Opinion
Case No. 15 C 8036
11-20-2015
PROFESSIONAL SOLUTIONS INSURANCE COMPANY, Plaintiff, v. RICHARD KIANG, M.D. and OLGA BENAR, Defendants.
MEMORANDUM ORDER
Olga Benar ("Benar") has just filed her Answer to the Complaint brought against her and Dr. Richard Kiang by Professional Solutions Insurance Company, in which the insurer seeks a declaration of nonliability under the Claims Made Physician and Surgeon Medical Professional Liability Policy that it had issued to Dr. Kiang. This memorandum order is issued sua sponte because of one flaw in that Answer, which otherwise consists entirely of admissions of the Complaint's allegations.
Apart from such admissions, four paragraphs -- Answer ¶¶ 1, 15, 23 and 24 -- seek to invoke the disclaimer permitted by Fed. R. Civ. P. ("Rule") 8(b)(5) as an alternative to the mandate of Rule 8(b)(1)(B) under which a defendant must either admit or deny a plaintiff's allegations. But the problem in that respect is that Benar's counsel have disclaimed only "knowledge sufficient to form a belief," while Rule 8(b)(5) also requires the much more demanding disclaimer of "information sufficient to form a belief."
That error is readily curable if Benar can also disclaim such information in the objective and subjective good faith required by Rule 11(b). If such is the case, there will be no need to replace the existing Answer with a self-contained Amended Answer -- instead Benar's counsel is granted until November 30, 2015 to file an amendment to the Answer to replace the above-cited paragraphs, which are stricken because of the error identified here.
/s/_________
Milton I. Shadur
Senior United States District Judge
Date: November 20, 2015