IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
`
`CA. No. N18C-07-212 JRJ
`
`) )
`
`) )
`
`)
`)
`)
`)
`)
`
`) )
`
`)
`
`JETTA ALBERTS,
`
`Plaintiff,
`
`V.
`
`ALL ABOUT WOMEN, PA. a Delaware
`corporation, REGINA SMITH, D.O.,
`and CHRISTIANA CARE HEALTH
`SERVICES, INC,
`
`Defendants.
`
`MEMORANDUM OPINION
`
`Date Submitted: July 21, 2020
`Date Decided: November 10, 2020
`
`Upon Plaintifi”s Motion to Strike Errata Corrections: GRANTED
`
`J. Teti, Esquire, Ashby & Geddes,
`Randall E. Robbins, Esquire, Randall
`Wilmington, Delaware, Attorneys for Plaintiff.
`
`Gregory S. McKee, Esquire, Lauren C. McConnell, Esquire, Wharton, Levin,
`Ehrmantraut & Klein, P.A., Wilmington, Delaware, John D. Balaguer, Esquire,
`Lindsay E. Imbrogno, Esquire, White and Williams LLP, Wilmington, Delaware,
`Attorneys for Defendants.
`
`Jurden, P.J.
`
`

`

`I. INTRODUCTION
`
`This is a medical negligence action arising from a myomectomy performed
`
`on Plaintiff Jetta Alberts (“Plaintiff”) at Christiana Hospital on September 6, 2017
`
`that ultimately resulted in the loss of her uterus at the age of twenty-five.1 On June
`
`3, 2020, Plaintiff deposed Diane McCracken, M.D., an owner of Defendant All
`
`About Women, P.A., (collectively, with Dr. Regina Smith, D.O., “Defendants”) and
`
`the supervising attending physician who was responsible for Plaintiff’s post-
`
`operative care.
`
`2 Following that deposition, and as a result of Dr. McCracken’s
`
`testimony,
`
`the Plaintiff’s OB/GYN expert supplemented his expert opinions,
`
`opining, among other things, that Dr. McCracken breached the standard of care with
`
`respect to the clinical assessment of the Plaintiff.3 Almost a month later, Dr.
`
`McCracken submitted an errata sheet setting forth multiple “desired corrections”
`
`(“corrections”) to her deposition testimony (collectively,
`
`the “Errata sheet”).
`
`Plaintiff moves to strike a number of these corrections, arguing they significantly
`
`“manipulate, supplement, or change” Dr. McCracken’s deposition answers.4
`
`For the following reasons, Plaintiff’s Motion to Strike Errata Corrections is
`
`GRANTED.
`
`
`
`I D.I. 107 11 l. A myomectomy is a surgical procedure to remove uterine fibroids. D.I. l 11 13.
`2 Id. 11 3.
`3 D1. 107, Ex. B at 3.
`4 D.I. 107 11 4. Dr. McCracken reserved the right to review and read her deposition transcript. D.I.
`120 11 1.
`
`

`

`II. FACTS AND PROCEDURAL HISTORY
`
`A. Plaintiff’s Medical Negligence Claims
`
`Plaintiff alleges Defendants breached the standard of care by failing to
`
`timely recognize Plaintiff experienced post-operative internal bleeding in the two
`
`days following her myomectomy.5 By the time Defendants discovered the
`
`bleeding, Plaintiff had lost almost two—thirds of her blood volume and had to
`
`undergo an emergency hysterectomy.6 According to Plaintiff, the standard of care
`
`required Defendants to be cognizant of her full clinical picture and immediately
`
`recognize the signs and symptoms of internal bleeding throughout post-operation
`
`day one (“PODl”) and the morning of post—operation day two (“POD2”).7
`
`Plaintiff claims that had the Defendants met the standard of care, Plaintiff would
`
`not have experienced such significant blood loss and would not have had to
`
`undergo the hysterectomy.8
`
`5 D.I.107111
`6161.112.
`71d.
`8 Id. According to Plaintiff, a significant issue in this case is whether Defendants failed to
`recognize the signs and symptoms of internal bleeding throughout PODl (9/7/17) and the
`morning of POD2 (9/8/ 17). The signs and symptoms included PODl bloodwork showing a 6-
`point hemoglobin drop to 7.1 from Plaintiff’ s pre-op hemoglobin of 13.2, representing a loss of
`nearly 50% of her blood volume, together with persistent pain, persistent nausea and vomiting,
`fluid imbalance, and elevated heartrate, all consistent with internal bleeding. Plaintiff contends
`Defendants never checked the PODl bloodwork results on PODl that were posted to Plaintiff” s
`chart at 9:07 am. according to CCHS’s audit trail. It was not until POD2, when Plaintiffs
`hemoglobin level dropped to 4.7, that Defendants recognized Plaintiff was bleeding internally
`and had lost nearly 2/3 of her blood volume. She underwent the hysterectomy shortly thereafter.
`Plaintiff maintains that the standard of care required Defendants to, among other things, check
`
`3
`
`

