003 2007 period, it could not m eaningfully evaluate whether M s. Garcia had been totally disabled within the m eaning of the policy during that tim e. After the dispute proceeded to litigation, both sides filed m otions for sum m ary judgm ent on the m erits. In addition, Berkshire later filed a M otion for Sanctions, asserting that M s. Garcia falsified or fabricated at least four docum ents subm itted during discovery. The m agistrate judge held a hearing on Berkshire s -4- M otion for Sanctions on November 14, 2007, at which M s. Garcia testified concerning each of the allegedly fabricated docum ents. The m agistrate judge found M s. Garcia s testim ony at the Sanctions hearing to be incredible, and refuse[d] to rely on any of it. Id. at 4. See also M ag. Op. 13 (stating that plaintiff s willingness to lie knows no bounds ). The m agistrate judge concluded that M s. Garcia prepared fabricated evidence willfully, knowingly, intentionally, after careful contem plation, for self-serving purposes, and with a full understanding of the im propriety involved. Id. at 15. The m agistrate judge noted that at least two of the falsified docum ents were directly related to M s. Garcia s claim s. First, M s. Garcia subm itted a letter, purportedly written by Earl Schoenborn, a former Berkshire claim s adjuster, that appeared to be a sm oking gun in support of her claim s. In the letter, M r. Schoenborn is alleged to have written: I left [Berkshire] after Berkshire refused to honor disability claim s of several fem ale policy holders. I was distressed and told [M s. Garcia] so, to witness Berkshire s denial of legitim ate claim s of disabled and dying women clients. I can testify based on personal knowledge that Berkshire used unfair business practices contrary to policy provisions in order to delay or deny paym ent of valid claim s. Berkshire s tactics include stall and starve , delay pay (on the courthouse steps) and m anipulate claim ant s attorney to advocate taking a settlem ent paying back benefit and lawyers without recovery for the financial dam ages. Id. at 9. The letter went on to suggest that M r. Schoenborn had contacted a current Berkshire em ployee and learned that Berkshire s only defense was not a -5- real defense under the policy. Id. at 9 10. But M r. Schoenborn repudiated the letter in full, stating that he [a]bsolutely, completely, definitively, totally . . did not write that letter, and that the letter contains false statem ents that [he did] not agree with and which should not be attributable [to him ]. Id. at 10. Likewise, the magistrate judge found that M s. Garcia fabricated a docum ent allegedly prepared by Patrick Renfro, M s. Garcia s vocational rehabilitation expert, and subm itted to the Colorado Board of Law Exam iners ( CBLE ) in support of M s. Garcia s application for special accom m odation (double tim e) when taking the bar exam . W hile M r. Renfro s actual report described M s. Garcia s sym ptom s as occurring secondary to a mild to m oderate head injury or a post-concussive syndrom e as well as stress, depression, chronic pain, and possible iatrogenic (m edication) effects, the report M s. Garcia subm itted to CBLE and the district court om itted the italicized words m aking her head injury appear m ore severe and m inim izing the extent to which depression caused M s. Garcia s sym ptom s. R. Vol. IV, Doc. 196, at 4 5. In addition, the subm itted report was doctored to explicitly suggest that M s. Garcia required double tim e for her Bar Exam when M r. Renfro had m ade no such recom m endation. He too repudiated the report attributed to him , testifying that he had absolutely no knowledge of this report in any way, shape, or form . M ag. Op. at 6. The m agistrate judge also found that M s. Garcia forged two additional docum ents: (1) a letter by Dr. Robert Kooken, M s. Garcia s neuropsychologist, in -6- which he had supposedly indicated that it was m edically necessary that she be treated by another psychiatrist; and (2) an em ail string purportedly between M s. Garcia and Gene Lupia, a form er professional colleague, which M s. Garcia subm itted to the m agistrate judge when attem pting to justify why attorney fees should not be assessed against her. Although the m agistrate judge recognized that these latter two fabrications were less directly relevant to M s. Garcia s claim s at trial, he noted that they still bore on M s. Garcia s credibility and raised substantial doubt . . . as to the authenticity of any docum ent relating to this case. Id. at 13 14. The m agistrate judge ultim ately concluded that this was an especially egregious