Luckett v. Bodner

2009 WI 68, 769 N.W.2d 504, 318 Wis. 2d 423, 2009 Wisc. LEXIS 277

• Court: Wisconsin Supreme Court
• Decided: July 7, 2009
• Docket: 2007AP308
• Status: Published

Opinions

SHIRLEY S. ABRAHAMSON, C.J.

¶ 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 The defendants (physicians, hospitals, and insurers)¹ seek review of an unpublished decision of the court of appeals affirming an order of the Circuit Court for Milwaukee County, Christopher R. Foley, Judge,² in favor of the plaintiffs.³ The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 plaintiffs 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.

I

¶ 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. § 804.1K1):⁵

REQUEST TO ADMIT NO. 1: Admit that Tywanda Luckett is presently in a persistent vegetative state.

REQUEST TO ADMIT NO. 2: Admit that Tywanda Luckett has been in a persistent vegetative state since she was admitted to Silver Spring Health and Rehabilitation Center [a long-term care facility that admitted Ms. Luckett on September 29, 2000, shortly after she suffered brain damage],

REQUEST TO ADMIT NO. 3: Admit that the persistent vegetative state of Tywanda Luckett is permanent.

¶ 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 affirmativé 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 would have to adjourn the impending trial. Everyone agreed that the parties were not then prepared to litigate the issue whether Ms. Luckett had been in a persistent vegetative state.

¶ 19. The circuit court asked the parties if they would like to revisit the issue early the following week so that they would have the opportunity to furnish the court with additional input. No party asked for an opportunity to address the issue further. The circuit court took down each attorney's e-mail address and promised to send a decision later that same day.

¶ 20. The circuit court granted the plaintiffs' motion to withdraw the admissions.

¶ 21. Dr. Bodner, Dr. Sethi, Aurora Sinai Medical Center, the Medical College of Wisconsin Affiliated Hospitals, Physicians Insurance Company of Wisconsin, and the Medical Protective Company petitioned for leave to appeal the circuit court's nonfinal order. Dr. Altman and the Wisconsin Patients Compensation Fund did not join in the appeal. Dr. Chua and Dr. Robinson prevailed on summary judgment motions and were dismissed from the action.

¶ 22. In sum, the allegedly negligent medical incidents occurred in August/September 2000; the complaint alleging medical malpractice was filed December 5, 2003; the defendants requested the admissions in June 2005 and the plaintiffs made the admissions in July 2005; Ms. Luckett died on October 2, 2005; and the motion to withdraw the admissions was made on January 19, 2007. When the plaintiffs made their admissions, the plaintiffs in effect eliminated any claims they may have had for Ms. Luckett's conscious pain and suffering during the period from September 29, 2000, until her death five years later. In withdrawing these admissions, plaintiffs' counsel acknowledged that the earlier admissions were his "mistake" and the mistake was not discovered until counsel was "doing final trial preparation." All the records in question were in the defendants' possession as well as the plaintiffs'.

¶ 23. The court of appeals granted the defendants' petition for leave to appeal from the adverse order of the circuit court allowing withdrawal of the admissions. In a split decision, the court of appeals affirmed the circuit court's order allowing the plaintiffs to withdraw the admissions.

II

¶ 24. Two standards of review apply in the present case.

¶ 25. The court must interpret Wis. Stat. § 804.11(2). The interpretation of a statute promulgated under this court's rule-making authority presents a question of law, which this court reviews independently of the circuit court and court of appeals hut benefiting from their analyses.⁷

¶ 26. The court must also determine whether the circuit court erroneously exercised its discretion in allowing the plaintiffs to withdraw admissions under Wis. Stat. § 804.11(2).

¶ 27. Wisconsin Stat. § 804.11(2) governs withdrawal or amendment of a party's admission. It provides that the circuit court may permit withdrawal or amendment of an admission when two conditions are met:⁸ (A) "the presentation of the merits of the action will be subserved thereby"; and (B) "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."⁹ The statute provides in full as follows:

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.

¶ 28. The language in Wis. Stat. § 804.11(2) at issue in the present case, namely the second sentence, "was adopted from and is nearly identical to its counterpart provision in [Fed. R. Civ. E 36(b)]."¹⁰ Rule 36(b) of the Federal Rules of Civil Procedure provides in relevant part that "the court may permit withdrawal or amendment [of an admission] if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits."

¶ 29. When "a state rule mirrors the federal rule, we consider federal cases interpreting the rule to be persuasive authority."¹¹ When interpreting Wis. Stat. § 804.11(2), the court may therefore seek guidance in federal cases interpreting Rule 36(b) of the Federal Rules of Civil Procedure.