`

`B. Plaintiff’s Motion to Strike the McCracken Errata Sheet Corrections
`
`On June 3, 2020, Plaintiff took Dr. McCracken’s deposition.9 After
`
`receiving a copy of Dr. McCracken’s deposition transcript, Plaintiff’s OB/GYN
`
`expert, Dr. Daniel Small, M.D., supplemented his expert disclosure
`
`(“Supplemental Disclosure”) to add that, in his expert opinion, (1) Dr. McCracken
`
`breached the standard of care owed to Plaintiff when she failed to recognize the
`
`“obvious signs, symptoms and labs consistent with internal bleeding” until
`
`POD2,10 (2) Dr. McCracken’s testimony that “potentially any of us or potentially
`
`none of us” responsible for Plaintiff’s care would know the elements of the clinical
`
`information necessary to diagnose Plaintiff’s condition, falls below the standard of
`
`care,11 and (3) Dr. McCracken’s testimony regarding what a “clinical picture”
`
`means is a “grossly inaccurate representation of the meaning of clinical picture,
`
`and falls far below the knowledge and skill ordinarily employed by an attending
`
`the bloodwork results they ordered and to be aware of Plaintiff’ s total clinical picture. D.I. 107 11
`2.
`
`9 Id. 11 3. Plaintiff originally sought to take Dr. McCracken’s deposition in November 2019, but
`the parties were unable to agree to a common date until April, when COVID-19 struck. The
`parties agreed to a date in June in order to safely conduct the deposition. Hr’g: 323-614.
`10 D.I. 107, Ex. B at 3. In his first expert disclosure, Dr. Small opined that the hospital’s doctors,
`residents, and nurses, including Dr. Regina Smith, breached the standard of care by failing to
`timely respond to Plaintiffs internal bleeding until her risk level was dangerously high and
`failing to investigate and be aware of Plaintiffs whole clinical picture. Id. at 3, 5.
`11 Id. at 6, citing McCracken Dep. at 127-28 (internal quotations omitted).
`
`4
`
`

`

`OB/GYN and the use of reasonable care and diligence in the postoperative care of
`
`a myomectomy patient[.]
`
`”12
`
`Two weeks after Plaintiff produced Dr. Small’s Supplemental Disclosure,
`
`and almost one month after her deposition, Dr. McCracken submitted an Errata
`
`sheet substantively supplementing and changing her deposition testimony.13 In
`
`response, Plaintiff filed the instant motion.
`
`The corrections on the Errata sheet Plaintiff moves to strike are as follows:14
`
`
`
`Testimony
`
`Desired Corrections
`
`Dep. Question Asked
`Tr.
`38:12- ' Q: Does [Ashley A: She typically would— if we A: She typically would — i_f
`19
`August,
`P.A.] have the list in front of us I we have the list in front of us
`communicate to would say are there any issues? I would say are there any
`you
`about
`all And she would say yes, you issues? And she would say
`patients or
`just know,
`this person’s blood yes, you know, this person’s
`ones where she pressure is elevated and this blood pressure is elevated
`perceives there’s person wants to go home early and this person wants to go
`an issue?
`or something like that.
`home early or
`something
`So we wouldn’t necessarily go like that.
`through details of every single So we wouldn’t necessarily
`patient ifthe patients are stable. go through 31—11% details of
`every single patient if the
`
`patients are stable.
`
`
`
`
`
`1.
`
`
`
`12 Id.
`13 D.I. 107 1] 4. Defense counsel received the transcript of Dr. McCracken’s deposition on June
`5, 2020. D.I. 120 11 3. Plaintiff produced Dr. Small’s Supplemental Disclosure on June 17, 2020.
`D.I. 99.
`
`14 Desired corrections are in bold and underlined. For ease of reference, the Court has numbered
`the corrections. The actual Errata sheet with the corrections and reasons for the corrections can
`
`be found at D.I. 107, Ex. C.
`
`

