*1 Special Robin Luckett as Administrator of the Tywanda Tyquone Estate of Luckett, Luckett, minor(s) by Joe Shenara Bohannon, Bohannon their Guardian ad Litem, J. Michael End and Department State of Wisconsin of Health and Family Plaintiffs-Respondents, Services,
v. Aaron C. Bodner, M.D., The Medical Protective Company, Phy- Aurora Sinai Medical Center and Company
sicians Insurance Wisconsin, Inc., Defendants-Appellants-Petitioners, Physicians Company Insurance of Wisconsin, Inc., Prithipal College S. Sethi, M.D., Medical of Wis- Hospitals, Injured consin Affiliated Inc. and Pa- Compensation tients & Families Fund, Defendants-Co-Appellants-Petitioners, David Paul Altman, M.D. and Wisconsin Patients
Compensation Fund, Defendants.
Supreme Court
No.
argument January
2007AP308. Oral
July
Decided
For defendants-co-appellants-petitioners, Sethi, M.D., S. Medical Prithipal College Wisconsin Affiliated Inc. and Insurance Hospitals, Physicians Com- Wisconsin, Inc., pany there were briefs Steven P. Colwin, Associates, S.C., Sager Sager, Samuelsen & Lac, du argument by Sager. Fond and oral Steven P. *5 Aurora Si- defendants-appellants-petitioners, For the Protective Com- and The Medical Medical Center nai In- defendants-co-appellants-petitioners, and the pany, Fund, there Families Compensation Patients & jured Gendelman, McLeRoy, Laurie J. and by briefs Lori were Weir, Milwaukee, and Maria K. S.C., Ert & Otjen, Van Erickson, Larson, & Bonville Gutglass, and Schneider (Pro Scott L. Howie Milwaukee, oral argument and Vice) Chartered, Chicago, & Stouffer, Hac and Pretzel a brief J.by there was the plaintiffs-respondents
For End, Hierseman, Hierse- End, A. and Jerome Michael Milwaukee, Crain, LLC, argument by and oral &man J. Michael End. ABRAHAMSON, C.J. The defen S. 1. SHIRLEY insurers)1 seek review and hospitals,
dants (physicians, court of appeals decision of the of an unpublished Court for Milwaukee an order of the Circuit affirming Foley, Judge,2 R. favor County, Christopher the plaintiffs' The circuit court granted plaintiffs.3 Bodner, Aaron C. groups of defendants: There are three Wisconsin, Inc.; Company Physicians Insurance M.D. Center, Inc., The Medical Protective Medical Aurora Sinai Compensation Company, Injured Patients and Families Sethi, M.D., Fund; College Medical of Wisconsin Prithipal S. Inc., Physicians Company of Hospitals, Insurance Affiliated generally Wisconsin, group filed its own briefs. We Inc. Each and, addressing single entity when defendants as a treat the always which defendants arguments, do not state defendants' arguments. proffer which Bodner, 2007AP308, op. unpublished slip v. No. Luckett 2008).
(Wis. Apr. App. Ct. Special Administrator plaintiffs are Robin Luckett as Luckett; Luckett, Tyquone Joe Tywanda of the Estate Bohannon, minors, by Bohannon, their Guardian and Shenara End; Litem, Department Michael and State of Wisconsin ad J. Family Health and Services. 804.11(2) (2005-06)4
motion under Wis. Stat. to with *6 plaintiffs that the draw three admissions made in response request to the defendants' for admissions. The appeals affirmed the order the court of circuit court. single presented ¶ 2. The issue for our review is erroneously whether the circuit court exercised its granting plaintiffs' the discretion motion to withdraw plaintiffs response the admissions that the made in to request. the defendants' permitted plaintiffs
¶ 3. The circuit court the to relating withdraw three different admissions to Tywanda persistent vegeta- whether Luckett in a was tive state. The first and third admissions concern Ms. during period July Luckett's 22, condition the from 2005, 2, to October 2005. The second admission con- during period cerns Ms. Luckett's condition from September July 29, 2000, plaintiffs
¶ 4. The now do not wish to withdraw their first and third admissions. In their brief and during argument they court, oral to this stated that responses their affirmative to the defendants' first and requests words, third to admit are correct. In other plaintiffs persistent admit that Ms. Luckett in a was vegetative July state on 2005—the date of the plaintiffs' persis- admissions—and that Ms. Luckett's vegetative July permanent tent state was on persisting until her death in October 2005. only plaintiffs now seek to withdraw response request
their admission in for second namely persis- admissions, that Ms. Luckett was in a vegetative tent state from the time that she entered Spring Silver Health and Rehabilitation Center on 4All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated. 29, 2000, 22, 2005, the date of the July until
September admission covers the admissions. The second plaintiffs' the defendants subjects of time largest expanse consider the circuit liability. We largest exposure of fact without concession plaintiffs court's decision in this court. the first and third admissions relating to the circuit court did not 6. We conclude that exercise its discretion in erroneously permitting the admissions. We conclude to withdraw plaintiffs 804.11(2), of the admis- under Wis. Stat. withdrawal merits of the presentation sions will subserve action, they the defendants did not show and that a defense on the maintaining will be prejudiced withdrawal of the admissions. merits *7 we affirm the decision of the Accordingly, ¶ the circuit court's order appeals affirming court of the admissions. We to withdraw allowing plaintiffs the cause to the circuit court for further remand this opinion. not inconsistent with proceedings I summarize the relevant facts and briefly 8. We ¶ in the as we discuss opinion additional facts later report the issue presented. 4, 2000, Dr. August performed 9. On Bodner
¶ Luckett at her Tywanda request: tubal on ligation time a small mass found in Ms. Within a short was near the tubal site. After ligation Luckett's abdomen care, Ms. Luck- emergency surgery post-operative suffered cardiac arrest and severe brain permanent ett on discharge hospital Septem- from damage. Upon 29, 2000, long- ber Ms. Luckett was transferred to a term care where she remained until her death. facility 5, 2003, Luckett, her 10. On December Ms. children, three minor and the Wisconsin of Department medical malpractice filed a Services Family Health Sethi, Dr. Bodner, Dr. Prithipal Dr. Aaron against action Altman, Robinson, Dr. David Chua, Dr. Jonathan David of Center, College the Medical Medical Aurora Sinai Insurance Physicians Hospitals, Affiliated Wisconsin Com- Medical Protective Wisconsin, Company Fund. Compensation Patients' and Wisconsin pany, essence, negligence that the alleges, complaint Ms. Luckett to suffer caused doctors the defendant damage. a form of brain encephalopathy, severe hypoxic Sinai Medical 2005, Aurora 11. On June sent Company Protective the Medical Center pursuant admissions requests three plaintiffs 804.1K1):5 Wis. Stat. Tywanda NO. 1: Admit
REQUEST ADMIT TO state. vegetative persistent in a presently Luckett is Tywanda 2: Admit that ADMIT NO. REQUEST TO since vegetative state persistent in a been Luckett has and Rehabili- Spring Health to Silver was admitted she facility that admitted long-term care [a tation Center shortly after she September on Ms. Luckett damage], suffered brain persis- Admit that the NO. 3:
REQUEST TO ADMIT Tywanda permanent. Luckett is vegetative state tent accompa- was for admissions The request for produc- and a request interrogatories nied two *8 804.11(l)(a) part in relevant provides Stat. Wisconsin 804.015, may upon party serve a provided in s. "[e]xcept as admission, for request for the any party a written other any of matters only, of the truth pending of the action purposes (2) request that forth in the set scope of s. 804.01 within the application of fact or opinions statements relate to de- any documents fact, including genuineness the law to request." in the scribed
tion. The interrogatories for request production if applied only the plaintiffs refused for request admissions in whole or in part. They re- essentially quired plaintiffs disclose evidence any supporting that Ms. position Luckett was not a persistent state. vegetative 13. The for request admissions and the
¶ inter- rogatories were obviously designed to eliminate pos- sible element damages, namely pain and suffering the described On period. July 22, 2005, plaintiffs' coun- sel responded the affirmativé to each of the three admissions. requested 14. 31, 2005, On August the circuit en-
¶ court order, tered a scheduling which provided a final pretrial conference would be held on January 19, 2007, and that a three-week jury trial would commence on 5, February 2007. The circuit court ordered the parties all on complete discovery or before the date of the final pretrial conference. 15. Ms. Luckett 2, died on October 2005.6 (the On January day before the
final pretrial conference and 18 months after the ad-
6 Relying upon a document that two of the filed defendants court, with the circuit appeals court of opinion stated in its that Luckett died August Bodner, on 2005. See Luckett v. No. (Wis. 2007AP308, unpublished slip op., 2 & n.2 App. Apr. Ct. 2008). court, In their however, briefs to this parties agree that the correct date of death is stated in the plaintiffs' motion for substitution of party and in the circuit court's order granting that motion. plaintiffs' motion and the circuit court's order each state that Luckett died on October
Upon death, Ms. Luckett's granted circuit court plaintiffs' motion to substitute the administrator of Ms. party. Luckett's estate as a *9 counsel for e-mailed
missions), for the plaintiffs counsel counsel plaintiffs' inform them that the defendants [Ms. Luckett] that admission "withdrawing [his] was the time of her state from vegetative a persistent was and Rehabilitation Spring [Health to Silver admission in final trial prepara- explained Counsel Center]." suggesting documents following he had found the tion, been a persistent not have may that Ms. Luckett state: vegetative
(cid:127) April on by Dr. John R. McGuire A note written follow "was able to
2001, stating that Ms. Luckett 'yes' head or 'no' to and nod her simple commands simple questions."
(cid:127) April on by Dr. Thomas Kidder A note written I believe she is
2001, stating, "It is difficult to tell but to her ...." some of what is said comprehend able (cid:127) 21, 2001, by Dr. Kidder on June A note written "very frightened and fearful" was
stating that Luckett yes indicate able to Luckett seemed "to be and that no."
