Opinion
Civil Docket No.: CL14-6942-00 Civil Docket No.: CL14-6942-01
05-13-2016
Re: Jane Doe v. Virginia Wesleyan College Virginia Wesleyan College v. Robert Roe
Jonathan E. Halperin, Esq. Andrew Lucchetti, Esq. Halperin Law Center, LLC 5225 Hickory Park Drive, Suite B Glenn Allen, Virginia 23059 Stuart L. Plotnick, Esq. Law Offices of Stuart L. Plotnick 51 Monroe Street, Suite 701 Rockville, Maryland 20850 Mark C. Nanavati, Esq. G. Christopher Jones, Jr., Esq. Sinnott, Nuckols & Logan, P.C. 13811 Village Mill Drive Midlothian, Virginia 23114 George J. Dancingers, Esq. Shawn A. Voyles, Esq. Scott C. Hartin, Esq. McKenry Dancingers Dawson, P.C. 192 Ballard Court, Suite 400 Virginia Beach, Virginia 23462
Jonathan E. Halperin, Esq.
Andrew Lucchetti, Esq.
Halperin Law Center, LLC
5225 Hickory Park Drive, Suite B
Glenn Allen, Virginia 23059 Stuart L. Plotnick, Esq.
Law Offices of Stuart L. Plotnick
51 Monroe Street, Suite 701
Rockville, Maryland 20850 Mark C. Nanavati, Esq.
G. Christopher Jones, Jr., Esq.
Sinnott, Nuckols & Logan, P.C.
13811 Village Mill Drive
Midlothian, Virginia 23114 George J. Dancingers, Esq.
Shawn A. Voyles, Esq.
Scott C. Hartin, Esq.
McKenry Dancingers Dawson, P.C.
192 Ballard Court, Suite 400
Virginia Beach, Virginia 23462 Dear Counsel:
Today the Court rules on a Motion for Sanctions filed by Defendant Virginia Wesleyan College ("VWC") against Plaintiff Jane Doe ("Doe"), in which VWC asks the Court to sanction Doe for her "dishonesty" and "fraudulent behavior" by initially claiming damages for loss of her virginity—stemming from an alleged rape (the "Incident")—and then withdrawing that claim after the close of discovery and shortly before the scheduled trial date. The Court finds that Doe's position in her pleadings and during her deposition—that she was a virgin at the time of the Incident—is inconsistent with her admissions during discovery and with her documented position going into trial. The Court further finds that, under the totality of the circumstances, Doe's assertion that she sincerely believed she was a virgin is not credible; rather, the Court finds, by clear and convincing evidence, that Doe consciously and intentionally misrepresented that she was a virgin. The Court therefore GRANTS VWC's Motion for Sanctions and articulates the reasons for its ruling herein.
Background
Doe had recently begun her freshman year as a student at VWC in August 2012. (Corrected First Am. Compl. 2.) Doe alleges that on or about August 24, 2012, (id. ¶ 5), she was raped and sexually assaulted by Robert Roe ("Roe"), a fellow student, in a VWC dormitory, (id. ¶¶ 27-28), and that VWC is liable for the resultant damages, (see generally id.). Doe alleges that she attended an on-campus party (the "Party") "sponsored" by a VWC-employed orientation peer advisor, where she admits that she consumed alcohol offered to her. (Id. ¶¶ 12-13.) The alcohol available at the Party allegedly "was spiked with an agent designed to incapacitate [Doe and others] and render them vulnerable to sexual assault." (Id. ¶ 18.) VWC-employed security officers allegedly visited the Party at some point, observed "alcohol available for teenager consumption," and took no action. (Id. ¶ 15.) Doe allegedly left the Party with some friends, who were impaired, to help them get to their dormitory rooms. (Id. ¶ 22.) Doe alleges that Roe followed her and her friends after they left the Party and, once Doe's friends were back in their dormitory rooms, Roe assaulted Doe and "forced her back to his dorm room," where Doe alleges Roe raped and sexually assaulted her. (Id. ¶¶ 23-27.) Doe prays for judgment against VWC based on three counts: negligence, gross negligence, and negligent hiring. (See generally id.) VWC filed a third-party complaint against Roe seeking indemnity and contribution.
