Opinion
Case No. 2:19-cv-02056
06-09-2020
GENE FINKE, Plaintiff, v. THE ENSIGN GROUP, INC. et al Defendants.
ORDER GRANTING MOTION TO STRIKE RULE 30(E) ERRATA SHEET
Now before the Court is Plaintiff's "Motion to Strike Laird Washburn's Rule 30(e) Errata Sheet." (Doc. 65.) After careful review of the submissions of the parties, the Court GRANTS Plaintiff's motion.
BACKGROUND
This is a medical malpractice case. Plaintiff fell and sustained a left distal fibula fracture and medial malleolus fracture during physical therapy at his nursing facility, Healthcare Resort of Shawnee. (Doc. 4.) Plaintiff claims The Ensign Group, Inc., Ensign Services, Inc., Gateway Healthcare, Inc., and the Healthcare Resort of Shawnee are liable for the operation, management and negligence at the nursing home, and thus liable for Plaintiff's injuries. (Doc. 4.) Defendants claim the Ensign Group, Inc., Ensign Services, Inc., and Gateway Healthcare, Inc. were not involved in the care provided to plaintiff. (Doc. 15.)
Defendants' errata sheet requests to change the following seven responses from the witness's deposition transcript:
| Page/line | Original Testimony | CorrectedTestimony | Stated Reason forChange |
| Pg. 11, ln9-11 | 7. Q. Do they [Ensign Services] provide anysort of8. clinical consulting?9. A. They'll provide clinical -- I wouldn't call10. it "consulting," but they do have clinicalservices.11. Yes. | No, it's myunderstanding,according tocontract, EnsignServices providesthe facilityspecificnonclinical backoffice services." | Response wasincorrect based onmy subsequentreview of theIndependentConsultingServicesAgreement (ICSA)between ESI andthe Facility. |
| Pg. 11, ln14-15 | 12. Q. What are -- What are the clinicalservices 13. that they provide?14. A. I couldn't speak to that. I never really15. worked in that. | "I couldn't speakto that" I'm notaware of any." | Clarification ofresponse. |
| Pg. 18, ln11-14 | 1. Q. So was there anyone from EnsignServices2. that said, hey, you -- you know, we have acontract3. with these four nursing homes in Kansas.We'd like4. y'all to get together and talk about bestpractices?5. Anything like that happen?8. THE WITNESS:· I mean, we had resourcesfrom9. Ensign Services.· So, yes, at times, EnsignServices10. would say, hey, some of you are havingthe same issues.11. And so they would say, yeah, let's gathertogether and12. talk about those issues.· So, yes, thatwould happen at13. times.· The main person that would directthis would14. be -- would have been Dave Jorgensen. | "and it would berecommended thatthe facilities gettogether and talkabout thoseissues." | Clarification ofresponse. |
| Pg. 18, ln22 | 19. Q. Was there ever any individuals fromEnsign | "yes" should read- "individuals, | Clarification ofresponse. |
| 20. Services that would come into the buildingwhile you21. were administrator at The HealthcareResort of Shawnee?22. A. Yes | who we knew asresources, wouldcome to thebuilding but I'mnot sure if theywere employed byEnsign Services." | ||
| Pg. 19, ln9-12 | 3. Q. What -- what -- That's fine.· What -what4. positions -- What titles of positions ofpeople from5. Ensign Services would come into yourbuilding during6. your time as administrator?7. A. Well, it would work that if we needed8. something or wanted some help, then wewould reach out9. to a specific area, whether it was HR oraccounting or10. nursing.· And whichever department feltlike they11. needed some additional assistance orguidance, they12. would reach out.· Those services areprovided. | Delete "...ornursing." | Clarification ofresponse based onreview on ICSA. |
| Pg. 19, ln24-25 | 20. Q. So nobody at Ensign Services hadtitles?23. THE WITNESS:· They just didn't havetitles.24. They -- They worked -- They were innursing.· They were25. in HR.· They were -- That's where --· therewasn't a· 1. title.· They were -- We called -- | Delete "they werein nursing." | Clarification ofresponse based onreview of ICSA. |
| Pg. 24, ln24 | 19. Q. Do you know who Chris Christensenis?20. A.· · Do you mean Christopher?21. Q. Sure.· Christopher Christensen.22. A. Yes.23. Q. Who's that?24. A. He's the CEO of -- of Ensign Services. | "He was theCEO" | Clarification ofresponse. |
Plaintiff brings the present "Motion to Strike Laird Washburn's Rule 30(e) Errata Sheet," arguing the requested changes are material and improper. (Doc. 65.) Defendants claim the changes are for clarification of response based on the witness's subsequent review of ICSA. (Doc. 66-2, at 3.) The witness contends his responses were "incorrect based on subsequent review of the Independent Consulting Services Agreement (ICSA) between ESI and the Facility." (Id.)