(cid:127) 21, 2001, stating study report" of June A "swallow fright- very tentative and "appeared
that Ms. Luckett ened." over- apparently for the plaintiffs 17. Counsel records 2,000 of medical items in pages
looked these had the same The defendants the admissions. making records. of medical 2,000 pages following conference At the final pretrial orally plaintiffs counsel for day, January Plaintiffs' admissions. his prior moved to withdraw that Ms. indicate these records explained counsel on. The circuit going was aware what Luckett was an opportunity the defendants counsel for gave court *10 respond to the plaintiffs' motion. Defense counsel ar- that gued they would be prejudiced by the withdrawal counsel, admissions. All as well as the circuit court, if the agreed circuit court granted the plaintiffs' admissions, motion to the withdraw the cir- cuit court adjourn would have to the trial. impending Everyone agreed that the parties were not then pre- pared litigate the issue whether Ms. Luckett had been a persistent vegetative state. 19. The circuit court asked
¶ the if parties they would like to revisit the issue the early following week so that would the they have opportunity furnish the court with additional input. No party asked for an opportunity address the issue further. The circuit court took down each e-mail attorney's address and promised to send a decision later that same day. 20. The circuit court granted the plaintiffs'
¶ mo- tion to withdraw admissions. 21. Bodner, Sethi, Dr. Dr. Aurora Sinai Medical
Center, the Medical of College Wisconsin Affiliated Hospitals, Physicians Insurance Company Wiscon- sin, and the Medical Protective Company petitioned for leave to appeal circuit court's nonfinal order. Dr. Altman and the Wisconsin Patients Compensation Fund did not join in the appeal. Dr. Chua and Dr. Robinson prevailed on summary judgment motions and were dismissed from the action. In sum, the allegedly medical in- negligent
cidents occurred in 2000; August/September the com- plaint alleging medical malpractice was filed December 5, 2003; the defendants requested admissions June 2005 and the plaintiffs made the admissions in 2005; July Ms. 2, 2005; Luckett died on October and the motion to withdraw the admissions was made on Janu- ary 19, 2007. When the plaintiffs made their admis- any they plaintiffs in effect eliminated claims sions, the pain may had Ms. Luckett's conscious have period September suffering during from withdrawing years In these death five later. until her acknowledged plaintiffs' admissions, counsel mistake his "mistake" and the earlier admissions were "doing trial until final not discovered counsel was was preparation." question in the All the records in were possession plaintiffs'. as well as the defendants' appeals granted defendants' court appeal petition order of for leave to from the adverse allowing admissions. the circuit court withdrawal split appeals affirmed the decision, In a the court of allowing *11 plaintiffs circuit court's order to withdraw admissions. II present apply ¶ of in 24. review Two standards case. interpret
¶ Stat. 25. The court must Wis. 804.11(2). promulgated interpretation § of a statute authority rule-making presents under this court's independently question this reviews law, court which benefiting appeals hut the circuit court court of analyses.7 from their
¶ court must also determine whether 26. The erroneously in its discretion court exercised circuit allowing plaintiffs under to withdraw admissions 804.11(2). § Wis. Stat. 804.11(2) governs § with- Wisconsin Stat. pro- party's It of a admission. or amendment
drawal Petroleum, Co., Trinity Inc. v. Scott Oil WI 2d N.W.2d 302 Wis.
vides that the circuit may court permit withdrawal or amendment of an admission when two conditions are (A) met:8 "the presentation of the merits of the action (B) will be subserved thereby"; and party "the who obtained the admission fails to satisfy the court withdrawal or amendment will prejudice the in party the action maintaining or defense on the merits."9 The statute in provides full as follows: Any
Effect-of admission. matter admitted under this section conclusively is established unless the court on permits motion withdrawal or amendment of the ad- mission. The may permit court withdrawal or amend- presentation ment when the of the merits of the action thereby will be subserved party and the who obtained satisfy the admission fails to the court that withdrawal party amendment will maintaining in the action or defense on Any the merits. admission by party made under this section purpose is for the the pending only action and is not an any admission for purpose other may nor against party it be used any proceeding. other 804.11(2) 28. The in Wis. language Stat. at
issue in the present case, namely the second sentence, "was adopted from and is nearly identical to its coun 36(b)]."10 terpart 36(b) provision [Fed. R. Civ. E Rule of the Federal Rules of Civil Procedure provides *12 relevant part that "the court may permit withdrawal or amendment an [of if admission] it would promote the presentation of the merits of the action if the court
8See Mucek v.
Inc.,
Nationwide
60,
Commc'ns
2002 AppWI
34,
("Section
426,
804.11(2)
252 Wis. 2d
¶
we Wis. Stat. authority."11 interpreting When persuasive guidance court therefore seek 804.11(2), may § the 36(b) the Rule of Federal interpreting federal cases of Procedure. Rules Civil 804.11(2) Fed. § 30. The texts of Wis. Stat. law, case 36(b), Civ. E as well as the demonstrate
R.
804.11(2), "a
with
may permit
court
under Wis. Stat.
met[.]"12 The
both
if
conditions are
statutory
drawal
an admission
must he met before
requirements
"two
(1)
the
the merits of
of
may
presentation
be withdrawn:
(2)
ob
subserved, and
the
who
party
action
be
must
by
not
prejudiced
tained
admission must
be
nonmoving
The lack of
withdrawal."13
on the merits
maintaining
the action
defense
party
11
n.2,
Evans,
178,
2d
App
State
2000 WI
8
238 Wis.
v.
Cardenas-Hernandez, 219
(citing
v.
617
220
State
N.W.2d
(1998)).
516, 528,
2d
discretion.14 This court will the circuit court's applies proper order if the circuit court standard of law, examines the facts, relevant and reaches a conclu demonstrating sion that a reasonable court reach, could process.15 a rational present
¶ 32.
In the
case the issue of erroneous
allowing
plaintiffs
exercise of discretion in
withdraw the admission turns on whether the circuit
applied
proper
court
standard of law. The circuit
interpreting
applying
court,
Wis. Stat.
§ 804.11(2),
804.11(2)
parts
identified the two
but
explicitly
did not
determine whether withdrawal of the
plaintiffs'
prejudice
admission would
the defendants in
maintaining their defense on the merits. In its written
acknowledged
decision,
the circuit court
prejudice
"signifi-
issue is "difficult to assess" and that
recognized
cant
concerns exist." It
that the
plaintiffs' motion to withdraw the admissions would
expert
testimony
additional
evaluation,
"necessitate
discovery"
"requireD adjourn-
and related
and would
impending
significant
add[]
ment of the
trial and
14 Mucek,
Olsen,
Schmid v.
252 Wis. 2d
(citing
(1983)).
228, 237,
2dWis.
¶
Furthermore,
the circuit court seemed
804.11(2)
§
establishing
interpret
a
as
Stat.
two-
Wis.
setting
balancing
than as
forth two
factor
test rather
requirements.
independent
court
circuit
stated
present
case "lies
the
that
the answer
the
804.11(2).
§
prongs"
balancing
the two
of Wis. Stat.
grant
that it
the
The circuit court further stated
would
plaintiffs'
to withdraw the admissions because
motion
"[wjhile
significant
exist, the fair-
concerns
possibility
implicated
that Ms. Luck-
the
ness issue
injuries
catastrophic
she
ett was conscious of the
on
merits."
cries out for resolution
suffered
appeals
did not view the
34. The court of
having misinterpreted Wis. Stat.
circuit court as
804.11(2).
§
assert
Some of the defendants
erroneously interpreted the statute.
circuit court
applies
court
an incorrect
a circuit
When
discretionary
making
decision, a
standard of law
erroneously
discretion.16
has
exercised its
circuit court
Olsen,
v.
