                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Ashlee R. Hull, individually and in her capacity
as co-executrix of the Estate of John Edward Hull, Sr.,                             FILED
and Misty D. Adkins, individually and in her capacity                          February 24, 2020
as Co-Executrix of the Estate of John Edward Hull, Sr.,                         EDYTHE NASH GAISER, CLERK
Plaintiffs Below, Petitioners                                                   SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA

vs.) No. 18-1028 (Kanawha County 18-C-673)

Dr. Muhammed Samar Nasher-Alneam,
Neurology & Pain Center, PLLC,
Dr. Clark David Adkins, Bone and Joint Surgeons, Inc.,
Dr. Deleno H. Webb, III,
The Estate of Eric S. Webb, PLC,
and Area Psychiatric and Psychotherapy Group, Inc.,
Doe Physicians 1-99, Doe Pharmacies 1-99,
Doe Pharmacists 1-99, and Doe Corporations 1-99,
Defendants Below, Respondents


                               MEMORANDUM DECISION

        Petitioners Ashlee R. Hull and Misty D. Adkins, by counsel Joseph H. Spano, Jr., appeal
the Circuit Court of Kanawha County’s October 18, 2018, Order Granting Defendants’ Motions
to Dismiss. Respondents Dr. Muhammed Samer Nasher-Alneam (“Dr. Nasher”) and Neurology &
Pain Center, PLLC (“NPC”), collectively referred to as the NPC respondents, by counsel Steven
K. Nord and S. Taylor Hood, filed a response in support of the circuit court order. Respondents
Dr. Clark David Adkins (“Dr. Adkins”) and Bone and Joint Surgeons, Inc. (“Bone and Joint”),
collectively referred to as the Bone and Joint respondents, by counsel, J. Dustin Dillard and
Morgan E. Villers, also filed a response in support of the circuit court order. Petitioners filed a
reply.

       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 affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        Mr. Hull treated with Dr. Nasher at NPC from August 2012 until Dr. Nasher terminated
their physician-patient relationship on April 28, 2014. Neither Dr. Nasher nor anyone from NPC
treated Mr. Hull after that day.
        Mr. Hull treated with Dr. Adkins at Bone and Joint at various times between April 2004
and August of 2014.1 Neither Dr. Adkins nor any representatives of Bone and Joint had further
contact with Mr. Hull after August of 2014. Mr. Hull died on January 7, 2016, from a self-inflicted
gunshot wound to the head.2

        On May 21, 2018, petitioners filed this Medical Professional Liability Act (“MPLA”)
action asserting medical professional negligence against respondents stemming from Mr. Hull’s
death.3 In the complaint, petitioners alleged that Mr. Hull was treated by the respondents for
complaints of chronic pain and sleeplessness resulting from multiple vehicle accidents and work-
related injuries. Petitioners asserted that respondents failed to properly treat the causes of Mr.
Hull’s pain, were negligent in the prescribing of controlled substances, and/or failed to refer Mr.
Hull to other specialists/physicians for treatment. They further alleged that, over the course of
treatment, Mr. Hull became addicted to controlled substances, causing him to suffer anxiety,
depression, and increased pain. Per petitioners, Mr. Hull advised respondents that the pain
medication that he was receiving was not controlling his pain, and that he believed that the pain
medication was making his pain worse. Petitioners further alleged that during the course of his
treatment, Mr. Hull recognized that he was addicted to pain medication and requested assistance
for his addiction. According to the complaint, respondents ignored Mr. Hull’s request for other
medical interventions, referrals and options and merely wrote Mr. Hull prescriptions for controlled
substances. Petitioners alleged that, as a result of the respondents’ actions, Mr. Hull’s conditions
“went undiagnosed, substantially progressed, substantially increased [his] risk of harm, created an
unreasonable risk of addiction and related problems . . . all of which resulted in the intensification
of [his] severe and debilitating pain, and ultimately resulted in Decedent’s death.” Petitioners
alleged that Mr. Hull committed suicide due to his addiction, anxiety, depression, and pain.




