When Are Answers to Requests to Admit Binding? The Aftermath of Luckett v. Bodner
In the course of litigation, attorneys routinely rely on requests for admissions as part of their overall discovery strategy. Under Wisconsin Statutes § 804.11(1)(a), “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, including genuineness of any documents described in the request.”
The widely recognized purpose for this discovery technique is to “obtain from a party admissions of facts and other items of proof over which there is no dispute and which can be costly and time consuming to prove at trial.” While a party might expect an admission to be binding, the statute does contain an escape clause: “Any matter admitted under this section is conclusively established unless the court on motion permits 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.”
The Wisconsin Supreme Court, in Luckett v. Bodner, recently considered the effectiveness of admissions under § 804.11 when the admitting party seeks relief therefrom. The Luckett Court established a surprisingly high burden on the proponent of a request to admit to prove he/she will suffer prejudice by withdrawal of an admission. This article will explain the Luckett decision and its ramifications, as well as offer suggestions of how practitioners can best obtain binding admissions from the opposing party.
II. Luckett v. Bodner: An Erosion of the Effectiveness of Requests for Admissions.
Luckett v. Bodner is a medical malpractice action. Plaintiff, Tywanda Luckett, alleged that defendant physicians negligently caused Ms. Luckett to suffer severe hypoxic encephalopathy, a form of brain damage, stemming from an August 4, 2000, tubal ligation procedure. On September 29, 2000, Ms. Luckett was discharged from the hospital to Silver Spring Health and Rehabilitation Center, where she remained until her death.
This action was commended on December 5, 2003. During the course of the litigation, on June 22, 2005, defendants served plaintiff with the following request for admission:
REQUEST TO ADMIT NO. 2: Admit that Tywanda Luckett has been in a persistent vegetative state since she was admitted to the Silver Spring Health and Rehabilitation Center.
The purpose of Request No. 2 was to determine if plaintiff sought damages for conscious pain and suffering, and to eliminate that claim. Plaintiff’s counsel served answers on July 22, 2005, which admitted the subject request.
The Court’s August 31, 2005 Scheduling Order set a final pre-trial conference for January 19, 2007, and three-week jury trial commencing February 7, 2007. All discovery was to be concluded by January 19, 2007.
On January 18, 2007, plaintiff’s counsel e-mailed defense counsel stating that plaintiff was “withdrawing [his] admission that [Ms. Luckett] was in a persistent vegetative state from the time of her admission to Silver Spring [Health and Rehabilitation Center].” Plaintiff’s counsel explained that, during trial preparations, he had located four medical records, all dating between April and June 2001, suggesting that Ms. Luckett may not have been in a persistent vegetative state. Plaintiff’s counsel overlooked those items in the 2,000 pages of medical records. Counsel acknowledged the admissions were his “mistake” which was not discovered until “final trial preparation.”
At the January 19, 2007 final pretrial conference, counsel orally moved to withdraw the prior admissions. Defense counsel objected, contending defendants would be prejudiced by the withdrawal. All agreed that the trial must be adjourned if the motion were granted. The trial court granted the motion.
Defendants sought immediate leave to appeal the non-final order, which leave was granted. The Court of Appeals affirmed the trial court in a split decision.
The Wisconsin Supreme Court, construing Wisconsin Statutes § 804.11(2) and Federal Rule of Civil Procedure 36(b), concluded that a circuit court has discretion to permit withdrawal of an admission if both statutory requirements are satisfied: “(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.”
The Court easily decided the first factor, i.e., whether permitting the withdrawal would allow a full presentation on the merits. Withdrawal would allow plaintiff to present the newly discovered evidence that plaintiff was capable of and did experience pain while at Silver Spring. The merits of the action would be subserved if the jury considered that evidence and, if liability is established, awarded damages for that loss. So long as withdrawal of the admissions “will aid in the ascertainment of the truth and the development of the merits,” a trial court will not err in allowing the withdrawal.
The Court next proceeded to impose a high standard to show sufficient prejudice to prevent withdrawal of an admission. “The ‘prejudice’ contemplated by Wisconsin Statutes § 804.11(2) ‘is not simply that a party [obtaining the admissions] would be worse off without the admissions.” “To demonstrate prejudice in maintaining the action or defense on the merits, the party who obtained the admission ‘must show prejudice in addition to the inherent consequence that the party will not have to prove something that would have been deemed conclusively established if the opposing party were held to its admissions.”
In order to establish prejudice, the party opposing the motion to withdraw bears the burden. “Prejudice in maintaining the action or defense on the merits ‘relates to the difficulty a party may face in proving its case, e.g., caused by the unavailability of key witnesses, because of the sudden need to obtain evidence with respect to questions previously answered by the admissions.”
