Sharkey Issaquena Community Hospital v. Alan Anderson

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2014-IA-00465-SCT

SHARKEY ISSAQUENA COMMUNITY HOSPITAL

v.

ALAN ANDERSON AND LINDA ANDERSON

DATE OF JUDGMENT: 03/19/2014
TRIAL JUDGE: HON. M. JAMES CHANEY, JR.
TRIAL COURT ATTORNEYS: CLIFFORD C. WHITNEY, III
R. E. PARKER, JR.
JOEL S. GATLIN, III
COURT FROM WHICH APPEALED: SHARKEY COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: CLIFFORD C. WHITNEY, III
R. E. PARKER, JR.
ATTORNEYS FOR APPELLEES: WILLIAM W. FULGHAM
OMAR LAMONT NELSON
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED AND REMANDED - 12/17/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE RANDOLPH, P.J., LAMAR AND KITCHENS, JJ.

KITCHENS, JUSTICE, FOR THE COURT:

¶1. Alan and Linda Anderson filed a medical malpractice action against Sharkey

Issaquena Community Hospital but failed to designate an expert timely in accordance with

the scheduling order imposed by the Circuit Court of Sharkey County. Out of time, the

Andersons filed their expert designation, along with a motion for continuance. The hospital

moved to strike the expert designation and moved for summary judgment. Following a

hearing, the circuit court granted a continuance to the Andersons and denied both the

hospital’s motion to strike and its motion for summary judgment. Aggrieved, the hospital
filed the instant interlocutory appeal. Finding no error in the decision of the Circuit Court of

Sharkey County, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Alan and Linda Anderson (the Andersons) filed a complaint in the Circuit Court of

Sharkey County, Mississippi, on April 19, 2013, alleging that Sharkey Issaquena Community

Hospital (SICH) had failed to diagnose Alan Anderson’s stroke timely when he presented to

the hospital’s emergency room on September 23, 2011. The Andersons alleged that the

hospital breached the applicable standard of care by discharging Alan Anderson, despite his

having presented to the hospital with symptoms indicating stroke, and instructing him to

consult his primary care physician within three or four days, which resulted in a stroke and

“greatly increased deficits in his function, loss of enjoyment of life, medical costs, pain,

suffering and other damages . . . .” SICH filed its answer and affirmative defenses on July

25, 2013. The parties agreed to, and the trial court entered, a scheduling order, which set the

following deadlines:

1. That counsel shall complete all discovery no later than February 3,
2014.

2. That counsel shall serve all motions to join additional parties no later
than September 28, 2013.

3. That all the Plaintiff experts shall be designated on or before
November 30, 2013.

4. That all the Defense experts shall be designated on or before December
31, 2013.

5. That all motions, with the exception of the in limine motions shall be
served on or before February 3, 2014.

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 6. The parties shall file a joint pretrial order on February 17, 2014.
Plaintiff will submit his section of the Pretrial Order no later than
February 7, 2014 and Defendants will submit their portion of the
Pretrial Order no later than February 12, 2014.

(Emphases in original.) The trial court set the trial for March 3, 2014.

¶3. Despite the Andersons’ failure to file a designation of experts, SICH filed its own

expert designation, along with the credentials of its proposed experts, on January 2, 2014. On

February 5, 2014, the Andersons filed a motion for continuance and for relief from the

scheduling order, stating that “[i]n the prior six months, significant discovery has occurred

including the deposition of the Plaintiff and responses to written discovery” and that

“Plaintiff has in good faith engaged in significant discovery in the past six months, but that

more discovery needs to be done in order to prepare the case for trial.” With their motion for

continuance, the Andersons filed their expert designation. That same day, SICH filed a

motion for summary judgment, arguing that the Andersons’ failure to designate an expert

witness on or before the appointed date in the scheduling order entitled it to summary

judgment because, in the absence of an expert witness, the Andersons “cannot prove their

claims as a matter of law.”

