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In re Abilify (Aripiprazole) Products Liability Litigation

United States District Court, N.D. Florida, Pensacola Division

April 4, 2018

IN RE: ABILIFY (ARIPIPRAZOLE) PRODUCTS LIABILITY LITIGATION, This Document Relates to All Cases

          M. Casey Rodgers, Chief Judge

          ORDER

          GARY R. JONES, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendants' Motion to Strike Errata Sheet of Deponent Darryl Lyons. (ECF No. 816.) Plaintiffs have filed a response in opposition, (ECF No. 814), and the motion is otherwise ripe for review. For the following reasons, Defendants' motion to strike is denied.

         I. Introduction

         Plaintiff Fanny Lyons is one of three trial pool plaintiffs in this multidistrict Abilify® products liability litigation. Plaintiff Lyons took Abilify® from January 2009 through January 2014 and now claims that Abilify® caused her to develop compulsive gambling behaviors, which resulted in substantial financial, mental, and physical damages.

         During discovery Defendants deposed not only Plaintiff Lyons, but also her husband, Darryl Lyons. At Mr. Lyons' deposition on January 5, 2018, defense counsel asked questions to Mr. Lyons pertaining to his wife's use of Abilify between 2009 and 2014. On February 16, 2018, after conclusion of the deposition and review of the transcript, counsel for Ms. Lyons submitted an errata sheet containing twelve proposed changes to Mr. Lyons' testimony.

         Defendants challenge the following seven changes in the errata sheet:

(1) “Q. Did you have an argument about spending more than once? A. A couple times.”[1] Change: “A couple times.” Should be “More than a couple times.”;
(2) “Q. And did - did you ever attempt to put you or Ms. Lyons on a budget related to your gambling? A. No. Q. And have you ever done that? A. No.”[2] Change: “No.” Should be “No, but I would take a set amount.”;
(3) “Q. And did you feel that both you and Ms. Lyons were spending too much in casinos? A. Yes.”[3] Change: “Yes.” Should be “Yes, I thought she was gambling too much and spending too much on gambling.”;
(4) “Q. Have you ever thought she was addicted to gambling? A. No.”[4] Change: “No.” Should be “No, but I thought she was gambling too much and spending too much on gambling.”;
(5) “Q. Did you ever suggest to her that she had a gambling problem? A. Never.”[5] Change: “Never.” Should be “Never, but I thought she was gambling too much and spending too much on gambling and we had arguments about that.”;
(6) “Q. Did you ever think she needed help? A. Never.”[6] Change: “Never.” Should be “Never, but I thought she was gambling too much and spending too much money on gambling and we had arguments about that.”; and
(7) “Q. And have you ever encouraged her to stop gambling? A. No.”[7]Change: “No.” Should be “No, but I thought she was gambling too much and spending too much on gambling and we had arguments about that.” (ECF No. 817 at 7-8.) Each proposed change is labeled as a correction and references portions of Mr. Lyons testimony later in the deposition as the explanation for the proposed change. (Id.)

         Defendants argue that the changes exceed the bounds of Federal Rule of Civil Procedure 30(e) because they are not merely corrections to Mr. Lyons' testimony, but are instead substantive, contradictory, material changes. Defendants point out that although Mr. Lyons asked counsel on multiple occasions during the deposition to repeat or rephrase a question to make sure he understood the question, Mr. Lyons expressed no confusion in answering questions that, Defendants say, undercut Ms. Lyons' claim that she gambled pathologically. Defendants emphasize that Mr. Lyons is the only witness, who can corroborate Ms. Lyons' claim of pathological gambling because she never reported to anyone that she gambled, never sought any type of treatment for gambling, and never took out a loan or went into debt ...


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