UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BANCFIRST, Limited Guardian of the Estate of M.J.H., a minor, by and through Wes Knight, Vice President and Trust Officer, Plaintiff–Appellant,

v. FORD MOTOR COMPANY, a Delaware corporation, Defendant–Appellee. No. 10-6137 (D.C. No. 5:09-CV-00076-L) (W.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO , McKAY , and GORSUCH , Circuit Judges.

BancFirst raises three issues on appeal. First, BancFirst contends that the district court abused its discretion by disregarding the errata and declaration submitted by its expert witness, William Medcalf. Second, it argues the district court erred by granting Ford Motor Company (“Ford”) summary judgment. Third, it contends that the district

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. This court generally disfavors the citation of orders and judgments; nevertheless , an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 18, 2011

Elisabeth A. Shumaker Clerk of Court-2- court abused its discre tion by denying BancFirst’s Fed. R. Civ. P. 59(e) motion to alter or amend judgment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part.

I On March 11, 2007, seven-year-old M.J.H. rode her bicycle into the path of an oncoming Ford F-150 pickup truck driven by Brandon Moore. Although Moore took evasive action, he was unable to avoid hitting the child, who was severely injured as a result of the impact. M.J.H .’s mother, acting individually and on behalf of M.J.H., brought this diversity action against the manufacturer of the truck, Ford. 1 Asserting negligence and product liab ility theories, she alleged the truck was unreasonably dangerous because it lacked front-wheel anti-lock brakes. In the course of discovery, Ford deposed Medcalf, an expert witness for BancFirst. Medcalf initially testified that, because he could not determine when Moore cut his steering wheel to the right, he did not know whether front-w heel anti-lock brakes would have prevented the accident. Later in the deposition, however, Medcalf stated categorically that four wheel anti-lock brakes would have prevented th e accident. Ford moved for summary judgment after the close of discovery.

1 On September 21, 2009, M.J.H.’s mother filed an assignment of her individual claims to her child and requested the court dismiss her in her individual capacity. The same day, she successfully moved to substitu te BancFirst, which had previously been appointed limited guardian of the estate of M. J.H. in a state court proceeding, as party plaintiff.-3- BancFirst responded by submitting erra ta and an updated declaration from Medcalf, pursuant to Fed. R. Civ. P. 30(e ), contradicting the in itial deposition testimony and purporting to show the existence of a genuine issue of material fact. The district court disregarded both the su bsequent errata and declaration and, on the basis of the prior deposition, granted Ford summary judgment. BancFirst then filed a motion to alter or amend judgment pursuant to Rule 59(e), which the district court

denied. 2 BancFirst appeals.

II “[W]e review a district court’s decision to exclude affidavits at summary judgment for abuse of discretion.” Michael v. Intracorp, Inc. , 179 F.3d 847, 854-55 (10th Cir. 1999). Under Oklahoma law, in order to establish liability under the theo ry of manufacturer’s product liability, BancFirst had to demonstrat e, among other things, that the defectivelydesigned brake system was the cause of the injury—“the me re possibility that it might have caused the injury is not enough.” See Kirkland v. Gen. Motors Corp. , 521 P.2d 1353, 1363 (Okla. 1974). Simila rly, to succeed in its neglig ence claim, BancFirst had to show Ford had a duty to prot ect M.J.H. from injury, and that its violation of that duty proximately caused M.J.H.’s injury. See Sloan v. Owen , 579 P.2d 812, 814 (Okla. 1977). Thus, to establish liability unde r either theory, BancFirst had to show that the absence of

2 BancFirst filed a motion for a new trial a nd motion to reconsider pursuant to Fed. R. Civ. P. 59(a). Because there was no trial, the district court construed the motion as a Rule 59(e) motion. That char acterization is not at issue.-4- front wheel anti-lock brakes caused the accident. In order to make that showing, BancFirs t solicited the expert opinion of Medcalf, a registered professional engineer. Medcalf te stified as follows during his deposition: Q. In this accident then, if [Moore’ s] vehicle had four wheel [anti-lock brakes], what would have happened in your opinion? A. We have an unknown here. In my opinion, the presence of four wheel [anti-lock brakes] would have allowed Mr. Moore to steer the vehicle and more likely than not, he would have missed [M.J.H.]. The unknown is exactly when di d he apply his counter steer. Q. Is that what you are talking a bout when you say that he would have steered and missed her? A. Well, he would have been able to steer. He did crank the wheel back to the right. . . . [W]ith functio nal [anti-lock brakes] on the front wheels, the front wheels would likely have come back up to speed and he would have been able to ge t some steering force on the front end. With that steering force, he should have been able then to—He would have been able to steer probably in front of [M.J.H.]. Q. But you don’t kn ow that for a fact?

. . . . A. It depends on when he puts his steer in. Q. You can’t state with a reasonable degree of engineering certainty or probability that with four wheel [anti-lock brak es] that this vehicle still would not have hit [M.J.H.] w ith some portion of the vehicle ?