¶ 30. The texts of Wis. Stat. § 804.11(2) and Fed. R. Civ. E 36(b), as well as the case law, demonstrate that under Wis. Stat. § 804.11(2), "a court may permit withdrawal if both statutory conditions are met[.]"¹² The "two requirements must he 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."¹³ 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.

¶ 31. We now turn to the standard for review of the circuit court's order permitting the plaintiffs to withdraw the admission. The circuit court's order allowing withdrawal or amendment of an admission under Wis. Stat. § 804.11 lies within the circuit court's discretion.¹⁴ This court will uphold the circuit court's order if the circuit court applies a proper standard of law, examines the relevant facts, and reaches a conclusion that a reasonable court could reach, demonstrating a rational process.¹⁵

¶ 32. In the present case the issue of erroneous exercise of discretion in allowing the plaintiffs to withdraw the admission turns on whether the circuit court applied the proper standard of law. The circuit court, in interpreting and applying Wis. Stat. § 804.11(2), identified the two parts of § 804.11(2) but did not explicitly determine whether withdrawal of the plaintiffs' admission would prejudice the defendants in maintaining their defense on the merits. In its written decision, the circuit court acknowledged that the prejudice issue is "difficult to assess" and that "significant prejudice concerns exist." It recognized that the plaintiffs' motion to withdraw the admissions would "necessitate additional expert evaluation, testimony and related discovery" and would "requireD adjournment of the impending trial and add[] significant expensed]" The circuit court, however, did not explicitly determine whether its "significant prejudice concerns" amounted to prejudice to the defendants for purposes of Wis. Stat. § 804.11(2).

¶ 33. Furthermore, the circuit court seemed to interpret Wis. Stat. § 804.11(2) as establishing a two-factor balancing test rather than as setting forth two independent requirements. The circuit court stated that the answer in the present case "lies in the balancing of the two prongs" of Wis. Stat. § 804.11(2). The circuit court further stated that it would grant the plaintiffs' motion to withdraw the admissions because "[wjhile significant prejudice concerns exist, the fairness issue implicated by the possibility that Ms. Luckett was conscious of the catastrophic injuries she suffered cries out for resolution on the merits."

¶ 34. The court of appeals did not view the circuit court as having misinterpreted Wis. Stat. § 804.11(2). Some of the defendants assert that the circuit court erroneously interpreted the statute.

¶ 35. When a circuit court applies an incorrect standard of law in making a discretionary decision, the circuit court has erroneously exercised its discretion.¹⁶ This court has concluded, however, in Schmid v. Olsen, 111 Wis. 2d 228, 237, 330 N.W.2d 547, that although the circuit court did not articulate or apply the criteria of Wis. Stat. § 804.11(2) as a basis for its decision permitting withdrawal of an admission, reversal was not automatic.¹⁷

¶ 36. The defendants do not ask this court to remand the matter to the circuit court to exercise its discretion a second time after applying a proper interpretation of Wis. Stat. § 804.11(2). The defendants ask this court to reverse the order of the circuit court and the court of appeals on the ground that withdrawal of the admissions is precluded as a matter of law. The defendants maintain that withdrawal of the admissions will prejudice them as a matter of law in maintaining their defense on the merits.

¶ 37. Adhering to Schmid v. Olsen, we examine the record to determine whether it supports the circuit court's ultimate decision to allow withdrawal of the plaintiffs' admissions. We conclude that the record supports the conclusion (A) that withdrawal of the admissions will subserve the presentation of the merits; and (B) that the defendants will not be prejudiced by withdrawal of the admissions in maintaining their defense on the merits.

A

¶ 38. The first requirement of Wis. Stat. § 804.11(2) emphasizes the importance of having the action resolved on the merits.¹⁸ The circuit court determined that withdrawal of the plaintiffs' admissions will subserve the presentation of the merits of the action because "[i]f, as the [newly-discovered] entries in the medical records ... arguably indicate, Ms. Luckett was capable of and did experience pain and suffering for the extended period between the time she lapsed into a coma to the time of her death, it is appropriate for the jury to consider that fact and, if liability is established, award damages to compensate that loss."

¶ 39. The defendants generally do not challenge the circuit court's determination that withdrawal of the plaintiffs' admissions will subserve the presentation of the merits of the action.

