Ski area defendant got caught falsifying employee records by the plaintiff.
Posted: April 24, 2023 Filed under: Massachusetts, Ski Area, Skiing / Snow Boarding | Tags: Chairlift, Employee Training, fraud upon the court, lying to the court, Massachusetts, Wachusett Mountain Ski Area Leave a commentWachusett Mountain Ski Area lied to the plaintiff about the training the employee in question in the lawsuit had received. The defendant ski area altered the records to make it look like the employee in question had received the requisite training when, in fact, he had not.
State: Massachusetts , Appeals Court of Massachusetts
Plaintiff: Heidi Hache & another (Individually and as parent and next friend of Alexander Hache)
Defendant: Wachusett Mountain Ski Area, Inc.
Plaintiff Claims: negligently operating its ski area, a posttrial motion for a finding of fraud on the court and imposition of sanctions, incorporating by reference her earlier cross motion seeking the same relief
Defendant Defenses: None
Holding: For the Plaintiff
Year: 2023
Summary
The defendant ski area at deposition testified the employee running the lift where the accident occurred had received the appropriate training in how to operate the lift. In fact, the employee had not. The ski area altered the training records, (online) to show the employee had taken the training course. Before trial, the plaintiff could prove the ski area had falsified to the plaintiff the documents and testimony the plaintiff had received during deposition. This appeal was to determine any punishment to the defendant ski area for falsifying those records.
Facts
The plaintiffs sued Wachusett for negligently operating its ski area, causing then twelve-year-old Alexander to fall from a ski lift and suffer severe and permanent injuries.
Wachusett produced documents and stated in its answers to interrogatories that the employee operating the lift on the day of the incident, Dylan Wilson, had received the requisite training. A training certificate produced by Wachusett stated that lift operator Wilson had completed an online training program under a profile with the username “jshepard.”
Heidi noticed a deposition of Wachusett and included a request for “[a]ny documents and [electronically stored information] relative to the identity of J. Shepard, his/her position at Wachusett Mountain and his/her involvement in any way with Dylan Wilson.” On June 2, 2017, Wachusett responded that Wachusett had no such documents in its present care, custody, or control.
Wachusett’s designee for the deposition of the corporation, Corey Feeley, testified to the following: Wilson was properly trained to operate the ski lift. Wilson had completed the training under the jshepard username because that username had been created for a prior hire, who had ultimately not become an employee, and Feeley did not want to pay another fifty-dollar license fee. Wilson completed the training in November 2014 even though he did not begin work until February 2015. Feeley and a human resources director, Molly Buckley, had been unable to locate an application for employment by Shepard.
After the Wachusett corporate deposition, Heidi subpoenaed training records from a third-party training website identified as Bullwheel and learned that jshepard was a boy named Jacob Shepard. On July 27, 2017, Heidi deposed Shepard. He testified that he worked at Wachusett starting in late 2013 through April 2014 and resuming in late 2014 and into 2015 and that he interacted with Feeley once or twice per shift. In November of 2014, Shepard completed the online training under the jshepard username. He also provided payroll records and emails to prove his employment at Wachusett.
Over a year later, on October 30, 2018, Heidi deposed Jonathan Putney, an employee of Noverant, Inc., the company hosting the online training program. The Noverant records showed that on March 11, 2015 — after the incident — a user named “cfeeley” had altered the jshepard profile to display the name Dylan Wilson. The Noverant records also showed that on the same date, a username of “dwilson” was created and that this username completed the training course between March 13 and March 16, 2015.
After considerable procedural skirmishing, Wachusett conceded liability and causation and sought to limit evidence of the fraud at trial. Heidi cross-moved for a finding that Wachusett committed fraud on the court based on the evidence discussed above. Heidi contended that Wachusett falsified an employee training record to conceal the lack of training, produced the falsified record in discovery, directed the plaintiffs to that falsified record in interrogatory responses, testified under oath to the authenticity of the training record in a deposition of the company pursuant to rule 30 (b) (6), and spoliated employment and payroll records to hide the fraud.
