Tholen v. Assist America, Inc.
0:17-cv-03919
| D. Minnesota | Apr 18, 2019Background
- Dr. Richard Tholen injured his leg in Mexico; Assist America declined to arrange transport to the U.S.; Tholen returned himself and later underwent above-knee amputation.
- Assist America retained vascular surgeon Dr. E. John Harris, Jr. as an expert and produced an opening and a rebuttal expert report with differing opinions on timing of vascular occlusion.
- During Dr. Harris’s deposition (Nov. 14, 2018), he testified that his opening-report opinions were not supported by the records; he also explained his opinions changed after reviewing new imaging.
- On Dec. 27, 2018 Dr. Harris submitted an errata to the deposition transcript that substantively changed an answer from “No” to “No they are,” effectively reversing his testimony.
- Tholen moved to strike the errata as improper; the Court granted the motion to compel discovery earlier, reserved sanctions, and in this Order strikes the challenged errata as an impermissible substantive change.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court may strike deposition errata that substantively change testimony | Errata flips a clear deposition answer and should be stricken as improper substantive change | Errata reflects clarification or correction of a misunderstood question and aligns testimony with expert reports and later evidence | Court struck the errata: it was a substantive change (no mere clarification) and justification given was insufficient |
| Whether an errata may be accepted where expert changed opinions after new evidence | Implicit: cannot retroactively recast deposition to harmonize prior report when expert admitted earlier opinions were unsupported by records | Errata is appropriate because expert was answering a different question and later evidence was a “game changer” that altered his views | Court found the proffered explanation inconsistent and nonsensical (cannot both rely on original report and claim later evidence changed opinion); justification rejected |
Key Cases Cited
- EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253 (3d Cir. 2010) (courts may strike substantive changes in deposition errata absent sufficient justification)
- VanDanacker v. Main Motor Sales Co., 109 F. Supp. 2d 1045 (D. Minn. 2000) (motions to strike directed at non-pleadings are disfavored but courts retain discretion over evidence submissions)