BERENDA BURNS-MAHANES v. THOMAS LOEB, M.D.
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RENDERED:
SEPTEMBER 16, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002195-MR
BERENDA BURNS-MAHANES
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARTIN F. MCDONALD, JUDGE
ACTION NO. 04-CI-004848
THOMAS LOEB, M.D.
APPELLEE
OPINION
REVERSING IN PART, VACATING
IN PART, AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI AND MINTON, JUDGES; ROSENBLUM, SENIOR JUDGE. 1
GUIDUGLI, JUDGE:
Berenda Burns-Mahanes appeals from the
Jefferson Circuit Court’s dismissal of her medical negligence
action filed against Thomas Loeb, M.D.
Having determined that
the circuit court abused its discretion in denying her motion to
withdraw admissions and for additional time to respond to
discovery requests and the motion for summary judgment, and
1
Senior Judge Paul W. Rosenblum, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
therefore erred in granting the motion for summary judgment, we
reverse in part, vacate in part, and remand.
Burns-Mahanes, proceeding pro se, filed a complaint on
June 9, 2004, alleging that Dr. Loeb negligently treated an
ankle injury she sustained in October 2002 when she fell down a
stairway in a neighbor’s home.
Dr. Loeb, through counsel, filed
his answer on June 24 and served discovery requests on BurnsMahanes the same day, including twenty-seven Interrogatories,
eleven Requests for Production of Documents, and four Requests
for Admissions, which read as follows:
REQUEST NO. 1: Admit that the Defendant,
Thomas Loeb, M.D., was not negligent in the
care and treatment of Plaintiff, Berenda
Burns-Mahanes.
REQUEST NO. 2: Admit that there was no act
and/or admission by Defendant, Thomas Loeb,
M.D., that caused any injury and/or damages
to Plaintiff, Berenda Burns-Mahanes.
REQUEST NO. 3: Admit that the treatment
rendered by Defendant, Thomas Loeb, M.D., to
Berenda Burns-Mahanes was reasonable and
appropriate.
REQUEST NO. 4: Admit that Plaintiff,
Berenda Burns-Mahanes, did not consult any
medical care provider who was critical of
Defendant, Thomas Loeb, M.D., prior to
filing suit against Dr. Loeb.
When she failed to respond within thirty days, Dr. Loeb filed a
motion for summary judgment on July 29, 2004, five days after
the expiration of the response time.
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In the motion, Dr. Loeb
argued that the Requests for Admission were deemed admitted
pursuant to CR 36.01(2), which meant that Burns-Mahanes had
admitted that Dr. Loeb was not negligent, that he had not caused
her injury, and that the treatment he provided her was
reasonable and appropriate.
Based upon these admissions, Dr.
Loeb asserted that Burns-Mahanes could not maintain a claim for
medical negligence, that there were no genuine issues of
material fact to be resolved, and that the entry of summary
judgment was appropriate.
Burns-Mahanes failed to respond to
this motion within the twenty days allotted by the Rules, and
Dr. Loeb promptly filed a Notice of Submission, which the
circuit court entered on August 25, 2004.
On September 3, 2004, Burns-Mahanes, still proceeding
pro se, filed a motion for enlargement of sixty days to respond
to Dr. Loeb’s discovery requests and to hold the summary
judgment motion in abeyance until discovery could be obtained.
In her motion, Burns-Mahanes indicated that she filed the matter
without an attorney to avoid a statute of limitations defense
but was currently seeking counsel, and that her father became
ill shortly after she filed suit and passed away on July 19,
leaving her unable to focus on her case.
Although Dr. Loeb did
not file a written response, the circuit court denied the motion
on September 7, 2004.
The following day, newly retained counsel
for Burns-Mahanes filed another motion for enlargement of time
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to file the discovery responses, to allow for the withdrawal of
the requests deemed admitted, and to hold the summary judgment
motion in abeyance pending discovery.
While Dr. Loeb again did
not file a written response, the circuit court denied the motion
on September 21, 2004, indicating on the order that Dr. Loeb had
objected. 2
The same day, the circuit court entered the following
Order ruling on Dr. Loeb’s motion for summary judgment:
Upon Motion by the Defendant, Thomas
Loeb, M.D., and the Court being otherwise
sufficiently advised;
Defendant’s Motion for Summary Judgment
is hereby GRANTED. There is no genuine
issue of material fact to be resolved, and
thus, Defendant is entitled to summary
judgment as a matter of law pursuant to CR
56. Plaintiff has admitted that Defendant,
Thomas Loeb, M.D., was not negligent, which
is an admission by itself that is fatal to
Plaintiff’s case. Accordingly, any and all
claims asserted or that could have been
asserted by Plaintiff, Berenda BurnsMahanes, against Defendant, Thomas Loeb,
M.D., are hereby dismissed with prejudice.