however, in Schmid
concluded,
court has
This
although 228, 237,
N.W.2d
111 Wis. 2d
apply
not
the criteria of
circuit
did
articulate
court
228, 237,
Olsen,
2d
remand the matter to the circuit court to its exercise discretion a second time after applying inter- proper 804.11(2). pretation of Wis. Stat. The defendants ask this court to reverse the order of the circuit court and appeals ground court of on the that withdrawal the admissions is as a precluded matter of law. The defendants maintain that withdrawal of admissions *15 will them as a matter of in maintaining law their on the defense merits. Adhering Olsen, v. Schmid we examine
¶ the record to determine it the supports whether circuit court's ultimate decision allow withdrawal of the plaintiffs' admissions. conclude that the We record (A) supports the conclusion that withdrawal of the will presentation merits; admissions subserve the of the (B) and the defendants will not prejudiced by be of withdrawal the admissions in maintaining their defense on the merits. ("The Schmid, See 2d at [circuit] Wis. did court
not as articulate the basis for its decision the two criteria of 804.11(2), sec. Stats. It well is established that a decision requires which the exercise of discretion which on its face any no of demonstrates consideration of the factors on which the decision properly should be based constitutes an of abuse discretion If a judge as a matter of trial law. bases the exercise law, of upon his discretion of mistaken view the his conduct beyond is limits though of his discretion. Even there was us, an abuse of discretion the case before reversal this (internal omitted)). court is not automatic." citations A requirement first of Wis. Stat. 38. The 804.11(2) importance having emphasizes The circuit court deter on merits.18 action resolved plaintiffs' admissions of the will mined that withdrawal presentation of of the action the merits subserve [newly-discovered] in the entries "[i]f, because as arguably indicate, Ms. Luckett ... was medical records suffering experience pain capable for the of and did lapsed period between the time she into extended appropriate death, of her it is for the to the time coma liability jury established, if and, that fact is to consider damages compensate that loss." award challenge generally do not 39. The defendants determination that of the the circuit court's withdrawal presentation plaintiffs' will subserve the admissions the merits of the action. argue defendants that withdrawal 40. Some presentation cannot subserve
an admission "squarely the admission is merits of the action unless by something conclusively in the contradicted *16 18 1255, County, 297 F.3d 1266 See v. Miami-Dade Perez (11th 2002) ("This part impor the emphasizes of the test Cir. (quotation merits[.]" on having of the action resolved the tance omitted)); County, v. Utah 409 F.3d Raiser marks and citation Perez). 2005) (10th (same; 1243, quoting 1246 Cir. 36, Advisory Committee Notes of the See Fed. R. Civ. R also 36(b) P R. Civ. (stating that Fed. on the amendments 1979 having the resolved on the "emphasizes importance of action the justified assuring merits, party each that while at the same time not operate will preparation trial reliance on an admission prejudice."). to his
441 not court's record."19 This does with argument comport case Both the state and federal cases have con law. cluded that of withdrawal or amendment an admission the of the merits of action promote presentation will the is even when the admission not contra conclusively by dicted in the record.20 something 19 Reply Center, of Petitioners' Brief Aurora Sinai Medical Inc., the Company Injured Medical Protective and the Patients Compensation & Families at 9. Fund plaintiffs arguably asserts the dissent that submitted justify evidence to the withdrawal of to the admission the request justify second but that no evidence was the submitted of withdrawal admissions number one and three. The defen- argument. dants do not make this however, unreasonable, It is not to conclude that the entries "arguably medical records from 2001 indicate" that Ms. capable perhaps experienced pain Luckett was and suffer- during by ing periods covered third first and admissions. 20See, Olsen, e.g., Schmid v. 111 2dWis. 330 N.W.2d (1983) (concluding presentation 547 of the merits of action by would be subserved withdrawal of Olsen's admission he damages, was liable 70% for Schmid's although the liability disputed extent Olsen's was and was shown); conclusively States, not Conlon v. United 474 F.3d (9th 2007) (concluding presentation 622 Cir. that the promoted by merits of the action would be withdrawal of Conlon's issuing admission that "neither the of the warrant arrest], [for his his subsequent arrest or his were incarceration wrongful negligent caused acts or omissions of United employees," although nothing States conclusively demon- false); strated that Conlon's admission was Manatt Union v. (8th 1997) Co., ("In Railroad Cir. F.3d Pacific case, circumstances this 'the prospect of deeming [the] having fact[] controverted ... as been ... admitted seems be anathema ascertainment of the truth.'" (quoting Indus., Waterhouse, White Consol. (D. Inc. v. 158 F.R.D. (brackets 1994) Manatt))). Minn. ellipses *17 discretionary determi- 41. The circuit court's plaintiffs' of the admissions that nation withdrawal presentation of the merits of the subserve the will The not an erroneous exercise discretion. action was evidently regard parties ques- in the case the instant damages pain for conscious tion of Ms. Luckett's dispute suffering key they as a issue will at trial. plaintiffs' admissions, stand, if to allowed would effectively eliminate a determination on the merits of granting plaintiffs' to Thus, issues. the motion these the will in the aid ascertainment withdraw admissions development the truth and the merits. We requirement in turn the second Stat. therefore to Wis. 804.11(2), maintaining relating prejudice § in defense on the merits.
B 804.11(2), § court Stat. circuit Under Wis. may party an if "the allow withdrawal of admission who satisfy fails the court obtained admission maintaining party will withdrawal... the action or defense on merits." contemplated "prejudice" Wis. Stat. 43. The 804.11(2) [obtaining simply party not that a "is admissions] be worse off without the admiss would prejudice maintaining To ions."21 demonstrate party merits, who obtained action or defense on prejudice to the the admission "must show addition consequence party inherent that the will now have (citations omitted). Mucek, 2d 252 Wis. 30¶ *18 that been prove would have deemed conclu something if the sively established were held to its opposing party admissions."22 in maintaining 44. the action or de Prejudice
fense on the merits "relates to the difficulty party [here the may proving case, e.g., defendants] face in its witnesses, caused by unavailability key because of the sudden need to obtain evidence with respect the questions the admiss previously by answered ions."23 The prejudice inquiry court to "focus requires
22Id.
23
Co.,
N.
Village
Brook
Assocs. v.
Elec.
66,
Gen.
686 F.2d
70
(1st
1982).
Cir.
Conlon,
See
(quoting Hadley
also
v. United
plaintiffs' *19 of examine each the merits. We their defense on ing in turn. arguments these grant contend that because 47. The defendants the trial for adjourning meant motion
ing plaintiffs' as a are prejudiced the defendants discovery, additional defense on their maintaining of law matter of the on two decisions rely The defendants merits. Communica Mucek v. Nationwide court of appeals, 426, 643 N.W.2d tions, Inc., 2002 WI App 60, 252 Wis. 2d 36(b) 2008) ("Rule (3d contemplates 36.13, ed. rev. § at 36-46 may proving face in difficulty party prejudice arising from the required need to obtain evidence of the sudden its case because (footnote omit that has been admitted." prove the matter ted)).
24 Conlon,
25
("The
Conlon,
relying on the
See
party
98, and Beauchaine, Estate v. 2006 WI support 297 Wis. 2d 727 N.W.2d of their position may permit that the circuit court not with drawal amendment of an admission under Wis. Stat. 804.11(2) § discovery adjournment when additional of the trial would result. agree
¶ 48. We do not with the defendants' inter pretation Hegarty. of Mucek or Estate These cases recognized,26 demonstrate, as the circuit court that it prejudice lies within the circuit court's discretion to find 804.11(2) ground under Wis. Stat. on the that with drawal or amendment of an admission would necessi discovery adjournment tate additional and an prejudice trial. Neither case demonstrates that is estab lished as a matter of law when withdrawal or amend ment of an admission would necessitate additional discovery adjournment of the trial.
¶ 49. In the case, Mucek the circuit court denied Nationwide Communications' motion to withdraw ad- concluding missions, that withdrawal would maintaining Mucek in the action on the merits. In *20 assessing prejudice to Mucek, the circuit court largely ongo- focused on Nationwide Communications' ing comply discovery failure to with the court's orders. appeal, argued On Nationwide Communications that applied improper the circuit court had an standard of law. appeals
¶ 50. The court of sustained the circuit concluding court's determination, that "a trial court 26The circuit court's written decision "[R]esultant states: adjournment and additional discovery is sufficient to establish prejudice justify so as to denial of the request to withdraw an Mucek, n.8). admission." (citing 426, 252 Wis. 2d 32¶ history discovery may party's . of abuse .. consider ,"27 804.11(2)... § determining prejudice under when "[a] party's ongoing appeals reasoned that The court of provide fre documents and information will failure to requests quently magnify importance of for admis already requesting party precisely has sions because deprived requested information and is all the been identify dependent is on admissions to what more actually dispute."28 opined, appeals
¶ in a foot 51. The court of also prejudice circuit court's determination note, that the sustained because withdrawal Nationwide could be likely necessitate Communications' admissions would adjournment of the trial so that Mucek could obtain an appeals stated that additional evidence. The court "[a]n again adjournment the need to of the trial and discovery attempt would itself constitute appeals Mucek[.]"29 Mucek court of further stated authority general "[a] to maintain the trial court's orderly prompt processing provides of cases author deny ity apart withdrawal, from the two factors 804.11(2)."30 in the The circuit court Wis. Stat. present apparently concluded, within its discre case despite over tion, the fact that the lawsuit was pending years years over six after three duration and alleged negligence, it could maintain sufficient adjourned proceedings in the if the trial were order discovery additional conducted. Mucek, 2d 28. 252 Wis. ¶ Mucek, 252 Wis. 2d 29Mucek, (citing Equal Employ 2d 32 n.8 252 Wis. Inc., F.R.D. Graphics, Opportunity
ment Comm'n v. Jordan (W.D.N.C. 1991)). 126, 128-29 30Mucek, 2d 252 Wis. *21 of Hegarty,
¶ the circuit court denied In Estate 52. admissions, motion to withdraw a defendant insurer's concluding prejudice part that withdrawal would maintaining the action on the merits. The Estate in had stated that the motion for withdrawal circuit court game" "pretty and that withdrawal come late to more mean that the Estate "would have do would discovery."31 appeals upheld
¶
of
the circuit
53. The court
agreed
of
It
with the circuit
court's exercise
discretion.
"a
court that withdrawal of the admissions would mean
discovery
causing
. . .
addi
substantial amount of new
already very long process."32
delays
It
tional
in an
circuit court's determination that
sustained the
discovery,
requirement
of additional
concomi
delay
prejudice the Estate.33
action,
tant
in the
would
Hegarty,
¶
In
and Estate
54.
both Mucek
appeals
circuit court's discretion-
court of
ary
sustained the
an
determination that withdrawal of
admission
prejudice
purposes of
result
Wis. Stat.
would
804.11(2).
appeals
Neither the Mucek court of
nor the
appeals
Hegarty
the issue
Estate
court of
addressed
erred if it had
whether the circuit court would have
granted
in those cases.
the motions for withdrawal
Accordingly,
neither case demonstrates
is
established as a matter of law when withdrawal or
amendment of an admission
necessitate addi-
would
discovery
adjournment
tional
of the trial.
55. The federal case law is similar to Mucek
Hegarty.
federal district courts have
Estate
Several
discovery
adjourn
examined the need for additional
2d
of Hegarty,
Estate
297 Wis.
32Id.,
33Id.
*22
determining
ment of the trial when
whether with
of an admission under Fed. R.
drawal or amendment
36(b)
prejudice.34
in
Civ. E
will result
holding
¶ 56.
federal decision
that a federal
No
required
prejudice
find
district court is
under Fed. R.
36(b)
Civ. E
when withdrawal would necessitate addi
discovery
adjournment
of the trial has
tional
been
brought to the court's attention. The fact that a trial
adjourned,
discovery
or that the time for
must
must be
enlarged,
necessarily
not
the non-
be
does
mean that
moving party
prejudice maintaining
will suffer
in
the
examining prejudice,
or defense on the merits. In
action
prejudice
the courts should "focus on the
that
nonmoving party would suffer at trial."35
argu-
We therefore turn to the defendants'
prejudice they
trial.
ments about
will suffer at
Although adjournment
may give
¶ 58.
of the trial
prepare
litigate
sufficient time to
defendants
question
persistent
in
whether Ms. Luckett was
vegetative
they
state, the defendants contend that
will
804.11(2)
prejudiced
purposes of
be
Wis. Stat.
plaintiffs'
subsequent
because the
admissions and
with-
34
Employment Opportunity
Equal
See
Comm'n v. Jordan
(W.D.N.C.