¶4. Two days later, on February 7, 2014, SICH filed an opposition to the motion for

continuance and a motion to strike the Andersons’ expert designation. SICH claimed that the

Andersons had been dilatory in pursuing discovery and that SICH was “prejudiced by the

three months late” expert disclosure. According to SICH, “Defendant’s experts did not have

the designation . . . available to them in preparing their opinions in this case . . . .” SICH

claimed that the late disclosure made it impossible for it to prepare for the trial date set in the

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scheduling order. The trial court heard SICH’s motion for summary judgment, its motion to

strike expert designation, and the Andersons’ motion for continuance on February 14, 2014.

¶5. The trial court granted the Andersons’ motion for continuance and denied both

SICH’s motion to strike expert designation and its motion for summary judgment, holding

that the denial of summary judgment was “without prejudice to its being renewed at a later

date.” The trial court, in granting the motion for continuance, continued the trial “to a date

to be determined” and gave the plaintiffs “until and including March 14, 2014,1 in which to

fully respond to all discovery submitted by the Defendant, and to supplement or designate

experts.” The trial court ruled that the Andersons “shall not take any further discovery in this

case.” Further, the trial court gave SICH “until April 18, 2014 to take additional discovery

and to supplement its expert designations. The court then ordered the parties to confer and

to “obtain a new trial date from the Court Administrator.”

¶6. SICH timely filed a petition for interlocutory appeal on April 14, 2014, which this

Court granted on May 22, 2014. It raised the following issues:

I. Whether the trial court erred by granting the Andersons’ motion for
continuance.

II. Whether the trial court erred by denying SICH’s motion to strike.

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The trial court signed this order on March 19, 2014, and the order was entered on
March 24, 2014. It is true that the deadline set by the trial court for the Andersons’ response
to SICH’s discovery requests and designation of their experts, March 14, 2014, preceded the
entry of the trial court’s order. However, during the February 14, 2014, hearing, the trial
court ore tenus had granted the Andersons until March 14, 2014, “to respond and
supplement whatever previous discovery questions may be out there, to designate or
supplement designations of experts.”

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 III. Whether the Andersons’ failure to file an expert affidavit in accordance
with the original scheduling order resulted in an entitlement of SICH
to summary judgment.

Each issue is addressed in turn.

STANDARD OF REVIEW

¶7. We review the trial court’s grant of the Andersons’ motion for continuance for abuse

of discretion: “‘[t]he granting of a continuance is largely a matter within the sound discretion

of the trial court and unless manifest injustice appears to have resulted from a denial, this

Court should not reverse.’” Peden v. City of Gautier, 870 So. 2d 1185, 1188 (Miss. 2004)

(quoting Morgan v. Greenwaldt, 786 So. 2d 1037, 1045 (Miss. 2001)). Further, “[a] trial

court has an inherent right to control its docket and is afforded ‘reasonable latitude’ regarding

the setting and continuance of cases.” Watts v. Pennington, 598 So. 2d 1308, 1312 (Miss.

1992) (quoting Liberty Savings & Loan Ass’n v. Mitchell, 398 So. 2d 208, 210 (Miss.

1981)). With regard to the trial court’s ruling on SICH’s motion to strike, “the trial court has

‘considerable discretion’ in ruling on discovery matters, and . . . this Court will not reverse

absent an abuse of discretion.” Douglas v. Burley, 134 So. 3d 692, 697 (Miss. 2012) (quoting

Venton v. Beckham, 845 So. 2d 676, 684 (Miss. 2003)).

¶8. “When reviewing a trial court’s grant or denial of summary judgment, this Court

applies a de novo standard of review.” Anderson v. Alps Auto., Inc., 51 So. 3d 929, 931

(Miss. 2010) (citing Crawford Logging, Inc. v. Estate of Irving, 41 So. 3d 687, 689 (Miss.

2010)). Summary judgment “shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if any, show

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that there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Miss. R. Civ. P. 56(c).

DISCUSSION

I. Whether the trial court erred by granting the Andersons’ motion
for continuance.

¶9. SICH argues that the trial court committed reversible error by granting the Andersons’

motion for continuance because that court failed to recognize that the motion was a

responsive filing under Mississippi Rule of Civil Procedure 56(f) to SICH’s Rule 56(c)

summary judgment motion.