There being no just cause for delay,
this is a final and appealable Order.
It is from these two orders that Burns-Mahanes has taken the
present appeal.
In the first line of her brief, Burns-Mahanes states
that, “[t]his is a case of a pro se litigant with extraordinary
circumstances being taken advantage of by experienced counsel
2
We assume Dr. Loeb objected during motion hour when the motion was called,
but no videotaped recordings of any motions hours were included in the
certified record.
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and the judicial system.”
Burns-Mahanes maintains that the
circuit court abused its discretion in denying her motion for an
additional sixty days to respond to the discovery requests and
to the motion for summary judgment after discovery had been
obtained, as well as to withdraw the deemed answers to the
requests for admission.
Furthermore, she asserts that the
circuit court erred in granting a summary judgment as the motion
should have been held in abeyance and because several of the
requests for admission were improper.
On the other hand, Dr.
Loeb argues that Burns-Mahanes’ contention is “preposterous” and
that her appeal is an attempt to avoid the natural consequences
of her failure to properly and timely prosecute her case.
He
maintains that the circuit court did not abuse its discretion in
denying her motion and properly granted his motion for summary
judgment.
We shall first address the circuit court’s denial of
Burns-Mahanes’ motion to withdraw the deemed admissions.
Our
standard of review in such matters is whether the circuit court
abused its discretion. 3
In Commonwealth v. English, 4 the Supreme
Court of Kentucky defined the test for abuse of discretion as
“whether the trial judge’s decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.”
3
Earlier, in
Lewis v. Kenady, 894 S.W.2d 619 (Ky. 1994); Harris v. Stewart, 981 S.W.2d
122 (Ky.App. 1998).
4
993 S.W.2d 941, 945 (Ky. 1999).
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Kuprion v. Fitzgerald, 5 the same court stated, “[a]buse of
discretion in relation to the exercise of judicial power implies
arbitrary action of capricious disposition under the
circumstances, at least an unreasonable and unfair decision.”
CR 36 details the procedure for obtaining requests for
admission.
Pursuant to CR 36.01, “[t]he matter is admitted
unless, within 30 days after service of the request, . . . the
party to whom the request is directed serves upon the party
requesting the admission a written answer or objection addressed
to the matter.”
CR 36.02 provides:
Any matter admitted under Rule 36 is
conclusively established unless the court on
motion permits withdrawal or amendment of
the admission. Subject to the provisions of
Rule 16 governing amendment of a pretrial
order, 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 him
in maintaining his action or defense on the
merits.
Because Kentucky’s CR 36.02 is substantially the same
as its federal counterpart, FRCP 36(b), we may look to federal
cases for guidance in this area.
In FDIC v. Prusia, 6 the 8th
Circuit Court of Appeals reviewed the denial of a motion to
amend admissions under an abuse of discretion standard, and
indicated that “Rule 36(b) directs the court to consider the
5
6
888 S.W.2d 679, 684 (Ky. 1994).
18 F.3d 637 (8th Cir. 1994).
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‘effect upon the litigation and prejudice to the resisting
party[,]’ . . . rather than focusing on the moving party’s
excuses for an erroneous admission.” 7
In Prusia, the court initially looked to the first
prong of the test, which addresses whether the presentation of
the merits would have been subserved by allowing the admission
to stand.
In that case, the court determined that, “[b]ecause
allowing the erroneous admission to stand might have barred the
FDIC’s claim, permitting the amendment would have subserved
(sic) the presentation of the merits.” 8
In U.S. v. $30,354.00 in
United States Currency, 9 the District Court for the Western
District of Kentucky stated:
“Deciding dispositive issues
against a party because of a missed deadline does not further
the interests of justice.
In the matter before this Court, the
admissions requested go to the heart of the case, and
accordingly should be decided upon a complete trial.”
In the
present case, not permitting Burns-Mahanes to withdraw the
admissions clearly subserved this action, as the affect of the
denial of her motion caused her case to be dismissed by summary
judgment.
Three of the four admissions went directly to the
heart of the case, requesting admissions as to whether Dr. Loeb
was negligent in his care and treatment, whether he caused any
7
8
9
Id. at 640. (Citations omitted.)
Id.
863 F.Supp. 442 (W.D.Ky. 1994).
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injury or damages, or whether his treatment was reasonable and
appropriate.
Once those statements were deemed admitted, Burns-
Mahanes could not prove a prima facie case of medical
negligence.
Therefore, Burns-Mahanes’ claim would not be served
or promoted if she were not permitted to withdraw the
admissions.
Regarding the prejudice prong, the Prusia court
stated:
The prejudice contemplated by Rule 36(b)
“‘relates to the difficulty a party may face
in proving its case’ because of the sudden
need to obtain evidence required to prove
the matter that had been admitted.” Gutting
v. Falstaff Brewing Corp., 710 F.2d 1309,
1314 (8th Cir. 1983)(quoting Brook Village N.
