Luckett v. Bodner
| Citation | 769 N.W.2d 504,2009 WI 68 |
| Decision Date | 07 July 2009 |
| Docket Number | No. 2007AP308.,2007AP308. |
| Parties | Robin LUCKETT as Special Administrator of the Estate of Tywanda Luckett, Tyquone Luckett, Joe Bohannon, Shenara Bohannon minor(s) by their Guardian ad Litem, J. Michael End and State of Wisconsin Department of Health and Family Services, Plaintiffs-Respondents, v. Aaron C. BODNER, M.D., The Medical Protective Company, Aurora Sinai Medical Center and Physicians Insurance Company of Wisconsin, Inc., Defendants-Appellants-Petitioners, Physicians Insurance Company of Wisconsin, Inc., Prithipal S. Sethi, M.D., Medical College of Wisconsin Affiliated Hospitals, Inc. and Injured Patients & Families Compensation Fund, Defendants-Co-Appellants-Petitioners, David Paul Altman, M.D. and Wisconsin Patients Compensation Fund, Defendants. |
| Court | United States State Supreme Court of Wisconsin |
For the defendants-appellants-petitioners, Aaron C. Bodner, M.D. and Physicians Insurance Company of Wisconsin, Inc., there were briefs by Paul H. Grimstad, Ryan R. Graff, and Nash, Spindler, Grimstad & McCracken, Manitowoc, and oral argument by Scott L. Howie (Pro Hac Vice) and Pretzel & Stouffer, Chartered, Chicago, Ill.
For the defendants-co-appellants-petitioners, Prithipal S. Sethi, M.D., Medical College of Wisconsin Affiliated Hospitals, Inc. and Physicians Insurance Company of Wisconsin, Inc., there were briefs by Steven P. Sager and Sager, Colwin, Samuelsen & Associates, S.C., Fond du Lac, and oral argument by Steven P. Sager.
For the defendants-appellants-petitioners, Aurora Sinai Medical Center and The Medical Protective Company, and the defendants-co-appellants-petitioners, Injured Patients & Families Compensation Fund, there were briefs by Lori Gendelman, Laurie J. McLeRoy, and Otjen, Van Ert & Weir, S.C., Milwaukee, and Maria K. Schneider and Gutglass, Erickson, Bonville & Larson, Milwaukee, and oral argument by Scott L. Howie (Pro Hac Vice) and Pretzel & Stouffer, Chartered, Chicago, Ill.
For the plaintiffs-respondents there was a brief by J. Michael End, Jerome A. Hierseman, and End, Hierseman & Crain, LLC, Milwaukee, and oral argument by J. Michael End.
¶ 1
The defendants (physicians, hospitals, and insurers)1 seek review of an unpublished decision of the court of appeals affirming an order of the Circuit Court for Milwaukee County, Christopher R. Foley, Judge,2 in favor of the plaintiffs.3 The circuit court granted the plaintiffs' motion under Wis. Stat. § 804.11(2) (2005-06)4 to withdraw three admissions that the plaintiffs made in response to the defendants' request for admissions. The court of appeals affirmed the order of the circuit court.
¶ 2 The single issue presented for our review is whether the circuit court erroneously exercised its discretion in granting the plaintiffs' motion to withdraw the admissions that the plaintiffs made in response to the defendants' request.
¶ 3 The circuit court permitted the plaintiffs to withdraw three different admissions relating to whether Tywanda Luckett was in a persistent vegetative state. The first and third admissions concern Ms. Luckett's condition during the period from July 22, 2005, to October 2, 2005. The second admission concerns Ms. Luckett's condition during the period from September 29, 2000, to July 22, 2005.
¶ 4 The plaintiffs now do not wish to withdraw their first and third admissions. In their brief and during oral argument to this court, they stated that their affirmative responses to the defendants' first and third requests to admit are correct. In other words, the plaintiffs admit that Ms. Luckett was in a persistent vegetative state on July 22, 2005—the date of the plaintiffs' admissions—and that Ms. Luckett's persistent vegetative state was permanent on July 22, 2005, persisting until her death in October 2005.
¶ 5 The plaintiffs now seek to withdraw only their admission in response to the second request for admissions, namely that Ms. Luckett was in a persistent vegetative state from the time that she entered Silver Spring Health and Rehabilitation Center on September 29, 2000, until July 22, 2005, the date of the plaintiffs' admissions. The second admission covers the largest expanse of time and subjects the defendants to the largest exposure for liability. We consider the circuit court's decision without the plaintiff's concession of fact relating to the first and third admissions in this court.
¶ 6 We conclude that the circuit court did not erroneously exercise its discretion in permitting the plaintiffs to withdraw the admissions. We conclude that under Wis. Stat. § 804.11(2), withdrawal of the admissions will subserve the presentation of the merits of the action, and that the defendants did not show that they will be prejudiced in maintaining a defense on the merits by withdrawal of the admissions.
¶ 7 Accordingly, we affirm the decision of the court of appeals affirming the circuit court's order allowing the plaintiffs to withdraw the admissions. We remand the cause to the circuit court for further proceedings not inconsistent with this opinion.
