JOHNSON BROS. CORP.
v.
WSP USA, INC.
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The court held that the expert affidavits did not flatly contradict prior deposition testimony to warrant striking, and the errata sheet was permissible under Rule 30(e) despite minor untimeliness.
Defendant WSP USA, Inc. moved to strike three expert affidavits and an errata sheet submitted by Plaintiff in opposition to summary judgment motions. …
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"Motions to strike are generally disfavored and infrequently granted." Austin S. I, Ltd. v. Barton-Malow Co., 799 F. Supp. 1135, 1145 (M.D. Fla. 1992), report and recommendation adopted by 799 F. Supp. 1135, 1137 (M.D. Fla. 1992). And although an affidavit submitted in opposition to a summary- judgment motion may be stricken as a sham when it, "without explanation,... flatly contradicts" the "prior deposition testimony" of the affiant "for the transparent purpose of creating a genuine issue of fact where none existed previously," this sham-affidavit rule "only operates in a limited manner to exclude unexplained discrepancies and inconsistencies, as opposed to those 'which create an issue of credibility or go to the weight of the evidence." Furcron v. Mail Ctrs. Plus, LLC, 843 F. 3d 1295, 1306 (11th Cir. 2016) (emphasis added) (quoting Tippens v. Celotex Corp., 805 F. 2d 949, 953 (11th Cir. 1986)). Here, the affidavits do not contradict the deposition testimony to such an extent.
As to the errata sheet, Federal Rule of Civil Procedure 30(e) contemplates that a deponent may make changes in... substance" to his deposition testimony. Here, Plaintiff's expert misspoke during his deposition and used the errata sheet to fix the mistake, (see Doc. 170-12 at 2), as Rule 30(e) permits. And the Court "forgives the errata sheet's] minor untimeliness." See EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F. 3d 253, 266 n.12 (3d Cir. 2010).
Accordingly, it is ORDERED that WSP's motion (Doc. 169) is DENIED.
DONE and ORDERED in Orlando, Florida, on June 1151 2024.
JOHN ANTOON II
United States District Judge
Copies furnished to: Counsel of Record
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Authorities Cited
- Tippens v. The Celotex Corp., 805 F.2d 949 (11th Cir. 1986)
- Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295 (11th Cir. 2016)
- Austin S. I, Ltd. v. Barton-Malow Co., 799 F. Supp. 1135 (M.D. Fla. 1992)