       1
        Petitioners maintain that Mr. Hull began treating at Bone and Joint in 1998 and that Dr.
Adkins performed multiple surgeries on Mr. Hull, beginning in 2004.
       2
           Petitioners were appointed to administer Mr. Hull’s estate.
       3
         Prior to the filing of this civil action, petitioners issued a Notice of Claim and a Screening
Certificate of Merit to the Bone and Joint respondents. In response, the Bone and Joint respondents
sent a letter to petitioners outlining deficiencies with the pre-suit submissions pursuant to
Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005). The Bone and Joint respondents
noted that petitioners’ expert, Dr. Qureshi, a physiatrist, was not qualified to render an expert
opinion as to the care provided by Dr. Adkins, an orthopedic surgeon. They also noted that the
screening certificate was deficient because it lumped the medical providers together and did not
state how the Bone and Joint respondents deviated from the standard of care in Mr. Hull’s case. In
response to the Hinchman letter, petitioners’ counsel sent an updated screening certificate of merit,
which was again issued by Dr. Qureshi. The Bone and Joint respondents reiterated that Dr. Qureshi
was not qualified to render an expert opinion. The sufficiency of the pre-suit submissions was not
ruled upon by the circuit court and, therefore, is not presently before this Court.



                                                  2
        In response to the complaint, respondents filed motions to dismiss.4 On September 27,
2018, the circuit court held a hearing on the motions. At the hearing, the circuit court focused on
the issue of whether petitioners’ claims could be maintained in light of the general rule barring
claims under West Virginia law based on the death of an individual who committed suicide. At
the conclusion of the hearing, the circuit court requested proposed orders with findings of fact and
conclusions of law from each party.

        On October 18, 2018, the circuit court entered an order granting respondents’ motions to
dismiss. Citing Moats v. Preston Cty. Comm’n, 206 W. Va. 8, 16, 521 S.E.2d 180, 188 (1999),
the court found that “negligence actions seeking damages for the suicide of another have generally
been barred because the act of suicide is considered deliberate and intentional, and therefore, an
intervening act that precludes a finding that the defendant is responsible . . . .” The circuit court
further found that petitioners’ claims do not fall within the narrow exception to the Moats rule,
because Mr. Hull was not in the custodial care of respondents, respondents did not know that Mr.
Hull was suicidal, and they did not have a duty or an opportunity to prevent his suicide. The circuit
court did not address the respondents’ remaining arguments in support of their motions to dismiss
because it found the original grounds to be sufficient for dismissal. On November 16, 2018, this
appeal followed.

       Petitioners maintain that the circuit court improperly dismissed this matter. Under Rule
12(b)(6) of the West Virginia Rules of Civil Procedure, a party can file a motion requesting
dismissal of a claim or counterclaim for “failure to state a claim upon which relief can be granted.”
W. Va. R. Civ. P. 12(b)(6). This Court has established that “[a]ppellate review of a circuit court’s
order granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v.



       4
          The NPC respondents raised multiple grounds for dismissal of the complaint. They argued
that the claims were time barred due to the expiration of the statute of limitations, that the
intentional act of suicide barred this negligence claim, and that Mr. Hull’s suicide was too remote
to the treatment provided by the NPC respondents and was, therefore, unforeseeable. The NPC
respondents further asserted that petitioners failed to comply with the MPLA and its pre-suit filing
requirements. Further, the NPC respondents argued that petitioners cannot maintain claims in their
individual capacities because (a) their claims are not permissible under the wrongful death statute;
(b) they failed to assert facts to support a claim for infliction of emotional distress; and (c) they
cannot maintain claims for loss of parental consortium. Lastly, these respondents argued that
petitioners failed to properly serve Dr. Nasher with the complaint.

