Citing fraud, judge tosses case after video shows ‘paralyzed’ woman walking
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Medical Malpractice Citing fraud, judge tosses case after video shows ‘paralyzed’ woman walking |
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| April 26, 2007 |
By: Daniel Ostrovsky |
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“This is the worst case of misrepresentation, of outright fraud, that I have ever had in 22 years,” Cardonne Ely said during a March 15 hearing in the case of Wanda Davis-Johnson. “I’m telling you, Mrs. Davis, I’m looking at you in the eyes. I am dismissing your case. I have seen enough. … I’m making a specific finding that there was a scheme to defraud the court.” Lawyers on both sides are facing ethical questions about their own conduct in the case, though both sides say no Florida Bar complaints have been filed. Davis-Johnson’s lawyer, John K. Lawlor of Fort Lauderdale, had moved last year to add an unusual punitive damages count to the malpractice case, on the grounds that the negligent actions allegedly committed by Mercy Hospital, its doctors and other defendants were so egregious. He and his firm, Lawlor Winston & Justice, now say their client deceived them. They have asked for and received an opinion from the Bar on how to proceed. Lawlor said the opinion indicated to him he should continue to represent his client in the case. “She committed fraud on the court,” Lawlor said in an interview. “She committed fraud on me. She committed fraud on my firm, on the doctors. She committed fraud on just about everybody except the defense lawyers.” His firm, he said, had spent “well into the six figures” on the case. Davis-Johnson declined comment. Lawlor is also asking why the defense firm, Wolpe Leibowitz Alvarez & Fernandez in Miami, which represented defendant Mercy Hospital in Miami, waited until January to disclose the surveillance footage of Davis-Johnson that it had obtained in April 2005. “If they had shown that videotape to us, we wouldn’t have spent another 21 months of litigation time, cost, stress to the doctors involved and waste of the court’s time,” Lawlor said. “I don’t have any clue what they were thinking or why anybody would go forward other than to try to set a trap for my law firm.” Defense attorney Mark A. Leibowitz said he didn’t reveal the surveillance video sooner because he had to make sure he could prove that Davis-Johnson was committing a fraud on the court before making such accusations in court. Prominent litigator Barry Richard, who is not involved in the case, said that in most circumstances the defense lawyers do not have an obligation to turn over the surveillance footage as soon as they become aware of the footage. “If they got the tapes later, then they don’t have any obligation to turn them over and it’s a strategic decision,” Richard said. “Sometimes you hold something and you don’t disclose it till trial and that’s part of trial strategy.” Richard, a shareholder with Greenberg Traurig, also said defense lawyers can ask for sanctions and attorney fees if they feel that the plaintiff lawyers continued forward with the case unnecessarily after it was clear that their client was committing fraud. Tip from sister-in-law In 2004, Davis-Johnson sued Mercy Hospital, its doctors and other physicians for $3 million, alleging that an improper delay in diagnosis and treatment of her spinal abscess led to her paralysis. In February 2005, Davis-Johnson testified in a sworn deposition that she was unable to walk, stand or transfer herself from a bed to a chair. She repeated those claims in sworn deposition last September. The defense lawyers hired a private investigator to conduct surveillance on Davis-Johnson. In April 2005, the investigator shot a video of Davis-Johnson walking down the street with her husband, with the use of a cane, on two occasions. Defense attorney Leibowitz said he decided the case was fraudulent last September, after he deposed Davis-Johnson a second time and gave her a chance to set a record straight about her condition. Davis-Johnson again said she could not walk or stand at all. Leibowitz said he became even more confident that Davis-Johnson was committing fraud last November, when he got an unsolicited call from Ethel Perry, Davis-Johnson’s sister-in-law. He said Perry told him that Davis-Johnson was lying about her condition and that she could walk. It was during Perry’s January 2007 deposition that Leibowitz first disclosed the surveillance footage to plaintiff’s counsel. According to Leibowitz, the plaintiff lawyers were shocked when they saw the video of Davis-Johnson walking. “I got a sense that this guy was about to faint because this was a big case,” Leibowitz said about opposing counsel’s reaction. Leibowitz said he waited to disclose the video because the standard for dismissing a case based on fraud is high. If he had disclosed the existence of the video as soon as he obtained it, he said, Davis-Johnson could have claimed that she made a mistake in her deposition or that her condition had improved between her February 2005 deposition and the April 2005 video. After being shown the video, Lawlor withdrew his motion to seek punitive damages. On Jan. 12, Leibowitz filed a motion to dismiss the case. He said it was the first time in his 25 years of practice that he had asked a court to do so based on fraud. Lawlor and his firm hired attorney Gary Susser of Boynton Beach to represent them on any ethics issues arising from the case. They also asked for an opinion from The Florida Bar about how they should proceed. But Lawlor and his law firm did not withdraw from the case or ask that the case be dismissed. Lawlor unsuccessfully argued against the defense motion to dismiss based on fraud. He also filed errata sheets to Davis-Johnson’s two depositions seeking to change her testimony. At the March 15 hearing, Judge Cardonne Ely said the tape “absolutely shows that [David-Johnson] was walking. … I could not believe it, not after what I had read before and what, you know, what I know about this case.” She granted the motion to dismiss. Susser said in an interview that Lawlor and his firm acted honorably in choosing to stand by their client. “Criminal defense lawyers defend guilty people all the time,” Susser said. “They don’t walk out on them even if they believe they were guilty. They made a decision as professionals to try to stand by their client and minimized the damage that had been done.” But to Leibowitz, the actions of the plaintiff lawyers show he made the right decision in not disclosing the existence of the surveillance tape right away, and waiting until he had more evidence of Davis-Johnson’s fraud. John Matuska, Mercy’s president and chief executive, said in a written statement that the hospital was pleased with the dismissal and that it will be seeking to recover $225,000 in legal costs from Davis-Johnson. Daniel Ostrovsky can be reached at dostrovsky@alm.com or at (305) 347-6648. Mark A. Leibowitz photo by A.M. Holt |
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