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  • June 13, 2017

    Sanctions for Failure to Admit - A Toothless Beast?

    Requests to admit are a frequently utilized tool in the litigation setting, but trial courts seem generally unwilling to impose sanctions for failure to admit. Are the standards in Wisconsin statutes too ambiguous – making threat of sanctions a toothless beast?

    Bruce R. Bachhuber

    Every litigation attorney knows requests to admit are a tool used to narrow the issues for trial.

    A request to admit may encompass any matter within the scope of Wis. Stat. section 804.01(2) regarding “statements or opinions of fact or of the application of law to fact.” Wis. Stat. § 804.11(1)(a).

    The effect of an admission is that the matter is “conclusively established unless the court on motion permits withdrawal or amendment. …” Wis. Stat. § 804.11(2). If there is no response to a request to admit within 30 days, the matter is deemed admitted. Wis. Stat. § 804.11(1)(b). If the request to admit is denied, and if the requestor thereafter proves the matter, that 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.” Wis. Stat. § 804.12(3).

    Bruce Bachhuber Bruce Bachhuber, U.W. 1983, is a shareholder with Hanaway Ross, S.C., Green Bay. His practice focuses primarily on plaintiffs’ personal injury.

    “The rule does not prohibit requests concerning ‘ultimate facts,’ nor does it matter that a plaintiff bears the burden of proof on the issues that he requests the defendants to admit. … It is also irrelevant that a request seeks an admission which would be dispositive of the entire case.” Schmid v. Olsen, 111 Wis. 2d 228, 236, 330 N.W.2d (1983) (citations omitted).

    Admissions “can foreclose all pertinent issues of fact on a motion for summary judgment.” Bank of Two Rivers v. Zimmer, 112 Wis. 2d 624, 631, 334 N.W.2d 230 (1983).

    The Courts’ Broad Discretion

    At first blush, it appears that a response to a request to admit will require a careful, deliberate effort because of the risk that the court will order an award of attorney fees and costs.

    However, section 804.12(3) goes on to say:

    "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."

    Id. (Emphasis added).

    In short, the court has broad discretion to decide whether attorney fees and costs should be awarded upon failure to admit.

    In the case Michael A. P. v. Solsrud, 178 Wis. 2d 137, 502 N.W.2d 918 (Ct. App. 1993), the court of appeals applauded a trial court award of more than $78,000.00 against the denying party for failure to respond affirmatively to requests to admit which were subsequently proven at trial. The appellate court stated, “Such vigorous enforcement is exactly what the legislature intended in sec. 804.12: One who abuses the rules of discovery as a planned strategy must be made to suffer the financial consequences of his or her misconduct.” Id. at 156.

    The Michael A. P. decision sent a message to litigation counsel. However, despite this stern warning and the potential opportunities for obtaining these sanctions against recalcitrant parties, requests to admit have not been widely used.

    “Of all the major discovery devices – interrogatories, document production requests, depositions and requests for admissions – requests for admission are the least utilized. This is true despite the fact that requests for admission have been praised by practitioners and academicians alike. In cases where discovery is used, requests for admission comprise only 5.6% of all discovery requests filed, compared to oral deposition notices and interrogatories, which comprise 43.1% and 35.4%, respectively, of all discovery requests.”

    Kinsler, J., Requests for Admission in Wisconsin Procedure: Civil Litigation's Double-edged Sword, 78 Marq. L. Rev. 625 (1995).

    According to Kinsler, attorneys surveyed in conjunction with his article were unsatisfied with the request to admit procedures largely because it is too easy to avoid the consequences of a denial, the courts did not enforce the sanctions, and there was little a court could do concerning responses to requests to admit before trial. Thus, requests were used primarily to authenticate documents. Id. at 630-31. This is routinely done by defense counsel who submit the applicable insurance policy together with a set of requests to admit.

    Requests to Admit in Injury Litigation

    In the context of injury litigation, requests to admit are commonly used by plaintiffs’ counsel to obtain admissions concerning reasonable and necessary medical expenses arising from injuries allegedly caused by the occurrence.

    Defendants will frequently admit the service provided, the amount of the charges, and that the charges are reasonable in amount, but deny that they were necessarily incurred to treat injuries arising from the occurrence at issue. The facts admitted are certainly helpful because they eliminate the need for producing witnesses and going through tedious testimony describing each charge and its connection to the service provided.