        The Bone and Joint respondents also filed a motion to dismiss, or in the alternative, a
motion for summary judgment. They argued that, absent a very narrow exception that is not
applicable here, West Virginia law precludes negligence actions seeking damages for the suicide
of another. The Bone and Joint respondents also argued that petitioners’ claims were barred by the
statute of limitations. Lastly, the Bone and Joint respondents argued that petitioners failed to fully
comply with the pre-suit requirements of the MPLA.

       Given that the circuit court’s ruling is premised upon only one of the grounds raised by the
respondents, this memorandum decision will focus on the issue relied upon by the circuit court.
                                                  3
Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995). Applying a de novo
review to the record on appeal, we disagree with petitioners.

        This Court has repeatedly held that motions to dismiss under Rule 12(b)(6) should be
granted only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.” Syl. Pt. 3, in part, Chapman v. Kane Transfer Co.,
Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977) (citation omitted). Additionally, “the complaint is [to
be] construed in the light most favorable to plaintiff, and its allegations are to be taken as true.”
Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 605, 245 S.E.2d 157, 158 (1978).

        Here, construing the complaint in the light most favorable to petitioners, petitioners can
prove no set of facts to entitle them to the relief requested in the complaint. It is undisputed that
Mr. Hull committed suicide and died as a result of a self-inflicted gunshot wound to the head. This
Court has long held that “negligence actions seeking damages for the suicide of another have
generally been barred because the act of suicide is considered deliberate and intentional, and
therefore, an intervening act that precludes a finding that the defendant is responsible . . . .” Moats,
206 W. Va. at 16, 521 S.E.2d at 188.

        Consistent with Moats, the circuit court in this matter found that petitioners’ malpractice
claims were barred, unless they fell within a recognized exception to the general rule barring claims
based upon suicide. The circuit court further held that this Court has recognized only one narrow
exception to the general rule “where the defendant is found to have had a duty to prevent the
suicide from occurring” which applies to “someone who has a duty of custodial care, knows that
the potential for suicide exists, and fails to take the appropriate measures to prevent the suicide
from occurring.” Id.5 This exception has been applied to jails, hospitals, reform schools, and others
having physical custody and control over the persons. Id.

         In the instant case, the circuit court found, as a matter of law, that petitioners’ claims do
not fall within the narrow exception recognized in Moats. To fit within this exception, petitioners
would have had to allege facts to satisfy each of these elements: custodial care, knowledge of the
potential for suicide, and failure to take appropriate measures to prevent the suicide from occurring.
Id. Specifically, the court found that “Mr. Hull was not in the custodial care of the Defendants, the
Defendants had no knowledge that Mr. Hull was suicidal, and the Defendants had no duty or even
an opportunity to prevent Mr. Hull from committing suicide.”

       Petitioners also argue that respondents were in a special relationship with Mr. Hull akin to
a custodial relationship. We disagree.6 The complaint does not allege that Mr. Hull was in the


       5
          Petitioners argue that this Court should adopt a second exception to the general rule.
Although this Court did discuss the possibility of an exception where the defendant “is found to
have actually caused the suicide,” that exception has not been adopted by this Court, nor do the
facts of this case cause this Court to reconsider that exception.
       6
        Alternatively, petitioners argue that Mr. Hull’s suicide was a reasonably foreseeable
outcome because respondents overprescribed opioids to Mr. Hull and failed to treat his addiction.