case, finding that [t]he fabrications were prepared over a period of years and are calculating, carefully constructed, and self-serving. Id. at 14. He recom m ended that Berkshire s M otion for Sanctions be granted and that M s. Garcia s claim s be dism issed with prejudice. Id. at 19. The district court conclude[d] that the M agistrate Judge s recom m endation is correct in all respects. Dist. Ct. Op. 12. Upon de novo review of the record, it agreed that the m agistrate judge s findings of fact were, at m inim um , supported by clear and convincing evidence. Id. at 13. As a result, the court granted Berkshire s m otion for sanctions. Separately, the district court granted Berkshire s m otion for sum m ary judgm ent on the m erits, largely prem ised on the conclusion that M s. Garcia did not com ply with the proof of loss requirem ents in her policy, and that -7- therefore Berkshire did not breach the insurance policy as a m atter of law. Id. at 8 9. M s. Garcia appealed. II. T he D istrict C ourt s D ism issal of M s. G arcia s C laim as a Sanction A district court has inherent equitable powers to impose the sanction of dismissal with prejudice because of abusive litigation practices during discovery. See TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915 (9th Cir. 1987); cf. Archibeque v. Atchison, Topeka & Santa Fe Ry. Co., 70 F.3d 1172, 1174 (10th Cir. 1995); Fed. R. Civ. P. 37(b)(2)(A). Because of the harshness of dismissal, however, due process requires that the violation be predicated upon willfulness, bad faith, or [some] fault of petitioner rather than inability to comply. Archibeque, 70 F.3d at 1174 (internal quotation omitted). W hile recognizing that there is no rigid test for determining when such a sanction is appropriate, we have suggested that a district court ought to evaluate five factors before imposing a dismissal sanction: (1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for non-compliance; and (5) the efficacy of lesser sanctions. See Ehrenhaus v. Reynolds, 965 F.2d 916, 920 21 (10th Cir. 1992). W e review a district court s decision to impose such a sanction for abuse of discretion. See Archibeque, 70 F.3d at 1174. -8- The district court concluded that almost all of these factors counseled in favor of the sanction of dismissal with prejudice. 1 The court first determined that the prejudice to Berkshire was overwhelming because it had been forced to defend a lawsuit pervaded by false evidence. As the court noted, [t]he defendants have been put to enormous additional effort and expense to ferret out plaintiff s lies and to double check every piece of information. M ag. Op. 16. The court further concluded that it had absolutely no confidence that [M s. Garcia] would not attempt to offer additional false evidence at a trial. Id. The court next found that M s. Garcia had interfered egregiously with the court s administration of justice and that M s. Garcia was culpable for the fabrications. See id. at 17 18. Specifically, the court determined that M s. Garcia acted willfully, knowingly, intentionally, after careful contemplation, for selfserving purposes, and with a full understanding of the impropriety involved. Id. at 15. Although the court acknowledged that it had not warned M s. Garcia of the possible sanction of dismissal, it nevertheless concluded that M s. Garcia s misconduct required dismissal reasoning that imposition of a monetary sanction, exclusion of falsified evidence, and exclusion of testimony would have 1 Although the magistrate judge produced the initial analysis of Berkshire s M otion for Sanctions, the district court adopted and incorporated it in full, concluding that it was correct in all respects. Dist. Ct. Op. 12. For ease of discussion, we attribute the cumulative analysis to the district court. -9- been insufficient to deter those who would manufacture evidence and attempt to cover it up. Id. at 18. In her appellate briefs, M s. Garcia contended that the district court erred in concluding that she was clearly and convincingly culpable as to the claimed fabrications. Aplt. Br. 45 52. Accordingly, this court devoted significant time prior to oral argument to an examination of the factual record. At oral argument, however, M s. Garcia s counsel abruptly abandoned any attempt to contest the factual findings regarding culpability, indicating that M s. Garcia was not going to challenge the trial court s findings that those documents were fabricated. W hile we appreciate counsel s candor during oral argument, we regard this switch in position as unfortunately typical of M s. Garcia s behavior throughout this