HomeMy WebLinkAbout96-01003
j
1
)-
'"tt,~
"\'1
i~ 1
I
i
~ J
i
]
1
,
~ 1
1
~
I
i
,
;~
,/
,
j
j
....~
'J
'jJ
j
II
~t 'I
~l
"
:1
~t,;
181
i ..... ,,;
,;
-.,s'
0-
8
~
I
~
~
..
,,..OJ. ....-,~~.._~;.
'"
. ... iD
.... .... a:
..: ~ .... W 0
.... '" ;'j 0
"'~ Z '"
, ;.l '"
~~ '" :< U1 0
.... ... :r. U1 " Q
...l,.. '" z ~ :> ~
...'" Z '" ::'i ~ ~ E
z ,.. ..J == J "-
..
zz ~ ..: "''' .... u '" . U1 0 .
0"-1 :< ~Z ~ '" ~ 0 i
. ..
~... '" '" . '" "'.... Jl :< "-I .. <'1 .~
.... "" .... ~tJ1 u .... % < , "'
0 . "" c: 'w ::::;5 c: '" ;t: ~ Jl 0 J
U ~ ..J c: '" ... '" '" ::.> > "- , >
'" 0 'n
.... "'-" ... UJ..J .", ::< 0 U1 ~
z t iD z
'" Z > '" " '" " '" u a: z
0 ::> ~ ,.. " .... ~, U '" ... "- .. 0 "'
0 "-
a u "-I'::: '" . .... ..: Cl '" .. 0 a.
tl u ~ --< '" UJ "" ~ ~ U ;;. z a.
'" u ... > ~ '" - ~ "
8~ 0 ::> u " '" N .
0 "'.::: ::< .... . ,
~ "" '" '" .
I , . , " ..: a: .
.., ..,,.. ..J '" '" ... "
!il"-l '" ... z Cl .
....'" j~ z . ... '" .
"'~ == u '" t;j t
0 0 z '" ~
HU Z ..J'" ~ '"
,
.
5.
Denied as stated,
On Februitry 23, 1994, the statlild
Leasing and leased to Defendant
tractor was owned by G " G
Dependable Transit, Inc.
6. After reasonable investigation, the Defendants are
without knowledge or information sufficient to form a belief as to
the truth ot averments.
7, Admitted on infolmation and belief that Plaintiff Leah
Burkey was operating the stated motor vehicle and was travelling
east on Interstate 76 also known as the Pennsylvania Turnpike, The
averments are specifically denied insofar as they allege that she
was travelling in a single lane east on the Pennsylvania Turnpike.
8. Admitted in part, denilld in part. Admitted that at or
near mile post 203,4 the Plaintiff lost control of her vehicle and
travelled side-to-side into both lanes and struck the concrete
median barrier separating the eastbound lanes of Route 76 from the
westbound lanes. It is specifically denied that Plaintiff Leah
Burkey was operating the 1989 Mercury Sable in a manner safe for
the then existing conditions. On the contrary, Plaintiff, inter
alia, failed to maintain adequate control of her vehicle under thd
weather and highway conditions existing at the time. After
reasonable investigation, the Defendants are without knowledge or
information sufficient to form a belief as to the truth of the
remaining averments.
9. Admitted in part, denied in part. Admitted that
Plaintiff's vehicle prior to impact was pointing in a southeasterly
direction with the passenger side of her vehicle facing oncoming
2
traffic in the left lane eastbound on Route 76. Denied that
Plaintiff'. vehicle came to "rest" in the roadway,
10. After reasonable investigation, Defendants are without
knowledge or information $ufficient to form a belief as to the
truth of the averments.
11. Denied. Defendant Wade made every eftort he could to
avoid Plaintiff'. vehicle which was out of control and crossing
into both lanes. After reasonable investigation, the Defendants
are without knowledge or information sufficient to torm a belief as
to the truth of the remaining averments.
12. Conclusion of law, no response required. If a response
i. required, the averments are denied pursuant to Pa.R.C.P. No.
1029(e).
13. (01)-(1) Conclusions of law, no response required. If a
response is required, the averments are denied pursuant to
Pa.R.C.P. No. 1029(e).
