Accountability: Carswell A — Daniel E. Holloway, Attorney

Perjured testimony is at war with justice…. Perjury undermines the function and province of the law and threatens the integrity of judgments that are the basis of the legal system.

— US v. Alvarez, 567 US 709 (2012)

INTRODUCTION

This is an unsettling and unpleasant motion. It makes a distressing accusation: At trial, the Defendants (“Emory”) willfully solicited perjured testimony by Louis Guzzi, MD. That testimony was central to Emory’s defense — as to both causation and contributory negligence. An accusation of fraud on the Court is disquieting. But the accusation has merit.

In short, Emory solicited testimony by Dr. Guzzi (in his re-direct testimony from Florida via Zoom) that Jeni Carswell suffered cardiac arrest when Jeni was intubated during the “Code Blue” — around 6:20 to 6:40 AM:

Defense Counsel: How long in this case was it when she went into respiratory arrest before she went into cardiac arrest?

Dr. Guzzi: She went into cardiac arrest very quickly after that. They either in I think it was four to six minutes she was put into cardiac arrest where she got intubated. And they had that time period was 6:40 plus.

Defense Counsel: And is that timeframe sufficient to cause an anoxic injury like the one Ms. Carswell suffered?

Dr. Guzzi: Yes, it is.

If true, the statement that Jeni suffered cardiac arrest would have helped to sever the causal connection between Jeni’s brain injury and the standard-of-care violations alleged by Plaintiff — the failures to provide Jeni BiPAP breathing support and continuous oxygen monitoring. What’s more, during closing argument, Emory counsel expressly and repeatedly told the jury that Emory’s violations didn’t matter, because Jeni suffered her anoxic brain injury later, during the time she suffered the fictitious cardiac arrest. There can be no doubt, therefore, as to Emory’s motive for eliciting the false statement at issue.

The testimony that Jeni suffered cardiac arrest during the Code was a statement of fact, not opinion. Cardiac arrest occurs when your heart stops pumping blood. During the “Code” events — and then afterward in the ICU — Jeni Carswell was being monitored, with her vital signs frequently measured. Her heart rate and blood pressure were vigorous throughout the period, proving that her heart did not stop pumping blood. Although they were working on Jeni and monitoring her directly during the “Code” events and then in the ICU, no physician or nurse even hinted that Jeni had suffered cardiac arrest. No one gave Jeni CPR. No one jolted her with a defibrillator. No one gave her any medications to re-start her heart. It was a false statement of objective fact to say Jeni suffered cardiac arrest in this time period.

Emory, their lawyers, and Dr. Guzzi knew that Jeni Carswell did not suffer cardiac arrest. Dr. Elizabeth De responded to Jeni’s “rapid response” Code, escalated it to a Code Blue, and ran the Code. In her deposition, she testified as follows (at page 117):

In his deposition, Dr. Guzzi testified that Jeni “never” suffered cardiac arrest (at page 180):

Emory’s counsel knew Jeni did not suffer cardiac arrest. In taking the deposition of Dr. Horton McCurdy, Emory’s counsel agreed with the witness that “we know she didn’t have cardiac arrest” (pages 68-69, 85):

* * *

Emory knew Dr. Guzzi’s trial testimony about cardiac arrest was false when they elicited that testimony. Dr. Guzzi knew it was false when he gave it. Emory knew it was false when they emphasized it during their closing argument.

The cardiac-arrest falsehood was potentially dispositive (if it were true). Dr. Guzzi said Jeni suffered cardiac arrest 10-30 minutes after a “rapid response” Code was called for Jeni because of respiratory distress. If such a cardiac arrest had occurred, it would arguably sever the causal connection between Jeni’s prior respiratory distress and her brain injury. Dr. Guzzi’s perjury aimed at the crux of the case.

Emory and Dr. Guzzi were intimately familiar with the relevant medical records. Dr. Guzzi cited them repeatedly. It is not plausible that his cardiac-arrest story was an innocent mistake.

———

Because it went to the critical issue of causation, the perjury likely contributed to the hung jury that resulted in a mistrial. Emory and Dr. Guzzi joined together in lying to the jury on the last day of evidence. Then Emory emphasized the lie in their closing argument.