1991),
Inc.,
in
Graphics,
135 F.R.D.
cited
Mucek,
(finding prejudice
252 Wis. 2d
32 n.8
because
permitting
"may require
discovery and
withdrawal
additional
matter");
likely delay
disposition
Rop
would most
of th[e]
(D.
1991)
States,
fogel v. United
138 F.R.D.
Kan.
(finding prejudice
part
"greatly
because withdrawal could
matter");
delay
v.
Banking
the trial of this
Branch
& Trust Co.
(E.D.N.C. 1988)
(finding
Corp.,
Deutz-Allis
120 F.R.D.
interject
part
withdrawal would
a new
because
discovery
which no
heretofore been
upon
"issue
the case
has
undertaken").
35See,
Conlon,
70;
e.g.,
Village,
Brook
drawal caused longer they procure can no evidence relevant They argue admissions, that as a result of obtain. independent they examina- medical did not conduct an that as a result of with- Luckett, and tion of Ms. rely they upon Ms. have to of the admissions will drawal of Ms. medical records and cross-examination Luckett's treating physician at trial. Luckett's argue they have lost The defendants *23 expert particular opportunity a to make use of their knowledgeable vegetative persistent states, about passed away namely Cranford. Dr. Cranford Dr. Ronald plaintiffs' and the the admissions between the date of plaintiffs the admis- moved to withdraw date that the sions. recognized the Federal have courts by party objecting
prejudice required to a to be shown relates to the of admissions motion for withdrawal difficulty may proving party face in its case because the key light unavailability of the witnesses of delay.36 at of Ms. Luckett's 61. Dr. Cranford looked some Luckett fit the char- records to determine whether Ms. vegetative Upon persistent state. acteristics of one receipt plaintiffs' admissions, the defendants longer no Dr. Cranford that his services were advised plaintiffs' argue The defendants that it was needed. effectively defense admissions that deterred the from asking Dr. to examine Ms. Luckett's medical Cranford perform independent an medical exami- records and persistent she was in a nation to determine whether vegetative claim that had there state. defendants County, The defendants cite Raiser v. Utah 409 F3d Cabera, (10th Sonoda v. 2005), 255 F.3d Cir. (9th 2001). Cir. requested July been a denial of the admissions in period July there would have been a from 22 until (with hindsight 2, 2005, October when on the death of Luckett) Ms. indepen- Dr. Cranford would have done an plaintiffs' dent medical examination. After the admis- necessary, sions, such an examination was not argue, intervening defendants and the death of Ms. any impossible. Luckett made medical examination arguments Indeed, the crux of the defendants' about plaintiffs' is that Ms. Luckett's death after the prejudiced refuting admissions defendants plaintiffs' pain suffering. claim for conscious argu 62. The defendants offer no evidence or ment that a medical examination of Ms. Luckett between July and October 2005 would have enabled Dr. Cranford any other medical examiner to evaluate Ms. Luckett's September through July condition from 29, 2000, acknowledge they 2005. The defendants do not (and show) know pendent the record does not whether an inde helped medical examination would have refuting plaintiffs' defendants in claim for conscious *24 pain suffering. argue Rather, the defendants that independent their examination "wouldn't have hurt the prejudice."37 equate defense, and that is We do not inability defendants' to introduce evidence that does not hurt the defense with to the defense in maintaining a defense on the merits. opportunity 63. The defendants had the to independent
make an medical examination of Ms. Luck They though ett before the admissions. not, did even request along accompa their for admissions, with the 37Reply Brief of Defendants-Appellants, Bodner, Aaron C. M.D., Physicians Wisconsin, Insurance Company of Inc. at 11. dem for production, and request
nying interrogatories Ms. Luckett was whether that the question onstrate settled. As was not state vegetative a persistent numerous had stated, the "defendants of appeals court exami for a medical an order request to opportunities 802.10(3) Wis. Stat. with several nation in connection the commencement issued between orders scheduling 22, 5, 2003, July and the December on litigation of this of the defendants at issue here. None 2005, admission motion to with The plaintiffs' a request."38 made such the defendants' did not cause the admissions draw their defense on the in maintaining difficulty sudden merits. the with also assert 64. The defendants them in main will prejudice of the admissions
drawal they depose inasmuch as did not their defense taining of Ms. on the issue care professionals certain health The defendants state.39 vegetative Luckett's persistent they lost the a result of the admissions that as argue witnesses when these relevant depose to opportunity their personal still fresh about their memories were assert Luckett. The defendants with Ms. experiences in July not made the admissions had the plaintiffs these health have 2005, might deposed the defendants 2005. The defendants July after professionals care on her discovery delay reaching that "[t]he assert 2007AP308, op., Bodner, unpublished slip v. No. Luckett 2008). (Wis. 22, App. Apr. Ct. 24, from depositions were taken November A total of 26 every 2004, January 31, Depositions were taken treating provider health care physician defendant and named 15, Depositions were also to June from November 2004 2005, 26, July from November plaintiffs' experts taken from December experts and of defense *25 January
persistent state was vegetative entirely attributable Ms. plaintiffs' admission that Luckett was such a state and was not conscious of any pain and sufferi ng."40 are persuaded by 65. We not this It is argument.
hard to understand failure to why defendants' about depose witnesses Ms. Luckett's state of conscious- ness of as pain is, assert, and the defendants suffering entirely the fault. The plaintiffs' depositions could have been taken the July before 2005 admissions. 66. The try explain defendants their failure
to do an independent medical examination or to take depositions on the issue of Ms. Luckett's persistent that vegetative state until asserting plaintiffs' motion in admissions, 2007 to withdraw conscious an pain suffering and was never issue in the The case. urge defendants that from the of until filing the suit all were January proceeding counsel under that assumption Ms. Luckett was a persistent vegetative state. 67. The explain defendants the de "[f]or
fense, however, needed assumption to be confirmed or the claim of possible pain suffering conscious and with, dealt by defense The confirmation... experts. was accomplished by the admissions . .. ."41We July Center, Inc., Brief of Sinai Petitioners' Aurora Medical The Medical Protective Company Injured Patients & Families Compensation Fund at 16.
41Defendants-Co-Appellants-Petitioners, Sethi, Prithipal S. M.D., College Inc., Hospitals, Medical of Affiliated Wisconsin Physicians Wisconsin, Company Reply Insurance Inc.'s Brief Defendants-Co-Appellants-Petitioners, at 4. See also Sethi, M.D., Prithipal College S. Medical Affiliated Wisconsin Inc., Hospitals, Physicians Company Insurance Wiscon- (The sin, explain Appendix Inc.'s Brief and at 11 defendants *26 explanation find of the defendants' assertion not this do assumptions parties' of Ms. Luckett's on the of reliance convincing explana vegetative persistent state to be indepen an failure to conduct tion of defendants' deposi get additional medical examination or dent July September 22, 2005. and tions between by being placed prejudiced will not be The defendants position they the admis have been had the same would July mistakenly made on not been sions argument the defendants will be 68. The that prejudiced faded memories have is because witnesses' indicating persuasive. The not medical records also persistent vegeta- may in a not been Ms. Luckett have years April dated and June 2001. Four tive state are already elapsed have between the observations would any depositions taken in and that could have been 2001 plaintiffs if not made the admissions. 2005 had through patient's 2004 Memories of a condition by July undoubtedly already faded 2005. These had July memories, not fresh in likelihood, in all were also not fresh in 2007 when the admissions were withdrawn. were they will 69. The defendants also assert that be
prejudiced because the admissions withdrawal exposure. may The defendants increase their financial point plaintiffs' admissions, out their that after the liability damages suffering pain for for for the was may days have that Ms. Luckett suffered conscious pain operation September 29, until from the date of the admissions, 2000. With the withdrawal of de- liability many months that Ms. Luck- fendants face may pain, namely from ett have suffered conscious asserting state of inconsistency, that the issue Ms. Luckett's only by the defense as a 'rule out' consciousness "was considered 2005."). July the admissions of possibility until September 29, 2000, until her death. The defendants argue that the withdrawal of the admissions thus adds uncapped pain suffering an claim for conscious significantly against could increase a verdict them in the instant case. The withdrawal of the admissions potentially therefore left the defendants liable for an uncapped damages claim pain. for more for conscious *27 agree
¶ 70. We with the circuit court that the exposure [is not] pertinent defendant's "increased ... a prejudice prong" consideration on the of Wis. Stat. 804.11(2). exposure The defendants' increased results (Ms. having litigate from question the defendants' to a capacity experience pain Luckett's to conscious suffering) that the defendants would have had to liti gate in the absence of an admissions. The case law is party opposing clear that the a motion to withdraw or prejudice amend an admission "must show in addition consequence party to the inherent that the will now prove something have to that would have been deemed conclusively opposing party established if the were held to its admissions."42 stated, As we have the defendants prejudiced maintaining will not be a defense on the they placed if position they merits are in the same would have been in had the admissions not been mistakenly made. urge
¶ 71. The defendants that withdrawal of the plaintiffs' permitted admissions should not be because plaintiffs neglect the good cannot show excusable or 804.11(2) cause.43 Section not, however, does make 42 Mucek, 252 Wis. 2d 30. 43During the pretrial final hearing, the circuit court stated that it is given "understandable that the volume of records that involved, are given length treatment, the of complexity the for withdrawal neglect" prerequisite
"excusable United States an As the amendment admission. has Eighth explained, for the Circuit Court Appeals the litigation "consider the effect upon court must than on focusing rather resisting party, to admiss excuses an erroneous moving party's ion."44 sum, record In the circuit court is sufficient discretionary the circuit court's determina- support to withdraw the admissions.
tion to the plaintiffs allow circuit forth, set we conclude For reasons exercise its discretion erroneously court did not motion withdraw the admis- granting plaintiffs' sions. affirm the decision of the we Accordingly, circuit order affirming
court of court's appeals We allowing the to withdraw the admissions. plaintiffs remand cause the circuit court for further *28 this opinion. not inconsistent with proceedings Appeals Court. —The decision of the Court of By the is affirmed. issues, cetera, suggesting that Ms. [the
medical
et
records
quote/unquote
conscious in 2001
missed."
