Opinion
Civ. No. H-95-2241.
May 1999.
MEMORANDUM AND ORDER
On December 1, 1998, defendant Oncology Associates, P.C. ("Oncology") served upon plaintiff United States of America a "Request for Admission" under Rule 36, F.R.Civ.P. The government was requested to admit the truth of twenty-one separate statements, termed "Admission No. 1, Admission No. 2," etc. On December 31, 1998, the government responded by objecting to all of the requests.
On January 8, 1999, defendant Oncology filed a motion to have its requests for admissions deemed admitted and to strike the government's objections thereto. In its Memorandum and Order of April 15, 1999, the Court denied that motion on the ground that defendant had not complied with Local Rule 104.7. Defendants then moved for reconsideration of that ruling, asserting that the parties had in fact met and conferred without success in an attempt to resolve this discovery dispute. The certificate required by Local Rule 104.7 was submitted with that motion. By Order dated April 22, 1999, the Court granted defendants' motion for reconsideration. Defendant Oncology has recently filed a reply memorandum in support of its motion to have its requests admitted and to strike the government's objections. Defendant's motion is now pending before the Court for decision.
The Court has now had an opportunity to review the memoranda and exhibits submitted by the parties in support of and in opposition to this pending motion. No hearing is necessary. See Local Rule 105.6. For the reasons stated herein, defendant's motion to strike the government's objections to its requests for admission and to have its requests admitted will be granted in part and denied in part.
I Applicable Principles of Law
Rule 36(a) allows a party to serve upon any other party "a written request for the admission . . . of the truth of any matters within the scope of Rule 26(b)(1) . . . that relate to statements or opinions of fact or of the application of law to fact. . . ." Requests calling for the admission of a pure question of law are inappropriate. Fulhorst v. United Tech. Automotive , 1997 WL 873548, *2 (D.Del. 1997); Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Company, Inc . , 130 F.R.D. 92, 96 (N.D.Ind. 1990).
"`[E]ach request should be limited to a single point and stated clearly, unambiguously, and without argument.'" Audiotext Comm. Network, Inc. v. U.S. Telecom, Inc . , 1995 WL 625744, *3 (D. Kan. 1995) (unpublished) (quoting Judge William W. Schwarzer et al., Civil Discovery and Mandatory Disclosure: A Guide to Efficient Practice , 5-6 (2d ed. 1994)). The party upon whom the request for admissions is served must provide a good faith response that "fairly meet[s] the substance of the requested admission[s]." Rule 36(a). If the answering party objects to the requested admission, it should specifically state the grounds for its objection. Id . "Parties should not seek to evade disclosure by quibbling and objection. They should admit to the fullest extent possible, and explain in detail why other portions of a request may not be admitted." Marchand v. Mercy Med. Ctr . , 22 F.3d 933, 938 (9th Cir. 1994).
Pursuant to Rule 36(a), the party requesting admissions may move to determine the sufficiency of the answers or objections. Upon such motion, the court must determine whether an objection is justified or whether an answer should be served. Id . "If the court determines that an answer does not comply with the requirements of [Rule 36], it may order either that the matter is admitted or that an amended answer be served." Id .
"Rule 36 serves two vital purposes, both of which are designed to reduce trial time." Advisory Committee's Note to Rule 36 (1970 Amendments). Admissions made by a party (1) facilitate proof of disputed, relevant issues in advance of a trial, and (2) narrow the scope of the trial by delineating issues that are not in dispute. Id . Rule 36 "is intended to expedite the trial and to relieve the parties of the cost of proving facts that will not be disputed at trial, the truth of which is known to the parties or can be ascertained by reasonable inquiry." 8A Wright, Miller, Marcus, Federal Practice and Procedure § 2252; see also Wigler v. Electronic Data Sys. Corp . , 108 F.R.D. 204, 205 (D.Md. 1985).
These principles will be applied to the discovery dispute presently pending before the Court.
II Discussion
The government has first stated a general objection to all of defendants' requests for admissions on the ground that the requests are overly burdensome, cumulative, and constitute harassment because they were served contemporaneously with extensive document requests and interrogatories. This general objection will be overruled. There is nothing in Rule 36 prohibiting a party from serving requests for admissions contemporaneously with document requests and interrogatories. Rule 36 allows inquiry into any matter within the scope of Rule 26(b)(1). If a particular request seeks the same information requested by interrogatories, the government should have specified which requests are redundant and why.
Next, the government has stated in the same basic language "specific" objections to all 21 requests, as follows:
In addition to the General Objection set forth above, the United States objects to this request on the grounds that it does not relate to statements or opinions of fact, or of the application of law to fact, but rather seeks legal conclusions and opinions of law regarding the duties and obligations of HCFA and Medicare Carriers and Intermediaries. See Fed.R.Civ.P. 36(a). The United States further objects to this request on the grounds that it is vague, overly broad, unduly burdensome, and seeks information that is neither relevant to the subject matter involved in this action nor reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1) and 36(a).The government's primary objection is that all but two of defendants' requests for admission ask the government to concede that Medicare carriers have certain duties towards Medicare providers. For example, Admission No. 1 states that a Medicare carrier "must notify" a Medicare provider of the results of any Comprehensive Medical Review and Admission No. 2 states that Medicare carriers "must alert" a provider that he or she is being monitored for unusual billing practices.