In lying to the jury, Emory and Dr. Guzzi borrowed the dignity of the Court and the imprimatur of the Oath. They lied under the supervision of the Court. And they lied for the purpose of cheating a brain-injured woman whose hope for a decent life over the next 30 or 40 years hung in the balance. Emory also abused and wasted the resources of the Court — roughly two weeks of a crowded calendar, and the time of 13 jurors who were pulled out of their lives for about two weeks.

“Perjury undermines the function and province of the law and threatens the integrity of judgments that are the basis of the legal system.” US v. Alvarez, 567 US 709 (2012). “The responsibility of an ethical lawyer, as an officer of the court and a key component of a system of justice, dedicated to a search for truth, is essentially the same whether the client announces an intention to bribe or threaten witnesses or jurors or to commit or procure perjury. No system of justice worthy of the name can tolerate a lesser standard.” Nix v. Whiteside, 475 US 157 (1986).

For these reasons, the Court possesses not only the power to sanction perjury at trial, but the responsibility to do so. A court in which litigants can solicit perjured testimony with impunity is not really a court. Nominal courts exist in some countries. Those courts are suitable for ceremonial functions and show trials, but they do not serve as courts of justice that deserve or enjoy public respect.

Plaintiff asks the Court for the following relief and sanctions:

· As to the Emory Defendants:

o To strike their Answers, enter a default judgment, and set a trial on damages,

o To order that Plaintiff is the prevailing party, to find pursuant to OCGA 9-15-14 that Emory presented a bad-faith defense, and to award attorney fees and litigation expenses to Plaintiff after a final judgment, and

o To order Emory to pay Plaintiffs’ expenses of the recent trial that ended in a mistrial;

· As to John Fitzpatrick, Esq:

o To revoke his pro hac vice admission for participating in procuring perjury,

o To find him in contempt of court and impose whatever penalty the Court deems just, and

o To refer the matter to the Colorado State Bar;

· As to David Ladner, Esq:

o To find him in contempt of court and impose whatever penalty the Court deems just, and

o To refer the matter to the State Bar of Georgia;

· As to Louis Guzzi, MD:

o To find him in contempt of court and impose whatever penalty the Court deems just, and

o To refer the criminal matter to the District Attorney.

FACTS

What Cardiac Arrest Is

Cardiac arrest occurs when the heart stops beating. From Black’s Medical Dictionary, 43d Ed. (2017):

Similarly, from the Oxford Concise Colour Medical Dictionary, 7th Ed. (2020):

Jeni Carswell Did Not Suffer Cardiac Arrest on June 10, 2015

The contemporaneous medical records establish that Jeni did not suffer a cardiac arrest. We attach as Exhibit A an affidavit from Dr. Hans (John) Schweiger. In that affidavit, Dr. Schweiger walks through the medical records in detail. In brief, however, we have vital-sign recordings from the time of the first, “rapid response” Code, through the Code Blue, until Jeni was moved to the ICU where she was hooked up to continuous cardiac monitoring. The records establish that Jeni did not suffer cardiac arrest. Jeni’s vital signs were as shown below.

Dr. Guzzi testified that Jeni went into cardiac arrest “where she got intubated. And they had that time period was 6:40 plus.” The records prove that testimony false. Jeni’s heart rate was vigorous before, during, and after the time she was intubated. Furthermore, Dr. Elizabeth De’s contemporaneous progress note stated the reason for intubating Jeni, and the reason was not cardiac arrest. The reason was that Jeni “was becoming hypoxic [i.e., lacking sufficient oxygen] and obviously unable to protect her airway.”

Time

Heart Rate

Blood Pressure

0610 hrs

108

146/63

0622 hrs

120/68

0626 hrs

Code 3 converted to Code Blue — Anesthesiologist summoned for intubation

“Decision made to intubate as patient was becoming hypoxic and obviously unable to protect her airway.”

