McCoy v. CAMC, INC.

• Decision Date: 04 December 2001
• Docket Number: No. 29699.,29699.
• Citation: 210 W.Va. 324,557 S.E.2d 378
• Court: West Virginia Supreme Court
• Parties: William T. MCCOY and Beverly McCoy, Plaintiffs Below, Appellants, v. CAMC, INC., Jay Requarth, M.D., and John Chapman, M.D., Defendants Below, Appellees.

557 S.E.2d 378

210 W.Va. 324

William T. MCCOY and Beverly McCoy, Plaintiffs Below, Appellants, v. CAMC, INC., Jay Requarth, M.D., and John Chapman, M.D., Defendants Below, Appellees.

No. 29699.

Supreme Court of Appeals of West Virginia.

Submitted November 6, 2001.

Decided December 4, 2001.

Roger D. Forman, Esq., Forman & Crane, Charleston, West Virginia, Attorney for the McCoys.

James D. McQueen, Jr., Esq., Regenia L. Mayne, Esq., Brian Casto, Esq., McQueen, Harmon & Murphy, Charleston, West Virginia, Attorneys for Dr. Requarth.

Aaron B. Alexander, Esq., Kay, Casto & Chaney, Charleston, West Virginia, Attorney for Dr. Chapman.

PER CURIAM:

This case is before this Court upon appeal of a final order of the Circuit Court of Kanawha County entered on March 1, 2001. In that order, the circuit court denied a motion of the appellants and plaintiffs below, William and Beverly McCoy, to reinstate the original complaint in this medical malpractice case filed against the appellees and defendants below, Charleston Area Medical Center (hereinafter "CAMC")¹, Jay Requarth, M.D., and John Chapman, M.D., and to allow the complaint, once reinstated, to be amended to include additional defendants and additional causes of action. In this appeal, the appellants contend that the circuit court erred by refusing to permit them to designate a new expert and to proceed with an amended complaint on a new theory of the case.

This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order of the circuit court is affirmed.

I.

We begin by noting that the facts and procedural history of this case are lengthy, but necessary to an understanding of the issues in this case. On January 3, 1995, the appellant, Mr. McCoy, underwent double coronary bypass surgery at CAMC. The surgery was performed by Dr. Requarth with Dr. Chapman assisting and was completed without incident. However, during the recovery period, Mr. McCoy's sternum separated and his doctors suspected he was in the early stages of infection.

Mr. McCoy was returned to surgery on January 11, 1995, at which time Dr. Requarth rewired his sternum. Cultures taken during the surgery were negative for infection. However, following the surgery, Mr. McCoy developed a staph infection requiring an extensive course of antibiotic treatment. He was discharged from the hospital on January 24, 1995, but had to continue antibiotic treatment at home under the supervision of home health care.

On January 3, 1997, the McCoys filed this civil action alleging that an employee of CAMC under the supervision of Drs. Requarth and Chapman carelessly or negligently moved Mr. McCoy following his bypass surgery causing his sternum to separate. The complaint also alleged that the doctors failed to adequately warn Mr. McCoy of the risks and hazards of the surgical procedure including the possibility of sternum dishesion and infection. The complaint further asserted that Mr. McCoy acquired a staph infection as a result of the failure of Drs. Requarth and Chapman to follow approved antisepsis procedures during the surgery to rejoin his separated sternum. Finally, Mrs. McCoy alleged a loss of consortium from the resulting injury.

On September 11, 1997, the circuit court entered a scheduling order setting the case for trial on July 13, 1998.² In November 1997, the McCoys filed a document identifying their fact and expert witnesses. Randolph Scheerer, M.D., was listed as their expert witness. Shortly thereafter, the insurer of Drs. Requarth and Chapman went into receivership and the bankruptcy court stayed all proceedings for eleven months.

The bankruptcy stay was lifted in November 1998. However, counsel for the McCoys made no immediate effort to resume discovery or otherwise work on the case.³ A new scheduling order was entered on March 1, 1999, and trial was set for May 15, 2000. On April 1, 1999, counsel for Drs. Requarth and Chapman served the McCoys with interrogatories to ascertain their expert witness' opinions. Because the McCoys did not answer the discovery, Drs. Requarth and Chapman filed a motion to compel on June 16, 1999.

Subsequently, a status conference was held on September 29, 1999. Counsel for the McCoys did not attend, and as a result, the circuit court suspended the previous scheduling order but did not set a new trial date. As a result of the McCoys' failure to cooperate, Drs. Requarth and Chapman filed a motion to dismiss for failure to prosecute on November 23, 1999. At a scheduling conference on December 3, 1999, the defendants agreed to hold their motion in abeyance and proceed with a new scheduling order. Trial was then scheduled for December 4, 2000.