¶10. Mississippi Rule of Civil Procedure 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that he
cannot for reasons stated present by affidavit facts essential to justify his
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 order as is just.

Miss. R. Civ. P. 56(f). But nothing in the record indicates that the Andersons’ motion for

continuance was filed pursuant to Rule 56(f), or that it was filed in response to SICH’s

motion for summary judgment. In fact, the motion for continuance attested that “[p]laintiff

has in good faith engaged in significant discovery in the past six months, but that more

discovery needs to be done in order to prepare the case for trial.” (Emphasis added.)

¶11. This Court has held that “[a] trial court has the authority and indeed a duty to maintain

control of the docket and ensure efficient disposal of court business.” Venton v. Beckham,

845 So. 2d 676, 684 (Miss. 2003) (citing Harris v. Fort Worth Steel & Mach. Co., 440 So.

2d 294, 296 (Miss. 1983)). That said, the trial court is “afforded ‘reasonable latitude’

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regarding the setting and continuance of cases.” Watts, 598 So. 2d at 1312 (quoting Mitchell,

398 So. 2d at 210). In the context of a motion for continuance, this Court is to reverse only

if “manifest injustice appears to have resulted from a denial . . . .” Peden, 870 So. 2d at 1188

(quoting Morgan, 786 So. 2d at 1045) (emphasis added).

¶12. Despite the fact that “[t]he granting of a continuance is largely a matter within the

sound discretion of the trial court,” id., SICH claims to have been prejudiced by the

continuance because “[t]he Andersons had an expert and were able to disclose his opinions

two weeks before the hearing.” But the trial court’s order granting the continuance should

have alleviated SICH’s concerns, as it cut off the Andersons’ ability to conduct discovery

beyond the thirty-day extension. Additionally, the trial court provided more than a month for

SICH, until April 18, 2014, “to take additional discovery and to supplement its expert

designations.”

¶13. Furthermore, the dates-of-service certifications belie SICH’s argument that the

Andersons’ motion for continuance was a Rule 56(f) motion. While the Andersons’ motion

for continuance was filed on February 5, 2014, and SICH’s motion for summary judgment

was filed that same day, SICH’s motion for summary judgment was certified as having been

served on the Andersons on February 4, 2014. Conversely, the Andersons’ motion for

continuance was certified as having been served on SICH on February 3, 2014. That same

day, February 3, 2014, the Andersons served their expert designation. Therefore, the

Andersons would not have had notice of SICH’s motion for summary judgment until such

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time as they had received service of it, which occurred one day following the service of the

motion for continuance and the expert designation on SICH.

¶14. The trial court did not abuse its discretion in granting the Andersons’ motion for

continuance.

II. Whether the trial court erred by denying SICH’s motion to strike.

¶15. The Andersons concede that they did not comply with the original scheduling order

in filing their expert designation. According to the scheduling order, the Andersons were to

have their experts designated as of November 30, 2013. They did not file their expert

designation until February 5, 2014, having served it on February 3, 2014. Sixty-five days

elapsed from the time the expert designation was to have been filed until the date it was

served on SICH. SICH posits that the denial of its motion to strike the Andersons’ “65 day

late unsworn expert disclosure” amounted to reversible error.

¶16. SICH analogizes the present case to Douglas v. Burley, in which this Court

considered whether the trial court had erred in allowing a “belated and inadequate

designation.” Douglas v. Burley, 134 So. 3d 692, 697, 699 (Miss. 2012). In 2004, Burley had

filed a wrongful death action for the deaths of his daughter and grandchildren against Yazoo

Valley Electric Power Association (YVEPA). Id. at 693. More than six years later, in 2010,

Burley sought to designate a new liability expert, which the trial court allowed. Id. at 694.

