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The Duty to Update Incorrect Deposition Testimony; University of Notre Dame v. Bahney

On Behalf of | Jan 10, 2023 | Blog

This case centers on the extent to which a party must update the incorrect testimony of one of its witnesses and the proper remedy if it does not do so.

Bahney attended a basketball game at Notre Dame in 2014. While walking behind one of the baskets, Bahney tripped over a riser and broke her shoulder. Bahney sued, claiming that the floor was not safe and a failure to warn.

Notre Dame’s attorney took a picture of the riser after the lawsuit was filed, which showed a table and chairs on the riser. One of Bahney’s friends testified that the picture looked accurate but for the table and chairs, which were not there.

A Notre Dame official testified in her deposition that she believed the table and chairs were on the riser. After her deposition, the official found video of the game on YouTube and saw that the tables were not there. She told Notre Dame’s attorney about this, but the attorney did not tell Bahney’s counsel.

At trial, Notre Dame’s sole witness was that same official, who testified that she was incorrect at her deposition and that the table and chairs were not there. Nevertheless, Notre Dame used the picture with the table and chairs during its presentation. The official admitted that the lack of a table and chairs would mean that there was not a big visual cue regarding the riser’s placement.

Nevertheless, the jury rendered a defense verdict.

Bahney moved to vacate the judgment based on Notre Dame’s failure to “seasonably” amend the incorrect deposition testimony. The trial court granted that motion and Notre Dame appealed.

On appeal, the Court agreed that Notre Dame’s failure to notify Bahney of the change in the official’s testimony was misconduct, even if it was not intentional. But Bahney had to show that this substantially prejudiced her presentation of her case, and the Court found that she did not make this showing.

Bahney does not deny that it helped her case when Cundiff corrected herself and testified at trial that there were no tables on the riser when Bahney fell. Rather, she argues, as she did in the trial court, that had she learned earlier that Cundiff would be correcting her deposition testimony “she could have focused on other issues such as the markings on the risers or other warnings[.]” She contends that, instead, she was “forced to focus on reasons why the set up for that particular game was different than ‘normal.’ There are two problems with this argument. First, nothing in the record suggests that Bahney was restricted in her ability to address the adequacy of “markings on the risers or other warnings” (such as the yellow and black warning tape shown in the photograph above), nor does Bahney identify what more she could have or would have done in that regard. Second, the record belies Bahney’s claim that she spent a large amount of time trying to establish that there were no tables on the riser. Her questioning of Harmon about the absence of tables takes up about two pages of the transcript, and the only other witness she questioned about tables was Cundiff—Notre Dame’s witness.

Therefore, while Bahney may have been somewhat prejudiced by the changed testimony, she did not show that she was substantially prejudiced by this change. Therefore, the trial court abused its discretion when ordering a new trial.

Judge Bailey dissented. He felt that the trial judge, as the one with “boots on the ground” was in the “best position[] to evaluate the propriety of equitable relief.”

I have little difficulty believing that, had there been discovery compliance, Bahney would have moved to exclude the photograph from evidence and/or to introduce the video. The video of game day, if authentic, would have been the best evidence of the metal riser configuration. That said, we are not conducting a line item or de novo review of Notre Dame’s Trial Rule 26(E) compliance or Bahney’s trial choices and strategy. Rather, we are simply evaluating whether Bahney was entitled to equitable relief. Because I cannot say as a matter of law that it was an abuse of discretion, I respectfully dissent.

1. Trial Rule 26(E) requires a party to amend a discovery response, including a deposition answer, if he obtains information upon the basis of which he knows that the response was incorrect when made.
2. Trial Rule 60(B)(3) provides that a court may relieve a party from a judgment for misconduct by an adverse party but only if the misconduct prevented the opposing party from fully and fairly presenting her case at trial, i.e., that it substantially prejudiced the party’s presentation of its case.
3. Amend mistaken discovery responses, including deposition testimony.