     09-3901-cv
     Radecki v. GlaxoSmithKline


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
     after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
     this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
     party must cite either the federal appendix or an electronic database (with the notation “summary
     order”). A party citing a summary order must serve a copy of it on any party not represented by
     counsel.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held
 2   at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
 3   New York, on the 27th day of April, two thousand ten.
 4
 5   PRESENT:
 6               BARRINGTON D. PARKER,
 7               DEBRA ANN LIVINGSTON,
 8               DENNY CHIN,
 9                                 Circuit Judges. *
10   _________________________________________________
11
12   D. BRIAN RADECKI,
13              Plaintiff-Appellant,
14
15            -v.-                                            No. 09-3901-cv
16
17   GLAXOSMITHKLINE,
18            Defendant-Appellee. **
19
20   _________________________________________________
21
22                                   CRAIG T. DICKINSON, Dickinson & Mallow, Waterbury,
23                                   CT, for Plaintiff-Appellant.
24
25                                   FELIX J. SPRINGER (Stacy Smith Walsh, on the brief), Day
26                                   Pitney LLP, Hartford, CT, for Defendant-Appellee.
27

     *
      At the time of oral argument, Judge Chin was a member of the United States District
     Court for the Southern District of New York, sitting by designation.
     **
        The Clerk of the Court is directed to amend the official caption in this case to conform
     to the listing of the parties stated above.


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 1             UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court be AFFIRMED.

 3             Plaintiff-Appellant D. Brian Radecki (“Radecki”) appeals from an August 21,

 4   2009, opinion of the United States District Court for the District of Connecticut

 5   (Thompson, J.) granting the motion of Defendant-Appellee GlaxoSmithKline (“GSK”) to

 6   dismiss with prejudice as a sanction for perjury. We assume the parties’ familiarity with

 7   the underlying facts, procedural history, and specification of the issues on appeal.

 8             We review the district court’s decision to impose sanctions under its inherent

 9   power for abuse of discretion. Chambers v. NASCO, Inc., 501 U.S. 32, 55 (1991); United

10   States v. Seltzer, 227 F.3d 36, 39 (2d Cir. 2000). “Whether a litigant was at fault or acted

11   willfully or in bad faith are questions of fact, and we review the District Court’s

12   determinations for clear error.” Agiwal v. Mid Island Mortgage Corp., 555 F.3d 298, 302

13   (2d Cir. 2009).

14             “A witness testifying under oath or affirmation” commits perjury if he “gives

15   false testimony concerning a material matter with the willful intent to provide false

16   testimony, rather than as a result of confusion, mistake, or faulty memory.” United States

17   v. Dunnigan, 507 U.S. 87, 94 (1993). Perjury is committed with willful intent when

18   “made ‘with the specific purpose of obstructing justice,’” and the material matter must be

19   “material to the proceeding in which it is given.” United States v. Ben-Shimon, 249 F.3d

20   98, 102 (2d Cir. 2001) (quoting United States v. Zagari, 111 F.3d 307, 329 (2d Cir.

21   1997)).

22             We find that the district court did not commit clear error in its determination that

23   Radecki gave willfully false testimony concerning a material matter. The record shows




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 1   that Radecki stated that he stopped looking for work “[b]ecause . . . I learned that I had –

 2   have Stage III prostate cancer with a metastatic brain lesion.” His medical records

 3   indicate that this statement was false as to the brain lesion.       Moreover, Radecki’s

 4   deposition evidences that he was aware at the time that he testified that he did not have

 5   and had never had such a lesion. Radecki relies on an initial statement by the district

 6   court that the specifics of Radecki’s medical condition were “not material” to suggest that

 7   the testimony did not concern a material matter. This off-the-cuff, oral statement, made

 8   when all parties believed Radecki’s statement to be truthful and were attempting to craft a

 9   remedy accordingly, did not constitute a ruling on the materiality of Radecki’s statement

10   to the proceeding and in no way undercuts the district court’s later, well-reasoned written

11   decision, made with the benefits of briefing from the parties and a review of the record,

12   that Radecki’s statement did constitute perjury.

13          We also find that the district court did not abuse its discretion in granting the

14   motion to dismiss with prejudice. Although dismissal is a “harsh sanction” and we

15   therefore generally require a district court to consider the appropriateness of lesser

16   remedial measures, In re Harris, 464 F.3d 263, 272 (2d Cir. 2006), a showing of

17   “willfulness, bad faith, or fault on the part of the sanctioned party” may nonetheless

18   justify such measures. West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.

19   1999). As the Supreme Court has stated, “[f]alse testimony in a formal proceeding is

20   intolerable” and therefore “[p]erjury should be severely sanctioned in appropriate cases.”

21   ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 323 (1994). Here, the district court

22   thoughtfully considered the nature and motivation of the perjured testimony, Radecki’s

23   later attempt to conceal the perjury with additional misleading statements to the court, the




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 1   prejudice to GSK, and the affront to the court that would be tolerated by imposition of a

 2   lesser sanction and concluded that dismissal was warranted. This was not an abuse of the

 3   district court’s inherent power to sanction.

 4          We have considered all of the parties’ remaining arguments and find them to be

 5   without merit.

 6          For the foregoing reasons, the judgment of the district court is hereby affirmed.
 7
 8
 9                                                       FOR THE COURT:
10                                                       Catherine O’Hagan Wolfe, Clerk
11
12




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