Doe originally alleged a fraud count—which was based on allegations that VWC intentionally misrepresented its campus crime statistics to her prior to enrollment, thereby enticing her to enroll—that she withdrew after discovery demonstrated that it was not viable and VWC filed a motion for costs, fees, and other relief, which the Court ultimately denied. (See 1/20/2016 Order.)
Based on materials obtained pre-suit and during discovery, VWC understood that Doe claimed to have lost her virginity as a result of the alleged rape and that Doe was including loss of virginity as a component of her claimed damages. (Mot. Sanctions 3.) VWC propounded upon Doe VWC's Third Set of Interrogatories, which requested, inter alia, identification of Doe's pre-Incident sexual partners. (VWC Third Mot. Compel Ex. A.) Doe objected. (Id. Ex. B.) In response to VWC's related motion to compel, the Court scheduled a hearing on August 10, 2015. After confirming at the hearing that Doe was alleging loss of virginity as a component of her claimed damages, the Court ruled that VWC was entitled to discovery regarding Doe's sexual history prior to the Incident. In her subsequent attested interrogatory answer, Doe states the following: "Plaintiff, Jane Doe, was a virgin when she was sexually assaulted by Robert Roe. By definition, she had not had sexual intercourse with anyone before the attack." (Mot. Sanctions Ex. F.)
The interrogatory actually asked Doe to "[i]dentify any individuals with whom you have had sexual intercourse at any time and . . . any individuals with whom you have had a romantic relationship . . . since August 24, 2012." (Mot. Sanctions Ex. F.)
Of course, if Doe were in fact a virgin at the time of the alleged rape, any discovery regarding her prior sexual history necessarily would be very limited. Additionally, granting discovery on the issue was independent of any ruling of admissibility of evidence at trial.
Doe's answer to VWC's Third Set of Interrogatories includes a notarized attestation, in which Doe "affirm[s] that all the answers attached are honest and truthful" and the notary public certifies that Doe "made oath that the statements in the attached pleadings are true and correct to the best of his [sic] knowledge, information and belief." (Mot. Sanctions Ex. F.)
During her deposition two months later, Doe confirmed that she was seeking damages related to her alleged loss of virginity:
Q Sexual history; as I understand it, you're claiming as part of your damages that you were a virgin and this assault took that away from you?(Id. Ex. A, at 167:7-10.)
A Correct.
Discovery revealed at least two social media exchanges prior to the Incident between Doe and an apparent sexual partner in which Doe appeared to reference instances in which she engaged in sexual intercourse. In one exchange, Doe wrote: "i just told my mom and she f****** hates me about us having sex." (Id. Ex. L.) In another exchange, Doe indicated: "we used a condom" and "we had sex at like 2 in the morning on sunday [sic] we are not lying about that" (Id. Ex. M.) There also were at least five social media exchanges prior to the Incident between Doe and third parties in which Doe claimed or implied that she had engaged in sexual intercourse. (Id. Exs. K, N, O, P, Q.)
Depositions of several of Doe's medical providers revealed that Doe had reported engaging in sexual activity or sexual intercourse prior to the Incident. Dr. James F. Cahill, M.D., who treated Doe after the Incident, testified at his deposition as follows:
Q When did [Doe] first become sexually active?(Mot. Sanctions Ex. J.) Dr. Michael Denicole, D.O., who also treated Doe after the Incident, testified as follows during his deposition:
W She reported that she had first become sexually active at the age of 16.
Q Did [Doe] report to you when she first had sexual intercourse?
A Yes, she did.
Q What did she tell you?
A At the age of 16.(Id. Ex. B.) During her deposition, Dr. Laura Carite, M.A., L.P.C., who was Doe's counselor, testified as follows:
Q Did [Doe] report engaging in sexual intercourse involving penetration prior to August 2012?(Id. Ex. R.)
. . .
A Yes.
Doe was 18 years old at the time of the Incident.