The government's objections to Requests Nos. 7 and 9 contain this same language, but omit the phrase "regarding the duties and obligations of HCFA and Medicare Carriers and Intermediaries."
Requests Nos. 7 and 9 seek statements of opinion or belief. Request No. 7 asks the government to admit that "Medicare billing code discrepancies can be subjective and do not necessarily reflect fraud or abuse." Request No. 9 asks the government to admit that "Medicare billing errors are inevitable."
These kinds of requests for admissions, if properly framed, are permitted by Rule 36. Rule 36 was amended in 1970 to clarify that the Rule permitted requests for admissions, not only "of fact," but of "mixed questions of law and fact." Advisory Committee Note to Rule 36(a) (1970 Amendment). The only impermissible requests under the Rule are "requests for admissions of law unrelated to the facts of the case." Id . Thus, even though some of defendant's requests ask the government to admit legal duties, they are not objectionable on the ground that they ask for the admissions of questions of law, inasmuch as they involve the application of law to the facts of the case. See First Options of Chicago, Inc. v. Wallenstein , 1996 WL 729816, *3 (E.D.Pa.) (holding that requests seeking the admission that a defendant owed specific fiduciary duties are permissible); cf . Marchand v. Mercy Med. Ctr . , 22 F.d. 933, 937-38 (9th Cir. 1994) (holding that a defendant physician should have admitted, inter alia , that his actions failed to comply with the applicable standard of care and that plaintiff's injuries were caused by his negligence); Ransom v. United States , 8 Ct. Cl. 646, 648 (1985) (request for admission that certain actions created privity of contract is permissible).
It is admittedly difficult to draw clear distinctions between questions of fact, questions of law, and mixed questions of law and fact. In a related context, the Supreme Court has noted the "vexing nature of the distinction" and has observed that "we [do not] yet know of any [ ] rule or principle that will unerringly distinguish a factual finding from a legal conclusion." Pullman-Standard v. Swint , 456 U.S. 273, 288 (1982).
The government's remaining objections are that the requests are vague, overly broad and unduly burdensome, and that they seek irrelevant information. In stating these objections in general terms, counsel for the government has ignored the spirit of Rule 36 by failing to spell out specifically why each challenged request is improper. It has therefore been necessary for the Court to assume the burden of independently evaluating the particular language of each request.
The government's objections based on relevancy must be rejected out of hand. "Relevancy is broadly construed at the discovery stage of the litigation and a request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action." Smith v. MCI Telecomm. Corp . , 137 F.R.D. 25, 27 (D. Kan. 1991). It appears that, as a part of their trial strategy, defendants will argue that their reliance on the actions of the Medicare carriers prevented them from having the requisite intent to submit false claims for the purpose of defrauding the government. The requests for admissions at issue all properly relate to that trial strategy of the defendants.
Nevertheless, many of defendants' requests are vague, overly broad and argumentative. Although a party responding to requests for admissions should not quibble over the ambiguity of individual terms, see Audiotext , 1995 WL 625744, at *6, most of defendant's requests are overly broad and objectionable when considered as a whole. Following its review of all the requests, the Court is satisfied that the government properly objected to 13 of them and need not respond to those requests. The objectionable requests are as follows:
Admission No. 4: The Medicare Carrier/Intermediary must assist providers who furnish Medicare Part B services to develop procedures relating to utilization practices.
Admission No. 5: The Medicare Carrier/Intermediary must assist providers who furnish Medicare Part B services to apply safeguards against unnecessary utilization of services.
Admission No. 6: The Medicare Carrier/Intermediary must assist providers who furnish Medicare Part B services by developing procedures for utilization review, and establishing groups to perform such reviews of providers to whom it makes Medicare Part B payments.
Admission No. 7: The Health Care Finance Administration (HCFA) and the Office of the Inspector General (OIG) acknowledge that Medicare billing code discrepancies can be subjective and do not necessarily reflect fraud or abuse.
Admission No. 8 : It is incumbent upon HCFA and its Medicare Carriers/Intermediaries to issue clear, consistent instructions regarding billing procedures and other Medicare requirements.
Admission No. 9 : The Department of Heath and Human Services (HHS) and OIG believe that Medicare billing errors are inevitable.
Admission No. 10 : HCFA and its Medicare Carriers/Intermediaries have a responsibility to clearly and consistently delineate Medicare billing policies in a timely manner.
Admission No. 14 : The Medicare Carriers/Intermediary has an affirmative obligation to assist providers who desire to participate in the Medicare program.
