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Towers v. Aktiengesellschaft

April 26, 2007

TIMOTHY M. TOWERS AND KRISTY HUZZARD-TOWERS, PLAINTIFFS
v.
HEIDELBERGER DRUCKMASCHINEN AKTIENGESELLSCHAFT A/K/A/D/B/A HEIDELBERGER DRUCKMASCHINEN AG, AND HEIDELBERG USA, INC., ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Kosik

MEMORANDUM AND ORDER

This matter is before us on the motion of defendant Heidelberger Druckmaschinen AG (HDM) to dismiss this product liability action against it for lack of personal jurisdiction. The motion, filed on October 4, 2006, is supported by numerous attachments as an appendix to its brief, including a declaration of a Wirnt Galster, a corporate officer of HDM who negates any corporate activity of HDM in the form of jurisdictional contact with Pennsylvania, and specifically contradicts the deposition of Matthias Chone, previously designated by HDM as "Corporate Designee" to be deposed by plaintiffs.

Prior to filing the motion to dismiss, HDM served counsel for the plaintiffs with some sixty corrections to the deposition transcript of Chone which, in one particular instance, substantively changed Chone's response to a question dealing with HDM's shipping "printing presses" into Pennsylvania from a "yes" to "no." Essentially, HDM claims its corrections were needed because of obvious reporter errors as a result of misunderstanding the witness because he was not testifying in his native language. Additionally, HDM claims Chone's testimony is contrary to other discovery. The corrections prompted a motion by plaintiffs to strike the corrections to the transcript of Chone's deposition and to stay briefing on the jurisdictional motion.*fn1 In the response to this flurry of activity, the court afforded time for the parties to engage in further discovery. The matters are now ripe for disposition.

Background

On August 24, 2004, plaintiff Timothy Towers suffered an injury at his employment with the Montrose Printing Company in Montrose, Pennsylvania. His injury occurred while working with a printing press. The press allegedly was designed and manufactured by HDM in Germany. It was sold by HDM in 1979 to a customer in Germany. In December 1998, the press was sold and shipped to Montrose Printing Company by the Mid-Michigan defendants which have no relation to HDM. Heidelberg USA Inc. (HUS) was also named as a defendant. HUS was not involved in the sale of the press, but it has been the exclusive U.S. distributor of HDM-manufactured products since 1993. Other named defendants are Heidelberg Americas, Inc. (HAI), a holding company that is wholly owned by HDM. HUS is a wholly-owned subsidiary of HAI with a principal place of business in Georgia. It is undisputed that HUS does business in and is subject to personal jurisdiction in the Commonwealth of Pennsylvania.

In its Answer, HDM asserted as an affirmative defense that it was not subject to personal jurisdiction by reason of insufficient contacts with the Commonwealth of Pennsylvania. Prior to HDM's motion to dismiss on the same grounds, the parties engaged in significant discovery on this issue. At the request of plaintiffs to produce a corporate designee concerning HDM's business and contacts with Pennsylvania, HDM produced Matthias Chone who was noticed by plaintiffs to be deposed. The notice was elaborate in providing forty-three paragraphs of matters to be inquired into, as well as the production of documents. The deposition of Chone consists of 152 pages. Chone was represented by defense counsel who is active in this litigation and who was familiar with the jurisdictional issue from the outset. The deposition preliminaries included advising the witness of the purpose of a sworn deposition, his right to inquire if something was not understood and, the right to take a break and to confer privately with counsel. Although the witness was a German national, there was initially no hint of or reference to his inability to understand English or to respond in English. At times during the deposition, counsel made objections and participated in clarifications and could do so when a recess was taken. The deposition was taken by a registered professional reporter provided by Veritext Pa. Court Reporting Company. Similarly, HUS produced Jeff Frick, a corporate designee who was deposed concerning the distributor relationship between HDM and HUS.

As noted earlier, HDM's motion to dismiss is supported by a declaration of Wirnt Galster, the corporate governance officer of defendant HDM, which inter alia, completely contradicts HDM corporate designee Chone about HDM contacts with Pennsylvania. We shall have occasion to allude to other evidence in the following discussion.

Discussion

I.

We first address plaintiffs' motion to strike the proposed corrections to the deposition of HDM's corporate designee Matthias Chone.

Fed.R.Civ.P. 30 provides the basic rules for the procedures used in taking depositions. Specifically, Rule 30(e) outlines the procedure for correcting changes in the form and substance of a deposition. The rule does not limit the type of changes which may be made. Regardless, plaintiffs believe we should adopt the reasoning of some courts that the rule only permits the correction of typographical and transcriptional errors. It appears to be conceded that our Circuit Court has not considered the issue.

Plaintiffs believe that the effort of HDM is to change the deposition testimony of Chone on a material matter; material in the sense that the defense motion to dismiss, while intended to be filed from the outset, relies on the declaration of another corporate officer in the person of Wirnt Galster to completely contradict Chone on an issue very material to the motion to dismiss. For reasons discussed earlier, we see nothing in the record to suggest any impediments to Chone understanding questions or in communicating his answers. There may be contradictions in his answers in some respect, but it certainly is not evidence of error in reporting or understanding when it all occurs in the presence of defense counsel who is of the mind to challenge jurisdiction all along.

We will follow the holding in Podel v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997). The corrections are allowed without entitling the deponent to have his altered answers to take the place of his original ones. The original answers will remain part of the record to be considered as out-of-court statements and admissions to be ...


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