Maldonado v. Federal Express Corporation

Opposition to Motion re MOTION to Strike 128 Notice

D.V.I.June 7, 2019

LEE J. ROHN AND ASSOCIATES, LLC 1101 King Street Christiansted VI 00820-4933 Tel: 340.778.8855 Fax: 340.773.2954 lee@rohnlaw.com IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX NATACHA MALDONADO, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant. CIVIL NO. 2017/39 ACTION FOR DAMAGES JURY TRIAL DEMANDED PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S EXPERT’S CORRECTIONS TO DEPOSITION ERRATA SHEET Plaintiff, Natacha Maldonado, by and through undersigned counsel, hereby files her Opposition to Defendant, Federal Express Corporation’s Motion to Strike the corrections to the Deposition Errata Sheet of Plaintiff’s expert witness, Dr. Lisa Fontes, Ph.D. (Exhibit 1). For the reasons set forth below, the Court should deny the Motion. LEGAL DISCUSSION I. STANDARD OF REVIEW Rule 30(e) of the Federal Rules of Civil Procedure provides as follows: (1) Review; Statement of Changes. On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which: (A) to review the transcript or recording; and (B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them. See EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 264–65 (3d Cir. 2010) (citing Rule 30 (e). The rule clearly envisions “changes in form or substance.” Id. at 265. District Courts in the Third Circuit follow the majority rule, which permits a deponent to make changes, even if the changes contradict the original answers given. See Sivolella Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 1 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 2 v. AXA Equitable Life Ins. Co., No. CIV.A. 11-4194 PGS, 2015 WL 4461583, at *1 (D.N.J. July 21, 2015) (citation omitted). The Third Court made clear that courts are not required “to strike contradictory errata if sufficiently persuasive reasons are given, if the proposed amendments truly reflect the deponent's original testimony, or if other circumstances satisfy the court that amendment should be permitted.” EBC, Inc. v. Clark Bldg. Sys. Inc., 618 F.3d 253, 270 (3d Cir.2010). The Third Circuit relied on the Hambleton Bros. case in which the Court of Appeals for the Ninth Circuit explained, “A statement of reasons explaining corrections is an important component of errata submitted pursuant to [Rule] 30(e), because the statement permits an assessment concerning whether the alterations have a legitimate purpose.” Id. at 266 (citing Hambleton Bros., 397 F.3d at 1224–25). The Third Circuit also recognized Hambleton Bros.’s warning that “a party may not generate from whole cloth a genuine issue of material fact (or eliminate the same) simply by re-tailoring sworn deposition testimony to his or her satisfaction.” Id. at 267-268 (citing Hambleton Bros., 397 F.3d at 1225 (“While the language of [Rule] 30(e) permits corrections ‘in form or substance,’ this permission does not properly include changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment.”). The Third Circuit held: when reviewing a motion for summary judgment, a district court does not abuse its discretion under Rule 30(e) when it refuses to consider proposed substantive changes that materially contradict prior deposition testimony, if the party proffering the changes fails to provide sufficient justification. At the same time, we emphasize that courts may, in their discretion, choose to allow contradictory changes (and implement the remedial measures discussed above) as the circumstances may warrant. Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 2 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 3 See EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 268 (3d Cir. 2010). The Third Court compared Errata Sheet changes to post-deposition Affidavits and confirmed that it has adopted a flexible approach to post-deposition affidavits that contradict original testimony, by stating, “not all contradictory affidavits are necessarily shams,” and “when there is independent evidence in the record to bolster an otherwise questionable affidavit, courts generally have refused to disregard the affidavit.” Id. at 269. (quoting Baer, 392 F.3d at 625). Thus, the Third Circuit permits Errata Sheet changes pursuant to Rule 30(e) where the procedural requirements are met and where the amendments reflect original testimony, or where legitimate reasons are given for the changes. Further, the Court stated that other satisfactory circumstances may warrant accepting changes to deposition testimony. Id. at 270. The Third Circuit also has reversed a district court for refusing to consider an affidavit that did not in fact contradict the earlier deposition testimony. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 276 n. 3, 284 (3d Cir.2000). II. DR. FONTES’S ERRATA SHEET CORRECTIONS HAVE NOT BEEN OFFERED TO RAISE A GENUINE DISPUTE OF FACT TO DEFEAT SUMMARY JUDGMENT Defendant’s entire Motion to strike is premised on the false allegation that Dr. Fontes’s Errata Sheet changes are being used to create a genuine dispute of material fact to defeat summary judgment. Defendant states, “Plaintiff is clearly attempting to create material issues of fact where none exists.” (Doc # 137, Def’s Motion to Strike at p. 6). Defendant posits, “After FedEx submitted its motion for summary judgment (Doc. nos. 118, 119, 120), and Daubert motion (Doc. nos. 125, 126), for no other reasons than to thwart Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 3 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 4 those two processes, and thereby unnecessarily drive up the costs of litigation, Plaintiff submitted the Sham Errata Sheet.” (Doc # 137, Def’s Motion to Strike at p. 1). However, Plaintiff’s brief filed in Opposition to Motion for Summary Judgment and Opposition to the Motion to Exclude Dr. Fontes does not rely on, or cite to, any changes in Dr. Fontes’s deposition. Neither brief quotes anything from the Errata Sheet. (Docs. ## 129, 140). Thus, the entire premise for Defendant’s Motion to Strike – that Plaintiff is using the Errata Sheet to improperly create an issue of fact to defeat summary judgment – is completely unfounded because nothing contained in the errata sheet was used by Plaintiff. The concerns that Defendant raise to strike the Errata Sheet are moot, and because Defendant does not claim that Plaintiff failed to meet any of the procedural requirements, there is no reason under Fed. R. Civ. P. 30 (e) for the Court to strike the Errata Sheet corrections of Dr. Lisa Fontes. Defendant’s motion must be DENIED. III. DR. FONTES’S ERRATA SHEET DOES NOT ALTER OR CONTRADICT HER TESTIMONY The concerns that courts have regarding Errata Sheet changes is the same for sham affidavits, which is that a party may use the changes improperly. However, as noted above, Plaintiff has not used the changes to forward her case in any way. The changes were made by Dr. Fontes because Dr. Fontes is required to correct information that needs updating as she is an expert witness. See Fed. R. Civ. P. 26 (e) (2). “For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition.” Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 4 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 5 Id. Dr. Fontes’s changes are being made on the Errata Sheet pursuant to Rule 26 (e)(2), and Rule 30(e). Dr. Fontes’s corrections reflect her original deposition testimony and expert report; they supplement answers that were unfinished, and they clarify inaccuracies and potential misconceptions that would hinder a clear understanding of her testimony. For example: Page 11:1 Defendant asked Dr. Fontes if the CV at the deposition was the one she had submitted with her expert report in November 2018. Dr. Fontes concluded it was. (Exhibit 2, Dr. Fontes Depo at 11). However, her deposition was conducted in March 21, 2019, and Dr. Fontes had updated her CV, with relevant information since submitting her report. Her change here is an updated CV, which is not contradictory to her testimony, but a necessary update as required by Rule 26 (e)(2). Page 67:8 Defendant questioned Dr. Fontes as to whether one of her prior expert reports on coercive control had been accepted into evidence. (Ex. 2 at 67). Dr. Fontes testified that she did not know. However, in response to Defendant’s follow up questions at her deposition, Dr. Fontes explained that she testified for two and a half hours about that expert report, and about specifics of that prior case and hypotheticals. (Ex. 2 at 67-69). Dr. Fontes’s change on her Errata Sheet confirms that her expert report on coercive control in the prior case was accepted into evidence. (Ex. 1, Errata Sheet). This update in her testimony is not contradictory, because she said she did not know. Dr. Fontes is also required to update this information under Rule 26(e)(2). Defendant argues that by stating the report was admitted into evidence Dr. Fontes made a “material and substantive Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 5 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 6 change” to her testimony. However, Rule 30(e) specifically allows “changes in form or substance,” thus Defendant fails to show how this change is improper. Page 110:14-19 and 20-23 Defendant FedEx questioned Dr. Fontes about FedEx’s anti-harassment policy. (Ex. 2 at 109-110). Dr. Fontes testified that she was not offering an opinion on FedEx’s policy and her report does not address the policy. (Ex. 2 at 110). FedEx asked Dr. Fontes if she was aware that FedEx had multiple channels for an employee to report harassment, she testified that she was not aware, but she was also not surprised. (Ex. 2 at 110). Defendant also asked Dr. Fontes if she was aware of the open-door policy, and she replied that she was not aware. First, Dr. Fontes made clear she was not opining on FedEx’s policy, thus, this line of follow up questioning about Fontes’s knowledge of FedEx’s policy is irrelevant. Second, Dr. Fontes corrected her answer to