¶ 40. Some defendants argue that withdrawal of an admission cannot subserve the presentation of the merits of the action unless the admission is "squarely and conclusively contradicted by something in the court's record."¹⁹ This argument does not comport with the case law. Both state and federal cases have concluded that withdrawal or amendment of an admission will promote the presentation of the merits of the action even when the admission is not conclusively contradicted by something in the record.²⁰

¶ 41. The circuit court's discretionary determination that withdrawal of the plaintiffs' admissions will subserve the presentation of the merits of the action was not an erroneous exercise of discretion. The parties in the instant case evidently regard the question of Ms. Luckett's damages for conscious pain and suffering as a key issue that they will dispute at trial. The plaintiffs' admissions, if allowed to stand, would effectively eliminate a determination on the merits of these issues. Thus, granting the plaintiffs' motion to withdraw the admissions will aid in the ascertainment of the truth and the development of the merits. We therefore turn to the second requirement in Wis. Stat. § 804.11(2), relating to prejudice in maintaining a defense on the merits.

B

¶ 42. Under Wis. Stat. § 804.11(2), a circuit court may allow withdrawal of an admission if "the party who obtained the admission fails to satisfy the court that withdrawal... will prejudice the party in maintaining the action or defense on the merits."

¶ 43. The "prejudice" contemplated by Wis. Stat. § 804.11(2) "is not simply that a party [obtaining the admissions] would be worse off without the admissions."²¹ 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 now have to prove something that would have been deemed conclusively established if the opposing party were held to its admissions."²²

¶ 44. Prejudice in maintaining the action or defense on the merits "relates to the difficulty a party [here the defendants] 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 the questions previously answered by the admissions."²³ The prejudice inquiry requires a court to "focus on the prejudice that the nonmoving party [here the defendants] would suffer at trial."²⁴

¶ 45. It is the defendants' burden to demonstrate that withdrawal or amendment of the admissions will prejudice them in maintaining their defense on the merits.²⁵

¶ 46. The defendants offer numerous arguments in support of their position that withdrawal of the plaintiffs' admissions will prejudice them in maintaining their defense on the merits. We examine each of these arguments in turn.

¶ 47. The defendants contend that because granting the plaintiffs' motion meant adjourning the trial for additional discovery, the defendants are prejudiced as a matter of law in maintaining their defense on the merits. The defendants rely on two decisions of the court of appeals, Mucek v. Nationwide Communications, Inc., 2002 WI App 60, 252 Wis. 2d 426, 643 N.W.2d , and Estate of Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857, in support of their position that the circuit court may not permit withdrawal or amendment of an admission under Wis. Stat. § 804.11(2) when additional discovery and adjournment of the trial would result.

¶ 48. We do not agree with the defendants' interpretation of Mucek or Estate of Hegarty. These cases demonstrate, as the circuit court recognized,²⁶ that it lies within the circuit court's discretion to find prejudice under Wis. Stat. § 804.11(2) on the ground that withdrawal or amendment of an admission would necessitate additional discovery and an adjournment of the trial. Neither case demonstrates that prejudice is established as a matter of law when withdrawal or amendment of an admission would necessitate additional discovery and adjournment of the trial.

¶ 49. In the Mucek case, the circuit court denied Nationwide Communications' motion to withdraw admissions, concluding that withdrawal would prejudice Mucek in maintaining the action on the merits. In assessing the prejudice to Mucek, the circuit court focused largely on Nationwide Communications' ongoing failure to comply with the court's discovery orders. On appeal, Nationwide Communications argued that the circuit court had applied an improper standard of law.

¶ 50. The court of appeals sustained the circuit court's determination, concluding that "a trial court may consider a party's history of discovery abuse .. . when determining prejudice under § 804.11(2)... ,"²⁷ The court of appeals reasoned that "[a] party's ongoing failure to provide documents and information will frequently magnify the importance of requests for admissions precisely because the requesting party has already been deprived of requested information and is all the more dependent on admissions to identify what is actually in dispute."²⁸

¶ 51. The court of appeals also opined, in a footnote, that the circuit court's prejudice determination could be sustained because withdrawal of Nationwide Communications' admissions likely would necessitate an adjournment of the trial so that Mucek could obtain additional evidence. The court of appeals stated that "[a]n adjournment of the trial and the need to again attempt discovery would itself constitute prejudice to Mucek[.]"²⁹ The Mucek court of appeals further stated that "[a] trial court's general authority to maintain the orderly and prompt processing of cases provides authority to deny withdrawal, apart from the two factors in Wis. Stat. § 804.11(2)."³⁰ The circuit court in the present case apparently concluded, within its discretion, that despite the fact that the lawsuit was over three years in duration and pending over six years after the alleged negligence, it could maintain sufficient order in the proceedings if the trial were adjourned and additional discovery conducted.

