from the Circuit Court for Lee County; Elizabeth V. Krier,
Judge. Stacy L. Sherman of Stacy L. Sherman, P.A., Cape
Coral, for Appellant.
A. Cole and Daniel M. Schwarz of Cole, Scott & Kissane,
P.A., Miami, for Appellee Snap-on Incorporated.
L. Bellus and Bretton C. Albrecht of Kubicki Draper, P.A.,
Miami for Appellee Norman Mullins.
ORDER OF THE COURT:
consideration of the motion for clarification and rehearing
of March 15, 2017, decision filed by Appellee Snap-on
Incorporated on March 30, 2017 and motion for rehearing
and/or clarification of March 15, 2017, decision filed by
Appellee Norman Mullins on March 30, 2017, IT IS ORDERED that
the motions for clarification are granted in part and denied
in part. The opinion issued on March 15, 2017, is withdrawn
and the following opinion is substituted therefor. The
motions for rehearing are denied. No further motions will be
HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL
Duarte alleges that he was injured when a truck owned by
Snap-on Incorporated and driven by Norman Mullins slammed
into the back of his car while he was stopped in traffic. He
challenges the trial court's final order, rendered
without an evidentiary hearing, dismissing his personal
injury suit against Snap-on and Mr. Mullins as a sanction for
a fraud upon the court. Because the limited record before the
trial court was insufficient to establish that this case is
among the hopefully rare ones involving an unconscionable
scheme to interfere with a trial court's ability to
impartially resolve a dispute or a defendant's ability to
prepare a defense, we are constrained to reverse.
January 18, 2008, Mr. Duarte was sitting in traffic on I-75
in a car he was driving and in which his girlfriend, her
daughter, his son, and his grandson were passengers. At the
same time, Mr. Mullins was on I-75 driving a truck owned by
Snap-on. He smashed into Mr. Duarte's stopped car without
hitting his brakes. The police report says he was driving
sixty miles an hour. After being put through field sobriety
tests, he was arrested for driving under the influence
causing serious bodily injury.
least some of the injuries caused by the accident were
severe. Mr. Duarte's girlfriend was rendered a
paraplegic. He testified that she filed suit to recover for
her injuries and settled her claims for many millions of
dollars. Mr. Duarte's son and grandson likewise sued to
recover for their injuries and obtained much smaller, but
still sizeable, settlements on their claims.
Duarte filed this suit against Mr. Mullins and Snap-on to
recover for his own injuries on January 12, 2012. He claims
to have suffered past, present, and future loss of earnings,
medical expenses, and pain and suffering, much of which is
claimed to be related to injuries to both his back and his
arm. There is no dispute as to liability. The dispute is over
causation and the extent of Mr. Duarte's injuries.
controversy takes on significance in this case because, after
he filed suit, Mr. Duarte was in another car wreck. On March
8, 2012, Mr. Duarte was rear-ended at a stop sign. The
parties dispute how severe this event was and whether and to
what extent it, rather than the January 2008 accident
involving Mr. Mullins, caused the injuries for which Mr.
Duarte seeks to recover in this case.
issues in this appeal concern the candor and completeness of
Mr. Duarte's discovery responses about the March 2012
accident. Shortly before that accident, Snap-on served Mr.
Duarte with interrogatories asking for the names of the
medical providers that treated him at any relevant time and
the dates of those treatments. Mr. Duarte answered in April
2012 and identified eight providers and dates of treatment
between January 2008 and April 2012. He amended his answers
in April 2013 to disclose visits to several ...