                                                   4
custodial care of respondents at the time he committed suicide, nor did petitioners allege that Mr.
Hull had ever been in the custodial care of respondents. To the contrary, the record suggests that
the respondents had not even had a patient-physician relationship with Mr. Hull for more than one
year prior to his suicide. Inasmuch as petitioners allege no facts that would cause this case to fall
within the single, narrow exception to the general rule, we concur with the circuit court’s well-
founded conclusion that Mr. Hull’s suicide bars petitioners’ claims.7


This Court declines to make this finding, especially where the record reflects that the respondents
did not have a continuing relationship with Mr. Hull at the time of his death.
       7
         Petitioners also argue that the circuit court improperly considered evidence outside of the
complaint, including self-serving statements of respondents, when it granted respondents’ motions
to    dismiss.     Based       upon      a     review     of     the    record,    we     disagree.
The circuit court’s order is largely focused upon the allegations contained in the complaint,
whether the complaint failed to state a claim against respondents, and whether relief could be
granted under Rule 12(b)(6). This Court finds that that the circuit court’s findings of facts and
conclusions of law are not based upon any self-serving statements of respondents, but instead were
based upon what was alleged in petitioners’ complaint - and what was tellingly absent from the
complaint - for example, the absence of any allegation that respondents had physical custody and
control over Mr. Hull at the time of his suicide.

        To the extent that the circuit court did consider information outside of pleadings, this Court
finds that it was primarily necessitated by deficiencies within the complaint. Importantly, there is
no indication that petitioners objected to these materials. Additionally, petitioners cannot claim
surprise as petitioners themselves included factual assertions and attached ten exhibits to their
response, which clearly indicates that petitioners knew that the circuit court would be considering
matters outside the pleadings. Additionally, the Bone and Joint respondents titled their motion as
a Motion to Dismiss/Motion for Summary Judgment.

        If the motions were effectively converted into motions for summary judgment as alleged
by petitioners, then Rule 56(f) of the West Virginia Rules of Civil Procedure would govern the
issue. Although petitioners did file an affidavit as required by Rule 56(f), it was not in conformity
with the rule. Rule 56(f) provides:

       (f) When Affidavits Are Unavailable. Should it appear from the affidavits of a
       party opposing the motion that the party cannot for reasons stated present by
       affidavit facts essential to justify the party’s opposition, the court may refuse the
       application for judgment or may order a continuance to permit affidavits to be
       obtained or depositions to be taken or discovery to be had or may make such other
       order as is just.

       Rule 56(f) affidavits must outline, with specificity, the materials which are not yet available
to the party, but which, if obtained, engender an issue that is both genuine and material.
Specifically, this Court has held that



                                                  5
         Petitioners further argue that the circuit court erred when it did not consider petitioners’
statutory prima facie negligence argument. To the extent that petitioners are attempting to impose
liability based upon the violation of a statute or statutes, the violation of a statute is not the only
element that must be shown for liability to attach. “In order to be actionable, such violation must
be the proximate cause of plaintiff’s injury.” Courtney v. Courtney, 186 W. Va. 597, 603, 413
S.E.2d 418, 424 (1991). Here, Mr. Hull’s death was the result of a self-inflicted gunshot wound –
not an overdose on any prescriptions prescribed by respondents. Because the lower court
recognized petitioners’ inability to prevail on a negligence claim by virtue of the Moats rule, it did
not err as to petitioners’ statutory prima facie negligence arguments.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: February 24, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

DISQUALIFIED:

Justice Margaret L. Workman




       the party making an informal Rule 56(f) motion must satisfy four requirements. It
       should (1) articulate some plausible basis for the party's belief that specified
       “discoverable” material facts likely exist which have not yet become accessible to
       the party; (2) demonstrate some realistic prospect that the material facts can be
       obtained within a reasonable additional time period; (3) demonstrate that the
       material facts will, if obtained, suffice to engender an issue both genuine and
       material; and (4) demonstrate good cause for failure to have conducted the
       discovery earlier.

Crum v. Equity Inns, Inc., 224 W. Va. 246, 254, 685 S.E.2d 219, 227 (2009) (citing Elliott v.
Schoolcraft, 213 W. Va. 69, 73, 576 S.E.2d 796, 800 (2002)). Here, the affidavit submitted by
petitioners failed to identify material facts, if obtained, which would make this case fall within the
narrow exception described in Moats. As such, dismissal was proper without further discovery.


                                                  6
