Opinion
No. HHB CV 05 4004059 S
November 22, 2005
MEMORANDUM OF DECISION ON MOTION TO SUPPRESS (#113)
This matter appeared on the short calendar on November 14, 2005. For the reasons stated below, the defendant Joanne Sansabrino's motion to suppress changes made by the plaintiff, Ann R. Galeski, to the transcript of her deposition, is denied.
I BACKGROUND
In her complaint, the plaintiff alleges that, on January 20, 2004, she was operating an automobile in Wethersfield, Connecticut, when a vehicle driven by the defendant. Joanne Sansabrino, collided with her automobile. She claims that the defendant engaged in reckless and negligent conduct, which caused the plaintiff to sustain personal injuries.
The plaintiff's deposition was taken on August 16, 2005. Reading and signing of the deposition was not waived. Galeski signed the signature page of the deposition on October 2, 2005, and entered 27 separate corrections and reasons for changes to her testimony on an errata sheet, a copy of which was annexed to her objection to the motion to suppress (#114).
Sansabrino argues, in her memorandum of law, that, pursuant to Practice Book § 13-31(c)(4), Galeski's changes to her testimony destroy the usefulness of the original deposition and the use of the corrections ought to be suppressed at trial. She also states that, had Galeski originally provided the corrected answers, defense counsel "would have explored, in depth, different areas of questioning." See Sansabrino's memorandum of law, p. 7. In the alternative, she seeks to re-depose the plaintiff, at costs to the plaintiff, and seeks the court's permission to impeach Galeski with Galeski's original and collected answers.
In response, Galeski contends that her corrections were made in compliance with the Practice Book and that they did not destroy the usefulness of the deposition. She also notes that she is 82 years old and asserts that she should not be required to be deposed again prior to trial, which is scheduled to commence on December 13, 2005.
II DISCUSSION
Practice Book § 13-30(d), concerning deposition procedure, provides, in pertinent part, "[i]f requested by the deponent or any party, when the testimony is fully transcribed the deposition shall be submitted to the deponent for examination and shall be read to or by the deponent. Any changes in form or substance which the deponent desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the deponent for making them." (Emphasis added.) Concerning motions to suppress a deposition or a part thereof, Practice Book § 13-31(c)(4) states, "[a]s to completion and return of deposition: Errors and irregularities in the manner in which the testimony is transcribed or the deposition is . . . signed . . . are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained."
"Our rules of practice provide guidelines to facilitate the discovery of information relevant to a pending suit. The primary purpose of a deposition taken pursuant to these provisions is discovery." Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389 (1985). "A response to a question propounded in a deposition is not a judicial admission. General Statutes 52-200. At trial, in open court, the testimony of [the plaintiff] may contradict her earlier statement." Esposito v. Wethered, 4 Conn.App. 641, 645, 496 A.2d 222 (1985). See Lasalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 830, 798 A.2d 445 (2002) (distinguishing in-court testimony from deposition testimony; the latter is "not conclusive as a judicial admission").
General Statute § 52-200 provides, "[w]hen either party in any action has obtained from the other party a disclosure on oath, respecting the matters alleged in any pleading, the disclosure shall not be deemed conclusive, but may be contradicted like any other testimony.
"The rules of statutory construction apply with equal force to Practice Book rules." (Internal quotation marks omitted.) State v. Angell, 237 Conn. 321, 327, 677 A.2d 912 (1996).
Practice Book § 13-30(d)'s allowance of "[a]ny changes in form or substance which the deponent desires to make . . ." is a very broad authorization. The parties cited no Connecticut decision which interprets the meaning of "any changes in form or substance" in this context. Our Supreme Court has stated that it is appropriate to look to the judicial interpretation of an analogous federal rule for guidance. See Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 260-61, 532 A.2d 1302 (1987). As the court in U.S. ex rel. Burch v. Piqua Engineering, Inc., 152 F.R.D. 565, 566-67 (S.D. Ohio 1993) (cited by Sansabrino), stated, in construing then Fed.R.Civ.P. 30(e), which contained almost identical language to that in Practice Book § 13-30(d), "under the Rule, changed deposition answers of any sort are permissible, even those which are contradictory or unconvincing, as long as the procedural requirements set forth in the Rule are also followed." Here, there is no contention that § 13-30(d)'s procedural requirements were not followed. See also Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997) (language of Fed.R.Civ.P. 30(e) places no limitations on the type of changes that may be made).