state that she was aware of the multiple channels of reporting and that she had been confused by the question. Even if her correction is contradictory, it is not relevant to her opinion, and it was not used to create a genuine dispute of material fact to defeat summary judgment. It was not cited at all. Her change about the open door policy was to complete her answer with an explanation of why FedEx’s “open door” policy was ineffective. The change aligns with Dr. Fontes’s report and testimony that regardless of what avenues an employer has for reporting harassment, if an employer, such as FedEx, fails to show its employees that it is serious about eradicating sexual harassment in the workplace, no amount of reporting channels will encourage employees to report violations of the policy. (Ex. 2, Fontes Depo at 164-165). In her Expert Report, Dr. Fontes wrote: Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 6 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 7 As mentioned earlier, the organizational climate is the most significant determinant of whether sexual harassment will occur, and if it occurs, whether its victims or bystanders will report it. The work environment of the FedEx station in St. Croix during the period in which Mr. Camacho was the manager was highly tolerant of sexual harassment. In this station of FedEx, far from corporate headquarters, the chief representative of the organization—the man who was charged with creating and representing the organization’s culture—took advantage of his authority to harass women under his supervision, including Ms. Maldonado, rather than stop harassment. Despite several warnings about sexual harassment at the St. Croix station, including complaints by Charlotte Mitchell and Joseph Bass, the manager of this station was able to continue sexually harassing Ms. Maldonado over a period of years. Because of the unusual system that FedEx apparently had in place in which individuals’ raises were tied to the ratings of their supervisors, Ms. Maldonado and others who might have reported something amiss were dis-incentivized from reporting their concerns. (Exhibit 3, Expert Report at 23). Thus, the change reflects her original testimony and her opinion in her report and is not contradictory. Further, Defendant has pointed to no reason why this change would be improper and only argues it is a “substantive” change, which Rule 30(e) allows so long as the deponent gives a reason, as Dr. Fontes has done here. Pages 111:7; 112:11; 113: 21-24; 115: 18-23; 118: 15-17 Dr. Fontes merely elaborated on what she could not recall at the time of the deposition pertaining to questions about policies such as: 1) what parts of the EEOC policy she had read in 2018 (“I don’t remember”); 2) what reporting mechanisms employees at FedEx had (“only so much as you’ve told me”); 3) the outcome of an investigation into another employee at FedEx (“I don’t remember, no”); 4) whether Fontes had read in Plaintiff’s deposition that Plaintiff knew how to report harassment (“I don’t recall that, but I imagine it was there.”); and 5) when was Dean Camacho suspended from work (“I don’t remember, but I can look it up.”). Defendant claims that answers given in the deposition where Dr. Fontes indicated she did not know, does not remember, does not recall reading, Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 7 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 8 has now been supplemented with answers that “materially alters” her testimony. Defendant has not cited to any law that prohibits a deponent from making corrections to testimony that “alters” the testimony. In fact, corrections are presumed to alter testimony and the law only prohibits changes that are used to defeat summary judgment if the changes have been proffered with no legitimate reason. Here, none of Dr. Fontes’s changes were used in briefs opposing summary judgment or to exclude her testimony. Further, Dr. Fontes explained in her Errata Sheet that she was completing her answers. (Ex. 1). Defendant did not allow Dr. Fontes to look up the answers in the voluminous exhibits, or try to refresh her memory. Further, Dr. Fontes is not opining on FedEx’s reporting policies, the EEOC Guidelines, or Dean Camacho’s discipline after Plaintiff reported him. So, although the changes are relevant for completing Dr. Fontes’s answers, they do not change her testimony or opinions for the case. Page 146:2 Defendant asked Dr. Fontes if all of the female customer service assistants, including Plaintiff, went out on check runs. (Ex. 2 at 145-146). Defendant did not specify when or with whom. In her previous answer to the one at issue, Dr. Fontes testified that Plaintiff explained to her that she had been going out on these runs before Camacho came to the station. (Ex. 2 at 145). When Defendant asked Fontes if all of the female customers went on the runs, Fontes testified “She [Plaintiff] explained that could be a routine part of their jobs, yes.” (Ex. 2 at 