0630 hrs

106/65

0632 hrs

Intubation completed

0633 hrs

114

113/59

0638 hrs

111

113/46

0643 hrs

111

124/70

0643 hrs

Moved to ICU

0655 hrs

107

No entry recorded

0715 hrs

103

98/60

0730 hrs

103

95/64

Two physicians were present for Jeni’s “Code 3” and “Code Blue” events. Dr. Elizabeth De responded to the original Code, supervised the Code response, and was present for the entire event. Dr. De eventually called an anesthesiologist to intubate Jeni and put her on a mechanical ventilator. Dr. De recorded this series of events, and the reason for intubation, in the medical note she wrote immediately after Jeni’s “Code Blue.” In that note, Dr. De says nothing about cardiac arrest:

. . .

The anesthesiologist who intubated Jeni said the same thing: The concern was respiratory distress — nothing about cardiac arrest:

Furthermore, the “Code Blue” record shows that CPR (cardiopulmonary resuscitation) was not used with Jeni. Nor was AED (automatic external defibrillator) used with Jeni. For a patient whose heart stops beating, those are elementary life support measures. The Code Blue Record again shows that Jeni’s heart rate and blood pressure remained vigorous. It also shows that Jeni’s cardiac rhythm was “ST,” meaning Sinus Tachycardia. As Mayo Clinic explains, “Sinus tachycardia refers to a typical increase in the heart rate often caused by exercise or stress.”[1] From Jeni’s “Code Blue” record:

From the time Jeni was moved to the ICU around 6:43 AM until Jeni was transferred to another hospital later that day, there are nine physician notes on Jeni’s condition. Not one of them mentions cardiac arrest. See Dr. Schweiger’s affidavit for a walk-through of those physician notes.

Additionally, there is a discharge summary for Jeni’s admission at Emory Johns Creek Hospital from June 7-10, 2015. The discharge summary says nothing about cardiac arrest. It speaks of respiratory arrest (which means you stop breathing), but nothing about cardiac arrest (in which your heart stops beating):

We have searched the electronic records from this admission (over 500 pages) and the term “cardiac arrest” occurs only once.

That single occurrence is boilerplate language in connection with an informed-consent form for insertion of a catheter — in a list of risks that range from infection and allergic reaction to death:

Jeni Carswell did not suffer a cardiac arrest. There is not the remotest factual basis for saying she did.

Dr. Guzzi’s Deposition Testimony

In his deposition, Dr. Guzzi admitted that Jeni did not suffer cardiac arrest:

Page 180

Page 207

Page 211

Page 213

Emory Counsel’s Understanding

Emory’s counsel personally understood that Jeni did not suffer cardiac arrest. On September 8, 2020, Emory took the deposition of a rebuttal toxicologist Plaintiff had retained — Dr. Horton McCurdy. Dr. McCurdy had made notes concerning potential complicating factors that would limit the ability to identify the half-life of Xanax in Jeni Carswell’s body in the period around June 10, 2015. In his notes on “other likely contributing factors of unknown extent,” Dr. McCurdy included two points specifically referencing cardiac arrest. From McCurdy Depo Exhibit 4:

In taking Dr. McCurdy’s deposition, Emory’s counsel agreed with Dr. McCurdy that the points concerning cardiac arrest were irrelevant “because we don’t have a cardiac arrest” in this case. (McCurdy depo, pg 68-69, 85.)

* * *

Emory’s Solicitation of Perjury by Dr. Guzzi

We have requested the transcript of Dr. Guzzi’s testimony and Emory’s closing argument. We will supplement this motion with the certified transcript when it becomes available. In the meantime, the video of that testimony and argument is at the link in the footnote.[2]

At trial, as the last witness the jury heard, Dr. Guzzi testified that Jeni suffered a sudden, late cardiac arrest. He said it was this cardiac arrest that caused Jeni’s brain injury. Dr. Guzzi thus purported to separate Jeni’s brain injury from the respiratory problems she suffered in the hours before the Code:

So the whole discussion of BiPAP is, could almost be the same discussion as the hypertension, the obesity and all those other components. Yes, they are her problems. Yes, they’re identified with uh, her seizure. But at the end of the day, it was something else that caused her to become apneic or bradypneic that morning, that led to her CARDIAC EVENT THAT LED TO HER ANOXIC ENCEPHALOPATHY.