14. (a)-(d) Conclusio~s of law, no response required. If a
response is required, the averments are denied pursuant to
Pa.R.C.P. No. 1029(e). By way of further response, Defendant John
Wade is leased to Dependable Transit, Inc., from Quality Labor
Transportation, Inc,
15. (a)-(d) Conclusions ot law, no response required. If a
response is required, the averments are denied pursuant to
Pa.R.C.P. No. 1029(e). By way of further response, Defendant John
Wade is leased to Detlendable Transit, Inc., from Quality Labor
Transportation, Inc,
3
16. (a) -( i) Conclusions of law, no response required.
response is required, the averments are denied pursuant
Pa.R.C.P, No. 1029(e).
17. (a)-(g) Conclusions of law, no response required.
response i. required, the averments are denied pursuant
Pa.R.C.P, No. 1029(e).
18. (a)-(b) Conclusions of law, no response required. If a
response i. required, the averments are denied pursuant to
Pa.R.C.P, No. 1029(e).
WHEREFORE, the Defendants respectfully request that
Plaintiffs' Complaint be dismissed and that judgment be entered in
their favor and against the Plaintiffs plus costs of this action.
Ita
to
Ita
to
NEW HATTER
19. Plaintiffs' claims are barred by the applicable statute
of limitations.
20. Plaintiffs have tailed to state a claim against
Defendants upon which relief can be granted.
21. It Plaintiffs are entitled to any recovery, which is
specifically denied and of which strict proof is demanded, the same
is the responsibility of persons or parties for whom answering
Defendants are not responsible.
22. There was no negligence on the part of Defendants, but if
it is found that there was any such negligence, which negligence is
expressly denied, any such negligence was not the proximate cause
of the Plaintiffs' damages.
4
23. Allor some of Plaintiffs' alleged damages may have been
caused by other automobile accidents for which Defendants are not
responsible.
24. The Defendants raise all defenses available to them under
the Pennsylvania Motor Vehicle Financial Responsibility Law and the
Vehicle Code.
WHEREFORE, the Defendants respectfully request that the
Plaintiff.' Complaint be dismissed and that judgment be entered in
their favor and against the Plaintiffs plus costs of this action.
COUN'l'IlRCLAUI
25. On February 23, 1994, Defendant John Wade was operating
a 1990 Kenworth Tractor and trailer T-600 eastbound on I-76 which
is known as the Pennsylvania Turnpike.
26. The aforesaid vehicle operated by Defendant John Wade was
owned by G , G Leasing and leased to Dependable Transit, Inc.
27. On the aforesaid date, Plaintiff Leah Burkey was, on
information and belief, operating a 1989 Mercury Sable automobile
eastbound on I-76 which is known as the Pennsylvania Turnpike.
28. The aforesaid Mercury Sable automobile was owned by
Plaintiff Dwayne E. Burkey.
29. On the aforesaid date at approximately 9:12 a.m., at or
about mile post 203.4, Plaintiff Leah Burkey lost control of her
vehicle and travelled from side-to-side into both lanes for the
eastbound traffic on the Pennsylvania Turr.pike.
5
30. Plaintiff Leah Burkey struck the concrete median barrier
separating the eastbound and westbound lanes of traffic on the
Pennsylvania Turnpike and spun in a southeasterly direction across
the left-hand lane of eastbound traffic impacting Defendants'
vehicle which was lawfully proceeding eastbound in the left-hand
lane and which was unable to stop in time under the conditions and
circumstances then existing.
31. The aforesaid collision was caused directly, proximately
and/or substantially by the negligence of Plaintiff Leah Burkey in
the following particulars:
(a) Failing to drive her vehicle at a safe and
appropriate speed and at a speed which is reasonable and prudent
under the conditions, including the weather and highway conditions,
existing at the time of the accident (75 Pa.C.S.A. 53361);
(b) Failing to have her vehicle under adequate and
proper control;
(c) Failing to be attentive to conditions and
circumstances then existing on the Pennsylvania Turnpike;
(d) Failing to operate her vehicle within a single lane
on a two lane highway heading in one direction (75 Pa.C.S,A.
53309);
(e) Operating her vehicle in the wrong direction of
traffic on the Pennsylvania Turnpike (75 Pa.C.S.A. 53308);
(f) FOllowing other vehicles more closely than is
reasonable and prudent under the conditions and circumstances of
the Pennsylvania Turnpike then existing (75 Pa.C.S.A. 53310);
6
(g) Moving her vehicle from one lane to another when it
is not saf. to do so;
(h) operating an uninsured vehicle;
(i) Operating her vehicle in careless disregard for the
safety of persons or property (75 Pa.C.S.A. 53714); and
(j) otherwise failing to exercise due cal:'e under the
circumstances.
