Request for Admissions: A Blessing and a Curse
Perhaps the least understood and the most abused weapon in the discovery arsenal may be the request for admissions found within Wis. Stat. § 804.11. A request for admissions can be both a blessing and a curse. One can never be certain that sanctions will not be imposed for an inappropriate denial. The goal of all discovery is to limit issues for trial and to determine the issues that are actually in dispute. Plaintiff’s counsel will sometimes serve a request for admissions with the summons and complaint. Parties with subrogated interests often serve requests early in the case. Plaintiff’s counsel has had the case for a considerable period of time before filing suit and has far more information regarding the claims and potential defenses available than the insurance company or defense counsel. Defendants are reluctant to make admissions without significant formal discovery. Likewise, plaintiffs are reluctant to make admissions at any time in the litigation.
Defense counsel may serve a request for admissions early in the case to test questionable claims in an attempt to determine the “real” issues to avoid needless discovery. These requests are often met with a denial couched with objections because plaintiff wants the flexibility to deal with what is to be revealed in formal discovery. When a request for admissions is received, frequently encountered responses and objections include:
- The request can neither be admitted nor denied because the party does not have sufficient information to respond and discovery is ongoing.
- The request seeks expert testimony and experts will be identified pursuant to the scheduling order.
- The request calls for expert testimony and subject to the objection, deny.
- The request calls for speculation regarding what will happen in the future.
- The party reserves the right to modify, supplement, or amend the response.
None of these responses is procedurally correct for the reasons discussed below. The typical response from both sides is to deny the request. When the case is settled, sanctions available for a failure to admit become moot. However, when a case is likely to go to trial, a request for admissions can be an effective tool to limit issues. This article discusses procedural methods for dealing with a request for admissions.
II. The Statute
Wisconsin Stat. § 804.11(1)(a) deals with the request for admissions and provides as follows:
[A] party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of s. 804.01 (2) set forth in the request that relate to statements or opinions of fact or of the application of law to fact....
The required response to a request for admissions, where the requested matter is not simply being admitted, is set forth in Wis. Stat. § 804.11(1)(b) as follows:
The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that he or she had made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny....
III. The Required Response
The statute requires a response that will fairly meet the matter requested and requires an admission or denial. An admission or denial can be qualified. The statute says that a portion of a request may be admitted and a portion denied. If a party is without knowledge or information sufficient to properly respond to a request, the statute requires that the efforts a party has made to acquire the information must be stated. Responses from the defense perspective may include the following:
- An under oath statement from the plaintiff is yet to be received and the request for a deposition has been or will be made.
- Consultation with expert witnesses is underway and a response will be forthcoming when consultation is complete and/or pursuant to the requirements of the scheduling order.
- Certified copies of all the plaintiff’s medical records have not been received despite requests that have been made for them.
In sum, the statute requires an admission, a denial, or if the party does not have the information, an explanation of the effort made to obtain it.
IV. Timing of the Response
The statute generally requires a response to a request for admissions within thirty days.1 Plaintiffs sometimes submit a request for admissions regarding the causal connection or reasonableness and necessity of medical expenses prior to defense counsel receiving all of the medical records, before discovery depositions of the plaintiff and/ or plaintiff’s experts, or before a defense medical review and/or examination is completed. When a request for admissions is served early in the case, defense counsel may need to acquire information which simply cannot be obtained in the thirty-day statutory window.
Two approaches may be undertaken to gain additional time for a response. An extension to respond may be sought from opposing counsel. This will, of course, depend on the amenability of counsel to such a request. When an extension to respond to the request cannot be obtained by stipulation, the other approach is to make a motion pursuant to Wis. Stat. § 801.15(2) asking the court to extend the time to respond without the penalty of a sanction. For requests that are served early in the case, courts may be receptive to the argument that more time and additional information is needed to respond to the request. A party should not be required to provide a premature denial and later be subject to sanctions or required to move to withdraw the admission or denial. This is especially true for defendants. A reasonable argument in support of the motion is that plaintiffs have often had their case for years before filing suit while defense counsel is just beginning to obtain information regarding damages, causation, and sometimes even liability.