Discovery also uncovered a medical report that indicated that Doe's hymen was "not intact" prior to the Incident. (Resp. Mot. Sanctions Ex. B (dated August 8, 2011).)
Although a ruptured hymen certainly is not conclusive evidence of having engaged in sexual intercourse, Doe in fact provided the medical report to the Court and made this correlation when she admitted that she was not actually a virgin at the time of the Incident, as discussed infra.
In her Thirteenth Supplemental Responses to VWC's First Set of Interrogatories and Requests for Production of Documents—served on VWC approximately four months after the Court granted discovery regarding Doe's pre-Incident sexual history and approximately one month prior to the scheduled start of trial—Doe notified VWC, apparently for the first time, that "Ms. Doe will not be claiming the loss of virginity at trial." (Mot. Sanctions Ex. C.) Subsequently, in Doe's Objections to VWC's Witness and Exhibit List—filed with the Court days before the scheduled start of trial—Doe indicated, "Plaintiff will concede she was not a virgin at the time of the assault." (Id. Ex. S.) VWC filed its Motion for Sanctions shortly thereafter, and a hearing was held on April 11, 2016.
On the day before the scheduled start of trial, the trial was postponed due to inclement weather that prevented some counsel and witnesses from traveling to the City of Norfolk Courthouse.
Positions of the Parties
VWC's Motion for Sanctions
VWC argues that, by Doe initially claiming damages related to loss of virginity and subsequently conceding that she was not a virgin, Doe "has given sworn testimony and responded to discovery under oath with false answers apparently intended to defraud VWC out of thousands, if not millions, of dollars." (Mot. Sanctions 9.) VWC further asserts that these false statements "resulted in significant unwarranted bad publicity to VWC" and that "VWC has been required to expend large sums of goodwill, attorney's fees, expert witness fees, and other litigation costs." (Id.) VWC requests sanctions be imposed on Doe in the form of: (1) dismissal of the suit with prejudice; (2) awarding VWC its attorney's fees, costs, and expenses, with interest; (3) striking Doe's claim for damages; (4) advising the jury that Doe has made a false claim; and/or (5) otherwise as the Court deems just and appropriate.
Per its motion and as confirmed during the related hearing, VWC seeks sanctions only against Doe individually and makes no accusations of improper conduct against Doe's counsel. (Mot. Sanctions 1.)
Doe's Response to VWC's Motion for Sanctions
Doe responds that she "has not engaged in any discovery misconduct and has been nothing but honest throughout the course of litigation." (Resp. Mot. Sanctions 1.) Further, she "stands by the truth of everything she has stated in her discovery responses and deposition testimony." (Id. at 2.) Specifically, with respect to the social media exchanges between Doe and an apparent sexual partner prior to the Incident, Doe testified during her deposition that these were references to unsuccessfully trying to have sexual intercourse and to engaging in oral sex, and that the referenced condom was a cover story for her mother related to the attempted sex. (Id. Ex. A, at 302:21-303:2, 305:2-22.) Doe further testified that other social media exchanges between her and third parties—in which she claimed or implied that she had engaged in sexual intercourse prior to the Incident—constituted "embellishments by a teenage girl attempting to fit in with her friends" regarding events actually short of sexual intercourse. (Id. at 9; id. Ex. A, at 300:6-301:1, 301:18-302:1, 309:22-310:17, 311:5-24, 312:10-313:3.)
During her deposition, Doe also discussed another individual she identified as a second "sexual partner" with whom she attempted unsuccessfully to have sexual intercourse; she indicated that neither of the two sexual partners could penetrate her vagina due to the pain she experienced when each attempted to do so, allegedly as a result of a medical condition she has. (Resp. Mot. Sanctions Ex. A, at 285:14-286:3.)
