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LAW OFFICES OF
CONSIGLI AND
BRUCATO, P.C
189 MAIN STREET
P.O, BOX 170
MILFORD, MA 01757
(608)478-2054
FAX (508)478-7394
COMMONWEALTH OF MASSACHUSETTS
WORCESTER, SS: SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO. 1685CV01055C
CIDALIA D. RYBAK,
Plaintiff eu iD
teal
vs WAR sone
ATIEST: K
SARAT CHANDRA UMMETHALA, oLerl aN
Defendant )
PLAINTIFF’S MEMORANDUM IN SUPPORT OF HER MOTION TO WITHDRAW
HER ADMISSIONS TO DEFENDANT’S REQUESTS FOR ADMISSION AND THAT
SHE BE PERMITTITED TO RESPOND NOW
STATEMENT OF CASE
In this an action, the plaintiff, Cidalia D. Rybak, seeks damages for personal injuries
sustained by her as a result of the defendant’s negligence in connection with the dental services
he provided to her on July 18, 2013. The plaintiff filed the Complaint on July 15, 2016 and an
Amended Complaint on October 31,2016. The defendant filed his answer to the amended
complaint and a request for a medical malpractice tribunal in accordance with M.G.L. Chapter
231, Section 60B on November 3, 2016.
Prior to the convening of a Medical Malpractice Tribunal, the defendant’s counsel
conducted extensive discovery including Requests for Production of Documents, Interrogatories,
oral deposition of the plaintiff and numerous applications for hospital records. The defendant’s
counsel also obtained numerous Releases from the plaintiff permitting the defendant to receive
literally all medical records related to the plaintiff, her tax records, her employment records and
records of her medical bills.
WwLAW OFFICES OF
CONSIGLI AND
BRUCATO, P.C
189 MAIN STREET
P.O. BOX 170
MILFORD, MA 01757
(03)478-2054
FAX (508)478-7394
Though the process has involved an enormous amount of time as well as volumes of
documents and correspondences between counsel, the plaintiff attempted to be cooperative
throughout.
By letter dated May 10, 2017, defendant’s counsel forwarded to the plaintiffs counsel
the packet attached hereto as Exhibit A. The final document in the packet was First Requests for
Admissions by the Plaintiff. The plaintiff failed to respond to said requests and the defendant
has taken the requests as admitted. The plaintiff now has filed a.motion to withdraw her
admissions and to be permitted to respond now. She has included: with her motion her responses.
This is her memorandum in support of her motion.
ISSUE
SHOULD THE PLAINTIFF’S MOTION TO WITHDRAW HER ADMISSIONS AND
RESPONDI TO DEFENDANT’S REQUESTS FOR ADMISSION NOW BE ALLOWED?
ARGUMENT
THE PLAINTIFF’S MOTION TO WITHDRAW HER ADMISSIONS AND RESPOND|
TO DEFENDANT’S REQUESTS FOR ADMISSION NOW MUST BE ALLOWED.
1. Rule 36(b) of the MRCP permits the court to withdraw an admission “when the
presentation of the merits of the action will be subserved thereby and the party
who obtained the admission fails to satisfy the court that withdrawal or
amendment will prejudice him in maintaining his action or defense on the
merits.""
The requests of the defendant focus on whether the plaintiff intends to pursue a claim for|
discrete emotional injury which the plaintiff has every intention of pursuing. During the course
of discovery thus far, the defendant has sought and received plaintiff's permission to obtain all
records relative to her treatment for emotional damages. The defendant has sent for and received
theses records and cannot argue or establish that he is prejudiced in any way.‘LAW OFFICES OF
CONSIGLI AND
BRUCATO, P.C
189 MAIN STREET
P.O. BOX 170
MILFORD, MA 01757
(608)478-2054
FAX (508)478-7394
2. Issues were not joined at the time of the defendant's filing of his requests
inasmuch as a Medical Malpractice Tribunal had not been held to determine “if
the evidence presented if properly substantiated is sufficient to raise a legitimate
question of liability appropriate for judicial inquiry or whether the plaintiff's
case is merely an unfortunate medical result.” In accordance with M.G.L.