32. As a result of the aforesaid negligence of Plaintiff Leah
Burkey, the Defendants sustained damage to the aforesaid trac'cor-
trailer in the amount of $4,334.76 and claim is made therefor.
33. As a result of the aforesaid negligence of Plaintiff Leah
Burkey, the Defendants suffered wrecker emergency road service
charges in the amount of $60.00 and claim is made therefor.
34. As a result of the aforesaid negligence of Plaintiff Leah
Burkey, the Defendants suffered 109s of use of the aforesaid
tractor-trailer and revenue in the amount of $1,250.00 and claim is
made therefor.
35. Moreover, at the aforesaid time and place, Plaintiff
Dwayne Burkey had entrusted his automobile to Plaintiff Leah Burkey
when he knew or should have known that Plaintiff Leah Burkey was
incompetent to operate said vehicle and should not operate said
vehicle, particularly since she apparently was not able to control
her vehicle under the weather conditions existing at the time of
the accident.
7
V.RIPICATIOIf
I, Larry Garrett, am the President of both Dependant Transit,
Inc., and G , G Leasing and am authorized to act on their behalf.
The facts set forth in the foregoing Answer with New Matter
and Counterclaim are based upon information which I have furnished
to counsel, as well as upon information which has been gathered by
counsel and/or others acting on my behalf in this matter. The
language of the Answer with New Hatter and Counterclaim is that of
counsel and not my own. I have read the Answer with New Hatter and
Counterclaim, and to the extent that it is based upon information
which I have given to counsel, it is true and correct to the best
of my knowledge, information, and belief. To the extent that the
content of the Answer with New Matter and Counterclaim is that of
counsel, I have relied upon such counsel in making this
Verification. I hereby acknowledge that the facts set forth in the
aforesaid Answer with New Hatter and Counterclaim are made subject
to the penalties of 18 Pa. C.S.A. S4904 relating to unsworn
falsification to authorities.
Dated: L/-'d;)- Cf0
.~@M to,-----
~Yret~
plaintiff stopped h~r Hhide .t<:ross the roadway. By way "f furth~r answ~r. Jc:f~ndant was
travelling too fast for wndil1ons, whi(h prD.\imat~ly .:ausc:d his v~hid~ 10 slrlk~ the plaintiff's
vehicle.
13, Paragraph J I of Jc:f~nJanlS' l'ounl~rdaim is J~nied. Answer is maJe to these
subparts more particularly as follows:
(a) DenieJ, Plaintiff Jrove al a safe anJ lawful speed at all times.
(b) D.:nied. It is specifically denied that plainliff failed to have her vehicle under
adequate and proper control.
(e) Denied. It is specifically denied that plaillliff failed to be attentive to conditions
and circumstances then existing on the Pennsylvania Turnpike.
(d) Denied. Plaintiff operated her vehicle in a single lane at all time5 until her vehicle
began sliding on ice.
(e) Denied. Plaintiff never operated her vehicle in the wrong direction.
(t) Denied. It is specifically denied that plaintiff was following other vehicles more
closely than is reasonable and prudent unJer the conditions and circumstances of the
Pennsylvania Turn)like then existing (75 Pa. C.SA ~J31O);
(g) Denied. It is specifically denied that plaintiff moved her vehicle from one lane
to another when it is not safe to do so.
(h) Denied. Plaintiff's vehide was insured.
(i) Denicd. It is specifi<:ally dcnied that plaintiff operated her vehicle in careless
J
,~ .
she was cOll1pttenl 10 lawfully and prudcnlly optralc solid vehicle.
I K Paragraph .16 of defendants' cllulllerclaim is a conclusion of law to which no
response is required.
19. Paragraph .\7 of defendants' counlerclaim is sptcifically denied, and strict proof
thereof is demanded al trial.
WHEREFORE. Plaintiffs Leah Burkey and Dwayne Burkey demand judgment in their
favor and resptctfully requestlhat defendants' counterclaim be dismissed.
Respectfully submilled, 1) f
By ,,1~il
David L. Hunter, Jr.
)
5
pointing in a southwesterly direction, with her passenger side fal'ing om:oming traffic,
10. While the plaintiff's vehide was mOiling in the aforesaid manner, another
vehicle in the easlbnunJ lane, a 1991) Chevy Lumina minivan was operated by Nelson J.
Ruddy. ill about 35 miles an hour, when he observed the plaintiff's vehiclll lose conrrol; Mr.
RudJy brought his vehicle to u complete stop, pulling off the roadway onto the berm on the
right hand side of the eastbound lane.