According to Doe, "[g]iven her [in]ability to actually engage in anything other than an initial penetration [with Partner 1,] which had to be abandoned due to pain, [she] still considered herself to be a virgin notwithstanding her admission that her [sic] and Partner 2 had tried to have sex." (Id. at 10.) Doe asserts that "she never had a sexual encounter prior to Roe raping her that could fairly be treated as sexual intercourse." (Id. at 13.) Acknowledging that her hymen was not intact prior to the Incident, Doe admits "it was possible that [she] had achieved sufficient penetration in her attempts to have sex with Partner 1 and/or Partner 2 to rupture [her] hymen (of course, other explanations could be advanced as well)." (Id.) In short, Doe asserts that she "nonetheless [had a] sincere belief that she was a virgin" and that she was abandoning her loss of virginity damages claim due to the anticipated difficulty at trial of "explaining why she considered herself a virgin despite admitted brief and momentary penetration that needed to be abandoned due to pain." (Id. at 10, 11.)
Analysis
Legal Standard
Section 8.01-271.1 of the Code of Virginia states, in pertinent part:
[E]very pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name . . . . A party who is not represented by an attorney . . . shall sign his pleading, motion, or other paper and state his address.Va. Code § 8.01-271.1 (2015 Repl. Vol.).
The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper [and] (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact . . . .
. . . .
If a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including a reasonable attorney's fee.
Rule 4:12 of the Rules of Supreme Court of Virginia states, in pertinent part:
(a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
. . . .
(3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.
. . . .
(b) Failure to Comply With Order.
. . . .
(2) Sanctions by Court in Which Action Is Pending. If a party . . . fails to obey an order to provide or permit discovery . . . , the court in which the action is pending may make such orders in regard to the failure as are just . . . .
. . . .
(d) Failure of Party to . . . Serve Answers to Interrogatories. If a party . . . fails . . . to serve answers or objections to interrogatories submitted . . . , after proper service
of the interrogatories, . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just . . . . In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.Va. Sup. Ct. R. 4:12.
"Defendant[], as the moving part[y] in seeking sanctions, bear[s] the burden of proving by a preponderance of the evidence facts establishing misconduct warranting an award of sanctions." Lester v. Allied Concrete Co., 83 Va. Cir. 308, 321 (Charlottesville 2011), aff'd in part, rev'd in part on other grounds Allied Concrete Co. v. Lester, 285 Va. 295 (2013).
It is axiomatic that the law does not presume fraud; to the contrary, the presumption is always in favor of innocent conduct. Ein v. Commonwealth, 246 Va. 396, 401, 436 S.E.2d 610, 613 (1993). The burden on the party alleging fraud on the court therefore is to prove such conduct by clear and convincing evidence. Id.
In determining whether a party has committed fraud on the court, "a controlling factor is 'whether the misconduct tampers with the judicial machinery and subverts the integrity of the court itself.'" Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 142, 413 S.E.2d 630, 638 (1992) (quoting United Bus. Commc'ns, Inc. v. Racal-Milgo, Inc., 591 F. Supp. 1172, 1186 (D. Kan. 1984)).
Discussion
The Court has considered the pleadings, oral argument at the April 11, 2016, hearing, and applicable authorities.
VWC asserts that Doe provided an untruthful interrogatory answer and false deposition testimony in violation of Section 8.01-271.1 of the Code of Virginia (titled "Signing of pleadings, motions, and other papers; oral motions; sanctions") and Rule 4:12 of the Rules of Supreme Court of Virginia (titled "Failure to Make Discovery; Sanctions"). Neither of these addresses sanctions for false deposition testimony, and neither applies to untruthful interrogatory answers under the circumstances present here. The court nevertheless has the inherent power to find that a party committed a fraud on the court and to impose appropriate sanctions.
VWC also asserts that Doe's conduct violates Rule 3.3 of the Virginia Rules of Professional Conduct but, as VWC's motion is directed only against Doe individually and Doe is not a Virginia attorney, the Rules of Professional Conduct do not bind her conduct. The reference does, however, imply that Doe's conduct may constitute "a fraud upon a tribunal," which the Court addresses infra.
A. Sanctions Pursuant to Section 8.01-271.1 of the Code of Virginia Are Not Available.
Section 8.01-271.1 of the Code of Virginia does not authorize the court to impose sanctions against Doe in this case. The statute states, in pertinent part:
[E]very pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name . . . . A party who is not represented by an attorney, including a person confined in a state or local correctional facility proceeding pro se, shall sign his pleading, motion, or other paper and state his address.Va. Code § 271.1 (emphasis added).
