Morgan v. Wesley Medical Center, LLC et al

Filing 337

MEMORANDUM AND ORDER granting in part and denying in part 266 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 5/9/19. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
D.M., a minor, by and through
)
his next friend and natural guardian, )
KELLI MORGAN,
)
)
Plaintiff,
)
)
v.
)
)
WESLEY MEDICAL CENTER LLC )
d/b/a WESLEY MEDICAL
)
CENTER-WOODLAWN, et al.,
)
)
Defendants. )
_______________________________)

Case No.: 18-2158-KHV-KGG

MEMORANDUM & ORDER ON MOTION TO COMPEL
Now before the Court is the Motion to Compel filed by Plaintiff regarding
Requests for Admissions served on Defendants Borick, White, and Hartpence
(hereinafter “resident Defendants” or “Defendants”). (Doc. 266.) Having
reviewed the submissions of the parties, Plaintiff’s motion is GRANTED in part
and DENIED in part for the reasons set forth below.
BACKGROUND
Plaintiff, through his natural guardian and next friend, filed his federal court
Complaint on April 9, 2018, alleging claims under Kansas medical malpractice
laws and under the Federal Emergency Medical Treatment and Active Labor Act.
The claims result from the medical care he received on March 5 and 6, 2017.
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Plaintiff alleges that on March 6, 2017, he “suffered a catastrophic and medicallypreventable stroke that left him with right-side paralysis, neurological damage and
other debilitating physical injuries that permanently changed his and his parents’
lives.” (Doc. 1, at 5.)
Plaintiff served identical Requests for Admissions (“RFAs”) on the resident
Defendants. Plaintiff complains that “[e]very answer” of the resident Defendants
“to every RFA contains an objection followed by a ‘without waiving such
objection’ conditional response.” (Doc. 266, at 1.) Plaintiff continues that the
resident Defendants “also blanket their responses with general objections,” which
Plaintiff contends are improper.
ANALYSIS
I.

Conditional Objections.
The resident Defendants’ responses to the Requests for Admission begin

with a set of “general objections,” which are enumerated before they provide
responses to any of the specific Requests. (See Doc. 266-1, at 3-11; Doc. 266-2, at
3-12; Doc. 266-3, at 3-14.) The specifics of the “general objections” are discussed
more thoroughly in Section II, infra.
As to each specific Request for Admission, the resident Defendants respond
by stating “Objection. See the general objections stated above.” (See generally
Docs. 266-1, 266-2, and 266-3. Defendants then state that “[w]ithout waiving such
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objection,” they are admitting or denying each particular Request. (Id.) This is
known as a “conditional response” or “conditional objection,” which
“occur[s]when a party asserts objections, but then provides a response ‘subject to’
or ‘without waiving’ the stated objections.” Westlake v. BMO Harris Bank N.A.,
No. 13–2300–CM–KGG, 2014 WL 1012669, *3 (D. Kan. March 17, 2014).
Courts in this District have previously ruled that conditional objections are
“manifestly confusing (at best) and misleading (at worse [sic]), and [have] no basis
at all in the Federal Rules of Civil Procedure.” Sprint Commun. Co., L.P. v.
Comcast Cable Commun., LLC, No. 11-2684-JWL, 11-2685-JWL, 11-2686JWL, 2014 WL 545544, at *2 (Feb. 11, 2014) (reaching this conclusion as to
conditional responses raised in response to Requests for Production of
Documents). This District has specifically held that “such conditional answers are
invalid and unsustainable.” Sprint, 2014 WL 545544, at *2. It places the
requesting party in the impossible situation of being “uncertain as to whether the
question has actually been fully answered or whether only a portion of the question
has been answered.” Id. (quoting with approval Consumer Elec. Ass’n v.
Compras and Buys Magazine, Inc., No. 08-21085, 2008 WL 4327253, at *2 (S.D.
Fla. Sept. 18, 2008) (reaching this conclusion in context of Requests for Production
of Documents).)