II. After pulling off the roadway. Nelson Ruddy observed the defendant's 1990
Kenworth tractor trailer, driven by John L. Wade, pass him and continue travelling until it
struck the plaintiff's vehicle without any effort to avoid the plaintiff's vehicle.
12, At all times material hereto, plaintiff Leah J. Burkey acted with due care and
was n:Jt contributorily negligent.
13, Plaintiff's injuries and damages as set forth below, were the direct, legal and
proximate result of the negligence of the defendants, individually, jointly and/or severally and
were the direct, legal an proximate result of the negligence of the defendant, John L. Wade,
acting within the scope of his agency and/or employment, individually, jointly and/or
severally as aforesaid and more specifically in the following particulars:
a. plaintiff repeats, realleges and incorporates by reference the allegations
contained in paragraphs I through 11 of this complaint, as if the same were more specifically
3
set forth 011 Icn!?th herein.
b. in opc:rating iI motor vehicle in a carcl.:s.~, reckless ilnd ncgllgcnt
manner:
c. in opc:rating his motor vehicle at an cxcessive rate of speed under thc
circumstances;
d. in opc:rating his motor vchicle, the I 'NO Kenworth, without proper
control so as to stop said vehicle within Ihe assureu clear distance ahead (75 Pa. C.S.A.
~JJ62);
e. in failing to apply his brakes in sufficient time to avoid striking the
plaintiff's vehicle;
f. in failing to take propc:r steps to avoid striking the plaintiff's vehicle;
g. in failing to take proper evasive action to avoid impacting with
plaintiff's vehict.:;
h. in failing to keep a proper lookout;
i. in failing to use due care under the circumstances;
j. in failing to pull off to the side of the road as the vehicle driven by
Nelson Ruddy had done de:>pitel:le fact that Mr. Ruddy was directly behind the plaintiff's
vehicle and in front of the defendant's vehicle when he pulled off to the side of the road,
avoiding a collision with the plaintiff's vehicle.
k. in failing 10 apply bis brakes in sufficient time to avoid striking
plaiflliff's stationary vehicle; anu
I. in opc:rating his motor vehicle in uisregaru of the rules of the rooo and
4
the luw~ of rhe {'Illlllllllllwealth of Penllsyl~ania in.:luding but not limired to the Motor
Vehicle Code. 7:'0 PiI. C.S,A. *.1.161 ilnJ _H62.
I~. Plaintiff'~ injuries and damages as set forth below, were the direct. legal and
prmimille result of the negligence of Ihe dcfenJants. inJiviJually. jlliJ1lly anJ/or severally and
were the direct, legal anJ proximate result of the negli~ence of the defenJant. Dependable
Transit, Inc.. acting through its agents, ser\ants anJ/or emplo:yees actillg within the scope of
their agency and/or employment, inJividually. jointly and/or severally as aforesaid and more
specifically in the following particulars:
a. Plaintiff repeats, realleges and incorporates by reference the allegations
containcd in paragraphs I through IJ of this complaint, as if the same were more specifically
set forth at length herein;
b. in promoting the indiviJual defendant, John L. WaLle, to function as its
agent, servant andlor employee acting within the scope of its agency and/or employment.
when it knew or should have known he was not qualified by his training, background and
experience to operate the 1990 Kenworth during the weather conditions present on February
23, 1994 in the eastbound lane of Route 76, the Pennsylvania Turnpike;
c. in directing the defendant, John L Wade, to operate the 1990 Kenworth
on February 23. 1994 when they knew, or shoulJ have known, that weather conditions were
hazardous anJ incluJed ice and snow, substantially increasing the risk that the vehicle would
be involved in a collision; and
J. in directing the defendant dri~er John L. Wade to reach his destination
5
by a specifi.: time III SpllC of Ihc wcathcr cUllditioll'i pre'ic:nt UIl February 2.1. 1994.