case. M s. Garcia seems inclined to raise factual smoke screens only to assert, after the facts are revealed, that the truth of the matter was irrelevant. Having closely examined the arguments of the parties, we cannot find that the district court has abused its discretion by concluding that the severe sanction of dismissal was warranted. The submission of falsified evidence substantially prejudices an opposing party by casting doubt on the veracity of all of the culpable party s submissions throughout litigation. The prejudiced party is forced either to attempt independent corroboration of each submission, at substantial expense of time and money, or to accept the real possibility that those discovery -10- documents submitted by the opposing party are inaccurate. Nor is the exclusion of the fabricated evidence always enough to deter discovery misconduct. Litigants would infer that they have everything to gain, and nothing to lose, if manufactured evidence merely is excluded while their lawsuit continues. Pope v. Federal Express Corp., 138 F.R.D. 675, 683 (W .D. M o. 1990). Although M s. Garcia did not receive an explicit warning that dismissal would be a likely sanction for fabricating evidence, this is not a prerequisite to the imposition of dismissal sanctions. See, e.g., Archibeque, 70 F.3d at 1175 (upholding dismissal even though no warning given). In addition, we have noted that where false answers are given under oath, as was the case with the responses to interrogatories here, see Fed. R. Civ. P. 33(b)(3), additional warnings are superfluous at best. Chavez v. City of Albuquerque, 402 F.3d 1039, 1045 (10th Cir. 2005). Once a witness swears to give truthful answers, there is no requirement to warn him not to commit perjury or, conversely to direct him to tell the truth. It would render the sanctity of the oath quite meaningless to require admonition to adhere to it. Id. (citation omitted). W e have previously authorized the imposition of dismissal sanctions in cases involving discovery violations arguably less egregious than this one. In Ehrenhaus, for instance, the district court dismissed M r. Ehrenhaus s case for failure to appear at a scheduled deposition, when M r. Ehrenhaus had asserted that -11- it was essential that the deposition be delayed so that he could attend a business meeting in New York in order to save his business from bankruptcy. 964 F.2d at 919. In that case, there was no suggestion that the party against whom the sanction was imposed had intentionally submitted false evidence or deceived the court. Nevertheless, we upheld the sanction. The facts of Archibeque are closer to this case. In Archibeque, M s. Archibeque sought damages from a railway company for personal injuries allegedly sustained while working for the company. In her responses to discovery questions seeking her complete medical records, M s. Archibeque withheld information about prior injuries that would have weakened her claim for damages. Archibeque, 70 F.3d at 1173. Although she denied any intent to conceal her prior injuries, and explained her failure to provide the records as a mere oversight, the district court granted the railway company s motion for dismissal as a sanction. Id. at 1175. W e again affirmed. If the omission of discovery evidence was sufficient to justify the sanction of dismissal in Archibeque, it seems clear that the affirmative fabrication of evidence is likewise sufficient to justify dismissal here. Ample evidence supported the conclusion that M s. Garcia was herself culpable for the fabrications submitted in this case. Numerous inauthentic documents were submitted over a several year period, counseling against an -12- explanation of mistake. M oreover, the fabrications were carefully constructed to look like authentic documents. Letters were made to look as though they were printed on authentic letterhead; emails were carefully spliced together so as to appear accurate; fax banners were added to documents to disguise their origin. See M ag. Op. 14 15; see also Aple. Br. 15 28. Finally, M s. Garcia s evasive, inconsistent answers and inability to provide an explanation for the fabrications during the hearing cast further doubt on her accounting of events. See, e.g., M ag. Op. 10 13. W e give the district court s determinations regarding the credibility of witnesses great deference. Wessel v. City of Albuquerque, 463 F.3d 1138, 1145 (10th Cir. 2006). Accordingly, the district court was well within its discretion to determine that the evidence clearly and convincingly supported the conclusion that M s. Garcia intentionally fabricated the documents. M