Miss. Supreme Court: Deposition Errata Sheet No Substitute for Formal Rule 26 Expert Supplementation
On Thursday a unanimous Mississippi Supreme Court reversed a $4.5 million jury verdict and ordered a new trial in Hyundai Motor America v. Applewhite.
The decision involved a products liability case tried in the Circuit Court of Coahoma County. The plaintiffs were the beneficiaries of three persons killed in a car crash involving a 1993 Hyundai Excel. Plaintiffs alleged that the vehicle was not crashworthy due to design and manufacturing defects.
Hyundai's appeal focused on Daubert challenges of the plaintiffs' three expert witnesses. The Court ruled that the trial court did not abuse its discretion by admitting the experts' testimony. Significantly, the Court rejected Hyundai's argument that computer simulations alone are not sufficient to support expert testimony. The Court stated that: “[w]e are not prepared to say that an expert must physically build a model of his alternative design in order to to demonstrate efficacy.”
But the plaintiff got into trouble over changes to testimony that one of the experts made in his deposition errata sheet. The changes were to four variables used to make the expert's calculations. The plaintiff did not precede or follow the errata sheet with a formal supplementation of the expert's opinions pursuant to Miss. R. Civ. P. 26.
The Court stated that: “[t]he 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 witnesses's testimony.” As a result, parties may not rely on a witness's deposition errata sheet as a substitute for formal and timely supplementation.
The Court ordered a new trial due to the plaintiffs' failure to supplement their discovery responses.
Justice Kitchens' wrote the Court's opinion. Ralph Chapman and others represented the plaintiffs. Lawyers from Watkins and Eager in Jackson represented Hyundai.
My Take:
This is not a surprising decision. The Supreme Court likes to see the rules of civil procedure adhered to. Lawyers have to be careful to supplement discovery responses, including expert opinions. This was not a total loss for plaintiffs, since the Court remanded the case instead of rendering.
With all due respect for Justice Kitchen, who I admire alot both as a practicing attorney and a Justice, I disagree wholeheartedly. This is playing games, the point is the Defendants got the expert opinions in discovery regardless whether it was in the errata sheet or in supplemental responses.
The errata sheet is not just for scribner's error. Witnesses mistate and have a duty to correct. If its a substantial change then other side should be permitted to redepose at the expense of the party who changed the answers.
I have had witnesses who answered questions but then after reading the depositions said I was wrong and corrected it for that reason. Why is that not permissible? They are still subject to impeachment?
Tim, I agree wholeheartedly with you in substance, but you have to realize, you're missing the forest for the trees. The current court will literally invent any reason to reverse a million dollar plus jury verdict. Procedural, expert opinion, take your pick.
(Cue Anderson, to step in and tow the defense lawyer side and argue that this was a fair and just opinion because Kitchens wrote it.)
Roland, I am under no illusions about Kitchens' ability to write a fair opinion, for either side. Tho normally I expect the hardcore "rules is rules" ops to come from Dickinson.
And I thought it was pretty funny that the defense sat on its hands and then tried to mount a Daubert challenge *after* the experts testified.
But I do think this was the right call, as the unanimous decision suggests. An errata sheet is not a supplementation of discovery under the rules, and really, HOW HARD IS IT to send out a freakin' supplemental response?
Chapman and his firm are not exactly amateurs, and there was not much excuse for failing to supplement ... unless they were hoping the new numbers would escape notice as being on an errata sheet.
Re: Tim, his witnesses are still free to make their corrections; but if those corrections are material to a discovery response, then Tim needs to supplement as well.