I.~. Plaintiffs injuries alld dam;.gcs as set forth below. wcre the direct, legal and
proximalc resull of the negligence of Ihe defendants. individually. jointly and/or severally and
were the direct, legal and proximate result of the negligence of the dct'endant. G & G
Leasing. acting through its agents, servants or employees acting within the scope of their
agency and/or employment. individually, jointly amI/or severally as aforesaid and more
specifically in the following particulars:
a. Plaintiff repeats. realleges and incorporates by reference the allegations
contained in paragraphll I through 15 of this complaint as if the same were ml're specifically
set forth at length herein;
b, in leasing its I Qll(} Kenworth to defendant Dependable Transit, Inc, with
knowledge that the vehicle would be driven in bad weather conditions on February 23, 1994,
substantially increasing risk of an accident:
c, in allowing Dependable Transit, Inc. to select and promote an individual
driver, specifically the individual defendant John L. Wade. to function as itll agent, servant
and/or employee acting within the scope of its agency and/or employment, when it knew or
should have known he was not qualified by his training, background and experience to
properly operate the 1990 KCllworth during thc traffic conditions present on Interstate 76 in
the eastbound lane on February 23. 1994;
d, in failing to assure that operators of the vehicles it leased were properly
trained to operate the ~ehicle in bad weather conditions including ice and snow;
6
16. A, a direct and prnximale r.~sult of th~ aroresaid acts <)r ncgligence of the
derendants inJividually. jointly and/Or severally. the plaintiff L.eah 1. Burkey suffered the
following injuries:
a. bulging disks at C4, C5. CIi, Ll and L4:
b. post traumatic headaches;
c. rracture of the right fifth and sixth ribs:
d. head laceratio.,;
e. strain/sprain of the cervical spine;
f. tendinitis of thc right hallux;
g. severe emotional distrcss;
h. pain and suffering; and
i. other serious injuries.
17. As a direct. legal and proximate rcsult of the ncgligence of the defendants,
individually, jointly and/or severally as aforesaid, the plaintiff, Leah 1. Burkey sustained the
following damages:
a. she was admittcd to the Chambersburg Hospital on February 23, 1994
through February 25, 1994 as a rcsult of hcr injuries;
b. she has incurred hospital, medical and attendant therapies all in ex,ess
of $5,000,00;
c. she has incurred a wagc loss of $5,000.00 to date. as wcll as a reduction in
her earnings and earning capacity in the futurc;
7
(;
I
ll_~
C'
I
,
l..
r'
l.
I
.f, l-~
,
'" ') /)
L', ~ ---..::.....""'-
,~
OO~-'
.~-)
,"-,
l.
\<...J,
-
;...
l..S..
---
(, ;
"'I("
1'(\
,---'
.,.
~
.-i,
-----.,/
..,..
-
--.
r-- .J
~\,"
...
I';, C
p-
I'
,
, ,'.1
( ,
I.
,
':.
""
I'
(..., \.J ~
z u
f-o '" Z 0 ~
"'< .... :xl 0 .... "
0.... '" f-o .... f-o ~ ~
"'~ ~ f-o '" .... w
'" .., 0 "''''
~~ '" 0 T. '" 0 '" 0
f-o f-o '" '" 6
....1>0 '" >0 I>: I>: '" III .
"'''' Z III '" '" < ..: l.I.JO....JQ w
III w
z~ ~ .... ....I . ... f-o "'.....'" :> ) . ~
~ .... ~H~ " I>: '" OOVlQ . . 8
0'" .,., '" 0 O:::.r!.:~Z Z j '" !
'Ii'" '" Cl .... Cl.... "'" '" Cl ~:O'" :s: " . '" z
f-o ""''' z'" " ~~ 0... . z .
0 '"
0 "'" " .... ~LJ " z u... . " >,
.f .
u ~ ....I " '" '" .... 0 Cl ..: x . 0 .
.... "'.a.... "'....I " .... I>: Z ' '" . w ill ~
Z % Z
"'z :- "'''' Cl Cl f-o '" 0 :>:0 0 x . . z
0:0 .... eJ,g '-' 0 fil .... ... III 0 . 0 w
0 U T. f-o .", ~ . 0 ,.
. z u.
f-oU ~ W... 0 .... , u '" ... .
I>: '" .. ~<.'l '" ~~ '" ~ 0
:JCl 0 :0 " '" '" 0 '" '! OJ .
,
8~ 0 ",.c :< f-o :- '" 3 Z 3 '" .
.... "'" ~ ....'" .0'" ~
I , C f-oCl 1>:....1'" . .
!:j", '" .., >0 ....I '" Cl U "'....I~ ~ .
0- '" Z "'....I ~<::.I ... .
~~ ~~ s:i , '" f-o<( u " x
, u l.I..O","",O~Q ~
0 III 0 Z l.iJ~O:::O:::O~
....u Z ....I'" > .., .... OC4HCQf..&.4~ ...