The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper [and] (ii) to the best of his knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact . . . .
Rule 4:1(g) of the Rules of Supreme Court of Virginia—which applies to pre-trial discovery—contains very similar language. It also arguably is the proper source to cite, as it deals specifically with pre-trial discovery as opposed to general pleadings and motions. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 183 (2012) ("If there is a conflict between a general provision and a specific provision, the specific provision prevails."). Nevertheless, the language in the two sources is almost identical for purposes of this motion.
As an initial matter, the language of the statute specifically indicates that sanctions are available only when an attorney or party signs a "pleading, motion, or other paper" in contravention of the listed requirements. Although the document at issue here—an interrogatory answer—is not a pleading or motion, it arguably falls within the ambit of "other paper."
More importantly, however, the statute—like Rule 4:1(g) of the Rules of Supreme Court of Virginia, which contains similar language specifically addressing pre-trial discovery—contemplates one of two situations: a case with "a party represented by an attorney" and a case with "a party who is not represented by an attorney." The express language provides that an attorney signature is required for the former situation and an unrepresented party signature is required for the latter situation. When a party is represented by an attorney, therefore, it is the signature of the attorney that is required and to which the statutory certification—as well as the potential imposition of related sanctions—applies. There is nothing in the language of the statute—or in Rule 4:12—that equates an attestation of a party represented by an attorney with the required attorney certification; hence, the available sanctions associated with signing in violation of the statute when a party is represented by counsel can be assessed only against the attorney to whom the certification attaches.
Sanctions pursuant to Section 8.01-271.1 of the Code of Virginia therefore are not available against Doe under the circumstances present here.
B. Sanctions Pursuant to Rule 4:12 of the Rules of Supreme Court of Virginia Are Not Available.
Sanctions against Doe pursuant to Rule 4:12 of the Rules of Supreme Court of Virginia likewise are unavailable. In order for Rule 4:12 sanctions to be available, the court normally must first enter an order compelling discovery. Rule 4:12(b)(2) states, in pertinent part, that "[i]f a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make such orders in regard to the failure as are just." Va. R. Sup. Ct. 4:12(b)(2) (emphasis added).
The Rule does, however, include an exception. It provides that an evasive or incomplete interrogatory answer "is to be treated as a failure to answer," (Rule 4:12(b)(3)), and that, upon the failure to serve interrogatory answers, "[i]n lieu of any order or in addition thereto, the court shall require the party failing to act . . . to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust," (Rule 4:12(d)). Although an award of reasonable expenses, including attorney's fees, theoretically could be based on the failure to serve—or answer, under this theory—an interrogatory without issuance of a prior court order, the Court is not willing to go so far as to equate a failure to answer an interrogatory with a failure to serve an interrogatory. The Court also does not find that a false answer to an interrogatory—such as exists here—constitutes an evasive or incomplete interrogatory answer. Doe's interrogatory answer is neither evasive nor incomplete; rather, it simply is false.
Sanctions pursuant to Rule 4:12 of the Rules of Supreme Court of Virginia therefore are not available against Doe under the circumstances present here.
C. The Court Has the Inherent Power to Find That a Party Committed a Fraud on the Court.
Although Code Section 8.01-271.1 and Rule 4:12 are not applicable here, the Court nevertheless has the inherent power to address fraud on the court and, if such fraud is present, impose appropriate sanctions. See generally French v. Painter, 86 Va. Cir. 344 (Martinsville 2013). In this regard, the Court agrees with the position taken by the U.S. Court of Appeals for the Fourth Circuit:
Although this opinion does not hold precedential value, the Court finds the rationale offered by Judge Greer persuasive.
