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Steve Tolton and Sue Tolton v. Jesse Marty

October 4, 2011


The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge



Plaintiffs Steve and Sue Tolton, husband and wife, bring this negligence and loss of consortium action against defendant Jesse Marty. The Toltons' claims stem from a February 17, 2009, motor vehicle accident in which Mr. Marty was the driver and Mr. Tolton a passenger. Jurisdiction in this case is premised on the diverse citizenship of the parties. 28 U.S.C. § 1332. The Toltons filed a motion to compel Mr. Marty to respond to certain requests for admission served by the Toltons or to enter an order deeming those requests admitted. See Docket No. 12. The district court, the Honorable Jeffrey L. Viken, referred this motion to this magistrate judge for resolution pursuant to 28 U.S.C. § 636(b)(1)(A).


The facts which are pertinent to a resolution of the plaintiffs' motion are as follows. Mr. Marty, Steve Tolton's employer, was driving a pickup truck in which Steve Tolton was a passenger on February 17, 2009. Mr. Marty employed Mr. Tolton as a ranch hand and the two were traveling together to attend a livestock auction. The Toltons allege that Mr. Marty negligently caused injury to Mr. Tolton by losing control of his truck and running it into the Sorum Dam Bridge in Harding County, South Dakota. Among the injuries Mr. Tolton asserts to have been caused by this motor vehicle accident are a cervical fracture dislocation, cervical fractures, soft tissue injuries, and physical and mental pain and suffering. Steve Tolton asserts a negligence claim against Mr. Marty and Sue Tolton asserts a claim of loss of spousal consortium. The Toltons initiated this action on March 7, 2011.

Mr. Marty filed a general answer denying, or asserting that he is without information sufficient to enable him to admit or deny, all of the allegations in the Toltons' complaint. No affirmative defenses were asserted.

On July 5, 2011, the Toltons provided to Mr. Marty all of Steve Tolton's medical records to that date.*fn1 Those records showed that, prior to the 2009 accident in this case, Mr. Tolton had slipped on ice in January, 2009.

Mr. Marty suggests that Mr. Tolton may have injured his neck in this slip-and-fall accident.

Mr. Tolton adamantly denies a neck injury in January, asserting that he only twisted his knee and that he is not asserting damages for injury to either of his knees in this case. He asserts that the only pre-existing injuries he had sustained prior to February 17, 2009, were knee and ankle injuries from his participation in rodeo. Mr. Tolton points out that he is not alleging that his knees, ankles, or legs were injured in the motor vehicle accident with Mr. Marty.

After the motor vehicle accident in this case, Mr. Tolton had surgery performed on a fractured vertebral disc in his cervical spine on February 20, 2009. In April, 2009, the hardware that had been surgically placed in Mr. Tolton's cervical spine became displaced, requiring two follow-up surgeries.

On July 11, 2011, the Toltons served Mr. Marty with requests for admissions. These requests in general had to do with the issues of whether Mr. Tolton's medical care was fair, reasonable, and necessary to treat the injuries incurred as a result of the February 17, 2009, accident.

On August 5, 2011, Mr. Marty served the Toltons with his responses to those requests. In the requests, Mr. Marty asserts that he was without sufficient information to be able to admit or deny plaintiffs' requests to admit numbers 2, 4, 6, 8, 10, 12, 14, 16, and 18. In a letter dated August 9, 2011, Mr. Marty's counsel inquired of the Toltons' counsel what work restrictions and future care applied to Steve Tolton's injuries. See Docket No. 15-1.

After receiving Mr. Marty's responses to the Toltons' requests for admission, the Toltons' counsel telephoned the legal assistant to Mr. Marty's counsel stating his position that he believed Mr. Marty's responses were insufficient. Counsel also provided Mr. Marty with legal authority supporting plaintiffs' position. On August 12, 2011, counsel for the Toltons wrote a letter to Mr. Marty's counsel to the same effect. The letter stated the Toltons' intention to file a motion to compel on August 16, 2011, if the matter remained unresolved. See Docket No. 15-2.

Counsel for Mr. Marty then sent a letter to the Toltons' counsel on August 15, 2011. See Docket No. 15-3. In the letter, Mr. Marty's counsel explained that he found he could not admit or deny the admissions because they were not specific enough. He pointed out that the medical records provided to him contained treatment records for many injuries, some in the same doctor visit. He explained that some of these injuries may or may not be all related to the accident. Mr. Marty's counsel suggested that if the Toltons would break their requests to admit down into discrete injuries, then Mr. Marty would "certainly admit" (1) whether a discrete injury was caused by the accident with Mr. Marty and (2) whether the costs associated with treating that injury were reasonable and necessary costs.

No written response from the Toltons' counsel appears in the record. The instant motion was ...

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