`

`Q: And would it
`be significant to
`you whether [the
`myomectomy]
`
`was
`open
`laparoscopic?
`
`01'
`
`A: Not necessarily significant.
`I mean that’s, that’s just — it’s
`still an abdominal surgery and
`carries many of the same risks
`either way.
`You know,
`typically recovery is a little
`longer
`for
`an
`open
`[myomectomy], but it has in
`the first day or two similar
`
`
`
`recovery so .
`
`.
`
`.
`
`[I]’m asking
`about
`you
`7th
`September
`when you were
`the
`supervising
`physician
`for
`Jetta Alberts on
`
`post-op day one.
`In that situation
`
`would the drop in
`hemoglobin from
`13.2 to 7.1 be
`
`It would not have changed
`A:
`anything.
`If I had a patient
`that’s
`otherwise
`clinically
`stable with
`normal Vitals,
`eating, making urine and a drop
`to hemoglobin to 7 and no
`obvious signs of hemorrhage
`or bleeding,
`that wouldn’t
`change anything in the clinical
`picture at that time.
`
`A:
`
`It would not have
`
`changed anything. If I had a
`patient
`that’s
`otherwise
`clinically stable with normal
`Vitals, eating, making urine
`and a drop to hemoglobin to
`7 and no obvious signs of
`hemorrhage or bleeding, that
`wouldn’t change anything i_g
`that we do with the clinical
`
`time. fl
`that
`picture at
`would continue to monitor
`
`' 48:6
`
`79:9—
`
`10
`
`87:1
`
`necessarily
`Not
`A:
`significant.
`I mean that’s,
`that’s just -
`-
`it’s still an
`abdominal
`surgery
`and
`carries many of the same
`risks either way. You know,
`typically recovery is a little
`longer
`for
`an
`open
`[myomectomy], but it has in
`the first day or two similar
`recovery so i_t would be a
`similar
`post
`operative
`course.
`
`
` Q:
`was A: No, I don’t. I was not made
`
` A: No, I don’t.
`
`
`to the
`relevant
`
`clinical picture?
`Q: Do you know
`whether
`
`aware of the nausea so those
`
`I was not
`made aware bv the nurse of
`
`it.
`
`weren’t questions that I had a
`[Plaintiff]
`questions that I had a chance
`chance to ask.
`eating?
`_ to ask.
`
`the nausea so those weren’t
`
`

`

`
`
`127:7
`
`Q: Who taking
`care of [Plaintiff]
`would know the
`
`important pieces
`of
`clinical
`
`information?
`
`
`
`
`
`on the clinical presentation
`of each individual patient.
`Depending
`on
`that
`particular
`presentation1
`each provider may need to
`do further investigation in
`the chart. For example, if
`one was advancing their
`diet:
`it may
`not
`be
`necessary to look back to
`see when
`they started
`advancing their diet.
`
`
`I guess it
`A: Well, again,
`depends on what their role was.
`So the nurse would know the
`
`Vitals and might know a low
`blood count or might not. The
`residents might know that,
`might
`not.
`So
`probably
`everybody has parts of that
`clinical information.
`
`I think everybody might find
`more pieces that are more —
`like people might deem certain
`pieces
`important and others
`not. So everybody might have
`their own clinical perspective
`as to what pieces are important
`and what aren’t.
`
`
`
`A: Well, again, I guess it
`depends on what their role
`was.
`So the nurse would
`
`know the Vitals and might
`know a low blood count or
`
`The residents
`might not.
`might know that, might not.
`So probably everybody has
`parts
`of
`that
`clinical
`information.
`
`I think everybody might find
`more pieces that are more —
`like people might deem
`certain pieces important and
`others not.
`So everybody
`might
`have
`their
`own
`clinical perspective as
`to
`what pieces are important
`and what aren’t. It is based
`
`
`
`
`
`
`
`