~
. ,
~. rhe abuve acliun y,a., o.:allo.:d as ready I,.r trial by lldcndants' wunsd y,ithout
objeo.:tion un August 12. 19'17.
5. A pretrial conlcr..:no.:e has be..:n sch..:dukd bd,,,..: the Honorabl..: 1. Wesley Oler, Jr.
lor August 27. 1997 at I O:JO a.m.
6. Prior to listing this actionll)r trial, the c,)unsd lor the parties agreed that they
would be exchanging o.:ommerdal acddent reconstruction reports and scheduling the trial
depositions of the medical experts and/or having their experts testify live at trial.
7. On August I J. 1997. Delendants' counsel recdved a copy of the Plaintiffs'
Pretrial Narrative Statement which stated that the deposition of Robert J. Brocker, Jr.. M,D. for
use at trial had been It:ntatively scheduled lor August 17, 1997 or September 15, 1997 depending
on his availability,
8. The dates chosen for Dr. Brocker's deposition were not coordinated with
Defendants' counsel.
9. On August 20, 1997, Delendants' counsel was faxed a Notice of Deposition for
Dr. Brocker scheduled to take place in Youngstown, Ohio on August 27, 1997 at 2:30 p.m. A
true and correct copy of the Notice of Deposition is allached hereto as Exhibit" A" and
incorporated hcrdn by reference,
10. The date chosen by PlaintilTs' counsel lor Dr. Brockcr's deposition contlicts with
thc prctrial conferencc schcdulcd bclore the Honorable J. Wesley Olcr, Jr.
II. The PlaintilTs' counsel was advised on atleastthrec occasions prior to schcduling
Dr. Brocker's dcposition that the pretrial eonlerence would take place on August 27. 1997. A
true and correct o.:opy of two lellers addressed to PlaintilTs' counsel advising him of this datc are
allached hereto as Exhibit "B" and incorporated herein by rdcrence.
-1 -
.
12. D~spih: the knowlcdg~ that th~ PMrial conli:r~nc~ \HIUld likely take place on
August 27, 1997, as expressed to Plaintill's' counsel and as listed in the 1997 Court Calendar for
Cumberland County, Plaintiffs' counsel insists on taking the trial deposition of Dr. Brocker in
Ohio on the aforesuid date and time.
13. Aller receiving Plail1lifls' counsel's lax of August 20, 1997, Defendants' counsd
called Plaintifls' counsel and also forwarded a letter notifying them that the date would not be
suitable since there already is a pr~trial conference scheduled with Judge Oler. A true and
comet copy of Defendants' counsel's correspondence is attach~d hereto as Exhibit "C" and
incorporated herein by reference.
14. Following the fax of Exhibit "C" to Plaintiffs' counsel, PlaintilTs' counsel called
Defendants' counsel and stated that he intended to proceed with !he deposition of Dr. Brocker on
the date he unilaterally choose and would participate in the pretrial conli:rence by telephone.
15, Dcli:ndanls' counsel first requests that the Court enter a ProtectiVl: Order and issue
a stay of the deposition of Dr. Brocker because it is in contlict with a previously scheduled Court
date in the same action, was not coordinated with Defendants' counsel's office, provides
Defendants' counsel with less than a week to prepare and make arrangements including
scheduling changes to travel to Ohio for a deposition,
16. Pursuant to Pa.R.C.P. No. 4012, the Court may make an Order upon Motion by a
party for good cause shown which justice requires to prot\'ct the party from unreasonable
annoyance, oppression, burden and/or expense.
17, The foregoing Rule of Civil Procedure also empowers the Court to enter an Order
prohibiting the deposition or directing that the deposition shall be taken on specified terms and
conditions, including a designation of the time and place.
- 3 -
18. Moreover. Dcfenoants' counsel has a right to physically participate in a pretrial
conterence by the Court ano shoulo not be compelled solely hecause of the circumstanc.:s of
Plaintiffs residence to participate in the pr.:trial cOlllerence hy telephone or by suhstitute counsel
as suggested by Plaintifls' counsel during th.: pr.:vious conversation.
19. Moreover, Delendants' counsel requests that the Court enter a stay of the
deposition pursuant to Pa.R.C.P, No. 4013 lor the reasons settllrth herein.
20. In addition, th.: deposition has been scheduled to take place in Youngstown, Ohio,
which is approximately 250 miles from the Cumberland County Courthouse.
21. Pursuant to Pa.R.C.P. No. 4008, the Court upon Motion may make an Order
requiring the puyment of reasonable expenses, including of attorney fees. as the Court shull deem
propcr if a deposition is to be tuken by oral .:xamination more thun 100 miles from the
courthouse.