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The undersigned Magistrate Judge has specifically indicated his disapproval
of conditional responses, that, as with the responses at issue, occur when “a party
asserts objections, but then provides a response ‘subject to’ or ‘without waiving’
the stated objections.” Barcus v. Phoenix Insurance Co., No. 17-2492-JWLKGG, 2018 WL 1794900, at *3 (D. Kan. April 16, 2018) (in context of
interrogatories and document requests) (citing Westlake, 2014 WL 1012669, at *3
(internal citation omitted)). This Court has held that such conditional responses are
“invalid,” “unsustainable,” and “violate common sense.” Everlast World's Boxing
Headquarters Corp. v. Ringside, Inc., No. 13-2150-CM-KGG, 2014 WL 2815515,
at *3 (D. Kan. June 23, 2014) (internal citation omitted).
Defendants contend, however, that Plaintiff’s argument is misplaced.
Defendants argue that the cases relied upon by Plaintiff discuss Interrogatories or
Requests for Production, which are discovery requests, while the present motion
involves Requests for Admission, which “are not a discovery device … .” (Doc.
276, at 5.)
Requests for Admission are governed by Fed.R.Civ.P. 36. The Rule allows
a party to serve a written request on another party to admit “the truth of any
matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of
law to fact, or opinions about either; and (B) the genuineness of any described
documents.” Fed.R.Civ.P. 36(a)(1). Requests for Admission serve two purposes,
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which are “designed to reduce trial time.” Fed.R.Civ.P. 36 advisory committee’s
note to 1970 amendment. “Admissions are sought, first to facilitate proof with
respect to issues that cannot be eliminated from the case, and secondly, to narrow
the issues by eliminating those that can be.” Id.; see also Richard v. Sedgwick
County Bd. Of Comm’rs, No. 09-1278-MLB, 10-1042-MLB, 2013 WL 3467124,
*1 (D. Kan. July 10, 2013). Thus, Requests for Admission are “not [intended] to
discover additional information concerning the subject of the request, but to force
the opposing party to formally admit the truth of certain facts, thus allowing the
requesting party to avoid potential problems of proof.” Solis v. La Familia Corp.,
No. 10-2400-EFM-GLR, 2012 WL 1906508, at *2 (D. Kan. May 25, 2012). As
such, Defendants argue that courts must treat Requests for Admission differently
than discovery requests. (Doc. 276, at 6.)
Defendants criticize Plaintiff’s position, stating that “[t]he authorities cited
by Plaintiff did not concern requests for admission, and none of the decisions
applied any such ruling to requests for admission.” (Id., at 5.) Even assuming this
to be correct, Defendants have failed to acknowledge a ruling by the undersigned
Magistrate Judge holding that conditional objections to Requests for Admission are
improper, as are conditional objections to discovery requests. Everlast, 2014 WL
2815515, at *3. In Everlast, the undersigned Magistrate Judge found all such
conditional responses, including those in response to Requests for Admission, to be
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“‘invalid,’ ‘unsustainable,’ and to ‘violate common sense.’” Id. (citing Sprint v.
Comcast, 2014 WL 54544, at *2, 3. The undersigned Magistrate Judge directed
the responding party in Everlast to provide supplemental responses without such
language. Id.
The same is ordered of the resident Defendants herein. The conditional
objections of the resident Defendants are OVERRULED as to each of the
Requests for Admissions. Defendants are directed to provide supplemental
responses removing the conditional objections and admitting or denying the
Requests as contemplated by Fed.R.Civ.P. 36. Pursuant to subsection (a)(4) of that
rule, if a matter is not admitted, Defendants “must specifically deny it or state in
detail why the answering party cannot truthfully admit or deny it.” Fed.R.Civ.P.
36(a)(4).1 The supplemental responses are due within thirty (30) days of the date
of this Order.
II.

