Najam, J.
STATEMENT OF THE CASE
Deborah Cleveland, as Personal Representative of the Estate of Robin W. Cleveland, appeals the trial court’s denial of her motion to correct error and for relief from judgment in her action against Clarian Health Partners, Inc. (“Clarian”). Cleveland raises four issues for our review, which we restate as the following three issues:
1. Whether she may raise her claim of surprise in the purported change in a nonparty fact witness’s testimony at trial for the first time on appeal;
2. Whether Indiana Trial Rule 26(E)(2) imposes a duty on a party to amend a nonparty witness’s deposition testimony when that party learns of a change in the testimony before trial; and
3. Whether Clarian’s counsel committed misconduct under Trial Rule 60(B)(3) when counsel did not supplement the deposition testimony of Clarian’s nonparty employee prior to trial.
We hold that Cleveland may raise a claim of surprise on appeal for the first time. But, on these facts, we need not address Cleveland’s second issue. Rather, assuming for the sake of argument that Rule 26(E)(2) imposes a duty on a party to amend the prior deposition testimony of a party’s nonparty employee, on this record we cannot say that Clarian committed misconduct under Trial Rule 60(B)(3) when it did not supplement that prior deposition testimony. Thus, we affirm the trial court’s denial of Cleveland’s motion to correct error and for relief from judgment.
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The facts in Outback stand in significant contrast to the facts in this case. In Outback, there was both an initial omission when the plaintiffs failed to identify Roysdon as a person with knowledge of the relevant facts and a subsequent failure to supplement Roysdon’s deposition when she outright recanted that testimony. The witness’s deposition and trial testimony in Outback were unambiguous and polar opposites. Roysdon first testified that the customer was not visibly intoxicated and later testified that he was visibly intoxicated. That is not the case with Dr. Choi’s testimony. Rather, while at times in her deposition testimony Dr. Choi claimed to have clear knowledge of the timeline of events, at other times she openly acknowledged that she could not clearly recall the timeline of events.
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… Again, given the ambiguous nature of her original deposition testimony, we cannot say that her subsequent trial testimony was directly contradictory, as in Outback. And there is nothing unusual about a witness using a contemporaneous record to refresh her recollection, especially when the events in question occurred almost a decade before her trial testimony.
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Outback is distinguishable for another significant reason. In Outback the relevant witness informed Outback’s counsel during her post-trial deposition of her meetings with the plaintiff’s attorney. There is no such evidence in this case….
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In sum, we hold that Cleveland may argue surprise in a witness’s purported change in testimony for the first time on appeal. But, on these facts, we hold that the trial court did not abuse its discretion when it denied Cleveland’s motion to correct error and for relief from judgment. We cannot say on this record that Dr. Choi’s trial testimony was so different from her deposition testimony that it invoked, as alleged, any duty on the part of Clarian to amend under Trial Rule 26(E)(2) or that Clarian committed misconduct under Trial Rule 60(B)(3). Thus, we affirm the trial court’s denial of Cleveland’s motion to correct error and for relief from judgment.
Affirmed.
RILEY, J., and KIRSCH, J., concur.