`

`
`
`A: I mean I think that’s the role
`
`A:
`
`I mean I think that’s the
`
`127218 Q: How do all of
`those
`important
`pieces
`get
`brought
`together
`to
`form
`a
`
`diagnosis?
`
`of the clinician when they see
`the patient, to see what’s going
`on and what are all of the pieces
`and how do I think it fits. But to
`
`say that every person or who’s
`the person in charge of her that
`knows every little single piece
`of information is not, that’s not
`
`6.
`
`realistic.
`
`
`
`
`
`role of the clinician when
`
`to see
`they see the patient,
`what’s going on and what are
`all of the pieces and how do I
`think it fits. But to say that
`every person or who’s the
`person in charge of her that
`knows
`every little
`single
`piece of information is not,
`that’s not realistic. Again,
`the clinical picture of the
`patient is what drives the
`course of action of any
`clinician. For example, it
`|sic| the patient had normal
`vital signs, one would not
`necessarily look back to see
`if
`the patient ever had
`tachycardia because under
`that scenario it wouldn’t
`
`to
`necessarily be relevant
`the patient’s management
`moving forward.
`
`A: Potentially any of us or
`
`potentially none of us: know
`evegything. However, we
`would all assess the clinical
`
`picture when we evaluate
`the patient and if there is
`anything that occurs during
`that evaluation which raises
`
`a guestion, we could then go
`into the patient’s chart to
`further investigate that but
`each scenario is different.
`
`
`
`
`
`Potentially any of us or
`A:
`Q: [W]ho knows
`the
`pieces
`of potentially none of us.
`clinical
`
`information
`
`to
`necessary
`diagnose what is
`currently
`occurring
`the patient?
`
`with
`
`128:1
`
`7.
`
`
`
`
`
`

`

`
`A:
`I mean clinical picture to‘
`me is how the patient is doing
`clinically.
`Are they sitting
`there awake and alert and
`
`132218 Q: When you’re
`talking
`about
`clinical
`picture,
`what
`are
`you
`talking about?
`
`breathing or are they lying on
`the floor without a pulse?
`Right?
`
`
`
`
`
`
`
`A: I mean clinical picture to
`me is how the patient
`is
`doing clinically. Are they
`sitting there awake and alert
`and breathing or are they
`lying on the floor without a
`pulse? Right? We assess
`each
`individual
`patient
`and depending on what the
`evaluation
`shows,
`we
`investigate further in the
`chart or order addition
`
`
`
`
`
`|sic| tests to ascertain what
`the care plan would be
`moving forward. In order
`to do that: we would
`typicallv
`look
`for
`something in the patient’s
`presentation that
`is not
`tvpical for a normal post-
`operative course.
`
`III. PARTIES’ CONTENTIONS
`
`Plaintiff argues that Dr. McCracken is using an errata sheet to improperly alter
`
`her testimony, and by doing so, has deviated from the purpose of an errata sheet—to
`
`correct typographical errors—not to rewrite harmfiil or incomplete testimony.15
`
`Plaintiff contends that allowing the type of changes Dr. McCracken seeks to make
`
`will render depositions no longer reliable.16 Plaintiff filrther contends that Superior
`
`‘5 D.I. 107 W 6, 8; see also Hr’g 45:3-8. Plaintiff’s Counsel asks the Court to consider: “. . .what
`was the intent of the Errata changes? Was it to rewrite depositions and change the reliability of
`the deposition and the reliability of the discovery process?”
`16 Hr’g. 33:16-20.
`
`