were]
Luckett was
explicitly
did
The circuit court
not
determine whether
earlier
plaintiffs'
failure of
counsel
to discover the records
neglect."
from "excusable
resulted
44Prusia,
(quotation marks
citation
case, the now majority vegetative persistent in a state. See was Luckett April op., 2001, 1, 2001, 21, Between and June Ms. Luckett medical indicate that Ms. was Luckett's records responsive questions. events and was On aware of sought 2005, the relevant admis- June the defense persistent vegetative regarding state. Ms. Luckett's sions July were in of 2005. The relevant admissions obtained later, died months October 2005. Ms. Luckett a few on plaintiff January sought 18, 2007, the to withdraw On previously the made admission. beg followingquestion in the this 78. These facts July in the admission not been made
case: Had the have done in 2005 or 2007 to what could defense in evaluate Ms. Luckett's condition 2001? defense produce any proof prejudiced it in did not was pursuing words, on the merits. In other defense presented any persuasive argu- court was not with trial had not obtained the 2005 admis- ment that the defense not sion, or had admission been withdrawn something done different that the defense could have If an refuted 2001 interval. there was admission have admission, irrelevant, it or if there was not an is almost timing given fact that as of the admission and the persistent in a the time of 2005 admission she was nothing vegetative is state. There in the record reflect that the of the admission affects the defense withdrawal differently now. This case is not which the one contemporaneously is with or on admission made case, a lucid Had that we heels of interval. been could long certainly as conclusion, reach a different so some presented regarding prejudice. In this case, was evidence responsive in 2001; Luckett was the admission was Ms. everyone July agrees of2005, a time when Ms. Luckett *30 persistent vegetative in state; was a her death was on January 2,2005; October the withdrawal occurred on anything It is difficult to determine how other paper than review could have been conducted in 2005 present. Nothing and the same is true for 2007 or even at exists the record to refute that conclusion. problem argument
¶ 79. The with the defense's placed now is that even if the defense is back in the they position would have been at the time of the expert admission, the defense fails to an show that something would be able to do different than he or she could do now. burden was on the defense to show they prejudiced the circuit court how are that being impacts admission ability withdrawn and it their how go any differently back than it If does now. timing persistent vegetative of the state admission different, withdrawal were then the outcome in this simply showing case could be different. There is no prejudice. Finally, ¶ 80. I would note that the trial court is position process by to create a fair which a trial on the merits can occur and that there is no undue as goes may this case forward. There be issues that arise regarding the effect of the late withdrawal on the expert's opinions. The trial court will need to address playing those due course and create an even field. variety techniques Trial courts utilize a to ensure fairness and this trial court should do same. foregoing
¶ 81. For reason I concur. I am authorized to state that Justices PATIENCE DRAKE ROGGENSACK and MICHAEL J. join GABLEMAN this concurrence. (dissenting).
¶ 83. T. PROSSER, DAVID J. In af firming appeals, major decision court of Wis. Stat. the value of undermines
ity seriously 804.11(2) (2007-08)1 on errone rewrites the law damage understand the of discretion. To ous exercise the facts and law done, we must examine being is in full.
I Code of Civil 804 in the Wisconsin 84. Chapter ¶ Discovery." Wis- to "Depositions Procedure pertains admission," 804.11, for "Requests § Stat. entitled consin of this chapter. is a vital part 804.11(l)(a), § "a party Stat. 85. Under Wis. ¶ a written for any party request serve other may upon only, of the action admission, pending for purposes matters within the of s. any scope of the truth of 804.01(2)(a) 804.01(2)." "[p]arties explains Section matter, privi- not discovery regarding any obtain may matter involved subject which is relevant to leged, action, it relates to the claim or whether pending the claim or discovery or to party seeking defense of the added.) any party." (Emphasis defense of other The rationale This is straightforward. commentary in a 1976 on "new" the rule is explained Law Review: "This rule 804 in the Chapter Marquette former section 889.22 with 804.11] replaces [section 36 and offers a much im- of Federal Rule language admissions obtaining party proved procedure for from items over which there is no proof and other of facts dispute costly time-consuming and which can be The Graczyk, at trial." Patricia New Wisconsin prove 804, 59 L. Rev. Chapter Marq. Rules Civil Procedure added). (1976) (emphasis Statutes are to subsequent All references to the Wisconsin otherwise indicated. the 2007-08 version unless case, In this one of the defendants sent three requests plaintiffs, pursuant for admission to the requests Wis. Stat. The 804.11. were sent on June By parties depositions time, 2005. every had taken physician-defendant
named as well as the follow- ing treating providers: Cavey, health care Julie Sandra Chung Daniels, Graessner, Ha, Jessica M.D., Mea Mari- lyn Kuester, Helen Meissner, and Richard Mueller. parties already depositions Inasmuch as the had from many completely witnesses, it was reasonable fact for the defendants to seek admissions of facts "over dispute [wa]s [could] which there no and which be costly time-consuming prove at trial." Id. Most competent advocates would do no less. majority puts spin 88. The an ominous on these requests
common sense for admission: opportunity defendants had the to make an inde- pendent medical examination of Ms. Luckett before the *32 not, They did though requests] even their admissions. admission[], along with accompanying the inter- for rogatories request production, and demonstrate that for question the persistent whether Ms. Luckett in a was vegetative state was not settled. As the court of appeals stated, the opportunities "defendants had numerous request an order for a medical in examination connec- tion scheduling with several... orders issued between the litigation July commencement of this ... and the 22, 2005, admission[s] at issue here. None of the request." defendants made such a added). Majority op. (emphasis ¶ 63 opinion, majority ¶ 89. Elsewhere in the the as- "[t]he pages serts that 2,000 defendants had the same plaintiffs. medical records" as the Id., implications ¶ 90. There are in these statements. The is first that the defendants should have combed a and conducted medical records 2,000
through pages Luckett, though even of Tywanda examination medical is that implication not. The second did plaintiffs the the medical through comb defendants did the perhaps eventually the plaintiffs what records and unearth for event, requests the defendants' In that discovered. effort than a skillful nothing more admission were into fatal admissions. making counsel euchre plaintiffs' counsel were then defendants' If this is what happened, their not about ought complain not surprised self-created predicament. expectations is that these 91. The problem in the record. Without are not grounded
suspicions as treats the defendants the majority justification, money time and unlimited they possessed though requests and their discovery investigation conduct one on the an effort to fast pull admission were for tool to narrow than a valuable employ rather plaintiffs engages court supreme facts in When dispute.2 Luck- majority that the issue of "whether Ms. claims not settled" because persistent vegetative state was ett was admission, also for which were requests counsel made the request production. by interrogatories and a accompanied majority's implies that the Majority op., 63. The statement persistent vegetative state was parties thought Ms. Luckett's However, majority's unsupported is claim doubt. i.e., conclusion, fact, opposite supports In the record record. assumption proceeding case were under parties this vegetative from the persistent in a state that Ms. Luckett was Spring Health and Rehabilitation time entered the Silver she It not until the late the time of her death. was Center until 18, 2007, plaintiffs' counsel states January when afternoon of working notes from this he first uncovered the *33 assumption questioned. was interrogatory including and an
Requesting the admissions of suggest not that the issue request production for does and 462 it courts to of invites second-guessing, this sort the behind for requests about motivation speculate be- persistent vegetative question, Ms. state was in Luckett's not discover "requests designed for admission are cause Kinsler, Jeffrey Requests S. Admission Wisconsin facts." for Sword, L. Litigation's Double-Edged Marq. 78 Civil Procedure: (1995). particular, party requesting In the the Rev. asking the know[] "is assumed ... facts before an [to] admission party to admit that the statement is true." Id. adverse discovery addition, other for interrogatories requests In See, Asea, requests e.g., are with for often included admission. 1981) (9th Co., Transp. Inc. 669 F.2d Cir. v. S. Pac. ("Each requests accompanied for admissions was an respond the case interrogatory...."). This is often because ing party may provide straight-forward, unequivocal not answers Kinsler, party If supra, responding See at 631. requests. admission, interrogatories for requests then denies discovery probe used to the facts and reason other forms are See, Asea, ing e.g., 669 F.2d at allegedly supporting the denial. ("[The response if interrogatories] the railroads' asked admission, they should anything unqualified was other than an re facts, upon documents and witnesses which state the based."). produc sponse interrogatories request for was purpose: this propounded tion in this case were latter deny you Tywanda 1: If Luckett INTERROGATORY NO. vegetative or, deny persistent alternatively, informa- state is in persistent to form a as to whether she is in a tion sufficient belief every behavior, state, vegetative then action or itemize each and by any response provider or either solicited or health care observed you diagnosis lay person, which contend is inconsistent with and, by name, vegetative Identify, if persistent address state. title, any relevant, position individual who has seen such of each Tywanda part are actions on Luckett which behavior or persistent vegetative with a state. inconsistent applicable. ANSWER: Not (by Identify profes- 2: name and INTERROGATORY NO. address) any providers reached a health care who have
sional explain persistent vegetative diagnosis other than a state Tywanda Luckett's condition. *34 admission and undermines value the of this discovery tool civil practice.
