Perry v. Dartmouth Hitchcock

7ermont Superior Court
Filed 01/07/25
Orange Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Orange Unit Case No. 22-CV-04145
5 Court Street
Chelsea VT 05038
802-685-4610
www.vermontjudiciary.org

Christopher Perry v. Dartmouth Hitchcock Health, Inc., et al

ENTRY REGARDING MOTION

Title: Motion to Determine the Sufficiency of Amended Responses to Requests for
Admission (Motion: 8)
Filer: Robert B. Hemley
Filed Date: December 19, 2024

The motion is DENIED.

The dispute between the parties has narrowed to a point of punctuation.

Defendants, in compliance with the Court's December 9, 2024 Order have filed amended
answers to Plaintiffs Requests to Admit Numbers 43, 44, and 46. Their answers now admit that the

images seen in the 1/11/21 and 4/29/21 CT scans show a presacral growth. (#43 and 44.) They
also admit that the two scans along with the 1/12/22 CT scans show a presacral mass that includes a

malignant growth. (#46.)

Defendants, however, qualify this admission within the sentence to also include a

qualification that addresses Defendants' primary point of contention. They note that while the
images show the presacral growth, the image shows the growth only with the benefit of the latter CT
scan.

Plaintiffs object to Defendant's sentence structure and would put this qualification into a

separate sentence, which would rhetorically separate the admission from the context with a

grammatical period in between the two concepts.

Requests to Admit, while part of the Rules of Discovery, are not methods of requesting
information. As Judge Crawford notes, are tools "used to establish the admission of facts about
which there is no real dispute." Concepts NREC, LLC v. Qiu, No. 5: 20-CV-133, 2022 WL 22761644,

Entry Regarding Motion Page 1 of 3
22-CV-04145 Christopher Perry v. Dartmouth Hitchcock Health, Inc., et al
at *3 (D. Vt. Feb. 15, 2024) (Crawford, J.) (quoting 7 Moore's Federal Practice Civil § 36.02(1) 3d

ed.). As such, Requests to Admit are intended to clarify where there is meaningful dispute and
where there is general agreement. When the questions begin to approach the heart of the dispute

and provide more rhetorical proof than clarification, then the Requests are likely to be disputed, and

the less likely the Court will be to manage or put its proverbial thumbs onto the scale. Id.

In this case, Plaintiff has recetved what he sought, which was clarification that the mass in
the 1/11/21, 4/29/21, and 1/12/22 CT scans show a presacral mass that was eventually removed,

and which contained malignant growth. These issues are not in dispute, and Defendants amended

answers confirm these facts. What is at issue is whether a trained eye within the time and context

when these images were first produced would have identified the image as what it ultimately turned
out to be. Plaintiff sees this distinction as a qualification on the image, something that may be

presented separate from the admission to qualify the image. But, Defendants see it as a
fundamental part of the image. In other words, Plaintiff sees the admission as a necessary modal

proposition. The CT scans show a presacral growth. Period. Defendants see the admission as a
contingent modal proposition that is fundamentally dependent on the relationship between time, the
several images, and the ultimate physical determinations. For Plaintiff, the language inside the

sentence dilutes and renders the admission near meaningless. For Defendants, a separation of the

image from its context and place robs it of its meaning.' This difference goes to the heart of the

present dispute and is likely one of the central issues that the parties will be litigating to the jury. For
this reason, it would be improper for the Court to impose a particular distinction or define the

relationship between these terms. This is an issue, ultimately for the parties to present to the jury
and for that fact-finding body to determine.
For these reasons, Plaintiff's request goes beyond the scope of Rule 36 and would put the
Court into the improper position of framing the central dispute in this case in a manner that would
limit the parties' ability to distinguish their own position. In denying Plaintiff's motion, the Court is
not stating whether either party's charactierization is more or less credible. While the present matter
has been formulated as a grammatical one, each proposition also represents an important scientific
and phenomenological distinction. In such cases, shifting this task to the Court under Rule 36
would employ a poor engine to drive this dispute.

1
The grammatical concept of modal propositions dates back to Aristotle, but it may be summarized as the way
terms within a given proposition are related to each other. Within this framework, necessary modal propositions
state the way reality must be, and contingent modal propositions state the way reality could be. See Sr. MIRIAM
JOSEPH, THE TRIVIUM: THE LIBERAL ARTS OF LOGIC, GRAMMAR, AND RHETORIC 90, n.2 (M.McGlinn ed. 2002) (outlining the
grammatical structure of modal propositions and relationship of various propositions and how their structure
informs both meaning and relationship between the terms).

Entry Regarding Motion Page 2 of 3
22-CV-04145 Christopher Perry v. Dartmouth Hitchcock Health, Inc., et al
ORDER

Based on the foregoing, the Court finds that Defendant’s responses are sufficient for the
purposes of V.R.C.P. 36, and the Court will not require further amendment. The Court Denies
Plaintiff motion for clarification.

Electronically signed on 1/4/2025 3:20 AM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

Entry Regarding Motion Page 3 of 3
22-CV-04145 Christopher Perry v. Dartmouth Hitchcock Health, Inc., et al