High court finds broad discretion

Listen to this article

Circuit courts have wide discretion in deciding whether to permit a party to withdraw an admission under sec. 804.11.

The Wisconsin Supreme Court on July 7 held that whether the opposing party is prejudiced, and whether to permit withdrawal if it is not, is within the trial court’s discretion.

In addition, the court held that, although delay and cost in the litigation may be prejudicial, it is not prejudice “on the merits” that would preclude withdrawal of the admission.

Steven P. Sager, of Sager, Colwin, Samuelsen & Associates, SC, in Fond du Lac, who represented some of the defendants, said he reads the decision as giving trial courts very broad discretion in permitting or denying withdrawal of admissions. “It will be extremely difficult to reverse with that kind of discretion,” Sager said.

J. Michael End, of End, Hierseman & Crain, LLC, in Milwaukee, who represented the plaintiff, agreed that, whatever the trial court decides to do will be given a lot of deference.

“The bottom line is, it is within the trial judge’s discretion,” End said. “It could have gone the other way in the trial court; there is no per se rule.”

Med Mal Case

The plaintiff, Tywanda Luckett, underwent a tubal ligation in 2000. She later suffered cardiac arrest and permanent severe brain damage.

A malpractice action was filed in 2003, and in 2005, Luckett’s estate admitted that she has been in a persistent vegetative state since 2000.

In 2007, the day before the final pretrial conference and 18 months after the admission, the estate informed the defendants that it was withdrawing the admission. Defendants objected, but the circuit court permitted the withdrawal, even though it meant the trial would have to be adjourned and discovery reopened.

The Court of Appeals granted leave to appeal the order, but affirmed. The Supreme Court granted review, but also affirmed, in an opinion by Chief Justice Shirley S. Abrahamson.

At issue is the second sentence of sec. 804.11(2), which states, “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.”

The court began by stating that determining whether or not prejudice exists is not a balancing test; instead, it requires a discretionary determination whether or not the party opposing withdrawal will suffer prejudice “on the merits.” If it will suffer prejudice on the merits, withdrawal of the admission is not allowed.

If the two statutory prerequisites are met, then the trial court has a second discretionary determination whether to allow withdrawal.

Prejudice

It was not disputed that withdrawal of the admission would serve the plaintiffs’ presentation of its case. At issue was prejudice.

The court acknowledged that permitting withdrawal would prejudice the defendants in that the trial would have to be delayed and additional discovery would be required.

However, the court found this insufficient to establish prejudice as a matter of law.

Instead, the court interpreted prejudice “on the merits” to mean prejudice as it relates to difficulty a party may face in proving its case.

“The fact that a trial must be adjourned, or that the time for discovery must be enlarged, does not necessarily mean that the non-moving party will suffer prejudice in maintaining the action or defense on the merits,” Abrahamson wrote.

Finding no erroneous exercise in discretion, either in the finding of prejudice on the merits, or in the decision to permit withdrawal, the court affirmed.

Justice Annette Kingsland Ziegler wrote a concurrence, joined by Justices Patience Drake Roggensack and Michael Gableman, to emphasize the high burden a party has in showing prejudice on the merits.

“It is difficult to determine how anything other than a paper review could have been conducted in 2005 [the date of admission] and the same is true for 2007 [the date of the withdrawal] or even at present,” Ziegler wrote.

Justice David T. Prosser dissented, finding that prejudice was shown in several ways. First, the defendants cancelled an expert witness who had been retained to analyze Luckett’s persistent vegetative state, after the admissions, while she was still alive. Second, a widely-recognized expert on persistent vegetative states, who had been retained, has now died.

“[I]n order for requests for admission to continue to play a useful and effective role in pretrial discovery, parties must be able to rely upon the binding effect of the admissions once they are made,” Prosser wrote. “The majority … makes it altogether too easy for parties to withdraw their previously made admissions. In so doing, the majority tacitly diminishes the value and effectiveness of requests for admission in civil practice.”