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Jennifer Afcan , Individually and On Behalf of Her Minor Son, J.A v. United States of America

May 13, 2011


The opinion of the court was delivered by: John W. Sedwick United States District Judge

ORDER AND OPINION [Re: Motion at Docket 161]


At docket 161, plaintiff Jennifer Afcan ("Afcan") moves pursuant to Federal Rule 37 for an award of expenses incurred in proving the applicable standard of care. Defendant the United States of America ("United States" or "the government") opposes the motion at docket 169. Afcan's reply is at docket 175. Oral argument was not requested and would not assist the court.


On October 10, 2009, Afcan formally requested that the United States "[a]dmit that the protocol for treating a patient who presents with an abscess and the signs and symptoms of the bacteria infection methicillin-resistant staphylococcus aureus is to incise and drain the infected tissue and administer an antibiotic to which methicillin-resistant staphylococcus aureus is not resistant."*fn1 The United States responded as follows: "This is an expert question and no answer is required until expert reports are due."*fn2 The United States did not supplement its response once expert reports had been filed. Afcan argues that sanctions are appropriate because she was forced to prove the standard of care at trial.*fn3


A. Rule 37(c)(2) Sanctions are Appropriate

Federal Rule 37(c)(2) provides that "[i]f a party fails to admit what is requested under Rule 36 and if the requesting party later proves . . . the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof."*fn4 The Rule instructs that "[t]he court must so order unless: (A) the request was held objectionable under Rule 36(a);

(B) the admission sought was of no substantial importance; (C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or (D) there was other good reason for the failure to admit."*fn5

The United States argues first that Afcan "should have addressed what she believed to be the inadequacies of the government's answers to admission requests" before trial.*fn6 Rule 37(c), however, "is intended to provide posttrial relief."*fn7 Consequently, the government's first argument fails.

The United States argues next that it "did not deny the request" and therefore, Rule 37 sanctions are not available.*fn8 Rule 37(c)(2) includes "within its scope all failures to admit," not just denials.*fn9 Because the United States did not admit the substance of the relevant request, it is immaterial that it did not deny it.

The United States argues that the requested admission would not have established the applicable standard of care.*fn10 It is conceivable that, even if the government made the requested admission, Afcan would have had to present some testimony equating protocol to the standard of care. Realistically, however, the requested admission would have resolved the issue--it is unlikely that the government would have taken the position that a protocol which it had admitted was the correct protocol was inconsistent with the standard of care.

The United States argues that there was good reason for its failure to admit insofar as the request "was made months before expert reports were due" and once reports were submitted, it "simply forgot to supplement its answer."*fn11 The court agrees that if forgetfulness sufficed as good reason, Rule 37(c)(2) would be rendered impotent.

Finally, the government argues it had reasonable ground to believe it might prevail on the issue. Afcan maintains the government could not have reasonably believed it would prevail on the issue given YKHC physicians' peer review of J.A.'s treatment, which concluded incision and drainage should have been done earlier. The government argues that it was "not bound by YKHC's evaluation which was done before extensive discovery was made."*fn12 The conclusions of the peer review significantly detract from the reasonableness of any ground the government had to believe it would prove that the standard of care was other than that stated in the request for admission. The government also argues that the YKHC guideline affords significant discretion. However, because the guideline ...

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