                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 20, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 JERRY FREDDIE,
          Plaintiff-Appellant,

 v.                                                      No. 10-2094
                                              (D.C. No. 09-CV-00144-JEC-RLP)
 MARTEN TRANSPORT, LTD.;                                  (D. N.M.)
 KAREN M. SCHILLER,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before HARTZ, McKAY, and GORSUCH, Circuit Judges.



      Plaintiff Jerry Freddie appeals the district court’s grant of Defendants

Marten Transport, LTD, and Karen Schiller’s motion to dismiss for alleged

discovery abuses. The district court concluded Mr. Freddie withheld highly

relevant medical information about possible pre-existing conditions while

refusing to provide Defendants or the court with an adequate explanation or

excuse. Finding no abuse of the court’s discretion, we affirm.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                 BACKGROUND

      Mr. Freddie filed this lawsuit against Defendants for injuries sustained in a

November 29, 2006 automobile accident. He alleges injuries to his head, neck,

and back; pain in his shoulders and extremities; and fatigue and sleep problems,

amongst others. These injuries, he claims, resulted solely from this accident.

      In discovery, Mr. Freddie initially refused to provide Defendants with

details of pre-existing conditions or prior medical providers, and instead only

stated that his health care was “largely provided” by “Indian Health Service.”

(Appellant’s App. at 210.) He also claimed in his deposition he had never

sustained a head injury other than in the 2006 accident at issue in this case.

Defendants filed a motion to compel, in which they sought clarity about Mr.

Freddie’s prior accidents and injuries, pre-existing conditions, and medical

providers. In response, Mr. Freddie supplemented his discovery to include a list

of some, but not all, of his past medical providers and visited facilities. After the

district court granted Defendants’ motion, Mr. Freddie again supplemented his

answers.

      Some time after Mr. Freddie provided his second supplemental answers,

Defendants obtained police and medical records that revealed Mr. Freddie had

been involved in an undisclosed rollover accident in February 2003. Defendants

also obtained a medical report from 2005 in which Mr. Freddie complained of

chest pain, persistent neck pain, and headaches and “recall[ed] a time when he

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had a fairly severe head and neck injury.” (Id. at 162.)

      Based on these two previously undisclosed incidents, Defendants filed a

motion to dismiss. In response, Mr. Freddie denied any wrongdoing. He

explained he was not the driver in the 2003 accident and the 2005 medical report

referred to a neck injury he had sustained in the 1970s. Defendants then obtained

and produced medical reports from 2003 for the court which revealed Mr. Freddie

obtained chiropractic treatment for injuries he claimed were sustained in the 2003

accident. The reports described how Mr. Freddie hit his chest on the steering

wheel and hit his head on the vehicle’s headrest; and a list of his reported

ailments included headaches, lightheadedness, fatigue, difficulty reading, and also

pain in his neck, shoulders, back, and extremities.

      The district court held two hearings on Defendants’ motion. Mr. Freddie

did not attend the first hearing, but his counsel suggested Mr. Freddie may have

lied to the chiropractor and his insurance about his involvement in the 2003

rollover in order to use insurance benefits to pay for chiropractic treatments.

After the hearing, counsel for Mr. Freddie further informed the court that “with

respect to questions relating to statements he may have made to a chiropractor

and other persons in 2003, it is likely [Mr. Freddie] will refuse to answer some

questions on the grounds that he is protected from answering such questions under

the Fifth Amendment to the United States Constitution.” (Id. at 229.) At the

second hearing, Mr. Freddie and his son testified it was the son, and not Mr.

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Freddie, who was involved in the 2003 rollover. However, when asked about his

previously undisclosed chiropractic treatments, Mr. Freddie invoked the Fifth

Amendment. The court granted Defendants’ motion, and this appeal followed.

                                    DISCUSSION

      We review the district court’s imposition of discovery sanctions, whether

under Rule 37 or the court’s inherent authority, for abuse of discretion. See

Neiberger v. Fed Ex Ground Package Sys., Inc., 566 F.3d 1184, 1192 (10th Cir.

2009); United States v. Evans & Assoc. Constr. Co., 839 F.2d 656, 660 (10th Cir.

1988). While discovery-related sanctions are generally permissible to protect the

integrity of the judicial process, a sanction of dismissal is reserved for violations

“predicated upon willfulness, bad faith, or some fault of [the party] rather than

inability to comply.” Archibeque v. Atchison, Topeka & Santa Fe Ry. Co., 70

F.3d 1172, 1174 (10th Cir. 1995) (internal brackets and quotation marks omitted).