`

`Court Rules 30(d) and (e) are in conflict with respect to the degree to which attorneys
`
`may be involved with the substance of a deponent’s testimony, and the Court should
`
`resolve the conflict in a manner that advances justice and avoids absurd results.17
`
`Defendants18 argue that the Errata sheet “comports with the clear language of
`
`Rule 30(e)” as it clarifies and corrects various aspects of Dr. McCracken’s
`
`testimony.1
`
`9
`
`Defendants concede that some of Dr. McCracken’s changes are
`
`substantive, but argue they are not contradictory and merely clarify her testimony.20
`
`According to Defendants, none of Dr. McCracken’s changes to her testimony were
`
`1
`made in response to Dr. Small’s Supplemental Disclosure.2 Finally, Defendants
`
`argue that even if the Errata sheet is improper, Plaintiff will have the opportunity to
`
`cross-examine Dr. McCracken on her changes at trial or may seek a deposition solely
`
`limited to the Errata sheet.22
`
`‘7 Hr’g 34215-3511.
`18 Defendant Christiana Care Health Services, Inc. takes no position on Plaintiffs Motion. DJ.
`1 17.
`
`19 D.I. 120 1] 4.
`2° Hr’g 18:10-18; 44:11-21.
`21Hr’g18221-23.
`22 D.I. 120 1] 10. According to Plaintiff, redeposing the witness would be an ineffective practice
`because she is now prepared to respond with the litigation talking points. Hr’g 35:2-10.
`
`10
`
`

`

`IV. DISCUSSION
`
`The meaning of the term “errata sheet” is derived from the word erratum
`
`which means “an error that needs correction.”23
`
`While Super. Ct. Civ. R. 30(e) allows a deponent to make changes to their
`
`deposition testimony in form or substance, it does not allow them to improperly
`
`alter what they testified to under oath. A deposition is not a practice quiz. Nor is it
`
`a take home exam.24 An errata sheet exceeds the scope of the type of revisions
`
`contemplated by Rule 30(e) when the corrections “are akin to a student who takes
`
`her in-class examination home, but submits new answers only after realizing a
`
`month later the import of her original answers could possibly result in a failing
`
`”25
`
`grade.
`
`23 Black's Law Dictionary (11th ed. 2019) (defining errata sheet as “[a]n attachment to a
`deposition transcript containing the deponent's corrections upon reading the transcript and the
`reasons for those corrections”).
`24 Donald M Durkin Contracting, Inc. v. City ofNewark, 2006 WL 2724882, at *5 (D.Del. Sept.
`22, 2006) (citing Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 (10th Cir. 2002) (“The
`Rule [3 0(e)] 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.” (quoting Greenway v. Int ’1 Paper Co., 144 F.R.D. 322, 325 (W.D.La.
`1992))). In Durkin, a deponent executed an errata sheet “clarifying” her deposition testimony.
`The court in Durkz'n treated the errata sheet as an affidavit and analyzed it under the sham
`affidavit rule. See id. , at *3-5. Although the McCracken Errata sheet was not offered to
`overcome a summary judgment motion, Durkin is instructive to the extent it discusses F.R.C.P.
`30(e) and the scope of the type of revisions contemplated by the Rule. See Crumplar v. Super.
`Ct. ex rel. New Castle Cnty., 56 A.3d 1000, 1007 (Del. 2012) (deciding interpretations of Federal
`Rules of Civil Procedure provide “persuasive guidance” for interpretation of Superior Court
`Rules of Civil Procedure).
`25 Durkin, 2006 WL 2724882, at *5.
`
`11
`
`

`

`The Plaintiff in this case posits:
`
`What is the point of a deposition if defense counsel asks questions of
`his client on cross-examination because of damaging testimony she
`gave to Plaintiff” s counsel on direct on a key issue (here, clinical
`picture), gets more damaging sworn testimony from his client on that
`same key issue, but then gets to rewrite both of his client’s answers to
`und[o] the damage?26
`
`This is an excellent question.
`
`It is beyond dispute that depositions play a critical role in the discovery
`
`process, trial preparation, and trial. They are one of the trial lawyer’s most
`
`valuable tools. Among other things, they enable the parties to elicit facts and
`
`opinions through sworn testimony, which the parties in turn provide to their
`
`respective experts to secure expert opinions. In essence, the deposition allows a
`
`party to “pin down a witness” on key points. Not only is this sworn testimony used
`
`by the parties’ experts, it is used at trial to impeach a witness who strays from or
`
`contradicts their deposition testimony. In short, plaintiffs and defendants rely
`
`heavily on depositions to develop trial strategy and prepare their cases for trial. 27
`
`Because they are so important, deposition preparation, whether it be for a fact
`
`26 DJ. 107 'n 7.
`27 The Delaware Supreme Court stated in Americas Mining Corp. v. Theriault, “[t]he Court of
`Chancery noted that when witnesses ‘get deposed, you learn things, and you might ask other
`people or shape your trial strategy differently.” 51 A.3d 1213, 1238 (2012); see also Hoey v.
`Hawkins, 332 A.2d 403, 406 (Del. 1975) (“Discovery and pretrial practices usually result in the
`narrowing and clarifying of issues so as to shorten trials and to bring about a greater degree of
`clarity and justice in the presentation of facts to juries”).
`
`12
`
`