In Luckett, none of the arguments of prejudice asserted by defendants satisfied the Court. First, defendants contended that adjournment of the trial for purposes of additional discovery was “prejudice as a matter of law.” The Court emphasized that the trial court’s determination of prejudice is discretionary, and the fact that a finding of prejudice due to trial adjournment in one case would not necessitate a finding of no prejudice in another.
Second, the Court emphasized the focus should be on “the prejudice that the non-moving party would suffer at trial.” Defendants, forced to acknowledge that an adjournment would allow time for discovery and trial preparation, contended that they had foregone opportunities to procure relevant evidence that could no longer be obtained. Specifically, defendants lost the ability to perform an independent medical examination of plaintiff, who died October 2, 2005. Further, defendants lost the ability to present a leading expert witness who died between the date of the admissions and the date of the motion to withdraw. Defendants cut short their expert’s evaluation of whether plaintiff was in a persistent vegetative state based on the admissions. Moreover, defendants claim the passage of time impaired their capacity to depose health care professionals while their memories were still fresh.
The Court rejected all such theories. Had the plaintiff denied the requests to admit in July 2005, there was still no way to go back and examine and evaluate Ms. Luckett’s condition between September 29, 2000 and July 22, 2005. Defendants had the opportunity to perform an IME before July 22, 2005, and elected not to do so. Likewise, defendants could have deposed medical witnesses prior to July 22, 2005, when the issue was still in dispute. Since the medical records supporting a non-vegetative state were from 2001, the witnesses’ memories were equally challenged in 2005 or 2007.
Third, the Court made clear that the defendants’ potential increased exposure to a money judgment is not a relevant consideration in the prejudice analysis. “The party opposing a motion to withdraw . . . ‘must show prejudice in addition to the inherent consequence that the party will now have to prove something that would have been deemed conclusively established is the opposing party were held to its admissions.” If defendants are placed in the same position as if the admission had not been mistakenly made, then no prejudice occurs.
Fourth, the court cannot consider the conduct of the movant and whether their original admission was the product of excusable neglect.
Accordingly, the Court held that the trial court did not erroneously exercise its discretion in granting the motion to withdraw the admissions.
III. Practice Considerations
There is a clear value to litigants to obtain binding admissions or stipulations pre-trial on which the parties can rely through trial. The Luckett opinion should cause counsel to consider a number of factors and tools when seeking admissions.
First, it must be emphasized that whether to grant a motion to withdraw admissions is at the discretion of the trial court. Luckett simply affirmed the trial court, finding no erroneous exercise of discretion. Given this deferential standard of review, trial courts retain considerable flexibility to deny a motion to withdraw. In fact, two prior Wisconsin Court of Appeals opinions affirmed discretionary decisions denying such motions. Given this most deferential standard of review, it is imperative to put forth a compelling argument and prevail at the trial court level.
When arguing such a motion, reference to federal court decisions may prove effective. The Luckett Court acknowledged that § 804.11(2) mirrors Federal Rule of Civil Procedure 36(b), such that Wisconsin courts may seek guidance from cases interpreting Rule 36(b). The critical dispute is almost always whether prejudice will arise from withdrawal. When opposing a motion to withdraw, the following arguments should be considered.
Federal court opinions generally hold that “the prejudice contemplated by Rule 36(b) … relates to the difficulty a party may face in proving its case.” The unavailability of a key witness, because of the sudden need to obtain evidence with respect to the questions previously deemed admitted, has been deemed prejudicial. The routine destruction of records after a period of time, which records could have been obtained but for admissions eliminating the need for such documents, works a sufficient prejudice on the requestor to justify denial of a motion to withdraw admissions.
A court is more likely to find prejudice if the opposing party was lulled into reliance upon the admissions due to the movant’s failure to timely act. Moreover, the timing of the motion to withdraw can affect the determination of prejudice. If a party waits until trial begins, he/she faces a more restrictive standard that a movant pre-trial. Where the motion is made within eight days of trial, it is not error to find that withdrawal of admissions would cause prejudice. If the admissions stand for an extended period, during which summary judgment and discovery deadlines lapse, courts have found prejudice.
Second, given the real risk that favorable admissions can be withdrawn in accordance with Luckett, it is worthwhile to consider whether alternative mechanisms exist which might more effectively bind the parties. Stipulations of fact for purposes of trial should be considered. In general, as provided by Wisconsin Statutes § 807.05, parties may stipulate to facts at any time, and may present the stipulation to the Court for approval in the form of an order. “A trial court may totally accept or reject a stipulation presented by the parties for its approval.”< “Upon the circuit court’s approval of the recommended stipulation, it becomes the court’s judgment.”
A stipulation approved by the Court places the parties in a different posture. Relief from these stipulations is only through Wisconsin Statutes § 806.07. Unlike § 804.11(2)(b), the burden is on the party seeking relief from the admitted facts to prove excusable neglect, mistake, fraud, or another of the statutory grounds. The prejudice to the non-moving party is no longer at issue. Thus, it is much more likely that the circuit court will bind a party to a stipulation.
