Radecki v. GlaxoSmithKline - Connecticut Employment Law Blog

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trial, there was no time for the opposing party to prepare fortrial with the benefit of truthful testimony. While most of thecases discussed above involved repeated acts of perjury or otherdishonesty, none involved perjury at trial, which is a situation2where the opposing party is put at a greater disadvantage. Ifthe perjury is discovered at trial, there is little or no time toinvestigate or prepare to attack it; if the perjury does not cometo light until after the trial, the opposing party must satisfythe requirements of Federal Rule of Civil Procedure 60(b) or (d)to get any relief it desires.3In addition, as the Court stated in ABF Freight System,[f]alse testimony in a formal proceeding is intolerable.” ABFFreight Sys., 510 U.S. at 323. To have the plaintiff in thiscase pay a monetary penalty and then return to court and present2As the court discussed with counsel, in a case being triedto a jury, the determination as to whether a witness is tellingthe truth is to be made by the jury. Thus, the court would nothave been receptive to a motion for a sanction of dismissalduring a trial on the ground that a witness was committingperjury. Here, however, the motion for a mistrial was made onthe basis of unfair prejudice and with a belief that theplaintiff’s testimony was true. The motion for a mistrial wasgranted because the court concluded it was not possible to givethe jury an appropriate curative instruction. The motion for asanction based on the plaintiff’s perjury has been consideredonly once there is no case being presented to a jury.3See, e.g., Hazel-Atlas Glass Co. v. Hart-Ford-Empire Co.,322 U.S. 238 (1944), overruled on other grounds, Standard Oil Co.v. United States, 429 U.S. 17 (1976); Gleason v. Jandrucko, 860F.2d 556 (2d Cir. 1988); Kupferman v. Consol. Research & Mfg.Corp., 459 F.2d 1072 (2d Cir. 1972).-18-
his case before a new jury would give the appearance oftolerating “a ‘flagrant affront’ to the truth-seeking function ofadversary proceedings,” id., even if (or perhaps especially if)the court allowed the defendant to use the plaintiff’s perjurioustestimony from the first trial to attack his credibility.Therefore, the court concludes that the most appropriate sanctionin this case is a sanction of dismissal with prejudice.The defendant moved in the alternative for a sanction ofdismissal with prejudice or a sanction in the form of an award ofcosts and fees associated with the mistrial in this action andthe instant motion. Therefore, no award of costs and fees isbeing made. In any event, it appears to the court that an awardof a sanction of dismissal accompanied by an award of costs andfees would be too severe a sanction under the circumstances ofthis case, where it appears the defense has expended no more timeand money than it would have expended had the case proceeded toverdict and the jury’s verdict been in favor of the defendant.III. CONCLUSIONFor the reasons set forth above, the defendant’s Motion toDismiss with Prejudice and for Costs and Fees (Doc. No. 53) ishereby GRANTED in part and DENIED in part. The plaintiff’s caseis hereby dismissed with prejudice. No award of costs and feesis being made.The Clerk shall enter judgment and close this case.-19-
Page 1 and 2: UNITED STATES DISTRICT COURTDISTRIC
Page 3 and 4: A: Because of the last week of Octo
Page 5 and 6: proceeded with the understanding th
Page 7 and 8: merely told the jurors not to consi
Page 9 and 10: (Trial Tr. Vol. I, 152, May 7, 2009
Page 11 and 12: change conveyed to the jury not jus
Page 13 and 14: discovery tactics designed and inte
Page 15 and 16: Id. at 1301. In Rybner v. Cannon De
Page 17: sanction in response to perjury is

Radecki v. GlaxoSmithKline - Connecticut Employment Law Blog

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