`

`witness or an expert witness, is serious business. This is true for both sides,
`
`regardless of which party is taking or defending the deposition. A party should be
`
`able to rely on testimony obtained through a deposition because the deponent has
`
`sworn under oath that the testimony they are about to give is the truth.28
`
`Generally speaking, there is a typical order to discovery in medical
`
`negligence cases: first fact witness depositions, then expert witness depositions.29
`
`This is so not only to ensure discovery is conducted in an orderly, effective, and
`
`efficient manner, but also for the simple reason that experts need to know the facts
`
`before they formulate their opinions. What is particularly troubling here is the
`
`disruptive nature, scope, and timing of Dr. McCracken’s alterations to her
`
`deposition answers vis-a-vis the issuance of a supplemental expert opinion critical
`
`of the care she rendered to Plaintiff.
`
`Two weeks after the McCracken deposition Plaintiff produced Dr. Small’s
`
`Supplemental Disclosure in which he opined that Dr. McCracken breached the
`
`standard of care of a supervising attending OB/GYN by failing to be aware of her
`
`patient’s pertinent clinical picture and clear signs of internal bleeding. According
`
`to Dr. Small, Dr. McCracken’s deposition testimony that potentially any or
`
`potentially none of the members of the medical team responsible for Plaintiffs
`
`28 Super Ct. Civ. R. 30(b)(4).
`29 See Hr’g 8:18-93.
`
`13
`
`

`

`care would know the necessary clinical information to make a diagnosis is below
`
`the standard of care.30 On her Errata sheet, Dr. McCracken significantly
`
`supplements and alters her responses in an apparent effort to make them less
`
`damaging. For example, her response to the straightforward question, “. . .who
`
`knows the pieces of clinical information necessary to diagnose what is currently
`
`occurring with the patient?” changes from, “[p]otentially any of us or potentially
`
`none of us[.]” to,
`
`[p]otentially any of us or none of us know everything. However, we would
`all assess the clinical picture when we evaluate the patient and if there is
`anything that occurs during that evaluation which raises a question, we could
`then go into the patient’s chart to further investigate that. . . [.].31
`
`By way of fithher example, after Dr. Small opined in his Supplemental
`
`Disclosure that Dr. McCracken’s testimony that a patient’s “clinical picture”
`
`means whether a patient is “awake and alert and breathing, or are they lying on the
`
`floor without a pulse” is a grossly inaccurate representation that evidences a lack of
`
`knowledge and skill required of an OB/GYN in the post-operative care of a
`
`myomectomy patient,32 Dr. McCracken tries to rewrite her response by adding,
`
`[w]e assess each individual patient and depending on what the evaluation
`shows, we investigate further in the chart or order additional tests to
`ascertain what the care plan would be moving forward. In order to do that,
`
`30 D.I. 107, Ex. B 1] 10a, quoting McCracken Dep. 127:19-128z5.
`31 Correction No. 7, supra p. 8.
`32 D.I. 107, Ex. B fl 10(b).
`
`14
`
`