DISCUSSION
Federal Rule of Civil Procedure 30(e) governs witness changes to deposition transcripts. The rule provides, in relevant part, that
[o]n request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:
Fed.R.Civ.P. 30(e).(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.
This District Court defines Rule 30(e) as "limiting the scope of changes permitted" under the federal rules to the correction of transcription errors. Summerhouse v. HCA Health Services of Kansas , 216 F.R.D. 502, at 504-05 (D. Kan. 2003) (internal citations omitted). Thus, this view "does not authorize changes because the deponent lied, misspoke, or otherwise wants to change or clarify his testimony." Id.
This District further explains the purpose and scope of Rule 30(e) in the case of Cargill Meat Solutions Corp. v. Premium Beef Feeders , LLC :
The purpose of Rule 30(e) is obvious. Should the reporter make a substantive error, i.e., he reported 'yes' but I said 'no,' or a formal error, i.e., he reported the name to be 'Lawrence Smith' but the proper name is 'Laurence Smith,' then corrections by the deponent would be in order. The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination.No. 13-11168-EFM-TJJ, 2015 WL 5821696, at *1 (D. Kan. Oct. 5, 2015) (quoting Garcia v. Pueblo Country Club , 299 F.3d 1233, 1242 (10th Cir. 2002).
It is uncontested that the witness's changes are not due to typographical errors. Therefore, the issue before the Court is whether the requested changes are mere corrections or, rather, amount to material changes to the testimony.
The 10th Circuit lays out the framework to be used when examining whether a material change is permitted.
If a change is material, which is defined as one that bears on an essential element of a claim or defense, whether it is permitted under Rule 30(e) is determined by examining the following factors, known as 'the Burns rule': (1) whether the deponent was cross-examined at the deposition; (2) whether the corrections were based on newly discovered evidence; and (3) whether the deponent's deposition testimony reflects obvious confusion, as opposed to indecisiveness or inconsistency, which necessitates a correction to clarify.Burns v. Board of Cty. Comm'rs of Jackson Cty , 330 F.3d 1275, 1282 (10th Cir. 2003). The Court finds the Defendant's changes to be material, therefore, it is necessary to apply the Burn's Rule to the witness's suggested changes.
a. The witness was not cross-examined at the time of the deposition
Defendants claim that Plaintiff's counsel left the video deposition (via Zoom) before they had the opportunity to cross-examine the witness. (Doc. 66 at 7.) This is not, however, recorded in deposition transcript. Rather, the transcript shows Defendants were given the opportunity to cross-examine the witness and chose not to do so. (Doc. 65-1, at pg. 49, ln. 18-19.) Consequently, factor (1) of the Burn's rule is not met.
b. The witness's corrections are not based on newly discovered evidence.
According to Defendants, at the time of the deposition, the witness "had never reviewed the Independent Consulting and Centralized Services Agreement ('ICA') and had no understanding as to the contents of the agreement." (Doc. 66, at 5.) Consequently, Defendants base the witness's errata corrections on discovering new evidence. (Doc. 66, at 4.) The Court disagrees. Though the ICA was not entered as an exhibit or produced through discovery, as the administrator at Maple Hills Healthcare, the witness should have been aware of the ICA. (Doc. 66, at 5.) Reviewing the document does not constitute newly discovered evidence. Therefore, factor (2) of the Burn's rule is not met.
Moreover, the "corrected" answers are simply nonresponsive. The witness was not asked what the ICSA required or provided. He was asked what Ensign Services did. The answer that Ensign services came to the facility to help with nursing issues is not "corrected" by information from the ICSA, whether or not that agreement required such assistance.
c. The witness's testimony does not reflect obvious confusion.
Defendants contend the witness's testimony is equivocal and demonstrates clear confusion. (Doc. 66, at 2.) The Court does not agree. The testimony exhibits no examples of obvious confusion on behalf of the deponent such as would necessitate clarification. See Cargill Meat Solutions , 2015 WL 5821696, at *1. Rather, the changes at issue constitute the witness attempting to "rewrite portions of a deposition." Rios v. Welch , 856 F.Supp. 1499, 1502 (D. Kan. 1994), aff'd 67 F.3d 1543 (10th Cir. 1995). Consequently, factor (3) of the Burn's rule is also not met.
For the reasons set forth above, the Court finds the material changes Defendants seek to make do not satisfy the Burn's rule for determining whether, under Rule 30(e), Defendants' witness may alter what he said under oath. Plaintiff's motion is GRANTED, and the proposed deposition corrections are hereby stricken.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 9th day of June, 2020.
S/ KENNETH G. GALE
Kenneth G. Gale
United States Magistrate Judge