Thompson vs TCI Products, Co., et al

Filing 37

OPINION AND ORDER by Magistrate Judge Paul J Cleary ; granting 28 Motion to Quash; denying 30 Motion to Quash (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

DEXTER THOMPSON, as Personal
Representative of the Estate of
TROY HOWARD THOMPSON,
Deceased,
Plaintiff,
v.
TCI PRODUCTS CO. and
JOHN DOES I THROUGH X,
Defendants.

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Case No. 13-CV-824-CVE-PJC

OPINION AND ORDER
Before the Court are Plaintiff’s Amended Motion to Quash Subpoena [Dkt.
No. 28], and Defendant’s Motion to Quash Plaintiff’s Deposition Errata Sheet [Dkt.
No. 30]. For the reasons set forth below, the Amended Motion to Quash
Subpoena is GRANTED. The Defendant’s Motion to Quash Plaintiff’s
Deposition Errata Sheet is DENIED.
Defendant’s Motion to Quash Errata Sheet
Plaintiff Dexter Thompson (“Thompson”) was deposed on July 9, 2014.
During that deposition, Thompson was asked if he had ever been a party to any
sort of lawsuit before. [Dkt. No. 30-1, p. 53, line 18 to p. 54, line 4]. During the
deposition, Thompson did not disclose that he had been a party to certain
criminal proceedings. At the conclusion of the deposition, Thompson asserted
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his right to read and sign the deposition transcript. Fed.R.Civ.P. 30(e)(1).
Thompson timely provided a signed errata sheet for his deposition testimony.
On the errata sheet, Thompson disclosed that he had been a party to a 2012
criminal proceeding in Newton County, Missouri, and a 2010 misdemeanor case
in Ottawa County, Oklahoma, as well as “speeding, seat belt and other traffic
violations.” [Dkt. No. 30-2].
Defendants ask this Court to quash Thompson’s errata sheet on the
ground that it is a substantive change to his testimony beyond what is permitted
under the Federal Rules of Civil Procedure.
Thompson failed to disclose his criminal cases during his deposition. On
his errata sheet, he states that the additions to his testimony are made because
“It’s hard to remember everything.” [Dkt. No. 30-2]. Courts have disregarded
substantive changes to deposition testimony when the changes sought to create
factual issues to avoid summary judgment. Eg., BancFirst ex rel. Estate of M.J.H. v.
Ford Motor Co., 422 Fed. Appx. 663 (10th Cir. 2011) (Not abuse of discretion for
trial court to ignore affidavit and errata sheet that differed substantively from
expert witness’ initial deposition testimony); Ruleford v. Tulsa World Pub. Co., 266
Fed. Appx. 778, 783 n.4 (10th Cir. 2008) (No abuse of discretion where trial
court struck errata sheet to deposition testimony and granted motion for
summary judgment); Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n.5 (10th
Cir. 2002) (Reversing grant of summary judgment while noting the Court’s

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“dismay” over Defendant’s use of errata sheet where errata “strayed substantively
from the original testimony.”) The key to these opinions is that the deposition
errata sheet sought to substantively change testimony in order to create a “sham
fact issue” for the purpose of avoiding summary judgment. Ruleford, 266 Fed.
Appx. at 783 n.4.
The instant case presents a different scenario. Here, Plaintiff is not trying
to create a sham fact issue in order to avoid summary judgment. The case will
not be decided on a dispositive motion based on Thompson’s criminal record.
Rather, Thompson is attempting to supplement his deposition testimony
affecting a significant, but not substantive, issue – his credibility. Plaintiff wants
to be able to cross-examine Thompson using his criminal record. The
effectiveness of that cross may be reduced if Thompson is allowed to take some
of the “sting” out of his initial testimony. The added testimony does not create
sham facts and is not added to avoid summary judgment. Furthermore,
Thompson’s errata sheet and his original testimony will both be presented to the
fact-finder. See, Combined Energies c. CCI, Inc., 628 F.Supp.2d 226, 232 n.4 (D.Me.
2009) (quoting Elwell v. Conair, Inc., 145 F.Supp.2d 79, 86 (D.Me. 2001)) (“[W]hen a
party amends his testimony under Rule 30(e), the original answer to the
deposition questions will remain part of the record and can be read at the trial.”)
Thus, the fact that Thompson did not initially disclose his criminal cases will
likely be presented to the fact-finder in any event.

