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Do it again: Second depo allowed for witness who changed many answers


After the plaintiff in a medical malpractice wrongful death action submitted 72 changes to her deposition answers, a Virginia circuit judge allowed the defendants a second deposition to inquire about the changes.

The Fairfax County case raised an issue occasionally confronted by federal judges, but rarely addressed in state trial courts.

Judge David A. Oblon said Virginia court rules and a “strong policy rationale” supported a second question-and-answer session with the plaintiff, the daughter of the deceased former patient.

Oblon’s five-page, Sept. 25 opinion is Lohman v. Reston Hospital LLC (VLW 020-8-106).

Significant changes

The case involves an alleged missed cancer diagnosis, according to the judge’s summary. The plaintiff is Kathryn Lohman, daughter of the deceased patient and administrator of the estate. Lawyers for defendant doctors took Lohman’s deposition Oct. 29 last year. On Nov. 25, she submitted an errata sheet with 72 changes or corrections.

Three of the defendants filed a “Motion to Re-Depose” saying the changes were substantial. There were “many instances” of testimony changed from “no” to “yes,” or “no” to “I don’t remember,” Oblon said.

The judge said Lohman listed reasons for her changes including “I remembered incorrectly,” “I forgot to mention…,” “I didn’t fully understand the question…,” “I forgot to add this,” “I miscalculated,” “I misspoke,” “The question was confusing,” and “I remembered this afterwards.”

But Lohman opposed a second session. She said the rules expressly permit errata, but do not expressly allow re-opening of a deposition based on errata. She also contended most of the changes were “very minor and inconsequential,” according to Oblon.

Virginia rules don’t limit changes to minor corrections, Oblon said. Virginia Supreme Court Rule 4:5(e) allows a witness to make changes in “form or substance.”

“A deponent may make completely contradictory, material changes. The rule is silent as to what relief is available to the party taking the deposition when a deponent makes changes,” Oblon wrote.

Federal policies

Federal courts generally have discouraged substantive deposition changes. A Richmond federal judge last year refused to allow a plaintiff to change an answer on a key issue. “It makes no sense to allow a deponent to change sworn testimony merely because after the deposition he wishes that he had said something other than what was said,” wrote U.S. District Judge Robert E. Payne.

U.S. District Judge Michael F. Urbanski took a similar approach in a 2016 case. In 2011, U.S. District Judge James C. Cacheris blocked testimonial changes, saying “a deposition is not a take home examination.”

By contrast, U.S. District Judge James C. Turk allowed major revisions in a 2002 case, but he also allowed a second deposition.

License to permit second depo

By contrast to the federal rules, which limit depositions to one per witness absent leave of court, Virginia rules include no such limitation, Oblon observed. Virginia rules “appear to favor broad discovery through deposition,” he said.

“With this context, one can read Rule 4:5(b)(3) of the Rules of the Supreme Court of Virginia as giving the Court license to grant leave to re-depose a previously deposed party,” Oblon wrote.

Policy considerations support that conclusion, the judge said. A discovery-seeking party would lack an adequate remedy without the ability to re-depose after material changes. Practicality is another factor, he said.

“One can certainly imagine a lawyer, upon receiving a favorable answer to a question during a deposition, moving to another line of questioning, unaware the deponent will later, possibly in consultation with a lawyer or others, change that testimony 180 degrees,” Oblon wrote.

Interrogatories are no substitute, the judge reasoned.

“An interrogatory answer prepared with great consideration and counseling from an attorney is very different than a freewheeling deposition. In a deposition, the deponent answers questions without contemporaneous coaching and the deposing party can tease out nuances by asking a series of follow up questions,” Oblon said.

The judge determined to allow reopening of the deposition, but limited questioning to the changes on the errata sheet. Allowing broader inquiry would “violate the spirit of Rule 4:1” and invite duplicative questions,” Oblon said.

The plaintiff is represented by Steven M. Garver of Reston, who was unavailable for comment. The defendants who sought to re-depose the plaintiff are represented by Matthew D. Banks of Chantilly, who declined to comment.