* * *

Defense Counsel: And when you have respiratory arrest, which you I believe think occurred around six twenty

Dr. Guzzi: Six-twenty to six-twenty [unintelligible] They didn’t find their note when they said she was becoming altered. So somewhere in there, she had a respiratory event that led them — she was both unresponsive, and airway was mentioned. That usually means you’re not breathing.

Defense Counsel: How long in this case was it when she went into respiratory arrest before she went into cardiac arrest?

Dr. Guzzi: She went into cardiac arrest very quickly after that. They either in I think it was four to six minutes she was put into cardiac arrest where she got intubated. And they had that time period was 6:40 plus.

Defense Counsel: And is that timeframe sufficient to cause an anoxic injury like the one Ms. Carswell suffered?

Dr. Guzzi: Yes, it is.

Dr. Guzzi Confirms the Perjury Was no Slip of the Tongue

On re-cross examination, Plaintiff’s counsel confronted Dr. Guzzi with one of the deposition sections in which Dr. Guzzi had acknowledged that Jeni Carswell never suffered cardiac arrest. In response to this impeachment, Dr. Guzzi dug in and re-committed to his perjury:

Plaintiff’s Counsel: I think I just heard you say that she had cardiac arrest at what time?

Guzzi: In the ICU, they called a code on her. I’d actually have to look at the code sheet I thought it was in the 6:26 or 6:30, intubated, or 6:32. I do remember that. But I don’t know when they actually called the code.

Plaintiff’s Counsel: Well, I’m going to read from page 211 of your deposition on line 2 and ask you some questions. In your deposition, the question was asked “If it, if it started at, say, 5:15, it couldn’t be immediate respiratory arrest, because she would have been dead by six o’clock. Right?” And your answer was “Cardiac arrest? Yes. But her saturation’s at 83 at 6:10. So it was probably much closer to 5:45, 5:50-ish. Do you remember that in your testimony?

Guzzi: I just said the same answer — sometime in that window between 5:40 and 6:40. That’s when all these events occurred. Yeah.

Plaintiff’s Counsel: Right. Next question was, “I was talking respiratory arrest, you answered cardiac arrest.” And then your next answer was “No, no, no. Well I said no, that she didn’t have cardiac arrest.” But the resp—

Guzzi: Not at 5:50, no. That’s what I just said. I didn’t say she did not have one the entire time. The question was, “Did she have cardiac arrest at 5:50 before the [???]. The answer was no, she was still breathing. SHE SUFFERED CARDIAC ARREST IN THE ICU.

Plaintiff’s Counsel: Let me finish reading the deposition if I could, Doctor. I read your answer. So your answer was “No, no, no. Well I said no, that she didn’t have cardiac arrest.” But the respiratory arrest, based upon her saturation of 83% probably was more likely between 5:45 and 5:50.” Next question: “Right. So first of all, just to clear this up, she never had cardiac arrest. Right?” And your answer was “She did not?” Isn’t that what you testified to?

Guzzi: That, that is correct. But I thought it was in context with the previous question of 5:50. That’s, that’s a context question. IF I’D BEEN ASKED IF SHE HAD A CARDIAC ARREST IN THE HOSPITAL, WHICH I WAS NEVER ASKED, THE ANSWER WAS YES. You’re again, it’s context. No one asked me if she had a cardiac arrest. In that time period, I believed that was carrying through from that, I believe, that 5:50 question, 5:45 question.

Emory’s Reliance on the Perjury in Closing Argument

In closing argument — working from PowerPoint slides — Emory put the cardiac-arrest lie at the center of Emory’s causation defense:

Excerpt 1

But you heard doctor Guzzi say this morning she went into cardiac arrest around 6:30 and it can take around 6 minutes or so to go from respiratory arrest, stopped breathing, to cardiac arrest. And during that time, you can suffer from the anoxic brain injury that Miss Carswell unfortunately has suffered here. BiPAP doesn’t prevent cardiac arrest. There’s not even a suggestion of that. So early interventions wouldn’t have changed the outcome, even if she had been on continuous monitoring and we had rushed to the room, the cascade is on the way down, and we’re going to do all we can, but she is still going to arrest and she’s still going to have the anoxic brain injury. So if we had been there earlier, it would not change the outcome in this case, because it’s the overdose that put her into respiratory failure, not the lack of BiPAP, not the lack of continuous monitoring. All of this is based in fact.