. . . . A. Basically what I told you is that you are correct. He counter steered somewhere in the skid. We don’t know where . But had he counter steered and had the full [anti-lock brakes], he woul d have had much better ability and much better prob ability of avoiding [M.J.H.]. (Emphasis added.) Thus, in his deposition te stimony, Medcalf conceded that he did not know precisely when Moore began his counter-st eer. Ford accordingl y moved for summary-5- judgment, asserting that BancFirst “cannot es tablish that the alleged defect caused this accident.” In response, BancFirst sought to alter Medcalf’s testimony by submitting an errata sheet and updated declar ation pursuant to Rule 30(e). In the updated declaration, Medcalf appeared to back o ff his deposition testimony, now asserting: “Because Mr. Moore’s attention was already in a heighten ed state and his hands were on the steering wheel, his response time to the yaw, resulting in the initiation of the right steer, would have approximated one-half second [which wo uld have given him time to avoid M.J.H.].” Medcalf’s testimony underwent the same conve nient renovation in his errata sheet. Despite his deposition statement that “[t]he unknown is exactly when [Moore] did apply his counter steer” (emphasis added), Medcalf asserted that “it is known that [Moore’s] counter steer was applied prior to striking [M.J.H.] and in time to avoid striking her .” (Emphasis added.) We have adopted a restrictive view of th e changes that can be made pursuant to Rule 30(e), and take a dim view of subs tantive alteration of deposition testimony: We do not condone counsel’s allowing for material changes to deposition testimony and certainly do not approve of the use of such altered testimony that is controverted by the original testimony. . . . The purpose of Rule 30(e) is obvious. Should the report er make a substantive error, i.e., he reported “yes” but I said “no,” or a fo rmal error, i.e., he reported the name to be “Lawrence Smith” but the prope r name is “Laurence Smith,” then corrections by the deponent would be in order. The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the ques tions with no thou ght at all then return home and plan artful re sponses. Depositions differ from interrogatories in that regard. A de position is not a take home examination. Garcia v. Pueblo Country Club , 299 F.3d 1233, 1242 n.5 (1 0th Cir. 2002) (citations and-6- quotations omitted). As the di strict court properly concluded, BancFirst indeed treated the deposition as a “take home exam ination.” Although perhaps not directly contradicting Medcalf’s deposition testimony, the errata sheet and declaration submitted by Medcalf substantially qualify his prior statements, and thus make precisely the sort of substantive changes of which we disapprove. For this reason, the district court did not abuse its discretion by disregarding alterations to Medcalf’s deposition testimony. 3

III “We review the district court’s grant of su mmary judgment de novo, applying the same legal standard used by the district court.” Garrison v. Gambro, Inc. , 428 F.3d 933, 935 (10th Cir. 2005). Summary judgment is appropriate if “the movant shows th at there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[A]lthoug h our review is de novo, we conduct that review from the perspective of the district court at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the attention of the district court by the parties.” Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 671 (10th Cir. 1998). In his deposition testimony, Medcalf initially conceded th at he did not know when Moore began his counter-steer, and therefor e could not tell whethe r anti-lock brakes would have prevente d the accident. Later in that same deposition, however, he

3 BancFirst also contends that the district court erred in noting in a footnote that Medcalf’s errata sheet was submitted untimel y. Because the errata sheet contains impermissible alterations, and th us should be disregarded, its timeliness is immaterial.-7- categorically stated that fou r-wheel anti-lock brakes would have prevented the accident. Q. My question to you is: Had this vehicle had full wheel anti[-]lock brakes, would the vehicle have been able to come out of that yaw sufficiently to avoid this collision with [M.J.H.]?

. . . . [A]. Yes. Q. Is that based on a reasonabl e degree of engineering certainty? A. Yes. A few questions later, Medcalf repeated this categorical assertion. Q. Now, looking at your opinion num ber five on page two of Exhibit 35, you write: It is my opinion that to a reasonable degree of engineering certainty had the vehi cle been equipped with a four wheel anti-lock brake system, it is more likely than not that Mr. Moore would have regained steeri ng capability as he turned the wheels back to the right, allowi ng him to avoid a collision with [M.J.H.]. Is that stil l your opinion today? A. Yes.

These assertions are crucial. The entire basis of the district court’s grant of summary judgment was that, once it denied BancFirst’s attempts to alter Medcalf’s testimony, “the court [was] left with a failure of proof on [BancFirst’s] part,” because BancFirst “has no competent evidence that the accident would not have occurred had Moore’s truck been equipped with four-w heel ABS.” However, in the unaltered deposition, Medcalf asserts that four-wheel anti-lock brakes woul d have prevented the

accident. 4 Even though he appears to contradict himself earlier in the deposition, the

evidence viewed in the light most favorable to Banc First creates a genuine dispute of

4 Contrary to Ford’s assertions at or al argument, BancFirst adequately brought this testimony to the dist rict court’s attention.-8- material fact. Summary judgment was improper.

IV Ford argues that we may affirm the gr ant of summary judgmen t on the alternative grounds that Medcalf’s proffered expert tes timony is inadmissible. Ford contends the testimony is scientifically unreliable, and thus inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993). However, the district court did not make any findings on the record regarding the admissibility of Medcalf’s testimony under Daubert . Because the record is presently insufficiently developed for appellate review of the Daubert issue, we must remand for

the district court to consider it in the first instance. See Goebel v. Denver & Rio Grande

W. R.R. Co. , 215 F.3d 1083, 1087-88 (10th Cir. 200 0) (“Without specific findings or discussion on the record, it is impossible on appe al to determine whether the district court carefully and meticulously reviewed the proffere d scientific evidence . . . .” (quotations and alteration omitted)).

V In light of our reversal of summary judgmen t, BancFirst’s appeal of the denial of its Rule 59(e) motion is moot.

VI

We AFFIRM the exclusion of the errata and declaration, but REVERSE the grant of summary judgment for Ford and REMAND for further proceedings consistent with-9- this order and judgment.

Entered for the Court

Carlos F. Lucero Circuit Judge