Somerlott v. McNeilus Truck and Manufacturing, Inc.
Filing
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ORDER granting in part and denying in part Defendant's 102 Motion to Strike the Errata Sheet for the Deposition of Steven Tipton. Signed by Judge Marsha J. Pechman. (SWT)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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BENJAMIN SOMERLOTT,
Plaintiff,
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CASE NO. C16-789-MJP
ORDER GRANTING IN PART
AND DENYING IN PART MOTION
TO STRIKE ERRATA SHEET FOR
DEPOSITION OF STEVEN TIPTON
v.
MCNEILUS TRUCK AND
MANUFACTURING INC,
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Defendant.
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THIS MATTER comes before the Court on Defendant’s Motion to Strike the Errata
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Sheet for the Deposition of Steven Tipton. (Dkt. No. 102.) Having reviewed the Motion, the
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Response (Dkt. No. 112), the Reply (Dkt. No. 114) and all related papers, the Court GRANTS in
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part and DENIES in part Defendant’s Motion to Strike.
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Background
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This is a products liability case brought by Plaintiff Benjamin Somerlott against
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Defendant McNeilus Truck and Manufacturing, Inc. (Dkt. No. 3.) Plaintiff was injured while
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operating a McNeilus side-loading commercial refuse truck manufactured and sold by Defendant
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ORDER GRANTING IN PART AND DENYING IN PART MOTION TO STRIKE ERRATA SHEET FOR
DEPOSITION OF STEVEN TIPTON - 1
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(the “Side Loader”). (Id.) The Court is familiar with the remaining facts of the case, and will
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not repeat them here.
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Plaintiff retained Dr. Steven M. Tipton as his design expert. (Dkt. No. 87-4 at 15.) At
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his deposition on August 31, 2017, Dr. Tipton opined that the refuse vehicle at issue in this case
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was not safe as designed. (Id.) Counsel for Defendant asked Dr. Tipton about the methodology
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by which he reached his conclusions regarding alternative designs, risk analysis, and alternative
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warnings. (Id. at 8, 13-16, 20-21, 26-27, 29-32.) Dr. Tipton did not provide detailed or
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meaningful responses to these questions, even after repeated prompting. (Id. at 14-15.) For
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example, when asked whether he applied the scientific method in developing his alternative
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designs, he stated that he had not “felt like [he] needed to apply the scientific method.” (Id. at
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26-27.) When asked whether he conducted a risk benefit analysis, he stated that he “did not do
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any detailed risk analysis,” and “[didn’t] have the information available to even conduct that
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analysis.” (Id. at 16, 26-27.) When asked whether he had done any market research, he stated
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that he had not. (Id. at 8.)
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On October 17, 2017, Dr. Tipton submitted an errata sheet supplementing his testimony.
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(Dkt. No. 112 at 6.) Defendant now moves to strike the errata sheet in its entirety. (Dkt. No.
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102.)
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Discussion
Rule 30(e) allows a deponent to submit an errata sheet listing changes to the form and
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substance of prior deposition testimony. Fed. R. Civ. P. 30(e). However, an errata sheet cannot
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be used to alter what was said under oath, and “should be used for corrective, not contradictory,
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changes.” Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1226 (9th Cir.
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2005). “[A] change of substance which actually contradicts the transcript is impermissible
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ORDER GRANTING IN PART AND DENYING IN PART MOTION TO STRIKE ERRATA SHEET FOR
DEPOSITION OF STEVEN TIPTON - 2
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unless it can plausibly be represented as the correction of an error in transcription . . .”
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Campagnolo S.r.l. v. Full Speed Ahead, Inc., Case No. C08-1372RSM, 2010 WL 11527379, at
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*2 (W.D. Wash. May 4, 2010) (citation omitted).
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Plaintiff claims Dr. Tipton “appeared unable to recall matters that he had ample
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knowledge of” and “seemed puzzled by the questions,” and should therefore be permitted to
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correct his incomplete responses. (Dkt. No. 112 at 3.) However, “[a] deposition is not a take
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home examination.” Hambleton, 397 F.3d at 1225 (citation omitted). Having been retained to
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provide expert testimony concerning the Side Loader’s design defects, Dr. Tipton should have
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been prepared to discuss his methodology during his deposition.
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The Court finds that the following entries on the errata sheet are not merely additions,
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clarifications, or supplementations, but rather contradict Dr. Tipton’s deposition testimony or
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offer information not otherwise discussed at his deposition. Therefore, the Court GRANTS
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Defendant’s Motion with regard to the following entries 1: Nos. 4, 6, 7, 8, 9, 10, 11, 12, 13, 14,
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15, 16, 18, 19, 20, 21, 22, and 23.
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The Court finds that the following entries on the errata sheet are proper additions,
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clarifications, or supplementations, and are generally consistent with the remainder of Dr.
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Tipton’s deposition testimony. Therefore, the Court DENIES Defendant’s Motion as to the
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following entries: Nos. 1, 2, 3, 5, and 17.
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Citations to entries in the errata sheet are based upon the numbers assigned in Exhibit 1 to
Plaintiff’s Motion to Strike. (Dkt. No. 101-3.)
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO STRIKE ERRATA SHEET FOR
DEPOSITION OF STEVEN TIPTON - 3
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The clerk is ordered to provide copies of this order to all counsel.
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Dated December 28, 2017.
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A
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Marsha J. Pechman
United States District Judge
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ORDER GRANTING IN PART AND DENYING IN PART MOTION TO STRIKE ERRATA SHEET FOR
DEPOSITION OF STEVEN TIPTON - 4
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