146). Dr. Fontes’s change to this answer is to complete it by explaining that FedEx was confusing two different things. The female employees had been doing the runs before Camacho came to the station and there was no need for him to take them out on private solo runs where he was using the “run” as a Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 8 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 9 chance to ask them personal questions and take them to lunch. (Ex. 1, Errata Sheet). Two female employees of the three, Natacha Maldonado and Charlotte Mitchell, complained that Camacho was taking them on check runs when they did not need it. Fontes elaborated that the “forced periods of time alone with their manager were not and should not have been part of their jobs.” (Ex. 1, Errata Sheet). This change does not contradict Dr. Fontes’s original testimony. Moreover, it fully supports Dr. Fontes’ opinion on this very topic as expressed in her Expert Report: Ms. Maldonado reported that in September or October 2012, Mr. Camacho announced that he was going to take the senior service agents (who were all women), out with him in a FedEx vehicle, one at a time, “to get to know the routes so they could deliver packages in case a courier was out.” Ms. Maldonado said the senior service agents protested to each other, and also directly and openly to Mr. Camacho, that these excursions were not necessary. Ms. Maldonado had already been working at the station for years before Mr. Camacho arrived and had experience delivering packages. She said that she and a coworker, Charlotte Mitchell, complained about these solo trips with their boss. Ms. Mitchell asserted in her deposition that she could find no reasonable justification for these outings. Ms. Maldonado said, “He stops and treats us for lunches, but it doesn’t make sense. Charlotte thought he just wanted to sit down with a female for lunch and know her business. Charlotte also thought it was creepy, how he complained about his woman to her.” Ms. Maldonado repeatedly used the word “weird” to describe these excursions, but said that Mr. Camacho insisted that “he had already passed it through upper management, which had approved these trips.” (Ex. 3, Expert Report at 10). Thus, the change complies with Rule 30(e). Page 148:14 Defendant asks Dr. Fontes whether she had reviewed in any of the deposition transcripts that Camacho cannot access the security camera footage. At first Dr. Fontes told defense counsel that it was a tricky question and that it was hard for her to answer. (Ex. 2, Fontes Depo at 147-148). Then Dr. Fontes testified “I believe I read some reference to the fact that at least at a point he did not have access to the cameras, but I don’t know that that means he never had access to the cameras.” (Ex. 2 at 148). Dr. Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 9 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 10 Fontes changed her answer to add the reference in Camacho’s deposition where Camacho admitted he had access to the video footage. (Ex. 1, Errata Sheet). Dr. Fontes had testified to reading about it and, when she recalled where it was, she added it to complete her answer. There is nothing contradictory about her answer. Also, this change, like the others, was not used to oppose summary judgment, so there is no concern that Plaintiff improperly used the change. Page 167:16 to 170:12 Defendant asked Dr. Fontes if she recalled reading a particular text message from Plaintiff to Camacho where Plaintiff allegedly said she gave Camacho a scratch. Instead of Defendant reading the message to Dr. Fontes, or showing her the text, defense counsel gave Fontes the wrong bates stamped number and the wrong date to try and locate it herself on her laptop. When Dr. Fontes could not locate the exact text message, defense counsel moved on. Dr. Fontes’s correction is simply to answer the question about the text she had been asked about without being shown or read the text. Dr. Fontes change is: “I did not see references in texts about Ms. Maldonado hurting Mr. Camacho physically. She does mention kissing his forehead where he has a scratch.” (Ex. 1, Errata Sheet). Dr. Fontes’s testimony is not contradictory. It is Defendant’s own fault that Dr. Fontes had to amend her answer as Defendant refused to read or show her the text it was questioning her about. Page 176:5-8 Defendant again asked Dr. Fontes about whether she recalled something from a witness’s deposition she had read five months before. Here it was whether an employee Mutidi indicated that he did not know about the personal relationship between Camacho and Plaintiff. Dr. Fontes said she did not remember. She supplemented Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 10 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 11 her answer to reflect accurately what Mutidi had indicated, which was that he had heard rumors Camacho and Plaintiff were having a relationship. (Ex. 1). This amendment clarifies