Excerpt 2

This is not made-up folks; this is what really happened. And she did not violate the standard of care. We know Miss Carswell didn’t have an oxygenation problem. Her blood pressures and heart rate were also good during the code. And this is a sign that she was perfusing well, and oxygenated, albeit with a rebreather mask, and when she was in respiratory distress when she arrived, but not cardiac arrest. That happened later.

Excerpt 3

Again, causation. BiPAP wouldn’t have helped. Continuous monitoring would not have helped. And if Miss Carswell — they found, they found earlier with continuous monitoring it wouldn’t have changed the outcome. She was in respiratory distress around 6am and at 6:20 went into respiratory arrest. At 6:30 she was in cardiac arrest and it was during this 10 minute period that she suffered her anoxic brain injury.

Dr. Guzzi’s false testimony was not a surprise mistake that Emory backed away from. Emory procured, relied on, and polluted jury deliberations with, perjured testimony.

Fact, Not Opinion

Dr. Guzzi testified that Jeni Carswell went into cardiac arrest in a time period when Jeni was under direct observation, and when physicians and nurses were frequently recording Jeni’s vital signs. This is not a case of missing data, for which experts can speculate and opine about what might have happened in the period for which we have no direct information. Here, it is a question of objective fact whether the recorded data shows cardiac arrest.

ARGUMENT

After a hearing, the evidence will support a finding that Emory procured testimony they knew to be false, on a critical issue of fact. The question then becomes (a) what remedies and sanctions lie within the Court’s power, and (b) in the Court’s exercise of its discretion, what remedies and sanctions are appropriate.

1. The Court has the power to impose the sanctions Plaintiff requests.

Plaintiff requests specific remedies and sanctions. We address them separately.

1.1. The Court’s inherent powers to sanction misconduct at trial extend to striking Emory’s Answers.

Our Supreme Court holds that a trial court has the “inherent power to efficiently administer the cases upon its docket, as well as [] to compel obedience to its orders and control the conduct of everyone connected with a judicial proceeding before that court.” Pennington v. Pennington, 291 Ga. 165 (2012).[3] Emory’s fraud on the Court implicates the power to administer the Court’s docket, because the fraud likely contributed to a mistrial and thereby abused and wasted extensive judicial resources. Emory’s fraud also implicates the Court’s power to “control the conduct” of the individuals involved.

The Court’s inherent power in this regard includes the power to strike pleadings. In Pennington, the Supreme Court held that “A trial court may strike a party’s pleadings as a proper sanction for willful refusal to participate in the proceedings….” Id. The Pennington case addressed a divorce dispute in which one of the parties refused to participate.Pennington did not address perjured testimony at trial. The question here, then, is whether this power to strike pleadings also exists in the present circumstances. The answer is Yes.

Georgia law supports the inherent power to strike pleadings as a sanction for procuring perjured testimony at trial. First, the Pennington court grounded the power to strike pleadings in the trial court’s power, among other things, to efficiently administer the docket and to “control the conduct of everyone connected with a judicial proceeding before that court.” Those powers are called into action when a party commits a fraud on the court by procuring perjured testimony at trial, and thereby contributes to a mistrial.

Second, perjury and fraud on the court threaten the fundamental purpose of the courts, and the ability of the courts to serve their function as arbiters of justice. As important as it is for courts to be able to compel attendance at hearings, the ability of courts to deter and punish perjury is greater. It would be either farcical or debased to say a power available to punish a failure to appear at a hearing is denied when a party shows up with perjured testimony.

Third, the sanctions available for the lesser offense of discovery abuse include the striking of pleadings. OCGA 9-11-37(b)(2)(C). Thus, for example, in a legal malpractice case, the Court of Appeals recently affirmed a trial court’s striking of a defendant’s answer and entry of default judgment. In Potts v. Clowdis, 360 Ga. App. 581 (2021), the trial court struck the answer because of discovery abuse consisting of improperly withholding discovery documents and engaging in evasions and deceptions in the effort to hold onto the documents.

