The Fifth Amendment right against self-incrimination has become a staple of American culture as it has worked its way into movies and television. These representations are almost always in the context of a criminal case, which begs the question of what happens when a claimant “takes the fifth” in a civil case, particularly in a workers’ compensation case.
In a workers’ compensation case in the state of Florida, a claimant's use of or lack of a social security number can frequently become an issue in a case; most commonly, when the claimant provides a false social security number during a recorded statement to a medical provider or during deposition. During depositions, the question of whether or not a claimant has a social security number or has ever used a social security number is typically a boilerplate question. In cases where a claimant has a valid social security number, this question rarely results in litigation or even objection from claimant counsel, aside from a privacy concern.
However, when a claimant does not have a valid social security number, has utilized a false social security number or a number that does not belong to the claimant, this question can create unique legal situations and opportunities for the employer/carrier. While different claimant attorneys will utilize different tactics in this situation, the most common practice is to object based on the Fifth Amendment right against self-incrimination and instruct the claimant not to answer the question. Once this objection is made, the first step is to, of course, certify the question with the court reporter before moving on with questioning.
From a litigation tactics standpoint, the next step is important - and is rarely taken - which is to file a Motion for Adverse Inference. In a criminal context, when a defendant refuses to answer a self-incriminating question based on the Fifth Amendment, no inference is allowed against the defendant for invoking this right. However, in a civil context, where the witness's liberty is not at stake, the Fifth Amendment functions differently. The 4th District Court of Appeals has addressed this issue in Piscotti v. Stephens. (See: 2d. 1217 (Fla. 4th DCA 2006) when the court held as follows:
“During discovery in a civil case, a litigant may assert the Fifth Amendment privilege when the litigant has reasonable grounds to believe that the response to a discovery request would furnish a link in the chain of evidence needed to prove a crime against the litigant. (See: 2d. 1217 (Fla. 4th DCA 2006).”
While Piscotti provides for the assertion of the Fifth Amendment in a civil proceeding, the use in a civil context operates much differently than in a criminal context. The use and result of a Fifth Amendment objection in a civil matter has been addressed by the United States Supreme Court in Baxter v. Palmigiano, and the result is that the employer/carrier is entitled to an adverse inference, which is strictly prohibited in a criminal case:
“Our conclusion is consistent with the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment "does not preclude the inference where the privilege is claimed by a party to a civil cause." 8 J. Wigmore, Evidence 439 (McNaughton rev. 1961). In criminal cases, where the stakes are higher and the State's sole [**3] interest is to convict, Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant's silence as substantive evidence of guilt. Disciplinary proceedings in state prisons, however, involve the correctional process and important state interests other than conviction for crime. We decline to extend the Griffin rule to this context.” (See Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976).”
The court went even further, noting:
“Such a rule is both logical and utilitarian. A party may not trample upon the rights of others and then escape the consequences by invoking a constitutional privilege — at least not in a civil setting. Particular circumstances may give rise to the necessity for protecting such a party's interests, as, for example, granting a continuance because of pending criminal charges, see, e.g., Kerben v Intercontinental Bank, 573 So.2d 976 (Fla. 5th DCA 1991), however, that does not and should not impinge upon the general rule.”
The goal in this context is not to compel the claimant to answer the question at a later date via a Motion to Compel Certified Questions; rather, the goal is to obtain an adverse inference against the claimant as established in Baxter. Under Atlas V. Atlas, employer/carrier is entitled to an adverse inference and the adverse inference must relieve the prejudice to the employer/carrier. (See: Atlas v. Atlas, 708 So. 2d 296 Fla. 4th DCA 1998). The extent of the appropriate sanction will depend on the specifics of each case, the questions objected to, as well as the judge presiding over the case.
Very rarely are fraud cases litigated over the truthfulness of a statement made by claimant. Typical of a fraud case, the parties will normally agree that a false statement is false but where the case turns and where judges typically spend the majority of their Final Compensation Orders is on the claimant’s intent as required by F.S. 440.105. This is where the adverse inference under Baxter comes into play.
When claimant’s counsel objects, based on the Fifth Amendment, to the question of why the claimant provided a false social security number, by refusing to allow the claimant to answer the question, claimant’s counsel has, perhaps unknowingly opened the door to an adverse inference on the claimant’s intent. It would make sense that claimant’s argument would be that the claimant's justification for providing a false or misleading statement was due to some harmless error or other innocuous reason. A strong counter to this argument might be that if the justification for the claimant’s refusal is indeed harmless, then the Fifth Amendment objection was an improper objection, which may potentially result in sanctions.