Dr. Fontes’s answer. It is not contradictory as she said she does not remember. The answer was not used to oppose summary judgment. Dr. Fontes’s Expert Report shows that Mutidi’s deposition was one of the documents she reviewed for her report. Defendant fails to show how this change to Dr. Fontes’s testimony violates Rule 30 (e) or Rule 26 (e)(2). Page 178: 4 to 179:2 Defendant’s argument about this change is ludicrous. Defense counsel asked Dr. Fontes whether she recalled reading that Plaintiff had indicated that she had voluntarily sent photos and videos to Camacho. Fontes asked FedEx to direct her to a page to help her remember. Defendant did not give her a page. Fontes asked which deposition FedEx was referring to, as Plaintiff’s deposition was taken twice. FedEx replied it was the one taken in July. Neither of Plaintiff’s depositions were taken in July of any year. But Plaintiff had been interviewed by FedEx’s Vanessa Hulett in July 2016. Fontes asked if FedEx meant July 2016 and FedEx said yes, therefore letting Fontes know it was referring to the Hulett Interview, not a deposition. Fontes testified that she does not recall the word voluntary being used. (Ex. 2 at 178). Fontes also testifies, “I’d love to look at it with you and understand it better.” Id. But FedEx denies her the page to the document it was referencing. Dr. Fontes supplemented her answer to confirm that Plaintiff never said she sent the texts or videos voluntarily in the July 2016 interview. (Ex 1, Errata Sheet). Defendant complains that Dr. Fontes’s change is not responsive as it refers to the Interview and not a deposition. Defendant has absolutely no grounds to object to this change. It is not Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 11 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 12 contradictory, it is responsive as FedEx question was about the July 2016 interview with Plaintiff, and the answer addresses what FedEx asked of Fontes. Page 182:3-8. Defendant objects to Dr. Fontes being a thorough expert witness. Defendant asked a question pertaining to a statistic that Dr. Fontes had not opined on – the percentage of women sexually coerced by supervisors in the workplace. Dr. Fontes supplemented her answer by researching it and informing Defendant that workplaces do not conduct these types of surveys, so no good data exists, but she explains that in the military, 8% of military women complain of being sexually coerced by a superior. (Ex. 1, Errata Sheet). Dr. Fontes’s change is not contradictory to her original answer as she testified that it was an interesting question to look up. Further, the change is not being used to oppose summary judgment. Page 183:6. Defendant asked Dr. Fontes to discuss the percentage that each of the four different coping styles to sexual harassment are utilized. Dr. Fontes testified that she’d have to go back to the literature. In her Errata Sheet, Dr. Fontes provides the answers with the percentages from the literature as indicated and explains she is supplementing her answer. The answer is not contradictory, and Defendant cannot point to any reason why the correct scientific information it sought should be excluded. Page 197:20-22; 198:2; 198:9-14. Defendant is the one who does not understand that Dr. Fontes’s expertise on violence against women includes sexual harassment in the workplace. Dr. Fontes testified about her area of expertise numerous times in her deposition, and she explained it in her Expert Report. Dr. Fontes is an expert on sexual Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 12 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 13 violence1 and harassment against women and has forged a clear academic and public understanding of the concept of “coercive control” in situations of sexual violence in a range of settings. (Exhibit 2, Dr. Fontes Depo at 82-83). Dr. Fontes is an expert in workplace sexual harassment because, she is an expert on sexual violence against women in most environments including at home, work, or school. (Ex. 2 Fontes depo at 82). Dr. Fontes has published dozens of scholarly articles, and book chapters, engaged in trainings, networked with colleagues, and authored three other books on topics that focused on other areas of interpersonal violence, specifically, sexual violence against women. (Ex. 2 at 81; Ex. 4, CV). Dr. Fontes explained repeatedly to Defendant’s counsel that sexual harassment is a subset of workplace violence, and that her training and expertise is in sexual violence, which falls under workplace violence. (Ex. 2, Fontes Depo at 88-90). In other words, the workplace violence that Dr. Fontes is testifying about relates to the coercive control and sexual violence committed by FedEx’s manager, Camacho, against Plaintiff. (Ex. 2, Fontes Depo at 84-85). Defendant followed up with asking Dr. Fontes if her work on drafting policies for the Title IX committee at the University of Massachusetts, Amherst, included drafting any workplace violence policies. (Ex. 