Georgia courts have frequently struck pleadings as a sanction for discovery abuse. Our Supreme Court recently noted that in some cases, this severe sanction may be appropriate even without a hearing:

[T]he disciplinary cases in which we have affirmed the imposition of the harshest sanction without a hearing have involved a party's total failure to respond to discovery or to provide any explanation for the failure to meet his discovery obligations….

In re Farnham, 312 Ga. 65 (2021). The Farnham Court went on to list four such cases — and three others in which it had affirmed the striking of pleadings after a hearing on the matter. (Plaintiff here asks the Court to conduct a hearing.)

Faced with egregious misconduct, Georgia courts — trial and appellate alike — are not squeamish about striking a party’s pleadings. The Court has the power to strike Emory’s Answers as a sanction for committing a fraud on the Court by procuring Dr. Guzzi’s perjured testimony. Below, we discuss the propriety of exercising that power here.

1.2. To strike Emory’s Answers, the Court must find that Emory’s fraud on the Court was not an accident.

“Generally dismissal, default, and striking a party's pleadings are considered to be the harshest sanctions. The trial court must find willfulness as a predicate to imposing those sanctions.” Dentistry for Children of Ga. v. Foster, 362 Ga. App. 217 (2022).

However, as the Foster court goes on to say, “Willfulness in this context requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. There is no requirement that the party display and the trial court find actual willfulness.”

Emory’s fraud on the Court was not an accident. The law authorizes the Court to strike Emory’s Answers.

1.3. The Court has power to find individuals in contempt, to revoke pro hac vice admission, and to refer matters to other authorities.

The Court needs no legal power in order to refer matters to the District Attorney or State Bar.

As for contempt powers, the Court is empowered by OCGA 15-1-4 “to issue attachments and inflict summary punishment for contempt of court” in cases of “Misbehavior of any person or persons in the presence of such courts or so near thereto as to obstruct the administration of justice…” Such summary punishment is limited to a fine of up to $1,000 or imprisonment of up to 20 days, or both. OCGA 15-7-4. Procuring or giving perjured testimony to a jury under the eyes of the Court is an affront to justice and to the integrity of the Court. It displays contempt for the Court, and merits strong sanctions therefor.

As for revocation of pro hac vice status: Uniform Superior Court Rule 4.4 vests that power in the discretion of the Court. Rule 4.4(D)(3) empowers the Court to revoke pro hac vice admission if, among other reasons, “such admission (a.) may be detrimental to the prompt, fair and efficient administration of justice.” It is detrimental to justice to let pro haclawyers participate in procuring perjured testimony.

—————

The Court has power to order all the remedies and sanctions Plaintiff requests. The question is whether it would be proper to order them.

2. Emory’s fraud merits the most severe sanctions available.

Perjury is a mortal threat to the function, legitimacy, and respect of any court. “Perjured testimony is at war with justice…. Perjury undermines the function and province of the law and threatens the integrity of judgments that are the basis of the legal system.” US v. Alvarez, 567 US 709 (2012). A justice system that tolerates perjury won’t remain a justice system for long. “The responsibility of an ethical lawyer, as an officer of the court and a key component of a system of justice, dedicated to a search for truth, is essentially the same whether the client announces an intention to bribe or threaten witnesses or jurors or to commit or procure perjury. No system of justice worthy of the name can tolerate a lesser standard.” Nix v. Whiteside, 475 US 157 (1986). Particularly now, when trust in public institutions is suffering, the integrity of the court needs strong vindication and protection. Where perjury defiles a trial jury on a material issue, the fraud on the court warrants the maximum sanction.

Here, Emory knowingly and willfully procured perjured testimony on a critical issue. They did so with the last witness the jury heard before closing arguments. Then in closing argument, Emory emphasized the false point supported by the perjured testimony.

Emory did not stumble into fraud on the Court. Emory is an immensely sophisticated litigant. In this case, Emory was defended by two law firms — one local, one from out of state. Emory’s risk managers attended the trial. With all this assistance, focus, and effort, Emory engaged in a premeditated, calculated fraud.

The cost of Emory’s fraud is large. For Jeni Carswell, it means additional months or years without a fair verdict. For the Court, the cost of Emory’s fraud is the abuse and waste of extensive judicial resources — including the abuse and waste of the jurors’ time, sacrifice, cooperation, and good will.