¶ 52. In Estate of Hegarty, the circuit court denied a defendant insurer's motion to withdraw admissions, concluding in part that withdrawal would prejudice the Estate in maintaining the action on the merits. The circuit court stated that the motion for withdrawal had come "pretty late in the game" and that withdrawal would mean that the Estate "would have to do more discovery."³¹

¶ 53. The court of appeals upheld the circuit court's exercise of discretion. It agreed with the circuit court that withdrawal of the admissions would mean "a substantial amount of new discovery . . . causing additional delays in an already very long process."³² It sustained the circuit court's determination that the requirement of additional discovery, and the concomitant delay in the action, would prejudice the Estate.³³

¶ 54. In both Mucek and Estate of Hegarty, the court of appeals sustained the circuit court's discretionary determination that withdrawal of an admission would result in prejudice for purposes of Wis. Stat. § 804.11(2). Neither the Mucek court of appeals nor the Estate of Hegarty court of appeals addressed the issue whether the circuit court would have erred if it had granted the motions for withdrawal in those cases. Accordingly, neither case demonstrates that prejudice is established as a matter of law when withdrawal or amendment of an admission would necessitate additional discovery and adjournment of the trial.

¶ 55. The federal case law is similar to Mucek and Estate of Hegarty. Several federal district courts have examined the need for additional discovery or adjournment of the trial when determining whether withdrawal or amendment of an admission under Fed. R. Civ. E 36(b) will result in prejudice.³⁴

¶ 56. No federal decision holding that a federal district court is required to find prejudice under Fed. R. Civ. E 36(b) when withdrawal would necessitate additional discovery and adjournment of the trial has been brought to the court's attention. 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. In examining prejudice, the courts should "focus on the prejudice that the nonmoving party would suffer at trial."³⁵

¶ 57. We therefore turn to the defendants' arguments about the prejudice they will suffer at trial.

¶ 58. Although adjournment of the trial may give the defendants sufficient time to prepare to litigate the question whether Ms. Luckett was in a persistent vegetative state, the defendants contend that they will be prejudiced for purposes of Wis. Stat. § 804.11(2) because the plaintiffs' admissions and subsequent withdrawal caused the defendants to forgo opportunities to procure relevant evidence that they can no longer obtain. They argue that as a result of the admissions, they did not conduct an independent medical examination of Ms. Luckett, and that as a result of the withdrawal of the admissions they will have to rely upon Ms. Luckett's medical records and cross-examination of Ms. Luckett's treating physician at trial.

¶ 59. The defendants argue that they have lost their opportunity to make use of a particular expert knowledgeable about persistent vegetative states, namely Dr. Ronald Cranford. Dr. Cranford passed away between the date of the plaintiffs' admissions and the date that the plaintiffs moved to withdraw the admissions.

¶ 60. Federal courts have recognized that the prejudice required to be shown by a party objecting to a motion for withdrawal of admissions relates to the difficulty the party may face in proving its case because of the unavailability of key witnesses in light of the delay.³⁶

¶ 61. Dr. Cranford looked at some of Ms. Luckett's records to determine whether Ms. Luckett fit the characteristics of one in a persistent vegetative state. Upon receipt of the plaintiffs' admissions, the defendants advised Dr. Cranford that his services were no longer needed. The defendants argue that it was the plaintiffs' admissions that effectively deterred the defense from asking Dr. Cranford to examine Ms. Luckett's medical records and to perform an independent medical examination to determine whether she was in a persistent vegetative state. The defendants claim that had there been a denial of the requested admissions in July 2005, there would have been a period from July 22 until October 2, 2005, when (with hindsight on the death of Ms. Luckett) Dr. Cranford would have done an independent medical examination. After the plaintiffs' admissions, such an examination was not necessary, the defendants argue, and the intervening death of Ms. Luckett made any medical examination impossible. Indeed, the crux of the defendants' arguments about prejudice is that Ms. Luckett's death after the plaintiffs' admissions prejudiced the defendants in refuting the plaintiffs' claim for conscious pain and suffering.

¶ 62. The defendants offer no evidence or argument that a medical examination of Ms. Luckett between July and October 2005 would have enabled Dr. Cranford or any other medical examiner to evaluate Ms. Luckett's condition from September 29, 2000, through July 22, 2005. The defendants acknowledge that they do not know (and the record does not show) whether an independent medical examination would have helped the defendants in refuting the plaintiffs' claim for conscious pain and suffering. Rather, the defendants argue that their independent examination "wouldn't have hurt the defense, and that is prejudice."³⁷ We do not equate the defendants' inability to introduce evidence that does not hurt the defense with prejudice to the defense in maintaining a defense on the merits.

¶ 63. The defendants had the opportunity to make an independent medical examination of Ms. Luckett before the admissions. They did not, even though their request for admissions, along with the accompanying interrogatories and request for production, demonstrate that the question whether Ms. Luckett was in a persistent vegetative state was not settled. As the court of appeals stated, the "defendants had numerous opportunities to request an order for a medical examination in connection with several Wis. Stat. § 802.10(3) scheduling orders issued between the commencement of this litigation on December 5, 2003, and the July 22, 2005, admission at issue here. None of the defendants made such a request."³⁸ The plaintiffs' motion to withdraw the admissions did not cause the defendants' sudden difficulty in maintaining their defense on the merits.

