Jimenez v. Ortega

179 So. 3d 483, 2015 Fla. App. LEXIS 17423, 2015 WL 7302661
CourtDistrict Court of Appeal of Florida
DecidedNovember 20, 2015
DocketNo. 5D14-1818
StatusPublished
Cited by4 cases

This text of 179 So. 3d 483 (Jimenez v. Ortega) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jimenez v. Ortega, 179 So. 3d 483, 2015 Fla. App. LEXIS 17423, 2015 WL 7302661 (Fla. Ct. App. 2015).

Opinion

BERGER, J.

Antonio Jimenez appeals the entry of a final judgment in favor of Pedro Ortega. He argues the trial court erred by failing to "dismiss Ortega’s négligence complaint as a sanction for committing fraud upon the court. We agree only as to Ortega’s claims for pain and suffering and loss of earnings.

This case arises out of a negligence suit filed by Ortega against Jimenez after Ortega sustained a serious injury to his heel in a car accident caused by Jimenez. Ortega sought damages for the total loss of his pickup truck, medical costs, lost wages, and past and future pain and suffering. Neither liability nor the costs Ortega sought for medical expenses and the damage to his truck were disputed. Jimenez contested only the damages for lost wages and pain and suffering. Through these very damages, Jimenez claims Ortega perpetrated his fraud.

Over the course of the pre-trial proceedings, Ortega was deposed three times. Throughout each deposition, Ortega gave false or misleading answers to questions central to the disputed issues in his cáse: namely, regarding the extent, duration, and severity of his pain and suffering and his ability to work.

. During his first deposition, in September 2006, Ortega sought to establish and embellish the extent of his injuries. After Ortega’s deposition, Jimenez’s counsel hired an investigator to perform surveillance on Ortega. The surveillance video showed Ortega pulling his trash can up the. driveway while carrying, but not using, his cane; driving his stick-shift Jeep; walking [485]*485in front of a tool shed to a hot water heater without using his cane; and driving his Jeep to a water sports. boat store, although Ortega was using his cane when walking around the store.

Thereafter, Ortega was deposed a second time, and had to be prompted by his attorney to clarify the extent of his injuries. He testified • that he had to use a cane to walk outdoors; he needed to hold onto furniture to walk around the-house without his cane; he could not walk more than three feet without using his cane; he was constantly in pain even in bed; he could not fish; and he could not step up or down on curbs on a street, Ortega was then asked to describe the severity of pain in his foot. Ortega testified that, on a scale from one to ten, the pain level'in his foot was a “five” when sitting and a “nine” when walking.' He' further testified that his foot was swollen all of the time, and that the pain in his foot shoots up to a “ten” after he walks one, or two hundred feet. According to his. testimony, he would lose balance frequently when walking, due to the pain,he was experiencing. He testified that he could not perform any kind of job, not even a desk job, because he had too much pain and swelling in his foot. Ortega testified that he discussed his pain, swelling, and limitations with his treating physician during office visits. ‘

Six years later, in October 2013, Ortega was deposed a final time. After Ortega testified that the severity of his pain and the extent of his physical limitations were essentially the same as he had described in his first'two depositions, Ortega’s counsel asked to take a break. When the deposition resumed, Ortega revised some of his earlier answers. Specifically, Ortega testified that he did, in fact, go fishing about once every two weeks in the summer and once a month in the , winter. He claimed that he had only been previously speaking about his inability to fish in 2007. Ortega further admitted that-he owned two boats, which he kept at his property in Geneva, Florida. When asked if he could drive a stick shift, Ortega responded, “well, maybe.” He explained that he sold his Jeep about five years ago because it was a standard- transmission and he could not use the clutch because of the severe pain in his foot.

Soon after his deposition, Ortega’s counsel filed an errata sheet revising Ortega’s deposition testimony. Specifically, Ortega clarified that: (1) he only used the cane when he was in a lot of pain or he knew he would be walking a lot; (2) he could actually walk more than three feét without using his cane; (3) he no longer needed to use the furniture in his house to' help him get around; (4) when he walked more than three feet the pain level'in his foot was a “five to six,”' rather than an “eight to nine”; (5) he lost his balance only after walking long distances; (6) he had pain in his foot only when he walked long distances; (7) he could mow his lawn using a riding lawn mower; (8) he could paint; (9) he was able to resume fishing on his boat more thán two years ago; (10) he had a boat at his Geneva property for more than two years; and (11) he could fix the holes in the second boat that' he had recently purchased.

Thereafter, the case proceeded to trial on the issue of damages. Ortega testified about breaking the calcaneus bone in his left foot and the surgery that followed. He testified he was initially confined, to a wheelchair, then a walker, and finally was able to walk with a cane. During that period, Ortega stated he relied on his wife to help him with basic activities. After his second surgery, Ortega was in a cast for “about a year.” He testified that, as of the date of the trial, he still felt pain in his foot when he walked for long periods of time.

[486]*486When the testimony turned to Ortega’s quality of life since the accident, he admitted that he lied in his October 2013 deposition when he testified regarding the level of pain in his foot. Ortega testified that his pain was not at level eight or nine as previously stated, but- rather more “like three to four,” and that he takes over-the-counter Advil for the pain.

On cross-examination, Ortega acknowledged that surveillance video showed him driving his stick-shift Jeep despite the fact that he had testified during, his depositions that he could not drive a stick shift.1 Ortega then admitted that the following testimony from his second deposition was untrue: (1) he had to use the cane to walk whenever he was outside; (2) he could only get around his house without his cane by holding onto., furniture for help; (3) he could not walk more than three feet without using his cane or he would lose his balance and fall; (4) he was in pain constantly, even when in bed; (5) he told his doctors that he had balance problems and that, if the doctors’ notes did not reflect his complaint, the notes were wrong; (6) his foot was in, such pain that it hurt to take off his sock; (7) he had swelling in his foot; (8). he had so much pain in his foot that he lost his balance on a daily basis; (9) .he would fall over from pain after walking ten to twenty feet (when in reality he could walk about forty-five minutes before falling over in pain); (10) he had pain in his foot when he used his full range of motion; (11) he had pain when transitioning from heel to toe; (12) he could not fish; and (13) he could not step up or down off of curbs on the street.

Ortega also admitted on cross-examination that the following testimony from his third deposition was untrue: (1) he could not walk more than three feet without a cane due to his pain and instability; (2) he experienced a sharp, stabbing pain in his foot; (3) when he was resting, the pain in his foot was a level five on a scale of one to ten; (4) he could not enjoy life because of the pain in his foot; (5) he had so much pain in his foot when he walked that he would grimace due to the pain; and (6) he still could not drive a stick shift.

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Cite This Page — Counsel Stack

Bluebook (online)
179 So. 3d 483, 2015 Fla. App. LEXIS 17423, 2015 WL 7302661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jimenez-v-ortega-fladistctapp-2015.