s. Garcia, however, attempts to argue that a dismissal sanction here is inappropriate for a variety of reasons. M s. Garcia first argues that even if the documents were fabrications, they cannot provide a basis for a dismissal sanction, because they had absolutely no materiality or relevance to the substantive issues of [this] case. Aplt. Br. 55. As an initial matter, even accepting her factual premise, it is hard to see why her legal conclusion follows. A party s willingness to fabricate evidence bears on character and credibility, which often is broadly at issue in a given case. In addition, when a party wilfully submits false evidence, it -13- imposes substantial burdens not only on the opposing party, but also on the judicial system itself, as the extent and relevance of the fabrication are investigated. The lack of materiality or relevance is often not apparent until the later in the litigation, when the plaintiff s legal theory is clarified. By then, however, costs will have already been inflicted and the damage done. M oreover, when false evidence or testimony is provided under oath, knowingly and with intent to deceive, a party commits a fraud on the court. It would be odd, therefore, if a court s power to impose the admittedly severe sanction of dismissal depended only on the falsehood s relevance to the parties claims, and failed to account for the act s interference with the judicial process. Neither of the cases M s. Garcia relies on, Fjelstad v. Am. Honda M otor Co., Inc., 762 F.2d 1334 (9th Cir. 1985) or Phoceene Sous-M arine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802 (9th Cir. 1982), support her contention that wilful production of false evidence is insufficient to justify a dismissal sanction unless the evidence is particularly material. In both those cases, the Ninth Circuit found that outright dismissal was an inappropriate sanction where the litigant s alleged misconduct was wholly unrelated to the matters in controversy, Phoceene SousM arine, S.A., 682 F.2d at 806, but simply facilitated the delay of trial or discovery. See id. ( [The litigant s] deception related not to the merits of the controversy but rather to a peripheral matter: whether [the litigant] was in fact to -14- ill to attend trial on October 10. ; Fjelstad, 762 F.2d at 1338 (noting that Honda Limited s refusal to disclose discovery information before its parent company was joined as a party did not deceive the court about the issues in controversy ). Here, in contrast, M s. Garcia s deceptions concerned the issues in controversy, rather than an attempt to delay discovery or trial as in Phoceene Sous-M arine, S.A. or Fjelstad. Nevertheless, we need not decide the question in this case, because we agree with the district court that at least two of M s. Garcia s fabrications were directly relevant to her claims. The fabricated Renfro report supported M s. Garcia s claim that she was totally disabled a central issue in the litigation. M eanwhile, M r. Schoenborn s letter purported to expose unfair business practices by which Berkshire intentionally sought to delay or avoid the payment of earned benefits precisely M s. Garcia s theory of the case. In fact, despite initially maintaining that all of the asserted fabrications have absolutely nothing to do with her merits claims, Aplt. Br. 57, M s. Garcia s counsel conceded at oral argument that the Schoenborn letter was relevant to the merits. M s. Garcia next suggests that her alleged disabilities could explain the fabrications. Indeed, M s. Garcia s counsel spent substantial time at the sanctions hearing attempting to develop expert testimony on whether the fabrications could have been the result of impulse spurred by M s. Garcia s disability, -15- hypothetically assuming her involvement. See, e.g., Aple. Supp. App. 59 60. But the district court explicitly addressed and rejected the suggestion that M s. Garcia s actions were the product of her disability and found that the suggestion that the fabrications and plaintiff s willingness to lie are irrational acts of uncontrollable impulse are belied by the facts. M ag. Op. 14. Even M s. Garcia s own expert testified that, assuming her disability would have led her to fabricate the document, it would not have prevented her from appreciating the difference between the propriety or impropriety of those actions by the time of the hearing. Aple. Supp. App. 57 58. M s. Garcia s unwillingness to take responsibility for the fabrications leading up to or at the hearing therefore makes less likely that they were the product of a temporary, disability-induced, impulse. Instead, we think