Due to the very nature of the court as an institution, it must and does have an inherent power to impose order, respect, decorum, silence, and compliance with lawful mandates. This power is organic, without need of a statute or rule for its
definition, and it is necessary to the exercise of all other powers. Because the inherent power is not regulated by Congress or the people and is particularly subject to abuse, it must be exercised with the greatest restraint and caution, and then only to the extent necessary.United States v. Shaffer Equip. Co., 11 F.3d 450, 461 (4th Cir. 1993); see also SunTrust Mortg., Inc. v. AIG United Guar. Corp., 2011 U.S. Dist. Lexis 33118, at *41 (E.D. Va. 2011) ("By now it is well-settled that fraud on the court or abuse of the judicial process warrants use of the inherent power to impose sanctions on the offending party or its counsel, or both.").
The Court does not consider the unpublished opinion to hold precedential value. The Court instead considers the rationale offered by the district court to the extent that the Court finds it persuasive. See Fairfax Cty. Sch. Bd. v. Rose, 29 Va. App. 32, 39 n.3, 509 S.E.2d 525 (1999).
Although Virginia appellate courts have not defined "fraud on the court," the Court finds the definition used by the U.S. District Court for the Eastern District of Virginia instructive:
A "fraud on the court" occurs where it can be demonstrated, clearly and convincingly, 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 of fact or unfairly hampering the presentation of the opposing party's claim or defense.SunTrust Mortgage, 2011 U.S. Dist. Lexis 33118, at *41-42.
Virginia courts have found that a party's untruthful answers to interrogatories and false deposition testimony can constitute a fraud on the court, thereby justifying the imposition of sanctions.
The Virginia Supreme Court has held that a false sworn interrogatory answer can constitute a fraud on the court. In Owens-Corning Fiberglas Corp. v. Watson, the Court found that Owens-Corning had committed a fraud on the court by falsely answering an interrogatory answer under oath in a federal case in Texas. 243 Va. 128, 413 S.E.2d 630 (1992). According to the Virginia Court: "Owens-Corning filed an answer to an interrogatory under oath. The answer contained a statement which Owens-Corning knew was patently false. This false statement, under oath, constituted a fraud upon the Texas court . . . ." Id. at 142, 413 S.E.2d at 638-39 (emphasis added).
Virginia circuit courts have awarded sanctions based on a party giving false deposition testimony. See, e.g., Ellerbe v. Lowe's Home Ctr., Inc., 47 Va. Cir. 464 (Richmond 1998) (finding that "[a] party's obligation to be truthful during discovery is absolute" and assessing a sanction of twenty-five percent of any verdict returned in plaintiff's favor); Guertler v. Ukrop's Supermarkets, Inc., 61 Va. Cir. 59 (Richmond 2003) (imposing a sanction of twenty-five percent of any verdict returned for plaintiff); Mayfield v. Southern Ry., 31 Va. Cir. 229 (Richmond 1993) (imposing a $10,000 sanction against plaintiff).
D. Doe Committed a Fraud on the Court.
It is undisputed that Doe took the positions—both in written discovery and during her deposition—that she was a virgin at the time of the Incident and that she initially was claiming damages related to her loss of virginity. Her attested interrogatory answer states that she "was a virgin" and "had not had sexual intercourse with anyone" prior to the Incident. In her sworn deposition testimony, she answered affirmatively that she was "claiming as part of [her] damages that [she was] a virgin and [that the Incident] took that away from [her]." It therefore was reasonable for VWC to conduct discovery regarding Doe's pre-Incident sexual history, as the Court so ruled in response to VWC's related motion to compel in August 2015. VWC did in fact conduct such discovery, uncovering documents that demonstrated that Doe's claim of virginity was false.
Doe also took these positions, via her counsel, during several hearings before this Court, including the hearings related to VWC's Motion to Compel discovery of Doe's sexual history and Doe's Eleventh Motion in Limine regarding Doe's prior sexual history.
It also is undisputed that Doe factually was not a virgin at the time of the Incident. She admitted to her medical providers that she had engaged in "sexual intercourse" and "sexual intercourse with penetration" prior to August 24, 2012, and a virgin—by definition—is a person who has not had sexual intercourse. Virgin, Merriam-Webster.com (May 9, 2016). Further, in response to VWC's Motion for Sanctions, Doe admitted that "it was possible that [she] had achieved sufficient penetration in her attempts to have sex with [two separate partners] to rupture [her] hymen" (emphasis added), effectively admitting that she had engaged in sexual intercourse. Most significantly, Doe ultimately conceded in a pre-trial filing that she was not a virgin at the time of the Incident.
