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Jermano v. Graco Children's Products, Inc.

United States District Court, E.D. Michigan, Southern Division

April 16, 2015

JOSEPH JERMANO, et al., Plaintiffs,
v.
GRACO CHILDREN'S PRODUCTS, INC., Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO STRIKE DR. RUSSELL DUNN'S ERRATA SHEET (ECF #43); GRANTING PLAINTIFFS LEAVE TO FILE A SUPPLEMENTAL REPORT BY DR. DUNN; AND GRANTING DEFENDANT LEAVE TO DEPOSE DR. DUNN CONCERNING ANY MATTERS RAISED IN HIS SUPPLEMENTAL REPORT

MATTHEW F. LEITMAN, District Judge.

INTRODUCTION

This is a products liability action brought by Plaintiffs Dorothy Berge and Joseph, Dory, and Mia Jermano (collectively "Plaintiffs") against Defendant Graco Chidren's Products, Inc. ("Graco"). Plaintiffs allege that Graco defectively designed a child safety car seat known as the "TurboBooster."

Plaintiffs retained Russell Dunn, Ph.D. ("Dr. Dunn") as one of their expert witnesses. Graco deposed Dr. Dunn on January 19, 2015. The court reporter subsequently prepared a draft of the deposition transcript and forwarded it to Dr. Dunn for his review and signature pursuant to Rule 30(e) of the Federal Rules of Civil Procedure. After reviewing the draft transcript, Dr. Dunn prepared and sent to the court reporter a six-page Errata Sheet in which he proposed to make twenty-three changes to the transcript. ( See the "Errata Sheet, " ECF #43-3.) Many of the proposed changes in the Errata Sheet are substantive. For instance, on page 101, line 25, Dr. Dunn sought to change the word "front" to the word "back" ( id. at 1, Pg. ID 772); on page 133, line 14, he sought to change his answer from "I can't answer that. I don't know" to a substantive answer ( id. at 3, Pg. ID 774); and at other pages, he proposed to delete large portions of other answers. ( See, e.g., id. at 1, 3, Pg. ID 772, 774.) Dr. Dunn did not list on the Errata Sheet any reason(s) for his proposed changes.

Graco has now moved to strike the Errata Sheet on the ground that, as interpreted by the United States Court of Appeals for the Sixth Circuit, Rule 30(e) does not permit a deponent to make substantive changes to his deposition testimony. ( See the "Motion to Strike, " ECF #43 at 4-6, Pg. ID 715-717.) Graco also asks the Court to strike the Errata Sheet on the ground that Dr. Dunn did not list reasons for his proposed changes, as required by Rule 30(e). ( See id. at 6-7, Pg. ID 717-718.) Plaintiffs urge the Court to deny the Motion to Strike on the ground that Dr. Dunn's Errata Sheet is, in effect, a correction of his deposition testimony that he was required to provide under Rule 26(e)(2) of the Federal Rules of Civil Procedure. ( See Plaintiffs' Response Brief, ECF #45 at 4-8, Pg. ID 792-796.) Plaintiffs have also attempted to cure Dr. Dunn's failure to list the reasons for his changes. Along with their response to Graco's motion, Plaintiffs have filed a document drafted by Dr. Dunn in which he explains the basis of the changes. ( See ECF #45-1.)

The Court agrees with Graco that Dr. Dunn did not comply with Rule 30(e)'s requirement that he list the reasons for his proposed changes within thirty days of receiving the draft transcript, and the Court will therefore strike the Errata Sheet. But the Court also agrees with Plaintiffs that Rule 26(e)(2) does allow them to serve a supplemental report by Dr. Dunn correcting any material inaccuracies in his deposition testimony, and the Court will allow Plaintiffs to serve such a report. Furthermore, in order to avoid prejudice to Graco, the Court will permit Graco to re-depose Dr. Dunn concerning any matters raised in his supplemental report (if one is served).

ANALYSIS

A. The Court Will Strike the Errata Sheet Because Dr. Dunn Did Not Comply With the Rule 30(e)'s Requirement That He List the Reasons for His Changes

Federal Rule of Civil Procedure 30(e) governs how a witness may review and change his deposition testimony. This rule provides that:

(1) Review; Statement of Changes. On 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:
(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.

Fed. Rule Civ. Proc. 30(e)(1)(A)-(B). Despite the fact that Rule 30(e) expressly refers to changes in "substance, " Graco argues that the Rule does not authorize a deponent to make substantive changes to his deposition testimony. Graco asserts that the Sixth Circuit "precedent [interpreting Rule 30(e)] allows deposition errata to correct only typographical errors." (Graco's Br. at 4, Pg. ID 715.) The "precedent" to which Graco refers is the Sixth Circuit's ...


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