The gain to Emory, however, was the avoidance of a verdict that could reasonably have been as high as, or higher than, 40 million dollars.

The gravity of the offense, this high cost it created, and the potential benefit to Emory of the fraud all merit the most severe sanction available to the Court — striking Emory’s Answers. Anything less would constitute an implicit confirmation by the Court that Emory’s procuring of perjured testimony was smart, a good bet, that it paid off — that it spared Emory perhaps $40 million or more at the cost of a mere scolding. Anything less than striking Emory’s Answers would mark this as a Court in which perjury pays off.

3. Emory’s likely arguments fail.

3.1. Dr. Guzzi’s cardiac-arrest testimony was not a matter of opinion.

Emory has to say Dr. Guzzi’s cardiac-arrest testimony was merely a matter of opinion. But it wasn’t. If a person dies at home unobserved, with no evidence of her vital signs in the hours before death, it may be a matter of opinion whether she suffered cardiac arrest. But when a hospital patient is under direct observation — with nurses and physicians working on her and recording vital signs — it is a question of objective fact whether the vital signs show that the patient’s heart stopped beating.

The latter case is what we have here. A “rapid response” code was called. After nurses and physicians responded, they escalated it to a Code Blue. Then they sent Jeni to the ICU, where vital signs are monitored continuously. So we have the measurements for Jeni’s heartrate, blood pressure, and heart rhythm. The measurements — as well as the conduct and contemporaneous notes of the nurses and physicians — show that Jeni never lost her heartbeat. That’s a matter of fact, not opinion.

3.2. Emory’s falsehood is not merely arguable. It is clear and stark.

Emory will want to say litigants and lawyers are always accusing each other of perjury, and courts can’t afford to bother with such accusations. First, none of Plaintiff’s attorneys have ever made an accusation like this. The situation here is extraordinary for us. Second, it may be reasonable for courts to disregard accusations of perjury when the alleged perjury is merely arguable. In this case, however, the perjury is clear and stark.

3.3. It was not Plaintiff’s duty to prevent or cure Emory’s fraud.

Emory will say it was Plaintiff’s duty to object to perjured testimony when it was uttered, and that by failing to do so, Plaintiff waived the issue. Similarly, Emory will say Plaintiff could impeach Dr. Guzzi by exposing his perjury, and that this suffices as a remedy. But a litigant cannot “waive” an issue of perjury that goes to the integrity of the judicial proceeding itself. And courts — not litigants alone — are charged with protecting the integrity of proceedings.

Our Supreme Court holds that even where all the parties agree on a deception, the trial court remains obligated to prevent and cure it. In the context of criminal plea agreements, the Supreme Court emphasizes the independent duties of trial courts to protect the integrity of the justice system:

The parties, by contract or acquiescence, simply cannot eliminate their own burden of proving compliance with the terms of a plea agreement or the trial court’s oversight of the plea bargaining process and its inherent power to protect the integrity of the judicial system. See Mooney v. Holohan, 294 U. S. 103, 112 (55 SCt 340, 79 LE 791) (1935) (the deliberate deception of court and jury by the presentation of testimony known to be perjured violates the fundamental conceptions of justice). See also Williams v. State, 250 Ga. 463, 466 (298 SE2d 492) (1983) (“[W]e cannot and will not approve corruption of the truth-seeking function of the trial process.”); Ritsema, supra at 401-402 (plea agreement may be rescinded based on the defendant’s breach of plea bargain to preserve the integrity of the judicial process); United States v. Britt, 917 F2d 353, 355 n. 2, 359 (8th Cir. 1990) (inherent power to protect integrity of the judicial process authorized trial court to vacate guilty plea it had previously accepted where, prior to sentencing, defendant willfully failed to fulfill his obligation to testify truthfully at co-defendant’s trial).

State v. Lewis, 298 Ga. 126 (2015). Similarly, in a criminal case involving alleged perjury by a prosecution witness, the Supreme Court rejected the prosecution’s argument that it was the defendant’s burden to protect itself against the alleged perjury:

The state urges that the defendant should have done more than he did to protect himself. We find that the state should have done more than it did to protect the defendant’s rights.

Williams v. State, 250 Ga. 463 (1983).