¶ 64. The defendants also assert that the withdrawal of the admissions will prejudice them in maintaining their defense inasmuch as they did not depose certain health care professionals on the issue of Ms. Luckett's persistent vegetative state.³⁹ The defendants argue that as a result of the admissions they lost the opportunity to depose these relevant witnesses when their memories were still fresh about their personal experiences with Ms. Luckett. The defendants assert that had the plaintiffs not made the admissions in July 2005, the defendants might have deposed these health care professionals after July 2005. The defendants assert that "[t]he delay in reaching discovery on her persistent vegetative state was entirely attributable to the plaintiffs' admission that Ms. Luckett was in such a state and was not conscious of any pain and suffering."⁴⁰

¶ 65. We are not persuaded by this argument. It is hard to understand why the defendants' failure to depose witnesses about Ms. Luckett's state of consciousness of pain and suffering is, as the defendants assert, entirely the plaintiffs' fault. The depositions could have been taken before the July 2005 admissions.

¶ 66. The defendants try to explain their failure to do an independent medical examination or to take depositions on the issue of Ms. Luckett's persistent vegetative state by asserting that until the plaintiffs' motion in 2007 to withdraw the admissions, conscious pain and suffering was never an issue in the case. The defendants urge that from the filing of the suit until January 18, 2007, all counsel were proceeding under the assumption that Ms. Luckett was in a persistent vegetative state.

¶ 67. The defendants explain that "[f]or the defense, however, that assumption needed to be confirmed or the possible claim of conscious pain and suffering dealt with, by defense experts. The confirmation... was accomplished by the July 22 admissions . .. ."⁴¹ We do not find this explanation of the defendants' assertion of reliance on the parties' assumptions of Ms. Luckett's persistent vegetative state to be a convincing explanation of the defendants' failure to conduct an independent medical examination or to get additional depositions between September 29, 2003, and July 22, 2005. The defendants will not be prejudiced by being placed in the same position they would have been had the admissions not been mistakenly made on July 22, 2005.

¶ 68. The argument that the defendants will be prejudiced because witnesses' memories have faded is also not persuasive. The medical records indicating that Ms. Luckett may not have been in a persistent vegetative state are dated April and June 2001. Four years would have already elapsed between the observations in 2001 and any depositions that could have been taken in 2005 if the plaintiffs had not made the admissions. Memories of a patient's condition in 2001 through 2004 had undoubtedly already faded by July 2005. These memories, in all likelihood, were not fresh in July 2005 and also were not fresh in 2007 when the admissions were withdrawn.

¶ 69. The defendants also assert that they will be prejudiced because the withdrawal of the admissions may increase their financial exposure. The defendants point out that after the plaintiffs' admissions, their liability for damages for pain and suffering was for the 33 days that Ms. Luckett may have suffered conscious pain from the date of the operation until September 29, 2000. With the withdrawal of the admissions, the defendants face liability for many months that Ms. Luckett may have suffered conscious pain, namely from September 29, 2000, until her death. The defendants argue that the withdrawal of the admissions thus adds an uncapped claim for conscious pain and suffering that could significantly increase a verdict against them in the instant case. The withdrawal of the admissions therefore left the defendants potentially liable for an uncapped claim for more damages for conscious pain.

¶ 70. We agree with the circuit court that the defendant's "increased exposure ... [is not] a pertinent consideration on the prejudice prong" of Wis. Stat. § 804.11(2). The defendants' increased exposure results from the defendants' having to litigate a question (Ms. Luckett's capacity to experience conscious pain and suffering) that the defendants would have had to litigate in the absence of an admissions. The case law is clear that the party opposing a motion to withdraw or amend an admission "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 if the opposing party were held to its admissions."⁴² As we have stated, the defendants will not be prejudiced in maintaining a defense on the merits if they are placed in the same position they would have been in had the admissions not been mistakenly made.

¶ 71. The defendants urge that withdrawal of the plaintiffs' admissions should not be permitted because the plaintiffs cannot show excusable neglect or good cause.⁴³ Section 804.11(2) does not, however, make "excusable neglect" a prerequisite for withdrawal or amendment of an admission. As the United States Court of Appeals for the Eighth Circuit has explained, a court must "consider the effect upon the litigation and prejudice to the resisting party, rather than focusing on the moving party's excuses for an erroneous admission."⁴⁴

¶ 72. In sum, the circuit court record is sufficient to support the circuit court's discretionary determination to allow the plaintiffs to withdraw the admissions. For the reasons set forth, we conclude that the circuit court did not erroneously exercise its discretion in granting the plaintiffs' motion to withdraw the admissions.

