                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Margaret E. McDonald,                                                               FILED
Plaintiff Below, Petitioner                                                         May 17, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 12-0654 (Harrison County 11-C-12)                                        OF WEST VIRGINIA



Drew C. Britton,

Defendant Below, Respondent



                               MEMORANDUM DECISION
       Petitioner Margaret McDonald, by counsel Stephen A. Wickland, appeals the March 26,
2012, order of the Circuit Court of Harrison County, granting Respondent Drew C. Britton’s
motion for partial summary judgment. Respondent appears by counsel Andrew McMunn.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On January 13, 2009, respondent was involved in an automobile accident with petitioner,
subsequent to which petitioner was evaluated in the emergency room and admitted for
treatment.1 She stayed in the hospital until January 22, 2009, with a primary diagnosis of
fracture to her sternum and a chest contusion. While at the hospital, petitioner reported difficulty
swallowing, and she was diagnosed with an esophageal stricture. Since that diagnosis, the
petitioner has undergone four surgeries, and expects to undergo additional surgeries. Petitioner
filed her complaint related to this accident on January 12, 2011.

        State Farm Mutual Automobile Insurance Company, the underinsurance motor carrier,
filed a motion for partial summary judgment on behalf of respondent on December 8, 2011,
asserting that no evidence linked petitioner’s extended hospital stay or her esophageal stricture to
the 2009 accident. By order entered on March 26, 2012, the circuit court granted respondent’s
motion, noting that petitioner did “precious little to relate those injuries to her January, 2009, car
accident” and that petitioner offered no evidence beyond mere allegation. Petitioner argues on
appeal, first, that the circuit court erred in concluding that her esophageal stricture was not
related to the accident. She asserts that she had no prior difficulty swallowing, and that she had
been treated for acid reflux—a condition that one physician identified as the cause of the

       1
        Respondent did not contest the expenses related to petitioner’s emergency room
treatment, and those expenses have been paid.
                                                  1

esophageal stricture—three years earlier and her reflux issues were resolved at that time. She
argues, second, that the circuit court erred in concluding that her extended hospital stay was not
related to the accident, because she was at an advanced age of seventy-three years, and because
her medical records do not reflect that the emergency room visit was sufficient treatment.
Petitioner urges that we must infer from the admission itself that the hospital stay was necessary.
Finally, petitioner argues that because her counsel withdrew from the case and she obtained new
counsel after the motion for partial summary judgment was filed, the lower court wrongly denied
her request to allow new counsel to take additional discovery.

        On appeal, we review a summary judgment order under a de novo standard of review.
Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Summary judgment should
be granted when it is clear that there is no genuine issue of fact to be tried and inquiry
concerning the facts is not desirable to clarify the application of the law. Syl. Pt. 2, Id.; Syl. Pt. 3,
Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).

        Dr. Jeffrey Madden has treated the petitioner for the esophageal stricture, but he testified
that he was unable to relate the stricture to the accident. The petitioner’s primary care physician,
Dr. David E. Hess, similarly testified that he could not relate the esophageal stricture to the
accident, believing instead that it was caused by acid reflux. Dr. Hess also testified that the
petitioner’s hospital stay was not medically necessary, and that he believed she could return
home after treatment in the emergency room. Dr. Hess testified that he related this opinion to
petitioner prior to her admission, and that he advised that she could be personally responsible for
expenses, but that petitioner and her son insisted that she be admitted. Petitioner offered her own
affidavit in opposition to respondent’s motion, stating, “I had never had an esophageal stricture
prior to the automobile accident.”

        It is axiomatic that “the party opposing summary judgment must satisfy the burden of
proof by offering more than a mere ‘scintilla of evidence’ and must produce evidence sufficient
for a reasonable jury to find in a nonmoving party's favor.’ Anderson [v. Liberty Lobby, Inc.],
477 U.S. [242] at 252, 106 S.Ct. [2505] at 2512, 91 L.E.2d [202] at 214 [1986].” Williams v.
Precision Coil, Inc., 194 W.Va. 52, 60, 459 S.E.2d 329, 337 (1995). Petitioner’s conclusory
statement is insufficient to meet this standard and overcome the reliable medical testimony that
very clearly rebutted a relationship between petitioner’s accident and both her hospital stay and
esophageal stricture.

