Beware Bogus Requests for Admission
Under Rule 36 of both the Federal Rules of Civil Procedure and the Alabama Rules of Civil Procedure, a party to a lawsuit is entitled to make Requests for Admission to the opposing party. Recently, I have seen a growing trend in personal injury cases in which plaintiffs are making Requests for Admission beyond the scope of Rule 36 in an effort to prove liability, medical causation, reasonableness and necessity of medical treatment, and damages through these requests. Not only is this an abuse of Rule 36, but it can be a problem for defense lawyers who aren’t on top of discovery and whose cases are then “proven” from the outset if the requests are deemed admitted for failure to properly respond or object.
Scope of Requests for Admission
Federal Rule of Civil Procedure 36(a)
(a) Scope and Procedure.
(1) A party may serve on any other party a written request to admit, for purposes of the pending action only, 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.
Alabama Rule of Civil Procedure 36(a)
(a) Request for admission. 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 Rule 26(b)  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. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying.
Commonalities between FRCP 36 and ARCP 36
To be in conformity with the rules of civil procedure, Requests for Admission may seek admissions pertaining to: (1) statements or opinions of fact, (2) statements or opinions of the application of law to fact, or (3) the genuineness of any documents described in the request. That’s it. Clearly then, topics appropriate for Rule 36 requests are narrow.
Purpose of Requests for Admission
The Advisory Committee notes for Federal Rule of Civil Procedure 36 state that the rule serves “two vital purposes, both of which are designed to reduce trial time.” First, admissions sought should be construed to “facilitate proof with respect to issues that cannot be eliminated from the case.” Second, admissions should “narrow the issues by eliminating those that can be.” The federal advisory committee recognized that not all issues are intended to be resolved or are even appropriate for admissions requests: “Requests for admission involving the application of law to fact may create disputes between the parties which are best resolved in the presence of the judge after much or all of the other discovery has been completed.”
The Alabama rules committee piggybacked onto the federal advisory committee, stating: “The purpose of this rule is to expedite the trial and to relieve the parties of the cost of proving facts which will not be disputed at the trial and the truth of which can be ascertained by reasonable inquiry. The rule is self-sufficient, and clearly defines its purpose and limits its effect, and it should be liberally construed.”
The Supreme Court of Alabama has gone on to affirm this purpose as expressed by the rules committee: “The purpose behind Rule 36 is not discovery, but to establish a procedure “for facilitating the proof at the trial by weeding out facts and items of proof over which there is no dispute, but which are often difficult and expensive to prove.”
Examples of Bogus Requests for Admission
Example 1: Admit that within a reasonable degree of medical probability the injuries and medical conditions for which Plaintiff sought medical treatment from [Medical Provider] on [Date] were caused by the motor vehicle collision made the basis of this suit.
Example 2: Admit that the medical charges from [Medical Provider] in the amount of [$x,xxx.xx] for [Date] are reasonable and customary charges for the services rendered.
Example 3: Admit or deny that you are fully liable for the automobile accident that is the subject of the Complaint.
Responding and Objecting to Bogus Requests for Admission
Let’s start with the most important thing first – respond to Requests for Admission on time. Both federal and Alabama Rule 36 provide that a request for admission is deemed admitted if no answer or objection is filed within 30 days of the responding party being served. And any matter admitted under Rule 36 is “conclusively established” as a matter of law. If you fail to answer or object, you’re fighting an uphill battle. And if we can learn anything from Pickett’s Charge, uphill is no way to fight.
Rule 36 does provide some limitations on what objections are appropriate. For example, both FRCP 36 and ARCP 36 provide that the party responding to an admission request may not object solely on the ground that the request presents a genuine issue for trial. Once an objection has been made, the requesting party may then move the court to determine the sufficiency of the objection. If the court determines the objection is not justified, it will then order that the responding party respond to the request.