Pursuant to the new scheduling order, the McCoys were required to disclose their experts by February 15, 2000. This time, the McCoys identified Randolph Scheerer, M.D., and Joseph Chiota, M.D., as expert witnesses. No other information about the experts was provided. On May 10, 2000, counsel for CAMC noticed the depositions of the two identified experts. Counsel for Dr. Requarth then filed a set of new interrogatories requesting Rule 26 information about the experts' opinions. Shortly thereafter, on June 5, 2000, the McCoys filed a "motion to substitute expert witness" attempting to substitute Daniel Davis, M.D., for Dr. Scheerer, who was purported to be "no longer available to testify."

Dr. Requarth objected to the proposed substitution and asked the circuit court to intervene.⁴ During a telephonic conference, counsel for the McCoys claimed he could not locate Dr. Scheerer and thus, could not provide any Rule 26 information in response to the interrogatories. The court directed the McCoys' counsel to provide Dr. Requarth's counsel with Dr. Scheerer's last known address by June 21, 2000. The McCoys' counsel later faxed a letter to defense counsel stating that he had no information on Dr. Scheerer's address. Dr. Requarth's attorney then found Dr. Scheerer's address on the Internet and sent it to the counsel for the McCoys with the request for the Rule 26 information. He did not respond.

On July 5, 2000, Dr. Requarth filed a motion to dismiss for failure to prosecute or in the alternative, to compel response to discovery requests and Rule 26 information. A few days later, CAMC also filed a motion to dismiss or alternatively, a motion for summary judgment. In response, counsel for the McCoys claimed that Mr. McCoy's file had been destroyed in a fire in his office and that he had been forced to recreate and duplicate the file causing a lull in the discovery process. For the first time, counsel for the McCoys asserted that the original cardiac surgery performed by Dr. Requarth was unnecessary; that Mr. McCoy's pain was not cardiac in nature; and that he was not a good candidate for cardiac surgery.

On August 17, 2000, the circuit court held a hearing on the defendants' motions to dismiss and the McCoys' motion to substitute an expert witness. In a letter to counsel dated September 8, 2000, the circuit court denied the McCoys' motion to substitute an expert witness finding no good cause had been shown. The circuit court further agreed to grant the defendants' motion to dismiss unless the McCoys could make available for deposition within ten days a previously disclosed expert witness who could testify to the breach of the standard of care alleged in the complaint. The letter further provided that if no date for the expert's deposition was tendered in ten days, the dismissal would automatically take effect. The letter ended with a request that counsel for Dr. Requarth prepare an order with appropriate findings and conclusions consistent with the letter preserving all appropriate objections and exceptions.

On September 25, 2000, the McCoys provided additional Rule 26 information. However, the information dealt with Dr. Chiota and related solely to the new allegations that the original surgery was not necessary. On October 13, 2000, Dr. Requarth filed a "motion to enter order" with the circuit court indicating that an order had been prepared as directed by the court in its September 8, 2000 letter and forwarded to the McCoys' counsel for review and approval. However, counsel for the McCoys had failed to respond. On October 16, 2000, the circuit court entered the order which related its rulings from the August 17, 2000 hearing as set forth in the September 8, 2000 letter. That same date, the McCoys filed a motion to amend the complaint.

On October 18, 2000, Dr. Chapman filed a motion to enter an order of dismissal arguing that the McCoys had failed to comply with the directives of the court. Dr. Requarth joined in the motion on October 19, 2000. The circuit court granted the motion to dismiss on December 20, 2000.⁵ By new counsel, the McCoys filed a motion to reinstate the case and amend the complaint on February 8, 2001. The defendants objected arguing that no good cause was shown. The circuit court agreed and denied the motion in the final order entered on March 1, 2001. This appeal followed.

II.

The McCoys first assign as error the circuit court's refusal to allow them to designate a new expert witness. Rule 16 of the West Virginia Rules of Civil Procedure directs trial courts to enter scheduling orders limiting, inter alia, the time the parties have to complete discovery. In addition, Rule 16 vests in trial courts the discretion to modify the scheduling order. Thus, it is clearly within the trial court's discretion to refuse to allow a party to designate or substitute an expert witness after the expiration of the deadline set forth in the scheduling order. See State ex rel. State Farm Fire & Cas. Co. v. Madden, 192 W.Va. 155, 161, 451 S.E.2d 721, 727 (1994).

In this case, the circuit court denied the McCoys' motion to substitute an expert witness finding that no good cause had been shown. The record reveals that the McCoys initially...