The Court finds it noteworthy that Doe fails to address these admissions in her original response to VWC's Motion for Sanctions.
"Sexual intercourse" has been defined as "penetration of the female organ by the male organ, however slight." King v. Commonwealth, 165 Va. 843, 846, 183 S.E. 187, 189 (1936).
Doe takes the position that "[g]iven her [in]ability to actually engage in anything other than an initial penetration [with Partner 1] which had to be abandoned due to pain, [she] still considered herself to be a virgin notwithstanding her admission that her [sic] and Partner 2 had tried to have sex." Stated differently, Doe's position is that because she had a sincere belief that she was a virgin—based on her flawed interpretation of the term and because, according to Doe, "she never had a sexual encounter prior to [the Incident] that could fairly be treated as sexual intercourse"—she did not provide an untruthful interrogatory answer or false deposition testimony by asserting that she was a virgin.
Although a fraud on the court requires that the contemnor sentiently set in motion some fraudulent scheme or engage in other fraudulent conduct, and Doe apparently asserts that her "sincere belief" does not satisfy the "sentient" requirement, the Court finds that Doe's untruthful answer and false testimony were conscious and intentional. The Court simply cannot reconcile Doe's assertion of a sincere belief of virginity with the following: (1) social media exchanges that Doe had with an apparent sexual partner stating that "my mom hates me about us having sex," "we used a condom," and "we had sex at like 2 in the morning on sunday" (emphasis added); (2) Doe's admission that the fact that her hymen was "not intact" might have been because she "had achieved sufficient penetration in her attempts to have sex"; (3) Doe's admission to a medical provider that she was "sexually active" prior to the Incident; (4) Doe's admission to another medical provider that she had "sexual intercourse" prior to the Incident; and (5) Doe's admission to a third medical provider that she had "sexual intercourse with penetration" prior to the Incident. Ironically, to buttress her claim of veracity regarding her belief that she was a virgin at the time of the Incident, Doe asks the Court to accept her admissions that she was not truthful in seven different social media exchanges with others. (See Resp. Mot. Sanctions 2-8.)
Although Doe's social media exchanges with third parties claim or imply that she had engaged in sexual intercourse prior to the Incident, the Court need not rely on these exchanges in light of Doe's admissions.
Doe filed a Motion for Leave to Supplement Response to VWC's Motion for Sanctions on May 10, 2016—three months after she submitted her original response and two months after the hearing on VWC's Motion for Sanctions. In her untimely motion, Doe asks the Court to, inter alia, consider an "Unsworn Declaration of Laura Carite," in which Dr. Carite "clarifies" her deposition testimony by declaring: "Ms. Doe reported her sexual experiences prior to the [Incident,] which included 'sex'. We never discussed the matter in terms of her specifically completing 'sexual intercourse involving penetration' with any individual, nor did she ever indicate that she considered any specific experience to be 'sexual intercourse.'" Even if the Court were to consider this hearsay—and the hearsay within hearsay—and somehow discount Doe's admission, as expressed by Dr. Carite in her deposition, Doe separately admitted to Dr. Denicole that she had engaged in pre-Incident "sexual intercourse."
Perhaps more importantly, Doe's assertion that she had a sincere belief that she was a virgin at the time of the Incident is contradicted by her own statements and admissions. Doe clearly understood the definition of "virgin" based on her attested interrogatory answer; she declared that she "was a virgin when she was sexually assaulted by Robert Roe" and "[b]y definition, she had not had sexual intercourse with anyone before the attack." By contrast, evidence indicates that she admitted to Dr. Denicole that she had engaged in "sexual intercourse" and to Dr. Carite that she had engaged in "sexual intercourse involving penetration" prior to the Incident. In other words, Doe took contemporaneous positions that she "had not had sexual intercourse with anyone" (via her attested interrogatory answer (emphasis added)) and that she had sexual intercourse (via admissions to at least two medical providers). The Court therefore finds, by clear and convincing evidence, that Doe consciously and intentionally misrepresented in her attested interrogatory answer and sworn deposition testimony that she was a virgin at the time of the Incident.
