(CN) – The 11th Circuit upheld a sanction of nearly $388,000 against a husband-and-wife south Florida attorney team who pursued a woman’s inconsistent claims of sexual harassment “like Ahab hunting the whale.”
“No one’s memory is perfect,” Judge Ed Carnes wrote in his introduction to the court’s majority opinion. “People forget things or get confused, and anyone can make an innocent misstatement or two. Or maybe even three or four. But not 868 of them.”
William and Karen Amlong of Amlong & Amlong represented Floride Norelus, an illegal Haitian immigrant, in a 1994 case against two of her managers at separate Denny’s restaurants. Without evidence or corroborating witnesses, Norelus claimed that she was the subjected to sexual harassment, assault, battery, kidnapping and rape on a daily basis for nearly a year. When Norelus repeatedly contradicted herself during her depositions, the Amlongs tried to remedy her testimony with a 63-page errata sheet that contained 868 changes.
After the complaint was dismissed from a federal court in Florida’s southern district, the court imposed sanctions against the Amlongs, amounting to $387,738.45 for attorneys’ fees incurred by the defendants.
On appeal, the Amlongs argued that the court abused its discretion in imposing sanctions and that they pursued Norelus’ claims in good faith.
The federal appeals panel in Atlanta disagreed in a split-panel decision.
“The issue is whether creating and submitting the 63-page errata document and then continuing to press forward with Norelus’ claims, which had been left completely unsupported once the errata document rendered her testimony useless, constituted [sanctionable] conduct,” Carnes wrote in a 74-page opinion.
The opinion states that the Amlongs willfully wasted time and money on Norelus’ deposition though inconsistencies had destroyed their client’s credibility.
“The Amlongs’ submission of the novella-length errata sheet making a slew of material changes in their client’s deposition testimony was improper,” Carnes wrote.
Despite years of experience as employment and sexual harassment attorneys, the Amlongs recklessly pursued the case and multiplied proceedings, the ruling states.
“Like Ahab hunting the whale, the Amlongs relentlessly pursued the claims,” Carnes wrote. “All the while they blinded themselves to as much of the contradictory evidence as they could. … When the truth was thrust in the Amlongs’ faces, they stubbornly ignored it and kept on litigating.”
The judge also rejected the Amlongs’ claims that a polygraph proved Norelus lied about some things but had suffered sexual abuse.
“Even if the polygraph results did allay the Amlongs’ own well-founded fear about whether their client was telling the truth, those results could not have justified the belief, if they had one, that their client’s case had a snowball’s chance of making it to a favorable judgment,” Carnes wrote.
He added that polygraph is notoriously unreliable and does not support Norelus’ lawsuit, though it may prove that Norelus was abused at some point in her life.
Carnes stressed that the ruling does not threaten sanctions for attorneys who pursue a sexual harassment claim lacking in corroborating evidence.
In a dissenting opinion, Judge Gerald Tjoflat argued that the defendants should be responsible for the excessive costs because they could have disregarded the errata sheet. Tjoflat said the errata merely amounted to communication rather than deposition testimony.
Carnes disagreed, pointing out that appeals courts cannot make new fact findings.
“Issues should not sprout like weeds in appellate opinions no matter how fertile the minds of the judges deciding the appeal,” Carnes wrote. “We could not reverse the district court based on the dissenting opinion’s new theory of the case, even if it had a factual basis, which it does not.”
The third judge on the appellate panel, U.S. District Judge Dudley Bowen of Georgia, wrote that he concurred with Carnes but declined to join in the 13 pages Carnes dedicated to tearing apart Tjoflat’s dissent.