Case Law Update

Issue: Whether a personal-injury plaintiff’s repeated sworn statements that she could not perform certain activities at all — when surveillance later showed her performing those activities — may constitute fraud on the court warranting dismissal of the entire action, and how that differs from a plaintiff who truthfully acknowledges an ability to perform an activity but explains that it can be done only with pain, limitation, or difficulty.

Overview: In Publix Supermarkets, Inc. v. Goga, 2026 Fla. LEXIS 1051 (Fla. July 9, 2026), the Florida Supreme Court reinstated the dismissal with prejudice of a premises-liability action after concluding that the plaintiff’s repeated sworn statements concerning her physical limitations were demonstrably false and that the deception permeated the entire proceeding. The Court clarified the appellate framework for fraud-on-the-court dismissals: factual findings are reviewed for competent, substantial evidence; the legal conclusion that conduct constitutes fraud on the court is reviewed de novo; and the sanction is reviewed for abuse of discretion.

A. The Goga Decision

Goga alleged that she was injured after slipping and falling on spilled dish soap in a Publix store. During discovery, she made categorical statements about her limitations. She stated that she could not lift her children, could not bend at the waist, could not run, and had significant restrictions on walking and other physical activities. At deposition, she described her limitations as involving “a lot of cant’s” and testified that she had not lifted her children since the accident.

Publix obtained surveillance showing Goga lifting and carrying her children, bending at the waist while loading and unloading her vehicle, walking with groceries, and playing in a pool. The trial court conducted an evidentiary hearing and found, by clear and convincing evidence, that Goga had intentionally and repeatedly lied about her physical limitations. It concluded that the fraud comprehensively infected the action and dismissed the complaint with prejudice.

The Fourth District affirmed the fraud finding but permitted the medical-expense claim to proceed, reasoning that medical expenses could be established through objective evidence. The Supreme Court rejected that approach and reinstated the complete dismissal. Once the trial court determined that the fraud permeated the entire proceeding, the existence of some independently provable damages did not require allowing a portion of the action to continue.

B. The “Cannot” Versus “Difficulty” Distinction

For personal-injury practitioners, one of the most significant practical lessons from Goga is the difference between a categorical assertion of inability and a qualified description of limitation. There is a meaningful distinction between testimony such as, “I cannot lift my child,” and testimony such as, “I can lift my child, but it causes significant pain, I can only do it occasionally, and I cannot do it repeatedly or for an extended period.” The first makes a factual claim of absolute inability. The second acknowledges the ability to perform the activity while describing its limitations.

That distinction matters because surveillance can directly test a categorical assertion. If a plaintiff repeatedly testifies under oath that an activity cannot be performed and surveillance later shows the plaintiff performing the same activity, the contradiction is substantially more powerful than evidence merely showing that the plaintiff can sometimes perform an activity that she previously described as difficult. Goga involved repeated, material representations that were directly contradicted by objective evidence.

Importantly, Goga does not create a bright-line rule that the use of the word “cannot” establishes fraud or that saying an activity is “difficult” avoids fraud. The controlling inquiry remains whether the plaintiff intentionally made material misrepresentations that were sufficiently pervasive to interfere with the judicial process. A plaintiff who says an activity is difficult can still commit fraud if the statement is knowingly false and part of a broader deceptive scheme. Conversely, evidence that a plaintiff performed an activity once does not necessarily prove that the plaintiff can perform it repeatedly, without pain, for prolonged periods, or at pre-injury capacity.

C. Why the Pervasiveness Finding Matters

Goga confirms that fraud on the court is more than ordinary impeachment. An isolated inconsistency, mistake, poor recollection, or dispute about the severity of symptoms does not automatically justify dismissal. The issue is whether the plaintiff intentionally set in motion an unconscionable scheme calculated to interfere with the court’s ability to impartially adjudicate the case or unfairly hamper the opposing party.

Here, the Supreme Court accepted the trial court’s determination that the deception was pervasive. The Court therefore rejected the argument that the action should survive as to damages supported by objective evidence. The potential sanction extends to the entire case when the fraud itself has compromised the integrity of the proceeding.

D. Practical Implications for Personal Injury Attorneys

• Plaintiff’s counsel should distinguish carefully between inability and limitation. Clients should accurately describe whether an activity is impossible, painful, difficult, limited in duration or frequency, or possible only with assistance.
• Defense counsel should identify every categorical statement concerning functional capacity — particularly “cannot,” “never,” “unable,” or “have not done since the accident” — and compare those statements against surveillance, social-media content, photographs, employment records, medical records, and other objective evidence.
• Surveillance should be evaluated in context. Showing a plaintiff performing an activity once does not necessarily establish that the plaintiff has no limitation. The significance of the evidence increases when it directly contradicts a repeated sworn statement of absolute inability.
• A fraud-on-the-court motion should develop the full record: the exact statements made, when and how they were made, their materiality, the objective evidence contradicting them, the plaintiff’s opportunity to correct the record, and evidence supporting intentional rather than inadvertent conduct.
• Goga also demonstrates that a fraud finding can affect the entire action. The fact that some damages — such as medical expenses — may be supported by objective evidence does not necessarily preserve those claims if the deception permeated the proceeding.

E. Key Takeaway

Goga should be viewed as a warning against categorical functional-limitation testimony that is not literally accurate. A plaintiff who can perform an activity but experiences pain or difficulty should say so. A sworn statement that an activity cannot be performed at all creates a far more direct factual proposition that can be tested against surveillance and other objective evidence. When such statements are repeated, materially false, and part of a pervasive scheme to advance the litigation, Goga establishes that the consequences can go well beyond impeachment and can include dismissal of the entire action with prejudice.

For personal-injury attorneys, the practical rule is straightforward: carefully distinguish inability from difficulty, and test every significant functional-limitation statement against the objective record. Goga does not make every inconsistency fraud on the court, but it makes clear that repeated categorical misrepresentations about physical capabilities can justify the extraordinary sanction of complete dismissal.

This case law update is provided for informational purposes only and does not constitute legal advice, nor does it create an attorney-client relationship. The application of Publix Supermarkets, Inc. v. Goga depends on the specific facts of each case. Attorneys at Shiner Law Group are Members of The Florida Bar. This is attorney advertising.