Borum v. Smith

• Court: District Court, W.D. Kentucky
• Decided: April 1, 2020
• Docket: 4:17-cv-00017
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY OWENSBORO DIVISION CIVIL ACTION NO: 4:17-CV-00017-JHM CYNTHIA GAY BORUM, as PLAINTIFF Administratrix of the Estate of Nicole Alyce Borum V. JUNG WOOK KANG SMITH, MD., DEFENDANTS DEACONESS CLINIC, INC., DEACONESS HOSPITAL, INC., DEACONESS HEALTH SYSTEM, INC. 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 the Q. Okay. You said you put the chart Words left out chart on your desk when a person’s on your desk when a person’s life is at [DN 104-3 at 4] life is at risk. What defines when a risk. What defines when a person’s life person’s life is at risk? is at risk? A. Okay. So let’s say I have got a A. I did not say that. Okay. So let’s patient who comes to my office say I have got a patient who comes to with equivocal signs and symptoms my office with equivocal signs and of appendicitis. symptoms of appendicitis. [DN 104-2 Brown Dep. 68:12–17] [DN 104-3 at 4] Q. Okay. And the standard Q. Okay. And the standard treatment I was cut off; this treatment is to push the dose until is to push the dose until the symptoms completes my the symptoms are gone? are gone? answer. A. Yes. A. Yes, unless you are already at [DN 104-3 at 5] [DN 104-2 Brown Dep. 129:4–6] maximum dose. [DN 104-3 at 5] A. “[I]n the history of present A. “[I]n the history of present illness Poor illness Dr. Smith writes down that Dr. Smith writes down that she is here transcription– she is here to evaluate her liver to evaluate her liver enzymes. She is brutal. enzymes. She is excited about her excited about her venture for future [DN 104-3 at 6] venture for future and not to do and not to do well. I think that’s dwell. well. I think that’s dwell. For some For some reason it came out not to do reason it came out not to do well. well. Of course she didn’t correct this Of course she didn’t correct this note, or speak to her counselor. note. She spoke to her counselor.1 Q. Wait, wait. You skipped a sentence. Q. Wait, wait. You skipped a Not depressed but a little anxious. sentence. Not depressed but a little [DN 104-3 at 6] anxious. [DN 104-2 Brown Dep. 147:22– 148:7] A. She said she was able to briefly A. She said she was able to briefly Makes no sense; summarize what happened. She summarize what happened. She transcription recognized it was on reasonable.2 recognized it was on reasonable. error. [DN 104-2 148:15–17] [DN 104-3 at 6] [DN 104-3 at 6]

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

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.]. 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.

Ar "iSelayf Joseph H. McKinley Jr., Senior Judge United States District Court April 1, 2020

ce: counsel of record