¶ 73. 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.

By the Court. — The decision of the Court of Appeals is affirmed.

1 There are three groups of defendants: Aaron C. Bodner, M.D. and Physicians Insurance Company of Wisconsin, Inc.; Aurora Sinai Medical Center, Inc., The Medical Protective Company, and Injured Patients and Families Compensation Fund; Prithipal S. Sethi, M.D., Medical College of Wisconsin Affiliated Hospitals, Inc., and Physicians Insurance Company of Wisconsin, Inc. Each group filed its own briefs. We generally treat the defendants as a single entity and, when addressing the defendants' arguments, do not always state which defendants proffer which arguments.

2 Luckett v. Bodner, No. 2007AP308, unpublished slip op. (Wis. Ct. App. Apr. 22, 2008).

3 The plaintiffs are Robin Luckett as Special Administrator of the Estate of Tywanda Luckett; Tyquone Luckett, Joe Bohannon, and Shenara Bohannon, minors, by their Guardian ad Litem, J. Michael End; and State of Wisconsin Department of Health and Family Services.

4 All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.

5 Wisconsin Stat. § 804.11(l)(a) provides in relevant part that "[e]xcept as provided in s. 804.015, 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 the genuineness of any documents described in the request."

6 Relying upon a document that two of the defendants filed with the circuit court, the court of appeals stated in its opinion that Luckett died on August 2, 2005. See Luckett v. Bodner, No. 2007AP308, unpublished slip op., ¶ 2 & n.2 (Wis. Ct. App. Apr. 22, 2008). In their briefs to this court, however, the parties agree that the correct date of death is stated in the plaintiffs' motion for substitution of a party and in the circuit court's order granting that motion. The plaintiffs' motion and the circuit court's order each state that Luckett died on October 2, 2005.

Upon Ms. Luckett's death, the circuit court granted the plaintiffs' motion to substitute the administrator of Ms. Luckett's estate as a party.

7 Trinity Petroleum, Inc. v. Scott Oil Co., 2007 WI 88, ¶ 32, 302 Wis. 2d 299, 735 N.W.2d 1.

8 See Mucek v. Nationwide Commc'ns Inc., 2002 WI App 60, ¶ 34, 252 Wis. 2d 426, 643 N.W.2d 98 ("Section 804.11(2) provides that a court may permit withdrawal of an admission if two conditions are met." (quotation marks omitted)).

9 Wis. Stat. §804.11(2).

10 Mucek, 252 Wis. 2d 426, ¶ 29.

11 State v. Evans, 2000 WI App 178, ¶ 8 n.2, 238 Wis. 2d 411, 617 N.W.2d 220 (citing State v. Cardenas-Hernandez, 219 Wis. 2d 516, 528, 579 N.W.2d 678 (1998)).

12 See Mucek, 252 Wis. 2d 426, ¶ 34 (internal quotation marks omitted; emphasis added).

13 Sonoda v. Cabrera, 255 F.3d 1035, 1039 (9th Cir. 2001).

See also Am. Auto. Ass'n v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1119 (5th Cir. 1991) ("[Wjhile the district court has considerable discretion over whether to permit withdrawal or amendment of admissions, that discretion must he exercise within the bounds of this two-part test: 1) the presentation of the merits must be subserved buy allowing withdrawal or amendment; and 2) the party that obtained the admissions must not be prejudiced in its presentation of the case by their withdrawal." (footnote omitted)).

14 Mucek, 252 Wis. 2d 426, ¶ 25 (citing Schmid v. Olsen, 111 Wis. 2d 228, 237, 330 N.W.2d 547 (1983)).

15 Mucek, 252 Wis. 2d 426, ¶ 25 (citing Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982)).

16 Schmid v. Olsen, 111 Wis. 2d 228, 237, 330 N.W.2d 547 (1983) ("A reviewing court is obliged to uphold a discretionary-decision of a trial court, if it can conclude ab initio that there are facts of record which would support the trial judge's decision had discretion been exercised on the basis of those facts.")

17 See Schmid, 111 Wis. 2d at 237 ("The [circuit] court did not articulate as the basis for its decision the two criteria of sec. 804.11(2), Stats. It is well established that a decision which requires the exercise of discretion and which on its face demonstrates no consideration of any of the factors on which the decision should be properly based constitutes an abuse of discretion as a matter of law. If a trial judge bases the exercise of his discretion upon a mistaken view of the law, his conduct is beyond the limits of his discretion. Even though there was an abuse of discretion in the case before us, reversal by this court is not automatic." (internal citations omitted)).