Responding to Examples 1 and 2
Example 1 is problematic in that it calls for expert testimony. Only a medical professional can testify to anything “within a reasonable degree of medical probability.” Additionally, it calls for a legal conclusion in that it seeks an admission that the alleged injuries were “were caused by the motor vehicle collision.” This second part might loosely be construed as applying the law to facts, but I’d say that’s a very loose interpretation. A more appropriate RFA might seek an admission that Plaintiff sought medical treatment from the Medical Provider on the date in question, but leave the issues of reasonableness and causation to be answered by experts.
Similarly, Example 2 seeks an admission of the reasonableness, not of the treatment, but of the charges for the treatment. This too calls for expert testimony. An appropriate RFA could instead request an admission that the Medical Provider charged the particular amount for their services on the particular date, but not that the amount was reasonable.
Both Examples 1 and 2 could seek admission as to the medical or billing records in question.
But the question remains: when you receive one of these bogus Requests for Admission, how should you respond? Object to your heart’s content. Here is a sample of an appropriate and effective objection in Alabama state court to both Examples 1 and 2:
Defendant objects to this request because it is beyond the scope of Alabama Rule of Civil Procedure 36, invades the province of the jury, and calls for expert medical testimony, and is therefore improper. Furthermore, Defendant objects to this request in that the burden of proof is upon the Plaintiff to show that any claimed injuries or damages are related to the subject incident; it is not the Defendant’s burden to prove a negative. The rule has long been established that the party claiming damages has the burden of establishing the existence of and amount of those damages by competent evidence. See Smith v. Richardson, 171 So.2d 96 (Ala. 1965). A plaintiff is limited to recovering only those damages that he can prove to be related to his claimed injuries. See Jenkins v. Lincoln Elec. Co., 103 So.3d 1 (Ala. 2011). Moreover, “a plaintiff’s damages are never an element of an asserted defense,” and “it is the plaintiff’s responsibility to prove damages,” rather than the defendant’s burden to disprove the plaintiff’s damages. Jenkins, 130 So.3d at 10. To the extent that an answer is required, denied.
Responding to Example 3
Example 3 makes no bones about calling for a legal conclusion. It is not applying any facts to its statement of legal causation, and it invades the province of the finder of fact. Here is a sample of an appropriate response to such a request:
Defendant objects to this request because it is beyond the scope of Alabama Rule of Civil Procedure 36, invades the province of the jury, and calls for a legal conclusion. Defendant further objects to this request in that the burden of proof is upon the Plaintiff to show causation related to the subject incident; it is not the Defendant’s burden to prove a negative. To the extent that an answer is required, denied.
I don’t necessarily blame plaintiff’s counsel for filing bogus requests for admission like these. There are rarely negative repercussions. The court doesn’t care, and even if it were inclined to care, the court isn’t going to issue any sanctions over it. The only negative result is that such requests may give defense counsel an opportunity to object to the requests, rendering plaintiff’s counsel unable to find common ground and narrow the issues in the case.
These bogus requests for admission that don’t conform to the rules of civil procedure are becoming increasingly common. Be aware of them. And know how to respond.
 Ala. R. Civ. P. 26(b)(1) reads in pertinent part: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.”
 Notes of Advisory Committee on Rules—1970 Amendment to Federal Rule of Civil Procedure 36.
 Committee Comments on 1973 Adoption of amendments to Alabama Rule of Civil Procedure 36.
 Evans v. Ins. Co. of N. Am., 349 So. 2d 1099, 1101 (Ala. 1977).
 Ala. R. Civ. Proc. 36(b). In furtherance of this point, a trial court does not abuse its discretion to base summary judgment on matters that were deemed to admitted due a party’s failure to serve a written response to requests for admissions. See Bryant v. Robledo, 938 So.2d 413 (Ala.Civ.App. 2005); Thomson v. Bank, 506 So.2d 1012 (Ala.Civ.App. 1987); Steadham v. U. S. Leasing Corp., 382 So.2d 563 (Ala.Civ.App. 1980).
Photo by Elyse.