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The approach suggested by Movant TCI makes little sense, because if the
errata sheet were quashed, TCI will then seek to use Thompson’s criminal
history to impeach him at trial. This is not a case where the moving party
wants to preclude certain testimony from being admitted; TCI simply wants to
be able to use the information for what it believes is maximum impeachment
effect. Since both the original testimony and the errata sheet will be presented
to the fact-finder, and since the deposition additions do not substantively affect
evidence as to the underlying claims, the Court finds no basis to quash the
errata sheet. Accordingly, the motion is DENIED.
Plaintiff’s Amended Motion to Quash Subpoena
This wrongful death action was filed by Thompson, in his capacity as the
personal representative of the estate of his father, Troy Howard Thompson,
deceased (“Decedent”). The Amended Petition alleges:
55. As a result of one or more of the negligent and careless acts or
omissions of the Defendants, the Decedent suffered great mental
pain and anguish prior to his death and his child and parents
suffered damages, including medical and burial expenses, grief and
loss of companionship and great mental anguish.
56. The Decedent was survived by his son, Dexter Thompson and
his parents, Dale and Susan Thompson, who are entitled to damages
for the wrongful death of the Decedent, including damages for the
grief and loss of companionship suffered by each of them.
[Dkt. No. 5-1, p. 11] (emphasis added).
In the course of discovery, TCI served a Subpoena Duces Tecum on nonparty ROCMND Youth Services, Inc. (“ROCMND”) seeking the “complete copy of
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your file on Dexter Lane Thompson for any visit in which he has been housed
at your facility within the last 10 years.” [Dkt. No. 28-2]. Plaintiff requests that
the subpoena be quashed as it requests confidential and privileged
psychotherapist-patient communications by Dexter Thompson when he was a
minor. TCI contends that the requested information is relevant and the
privilege has been waived because the Amended Petition includes a claim for
“great mental anguish” separate from and in addition to the wrongful death
claim.
Oklahoma law provides a privilege for confidential communications
between a patient and the patient's physician or psychotherapist, and persons
who are participating in the diagnosis or treatment under the direction of the
physician or psychotherapist, including members of the patient's family. 12
Okla. Stat. § 2503(B). An exception to the privilege exists concerns
communications “relevant to the physical, mental or emotional condition of the
patient in any proceeding in which the patient relies upon that condition as an
element of the patient's claim or defense....” 12 Okla. Stat. § 2503(D)(3).
Defendant argues that this exception or the related doctrine of waiver apply
here,1 as Plaintiff seeks damages for “great mental anguish.” Under Oklahoma’s
wrongful death statute, recoverable damages include the following:

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TCI initially argued in the alternative that the records requested weren’t
even covered by the privilege as it was not clear that ROCMND specifically
provided mental health and drug/alcohol abuse treatment by licensed
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The mental pain and anguish suffered by the decedent, which shall
be distributed to the surviving spouse and children, if any, or next
of kin in the same proportion as personal property of the decedent.
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The grief and loss of companionship of the children and parents of
the decedent, which shall be distributed to them according to their
grief and loss of companionship.
Okla. Stat. tit. 12 § 1053(B).
As this Court has previously recognized, the Plaintiff’s mental anguish in
this situation is an item of recovery, not an element of a claim. Shreck v. N. Am.
Van Lines, Inc., 2006 WL 1720545, *1 (N.D. Okla. June 19, 2006) (citing Ellis v.
Gurich, 73 P.3d 860 (Okla. 2003) and Moody v. Ford Motor Co., Case No. 03-CV784-CVE-PJC, Dkt. No. 149 (N.D. Okla. August 10, 2005)). In Ellis, the Oklahoma
Supreme Court determined that the waiver set out in Okla. Stat. tit. 12 § 1053
was generally inapplicable to a wrongful death action. 73 P.3d at 860-61. As
also stated in Shreck and Moody, where the survivor’s grief and emotional
distress from the loss of the decedent is limited to the sort of “generic” or
“garden variety” claim of the sort that would be suffered by an ordinary person
in similar circumstances, the privilege has not been waived.

professionals. [Dkt. No. 29, pp. 5-7]. However, as set forth in the Affidavit of
Dee Neel, the Assistant Executive Director of ROCMND, the evidence before the
Court shows that the facility does provide mental health treatment services to
family and youth by licensed professionals (or under supervision for licensure).
[Dkt. No. 34-1].
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Plaintiff has affirmatively stated that he did not assert an additional claim
outside the wrongful death statute and is not seeking to expand the recovery
available under the statute. [Dkt. No. 34]. Accordingly, the Court concludes that
Plaintiff has not waived his privilege at this time. However, if it later becomes
evident that Plaintiff intends to call a treating counselor or expert to testify
about his mental distress, or worsening of any pre-existing condition, the Court
may revisit whether or not the privilege is then waived. Shreck, 2006 WL
1720545 at *2 (citing Moody, supra).
Based on the above, the Court GRANTS Plaintiff’s Motion to Quash [Dkt
No. 28].
ACCORDINGLY, Defendant’s Motion to Quash Errata Sheet [Dkt. No. 30]
is DENIED; Plaintiff’s Motion to Quash Subpoena [Dkt. No. 28] is GRANTED.
IT IS SO ORDERED this 9th day of October, 2014.

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