Analysis: making sense of the law based on these facts.
Don’t attempt to lie your way out of a lawsuit.
The defendant designated a person to speak on behalf of the defendant at a deposition. That person is called the deposition designee and legally speaks for the corporation. At the deposition of the designee, the designee testified the lift operator employee in question had received the designated training. That training was received under the name “jshepard.” The employee who was at issue in the trial was named “Dylan Wilson.” The deposition designee testified that to save $50 Dylan Wilson had taken the training under the name jshepard because jshepard had been hired but did not complete the training.
The plaintiff investigated and deposed two more people, jshepard and an employee of the online training program and found out that Dylan Wilson had never received the training that the ski area claimed he had received.
A year later, the ski area admitted the fraud and then admitted liability in an attempt to cover its mistakes. The plaintiff moved for sanctions against the ski area for the fraud; however, the judge denied the sanctions. After winning at trial, the plaintiff again moved for sanctions where were denied. The plaintiff appealed the issues of sanctions against the ski area to the appellate court.
Fraud on the court is an absolute no no. Attorneys can lose their license if they participate in a fraud upon the court. The party that commits the fraud can lose their lawsuit or win it based on who they are. It is never done.
Fraud on the court is defined in Massachusetts law as:
To find that a party has committed a fraud on the court, a judge must find “that a party has sentiently set-in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.”
The trial court found there had been no fraud on the court because the actions of the ski area were not perpetrated by the president of the ski area, the owner of the ski area or the attorney representing the ski area.
“no evidence before the court that Wachusett, its president/owner, or its attorney knew about the forged training records until Plaintiff’s counsel uncovered them in the course of discovery. There is also no evidence that they intentionally provided forged documents or intentionally gave false answers to questions posed in depositions. Rather, as soon as Wachusett became aware of Feeley’s misconduct, Wachusett conceded liability and gave up all efforts to assert comparative negligence despite the fact that this was a colorable defense. Thus, at no time was the court influenced by, or operating under false or fraudulent information.”
No hearing was held on the matter. Only written motions were filed and the judge ruled based on those motions.
The appellate court looked at the situation differently. The defendant by state law was required to keep employee records for all employees for four years. The ski area testified that it kept records normally for seven years. Although the ski blamed the fraud on the deposition designee, the court found that more than that one individual had failed to meet the requirements of the state law and the rules of civil procedure concerning the documents that had to be presented to the plaintiff by the defendant.
The trial judge found the actions of the defendant did not hamper the trial. However, the appellate court found the trial judge should have held a hearing and applied sanctions. The plaintiff worked for three years preparing for trial that was changed when the defendant admitted to the fraud. The defendant did not immediately admit to the fraud but waited more than a year to do so.
The plaintiffs thus prepared for trial for approximately three years with the understanding that they would be litigating every element of a negligence claim. While Wachusett ultimately conceded liability, the judge’s finding that it did so “as soon as [it] became aware of Feeley’s misconduct” is clearly erroneous. The plaintiffs deposed Feeley on June 9, 2017, and Shepard on July 27, 2017, but Wachusett did not make its first attempt to stipulate to liability for more than a year, until October 23, 2018, and even then continued to dispute causation.
Thus, the plaintiff expanded time and money proving its case, which has a cost. Because of that, the judge should have held an evidentiary hearing to determine the cost to the plaintiff and the actual issue of who perpetrated the fraud on the court.
The appellate court then sent the issue back to the trial court to have an evidentiary hearing on the issues and determine what if any monetary damages the ski area should pay for its actions.
So Now What?
Never lie to the court.
Lying to the court also includes lying to the other side in a deposition or in any evidence that is produced. Your actions in a trial, in everything you do to the opposing side are also to the court.
Never lie to the opposing side in litigation, it is the same as lying to the court.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
Copyright 2022 Recreation Law (720) 334 8529
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Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
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