V. Challenging the Sufficiency of the Response
Defense counsel may serve a request for admissions related to liability, damages, or both. The purpose of an early request for admissions from the defense is to determine the issues that are actually in dispute in an effort to avoid needless and expensive discovery. Plaintiff may claim that one or more of his or her medical conditions were caused by the defendant’s negligence when those medical conditions clearly appear to be unrelated. This is an excellent area for requests. There may also be appropriate requests related to the applicability of industry standards, codes, provisions, or guidelines. A request for admissions to address what appear to be unsupportable claims may be served in an effort to limit the issues and to avoid the time and expense for discovery that should be unnecessary.
When the response is an objection or includes a qualification, the party seeking the request has the right to challenge the sufficiency of the response. The mechanism for challenging the appropriateness of the response is found in Wis. Stat. § 804.11(1)(c), which provides as follows:
The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with this section, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. Section 804.12 (1) (c) applies to the award of expenses incurred in relation to the motion.
For example, an objection that the request calls for expert opinion is technically improper. Because Wisconsin’s request for admissions statute was adopted from and is nearly identical to its federal counterpart, Fed. R. Civ. P. 36, Wisconsin courts look to federal law for guidance when analyzing Wis. Stat. § 804.11(2).2 At least one federal court has determined in response to motions for protective orders against a request for admissions that “[a] request is not objectionable because it relates to matters known by a third party.”3
Plaintiffs’ counsel have access to plaintiffs’ healthcare providers and are able to obtain the information sought from the treating physicians. Defense counsel do not have such access. Plaintiffs have the burden of proof and should have access to proof of the claims alleged. The only avenue open to defendants for acquiring the information sought by the request is through formal discovery.
An attempt to reserve the right to modify or supplement a response is also an insufficient response and is contrary to the express language of the statute. The purpose of a request for admissions is to expedite trial by establishing certain material facts as true, thus narrowing the issues for trial. Allowing a party to reserve the right to change their response at a later date undermines this purpose. Wisconsin Stat. § 804.11(2) provides:
Effect of admission. Any matter admitted under this section is conclusively established unless the court on motion permits withdrawal or amendment of the admission. The court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits. Any admission made by a party under this section is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding.
VI. The Conclusive Effect of Admissions and the Criteria for Withdrawal
Unlike answers in depositions and answers to interrogatories, admissions in response to a request for them conclusively establish the fact or opinion admitted unless the court permits withdrawal of the admission at a later date.4 A request for admissions, once admitted, is a judicial admission and judicial admissions trump evidence.5 This is especially important when there is an admission of liability. “If the answer to a complaint or to a request for admissions admits liability, the defendant cannot then deny liability on the ground that there is evidence that the admission was mistaken.”6
However, the court can allow a party to withdraw its admission at a later date. Two requirements must be met before an admission may be withdrawn: (1) presentation of the merits of the action must be subserved; and (2) the party who obtained the admission must not be prejudiced by the withdrawal.7
For example, in Luckett v. Bodner, a patient and her family brought a medical malpractice claim against physicians and hospitals after the patient suffered a cardiac arrest and severe brain damage following a tubal ligation procedure.8 Aurora Sinai Medical Center and its insurer sent a request for admissions in order to confirm that the plaintiff patient was in a persistent vegetative state, had been so since she was admitted to a long-term care facility, and that the persistent state was permanent.9 The purpose was to eliminate recovery of damages for pain and suffering for the described period. Plaintiffs admitted each of the three requests.10
The day before the pre-trial conference and 18 months after the requests were admitted, plaintiffs’ counsel wrote to defense counsel withdrawing the admissions. Counsel explained that during final trial preparation, he found documentation which suggested that the plaintiff may not have been in a persistent vegetative state.11 The plaintiffs moved to withdraw the admissions and defendants objected on the grounds that they would be prejudiced as they were not prepared to litigate the issue of whether the plaintiff had been in a persistent vegetative state.12
The Wisconsin Supreme Court allowed the admissions to be withdrawn. The court noted, “the lack of prejudice to the nonmoving party in maintaining the action or defense on the merits is a prerequisite of withdrawal under Wis. Stat. § 804.11(2), not a policy goal that may be weighed or balanced against other goals.”13 “The prejudice must be in addition to the inherent consequence that the party will have to prove something that would have been deemed conclusively established if the opposing party were held to its admissions.”14 It is in the court’s discretion to determine that the two requirements are met before permitting the withdrawal of an admission.