18 See Perez v. Miami-Dade County, 297 F.3d 1255, 1266 (11th Cir. 2002) ("This part of the test emphasizes the importance of having the action resolved on the merits[.]" (quotation marks and citation omitted)); Raiser v. Utah County, 409 F.3d 1243, 1246 (10th Cir. 2005) (same; quoting Perez).

See also Fed. R. Civ. R 36, Notes of the Advisory Committee on the 1979 amendments (stating that Fed. R. Civ. P 36(b) "emphasizes the importance of having the action resolved on the merits, while at the same time assuring each party that justified reliance on an admission in preparation for trial will not operate to his prejudice.").

19 Petitioners' Reply Brief of Aurora Sinai Medical Center, Inc., the Medical Protective Company and the Injured Patients & Families Compensation Fund at 9.

The dissent asserts that the plaintiffs arguably submitted evidence to justify the withdrawal of the admission to the second request but that no evidence was submitted to justify the withdrawal of admissions number one and three. The defendants do not make this argument.

It is not unreasonable, however, to conclude that the entries in the medical records from 2001 "arguably indicate" that Ms. Luckett was capable of and perhaps experienced pain and suffering during the periods covered by the first and third admissions.

20 See, e.g., Schmid v. Olsen, 111 Wis. 2d 228, 330 N.W.2d 547 (1983) (concluding that the presentation of the merits of the action would be subserved by withdrawal of Olsen's admission that he was 70% liable for Schmid's damages, although the extent of Olsen's liability was disputed and was not conclusively shown); Conlon v. United States, 474 F.3d 616, 622 (9th Cir. 2007) (concluding that the presentation of the merits of the action would be promoted by withdrawal of Conlon's admission that "neither the issuing of the warrant [for his arrest], his arrest or his subsequent incarceration were caused by negligent or wrongful acts or omissions of United States employees," although nothing conclusively demonstrated that Conlon's admission was false); Manatt v. Union Pacific Railroad Co., 122 F.3d 514, 517 (8th Cir. 1997) ("In the circumstances of this case, 'the prospect of deeming [the] controverted fact[] ... as having been admitted seems ... to be anathema to the ascertainment of the truth.'" (quoting White Consol. Indus., Inc. v. Waterhouse, 158 F.R.D. 429, 433 (D. Minn. 1994) (brackets and ellipses in Manatt))).

21 Mucek, 252 Wis. 2d 426, ¶ 30 (citations omitted).

22 Id.

23 Brook Village N. Assocs. v. Gen. Elec. Co., 686 F.2d 66, 70 (1st Cir. 1982).

See also Conlon, 474 F.3d at 622 (quoting Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995) (quoting Brook Village, 686 F.2d at 70)); Raiser v. Utah County, 409 F.3d 1243, 1246 (10th Cir. 2005) (quoting Hadley, 45 F.3d at 1348 (quoting Brook Village, 686 F.2d at 70)); Kerry Steel, Inc. v. Paragon Indus., 106 F.3d 147, 154 (6th Cir. 1997) ("Prejudice under Rule 36(b)... 'relates to special difficulties a party may face caused by a sudden need to obtain evidence upon withdrawal or amendment of an admission.'" (quoting Am. Auto. Ass'n v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1120 (5th Cir. 1991) (citing Brook Village, 686 F.2d at 70))); F.D.I.C. v. Prusia, 18 F.3d 637, 640 (8th Cir. 1994) (quoting Gutting v. Falstaff Brewing Corp., 710 F.2d 1309, 1314 (8th Cir. 1983) (quoting Brook Village, 686 F.2d at 70)); Am. Auto. Ass'n v. AAA Legal Clinic of Jefferson Crooke, P.C., 930 F.2d 1117, 1120 (5th Cir. 1991) ("Courts have usually found that the prejudice contemplated by Rule 36(b) relates to special difficulties a party may face caused by a sudden need to obtain evidence upon withdrawal or amendment of an admission." (citing Brook Village, 686 F.2d at 70)); Smith v. First Nat'l Bank of Atlanta, 837 F.2d 1575, 1578 (11th Cir. 1988) (quoting Brook Village, 686 F.2d at 70); 7 James Wm. Moore et al., Moore's Federal Practice § 36.13, at 36-46 (3d ed. rev. 2008) ("Rule 36(b) contemplates prejudice arising from the difficulty a party may face in proving its case because of the sudden need to obtain evidence required to prove the matter that has been admitted." (footnote omitted)).