Chapter 231, Section 60B.
The defendant did not seek court approval prior to initiating discovery prior to a Tribunal
finding. (See Taylor v. Radiology Associates of Norwood, Inc., D.C.Mass.1984, 101 F.R.D. 345.
By answering the discovery requests the plaintiff tacitly agreed to discovery. On the other hand,
issues had not been drawn until the Tribunal permitted the case to’ proceed. It is the plaintiff's
position that sanctions for failures to comply with what amounts to voluntary discovery cannot
and should not be permitted until after the Tribunal’s decision.
3. Service of the requests for admission was improper imasmuch as they were not
independently served in the usual manner, but were buried in a letter from
defendant’s counsel, which contained seven Authorizations for Release of
Records, an Application for Order for Record of Whittier Rehabilitation
Hospital, Affidavit of Counsel and a proposed Order.
The plaintiff has not filed any discovery requests, choosing to await the ruling of the
. 1
Tribunal. The defendant’s discovery requests have been extensive and have resulted in a
massive amount of documents being produced and a massive number of correspondences from
the defendant’s counsel to plaintiff's counsel, the court as well as medical providers, employers
and others. In many cases, the packets sent by defendant’s counsel contained multiple different
items.
Exhibit A attached to plaintiff's motion is the correspondence packet from defendant's
counsel containing the Requests for Admissions. As can readily be seen, the Requests were theLAW OFFICES OF
CONSIGLIAND
BRUCATO, P.C.
189 MAIN STREET
P.O. BOX 170
MILFORD, MA 01757
(508)478-2054
FAX (508)478-7394
last item mentioned in the letter and the last document included in the packet. Plaintiff's counsel
inadvertently missed the Requests and did not file timely responses.
Counsel’s inadvertence is both understandable and excusable. Generally, formal
discovery requests are sent by letter to counsel separate from other documents and the letters are
obvious in the identification of the requests.
Furthermore, plaintiff's counsel did however confirm to defendant’s counsel that she was
asserting an emotional damages claim and the defendant thereafter obtained the records
mentioned in the letter.
CONCLUSION
For all of the foregoing reasons, the plaintiff’s motion must be allowed.
CONSK
&
uzetie A. Férreird BBO #665765
suzette@consigliandbrucato.com
189 Main Street
Post Office Box 170
Milford, Massachusetts 01757
(508)478-2054
Preview
LAW OFFICES OF CONSIGLI AND BRUCATO, P.C 189 MAIN STREET P.O, BOX 170 MILFORD, MA 01757 (608)478-2054 FAX (508)478-7394 COMMONWEALTH OF MASSACHUSETTS WORCESTER, SS: SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 1685CV01055C CIDALIA D. RYBAK, Plaintiff eu iD teal vs WAR sone ATIEST: K SARAT CHANDRA UMMETHALA, oLerl aN Defendant ) PLAINTIFF’S MEMORANDUM IN SUPPORT OF HER MOTION TO WITHDRAW HER ADMISSIONS TO DEFENDANT’S REQUESTS FOR ADMISSION AND THAT SHE BE PERMITTITED TO RESPOND NOW STATEMENT OF CASE In this an action, the plaintiff, Cidalia D. Rybak, seeks damages for personal injuries sustained by her as a result of the defendant’s negligence in connection with the dental services he provided to her on July 18, 2013. The plaintiff filed the Complaint on July 15, 2016 and an Amended Complaint on October 31,2016. The defendant filed his answer to the amended complaint and a request for a medical malpractice tribunal in accordance with M.G.L. Chapter 231, Section 60B on November 3, 2016. Prior to the convening of a Medical Malpractice Tribunal, the defendant’s counsel conducted extensive discovery including Requests for Production of Documents, Interrogatories, oral deposition of the plaintiff and numerous applications for hospital records. The defendant’s counsel also obtained numerous Releases from the plaintiff permitting the defendant to receive literally all medical records related to the plaintiff, her tax records, her employment records and records of her medical bills. WwLAW OFFICES OF CONSIGLI AND BRUCATO, P.C 189 MAIN STREET P.O. BOX 170 MILFORD, MA 01757 (03)478-2054 FAX (508)478-7394 Though the process has involved an enormous amount of time as well as volumes of documents and correspondences between counsel, the plaintiff attempted to be