This is a review of a decision of the Wisconsin Court of Appeals, District I (headquartered in Milwaukee), which affirmed a ruling of the Milwaukee County Circuit Court, Judge Christopher Foley presiding.
This is a medical malpractice case in which the plaintiffs (Tywanda F. Luckett, now deceased, and her family) were permitted, two weeks before trial, to withdraw a pre-trial admission about Luckett’s cognitive functioning in the years before her death. The petitioners (medical providers and insurers) have asked the Supreme Court to review the ruling that permitted Luckett to withdraw this admission, and to clarify the rules governing a process called ‘discovery’, under which parties to a lawsuit gather relevant information and documents from the other side prior to trial.
Here is the background: Tywanda Luckett experienced complications after a tubal ligation in August 2000. While in intensive care, she suffered cardiac arrest resulting in permanent severe brain damage, apparently due to the administration of certain drugs. In September 2000, she was transferred to a rehabilitation center, where she remained until her death in August 2005.
Luckett’s family filed this lawsuit in 2003. In July 2005, just prior to Luckett’s death, Luckett’s attorney made the following three admissions that are the focus of this case:
1. That Tywanda Luckett is presently in a persistent vegetative state.
2. That Tywanda Luckett has been in a persistent vegetative state since she was admitted to the Silver Spring Health and Rehabilitation Center.
3: That the persistent vegetative state of Tywanda Luckett is permanent.
Luckett’s lawyer changed his mind about these admissions two weeks prior to the trial. He sent an e-mail to opposing counsel indicating he had been mistaken, and quoting doctors’ notes that referenced possible glimmers of understanding and awareness from Luckett. He claimed to have been unaware of these medical records.
A hearing was held in the circuit court, with the defendants (medical providers) arguing against withdrawal. They argued that it would prejudice their case by forcing them to conduct new discovery and exposing them to potentially greater losses. Two of the defendants also claimed prejudice because Luckett’s death after the withdrawal prevented them from conducting an independent medical examination of her condition. They noted that Luckett’s lawyer had had access to the medical records for four years.
The circuit court sided with the plaintiffs, concluding that permitting the withdrawal would not unduly prejudice the defense. The majority of the Court of Appeals agreed, finding that the judge had properly exercised his discretion in permitting the withdrawal, and that the withdrawal – while causing problems for the defense – did not rise to the level of prejudicing the defense. Judge Ralph Adam Fine dissented, however, writing, “The prejudice to the defendants here is palpable and outrageous.”
Now the defendants have come to the Supreme Court, which is expected to clarify the standard in Wis. Stat. § 804.11(2) for determining prejudice when deciding whether to grant withdrawal of a pre-trial admission.
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Saturday, January 3, 2009
(2007AP308) Oral Argument Synopses January 2009, posted January 2, 2009 [html | pdf]