Of course, there is not a mechanism, comparable to requests for admissions, to compel the opposing party to stipulate to certain facts. Stipulations generally require the cooperation of counsel or the intervention of the trial court in the interests of narrowing the issues for trial.
Third, even where the court permits withdrawal of admissions, the adverse party may have some remedy. In Estell v. Williams Scotsman, Inc, the United States District Court, for the Northern District of Oklahoma, agreed that plaintiff’s counsel would have conducted depositions differently had he known the defendant’s admissions were to be withdrawn. The court not only permitted a second deposition of a witness, but also ordered the defendant to pay for that portion of the deposition attributable to the mistaken admission. In cases where the timing of the withdrawal works a practical prejudice on the opposing party, it is not unreasonable to seek fees and costs pursuant to §§ 802.10(7), 805.03, and 804.12(3).
As noted by the dissent in Luckett, “in order for requests for admission to continue to play a useful and effective role in pretrial discovery, parties must be able to rely on the binding effect of the admissions once they are made.” The Luckett opinion certainly enables trial courts to grant relief from prior admissions in situations where counsel would argue extreme prejudice to their clients. Reliance on admissions, to the extent that other discovery, investigation, or litigation is foregone, presents a real risk. Yet, if those efforts are pursued, the likelihood of showing prejudice is even less likely. Ultimately, the uncertainty created by Luckett is likely to limit the use and effectiveness of requests for admissions.
 Wis. Stat. § 804.11(1)(a).
 Luckett v. Bodner, 2009 WI 68, ¶ 86, 318 Wis. 2d 423, 769 N.W.2d 504 (Prosser, J., dissenting).
 Wis. Stat. § 804.11(2).
 Luckett, 2009 WI 68.
 Id. ¶¶ 8-15.
 Id. ¶ 11.
 Id. ¶ 13.
 Id. ¶ 93 (Prosser, J., dissenting).
 Id. ¶ 14.
 Id. ¶ 17.
 Id. ¶ 16.
 Id. ¶¶ 18-20.
 Id. ¶ 23. The Wisconsin Court of Appeals decision is found at Luckett v. Bodner, 2008 WI App 83, 312 Wis.2d 480, 751 N.W.2d 902 (2008) (unpublished).
 Luckett, 2009 WI 68, ¶ 27
 Id. ¶¶ 38-41.
 Id. ¶ 41.
 Id. ¶ 43.
 Id. ¶ 44.
 Id. ¶ 47.
 Id. ¶ 48.
 Id. ¶ 56.
 Id. ¶ 58.
 Id. ¶¶ 58-64.
 Id. ¶¶ 65-73.
 Id. ¶ 69.
 Id. ¶ 70.
 Id. ¶ 71.
 Id. ¶ 72.
 The binding effect of requests to admit is what sets that discovery tool apart from all other discovery techniques, and, “in effect, places admissions on par with judicial admissions.” Id. ¶ 126 (Prosser J., dissenting).
 Id. ¶ 26; Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007).
 Mucek v. Nationwide Communications, Inc., 2002 WI App 60, 252 Wis. 2d 426, 643 N.W.2d 98; Estate of Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857.
 Luckett v. Bodner, 2009 WI 68, ¶ 28.
 Raiser v. Utah County, 409 F.3d 1243, 1246 (10th Cir. 2005).
 Securities & Exchange Comm. v. Kwak, 2008 WL 2705417, 2008 U.S. Dist. LEXIS 10201, No. 3:04-cv-1331 (D. Conn., Feb. 12, 2008).
 Essex Builder’s Group, Inc. v. Amerisure Insurance Co., 230 F.R.D. 682, 687 (D. Fla. 2005)
 Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007).
 Wis. Stat. § 805.07.
 Milwaukee Women’s Medical Service, Inc. v. Scheidler, 228 Wis.2d 514, 524, 598 N.W.2d 598 (Ct. App. 1999).
 Id. It is also illustrative to refer to Wisconsin Statutes § 767.10. In Wisconsin, by statute, parties may stipulate to facts as part of divorce proceedings. That stipulation can be withdrawn until such time as the Court adopts the stipulation. Thereafter, it becomes a decision that has the same effect as one made on contested issues. Hottenroth v. Hetsko, 2006 WI App 249, ¶¶ 25-30, 298 Wis.2d 200, 727 N.W.2d 38 (Ct. App. 2006).
 Scheidler, 228 Wis.2d at 524.
 Wis. Stat. § 806.07; Hottenroth, 2006 WI App 249, ¶¶ 25-30,.
 Estell v. Williams Scotsman, Inc., 228 F.R.D. 668, 670-71 (N.D.Okla. 2005).
 Wis. Stat. §§ 802.10(7), 805.03, and 804.12(3).
 Luckett, 2009 WI 68, ¶ 140 (Prosser J., dissenting).