cooperative throughout. By letter dated May 10, 2017, defendant’s counsel forwarded to the plaintiffs counsel the packet attached hereto as Exhibit A. The final document in the packet was First Requests for Admissions by the Plaintiff. The plaintiff failed to respond to said requests and the defendant has taken the requests as admitted. The plaintiff now has filed a.motion to withdraw her admissions and to be permitted to respond now. She has included: with her motion her responses. This is her memorandum in support of her motion. ISSUE SHOULD THE PLAINTIFF’S MOTION TO WITHDRAW HER ADMISSIONS AND RESPONDI TO DEFENDANT’S REQUESTS FOR ADMISSION NOW BE ALLOWED? ARGUMENT THE PLAINTIFF’S MOTION TO WITHDRAW HER ADMISSIONS AND RESPOND| TO DEFENDANT’S REQUESTS FOR ADMISSION NOW MUST BE ALLOWED. 1. Rule 36(b) of the MRCP permits the court to withdraw an admission “when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits."" The requests of the defendant focus on whether the plaintiff intends to pursue a claim for| discrete emotional injury which the plaintiff has every intention of pursuing. During the course of discovery thus far, the defendant has sought and received plaintiff's permission to obtain all records relative to her treatment for emotional damages. The defendant has sent for and received theses records and cannot argue or establish that he is prejudiced in any way.‘LAW OFFICES OF CONSIGLI AND BRUCATO, P.C 189 MAIN STREET P.O. BOX 170 MILFORD, MA 01757 (608)478-2054 FAX (508)478-7394 2. Issues were not joined at the time of the defendant's filing of his requests inasmuch as a Medical Malpractice Tribunal had not been held to determine “if the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff's case is merely an unfortunate medical result.” In accordance with M.G.L. Chapter 231, Section 60B. The defendant did not seek court approval prior to initiating discovery prior to a Tribunal finding. (See Taylor v. Radiology Associates of Norwood, Inc., D.C.Mass.1984, 101 F.R.D. 345. By answering the discovery requests the plaintiff tacitly agreed to discovery. On the other hand, issues had not been drawn until the Tribunal permitted the case to’ proceed. It is the plaintiff's position that sanctions for failures to comply with what amounts to voluntary discovery cannot and should not be permitted until after the Tribunal’s decision. 3. Service of the requests for admission was improper imasmuch as they were not independently served in the usual manner, but were buried in a letter from defendant’s counsel, which contained seven Authorizations for Release of Records, an Application for Order for Record of Whittier Rehabilitation Hospital, Affidavit of Counsel and a proposed Order. The plaintiff has not filed any discovery requests, choosing to await the ruling of the . 1 Tribunal. The defendant’s discovery requests have been extensive and have resulted in a massive amount of documents being produced and a massive number of correspondences from the defendant’s counsel to plaintiff's counsel, the court as well as medical providers, employers and others. In many cases, the packets sent by defendant’s counsel contained multiple different items. Exhibit A attached to plaintiff's motion is the correspondence packet from defendant's counsel containing the Requests for Admissions. As can readily be seen, the Requests were theLAW OFFICES OF CONSIGLIAND BRUCATO, P.C. 189 MAIN STREET P.O. BOX 170 MILFORD, MA 01757 (508)478-2054 FAX (508)478-7394 last item mentioned in the letter and the last document included in the packet. Plaintiff's counsel inadvertently missed the Requests and did not file timely responses. Counsel’s inadvertence is both understandable and excusable. Generally, formal discovery requests are sent by letter to counsel separate from other documents and the letters are obvious in the identification of the requests. Furthermore, plaintiff's counsel did however confirm to defendant’s counsel that she was asserting an emotional damages claim and the defendant thereafter obtained the records mentioned in the letter. CONCLUSION For all of the foregoing reasons, the plaintiff’s motion must be allowed. CONSK & uzetie A. Férreird BBO #665765 suzette@consigliandbrucato.com 189 Main Street Post Office Box 170 Milford, Massachusetts 01757 (508)478-2054