Counsel’s Misrepresentation of Key Trial Testimony Warrants Terminating Sanctions

The court sua sponte dismissed plaintiff's infringement action with prejudice after post-trial discovery showed that during trial plaintiff's counsel affirmatively misrepresented to the Court the statements of key on-sale bar witnesses regarding important evidence disclosed only during trial. "Defendants have produced testimonial evidence clearly and directly contrary to the representations [plaintiff] made to the Court during trial. That [plaintiff] may have backpedaled from these statements over time, after trial had finished, does not relieve it of its responsibility for its misrepresentations to the Court at what all present recognized was an absolutely critical point in the trial. . . . The testimony reveals that this is not a simple case of innocent mischaracterization. [A witness] said one thing, and counsel told the Court that he said something else. Such willfulness compels a finding of bad faith. If the actual statements made by [two witnesses] at this critical inflection point had been reported to the Court, the Defendants’ trial strategy would have been entirely different. More significantly, the Court would, in all probability, have entered judgment for the Defendants forthwith. . . . Just as with witnesses testifying truthfully under oath, the proper administration of justice depends upon counsel being completely forthright with the Court. . . . [N]ot every lawyer who lies to a court will be caught, so when such deliberate and advantage-seeking untruthful conduct is uncovered, the penalty must be severe enough to act as a deterrent. Awarding attorney’s fees – even if they were to be paid by [plaintiff's] counsel alone – is insufficient. Such serious misrepresentations cannot be excused as simply the cost of doing business. Attorney’s fees also may be appropriate, but such an affront to this Court, to the other parties, and to judicial integrity can only be answered with dismissal."

Tesco Corporation v. Weatherford International, Inc., et al, 4-08-cv-02531 (TXSD August 25, 2014, Order) (Ellison, J.)