On interlocutory appeal, this Court reversed and remanded for a trial absent the new liability

expert’s testimony, noting “two motions to compel . . . , Burley’s withdrawal of his liability

expert, the close of discovery, and four trial settings.” Id. at 693-94. Recognizing that a

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“‘trial court has the authority and indeed the duty to maintain control of the docket and

ensure the efficient disposal of court business,’” this Court opined that, “[w]e are unable to

see how another continuance and the allowance of [Burley’s new liability expert’s]

designation ensure the ‘efficient disposal’ of this case, especially in light of YVEPA’s two

prior motions to compel the same information.” Id. at 699 (quoting Venton, 845 So. 2d at

684).

¶17. In the present case, the Andersons were sixty-five days late in filing their expert

designation. That starkly contrasts with the situation in Douglas, in which Burley, more than

six years after filing a complaint, two motions to compel, close of discovery, and four trial

settings, sought to designate a new liability expert. Here, SICH filed no motions to compel,

and the trial setting from the initial scheduling order was moved to a date to be determined

in the future.

¶18. We cannot say that the trial court’s denial of SICH’s motion to strike compromised

the “efficient disposal” of the present case, or that the trial court abused its discretion.

III. Whether the Andersons’ failure to file an expert affidavit resulted
in an entitlement of SICH to summary judgment.

¶19. SICH argues that the Andersons’ failure to present an affidavit by their expert,

“establishing each of the elements” of their claims, rendered erroneous the Court’s denial of

summary judgment to SICH.

¶20. The court must grant a motion for summary judgment “if the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to

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a judgment as a matter of law.” Miss. R. Civ. P. 56(c). “Summary judgment is mandated

where the respondent has failed ‘to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that party will bear the burden of proof

at trial.’” Kuiper v. Tarnabine, 20 So. 3d 658, 661 (Miss. 2009) (quoting Smith v. Gilmore

Mem’l Hosp., Inc., 952 So. 2d 177, 180 (Miss. 2007)).

¶21. The Andersons alleged medical malpractice:

In order to establish a prima facie case of medical malpractice, a plaintiff must
prove “(1) the existence of a duty by the defendant to conform to a specific
standard of conduct for the protection of others against an unreasonable risk
of injury; (2) a failure to conform to the required standard; and (3) an injury to
the plaintiff proximately caused by the breach of such duty by the defendant.”

Cleveland v. Hamil, 119 So. 3d 1020, 1023 (Miss. 2013) (quoting Hubbard v. Wansley, 954

So. 2d 951, 956-57 (Miss. 2007)). In order “to establish the second and third prongs—that

the defendant breached the applicable standard of care, and that the breach proximately

caused plaintiff’s injuries—the plaintiff must provide expert testimony.” Id. (citing Hubbard,

952 So. 2d at 957). In Kuiper, this Court reversed the trial court’s denial of summary

judgment in a medical malpractice suit because “the plaintiffs failed to file any response and

failed to provide any evidence, expert or otherwise, in support of their claims at the summary

judgment hearing.” Kuiper, 20 So. 3d at 659.

¶22. But here, the trial court was faced with a motion for continuance, which the trial court,

in the proper exercise of its discretion, granted. The February 14, 2014, hearing transcript

reveals that, though the summary judgment motion was to be considered on that date, the

content of the hearing consisted of argument regarding the motion for continuance. The trial

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court made clear that its denial of summary judgment was “without prejudice to its being

renewed at a later date . . . .” Because the trial court determined that issues had not

sufficiently been fleshed out such that summary judgment to the defendants was warranted,

we hold that the trial court did not err in denying SICH’s motion for summary judgment.

CONCLUSION

¶23. Finding that the trial court did not abuse its discretion in granting the Andersons’

motion for continuance, that the trial court did not abuse its discretion in denying SICH’s

motion to strike the Andersons’ expert designation, and that the trial court did not commit

reversible error by denying summary judgment to SICH, we affirm the judgment of the

Circuit Court of Sharkey County and remand the case for further proceedings.

¶24. AFFIRMED AND REMANDED.

RANDOLPH, P.J., LAMAR AND KING, JJ., CONCUR. COLEMAN, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J.,
DICKINSON, P.J., AND PIERCE, J.

