Dave Vickers, as owner of the M/V Wakesetter for exoneration from or limitation of liability

Filing 81

OPINION AND ORDER by Magistrate Judge Kimberly E. West denying 46 Motion for Summary Judgment AND granting 59 Motion to Strike or Disregard "Sham" Errata Changes. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
IN THE MATTER OF THE COMPLAINT
AND PETITION OF DAVE VICKERS,
AS OWNER OF THE M/V WAKESETTER
FOR EXONERATION FROM OR
LIMITATION OF LIABILITY

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Case No. CIV-17-302-KEW

OPINION AND ORDER
This matter comes before the Court on Petitioner’s Motion for
Summary Judgment (Docket Entry #46).

Related to this Motion and

also considered in this Opinion and Order is the Petitioner’s
Motion to Strike or Disregard “Sham” Errata Changes (Docket Entry
#59).
Claimant gave his deposition in this case on August 22, 2018.
His testimony included the following exchange at p. 67:
11

Q:

Okay. Sometimes things are just accidents,
right?

13

A:

Yes.

14

Q:

Do you consider this just to be an accident?

16

A:

Yes.

17

Q:

It doesn’t have to be anybody’s fault per se,
it was just an accident?

19

A:

Yes.

20

Q:

Is that what you thing was the case here?

21

A:

Yes.

Subsequent

to

the

deposition

and

after

the

filing

of

Petitioner’s Motion for Summary Judgment, Claimant submitted an
errata sheet to the deposition, ostensibly correcting some of his

responses.

Among the corrections made by Claimant on the errata

sheet was (1) at p. 67, l. 19, “Change yes to no, misunderstood the
question.

My thought is that there can be an ‘accident’ for which

someone is at fault.”; and (2) at p. 67, l. 21, “Change yes to no.
I testified elsewhere that Mr. Vickers was negligent.”
Claimant also testified at p. 73 as follows concerning the
financial status of his business:
2

Q:

What accounts for the financial difficulty?

3

A:

What other accounts?

4

Q:

No. I’m saying, what accounts for it, what’s
the reason?

6

A:

What accounts for it. You know, business in
2015 and 2016 went down because of things
beyond my control.

9

Q:

What was it in 2015 that happened?

10

A:

State fair decided to start doing construction
on the fairgrounds and made it very difficult
to operate business.

13

Q:

Okay.

14

A:

And same thing, the state fair – or Texas,
they imposed a $15 parking charge just to –
the city did just to come to – onto the
fairgrounds, which affected the businesses.

Claimant altered his responses on the post-deposition errata
sheet in stating (1) p. 73, l. 8, “Add ‘and the boat accident
injury.’”
Claimant testified at p. 144, ll. 15-17 in his deposition that

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he was not claiming any damages to his head.1

On the errata sheet,

Claimant stated “Change ‘no’ to ‘yes’ because I’ve now learned that
the vertigo in my instance was cause (sic) by a head trauma.”
A

deponent

is

permitted

to

review

the

transcript

of

a

deposition and “if there are changes in form or substance, to sign
a statement listing the changes and the reasons for making them.”
Fed. R. Civ. P. 30(e).

The ability to modify testimony is not

without limits. The Tenth Circuit cited with approval the position
stated in a case from a district court in Louisiana in quoting
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.
Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n. 5
quoting Greenway v. Internat’l Paper Co., 144 F.R.D. 322,
325 (W.D. La. 1992).
The Garcia court went on to state “[w]e do not condone
counsel's allowing for material changes to deposition testimony and
certainly do not approve of the use of such altered testimony that
is controverted by the original testimony.”

Id.

In this case, Claimant not only altered the very substance of
his testimony with his errata “corrections” represent the type of
blatant

“deponent’s

remorse”

of

1

which

the

Tenth

Circuit

has

The Court would note that p. 144 of Claimant’s deposition was not
attached to any of the briefs filed in association with either the Motion
to Strike or Motion for Summary Judgment. The testimony is taken from
p. 4 of Petitioner’s Motion to Strike which the Court trusts was
accurately represented in the briefing.

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disapproved.

For purposes of considering Petitioner’s summary

judgment motion, the referenced corrections will be stricken as
inappropriate.

For any other purpose, such as trial, Claimant may

explain any misunderstanding in the deposition or facts determined
after the deposition in live testimony.
This

Court

now

turns

to

the

summary

judgment

motion.

Petitioner essentially argues that Claimant cannot prove Petitioner
was negligent in the operation of the boat when it struck a wake
from another boat which allegedly caused Claimant to be tossed
about the boat allegedly resulting in injury.

Since negligence

cannot be shown, Petitioner contends he is entitled to limit
Claimant’s damages under federal admiralty law to the value of his
boat and contents.

Under Rule 56(c) of the Federal Rules of Civil

Procedure, summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law."

Universal Money Centers v. A.T.

& T., 22 F.3d 1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052,
115 S.Ct. 655, 130 L.Ed.2d 558 (1994).

The moving party bears the

initial burden of showing that there is an absence of any issues of
material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106

S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986).

A genuine issue of

material fact exists when "there is sufficient evidence favoring the

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nonmoving party for a jury to return a verdict for that party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505,
2510-11, 91 L.Ed 2d 202 (1986).

In determining whether a genuine

issue of a material fact exists, the evidence is to be taken in the
light most favorable to the nonmoving party.

Adickes v. S.H. Kress

& Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142
(1970).

Once the moving party has met its burden, the opposing

party must come forward with specific evidence, not mere allegations
or denials of the pleadings, which demonstrates that there is a
genuine issue for trial.

Applied Genetics v. Fist Affiliated

Securities, 912 F.2d 1238, 1241 (10th Cir. 1990); Posey v. Skyline
Corp., 702 F.2d 102, 105 (7th Cir. 1983).

Petitioner accurately sets out the elements of negligence
under admiralty law, citing Pearce v. United States, 261 F.3d 643,
647-48 (6th Cir. 2001).

He primarily relies upon Claimant’s

testimony that he believed crossing the wake and upsetting the
occupants of the boat was an accident.

However, testimony that a

particular act was accidental, meaning done without intent, does
not translate into a denial that the act was accomplished through
a breach of an owed duty.

Moreover, other testimony offered by

both Petitioner and Claimant in their respective depositions could
bear on the question of whether Petitioner’s actions constituted
negligence.

As a result, this Court must conclude that at this

stage of the proceedings, material questions of fact exist on the

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question of negligence which is better determined after evaluating
all of the testimony, including the credibility of the witnesses,
and other evidence at trial.
IT IS THEREFORE ORDERED that Petitioner’s Motion to Strike or
Disregard “Sham” Errata Changes (Docket Entry #59) is hereby
GRANTED.
IT IS FURTHER ORDERED that Petitioner’s Motion for Summary
Judgment (Docket Entry #46) is hereby DENIED.
IT IS SO ORDERED this 12th day of December, 2018.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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