This broad reading of § 13-30(d) is consistent also with interpretations made by our Supreme Court where the word "any" is employed. "Although the word `any' sometimes may, because of its context, mean `some' or `one' rather than `all,' `[i]ts meaning in a given statute depends on the context and subject matter of the law.'" Commission on Human Rights and Opportunties v. Board of Education, 270 Conn. 665, 707, 855 A.2d 212 (2004). Section 13-30 repeatedly uses the word "any," in subsections (b) ("any other objection" and "any objection"); (c) ("[a]t any time"); (d) ("requested by the deponent or any party"); (f) ("inspected and copied by any party"); (g) ("[a]ny exhibits," and several references to "any party"). The repeated use of the word "any" in a statute has been found to counsel a "broad, rather than a narrow, meaning." Commission On Human Rights And Opportunities v. Board of Education, supra, 270 Conn. 707.
Where there are no words, phrases or clauses limiting the scope of § 13-30(d)'s "[a]ny changes in form or substance" language, a broad interpretation is warranted. See Duguay v. Hopkins, 191 Conn. 222, 229, 464 A.2d 45 (1983). By the use of the inclusive phrase "in form or substance," it is apparent that the meaning of "any changes" in the Practice Book Rule is not to be interpreted in a narrow manner.
In support of her motion, Sansabrino refers to Freibott v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Fairfield, Docket No. 316574 (January 14, 1997, Levin, J.) ( 18 Conn. L. Rptr. 562). The situation here contrasts with that in Freibott, since, there, the deponent did not state the reasons for the many changes he made to the transcript of his deposition. The court there ordered the deponent to amend the transcript, at his expense, to reflect the reasons for the changes, and to forward a copy of the entire transcript, together with the changes and reasons, to the court. See Freibott v. Bridgeport Roman Catholic Diocesan Corp., supra. Also in contrast to the situation here, the court's memorandum of decision in Freibott does not reflect that the date scheduled for trial was soon to occur.
Sansabrino did not provide the court with a copy of the transcript of Galeski's deposition. According to her memorandum, p. 1, the transcript is 84 pages in length. Instead, in her memorandum, she asserts that "[e]ighteen corrections entirely contradict her original answers. Six corrections add detail to the answers and three corrections create answers where the plaintiff could not previously provide answers." See Sansabrino's memorandum, p. 5. Instead of supporting these assertions with a copy of the transcript, Sansabrino refers to four examples of her contentions. See Sansabrino's memorandum, pp. 5-6. In one example, the corrected answer refers to two prior accidents, one in 1981 and one in 1993; both of these are more than ten years before the accident at issue here. Another question sought information concerning a time period "in the last 20 years," in which the plaintiff was in an ambulance or emergency room. See Sansabrino's memorandum, p. 6. Two other examples concern her treatment by Dr. Michael P. Crouchley, a chiropractor. See plaintiff's revised disclosure of experts, dated September 29, 2005, pp. 6-8 (#110). Sansabrino's presentation does not explain, even as to these limited examples, what "different areas of questioning," she would have explored, see Sansabrino's memorandum, p. 7, had the corrected responses been provided originally by the plaintiff when she testified at her deposition.
Based on this limited presentation, Sansabrino has not shown that the corrections made by the plaintiff have destroyed the usefulness of the original deposition testimony. On the record presented, the court cannot conclude that the provision of the corrected responses has prejudiced Sansabrino. See Rullo v. General Motors Corp., 208 Conn. 74, 79, 543 A.2d 279 (1988). The defendant, as the movant, has not shown that the changes should be suppressed.
Likewise, as to the alternative relief requested, the defendant has not shown that Galeski ought to be re-deposed. Finally, the court notes Sansabrino's request that she be allowed to impeach the plaintiff at trial with Galeski's original and corrected answers. The court defers any determination as to the extent of cross-examination and impeachment of Galeski to the trial judge.
CONCLUSION
For the foregoing reasons, the defendant's motion to suppress is denied. It is so ordered.