General Objections.
As mentioned above, the resident Defendants’ responses to Plaintiff’s

Requests for Admission begin with an identical and lengthy (300-plus words)

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The Rule continues that any denial “must fairly respond to the substance of the matter;
and when good faith requires that a party qualify an answer or deny only a part of a
matter, the answer must specify the part admitted and qualify or deny the rest. The
answering party may assert lack of knowledge or information as a reason for failing to
admit or deny only if the party states that it has made reasonable inquiry and that the
information it knows or can readily obtain is insufficient to enable it to admit or deny.”
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section entitled “General Objections.” (See Doc. 266-1, at 2; Doc. 266-2, at 2;
Doc. 266-3, at 2.) Defendants basically contend that the Requests, “individually
and collectively, … constitute a misuse of requests for admission” and
“individually and collectively, are argumentative, misleading, and present selected
facts out of context.” (Id.) Defendants also object to the “vague, argumentative
and compound” definition of the term “neurological examination” in the Requests.
(Id.)
This Court has “repeatedly condemned the use of ‘boilerplate’ or blanket
objections,” which this Court has defined as “general objections either not linked
to a specific request, or objections within a specific request but which are so
general in nature that the requesting party cannot determine whether information or
documents are being withheld pursuant to the objection.2 Nyanjom v. Hawker
Beechcraft, Inc., No. 12-1461-JAR-KGG, 2014 WL 2135997, at *1 (D. Kan. May
22, 2014).
Objections of this type do not provide the requesting
party or the Court any way to evaluate the validity of the
objection … . Generally, such objections can be easily
spotted because they either appear as General Objections
not linked to a specific request, or they are worded as
objections ‘to the extent’ or ‘insofar as’ the request is
objectionable. An answer ‘subject to’ such objection is
incomplete. The undersigned generally views such

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The Court would identify the objections at issue as blanket-type objections –
encompassing all of the Requests as opposed to being linked to a specific request – rather
than boilerplate objections, which are improperly general in nature.
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objections as improper and ineffective to preserve any
valid objections.
Id. (emphasis added). Plaintiff contends that “it is impossible to tell which of the
three blanket ‘General Objections’ apply to which [Request for Admission].”
(Doc. 266, at 6.) Plaintiff continues that “[c]ounsel has no way of telling which
specific parts of which specific [Request] any of the three objections apply.” (Id.)
The Court agrees.  
The Court thus finds the first two paragraphs of “general objections”
included at the beginning of Defendants’ responses to the Requests for Admission
to be improper and STRIKES them, without prejudice. The Court notes that
these objections have less to do with responding to the particular Requests and
more to do with presenting this evidence at the time of trial or including it in the
Pretrial Order. (See Doc. 276, at 7-11.) Notwithstanding the Court’s ruling herein,
such issues still may be raised by Defendants at the Pretrial Conference or at the
time of trial in the context of presenting this information to the jury or the trial
court. Defendants are instructed to provide supplemental responses, removing
these objections, within thirty (30) days of the date of this Order.
The third paragraph of the “general objections” relates to the resident
Defendants’ concerns with Plaintiff’s definition of the term “neurological
examination.” Plaintiff’s Requests include the following definition of the term:
“A systematic examination of the nervous system, including an assessment of
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mental status, of the function of each of the cranial nerves, of sensory and
neuromuscular function, of the reflexes, and of proprioception and other cerebellar
functions.”3 (See Doc. 266-1, at 1.) In their “general objections,” Defendants
contend that this definition of the term
is vague, argumentative and compound. The use of such
definition again serves to present a misleading
description of the events of care. No reasonable
explanation or qualification of the admissions regarding
‘neurological examination’ can be made without a
lengthy narrative. Such explanation or qualification
would require description of the examination which was
performed, and discussion of whether or not an
examination of the type defined was called for under the
circumstances. This effectively turns the requests into
discovery requests, rather than requests for admissions.
(Doc. 266-1, at 2; Doc. 266-2, at 2; Doc. 266-3, at 2.)
That stated, Defendants responses to the Requests including the term
“neurological examination” incorporate Plaintiff’s definition into their response.
For instance, Request No. 1 asks Defendants to admit or deny that “you did not
perform a neurological examination on Dorian Morgan on March 6, 2017 before
10:00 a.m.” (Doc. 266-1, at 3; Doc. 266-2, at 3; Doc. 266-3, at 3.) Defendants

