Tholen v. Assist America, Inc.

Background

Dr. Richard H. Tholen injured his leg in Mexico. Assist America, Inc. declined to transport him to the United States for medical care, determining that his care in Mexico was sufficient. Dr. Tholen returned to the United States on his own, and his leg was amputated above the knee.

Assist America designated Dr. E. John Harris, Jr. as a vascular-surgery expert. Dr. Harris issued an opening report and a rebuttal report containing different opinions about when the damage to Dr. Tholen’s leg became irreversible and when his popliteal artery became fully blocked. During his November 14, 2018 deposition, Dr. Harris answered “No” when asked whether the opinions in his opening report were supported by the medical records he reviewed.

Dr. Harris later submitted an errata sheet changing that answer to “No they are.” The opinion states that this change converted the answer from a “no” to a “yes.” Dr. Tholen moved to strike the errata change.

Analysis

The court explained that a deposition errata sheet is not a pleading, so the ordinary federal rule governing motions to strike material from pleadings did not directly apply. The court nevertheless recognized that it could strike substantive changes in an errata sheet when the deponent failed to provide sufficient justification. A court may accept such a change when the deponent provides persuasive reasons showing that it truly reflects the original testimony or when other circumstances support acceptance.

The court found that Dr. Harris’s change was substantive, not a minor clarification. Assist America argued that Dr. Harris had been answering an earlier question and that later-produced evidence had changed his opinions. The court found that explanation insufficient because Dr. Harris could not both claim that new evidence caused him to change his opinions and seek to revise his testimony so that his earlier opinion appeared consistent with the record.

The court also rejected the suggestion that Dr. Harris had been confused by the question. It relied on the deposition record, Dr. Harris’s education and experience as an expert witness, and his repeated practice of asking for clarification before answering questions. The court concluded that the reasons offered for the change were not persuasive.

Disposition

Judge Steven E. Rau ordered that Dr. Harris’s unequivocal deposition answer remain unchanged and struck the errata sheet to the extent it sought to change that answer. The court did not disturb the other errata because Dr. Tholen had not challenged them. The court’s conclusion states that Dr. Tholen’s second motion to compel discovery and motion to strike an improper errata were granted as described in the order. The discovery motion had been granted at the hearing, and the issue of sanctions was taken under advisement for a contemporaneous report and recommendation.