II It is against background this that we exam- ine the review of circuit majority's the court's decision. 93. On June Aurora Sinai Medical Center and the Medical Protective sent Company the plaintiffs requests three for July 22, admission. On 2005, plaintiffs' counsel in the affirmative responded of the each requested three admissions said that interrogatories and the request production were applicable." "not On January day before final pretrial conference, plaintiffs' counsel notified defendants' counsel that the plaintiffs were withdraw- their three ing admissions. Counsel's e-mail that effect was sent 2:57 p.m. at The hearing on the request to withdraw the admissions was held at 9 a.m. next morning. It should be noted plaintiffs' counsel did
not send the aforementioned e-mail to the circuit court. The court did not learn about plaintiffs' discovery and to withdraw request admissions until the following morning. The court, intently circuit focused on multiple motions, pending given was no advance notice about applicable. ANSWER: Not any REQUEST FOR 1: PRODUCTION NO. Produce medical
records, notes or other written or visual which documentation Tywanda neurologic evidences that Luckett is in a condition other persistent vegetative than state. applicable. ANSWER: Not light considerations,
In of these the majority's claim that persistent vegetative Ms. Luckett's was in when state doubt requests for unsupported. admission were made is make. At the asked to it would be decision the critical not have chambers, may informal the court hearing question records of the medical copies been given court, it is clear e-mail, because of the a copy misstated occasionally attorneys, like several *35 facts. to with- request is a motion there 95. When
¶ in- court must made, previously admissions draw 804.11(2). § That subsec- Stat. Wis. apply terpret court may permit follows: "The reads, as part, tion the merits of the presentation when withdrawal... who and the thereby party he subserved the action will the court that satisfy fails the admission obtained maintaining the party prejudice will withdrawal... Wis. Stat. on the merits." defense the action or 804.11(2). § states correctly majority opinion The 96.
¶ law, as the case 804.11(2), as well text of Wis. Stat. if withdrawal may permit 'a court that" demonstrates 30 op., Majority are met[.]'" ¶ conditions statutory both Commc'ns, Inc., WI 2002 Nationwide v. (quoting Mucek 98) 426, (empha N.W.2d 2d 643 34, 252 Wis. App ¶ in majority opinion). and alteration sis states correctly also majority opinion 97. ¶ deci discretionary is a court's decision the circuit the circuit uphold "This court will Id., 31. sion. ¶ court's order if the circuit court [1] applies proper standard law, [2] examines the relevant facts, [3] court could reasonable that a a conclusion reaches reach, [4] demonstrating rational process." Id. (citing Bunderson, v. (citing Loy 2d Mucek, 252 Wis. (1982))).3 414-15, 320 N.W.2d 2d 107 Wis. necessary sustain what is explained court In this of discretion: court's exercise a circuit In reviewing a discretionary decision, each of these factors should be considered. First, the circuit judge applied an incorrect
standard of law because he stated that the answer "lies (factors). in the balancing of the two prongs" This is what the judge wrote:
[T]here two-pronged analysis is a required assessing propriety of withdrawal of an First, admission. will presentation of the merits of the action be sub- Second, served!?] party will the previously who obtained and relied upon the prejudiced!?] admission he (cid:127) [T]he (cid:127) (cid:127) obligation resultant prove a fact that had been con- clusively established does prejudice. not establish How- ever, adjournment resultant discovery additional is to establish justify so as to denial sufficient the request to withdraw an admission. I have little hesitance in concluding that the first prong of analysis *36 is established....
The
prong
second
is more difficult to assess.
areWe
verge
on the
parties
of trial. All
expended
have
consid-
discretionary determination,
sustained,
A
to be
must demonstra-
bly
upon
appearing
be made and based
the facts
in the record and
appropriate
applicable
in reliance on the
and
Additionally,
law.
and
importantly,
discretionary
most
a
prod-
determination must be the
uct
process by
rational mental
which the
record and law
of
facts of
upon
relied
together
are stated
are
purpose
considered
the
for
achieving a reasoned and reasonable determination.
of
Hartung
(1981)
v. Hartung,
58, 66,
102
2dWis.
Letter (Jan. 19, for the Parties Counsel County, waukee (internal citations 2007) footnotes added (emphasis omitted)) Foley]. Judge Letter from [hereinafter standard wrong applied The court upon court relied obvious law, and it is quite of law to overcome existence standard wrong "significant acknowledged court prejudice. out spelled The court exist." Id. concerns the court Id. And in its letter. concerns some of those adjourn- that "resultant understanding its explained to establish is sufficient discovery additional ment and short, prejudice. the court found In Id. prejudice." of the three it still withdrawal Nonetheless, permitted remand should minimum, this court At a admissions. withdraw, motion to of a for an evaluation the case what precisely This is standards. legal proper applying 2d Olsen, 111 Wis. v. Schmid the court ordered (1983). 239, 330 N.W.2d *37 court's in the circuit deficiency The second
¶ "examine[] failed to the court is that determination Mucek, 252 (citing 31 Majority op., ¶ relevant facts." 414-15)). at Wis. 2d 426, (citing Loy, 2dWis. ¶ 102. The defendants requested ¶ three admis- sions:
REQUEST TO ADMIT NO. 1: Ty- Admit that wanda presently Luckett is persistent vegetative state.
REQUEST TO ADMIT NO. 2: Ty- Admit that wanda Luckett has been in a persistent vegetative state since she was admitted to the Spring Silver Health and Rehabilitation Center. REQUEST TO ADMIT NO. 3: Admit
persistent vegetative Tywanda state of per- Luckett is manent.
The plaintiff admitted each request. 103. Eighteen
¶ months later and less than three weeks before a scheduled trial, the circuit court permit- ted the plaintiffs to withdraw each admission. 104. The plaintiffs arguably submitted evidence to justify the withdrawal of their admission to request number two. The plaintiffs submitted that, evidence on April 11, 2001, April 2001, and June doctors made notes indicating signs of Ms. Luckett's consciousness and comprehension. 105. Conversely, plaintiffs did not submit any
evidence of Ms. Luckett's consciousness or comprehen- sion during the last half of or at any time in 2002, 2003, 2004, or 2005. Hence, there was no evidence submitted to justify withdrawal of admission num- ber one and no evidence submitted to justify the with- drawal of admission number three. 106. Plaintiffs' counsel repeatedly suggested the trial would have to explore Ms. Luckett's
consciousness up death, to her and the circuit court adopted that suggestion. Clearly, the court intended to *38 2000, September between period entire up open court stated 2, 2005, year period. and October five follows: as you my apprise to of
This letter will serve brief counsel,] End's[, plaintiffs' to Mr. respect decision with his that Ms. Luckett was motion to admission withdraw August, persistent vegetative state from late in a acknowl- her death.... The admission until time of to part Ms. Luckett edged inability [refute an on the of vegetative state] persistent in a proof that she was August, 2000 and the during period between late If, in the medical as entries time her death.... of morning's arguments argu- in this records referenced did indicate, capable Luckett of and ably Ms. was suffering period for the extended experience pain and to the time lapsed into a coma between the time she of jury consider that death, appropriate for the her it is fact.... added). Foley from Judge (emphasis
Letter forced decision not only 107. The circuit court's of to face for all exposure the defendants 2005 but also 2003, 2004, justified nine months of and of on decision, pain consideration part, its (late August in 2000 time suffering during period no there was admission and most of when September), and no admis- state vegetative requested of a persistent already open This 2000 was given. period sion suffering. pain proof defen- short, expanded In court from suffering claim to a exposure pain
dants' (Oc- 60 months to approximately two months roughly no 2005), there was 2000 to when September tober Ms. a conclusion that support proffered evidence during state persistent vegetative was not in a Luckett 2005) (July September 51 of those 60 months 2001 to least and at one other fact was misunderstood. making permit In its decision to with- *39 of three, drawal admissions one and the court did not any justify have facts to withdrawal. The court could not have examined the if relevant facts there were no to examine. facts deficiency
¶ 110. The third in the circuit court's significantly expanding that, determination is after the period exposure damages, of defendants' to the court judge reached a decision that no reasonable could reach. [Wisconsin The court as commented follows: "The Pa- Compensation] argument tients Fund .. . noted in their opposition respect to the motion their concern with significantly exposure. I increased don't view that as pertinent prejudice prong." a consideration on the Id. give legal The circuit court not did reason for its gave It answer. a factual reason: plaintiff If the can establish experi- [that] Ms. Luckett pain suffering enced during period this as a result negligence any of part on of of the care health providers, damages not, should be awarded. If she did plaintiff or if the adequately prove did, cannot that she damages no will be awarded.
Id. completely point.
¶ 111. This answer misses the damages pain suffering Noneconomic are not a cap fixed amount there unless is a on Thus, them. no judge open up reasonable would defendants to an exposure additional months of to unlimited noneco- damages justify nomic there unless were that facts exposure. plaintiffs additional The submitted no such yet anyway. facts, the circuit court its made decision my view, and in the of In also view legal wrong applied majority, court the circuit the relevant also failed to examine court standard. support no in that there were facts withdrawal facts facts in its admissions. It misstated three of two August September in relation to decision written showing operating it was under misunder- that requiring standing. Finally, court concluded expo- period 30 times the defendants to defend they requested had to defend before sure not consider factor that it could even was a withdrawal assessing prejudice. an exercise of discre- 113. This was erroneous multiple majority disregards a court's When the tion. law exercise errors, it rewrites the on erroneous *40 discretion.
Ill perfect represents ¶ a v. Bodner 114. Luckett malpractice in a case. for defendants medical storm imposed cap legislature on ¶ 115. The Wisconsin malpractice damages in in cases medical noneconomic Among things, the other Act 10. 1995. See 1995 Wis. 893.55(4) § legislature total to limit amended Wis. Stat. damages in a medical for each occurrence noneconomic May malpractice 25, 1995, $350,000, or after case on annually adjusted at least amount to be which was changes inflation the consumer measured reflect (1997-98). 893.55(4)(d) § The price Stat. index. See Wis. cap constitutionality upheld in v. St. Guzman was App Hospital, ¶¶ 240 21, 1, 25, Inc., 2001 WI Francis July cap 2005, In stood 559, 623 N.W.2d776. 2dWis. was the amount Ms. Luckett $445,755. This was at 471 receive, slated likely it was the amount that would if liability defendants have conceded their was established. On July 14, 2005, 116. court supreme de-
¶
Ferdon
cided that
v.
this
was unconstitutional.
cap
Wisconsin Patients
Fund,
187,
Comp.
125,
2005 WI
¶
573,
Hence,
284
2dWis.