2 at 89). Dr. Fontes explained that since Title IX policies concern sexual assault, intimate partner violence, and sexual harassment, that could occur 1 The World Health Organization (WHO) defines sexual violence as: ‘Any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic or otherwise directed against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work.” (Exhibit 5, WHO, Understanding and addressing violence against women). https://apps.who.int/iris/bitstream/handle/10665/77434/WHO_RHR_12.37_eng.pdf;jsessionid=B76CFFA3C52CBE0863 81D175FBA870AB?sequence=1 Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 13 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 14 to students and employees at the university, the policies by definition included workplace violence. (Ex. 2, Fontes Depo at 89). Dr. Fontes testified she is also the Bullying Investigator for the university and had training in bullying in the workplace (Ex. 2 at 85), and Defendant asked if bullying was a subset of workplace violence or of sexual harassment. (Ex. 2 at 91). Dr. Fontes explained bullying is a subset of workplace violence. (Ex. 2 at 91). Defendant’s improper separation of sexual harassment from workplace violence demonstrates Defendant’s own difficulty in understanding that workplace violence encompasses sexual harassment and that sexual harassment is sexual violence. Dr. Fontes’s supplemented answers support her original testimony not only on the pages specified above but throughout her entire deposition, and in her Expert Report and CV. These changes are not contradictory and simply clarifies Fontes’s testimony for Defendant to understand it. Page 215:12-16. Defendant contends that Dr. Fontes’s supplemented response to the question of whether FedEx’s investigation of Plaintiff’s sexual harassment complaint was adequate, adds new information, and therefore should be struck. However, Dr. Fontes’s supplemented answer reflects and clarifies her original related testimony in the deposition and is supported by her similar responses to questions on the topic of FedEx’s investigation throughout. For instance, Dr. Fontes testified that Hulett’s investigation was disrespectful and only about victim blaming, and the throwing of the cell phone. (Ex. 2 at 208, 211). Dr. Fontes testified that FedEx was not interested in learning about Camacho’s sexual workplace violence toward Plaintiff. (Ex. 2 at 212-213, 221). Dr. Fontes also testified that Hulett’s interview with Plaintiff was not a sincere effort to find out what happened. It Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 14 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 15 was “an attempt to affirm a narrative that [Hulett] had in mind,” which Dr. Fontes testified, explained Hulett’s numerous instances of putting words in Plaintiff’s mouth and asking for affirmations. (Ex. 2 at 213, 215-216). Completing her answer to Defendant’s question is not contradictory to her responses above, and her supplemented answer was not used to oppose summary judgment or oppose the motion to exclude Dr. Fontes. Page 215:17-20. Dr. Fontes testified that she was not offering an opinion on FedEx’s policy and her report does not address the policy. (Ex. 2 at 110). Issues related to questions and answers about FedEx’s policies and employer standards when a complaint of sexual harassment is made are irrelevant to Dr. Fontes’s opinions in this case. Her change in answer because she misunderstood the question does not affect the case. Plaintiff has not used the change to oppose summary judgment. Page 216:16-18. Defendant is objecting to Dr. Fontes looking up how long Ms. Hulett’s Interview with Plaintiff lasted. Defendant asked Dr. Fontes, who responded that “We can look it up together.” Defendant did not permit Dr. Fontes to do so at the deposition. Dr. Fontes now completes her answer by giving the Interview start and end times. This is a proper change to the substance of the answer as Dr. Fontes told Defendant she needed to look it up. The answer is not contradictory. It is verifiable by the record as it is simply a complete response to a factual question. Page 222:5. Defendant asked Dr. Fontes if FedEx had investigated the allegations of sexual harassment against Dean Camacho made by FedEx employee, Charlotte Mitchell. Dr. Fontes testified she believed they were investigated. Dr. Fontes amended her answer to complete it with information that the investigation was done in a superficial way. Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 15 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 16 Fontes added that FedEx failed to follow up the claims of sexual harassment against Camacho with increased vigilance over Camacho, allowing him to prey on Ms. Maldonado. (Ex. 1, Errata Sheet). This same opinion was previously expressed by Dr. Fontes in her Expert Report and was not new information for Defendant. In her Report, Dr. Fontes opined: Ms. Mitchell finally filed a complaint of sexual harassment with the FedEx Human Relations office. FedEx appears to have failed to properly investigate the incidents reported by Ms. Mitchell, or to provide adequate supervision or training of Mr. Camacho to curb his harassing behavior after Mitchell’s report, thus allowing the sexual talk and sexualized workplace environment to continue and escalate. (Ex. 3, Expert Report at 10). Dr. Fontes also testified in her deposition that FedEx should have been more vigilant about Camacho after the claims by Mitchell. (Ex. 2 at 234). Thus, her amended answer aligns with her related testimony and with her opinion in her report, and is not contradictory. Page 234:4. Defendant contends that since Dr. Fontes testified that she did not remember whether Camacho denied Mitchell’s allegations of sexual harassment, she should not be allowed to state what she did recall to complete her answer. Fontes’ changes are citations to Camacho’s deposition. It is part of the record and is not a new opinion by Fontes. There is nothing contradictory about clarifying an answer she previously stated she did not remember the answer to. Defendant has not shown why any of Dr. Fontes’s changes should be struck. In the case, Cave v. Saxon Mortg. Servs., Inc., No. 11-4586, 2015 WL 6153754, at *9 FN 17(E.D. Pa. Oct. 20, 2015), an expert witness made substantive changes to the Errata Sheet and then submitted an Amended Errata Sheet, correcting testimony concerning Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 16 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 17 whether Plaintiffs had been damaged as part of a Multistate Class. The defendant objected that the expert, Dr. Ayers, was trying to use the Errata Sheet to materially change his testimony on that subject. In the Amended Errata Sheet, the expert stated, “Although I do not express an opinion on the quantification of damages for Cave I Class members, it is my opinion that the untimely denial notification was a breach of contract and that Lisa and Scott Cave were harmed and damaged by the breach.” (Ayers Amended Errata Sheet at 3.) He explained that the reason for the change was that his “testimony requires clarification to correct inaccuracies and potential misconceptions from my initial responses.” (Id.). The District Court of Pennsylvania, relying on the same pivotal Third Circuit case cited by both FedEx and Plaintiff in the instant case, held that “[a]s Dr. Ayers stated an adequate reason for the change to his testimony, and there is no assertion that he failed to comply with the other requirements of Rule 30(e), the Motion to strike is denied.” Cave v. Saxon Mortg. Servs., Inc., No. 11-4586, 2015 WL 6153754, at *9 FN 17(E.D. Pa. Oct. 20, 2015) (citing EBC Inc. v. Clark Building Systems, Inc., 618 F.3d 253, 265 (3d Cir. 2010)); see also Sivolella v. AXA Equitable Life Ins. Co., No. CIV.A. 11-4194 PGS, 2015 WL 4461583, at *2 (D.N.J. July 21, 2015) (denying Motion to Strike expert Errata Sheet where her amended testimony is consistent with related testimony). The same is true here. There is no assertion that Dr. Fontes failed to comply with the requirements of Rule 30(e). Dr. Fontes has given adequate reasons for the changes in her testimony. The changes are all supported by her testimony and Expert Report and are Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 17 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 18 neither contradictory nor a surprise to FedEx. And lastly, none of the changes were utilized by Plaintiff to oppose summary judgment or the motion to exclude the expert witness. Thus, the Court should Deny the Motion to Strike Dr. Fontes’s Errata Sheet. RESPECTFULLY SUBMITTED LEE J. ROHN AND ASSOCIATES, LLC Attorneys for Plaintiff DATED: June 7, 2019 BY: /s/ Lee J. Rohn Lee J. Rohn, Esq. VI Bar No. 52 1101 King Street Christiansted, St. Croix U.S. Virgin Islands 00820 Telephone: (340) 778-8855 lee@rohnlaw.com Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 18 of 19 Maldonado, Natacha v. Federal Express Corporation, Civil No. 2017/39 Plaintiff’s Opposition to Defendant’s Motion to Strike Plaintiff’s Expert's Corrections to Deposition Errata Sheet Page 19 CERTIFICATE OF SERVICE THIS IS TO CERTIFY that on June 7, 2019, I electronically filed the foregoing with the Clerk of the court using the CM/ECF system, which will send a notification of such filing (NEF) to the following: Charles E. Engeman, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, LLC The Tunick Building 1336 Beltjen Road, Suite 201 St. Thomas, VI 00802 Email Address: charles.engeman@ogletreedeakins.com Attorney For: Federal Express Corporation Frederick L. Douglas, Esq. Patrick Daniel Riederer, Esq. Robbin W. Hutton, Esq. Brandie N. Smith, Esq. Federal Express Corporation 3620 Hacks Cross Road Building B, Second Floor Memphis, TN 38125 Email Address: robbin.hutton@fedex.com Attorney For: Federal Express Corporation BY: /s/ Lee J. Rohn (dvn) Case: 1:17-cv-00039-WAL-GWC Document #: 141 Filed: 06/07/19 Page 19 of 19