¶ 8 We briefly summarize the relevant facts and report additional facts later in the opinion as we discuss the issue presented.
¶ 9 On August 4, 2000, Dr. Bodner performed a tubal ligation on Tywanda Luckett at her request. Within a short time a small mass was found in Ms. Luckett's abdomen near the tubal ligation site. After emergency surgery and post-operative care, Ms. Luckett suffered cardiac arrest and permanent severe brain damage. Upon discharge from the hospital on September 29, 2000, Ms. Luckett was transferred to a long-term care facility where she remained until her death.
¶ 10 On December 5, 2003, Ms. Luckett, her three minor children, and the Wisconsin Department of Health and Family Services filed a medical malpractice action against Dr. Aaron Bodner, Dr. Prithipal Sethi, Dr. David Chua, Dr. Jonathan Robinson, Dr. David Altman, Aurora Sinai Medical Center, the Medical College of Wisconsin Affiliated Hospitals, Physicians Insurance Company of Wisconsin, the Medical Protective Company, and the Wisconsin Patients' Compensation Fund. The complaint alleges, in essence, that the negligence of the defendant doctors caused Ms. Luckett to suffer severe hypoxic encephalopathy, a form of brain damage.
¶ 11 On June 22, 2005, Aurora Sinai Medical Center and the Medical Protective Company sent the plaintiffs three requests for admissions pursuant to Wis. Stat. § 804.11(1):5
¶ 12 The request for admissions was accompanied by two interrogatories and a request for production. The interrogatories and request for production applied only if the plaintiffs refused the request for admissions in whole or in part. They essentially required the plaintiffs to disclose any evidence supporting the position that Ms. Luckett was not in a persistent vegetative state.
¶ 13 The request for admissions and the interrogatories were obviously designed to eliminate a possible element of damages, namely pain and suffering for the described period. On July 22, 2005, plaintiffs' counsel responded in the affirmative to each of the three requested admissions.
¶ 14 On August 31, 2005, the circuit court entered a scheduling order, which provided that a final pretrial conference would be held on January 19, 2007, and that a three-week jury trial would commence on February 5, 2007. The circuit court ordered the parties to complete all discovery on or before the date of the final pretrial conference.
¶ 15 Ms. Luckett died on October 2, 2005.6
¶ 16 On January 18, 2007 (the day before the final pretrial conference and 18 months after the admissions), counsel for the plaintiffs e-mailed counsel for the defendants to inform them that plaintiffs' counsel 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]." Counsel explained that in final trial preparation, he had found the following documents suggesting that Ms. Luckett may not have been in a persistent vegetative state:
• A note written by Dr. John R. McGuire on April 11, 2001, stating that Ms. Luckett "was able to follow simple commands and nod her head `yes' or `no' to simple questions."
• A note written by Dr. Thomas Kidder on April 26, 2001, stating, "It is difficult to tell but I believe she is able to comprehend some of what is said to her. . . ."
• A note written by Dr. Kidder on June 21, 2001, stating that Luckett was "very frightened and fearful" and that Luckett seemed "to be able to indicate yes or no."
• A "swallow study report" of June 21, 2001, stating that Ms. Luckett "appeared very tentative and frightened."
¶ 17 Counsel for the plaintiffs apparently overlooked these items in 2,000 pages of medical records in making the admissions. The defendants had the same 2,000 pages of medical records.
¶ 18 At the final pretrial conference the following day, January 19, 2007, counsel for the plaintiffs orally moved to withdraw his prior admissions. Plaintiffs' counsel explained that these records indicate that Ms. Luckett was aware of what was going on. The circuit court gave counsel for the defendants an opportunity to respond to the plaintiffs' motion. Defense counsel argued that they would be prejudiced by the withdrawal of the admissions. All counsel, as well as the circuit court, agreed that if the circuit court granted the plaintiffs' motion to withdraw the admissions, the circuit court...
To continue reading
Request your trial
- Estate of Genrich v. Ohic Ins. Co.
- Kroner v. Oneida Seven Generations Corp.
-
Bostco LLC v. Milwaukee Metro. Sewerage Dist.
...MMSD was alleged to have damaged; merely being required to litigate, without more, does not demonstrate prejudice. See Luckett v. Bodner, 2009 WI 68, ¶ 43, 318 Wis.2d 423, 769 N.W.2d 504. ¶ 91 Furthermore, the itemization of relief informed MMSD of what relief was being sought, thereby appr......
-
Kieninger v. Crown Equip. Corp.
...federal judiciary can, and often does, provide helpful insights when it analyzes federal provisions analogous to our own. Luckett v. Bodner, 2009 WI 68, ¶ 29, 318 Wis. 2d 423, 769 N.W.2d 504 ("When ‘a state rule mirrors the federal rule, we consider federal cases interpreting the rule to be......
-
Wisconsin Supreme Court Justice Ziegler bumps Crooks from majority top spot.
...the opinions were well-crafted and easy to follow. But Rottier particularly criticized the Supreme Court's opinion in Luckett v. Bodner, 2009 WI 68, in which the court held it was proper for a trial court to permit a party to withdraw an admission on the eve of It is startling when you cons......