Assocs. v. General Elec. Co., 686 F.2d 66,
70 (1st Cir. 1982)). The necessity of having
to convince the trier of fact of the truth
of a matter erroneously admitted is not
sufficient. 10
Furthermore, the burden is on the party who obtained the
admission to establish prejudice. 11
In the present matter, we
cannot hold that Dr. Loeb established that he was prejudiced as
contemplated by the Rule.
The record only reflects that Dr.
Loeb objected to the motion, but not the grounds for the
objection as he did not file a written response and the
videotape of the motion hour was not certified and included in
10
Prusia, 18 F.2d at 630. See also Kerry Steel, Inc. v. Paragon Industries,
Inc., 106 F.3d 147, 154 (6th Cir. 1997).
11
Prusia, 18 F.2d at 630.
-8-
the record on appeal.
In footnote 9 of his brief, however, Dr.
Loeb addressed the issue of prejudice:
Although immaterial, it is worth noting that
Dr. Loeb would definitely have been
prejudiced in the defense of his case if the
trial court were to have permitted
withdrawal. As discussed in a later section
of this Brief, matters admitted under CR 36
are treated as judicial admissions. It
cannot reasonably be argued that there would
be no prejudice to taking away a judicial
admission on which a party defending a
lawsuit can rely to establish the absence of
liability and/or damages. Allowing
withdrawal of the admissions made by Ms.
Burns-Mahanes would require Dr. Loeb to
conduct extensive discovery and endure the
expense of retaining expert witnesses all to
disprove the allegations of negligence which
Ms. Burns-Mahanes had admitted were untrue.
Thus, prejudice to Dr. Loeb would most
certainly have occurred.
It is clear that Dr. Loeb has misperceived the
“prejudice” contemplated in the Rule and related case law, and
has therefore not met his burden of establishing prejudice.
Dr.
Loeb’s claimed prejudice goes to his need to expend money and
time to establish a defense.
He does not argue that the delay
has “resulted in any prejudice to the presentation of his
case.” 12
The case was dismissed less than four months from the
date it was filed, and no discovery had taken place, other than
the unanswered requests propounded by Dr. Loeb.
No pre-trial
hearings or trial dates had been scheduled, so the motion did
12
Harris, 981 S.W.2d at 125.
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not come on the eve of trial when Dr. Loeb would have no
opportunity, or a reduced opportunity, to present a defense to
the new issues created by the withdrawn admissions.
While we have determined that Burns-Mahanes met CR
36.02’s test for the withdrawal of the admissions, the decision
whether to allow a party to withdraw an admission is still left
to the sound discretion of the court.
In this case, the circuit
court’s decision to deny Burns-Mahanes’ motion appears to be
both unfair and unreasonable under the circumstances of the
case.
The denial caused the case to be dismissed and the
withdrawal of the admissions is not prejudicial to Dr. Loeb
within the meaning of the Rule.
Furthermore, while not truly
applicable to our consideration, Burns-Mahanes presented
compelling reasons for her lack of response, including the
sickness and death of her father and her ankle surgery, all
occurring shortly after the filing of her lawsuit.
For these
reasons, we hold that the circuit court abused its discretion in
denying the motion to withdraw the admissions.
reverse this ruling.
Accordingly, we
Upon remand, the circuit court shall also
provide Burns-Mahanes additional time to file her discovery
responses as she has established excusable neglect under CR
6.02.
Burns-Mahanes next argues that the circuit court erred
in granting summary judgment, thereby dismissing her claim.
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“The standard of review on appeal of a summary judgment is
whether the trial court correctly found that there were no
genuine issues as to any material fact and that the moving party
was entitled to judgment as a matter of law.” 13
The crux of her
argument is that the circuit court relied upon improper requests
for admissions in granting summary judgment.
She claims that
these requests for admission were improper in that they dealt
with the central issue in the case.
We agree with Dr. Loeb that
Burns-Mahanes may not raise this particular portion of her
argument before this Court as it was not raised below.
However, in light of our ruling on Burns-Mahanes’
first argument, the basis for the entry of the summary judgment
is no longer valid, as the admissions concerning Dr. Loeb’s
negligence, his treatment of her injury, and whether he caused
her any injury or damage must be withdrawn.
Therefore, the
circuit court’s summary judgment must be vacated.
For the foregoing reasons, the Jefferson Circuit
Court’s order related to the denial of the motion to withdraw
the admissions is reversed, the order granting summary judgment
is vacated, and this matter is remanded for further proceedings
in accordance with this opinion.
ALL CONCUR.
13
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996).
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Carl D. Frederick
C. Shawn Fox
Louisville, KY
Clay A. Edwards
Cathleen C. Palmer
Louisville, KY
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