As the Supreme Court of Virginia stated long ago, "falsehood is a badge of fraud, and a case which is sought to be supported, by means of deception may prima facie, until the contrary be shown, be taken to be a bad and dishonest case." Neece v. Neece, 104 Va. 343, 348, 51 S.E. 739, 740 (1905). As one modern court aptly opined: "Honesty is not a luxury to be invoked at the convenience of a litigant. Instead, complete candor must be demanded in order to preserve the ability of this court to effectively administer justice." Baker v. Myers Tractor Servs., Inc., 765 So. 2d 149, 150 (Fla. App. 2000). Simply stated, the ability to adjudicate a matter fairly and impartially relies on the honest pleading and presentation of evidence by the parties.
The Court finds, by clear and convincing evidence, that Doe was untruthful in her interrogatory response and testified falsely during her deposition, thereby committing a fraud on the Court.
E. Sanctions Against Doe Are Warranted.
Sanctions unquestionably are warranted. The question, then, is what sanctions are appropriate. VWC seeks, inter alia, dismissal of the case with prejudice. Although some Virginia courts in the past have dismissed cases based on a party committing fraud on the court, those cases involved conduct more contumacious than that present here. The Court similarly finds striking Doe's claim for damages—as VWC alternatively requests—to be too harsh a remedy in light of the circumstances.
The Court assumes VWC seeks to strike all of Doe's damages, as Doe already has withdrawn her claim for damages associated with her alleged loss of virginity.
Although the false loss-of-virginity damages claim has been withdrawn from the case by Doe and will not be presented to the jury, Doe's credibility—or lack thereof—is central to the case at bar, especially because there are no third-party witnesses to the alleged rape. In light of Doe's untruthful attested interrogatory answer and false sworn deposition testimony, the Court finds that the jury is entitled to be informed about Doe's false claim and concomitant lack of veracity. At trial, absent a stipulation satisfactory to all parties, VWC is permitted to confirm with Doe that she initially claimed loss of virginity as a component of her damages and follow up by asking her whether she in fact was a virgin at the time of the Incident on August 24, 2012. If Doe responds negatively, i.e., that she was not a virgin at the time, no further questioning on the issue of Doe's pre-Incident sexual history will be allowed. If, on the other hand, Doe responds positively, i.e., that she was a virgin at the time, the Court will allow VWC to conduct limited cross-examination regarding Doe's pre-Incident sexual history.
The Court notes that the claim was not withdrawn until after discovery had been completed and very shortly before the scheduled trial date.
Additionally, the Court finds that VWC is entitled to be compensated by Doe for the attorney's fees VWC expended during discovery of Doe's loss of virginity damages claim and that Doe otherwise should be sanctioned for her dishonesty. VWC stated during the hearing—and the Court does not find it surprising—that VWC's counsel did not maintain billing records segregated by individual claims such that VWC can identify the exact amount of attorney's fees—in terms of time spent on research, written discovery, depositions, pleadings, and hearings—attributable to the loss-of-virginity issue. Nevertheless, counsel for VWC represented that the attorney's fee amount certainly is in the tens of thousands of dollars. In light of the circumstances, the Court orders that five percent of any judgment awarded to Doe be paid to VWC to both compensate VWC and sanction Doe for her dishonesty.
This does not include compensation related to the related damage—and damage control—to VWC's reputation among its alumni and in the community, which VWC argues was required. The Court finds such damages too speculative to value and award based on the sparse evidence that has been presented to date. --------
Conclusion
For the above reasons, the Court GRANTS VWC's Motion for Sanctions and orders sanctions as delineated above. The Court directs counsel for VWC to prepare and circulate an Order consistent with the ruling in this Opinion and submit it to the Court for entry prior to the start of trial.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/bih