Plaintiff’s accident reconstructionist (Webb) in an auto defect case was deposed about his proposed testimony. Thereafter, Webb signed an errata sheet that changed four of the variables he used to make his calculations. Among the changes were a change in the angle of the subject vehicle from 22 degrees to 44 degrees and an increase in the closing speed of the vehicle from 68 miles per hour to 78 miles per hour. He said these changes did not alter his ultimate conclusion on the change of velocity (delta-v) experienced by the vehicle occupants (35 miles per hour). The plaintiff did not supplement interrogatory responses concerning the expert’s testimony but simply sent the errata sheet to the defense.
The defense denied receiving the errata sheet. The defense expert testified that the delta-v was between 55 and 67 miles per hour. All parties agreed that a crash is not survivable with a delta-v in excess of 50 miles per hour.
At trial the expert said he completed the errata sheet because he realized after his deposition that he had made some mistakes in his analysis. He did not claim that the court reporter made an errors or that the changes were made to clarify his testimony.
The Mississippi Supreme Court held that the trial judge erred by not excluding the testimony of the expert. It said as follows:
Even if Hyundai did receive the errata sheet, simply giving the defendant this document did not relieve the plaintiffs of their duties under Mississippi Rule of Civil Procedure 26(f). The purpose of an errata sheet is to correct scrivener’s errors or provide minor clarification; it is not a means of making material, substantive changes to a witness’s testimony. See e.g., Garcia v. Pueblo Country Club, 399 F.3d 1233, 1242 n.5 (10th Cir. 2002) (“A deposition is not a take home examination.”) If a witness changes his testimony in a manner that conflicts with prior discovery responses, the sponsoring party has a duty under Rule 26(f) seasonably and formally to amend orsupplement the response. Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 916 (Miss. 2002). This is the responsibility of the party or parties sponsoring the witness, not the responsibility of the witness.
What about the argument that the changes on the errata sheet did not alter the expert’s opinions – the "no harm no foul" argument? The Court said as follows:
The plaintiffs argue that Webb’s changes were not material because they did not alter his opinion that, had the car not separated, the occupants would have experienced a delta-v of only thirty-five miles per hour. We disagree. The changes in Webb’s calculations were material changes because they were essential components of the basis for his opinion. When Hyundai attempted to cross-examine Webb about his calculations, Webb referred to his errata from Webb’s testimony that the figures on the errata sheet were important to his calculations. Moreover, when Hyundai’s experts performed crash testing, they used the figures given by Webb in his deposition in an attempt to refute Webb’s testimony. When Webb changed his calculations, the crash test using Webb’s initial calculations lost relevance.
In conclusion, the Court said that "neither these plaintiffs nor any other party litigant may rely on a witness’s notations on a deposition errata sheet as a substitute for formal and timely supplementation." The Court then reversed a jury verdict for the plaintff and ordered a new trial.
Some may suggest that this opinion is yet another example of a conservative court bending over backwards to help a defendant escape a jury verdict. I doubt it. The author of the opinion was Justice Jim Kitchens, a friend of mine for over 20 years. Justice Kitchens is a former criminal defense and plaintiff’s lawyer and is not the kind of person who would seek out a way to reverse a jury verdict to punish a plaintiff or plaintiff’s lawyer. I know him to be the kind of person who "calls ’em as he sees them," and he obviously believes that the duty to supplement responses to discovery is one that should be taken seriously. He – and the entire Court – have sent a clear signal that the duty to supplement applies to all litigants.
The case is Hyundai Motor America v. Applewhite, No. 2008-CA-01101- SCT (Miss. S. C. 2/10/2011).