January unlimited to an award defendants the exposing a over suffering and pain damages noneconomic majority opinion, Yet, like five-year period. potential evaluating factor into account that refused to take it prejudice. agree follows: "We as majority The writes 'increased the defendant's the circuit court
with on the consideration pertinent [is not] ... exposure 804.11(2)." Majority op., of Wis. Stat. prejudice prong' Then, (alteration majority opinion). and ellipsis 70¶ in- "The defendants' following: adds majority having from the defendants results exposure creased (Ms. experience capacity Luckett's question litigate the defendants suffering) pain conscious of admissions." in the absence had to litigate have would Id. unsupported is statement The latter admissions, no Had there been wrong.
plainly to go plaintiffs have forced would defendants on based sooner records 18 months medical through for produc- and request interrogatories the defendants' would have also experts defendants' own tion. able been have records, and would they examined still it was Luckett when Ms. to examine motivated the defendants certainly, Almost do so. possible *42 would have been able to reduce the period of exposure and would seriously have explored settlement. The case would not have come to this court.
IV
124. Unique among
discovery procedures,
re
quests for admission under
§
Wis. Stat.
804.11 are used
"to define and limit the controversy between parties to a
lawsuit, thus freeing the court and the parties to concen
trate on the matters at the heart of the dispute." Robert
B. Corris and Mark
Leitner,
M.
Requests
Admission,
in Wisconsin
(Feb.
Discovery Law and Practice, § 5.4
2006).4
In
Professor Ted Finman explained the
importance of defining and limiting the
issues
a law
suit through the use of requests for admission:
4 See also Mucek
Commc'ns,
v.
Inc.,
Nationwide
2002 WI
App 60,
("The
252 Wis. 2d
A definition opposing contentions focuses the cise statement *43 litigants of the the tribunal on the critical and attention litigants their permits This to direct questions. capacities the deter- necessarily investigative limited to And, obscurely ques- . .. defined issues. since minative decisions, precise erroneous a sometimes cause tions just and resolution promotes definition an accurate dispute. controversy limited as well as defined. A should be self-evident, adversary system, in an It is even be subject good dispute not to faith should contentions by than through concession rather submission resolved jury.. a contention cannot be judge [W]hen or .. adversary ap- honestly reasonably disputed, just delays endangers a resolution of and even proach the case. ... limitation,
Through such definition and admissions economy resolving dis- efficiency and in promote both conceded, expend point litigants If is need not putes. investigations concerning expense it nor incur effort prove it. administra- presenting evidence to Judicial required reduce is also aided. Admissions the time tion encourage litigants try Finally, a case... . admissions realistically hazards and thus to evaluate trial promote settlements. tend to in Federal Finman, The Admissions Request
Ted (1962) (inter Procedure, 71 Yale L.J. 375-76 Civil omitted).5 nal footnotes Kinsler, supra, also at 633 See definition its factual and No suit can be tried without some controversy legal A is essential. boundaries. definition eliminating controversy by defining facilitate of a
Admissions controversy by narrowing from the case that are not issues controversy.... that are in those issues 125. The reason requests for admission are so effective in defining and limiting the issues in a contro versy because, is unlike other forms of such discovery, as depositions and interrogatories, "matter[s] admitted under [Wis. § Stat. 804.11 are] conclusively established unless the court on motion permits withdrawal or 804.11(2).6 amendment of the admission." Wis. Stat. In fact, because admissions are considered "conclusively made, established" once they supersede the pleadings. Jay E. Grenig and Jeffrey 8 Wisconsin Kinsler, S. controversy A should be limited as well as defined. Conten- subject good dispute tions not faith through should be resolved judge jury. concession rather than submission to a When a honestly contention reasonably disputed, cannot be the adver- *44 approach delays endangers just sarial and even a resolution of the Limiting controversy promotes
issues.
efficiency
economy
and
litigation, resulting
in civil
lawyers.
in lower costs for clients and
(Internal
omitted.)
footnotes
6See also
Hegarty Beauchaine,
Estate
v.
App
2006 WI
('When
297 Wis. 2d
476 (2d 2005); ed. Discovery Civil 12:61 Practice Series: Admission in Wisconsin Kinsler, Requests S. Jeffrey Sword, 78 Double-Edged Litigation's Civil Procedure: (1995). 625, 657 L. Rev. Marq. " admis result, securing 'the party As a 126. Schmid, effect.'" binding their on [may] rely sions Johnson, Rainbolt v. at 236 n.4 (quoting Wis. 2d 1981)).7 (D.C. binding [is "This effect Cir. 767, 768 F.2d from all other for admission apart sets requests what] admis and, effect, such places discovery procedures supra, Kinsler, at admissions." judicial on with par sions effect, counsel this Considering binding must provide for admission request faced with a " Kinsler, Grenig deliberate, response.'" 'studied v. Hanigan, 225 F. (quoting McSparran supra, § 12:61 (E.D. supra, see also Finman, 1963)); Pa. Supp. ("[T]he be- through party which at 421 procedure are not the 'technical.' Admissions not] bound [is comes to procedural or inattention of inadvertence result choice."); deliberate, conscious a litigant's niceties but of ("[SJection Leitner, supra, §5.10 See also Corris rely securing on their party admissions permits the 804.11 effect.") (internal omitted); Grenig, supra, quotations binding ("The rely binding securing may on the party admissions § 411.5 Kinsler, § 12:61 admissions."); Grenig supra, effect ("The rely binding effect of entitled to on the requesting party is *45 ("The securing Kinsler, party admission."); supra, at 657 admissions."). effect of the rely binding on may admissions on the 1970 amend- addition, Advisory Committee Notes In Procedure 36 state that Rule of Civil ments to Federal See clarify binding effect of an admission." "the amendments Civil in Federal Finman, Request Admissions Ted for ("It (1962) likely seems Procedure, 418 n.188 71 Yale L.J. to be admissions of the Rules intended the draftsmen conclusive."). binding and 477 ("An supra, request. Kinsler, at 657 a answer to . . is . . . response, against easy a studied made under sanctions particular, "[t]he denials.. .In more harmful the impact may upon an admission case, have the more scrutiny attorney objec- uncovering an should devote drafting good-faith qualifying tions or answers or deni- supra, Kinsler, als." at 647. If counsel is careless or making inattentive in admission, "it would be just neither fair nor to" allow withdrawal of the admis- harming [the] opponent" sion "at the risk of who rea- sonably binding relied on the admission's effect. Fin- supra, man, at 424. responding If counsel makes a mistake in request
to a
ity
admission,
for
the circuit court has author
grant
"only
admission,
withdrawal of the
but
if
'the merits of the action will be
if
subserved' and
party
satisfy
who benefits from the admission 'fails to
prejudice'
the court that withdrawal.
. . will
the ben
efitting party."8
(quoting
Mucek, 252
2d 426,
Wis.
26
804.11(2))
§
(emphasis
ellipsis
Wis. Stat.
added and
original).
per
However, "courts should be
cautious
mitting
Grenig
the withdrawal...
of admissions."
§
supra,
supra,
Kinsler,
12:71; Kinsler,
fact,
at 657.9 In
8 Circuit
discretionary
courts have
authority
permit
litigant's response
withdrawal of a
request
admission,
to a
but that discretion must be exercised within the two-prong test
804.11(2).
§
set forth in
Stat.
Wis.
of Hegarty,
Estate
297 Wis. 2d
38;
Leitner, supra,
5.24;
§
Corris and
Grenig
Kinsler,
12:71; Kinsler,
supra,
supra, at
A662.
circuit court's discre
tionary
upheld
decision is to be
if it "examined the relevant
facts, applied
proper
law, and,
standard of
demonstrating a
process,
rational
reached a conclusion that a
judge
reasonable
Mucek,
could
reach."
252 Wis. 2d
(citing Loy
25¶
v.
Bunderson,
(1982)).
400, 414-15,
2dWis.
sudden Leitner, 5.24; supra, see also ously admitted." Corris Kinsler, In Kinsler, 12:71; supra, at 662. supra, § Grenig and on an adverse effect words, means more than "[prejudice other Kinsler, "that the case," supra, at party's requesting jury to convince the the admission now has party who obtained admitted, Bergemann v. previously of' the truth of the matter 1987). (10th States, 1117, 1121 Cir. F.2d United *47 added)); Wis. 2d at 239 (emphasis E. 3 Jay Grenig, (3d Wisconsin Practice § Series: Civil Procedure 411.5 2003); Kinsler, § ed. and Grenig supra, 12:71; Kinsler, 662-63; Finman, at see also supra, supra, at 422. 130. Typically, "[prejudice stems from the re ¶ questing party's reliance on the binding effect of the Kinsler, admission." Grenig 12:71; § and supra, Kinsler, fact, at 662.11 In supra, is most prejudice likely to be found in cases where trial is imminent and the party benefitting from the admission forgoes discovery on the Leitner, matter admitted. Corris 5.24; § and supra, Kinsler, and Grenig 12:71; Kinsler, supra, at supra, 663.12 In situation, such a allowing the withdrawal an admission would in likely result delay adjourn trial, ment of the added time and cost for additional a discovery, possibly much more costly search for
evidence or witness testimony, all of which have been found to be prejudicial. Kinsler, See at supra, 663.13 ("If Finman, See also supra, at 422 permitting decision lawyers withdrawal rely would make reluctant on admis- denied."). sions, relief should be Finman, See supra, also at 422 stage may Evidence available at one of a case be unavailable Consequently party at a later date. who assumes that an prejudiced admission has eliminated the need for evidence can be may its withdrawal. He be unable to obtain evidence that was previously Clearly, available to if him. a court concludes that prejudice party withdrawal would cause to a who has relied on the admission, withdrawal should be denied. 13See also Hegarty, Estate 2d 297 Wis. 39-40 ¶¶ (deciding prejudice would result if the withdrawal was (1) light allowed in following party facts: relying on operated the admission assumption under the that the admitted matter it, was not an issue and discovery conducted no on (2) there would need to be "a substantial amount of new discovery" delays that would already "caus[e] additional in an case, In that will result prejudice this their admis- to withdraw allowing plaintiffs from obvious. As Fine stated Judge sions is conspicuously "The to the appeals, his dissent the court of v. here is Luckett palpable outrageous." defendants Bodner, 2007AP308, unpublished slip op., No. 2008) (Wis. (Fine, J., dissenting). Ct. App. April 132. When the circuit court decided to allow admissions, it knew the preju withdrawal of the three three- ruling. projected dicial of its consequences 5, 2007, trial would have February week scheduled delay to be rescheduled. This would cause additional 5, 2003, ongoing a case that had been since December *48 once the before. already bumped year and had been in delayed This was and of itself because it prejudice matter, final it caused an increase disposition costs, judicial Judge and it disrupted process.14 this in his letter to the Foley recognized parties grant Letter to withdraw admissions. ing request ("[RJesultant adjournment and Judge Foley, supra from ("An Mucek, 426, very long process"); 252 Wis. 2d 32 n.8 ¶ adjournment again attempt trial and the need to discov prejudice party relying on the ery [the would itself constitute Inc., (citing EEOC Graphics, v. Jordan 135 F.R.D. admissions]." (W.D.N.C. 1991))). 126, 128-29 14 ("If 70, Hegarty, Estate 2d the amend- 297 Wis. 40¶ game,... in the ment would have been allowed... this late discovery of new would have logically a substantial amount already very long required, causing delays additional an been process.... judicial process itself[] would have been [T]he (internal omitted)); Mucek, 2d prejudiced." quotations 252 Wis. ("An 426, need to adjournment of the trial and the 32 n.8 ...."); discovery prejudice constitute again attempt would itself supra, at 663 Kinsler, ("Prejudice when the has been found delay of the trial or additional require withdrawal... will discovery.").