A potential benefit to a request for admissions is that if the opposing party denies the request and the moving party ultimately proves it should have been admitted, the moving party is entitled to costs. Wisconsin Stat. § 804.12(3) provides as follows:
Expenses On Failure To Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under s. 804.11, and if the party requesting the admission thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the requesting party the reasonable expenses incurred in the making of that proof, including reasonable attorney fees. The court shall make the order unless it finds that (a) the request was held objectionable pursuant to sub. (1), or (b) the admission sought was of no substantial importance, or (c) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or (d) there was other good reason for the failure to admit.
The statute allows the moving party to request an order from the court that the other party pay the requesting party the reasonable expenses incurred in making the proof, including reasonable attorney fees. This amount can be significant. For example, consider the situation where the plaintiff and defendant are in a minor accident. There has been no care and treatment for two years. Defense counsel submits a request that plaintiff admit that no claim for future medical expenses will be made. The request is denied. Defense counsel deposes the treating physicians identified by the plaintiff in his expert disclosure and the physicians all agree that they cannot state to a reasonable degree of medical probability that the plaintiff will require future treatment. In this situation, the defense should move the court for all the fees and costs associated with the physician depositions. This could end up being quite costly for the plaintiff. That said, some courts may still be reluctant to impose sanctions even when they clearly appear applicable.
A request for admissions can be used to limit issues in an effort to avoid discovery related to issues that seem readily apparent early in the case. If a party persists in pursuing an issue for which the admission sought is denied, sanctions in the form of actual costs of proof may be available. The use of a request for admissions early in the case can result in focusing the issues or potentially avoiding unnecessary costs. If a denied request is proven, sanctions should be awarded. The benefit of such a request is greater in cases where liability is denied. Despite this, defendants may still encounter reluctance by courts to impose sanctions in these circumstances.
William R. Wick is a defense lawyer who concentrates his practice in the areas of medical malpractice and general personal injury litigation. He received his B.S. in 1970 from Carroll College, his M.P.A. in 1972 from the University of Southern California, and his J.D. in 1974 from Marquette University Law School. Mr. Wick is Certified by the American Board of Trial Advocacy as a Civil Trial Specialist. He is a member of the State Bar of Wisconsin and a past chair of the Litigation Section. Mr. Wick has been President of the Civil Trial Counsel of Wisconsin now known as the Wisconsin Defense Counsel. Mr. Wick is a fellow of the American College of Trial Lawyers and a member and past President of the Wisconsin Chapter of the American Board of Trial Advocates (ABOTA). He has also been selected to be included in Best Lawyers in America for the last ten years. Mr. Wick is a frequent lecturer on topics involving civil litigation.
Katelyn P. Sandfort has had an interest in litigation since working as a teenager at an insurance defense firm in her hometown of Wausau, Wisconsin. She attended the Carlson School of Management at the University of Minnesota followed by the University of Wisconsin Law School. Katelyn is a member of the State Bar of Wisconsin, the Manitowoc County Bar Association, and the Wisconsin Defense Counsel. She is licensed in the State of Wisconsin and in the Eastern and Western District Courts.
Katelyn’s practice covers an array of insurance defense litigation. This includes, but is not limited to, personal injury defense, construction defect litigation, and coverage issues. She also has a special interest in representing health care providers in medical malpractice lawsuits and licensing matters.
In her personal time, Katelyn enjoys cooking, trail bike riding, reading, and spending time with friends and family.
1 If the request for admissions is served with the Summons and Complaint or in the days immediately thereafter, the statute provides for increased time to respond. “[A] defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon the defendant.” Wis. Stat. § 804.11(1)(b).
2 See Mucek v. Nationwide Communications, Inc., 2002 WI App 60, ¶ 29, 252 Wis. 2d 426, 643 N.W.2d 98.
3 Al-Jundi v. Rockefeller, 91 F.R.D. 590, 593 (W.D.N.Y. 1981)
4 Micro-Managers, Inc. v. Gregory, 147 Wis. 2d 500, 511, 434 N.W.2d 97 (1988)
5 Murrey v. United States, 73 F.3d 1448, 1455 (7th Cir. 1996).
7 Luckett v. Bodner, 2009 WI 68, ¶ 30, 318 Wis. 2d 423, 769
8 Id., ¶ 9.
9 Id., ¶ 11.
10 Id., ¶ 12.
11 Id., ¶ 16.
12 Id., ¶ 18.
13 Id., ¶ 30.
14 Id., ¶ 70.