This circuit uses a framework of five factors, evaluated on the record, that should

ordinarily be considered by a trial court before imposing a sanction of dismissal:

(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). However, “these

factors are not a rigid test, and . . . determining the correct sanction is a fact

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specific inquiry that the district court is in the best position to make.”

Archibeque, 70 F.3d at 1174 (internal quotation marks omitted).

      Although the court assumed for purposes of Defendants’ motion that Mr.

Freddie was not involved in the 2003 accident, it nevertheless found that Mr.

Freddie was culpable for willfully failing to disclose prior treatments for injuries

similar to those alleged in this lawsuit despite having ample opportunity to do so.

Specifically, the court compared Mr. Freddie’s statements during discovery that

he had no ongoing symptoms or injuries with Mr. Freddie’s 2003 chiropractic

treatment for symptoms remarkably similar to those injuries which Mr. Freddie

now claims arose solely as a result of the 2006 accident. The court concluded

that Mr. Freddie could not have merely forgotten his symptoms from 2003, nor

could he claim without any supporting evidence that his pre-existing conditions

had completely resolved by the 2006 accident.

      Mr. Freddie asserts, contrary to the district court’s understanding of the

parties’ discovery history, he did in fact disclose the chiropractic treatments to

Defendants and authorized them to retrieve his records from the chiropractor’s

office. There is no evidence in the record to support this claim other than the

unsupported assertions by Mr. Freddie’s counsel that Mr. Freddie told Defendants

he might have seen a chiropractor in a particular city but did not provide

Defendants with a date, name, or any other identifying information.

      Counsel for Mr. Freddie also suggests that Mr. Freddie failed to mention

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the chiropractic treatments because either his frail mental state caused him to

forget or because he knew of the treatments but did not want to risk liability for

insurance fraud. Not only do these excuses appear to contradict each other, but

the court may infer from Mr. Freddie’s assertion of the Fifth Amendment that he

possessed some degree of prior knowledge about his chiropractic visits. 1 We thus

cannot say the district court abused its discretion by determining that Mr. Freddie

willfully failed to disclose his prior chiropractic treatments to Defendants.

      The district court also weighed the other Ehrenhaus factors in favor of

dismissal. The court first determined that Mr. Freddie’s omissions have and

would continue to force Defendants to incur substantial expense of time and

money to independently verify his discovery responses. The court further noted

this prejudice could not be cured by excluding any tainted evidence. The court

next found Mr. Freddie’s inconsistent statements, when combined with his refusal

to explain these inconsistencies, amounted to an unacceptable level of

interference with the judicial process. The court also considered imposing a

lesser sanction of costs and fees upon Mr. Freddie, but it ultimately decided that

lesser sanctions would be ineffective because Defendants would remain burdened

with unresolved conflicts at the expense of additional time and money and



      1
       Although Mr. Freddie is free to assert the Fifth Amendment, the court
may nonetheless draw adverse inferences against him. See Baxter v. Palmigiano,
425 U.S. 308, 318 (1976).

                                         -6-
without any meaningful way to neutralize the prejudicial effect. Although the

court did not expressly address whether it had previously warned Mr. Freddie that

dismissal would be a likely sanction for non-compliance, it had in its order

granting Defendants’ motion to compel warned Mr. Freddie that “failure to

comply with this Order may subject him to Rule 37 sanctions.” (Supplemental

App. to Appellees’ Answer Br. at 18.) Moreover, “[o]nce 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.” Chavez v. City of Albuquerque, 402

F.3d 1039, 1045 (10th Cir. 2005) (internal quotation marks omitted).

      The district court did not abuse its discretion by concluding that dismissal

was justified. The withholding of evidence “substantially prejudices an opposing

party by casting doubt on the veracity of all of the culpable party’s submissions

throughout litigation.” Garcia v. Berkshire Life Ins. Co. of America, 569 F.3d

1174, 1180 (10th Cir. 2009). Here, Defendants are “forced either to attempt

independent corroboration of each submission, at substantial expense of time and

money,” or to accept the possibility that every document or statement submitted

by Mr. Freddie is incomplete or inaccurate. Id. We have affirmed dismissals for

lesser offenses, see Ehrenhaus, 964 F.2d at 919, and for similar offenses, see

Archibeque, 70 F.3d at 1174. Because the facts in this case present discovery




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violations within the range for which dismissal would be proper, we AFFIRM the

district court’s decision.


                                            Entered for the Court



                                            Monroe G. McKay
                                            Circuit Judge




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