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Plaintiff’s Requests are not included as an exhibit to the briefing. Only Defendants’
responses have been attached. This is acceptable pursuant to D. Kan. Rule 37.1. That
stated, the Court can only surmise that Plaintiff’s definition of “neurological
examination” was included in an introductory “definitions” section of the Requests
served on the resident Defendants. If so, Defendants’ inclusion of this objection in an
introductory section of their responses is a proper use of an introductory “general
objection.”
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each reference their general objections, but, “[w]ithout waiving such objections,”
admit that they “did not perform the type of neurological examination defined
above on Dorian Morgan.” (Id.) Defendants’ responses to Requests Nos. 2, 9, 10,
17, which also include the term, are similar, as they reference their general
objections but then answer in the context of the “type of neurological examination
defined above…” (Doc. 266-1, at 3, 5, 7; Doc. 266-2, at 3, 5, 6, 8; Doc. 266-3, at
3, 6, 8.)
Because Defendants have incorporated Plaintiff’s definition of the term
“neurological examination” into their responses, the objections stated as to the
term are superfluous and, as to the responses, without effect. The responses were
provided based on the definition propounded. Thus, Plaintiff’s motion as to this
objection is DENIED.
III.

Request No. 32 to Dr. Hartpence.
Plaintiff’s Request for Admission No. 32 to Dr. Hartpence asked him to

admit he “wrote Orders on March 6, 2017[,] requesting vital signs be taken every
hour.” (Doc. 266-3, at 13.) Dr. Hartpence responded by incorporating his general
objections, then, admitted “that the Orders, as entered into the electronic record,
reflect an order for vital signs to be taken every hour.” (Id.) He continues,
however, by denying “that this was his intent, and believes that the wrong order set
was inadvertently selected when the orders were entered into the electronic
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record.” (Id.) Plaintiff argues that it was improper for Dr. Hartpence to deny the
response with a qualification that he did not intend to write the order. (Id.)
Plaintiff continues that
the fact is that he did write the Order and it appears in the
medical record. The Request does not seek his intent.
The request seeks whether he wrote the Orders or not –
yes or no. Setting aside how a doctor can unintentionally
write orders for his patient, attempting to deny a fact
based on subsequent intent is improper. It is also
speculative that Dr. Hartpence now ‘believes’ the Order
was ‘inadvertently’ selected. As such, Dr. Hartpence
should be Ordered to correct his response to RFA 32 to
reflect the truth that he wrote the Orders.
(Id.)
Defendants respond that deposition testimony of Dr. Borick – which was
given prior to the filing of Plaintiff’s motion – establishes that the electronic
medical record, “as it presently exists, likely does not reflect the order entered by
Dr. Hartpence, but rather reflects the order as later modified by Dr. Borick after the
Plaintiff was transferred to the pediatric intensive care unit.” (Doc. 276, at 18.)
Defendants argue that “[i]t is beyond reason … that Plaintiff would now demand
that Dr. Hartpence nonetheless make an unqualified admission as requested by the
Plaintiff. (Id.) Defendants continue that
[i]t now appears that, most likely, Dr. Hartpence’s
conclusion that he may have selected the wrong order set
when he entered orders for vital signs around the time of
admission was incorrect. Defendant believes that
additional discovery regarding the history of the
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electronic medical record may further clarify the question
regarding his initial order for vital signs. That discovery
has not yet occurred, but Defendant anticipates that it
will occur at the appropriate time. Following such
discovery, Defendant anticipates that he will file a
motion asking for leave to modify his response
to Request for Admission number 32, to allow him to
simply deny the request. At the time the requests for
admissions were initially answered, Defendant Hartpence
gave the best answer he was able to provide. It would be
both unfair and prejudicial for the Court to simply force
an admission of this request, particularly in light of the
testimony of Dr. Borick, which suggests that the order
which now appears in the record was not the order of Dr.
Hartpence, but rather her modification of the order at a
later time.
(Id., at 22.)
Plaintiff’s reply brief does not discuss Dr. Hartpence’s response to Request
No. 32. As such, the Court finds Defendants’ arguments as to this Request to be
uncontested. Plaintiff’s motion is DENIED as to Request No. 32.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel (Doc.
266) is GRANTED in part and DENIED in part as set forth more fully herein.
Supplemental responses removing the objections at issue are to be provided within
thirty (30) days of the date of this Order.

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IT IS SO ORDERED.
Dated this 9th day of May, 2019, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

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