22, On May 23, 1997, Defendants' counsel previously filed a Motion lor Allowance
of Counsel Fees and Expenses to attend the depositions of two witnesses which were scheduled
by Plaintiffs' counsel for use attriul in Cincinnati, Ohio.
23. Following a telephone conference between counsel for the purties, this Honorable
Court denied the Motion and Defendants' counsel attended the depositions in Ohio ut signiticunt
expense to Defendants. A true and correct copy of the Order of Court dated June 2, 1997 is
uttached hereto us Exhibit "0" und incorporated herein by reference.
24. Plaintiffs' counsel now again schedules a trial deposition in Ohio and hus not
agreed to reimburs.: Delendants' for their expenses in attending the deposition.
25, The depositions scheduled by Plaintifls' counsel arc taking place in Ohio solely
because that is the residence of Plaintiffs and their local doctor.
.4.
.
.
Elhibit A
,J:
l
'"
~ <=,1
, ~ _:1
"'. .,
t'.. C'~
~'I'; ..
.2( l... ,I
~'-'
~d ;
l.r.' oo.-
<-,' ,~J \'.j
\,..:., .-
,
f1..' t.: .-
f c....:
l~- Lr'l . ;
'-.' C .
. III
f-o .... a:
< .... 0<: W 0
.... '" U .., 0
",::5 z .... '"
;:i .J '" III 0
~~ W W ,.. III
f-o ~ :>:: .. Q
~ '0
....>- ..... 0.. .
0..'" Z Ul ..... Ul 0 z ! . ~
z ,.. .... .... ... U '" ..
zZ ~ ...: .... :i! " - ::s:: ~ III 0 ~
OW ~ .... . '" 0 ,.. . .. .. 0 Z
~o. W .... '" '-'''' ,.. w :l < z '" <
,.. '" c:: Z z c:: g:J 0 '" >
~ . "
o . ." c::.... ..... .... " Z . . ..
U~ .J c:: '" '" 0.. "'.... 0 '" .. "- 0 .
.... <U..,.... W ~~ .... lXl III . III Z
Z ,
""Z > <no.. '" ,.. a: . .. z
o=> .... ,.. ~ .J 0:>:: ... 0 . 0 .
0 U W-" . Too<: '" .. 0 '" '"
f-oU g:J ..... '-' W U .. z <i
.. M ... ~ '" - ....JZ ~ 4 .
"'.:> 0 '" " '-' Ul 0 N ,
OZ 0 lXl-" ,........ . '" .
~~ .... '" ~...,.. IX ..
I . . . " ....< ... ii
'" ..., >- .J .. Cl~Z Cl .
::CW '" W Z;2:H N <
f-ocQ :>::~ Z , W....~ J;; ,
Z~ , ~=> . :>:: u e;j
0 Ul 0 Z :::;:
....U Z ....cQ :- ..., .... Qo..W
"
h. pain and suffering; and
i. other serious injuries.
3. On July 15, 1996, Plaintiff Leah Burkey testified at a
deposition that she has headaches every morning, constant neck pain
across her entire neck, constant midback achiness and tightness and
continual low back pain from alleged bulging disks.
4. Plaintiff also testified at the above deposition that her
neck and back injuries are permanent.
5. On May 1, 1996, Defendants filed an Answer with New
Matter to Plaintiffs' Complaint, effectively denying any causal
connection between the accident and Plaintiff's alleged injuries
and the nature and extent of these alleged injuries.
6. The Defendants have also raised in their New Matter that
some of the Plaintiff's alleged injuries may have been caused by
subsequent automobile accidents for which Defendants are not
responsible.
7. The physical condition of the Plaintiff is in controversy
because it is a disputed issue in this case, is material to a
proper determination of the nature of Defendants' alleged
liability, and is an element of damage in this personal injury
action.
8. The Defendants have good cause to request a physical
examination because it is the only way the Defendants have to
obtain independent information on Plaintiff's physical condition
and alleged permanency of injuries.
9. On August 29, 1996 the undersigned spoke with Plaintiffs'
counsel, David L. Hunter, Jr., Esquire concerning a physical
examination of his client Leah Burkey by an orthopedic physician in
Cumberland or a surrounding county such as York.
10. Plaintiffs' counsel stated that he would check to see if
his clien~ has any objections to a physical examination in those
counties or in an adjoining county and call me back.
