Utah Court of Appeals
Can estimates constitute perjury in arbitration proceedings? Fleming v. Simper Explained
Summary
The Flemings sued Dr. Simper for medical malpractice, alleging negligent discharge after gastric bypass surgery. After losing at arbitration, they challenged the award claiming Dr. Simper committed perjury by testifying he discharged approximately one-third of patients with supplemental oxygen when hospital records showed only thirteen percent. The trial court confirmed the arbitration award.
Analysis
In Fleming v. Simper, the Utah Court of Appeals addressed whether an arbitration award could be vacated based on allegedly perjured testimony that turned out to be estimates rather than precise factual statements. This case provides important guidance for practitioners challenging arbitration awards on fraud grounds.
Background and Facts
The Flemings filed a medical malpractice claim against Dr. Simper, alleging he negligently discharged Ms. Fleming after gastric bypass surgery. During his deposition, Dr. Simper testified that he “probably” discharges “a third” of his post-gastric bypass patients with supplemental oxygen. After losing at arbitration, the Flemings obtained hospital records showing that only 13% of patients were discharged with oxygen during August 2001. They challenged the arbitration award, claiming Dr. Simper committed perjury by providing false testimony about discharge rates.
Key Legal Issues
The central issue was whether Dr. Simper’s testimony constituted fraud sufficient to vacate the arbitration award under Utah Code section 78-31a-14. The court adopted a three-part test requiring clear and convincing evidence that: (1) the fraud was not discoverable through due diligence prior to arbitration, (2) the fraud materially related to an issue in arbitration, and (3) the witness willfully provided false testimony.
Court’s Analysis and Holding
The court distinguished between estimates and factual assertions, holding that Dr. Simper’s testimony constituted an approximation based on his perception rather than willful false testimony. The court emphasized that perjury requires “willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory.” Since Dr. Simper explicitly described his testimony as a “rough estimate” and kept no exact records, the court found no evidence of deliberate deception.
Practice Implications
This decision establishes that challenging arbitration awards on fraud grounds requires more than showing inaccurate testimony. Practitioners must prove willful deception rather than honest mistakes or estimates. Additionally, parties seeking to challenge awards must demonstrate due diligence in discovery and establish that the allegedly false testimony was material to the arbitrator’s decision.
Case Details
Case Name
Fleming v. Simper
Citation
2007 UT App 102
Court
Utah Court of Appeals
Case Number
No. 20051174-CA
Date Decided
March 22, 2007
Outcome
Affirmed
Holding
An arbitration award is not procured through fraud when a physician provides an estimate about discharge rates rather than exact statistics, absent clear and convincing evidence of willful false testimony.
Standard of Review
Correctness for conclusions of law; clearly erroneous for findings of fact
Practice Tip
When challenging arbitration awards for fraud, ensure you have clear and convincing evidence of willful false testimony rather than mere estimates or approximations, and establish materiality to the arbitrator’s decision.
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