the district court was within its discretion to conclude that the fabrications were the product of an intentional act, performed after careful contemplation. M ag. Op. 15. Finally, M s. Garcia argues that Berkshire m ust prove all of the elem ents of com m on law fraud in order to prevail on its m otion for sanctions. But we have never required such findings in order to sustain a court s imposition of dismissal sanctions. See, e.g., Ehrenhaus, 965 F.2d 916. M oreover, we note that the affirm ative subm ission of false evidence is, at minim um , akin to a fraud on the -16- court, which other courts have found m ay justify the sanction of dism issal. See Allen v. Chi. Transit Auth., 317 F.3d 696, 703 (7th Cir. 2003). For all these reasons, we conclude that the district court did not abuse its discretion by concluding that the severe sanction of dism issal was warranted in this case. III. A ttorney s Fees on A ppeal Berkshire has also filed a m otion seeking dam ages and costs related to this appeal, on the theory that it is frivolous. M ost troubling, Berkshire suggests that M s. Garcia submitted new false evidence to the district court and this court after the im position of the dism issal sanction. See Aple. M ot. Fees 9 11. In her reply brief on appeal, M s. Garcia cited a letter from Craig Durkin, the form er Director of the Office of Procurem ent and Contracts at HUD, supposedly exonerating her from the agency s crim inal investigation. See Aplt. R. Br. 3 4. But M r. Durkin has denied writing the letter and questioned its authenticity. See Aff. of Craig Durkin 1 2. Likewise, Berkshire has raised questions about two other docum ents relied upon by M s. Garcia after the district court s dismissal of her case: new evidence that M s. Garcia supposedly authorized the release of her m edical records in 2003 04 and a new version of the Renfro report previously found fabricated in the district court s sanctions ruling. See Aple. M ot. Fees 8. The district court, in -17- resolving M s. Garcia s Fed. R. Civ. P. 60(b) M otion for Relief from Order, noted that Berkshire has a strong argum ent in support of its claim that the new authorizations . . . are fabrications. Dist. Ct. 60(b) Ruling 10. An appeal is not frivolous per se just because the presentation of the issues in district court was bad enough to be sanctionable. Lewis v. Comm r of Internal Revenue, 523 F.3d 1272, 1278 (10th Cir. 2008) (citation om itted). On the other hand, [a]n appeal m ay be frivolous if it consists of irrelevant and illogical argum ents based on factual misrepresentations and false premises, or when the result is obvious, or the appellant s arguments of error are wholly without m erit. Id. (em phasis added) (citations om itted). W e believe that if these new docum ents turn out to have been fabrications, it follows that the appeal was based in part on factual m isrepresentations, m aking appellate-level sanctions appropriate. There have been no explicit factual findings regarding the authenticity of the Durkin letter, the m edical records release, or the version of the Renfro report subm itted to court. As an appellate court, we have no capacity to engage in such fact-finding. W e therefore rem and this case to district court for the lim ited purpose of determ ining whether these three docum ents were fabricated and if so, whether the fabrication was intentional. If the district court answers both questions in the affirm ative, we request that the district court calculate a reasonable award of attorney s fees for the appeal. See Hoyt v. Robson Cos., Inc., -18- 11 F.3d 983, 985 (10th Cir. 1993) ( [A]n application for appeal-related attorneys fees m ust first be m ade to our court. Should we decide that it is appropriate to award such fees, we m ay then rem and to the district court to determ ine an award of reasonable fees. ). Upon conclusion of these factual findings, we retain jurisdiction to m ake the ultim ate determ ination as to whether and what fees to award under Fed. R. App. P. 38. IV . C onclusion For the foregoing reasons, we AFFIRM the district court s dismissal of M s. Garcia s claims as a sanction for her abusive litigation practices. W e therefore need not address the district court s summary judgment ruling regarding the merits of M s. Garcia s claims. Finally, we REM AND to the district court to determine whether certain documents cited by M s. Garcia on appeal were fabricated, and retain jurisdiction for the purpose of determining whether to impose sanctions on appeal. Appellees m otion to strike is DENIED as moot. -19-

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