At trial, using his deposition testimony, Plaintiff’s counsel did attempt to impeach Dr. Guzzi after he perjured himself. But Dr. Guzzi then doubled-down on his perjury, by testifying that he had provided the “same answer” at deposition. So, in order to defend his false trial testimony, Dr. Guzzi also mischaracterized his deposition testimony. As such gamesmanship shows, impeachment is not a magic bullet, especially where a sophisticated party and witness are committed to falsehood and prepared to rationalize it. Impeachment is also not a time machine, with which to erase impressions from jurors’ minds. Faced with perjured testimony that comes out of the blue, impeachment will rarely be perfect. But even with perfect impeachment, the perjured testimony may suffice to bolster a juror in holding to the position supported by the perjured testimony.

The arsonist cannot absolve himself by finding fault with the homeowner’s smoke detectors. Emory cannot absolve itself of fraud on the Court by criticizing Plaintiff’s attempt to respond to the fraud.

3.4. Emory is not a victim, their fraud is not business as usual, and they should not get a pass merely for the sake of politesse and a desire to avoid unpleasantness.

Emory will complain that this accusation is impolite. Emory will say they’re the real victims. Emory will say they’re sick of it. But it would be contemptibly small and fatuous to place politesse above the integrity of judicial proceedings. A hired witness lied to the jury while borrowing the solemnity of the Court, and with the credibility bestowed by the Oath. He did so at Emory’s behest, to cheat a brain-injured woman whose ability to live decently for the next 30 or 40 years hangs in the balance. This accusation is impolite, because there are things more important than decorous tranquility — among them the honor, dignity, and integrity of the Court.

CONCLUSION

We recognize how extraordinary and unpleasant this motion is. None of Plaintiff’s attorneys have ever filed a motion like this before, and all hope never to file another. But Emory’s conduct is extraordinary. Emory committed a clear, frank fraud on the Court. In doing so, they cheated Jeni Carswell, and they abused and wasted extensive judicial resources.

To sanction Emory for soliciting perjured testimony which likely contributed to a mistrial, Plaintiff asks the Court for the following relief:

· As to Emory:

o To strike their Answers, enter a default judgment, and set a trial on damages,

o To order Emory to pay Plaintiffs’ expenses of the recent trial that ended in a mistrial;

· As to John Fitzpatrick, Esq:

o To revoke his pro hac vice admission for participating in procuring perjury,

o To find him in contempt of court and impose whatever penalty the Court deems just, and

o To refer the matter to the Colorado State Bar;

· As to David Ladner, Esq:

o To find him in contempt of court and impose whatever penalty the Court deems just, and

o To refer the matter to the State Bar of Georgia;

· As to Louis Guzzi, MD:

o To find him in contempt of court and impose whatever penalty the Court deems just, and

o To refer the criminal matter to the District Attorney.

Plaintiff asks the Court to set an evidentiary hearing in this matter, and to compel the appearance of Messrs. Fitzpatrick and Ladner, and to invite Dr. Louis Guzzi (who resides outside the Court’s subpoena power).

June 27, 2022

Respectfully submitted,

/s/ Lloyd N. Bell

LLOYD N. BELL

Georgia Bar No. 048800

DANIEL E. HOLLOWAY

Georgia Bar No. 658026

BELL LAW FIRM

1201 Peachtree Street, NE, Suite 2000

Atlanta, GA 30361

(404) 249-6768 (tel)

bell@BellLawFirm.com

/s/ Jennifer A. Kurle

JENNIFER A. KURLE

Georgia Bar No. 001353

KurleLaw, LLC

One Decatur Town Center

150 E. Ponce de Leon Ave.

Suite 225

Decatur, GA 30030

Telephone: 404-458-4080

Facsimile: 678-550-6365

Attorneys for Plaintiff

[1] https://www.mayoclinic.org/diseases-conditions/tachycardia/symptoms-causes/syc-20355127

[2] Link to video: https://drive.google.com/drive/folders/1vISH1QgTxTgPVMcRfZTla8nc6r0LVLVJ?usp=sharing

[3] Throughout this brief, all citations are simplified, and all quotations are cleaned up by removing internal citations and editorial marks. Unless otherwise noted, all emphasis is added.

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