Tholen v. Assist America, Inc.

Filing 246

ORDER granting 155 Motion to Strike an Improper Errata (Written Opinion). Signed by Magistrate Judge Steven E. Rau on 4/18/2019. (GFK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Richard H. Tholen, M.D.,

Case No. 17-cv-3919 (DWF/SER)

Plaintiff,
v.

ORDER

Assist America, Inc.,
Defendant.

Patrick M. Arenz and Emily E. Niles, Robins Kaplan LLP, 800 LaSalle Avenue, Suite
2800, Minneapolis MN 55402 (for Plaintiff); and
Mark T. Berhow, Hinshaw & Culbertson LLP, 333 South Seventh Street, Suite 2000,
Minneapolis MN 55042, Joanna Lee Storey and Robert J. Romero, Hinshaw &
Culbertson LLP, One California Street, Suite 18th Floor, San Francisco CA 94111 (for
Defendant).

This matter is before the Court on Plaintiff Dr. Tholen’s Second Motion to
Compel Discovery from Defendant Assist America, Inc. and Motion to Strike an
Improper Errata. (ECF No. 155). The Court held a hearing on March 25, 2019, where it
granted the motion to compel, took under advisement the issue of sanctions related to the
motion to compel, and took under advisement the motion to strike. (ECF No. 241).
Sanctions are contemplated in a contemporaneous Report and Recommendation. At issue
before the Court in this Order is Plaintiff’s motion to strike. That motion is granted.
I.

BACKGROUND
The facts of this case have been detailed in other orders and will not be laboriously

repeated here. Briefly, Plaintiff Dr. Richard H. Tholen injured his leg in Mexico.

Defendant Assist America, Inc., declined to transport Dr. Tholen to the United States for
medical care, finding that his medical care in Mexico was sufficient. Dr. Tholen
transported himself back to the United States and his leg was amputated above the knee.
Assist America designated Dr. E. John Harris, Jr. as a vascular surgery expert. Dr.
Harris has offered two expert reports—an opening and a rebuttal report. In the opening
report, Dr. Harris opined that “[b]y April 19, 2015, at 8:00 p.m., the chances of saving
Dr. Tholen’s right leg decreased dramatically to the point that any opinion as to whether
the damage was irreversible would be too speculative.” (Aug. 8, 2018 Expert Report of
Dr. Harris, at 9, ECF No. 158-1). The opinion continued: “By April 20, 2015, noon, more
likely than not, the vascular damage to Dr. Tholen’s leg was irreversible.” (Aug. 8, 2018
Expert Report of Dr. Harris, at 9). In Dr. Harris’s rebuttal report, he opined that “Dr.
Tholen’s popliteal artery did occlude before the 5:01 p.m. exam on April 22, 2015 by Dr.
Omlie. But we simply cannot state for certain when it occluded.” (Sept. 12, 2018 Rebuttal
Expert Report of Dr. Harris, at 1, ECF No. 158-2). Dr. Harris further opined: “I agree that
the exact moment Dr. Tholen’s popliteal artery became fully occluded is
unclear . . . more likely than not complete occlusion occurred sometime after Dr.
Tholen’s return to Minnesota at 2:00am April 22, 2015 . . .” (Sept. 12, 2018 Rebuttal
Expert Report of Dr. Harris, at 3).
Dr. Tholen’s counsel deposed Dr. Harris on November 14, 2018. At the end of the
deposition, the following exchange occurred:
Mr. Arenz: Looking at your rebuttal expert report, do you agree that you
changed your opinions in your rebuttal expert report compared to your
opinions in your opening report?
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Dr. Harris: I changed my opening report. I don’t think I changed my
rebuttal opinions.
Mr. Arenz: And do you think your rebuttal report is consistent with your
opening report?
Dr. Harris: No. I think my rebuttal report is consistent with the evidence
that I have.
Mr. Arenz: And do you stand behind – well, do you have any explanation
for the mistakes you made in your opening report?
Mr. Romero: Objection. Mischaracterizes his testimony.
Dr. Harris: It wasn’t a mistake. I just was uncertain, and with this new
evidence, I became certain.
Mr. Arenz: And the paragraphs and the opinions you made in your
opening report are not supported by the medical records in this case,
correct?
Mr. Romero: Objection as to form; mischaracterizes testimony.
Dr. Harris: Run that by me again.
Mr. Arenz: Are the opinions that you opined in your opening report
supported by the medical records that you reviewed in this case?
Dr. Harris: No.
(Nov. 14, 2018 Dep. of Dr. Harris Tr. 120:23–122:1, ECF No. 158-3). The deposition
ended then.
On December 27, 2018, Dr. Harris signed an errata sheet for the deposition; it was
served December 29, 2018. (ECF No. 158-4; Decl. of Patrick Arenz ¶ 5). Dr. Harris
submitted various errata for the deposition; relevant here is a “clarification” wherein Dr.
Harris asserts the final segment of the deposition should read:
Mr. Arenz: Are the opinions that you opined in your opening report
supported by the medical records that you reviewed in this case?
Dr. Harris: No they are.
(ECF No. 158-4, at 1).
II.