Admission No. 16 : The Medicare Carriers/Intermediaries must under take specific efforts to notify and educate suppliers of non-physician health services rendered to hospital inpatients when the suppliers bill the beneficiary for services.
Admission No. 17 : The Medicare Carriers/Intermediaries must warn suppliers of non-physician health services rendered to hospital inpatients when the suppliers bill the beneficiary for services, of the potential consequences associated with such billings.
Admission No. 18 : The Medicare Carriers/Intermediaries must take affirmative action to identify any suppliers of non-physician health services rendered to hospital inpatients when the suppliers bill the beneficiary for services, who require additional education and to further educate such suppliers for a minimum period of three months, and compile appropriate documentation of its efforts.
Admission No. 20 : The Medicare Carriers/Intermediaries must serve as a channel for communication between HHS and/or HCFA and the Medicare provider for such information, instructions, and other materials as may be necessary for the effective and efficient performance of its contract with HCFA.
Admission No. 21 : The Medicare Carriers/Intermediaries must serve as a channel for communication between HHS and/or HCFA and the Medicare provider for such information, instructions, and other materials as may be necessary for the effective and efficient administration of the Medicare Act.These requests are replete with vague and overbroad words, terms and phrases, such as "assist," "it is incumbent," "specific efforts," etc. Consequently, they are not "direct" or "simple" and do not permit the government to admit or deny them in a straightforward manner. See , e.g . , Shartz v. Unified School District No. 512 , 1996 WL 686862, *3 (D.Kan. 1996) (failure to specify the meaning of specific terms in defendants' request for admissions rendered them ambiguous and improperly required plaintiff to speculate); Rhone-Poulenc Rorer, Inc. v. The Home Indemnity Co . , 1992 WL 394425, *5 (E.D.Pa.) (requests containing the terms "various means", "government officials", and "medical, scientific and other publications" were improperly vague and ambiguous); Dubin v. E.F. Hutton Group, Inc . , 125 F.R.D. 372, 375-76 (S.D.N.Y. 1989) ("The disputed Discovery Requests are not simple and concise statements of fact, but contain vague and ambiguous wording that does not allow defendants fairly to admit or to deny them.")
Requests Nos. 7 and 9 ask the government to admit that
Medicare billing code discrepancies "can be subjective" and that Medicare billing errors are "inevitable." Pursuant to the authorities cited herein, these requests are also "inexcusably broad and ambiguous." Cohen v. McDonnell Douglas Corp . , 1993 WL 835297, *3 (E.D.Mo.) (sustaining an objection to a request that asked the defendant to admit that a company "was responsible" for certain policies.) Defendant argues in its reply that if the government believes that a specific word is unclear, it should nevertheless respond, defining the term in some reasonable manner and responding accordingly. However, this contention ignores the Rule 36 requirement that requests for admissions must be direct and simple and not require explanation. Id . The purposes of Rule 36(a) would be thwarted were it to be construed as compelling a responding party to answer questions that unfairly infer a particular or varied conclusion from the fact admitted or to answer vague and indefinite questions capable of more than one interpretation and requiring an explanation. Caruso v. The Coleman Co . , 1995 WL 347003, *5 (E.D.Pa. 1995). Time, effort, expense, and scarce judicial resources will not be conserved if a party serves vague and overbroad requests for admission which require lengthy and qualified responses based on the responding party's definition of unclear terms. See generally Rule 36 Advisory Committee's Note (stating the purposes of Rule 36); 8A Wright, Miller, Marcus, Federal Practice and Procedure § 2252 (same).
However, the Court has concluded that the government should respond to eight of defendant's requests. Requests Nos. 1-3, 11-13, 15 and 19 ask the government to confirm that certain government entities have a specific legal duty. These requests are not impermissibly vague and overbroad but have been properly framed. The government should be able to readily admit or deny them based on applicable statutes and/or regulations. See Diederich v. Department of the Army , 132 F.R.D. 614, 617 (S.D.N.Y. 1990) (holding that a "request to confirm or deny if the requestor's interpretation of a law, regulation, etc. concurs and is in agreement with that of the other party" is proper). The Court will not on the record deem that these eight requests have been admitted. Rather, the Court will order the government to admit or deny them.
III Conclusion
For the reasons stated, it is this _____ day of May, 1999 by the United States District Court for the District of Maryland,
ORDERED:
1. That the motion of defendant Oncology to strike the government's objections to its Request for Admission and to have its requests deemed admitted is hereby granted in part and denied in part;
2. That the objections of plaintiff United States of America to defendant's Requests Nos. 4-10, 14, 16-18, 20 and 21 are hereby sustained;
3. That the objections of plaintiff United States of America to defendant's Requests Nos. 1-3, 11-13, 15 and 19 are hereby overruled; and
4. That plaintiff United States of America is hereby ordered to admit or deny within 20 days defendant's Requests Nos. 1-3, 11-13, 15 and 19.