    However, plaintiffs are required to produce expensive expert testimony from a medical provider demonstrating that the injury, which is the subject of treatment, was caused by the occurrence. If the plaintiff succeeds in proving these matters at trial and seeks an award of costs and attorney fees incurred in proving the issue, the defense will frequently raise section 804.12(3)(c) (“the party failing to admit had reasonable grounds to believe that he or she might prevail on the matter”) as a defense to the demand.

    Addressing Enforcement

    There are few published Wisconsin cases that address enforcement of a failure to admit through an award of attorney fees and costs.

    The Wisconsin Supreme Court is of the view that federal decisions construing the procedural counterparts to the Wisconsin Rules of Civil Procedure are persuasive, but are not controlling. Wilson v. Continental Ins. Cos., 87 Wis. 2d 310, 316, 274 N.W.2d 679 (1979). The language of section 804.11 was adopted from FRCP Rule 36. Bank of Two Rivers v. Zimmer, 112 Wis. 2d 624, 630, 334 N.W.2d 230 (1983). In addition, the court of appeals has stated that because section 804.12(3) is almost identical to the language in FRCP 37(c), federal case law construing the federal rule is “instructive.” Michael A.P. v. Solsrud, 178 Wis. 2d 137,148, 502 N.W.2d 918.

    Thus, federal court decisions can be a fertile area when searching for decisions that apply sanctions for failure to admit.

    For example, in Marchand v. Mercy Medical Ctr., 22 F.3d 933, 936 (9th Cir. 1994), the plaintiff, the victim of alleged medical negligence, sought expenses from a doctor who refused to admit his treatment failed to comply with the applicable standard of care and caused quadriplegia. The Ninth Circuit Court of Appeals affirmed a district court award of $205,798.34 in fees and costs against the defendant physician for the failure to admit. Part of the rationale for affirmance was the court’s observance that:

    "Parties may not view requests for admission as a mere procedural exercise requiring minimally acceptable conduct. They should focus on the goal of the Rules, full and efficient discovery, not evasion and word play. … In this case, [the defendant] gave misleading answers to requests for admission that significantly affected the cost of [plaintiff’s] prosecution and contravened the goal of full discovery."

    Id. at 936-37 (citation omitted).

    In House v. Giant of Md., LLC, 232 F.R.D. 257, 260 (E.D. Va. 2005), the district court found that:

    "Defendants’ answers to plaintiff's reasonableness and causation requests for admission [concerning medical expenses] plainly do not comply with the requirements of Rule 36(a). Among other things, defendants did not make "reasonable inquiry" into either issue prior to serving their answers. They simply postponed any inquiry to the end of the discovery period when expert depositions normally take place. The inadequacy of defendants' answers was compounded by the fact that they were never supplemented."

    The court concluded:

    "Defendants’ answers reflect folklore within the bar which holds that requests for admission need not be answered if the subject matter of the request "is within plaintiff's own knowledge," "invades the province of the jury," "addresses a subject for expert testimony," or "presents a genuine issue for trial." A favorite excuse for not answering requests for admission in a contract case is that "the document speaks for itself." It is common practice to deflect requests to admit the genuineness of documents with answers such as "my client is not the custodian of this record." The folklore further holds that a litigant will always have the chance to amend his answer before sanctions can be imposed. As the authorities set forth in this Opinion demonstrate, the folklore is wrong.
    "The party to whom requests for admission are propounded acts at his own peril when answering or objecting. Gamesmanship in the form of non-responsive answers, vague promises of a future response, or quibbling objections can result in the request being deemed admitted or in a post-trial award of monetary sanctions without prior opportunity to correct the deficiency. Therefore, the only safe course of action for counsel is to adhere to the plain language of Rule 36(a). …"

    Id. at 262. The District Court awarded fees and costs to the plaintiff for defendant’s failure to admit.

    Being Careful and Deliberate

    In retrospect, it is wise to be careful and deliberate when answering requests to admit because:

    1. the court has broad discretion when evaluating enforcement of sanctions for a failure to admit;

    2. there are strong policies at play that encourage compliance with the discovery rules; and

    3. there is plenty of authority supporting more vigorous application of the sanctions.

    A substantial award against your client can lead to a deterioration of the attorney/client relationship, loss of a client, and accusations made against counsel.

    This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section web pages to learn more about the benefits of section membership.

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