481 discovery additional is sufficient to establish justify request to an so as to denial of the withdraw admission.") n.8). (citing Mucek, 252 Wis. 2d Approving the circuit court's decision now prejudice. and exacerbates this The defen confirms required lengthy, "to undertake a labori dants will be costly regard evidence," ous and search for additional ing vegetative persistent in a whether Ms. Luckett was Grenig state and when she entered state. supra, say Kinsler, that, 12:71.15 This is not to if plaintiffs' requests counsel would have denied the for July 2005, admission in the defendants would not have They had to undertake such a search for this evidence. immediately, so would have done which is evidenced interrogatories request production included requests supra, ¶ See, for admission. with n.2. having However, undertake that search for evidence opposed July significantly prejudices now, as First, the defendants for several reasons. Ms. Luckett away passed on October more than two months Therefore, after the admissions were made. the defen January dants were and are unable unable now independent, physical to conduct an examination of Ms. expert experts opine Luckett so that their can on her 15See, e.g., Corp. Corp., Weva Oil v. Belco Petroleum *49 (N.D. 1975) F.R.D. 666-67 W. Va. court, From it can the record before be ascertained that while probability introduction of such evidence could all be accomplished, lengthy, extremely the task would be laborious and costly considering weight to Belco. In in such circumstances, lightly the court must not treat such burdens when upon litigant, especially litigant properly
visited a when that has [Federal] utilized the Rules Procedure of Civil to advance his litigation just, speedy, inexpensive toward a and conclusion. (Internal omitted.) ellipses, quotations, and citation and neurological any status other matters of signifi cance a claim for concerning conscious and sufferi pain ng.16 Second, 134. the defendants' witness, re expert
tained analyze Ms. Luckett's persistent vegetative state,17 was called-off after the admissions were made. majority concurring Both the opinions argue that argument "[t]he defendants offer no evidence or that a medical examination of July Ms. Luckett between and October 2005 [the would have enabled expert] any defendants' other medical examiner to evaluate Ms. Luckett's condition from 29, 2000, September through July 62; Majority op., 2005." concurring op., argument see also 78-79. ¶¶ This fails to appreciate that the circuit court allowed withdrawal of all three admissions, period July 22, 2005, which covers the of time from admissions, 2, 2005, the date of the through October date Certainly, requests Ms. Luckett's death. if the for admission July were denied in the defendants could have under- independent taken an medical examination of Ms. Luckett currently determine whether she was in persistent vegetative state and permanent. whether her condition was
Moreover, majority concurring opinions hold defen- dants' to an unreasonably high counsel standard. It must be remembered that the first notice of the motion to withdraw the admissions came less than 24 hearing. hours before the Counsel hardly expected can highly be to have formulated technical arguments medical expert what an could or do in could not evaluating given Ms. if opportunity July Luckett they Counsel did the best could under the circumstances making point ability against the obvious that their to defend pain claim of suffering impaired by conscious was the fact patient longer living that the was no when withdrawal of the permitted. admissions was 17The preeminent defendants had retained the medical expert regarding persistent vegetative states, Dr. Ronald Cran- ford. Dr commentary Cranford is well-known for on the his See, Bellafante, Terri Schiavo matter in e.g., Ginia *50 recognized widely expert time, that witness Since the away. require passed the defendants This will that also expert experts must find and retain new who start any analysis beginning knowledge from the without the increasing case, thus the defendants' costs. This of the difficulty it because "relates to constitutes proving will] [their] [the case defendants have be supporting a sudden to obtain cause of need evidence previously Leitner, matter admitted." Corris and Grenig supra, § supra, 5.24; Kinsler, see also and § supra, Kinsler, 12:71; at 662. Finally, never fo- because defendants persistent on whether Ms. Luckett in a
cused was along vegetative state —it was assumed all she they may many, required re-depose if not be all was— the witnesses who cared
for or Ms. treated Luckett. yet example prejudice that This is another will allowing from of these result withdrawal admis- ("[A] supra, party § Leitner, sions. See Corris and 5.24 is party, prejudiced when trial is imminent and forgone opponents' admissions, reliance on its has dis- covery explored have facts established would admissions."); Grenig supra, Kinsler, 12:71 (same). (same); supra, Kinsler, at 663 permission noted, In addition, as to withdraw greatly expo admissions increased the defendants' (from in terms of two more than sure time months to months) damages. See, terms of noneconomic supra, ¶¶ 114-23. Defendants' various counsel told the Cause, 27, Images Power Times, Create N.Y. March Experts Say They Most 3; Carey Schwartz, Benedict at and John Recovery, See Little Chance Times, 9; N.Y. March at A a Dose Diagnosis With Grady, John Schwartz Denise Of 24, 2005, Religion, N.Y. Times, Dr. March at 20. Cranford away on passed May *51 court the
circuit that withdrawal in "impacts damages case," this "turns this case... down upside at this stage," changes the value "potentially [this] of case by dollars, millions of and "dramatically [18]" affects the of the insurance and positions companies Fund." To the effect of deny prejudicial these withdrawals is to deny reality.19 Furthermore, counsel for one defen- there was complained
dants no excusable neglect. The motion to withdraw the made previously admis- by sions was not motivated of discovery new evi- Instead, for dence. the basis the motion to withdraw the 18Attorney Paul for the Grimstad defense also made the following statement to circuit court: have, fact, upon prepared We in relied these admissions as we only upon part this case for trial. Not relied as them of our
preparation reported respective but we have to our clients when analyze, evaluate, we have been asked to to case in this terms of potential part value. We have used those as of admissions our evaluation.... 19 Cambridge See Zimmermann v. Counseling Corp., Credit (D. ("If 2008) F. Supp. 2d Mass. Defendants' attempt change to litiga- withdraw their admissions is ... a strategy... betray underlying purpose tion it would [requests admission] for allow of these withdrawal admis- discovery when sions has been conducted motions have and prepared on particular legal theory."); been in reliance a Branch Banking v. Corp., Trust Co. Deutz-Allis 120 F.R.D. (E.D.N.C. 1988): resources, fiscal, party otherwise, physical
When a directs its reasonably only to those issues it believes are the ones left to be resolved, change litigation abrupt an in the status of occa- by counsel, opposing early sioned motion occurred which had it likely distinctly on would a have effected different allocation of resources, only upon showing [Federal should allowed be 36(b) convincing Rule Procedure] of Civil Test is met clear evidence. April and June notes created four was admissions possession plaintiffs' in the counsel's were which affirmatively requests responded long he before stated, "Admis- Finman Professor As admission. or inattention of inadvertence the result sions are not litigant's deliberate, procedural of a niceties but supra, 421. It is hard to Finman, at choice." conscious key party neglect that made these excuse existing examining records first admissions without pertinent conferring care possession health with its Spring providers and Rehabilitation Health at Silver ("The supra, harmful more Kinsler, at 647 Center. See *52 upon may case, the impact a have an admission the uncovering attorney scrutiny devote to should an more good-faith qualifying objections drafting or answers denials."). oversight, "it would be nei- counsel's Given protect plaintiffs] [the just of at the risk nor ther fair reasonably harming" relied on the defendants who supra, Finman, at 424. admissions. Foley Judge was noted that It should be delay- hearing January 19, 2007
concerned at might fact, In ing the case. him from trial remove Foley Judge arrangements special made, will are unless judicial because of this case on remand handle not Attorney Additionally, Grimstad, Paul counsel rotation. Company Physician's of Insurance and for Dr. Bodner expert witness, has Ms. Luckett and the Wisconsin, like unsupported away. passed and The ill-advised now years essentially nullified the circuit court decision of expense money of the at the amounts of work and vast defendants. is not one circuit court's conclusion 139. The judge made after consid- could have reasonable
that a proper applying ering stan- facts the relevant supported Therefore, the record. not of law. It is dard this court should remand this case to circuit court prejudice. for determination Finally, requests ¶ 140. in order for for admission play pretrial useful to continue to role in effective discovery, parties upon rely binding must be able to they Therefore, effect admissions once made. are admissions must difficult Otherwise, be to withdraw. lawyers may making stop requests admission, for caus- ing litigation, costly discovery, needless and less- practice. majority opinion efficient trial case this altogether easy parties makes it too for to withdraw previously doing, their made In admissions. so majority tacitly diminishes the value effectiveness requests practice. for admission civil
V majority ¶ 141. The refuses to remand this mat- hearing plaintiffs' request ter a new on the light withdrawal the three admissions. In of that deci- multiple sion and other herein, factors discussed I respectfully dissent.