Requests for  admission are arguably some of the most effective means of discovery in civil cases. They allow parties to obtain an agreement on the authenticity of documents in a cost-effective manner and quickly narrow down issues that are not in dispute for an evidentiary hearing or trial. Oftentimes, these requests are served with the complaint or early in the discovery process, which is expressly permitted by rule. However, on many occasions practitioners will deny certain requests or respond that they are “unable to admit or deny” the request based upon information available at the time. These admissions and denials often are ignored until they resurface during trial preparation, which can lead to potential traps or uncomfortable questions when confronted with the early responses to these requests months or years later.

Purpose

Recently, I was involved in a jury trial defending a case in Tennessee. During the opposing counsel’s cross-examination of my client, her attorney asked the trial judge for permission to read my client’s responses to her requests for admission into evidence. I objected to the admissibility of the denials as, in my opinion, they were simply hearsay and did not fall under any exception outlined in the rules of evidence. More importantly, the rule does not allow for “denials” to be received into evidence.

Opposing counsel responded that these denials were “binding” against my client and could be read into evidence. Ultimately, the court allowed all responses — admissions and denials — to come into evidence over objection. Neither the attorneys nor the court seemed particularly confident in the ruling, which raised the question: Can denials to requests for admission be used against a party at trial under Tennessee law?

Tenn. R. Civ. P. 36 outlines the process and effects of requests for admission. Under this rule, a party may either admit, deny, state the reasons why the party cannot admit or deny, or give “lack of information or knowledge” as a reason for failure to admit or deny only if a reasonable inquiry is made and readily obtainable information is insufficient to allow the party to admit or deny the request. Pursuant to Tenn. R. Civ. P. 36.02, any matter admitted is “conclusively” established, unless the court later permits withdrawal or amendment upon motion. Notably, there is no requirement that these requests be signed or verified by the party responding to them.

The purpose of requests for admissions is to eliminate undisputed matters in order to reduce trial time by narrowing the issues.¹ Such admissions are comparable to an admission in pleadings or a stipulation drafted by counsel for use at trial.² In my experience, admissions are routinely utilized in pre-trial motions or as substantive evidence at trial, whether read into evidence or utilized in cross-examination and published to the jury without an opportunity for explanation. And this is appropriate as under Tennessee law, evidence should not be allowed that refutes an admission.³

Admissibility

But what about the admissibility of a denial? It appears that no Tennessee appellate decisions have addressed this question, but out-of-state appellate decisions can provide some insight for practitioners in Tennessee.

In Gonsalves v. Li, the Court of Appeals of California held that a trial court erred in permitting a plaintiff’s attorney to cross examine the defendant with the defendant’s negative (denial) responses to his requests for admission.⁴ The appellate court reasoned that the rule of procedure for requests for admission limits its use to admissions only, not denials.⁵

In supporting its reasoning, the Gonsalves court looked to other discovery rules, such as ones related to the use of interrogatories or depositions, which do not have limitations on admissibility like requests for admissions.⁶ For example, the court noted that “any part or all of a deposition,” “any part of an answer of an interrogatory” and “any matter admitted in response to requests for admission” may be received into evidence at trial.⁷ The only rule with a qualifier is that requests for admission that may be received into evidence are only those admitted.

The Gonsalves court also looked to other jurisdictions and noted that the weight of authority favored the defendant’s position that denials are not admissible as evidence. In Gutierrez v. Massachusets Bay Tranp. Auth., the Supreme Court of Massachusetts held that a denial of a request for admission is inadmissible, even as a prior inconsistent statement.⁸ The Gutierrez court reasoned that a denial is not a statement of fact, rather it “simply indicates that a party is not willing to concede the issue” and the requesting party must prove the fact at trial.⁹ The Gutierrez court also noted that the Massachusetts Rules of Civil Procedure governing requests for admission does not specifically provide for the admission of denials in evidence.¹⁰

In Winn-Dixie Stores Inc. v. Gerringer the 3rd District Court of Appeals in Florida held that denials to requests for admissions cannot be used for impeachment purposes.¹¹ The court noted that the rule of civil procedure governing requests for admissions was designed to foster admissions on issues and narrow the issues for trial.¹² Therefore, using the denials (rather than the admissions) to make the witness appear “devious” or “less than truthful” was inappropriate and a reversible error.¹³ It appears that the only exceptions to this rule have included cases where bad faith is alleged on the part of an insurance company.¹⁴

Clarity

Under Tennessee law, it should be clear that no denial of a request for admission should be received into evidence. Additionally, a court should not permit a party to be cross examined or impeached with a denial to a request for admission. Rather, it is more appropriate to view Tennessee’s rule as that of one meant to narrow the issues for trial or even to support pre-trial motions. Interestingly, Tennessee’s rule does not expressly permit admissions to be received in evidence, although the same is customarily done. However, it is clear that denials are not “conclusively” establishing any fact or application of fact to law and no part of the rule permits a denial to be received into evidence.

When faced with requests for admissions at trial, counsel should be fully prepared to object to the admission or cross examination of denials. The aforementioned cases should provide ample ammunition for counsel to present a persuasive argument to the court until this matter is conclusively addressed at the appellate level. |||

JOHN FLOYD JR. is a partner in the Nashville office of Wicker Smith. His practice is primarily comprised of defending doctors, clinics and hospitals in health care liability matters and other civil litigation across Tennessee and neighboring states.

NOTES

1. Tenn. Dep’t of Human Serv. v. Barbee, 714 S.W.2d 263, 266 (Tenn. 1986).
2. Id.
3. Neely v. Velsicol Chem. Corp., 906 S.W.2d 915, 917 (Tenn. Ct. App. 1995) (citing Barbee, 714 S.W.2d at 267).
4. Gonsalves v. Li, 232 Cal.App.4th 1406, 1414-17 (Cal. Ct. App. 2015).
5. Id.
6. Id.
7. Id. (italics in original)
8. Gutierrez v. Massachusets Bay Tranp. Auth., 772 N.E.2d 552, 567 (Mass. 2002).
9. Id.
10. Id.; see also Mass. R. Civ. P. 36(b).
11. Winn-Dixie Stores Inc. v. Gerringer, 563 So.2d 814, 817 (Fla. Ct. App. 1990).
12. Id. at 816.
13. Id. at 817.
14. See Home Ins. Co. v. Owens, 573 So.2d 343, 344 (Fla. Ct. App. 1990).