COLEMAN, JUSTICE, DISSENTING:

¶25. Sharkey Issaquena Community Hospital filed a motion for summary judgment in the

above-styled case, and the hospital set the motion for hearing. As of the day of the hearing,

the Andersons had provided no responsive affidavits or other competent summary judgment

proof, nor had the plaintiffs filed a request for a continuance pursuant to Mississippi Rule of

Civil Procedure 56(f). Rule 56 and our caselaw mandated that the trial court enter summary

judgment in favor of the hospital. Accordingly and with respect, I dissent.

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¶26. I begin with the wording of Mississippi Rule of Civil Procedure 56(c), which purports

to govern summary judgment motion practice and provides, in pertinent part, as follows:

The motion shall be served at least ten days before the time fixed for the
hearing. The adverse party prior to the day of the hearing may serve opposing
affidavits. The judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.

(Emphasis added.) By rule and precedent, summary judgment procedure in Mississippi

centers upon “the time fixed for the hearing.” Id. The nonmoving party has only until the

day before the hearing to serve opposing affidavits. Miss. R. Civ. P. 56(c). Most important

for today’s case, judgment “shall be rendered” if the nonmoving party fails to demonstrate

that a triable issue of fact exists. Also, our rules provide no means for the nonmoving party

to obtain a continuance of the hearing absent a showing sufficient to satisfy Rule 56(f).

When the day of the hearing arrived, and the Andersons had failed either to provide

competent summary judgment proof or to provide sufficient reasons, consistent with Rule

56(f), why they could not so respond, the law required entry of judgment in favor of the

hospital. Smith v. Gilmore Mem’l Hosp., Inc., 962 So. 2d 177, 180 (¶9) (Miss. 2007)

(quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So. 2d 1205, 1214 (Miss.1996)).

(“Summary judgment is mandated where the respondent has failed ‘to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial.’”)

¶27. Quite simply, the Justice Kitchens misses the mark when he holds that the trial court

did not abuse its discretion in granting the Andersons’ motion for a continuance. On

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February 5, 2014, before the hospital even noticed its motion for summary judgment for

hearing, the Andersons filed a motion asking the trial court to continue the trial and change

the previously entered agreed scheduling order. Therein, the Andersons contended, “[T]hat

more discovery needs to be done in order to prepare the case for trial.” At the hearing on the

motion for continuance, the Andersons’ attorney provided no additional illumination on any

need for discovery, saying to the trial judge, “[T]here is further discovery we could engage

in, but we have already done some discovery.” The Andersons wholly failed to provide any

description of specific discovery needs, nor did their motion explain why they had failed to

propound any written discovery requests upon the hospital or to seek to notice a single

deposition since the hospital answered their complaint on July 25, 2013. Likewise, the

Andersons failed to explain why they were unable to complete discovery in the time agreed

upon by the parties in the agreed scheduling order. Indeed, as he granted the continuance,

the trial judge forbade the Andersons from conducting any additional discovery.

¶28. In any event, the Andersons moved to continue the trial of the case, not the hearing

on the hospital’s motion for summary judgment. The Justice Kitchens acknowledges that no

Rule 56(f) motion was filed, but then he affirms by ignoring the fact that a continuance of

a summary judgment hearing is governed by a different rule of procedure and different

caselaw than a continuance of a trial date.

¶29. Continuances of summary judgment hearings are governed by Mississippi Rule of

Civil Procedure 56(f), which provides as follows:

Should it appear from the affidavits of a party opposing the motion that he
cannot for reasons stated present by affidavit facts essential to justify his

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 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 order as is just.

Again, the Andersons never filed a Rule 56(f) motion – before or after the hospital noticed

its motion for summary judgment for hearing. The Andersons never complied with the Rule

56(f) requirement to submit an affidavit containing the reasons they could not respond to the

motion for summary judgment, although the absence of an affidavit may not be fatal to the

request for a summary judgment hearing continuance “when the court concluded that the

party opposing summary judgment had been diligent and had acted in good faith.” Owens

v. Thome, 759 So. 2d 1117, 1121 (¶17) (Miss. 1999). With or without an affidavit, the

Andersons would have been required to provide more than a general, unspecific claim that

additional discovery was needed, to get a continuance had they asked for it.