`

`we could typically look for something in the patient’s presentation that is not
`typical for a normal post-operative course.33
`
`Dr. McCracken’s Errata sheet was provided two weeks after Dr. Smalls’
`
`Supplemental Disclosure was produced. Although an attorney is not permitted to
`
`consult or confer with their client about their testimony or anticipated testimony
`
`during the client’s deposition, once the deposition is over, there is no such
`
`prohibition.34 Allowing a deponent to use their errata sheet to work around the
`
`prohibition in Rule 30(d)(1) by altering sworn testimony in an attempt to undo
`
`33 Correction No. 8, supra p. 9. As Plaintiff points out, Correction No. 8 is Dr. McCracken’s
`third attempt at a response to a straightforward question. See Mot. at 4-6 (Dr. McCracken
`provided an answer “first in response to Plaintiff s counsel, second in response to her own
`counsel, and third in converting the Errata [s]heet into a take home deposition”).
`34 Super. Ct. Civ. R. 30(d)(1) prohibits the attorney(s) for a deponent from consulting or
`conferring with the deponent regarding the substance of the testimony already given or
`anticipated to be given, from the commencement until the conclusion of a deposition, including
`any recesses or continuances lasting less than five calendar days. Super. Ct. Civ. R. 30(e) does
`not prohibit a deponent’s attorney from consulting or conferring with a deponent about their
`errata sheet. At oral argument, the Court, in response to Plaintiff s argument that Rule 30(d) and
`(e) are in conflict (Hr’g 34:15-17), raised this with Defense counsel:
`
`The Court: So, theoretically, after the deposition a fact witness gets the transcript,
`reviews it. There’s no prohibition against that witness talking to anybody about their
`deposition and getting assistance preparing the errata sheet, or is there? Hr’g 16:21-17:2.
`
`Defense Counsel: There’s none to my knowledge. Id. 1723-4.
`
`The Court: So there would be nothing to prohibit a witness who had been deposed from
`talking to their attorney about their testimony after seven days; right? Id. 42:7-10.
`
`Defense Counsel: Correct. The same for experts as well. Id. 42:11-12.
`
`The Court: That’s a little troubling to me when you talk about errata sheets that add
`substantive testimony. Id. 42: 1 3 -1 5.
`
`15
`
`

`

`damaging answers they gave at their deposition (or respond to an opposing
`
`expert’s criticism), not only subverts the purpose of the deposition, but the
`
`discovery rules themselves.35 It also increases the cost of litigation and prolongs
`
`discovery.36 If the errata sheet gives the deponent a do—over as Defendants seem
`
`to maintain it does, deposition testimony, despite being sworn testimony, will no
`
`longer be reliable, making it almost meaningless.37 Once the deposition is
`
`35 See Hr’g 10:14-17. The Court: “I don’t understand how the discovery process can survive a
`ruling that says that it’s okay to make substantive changes to an errata sheet of this extent[.]”;
`see also Hr’g 43:16—21. The Court: “I’m worried about a fact witness after trial that on an errata
`sheet adds substantive amendments and changes to her fact testimony after the period runs
`during which she’s prohibited from having a discussion with the attorney about her testimony”;
`In re Examworks Grp., Inc. S’holder Appraisal Litig., 2018 WL 1008439, at *5 (Del. Ch. Feb.
`21, 2018) (“[T]he purpose[s] of discovery [are] to advance issue formulation, to assist in fact
`revelation, and to reduce the element of surprise at trial. These instrumental purposes in turn
`serve the overarching and well established policy underlying pretrial disclosure, which is that a
`trial decision should result from a disinterested search for truth from all available evidence rather
`
`than tactical maneuvers based on the calculated manipulation of evidence and its production.”
`(internal citations omitted».
`36 Hr’g 28:19-29:6. The Court: “[t]he Plaintiff thinks that they have the landscape set with what
`that witness’s testimony is, the fact testimony. They count on it. We move through discovery.
`They have their experts take the time and pay the expense to the expert to review that fact
`testimony and issue a supplemental disclosure, as they must if there are substantive changes to
`[an] expert’s initial opinion, and then to find out, oh, wait a minute, there’s more. Do you see the
`Court’s trouble with the precedent that’s set for all cases?”
`37 Hr’ g 1024—13. The Court: “[T]his chronology is troubling to me, and the extensive changes to
`the substance of the testimony after the deposition, after the witness is able to be cross-examined
`by All About Women’s counsel, after the expert disclosures have been made and supplemented, I
`mean, I can’t imagine what havoc would be wreaked if this becomes the norm in cases because
`depositions will be meaningless because you can just supplement at will through an errata
`sheet”; see also Hr’g 303-13.
`
`The Court: The errata sheet’s not meant to supplement the deposition, is it? That’s not
`the true nature of an errata sheet. You know what errata means, right? There’s an error.
`It doesn’t mean that the witness wishes that he or she could have said something
`more. . .That’s not the purpose of it. The purpose is to correct an error in testimony;
`right?
`
`16
`
`