ANALYSIS
Dr. Tholen seeks to strike what he characterizes as an improper deposition errata

sheet. Courts “may strike from a pleading an insufficient defense or any redundant,
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immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f) (emphasis added).
The deposition errata sheet is not a pleading. Fed. R. Civ. P. 8. Thus, as courts in this
District hold, “there is no such thing as a ‘motion to strike’” in this context. See Carlson
Mktg. Grp. v. Royal Indemnity Co., Case No. No. 04-cv-3368 (PJS/JJG), 2006 WL
2917173, at *2 (D. Minn. Oct. 11, 2006) (Schiltz, J.) (rejecting two motions to strike
aimed at affidavits filed in connection with a summary judgment motion); see also Smith
v. United HealthCare Servs., Inc., 2003 WL 22047861, at *3 n.7 (D. Minn. Aug. 28,
2003) (Montgomery, J.); VanDanacker v. Main Motor Sales Co., 109 F. Supp. 2d 1045,
1047 (D. Minn. 2000) (Doty, J.).
That said, courts retain “discretion to strike substantive changes made in errata
sheets, if the deponent fails to provide ‘sufficient justification.’” Sanny v. Trek Bicycle
Corp., Case No. 11-cv-2936 (ADM/SER), 2013 WL 1912467, at *14 (D. Minn. May 8,
2013) (Montgomery, J.) (quoting EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 270
(3d Cir. 2010)); see Murphy v. Piper, Case No. 16-cv-2623 (DWF/BRT), 2018 WL
5875486, at *3 (D. Minn. Nov. 9, 2018) (Frank, J.). Courts “may accept errata if the
deponent provides persuasive reasons for why the proposed changes ‘truly reflect the
deponent’s original testimony,’ or if other circumstances satisfy the court.” Holverson v.
ThyssenKrupp Elevator Corp., Case No. 12-cv-2765 (ADM/FLN), 2014 WL 3573630, at
*12 (D. Minn. July 18, 2014) (Montgomery, J.) (quoting EBC, Inc., 618 F.3d at 270). 1

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Courts also look as to whether Rule 30(e) has been complied with. E.g., Sanny, 2013 WL 1912467, at
*14 (noting that motion to strike could be granted based on failure to exercise rights under Rule 30(e)).
Under Rule 30(e), the deponent is allowed 30 days to review a deposition transcript and submit changes
provided it was “request[ed] by the deponent or a party before the deposition is completed.” In the
“Certificate of Reporter” page at the end of the transcript, dated November 30, 2018, the court reporter
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Dr. Harris’s deposition errata is undoubtedly a substantive change. He seeks to
change a “no” to a “no they are.” This is far from a mere “clarification.” Rather, this flips
the meaning of the answer from a no to a yes. Because this is a substantive change, the
question becomes whether Dr. Harris has provided “sufficient justification” for this
change. Sanny, 2013 WL 1912467, at *14; Murphy, 2018 WL 5875486, at *3.
Dr. Harris, through Assist America, asserts that the errata is appropriate because
he was answering Mr. Arenz’s previous question, the question he asked to be clarified.
(Decl. of Dr. Harris, ECF No. 208; ECF No. 206, at 1–2). Dr. Harris claims that his
August 8, 2018 opinion is correct based on the evidence and records available to him at
the time he authored the opinion, but that an image produced on August 31, 2018 was a
“game changer” that changed his opinion as seen in the rebuttal opinion, causing him to
withdraw some of his August 8, 2018 opinions. Indeed, Dr. Harris withdrew some of his
August 8, 2018 opinion at the deposition. (Dr. Harris Dep. Tr. 26:6–24). Dr. Harris
cannot simultaneously seek to alter his deposition testimony so that his August 8, 2018
opinion is consistent with the record while also asserting that new evidence was a “game
changer” that led him to change his opinions. Dr. Harris’s justification for the change is
nonsensical and far from sufficient.
Further, Dr. Harris’s suggestion that he was confused by Mr. Arenz’s question is
belied by the record, his education, his history as an expert witness, and his responses to

included the following: “. . . before completion of the deposition, review of the transcript {X} was { }
was not requested . . . .” (Dr. Harris Dep. Tr. 123:13–14). While Dr. Tholen asserts Dr. Harris and Assist
America did not request review of the transcript, the record before the Court suggests review was
requested. Therefore, the Court will not reject the errata submission on this ground.
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questions in the deposition he found confusing. Dr. Harris teaches at Stanford Medical
School. Dr. Harris has served as an expert in some 30 to 40 cases. (Dr. Harris Dep.
Tr. 55:18–57:22). The deposition transcript is replete with examples of Dr. Harris asking
Mr. Arenz to clarify a question, then answering that clarified question. It breaks credulity
that a seasoned and educated expert witness like Dr. Harrris was unable to answer Mr.
Arenz’s penultimate question, asked for the question to be repeated or rephrased, heard
the ultimate question, then went back and answered the supposedly unheard or
misunderstood penultimate question rather than the question at hand. Cf. Murphy, 2018
WL 5875486, at *3 (finding sufficient justification for errata sheet changes where
deponents had cognitive delays). Assist America, through Dr. Harris’s errata sheet, is
asking this Court to take a logical leap unsupported by the record. The reasons proffered
for the errata submission are not persuasive. See Holverson, 2014 WL 3573630, at *12.
Dr. Harris’s deposition answer is unequivocal and will remain unchanged. The
deposition errata sheet, to the extent it seeks to change Dr. Harris’s answer to the ultimate
question of the deposition, is stricken. 2

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Dr. Tholen makes no argument as to the other submitted errata. Therefore, those errata are undisturbed
by this Order.
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III.

CONCLUSION
Based on the foregoing, and all the records, file, and proceedings herein, IT IS

HEREBY ORDERED that Plaintiff Dr. Tholen’s Second Motion to Compel Discovery
from Defendant Assist America, Inc. and Motion to Strike an Improper Errata, (ECF
No. 155), is GRANTED as described herein.

Date: April 18, 2019

s/ Steven E. Rau
Steven E. Rau
United States Magistrate Judge
District of Minnesota
Tholen v. Assist America
Case No. 17-cv-3919 (DWF/SER)

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