Borum v. Smith

Full title: CYNTHIA GAY BORUM, as Administratrix of the Estate of Nicole Alyce Borum…

Court: UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY OWENSBORO DIVISION

Date published: Apr 1, 2020

CIVIL ACTION NO: 4:17-CV-00017-JHM (W.D. Ky. Apr. 1, 2020)

Opinion

CIVIL ACTION NO: 4:17-CV-00017-JHM

04-01-2020

CYNTHIA GAY BORUM, as Administratrix of the Estate of Nicole Alyce Borum PLAINTIFF v. JUNG WOOK KANG SMITH, MD., DEACONESS CLINIC, INC., DEACONESS HOSPITAL, INC., DEACONESS HEALTH SYSTEM, INC. DEFENDANTS

Joseph H. McKinley Jr., Senior Judge United States District Court

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendants' Motion to Strike Errata Sheet of Plaintiff's Expert Dr. Finley Brown. [DN 104]. Fully briefed, this matter is ripe for decision. For the following reasons, Defendants' Motion to Strike Errata Sheet of Plaintiff's Expert Dr. Finley Brown is GRANTED as to the revisions at issue.

I. BACKGROUND

After his deposition, Plaintiff's expert Dr. Finley Brown made several revisions to his deposition transcript via an errata sheet including the following:

Original	Revised	Reason
Q. Okay. You said you put thechart on your desk when a person'slife is at risk. What defines when aperson's life is at risk?A. Okay. So let's say I have got apatient who comes to my officewith equivocal signs and symptomsof appendicitis.[DN 104-2 Brown Dep. 68:12-17]	Q. Okay. You said you put the charton your desk when a person's life is atrisk. What defines when a person's lifeis at risk?A. I did not say that. Okay. So let'ssay I have got a patient who comes tomy office with equivocal signs andsymptoms of appendicitis.[DN 104-3 at 4]	Words left out[DN 104-3 at 4]

Q. Okay. And the standardtreatment is to push the dose untilthe symptoms are gone?A. Yes.[DN 104-2 Brown Dep. 129:4-6]	Q. Okay. And the standard treatmentis to push the dose until the symptomsare gone?A. Yes, unless you are already atmaximum dose.[DN 104-3 at 5]	I was cut off; thiscompletes myanswer.[DN 104-3 at 5]
A. "[I]n the history of presentillness Dr. Smith writes down thatshe is here to evaluate her liverenzymes. She is excited about herventure for future and not to dowell. I think that's dwell. For somereason it came out not to do well.Of course she didn't correct thisnote. She spoke to her counselor.1Q. Wait, wait. You skipped asentence. Not depressed but a littleanxious.[DN 104-2 Brown Dep. 147:22-148:7]	A. "[I]n the history of present illnessDr. Smith writes down that she is hereto evaluate her liver enzymes. She isexcited about her venture for futureand not to do well. I think that's dwell.For some reason it came out not to dowell. Of course she didn't correct thisnote, or speak to her counselor.Q. Wait, wait. You skipped a sentence.Not depressed but a little anxious.[DN 104-3 at 6]	Poortranscription-brutal.[DN 104-3 at 6]
A. She said she was able to brieflysummarize what happened. Sherecognized it was on reasonable.2[DN 104-2 148:15-17]	A. She said she was able to brieflysummarize what happened. She recognized it was on reasonable.[DN 104-3 at 6]	Makes no sense;transcriptionerror.[DN 104-3 at 6]

[DN 104-3]. Defendants now ask Court to strike Dr. Brown's changes from his errata sheet. [DN 104].

1 "She spoke to her counselor" appears to be Dr. Brown continuing to read from Dr. Smith's notes during the deposition. [DN 104-4 at 1].

2 "She recognized it was on reasonable" at first glance appears to be a transcription error, but it is an accurate transcription based on the note from Dr. Smith. [Id.]. --------

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 30(e)(1) permits a deponent to review the deposition transcript and "if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them." In an unpublished opinion, the Sixth Circuit, however, has explained, "Rule 30(e) does not allow one to alter what was said under oath." Trout v. FirstEnergy Generation Corp., 339 F. App'x 560, 565 (6th Cir. 2009) (quoting Tuttle v. Tyco Elecs. Installations Servs., Inc., No. 2:06-CV-581, 2008 WL 343178, at *4 (S.D. Ohio Feb. 7, 2008)). "[A] majority of district courts within the Sixth Circuit have interpreted Trout to provide that an errata sheet is not a vehicle for a deponent to make substantive changes to deposition testimony." Simpson v. Xerox Educ. Servs., LLC, No. 3:17-CV-76-JRW-CHL, 2020 WL 1033541, at *6 (W.D. Ky. Mar. 3, 2020); Ramirez v, Bolster & Jeffries Health Care Grp., LLC, No. 1:12CV-00205, 2016 WL 4132294, at *3 (W.D. Ky. Aug. 3, 2016) (footnote omitted). "And other courts outside the circuit have recognized that the Sixth Circuit is the '[o]ne court of appeals [that] permits a defendant to correct only typographic and transcription errors." Ramirez, 2016 WL 4132294, at *2 (alterations in original) (internal citation omitted) (quoting James T. Scatuorchio Racing Stable, LLC v. Walmac Stud Mgmt., LLC, No. 5:11-372-DCR, 2014 WL 1744848, at *3 (E.D. Ky. Apr. 30, 2014).

III. DISCUSSION

Defendants argue that each of Dr. Brown's corrections at issue are substantive revisions to his testimony that are prohibited under Sixth Circuit precedent. [DN 104 at 3]. Plaintiff responds that Defendants' motion fails for two reasons: "First, all four of the revisions are challenges by Dr. Brown to the transcription of the testimony by the stenographer. Second, Defendants have no audio recording, and therefore, no way to establish their assertions." [DN 110 at 3]. The Court disagrees with Plaintiff's characterization that all four of the revisions are Dr. Brown's challenges to the transcription. Each of Dr. Brown's revisions to the transcript involve adding or removing words that substantively changes the transcript—the types of revisions not permitted by the Sixth Circuit. See Ramirez, 2016 WL 4132294, at *3 ("Ms. Lyon's changes to the testimony clearly do not relate to typographical or transcription errors and go to the substance of her testimony."). Plaintiff's second argument is unpersuasive because Defendants have supported their assertion that Dr. Brown's revisions are substantive. As such, the relevant changes shall be stricken.

IV. CONCLUSION

For the reasons set forth above, IT IS HEREBY ORDERED that Defendants' Motion to Strike Errata Sheet of Plaintiff's Expert Dr. Finley Brown [DN 104] is GRANTED as to the revisions at issue.

/s/

Joseph H. McKinley Jr., Senior Judge

United States District Court

April 1, 2020 cc: counsel of record