¶30. Vicksburg Healthcare, LLC v. Dees, 152 So. 3d 1171 (Miss. 2014), provides an

accurate description of our law governing summary judgment practice and continuances of

summary judgment hearings. Therein, the plaintiff, Clara Dees, filed a complaint against

several defendants, alleging, among other things, medical negligence. Id. at 1172. After

dismissal of some defendants following arbitration, id. at 1173 (¶4), defendant Vicksburg

Healthcare filed a motion for summary judgment, citing Dees’s failure to identify experts.

Id. at 1173 (¶5). Like the Andersons in the case sub judice, Dees responded with an expert

designation but no affidavit from her expert or any other witness. Id. at 1173 (¶5). The trial

court denied the motion for summary judgment based on the expert designation and gave

Dees additional time to obtain responsive affidavits. Id. at 1173 (¶6). The Dees Court

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granted Vicksburg Health’s petition for interlocutory appeal and, for reasons further

discussed below, reversed the trial court. Id. at 1173 (¶ 7).

¶31. After affirming the longstanding law that “a plaintiff’s failure to provide expert

testimony establishing a prima facie case of medical negligence generally requires a grant

of summary judgment,” id. at 1174 (¶11) (emphasis added), the Dees Court went on to

explain why the trial court erred when it failed to grant Vicksburg Healthcare’s motion for

summary judgment and instead, like today’s case, sua sponte granted a continuance of the

summary judgment hearing.2 After quoting the text of Rule 56(f), as I do above, the Dees

Court continued,

This Court has established that, for the opposing party to be granted additional
time, he or she must “present specific facts” explaining why the motion cannot
be opposed at that time. Jones v. Mullen, 100 So. 3d 490, 496 (Miss. Ct. App.
2012) (citing Owens v. Thomae, 759 So. 2d 1117, 1120 (¶ 12) (Miss. 1999)).
It also must be shown what actions have been taken to discover the
information that is needed to defend the motion. Id. at 497. If additional time
is granted, it should be premised on the court’s conclusion that “. . . the party
opposing summary judgment [has] been diligent and [has] acted in good faith.”
Owens, 759 So. 2d at 1121 (citations omitted).

Dees, 152 So. 3d at 1175 (¶ 13). In the end, the Dees Court’s next sentence applies equally

well to the case before us today: “The record reveals no compliance with these

requirements.” Id. Like the Dees Court and for the reasons given above, I would hold that

2
As I set forth above, the record in the instant case is clear – the Andersons never
made a Rule 56(f) request for relief. However, I anticipate that some might wish to give
them the benefit of the doubt and argue that their motion to continue the trial sufficed as a
Rule 56(f) motion, despite the specific requirements in Rule 56(f) itself and our caselaw for
obtaining such relief. However, sua sponte or not, the trial court granted the Andersons a
continuance despite the complete absence of any Rule 56(f) showing, as demonstrated
below.

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the trial judge in the instant case abused his discretion in allowing the Andersons additional

time to obtain affidavits.

¶32. In the end, today’s holding allows a trial court and dilatory parties to make an end run

around the Rule 56(f) requirements. According to today’s holding, a party who has failed

to conduct discovery for months can ignore Rule 56(f), appear on the day set for hearing on

a motion for summary judgment, and via a motion for a continuance of a trial date, obtain a

denial of a motion of summary judgment filed against him without a single scrap of

competent summary judgment proof or a single, specific, identified need for further

discovery to enable him to respond to the motion. After today’s case, Rule 56(f) and its

requirement that the nonmoving party demonstrate actual reasons why he cannot respond to

a motion for summary judgment no longer exist, as long as the nonmoving party files a

motion to continue a trial date and makes a general claim that further discovery might be

helpful or, given that the trial judge in the case sub judice forbade additional discovery,

maybe not even that much is required.

WALLER, C.J., DICKINSON, P.J., AND PIERCE, J., JOIN THIS OPINION.

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