        With respect to petitioner’s assertion that the circuit court failed to grant her request for
additional discovery, petitioner has not directed our attention to a specific ruling by the lower
court to which she takes exception, or even to her purported request to conduct additional
discovery. We require that arguments before this Court be supported by “appropriate and specific
citations to the record on appeal, including citations that pinpoint when and how the issues in the
assignments of error were presented to the lower tribunal.” W.Va. R. App. P. 10(c)(7). We are
not obligated to consider assignments of error lacking the necessary support. Id.

        Nevertheless, our review of the appendix record shows that the court’s scheduling order
required that all discovery be completed by November 14, 2011. Petitioner’s counsel withdrew
after the completion of discovery, on December 14, 2011. Petitioner’s succeeding attorney made

                                                   2

his first appearance at the pretrial conference on January 3, 2012. According to a pleading filed
in the circuit court by respondent, counsel was told at that time that the court would not reopen
discovery. In spite of the court’s pronouncement, however, petitioner noticed on March 21, 2012,
without obtaining leave of court, the deposition of Dr. Vincent Miele2 for April 3, 2012,
prompting respondent to file a motion for a protective order.3 The court granted that motion by
order entered March 28, 2012. It stated,

                        It is the normal practice of the [c]ourt not to allow
                 discovery to take place outside the window of time unless there has
                 been an agreement between the parties. Here, there clearly has
                 been no such an agreement. Discovery is closed, and it has been
                 closed for some time. Furthermore, given the late date of this
                 deposition, the [c]ourt feels that the danger of prejudice is high.

        Petitioner filed her “Motion for New Trial Pursuant to Rule 59 [of the West Virginia
Rules of Civil Procedure]” on April 5, 2012, suggesting that the court should have held its order
granting partial summary judgment “in abeyance pending completion of discovery” by her. Even
then, she did not acknowledge that the discovery period had closed months before.

       We have explained:

                         Under Rule 16(b), it is mandatory that trial courts enter a
                 scheduling order that limits the time to join parties, amend
                 pleadings, file and hear motions, and complete discovery. See
                 Elliott v. Schoolcraft, 213 W.Va. 69, 73 n.5, 576 S.E.2d 796, 800
                 n.5 (2002) (per curiam) (reversing summary judgment in part
                 because the trial court did not enter a scheduling order in the case).
                 The law is clear in holding that when a scheduling order
                 establishes cutoff dates, including discovery, “[i]f a party cannot
                 meet a scheduling order deadline, Rule 16(b) specifically requires
                 leave of court to modify the scheduling order.” Cleckley,
                 Litigation Handbook, § 16(b), at 356. See Johnson v. Mammoth
                 Recreations, Inc., 975 F.2d 604, 608 (9th Cir.1992) (plaintiff failed
                 to seek leave of court to modify scheduling order). Moreover, “trial
                 courts should not permit the parties to obtain extensions absent a
                 showing of good cause.” Cleckley, Litigation Handbook, §
                 16(b)(3), at 360. See 3 Moore’s Federal Practice, § 16.14 (“A trial
                 court may modify or amend a scheduling order only when ‘good
                 cause’ is shown and the court grants leave to modify.”).

State ex rel. Pritt v. Vickers, 214 W.Va. 221, 226-227, 588 S.E.2d 210, 215-216 (2003).

       2
           Dr. Miele treated petitioner for a prior back injury.
       3
         In her brief before this Court, petitioner refers to this motion as one “to have discovery
closed[.]” The mischaracterization is significant.
                                                    3

        We discern no “good cause” that should have prompted the circuit court to modify its
scheduling order. Petitioner was represented by counsel through an objectively sufficient period
of discovery. There is no evidence that counsel was not effective during that time, and the record
before us reflects that counsel withdrew only after discovery concluded.4 Therefore, petitioner
had an adequate opportunity to conduct meaningful discovery.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: May 17, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




       4
          After petitioner retained a second attorney, the trial court at her request continued the
trial, set according to the scheduling order for January 16, 2012, until April 23, 2012.
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