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Plaintiff prevails on motions involving admissions

A bare statement that a party lacks information to respond to a request for admissions isn’t enough when a party had an opportunity to take a deposition to frame a response, an Augusta County judge has ruled.

Moreover, Circuit Judge Thomas H. Wood said, a party can’t avoid responding to a request for admissions merely because the request involves expert opinion.

Wood made those rulings in a discovery dispute stemming from a claim that a patient suffered brain damage and other injuries from an allergic reaction to morphine or hydromorphone.

The patient, Kenneth E. Smith, had an intrathecal pump installed to treat chronic back pain. The pump dispenses painkillers into the spinal fluid, and the medication is inserted into the pump through a syringe.

Smith is allergic to opiates, and his treating physicians had specified that the medication he received in December 2004 was not to have morphine or other opiates in it, according to his attorneys, Anthony M. Russell of Roanoke and Roger A. Ritchie Jr. of Harrisonburg.

The syringe was supplied by Priority Healthcare Corp., which was purchased by Express Scripts Inc. in 2005 and now operates as CuraScript. The label on the medication indicated that it contained the nonmorphine-based painkillers specified by Smith’s physicians.

However, Russell and Ritchie contend that the syringe contained morphine or hydromorphone, which caused an allergic reaction that resulted in neurological, urological and gastrointestinal complications. They allege that Smith has difficulty with memory because of brain damage associated with the reaction.

Laboratory tests of the medication in the pump and of the residue in the syringe disclosed the presence of morphine and hydromorphone.

Smith sued the physicians and Priority Healthcare in December 2006, and his attorneys filed requests for admissions asking the company to admit that he had received the drugs through the intrathecal pump and that they were the cause of his injuries.

The company responded that it had “made a reasonable inquiry into the matter [and the] information currently known or readily available obtainable by PHC is insufficient to enable PHC to admit or deny this request.” The company also said it did not have to respond to the request related to causation because Smith was seeking an expert opinion from it. Smith had the burden of proving causation through its own expert, the company said.

Russell and Ritchie filed a motion to have the requests for admission admitted.

In an opinion letter, Wood said Rule 4:11(a) allows requests for admissions “that relate to statements of opinion or fact or of the application of law to fact.” The rule contains no exception for expert opinions, Wood said.

Moreover, Wood said, Priority Healthcare’s refusal to admit or deny that the syringe contained morphine or hydromorphone because it did not have sufficient information after reasonable inquiry “is simply inappropriate.”

The company could have scheduled a deposition of those responsible for the laboratory report, Wood said, “but no deposition has been scheduled, and there would not appear to be any inclination on the part of the pharmaceutical defendant to try to discover what information” the laboratory has.

“It has every right to take the deposition of [the laboratory], and its steadfast refusal to do so and thereby, with a straight face, claim that it lacks information to either admit or deny is simply unacceptable,” he continued. “In the context of this case, the pharmaceutical defendants cannot justifiably claim that have made ‘reasonable inquiry.’ ”

The judge ordered the defendants to admit or deny requests for admission related to the laboratory tests by Aug. 1, a period of time that would allow them to depose the laboratory technicians. If they do not, the responses will be deemed admitted, he said.

Trial of the case is set for Jan. 9, with identification of plaintiffs’ experts required by Sept. 12 and discovery to be cut off 30 days before trial.

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