24 Conlon, 474 F.3d at 622.

25 See Conlon, 474 F.3d at 622 ("The party relying on the deemed admission has the burden of proving prejudice."); Raiser, 409 F.3d at 1246 ("The second Rule 36(b) factor requires [the nonmoving party] to show that it would be prejudiced by the withdrawal of [the] admissions[.]"); Prusia, 18 F.3d at 640 ("[T]he party who obtained the mistaken admission ... has the burden of proving that an amendment would prejudice him." (citations omitted)); 7 James Wm. Moore et al., Moore's Federal Practice § 36.13, at 36-44 (3d ed. rev. 2008) ("The party who obtained the admission must show the court that it will be prejudiced if the amendment or withdrawal is allowed." (footnote omitted)).

26 The circuit court's written decision states: "[R]esultant adjournment and additional discovery is sufficient to establish prejudice so as to justify denial of the request to withdraw an admission." (citing Mucek, 252 Wis. 2d 426, ¶ 32 n.8).

27 Mucek, 252 Wis. 2d 426, ¶ 28.

28 Mucek, 252 Wis. 2d 426, ¶ 31.

29 Mucek, 252 Wis. 2d 426, ¶ 32 n.8 (citing Equal Employment Opportunity Comm'n v. Jordan Graphics, Inc., 135 F.R.D. 126, 128-29 (W.D.N.C. 1991)).

30 Mucek, 252 Wis. 2d 426, ¶ 35.

31 Estate of Hegarty, 297 Wis. 2d 70, ¶ 29.

32 Id., ¶ 40.

³³

34 See Equal Employment Opportunity Comm'n v. Jordan Graphics, Inc., 135 F.R.D. 126, 129 (W.D.N.C. 1991), cited in Mucek, 252 Wis. 2d 426, ¶ 32 n.8 (finding prejudice because permitting withdrawal "may require additional discovery and would most likely delay the disposition of th[e] matter"); Ropfogel v. United States, 138 F.R.D. 579, 584 (D. Kan. 1991) (finding prejudice in part because withdrawal could "greatly delay the trial of this matter"); Branch Banking & Trust Co. v. Deutz-Allis Corp., 120 F.R.D. 655, 659 (E.D.N.C. 1988) (finding prejudice in part because withdrawal would interject a new "issue in the case upon which no discovery has heretofore been undertaken").

35 See, e.g., Brook Village, 686 F.2d at 70; Conlon, 474 F.3d at 622.

36 The defendants cite Raiser v. Utah County, 409 F3d 1243, 1247 (10th Cir. 2005), and Sonoda v. Cabera, 255 F.3d 1035, 1039 (9th Cir. 2001).

37 Reply Brief of Defendants-Appellants, Aaron C. Bodner, M.D., and Physicians Insurance Company of Wisconsin, Inc. at 11.

38 Luckett v. Bodner, No. 2007AP308, unpublished slip op., ¶ 24 (Wis. Ct. App. Apr. 22, 2008).

39 A total of 26 depositions were taken from November 24, 2004, to January 31, 2007. Depositions were taken of every named physician defendant and treating health care provider from November 2004 to June 15, 2005. Depositions were also taken of plaintiffs' experts from November 8, 2005, to July 26, 2006, and of defense experts from December 15, 2006, to January 31, 2007.

40 Petitioners' Brief of Aurora Sinai Medical Center, Inc., The Medical Protective Company and The Injured Patients & Families Compensation Fund at 16.

41 Defendants-Co-Appellants-Petitioners, Prithipal S. Sethi, M.D., Medical College of Wisconsin Affiliated Hospitals, Inc., and Physicians Insurance Company of Wisconsin, Inc.'s Reply Brief at 4. See also Defendants-Co-Appellants-Petitioners, Prithipal S. Sethi, M.D., Medical College of Wisconsin Affiliated Hospitals, Inc., and Physicians Insurance Company of Wisconsin, Inc.'s Brief and Appendix at 11 (The defendants explain the inconsistency, asserting that the issue of Ms. Luckett's state of consciousness "was only considered by the defense as a 'rule out' possibility until the admissions of July 22, 2005.").

42 Mucek, 252 Wis. 2d 426, ¶ 30.

43 During the final pretrial hearing, the circuit court stated that it is "understandable that given the volume of records that are involved, given the length of treatment, the complexity of medical issues, et cetera, that [the records suggesting that Ms. Luckett was conscious in 2001 were] quote/unquote missed." The circuit court did not explicitly determine whether the failure of plaintiffs' counsel to discover the records earlier resulted from "excusable neglect."

44 Prusia, 18 F.3d at 640 (quotation marks and citation omitted). See also Federal Procedure: Lawyer's Edition (2007) §§ 26.749-. 750, at 520 ("The moving party's excuse for its erroneous admission is not a relevant consideration in determining a motion to withdraw or amend an admission.. . . [Fed. R. Civ. E 36(b)] does not require the moving party to prove excusable neglect." (footnotes omitted)).