`

`concluded, the deponent can confer with counsel, review the opposing expert
`
`reports, talk to other witnesses, and then supplement, alter, tailor and correct any
`
`response that is problematic for their side of the case.38 This brings us back fiall
`
`circle to Plaintiff” s question—does this not frustrate the intent of taking sworn
`
`testimony in a deposition?39 The answer is, yes.
`
`As Plaintiff s counsel correctly notes,
`
`[t]he arguments advanced by [Defendants] in this case will not secure the
`just, speedy and inexpensive determination of every proceeding“, but
`actually have the opposite effect that depositions will no longer be reliable.
`The opportunity to resolve cases more quickly and more inexpensively
`through either settlements or motion practice will definitely be effected.41
`
`After careful review of Dr. McCracken’s deposition testimony, Dr. Small’s
`
`Supplemental Disclosure, and Dr. McCracken’s Errata sheet, it appears that her
`
`Defense Counsel: Correct.
`
`38 See Hr’g 10:14-17. The Court: “I don’t understand how the discovery process can survive a
`ruling that says that it’s okay to make substantive changes to an errata sheet of this extent[.]”.
`39 As the Court queried more than once during oral argument, “where does this stop?” Hr’g 8:17.
`40 See Hr’g 33:8-15. Super. Ct. Civ. R. 1 states, “These rules shall govern the procedure in the
`Superior Court of the State of Delaware with the exceptions stated in Rule 81. They shall be
`construed and administered to secure the just, speedy, and inexpensive determination of every
`proceeding.”
`41 Hr’g 33: 16-23; see also Hr’g 35:2-14. Plaintiff’ s Counsel: “[i]t would be an absurd result to
`say that after a deposition a witness, who their attorney actually took the opportunity to question
`at the deposition to try to clear up matters, can then rewrite all those matters to literally hit the
`litigation talking points. These are the litigation talking points of their defense. And just to
`substitute them in every instance where the answer conflicts with the litigation talking points, as
`Your Honor noted, where does it end? Errata, as Your Honor noted, literally means an error in
`printing or writing. That’s the definition of errata.”
`
`17
`
`

`

`revisions to her deposition answers, (on pp. 5-8 of this opinion) are a tactical
`
`attempt to rewrite damaging deposition testimony.42 Dr. McCracken’s testimony
`
`occurred during a deposition at which she was questioned by Plaintiff s counsel
`
`and by her own attorney.43 Her deposition transcript does not reflect COI‘lfiJSlOIl that
`
`the Errata sheet attempts to explain.44 Moreover, the reasons she provides for her
`
`corrections do not indicate she was confused or misunderstood the questions.”
`
`The deposition transcript shows that when Dr. McCracken did not understand the
`
`questions, she would indicate so to her counsel and Plaintiffs counsel. Also
`
`42 See Durkin, 2006 WL 2724882, at *5 (striking the errata corrections as not “clarifications” but
`alterations of the deponent’s testimony on key issues and provided alternative theories and
`defenses that the defense was now attempting to advance at trial).
`43 Hr’g 13:4-14. The Court: “So I understand what [Defendants are] saying, but isn’t that the
`point of your ability to cross-examine your own fact expert after the plaintiff finishes with them?
`In case you did think that during the direct deposition exam there was some confusion on your
`witness’s part? You have the opportunity, do you not, to go through on cross and ask questions
`so that you in your mind can clear up what misunderstanding there may have been. Isn’t that the
`point of giving you cross-examination ability in a deposition?”; see also Hr’ g 22:23-23: 18. The
`Court: “It seems most of the substantive corrections, additions, amendments to her deposition
`testimony focus on a better explanation of what is meant by clinical presentation and what that
`entails. I’m not clear on why if you thought questions were confusing or you thought that the
`questions were improper on cross-examination she didn’t give these answers when you had the
`opportunity to question her.
`I don’t understand. How many bites at the apple does afact witness
`get to give their sworn testimony? I don’t understand why we didn’t get more elaboration on the
`clinical picture, because on pages 127 through 128 and again on page 132, significant substantive
`amendments to her deposition testimony regarding clinical presentation. You had that
`opportunity in response to the questions that I read on direct and on cross to elaborate to this
`degree, but she did not and she saved it for her Errata sheet. Why?” (emphasis added).
`44 D.I. 107, Ex. C. In fact, nowhere on the Errata sheet does she state that the reason for h