Cedrick Frazier, et al. v. Southeast Georgia Health System, Inc., et al.
1. Now exists split of authority where Ninth Circuit, in Gregory v. State of Montana, 118 F.4th 1069 (9th Cir. 2024), held district court committed legal error by relying on inherent authority in imposing sanctions because Fed.R. Civ.P.37(e) governs both loss of electronically stored information ["ESI"] and by its plain terms displaces court's power to invoke inherent authority. Here, the suit was colorable because it was scheduled for trial and there was a prior finding of "No Bad Faith." Goodyear Tire and Rubber Co. v. Haeger, 137 S.Ct. 1178, 1189 (2017). Tenth and Seventh Circuits hold "fraud upon the court" is directed to judicial machinery itself and not alleged fraud between parties. Here, the attorney was not implicated and parties were not given notice of "fraud upon the court" prior to hearing. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944).
The first question presented is:
Whether federal court's case-ending sanction relying on inherent authority based on implied fabrication of ESI and surprise finding of "fraud upon the court" is punitive and legal error violating Seventh Amendment and due process rights thereby requiring criminal protections and application of Rule 37(e) where: 1) colorable MedMal jury trial scheduled; 2) no willful contempt; 3) dismissal Order omits prior finding of "No Bad Faith;" and 4) record modification by other parties during litigation?
2. The second question presented is:
Whether a federal court commits legal error when partial summary judgment order dismisses professional negligence, informed consent and punitive damages claims specifically pleaded in the complaint against individual doctor supported by non-excluded, medical expert affidavits alleging breaches of the standard of care, to include the falsification of patient record that is admittedly incorrect and backdated?
Whether a federal court can impose case-ending sanctions based on inherent authority for alleged ESI fabrication when a colorable medical malpractice trial was scheduled and no willful contempt was found