11. After not hearing from Plaintiffs' counsel, the
undersigned forwarded to counsel a letter dated september 11, 1996,
following up on the request for physical examination and stating
that the undersigned will assume Plaintiffs' counsel has no
objections to the scheduling of an IME in either York or Cumberland
County and proceed to schedule one unless the undersigned hears
from Plaintiffs' counsel to the contrary within 10 days. A copy
of the referenced letter is attached hereto as Exhibit "A" and
incorporated herein by reference.
12. On September 20, 1996, Plaintiffs' counsel called the
undersigned and stated that his client will not consent to a
physical examination in Pennsylvania since she is an Ohio resident
but would agree to have a Pennsylvania doctor testify based on an
Ohio physical examination.
13. On September 25, 1996, the undersigned forwarded a second
letter to Plaintiffs' counsel stating that he has been instructed
to file with the Court a Motion to compel Physical Examination and
to secure an Order compelling Leah Burkey to submit to a physical
examination locally in Pennsylvania. A copy of the referenced
letter is att\lched hereto as Exhibit "B" incorporated herein by
reference.
:3
14. At this time, the Plaintifts' counsel does not appear to
be disputing the Defendants' need tor a physical examination but
mel:'ely appears to be disputing the place or location of that
physical examination.
15. Plaintitfs' counsel is insisting that the physical
examination be taken in Ohio where Plaintiff Leah Burkey resides as
opposed to a location Ln Pennsylvania.
16. The Defendants contend that the physical examination be
taken in Cumberland County or an adjoining county such as York
because the action was commenced and the accident occurred in
Cumberland county.
17. Moreover, the Plaintiffs are residents of Ohio and the
Defendants are residing or have their place of business in Indiana.
18. Therefore, the only common geographic factor between the
parties is tile place of accident and filing which are both in
Cumberland County.
19. The Defendants would be subject to great expense and
inconvenience if a physical exa~ination was scheduled near
Plaintiff Leah Burkey'S residence in Ohio because Defendants would
have to pay their counsel to travel approximately 600 miles round
trip or 10 hours to attend a deposition of the examining doctor
should it be necessary prior to trial.
20. Considering the expense involved and inconvenience posed,
Defendants' believe the most equitable location to have the
scheduled examination would be in the county in which the action
was filed or in an adjoining county.
4
21. If the Court compels the Plaintiff Leah Burkey to submit
to a physical examination locally the Defendants will probably
schedule it with Perry A. Eagle, M.D., a board certified orthopedic
surgeon, actively locally since 1972, at his office located at 191
Leader Heights Road, York, Pennsylvania at a time to be later
designated by the Court.
22. The examination will consist of a physical examination,
review of records and x-rays and possible further testing,
including x-rays, to determine Plaintiff's physical condition of
her neck and back. The examination would be limited to Dr. Eagle,
his staff and Plaintiff Leah Burkey in order to avoid any
interference and influence.
23. In the alternative, Defendants request that the Court
compel Plaintiffs to either pay, or share in the cost of,
Defendants counsel's fees and expenses to attend any deposition of
the examining physician which may occur in this case if it is
ordered to be held in Ohio or nearby.
23. Pa.R.C.P. No. 4010 (a) permits the Court to order a party
to submit to a physical examination by a physician on motion for
good cause shown and upon notice to the person to be examined.
24. Under the above rule, the Court can also specify the
time, Dlace, manner, conditions and scope of examination.
WHEREFORE, Defendants respectfully request that this Court
enter an order directing the Plaintiff Leah Burkey to submit to a
physical examination by an orthopedic physician in accordance with
the above, at a time, place, manner and under the conditions and
5
.
to ensure that all timely objections are raised; to ensure that there are no communications
problems by taking the deposition over the phone as opposed to in person and other important
factors" .
4. Defense counsel's concerns would be the same if a discovery r.leposition rather
than a deposition for use at trial were being conducted; counsel for the Plaintiffs has already
agreed to advise defense counsel in advance of all documents that would be shown to the
witness; defense counsel can question the witness concerning physical gestures Plaintiffs' counsel
may mike during the deposition and timely objections can be made over the telephone;
communications problems by taking the deposition over the telephone would obviously have to
be eliminated for use of the deposition at trial.
5. Plaintiffs' counsel has already indicated that the deposition for use at trial will be
read into the record and that a videotape will not be made of the deposition, therefore there will
be no prejudice to the defendants assuming the aforesaid parameters are met.
6. The Plaintiff, injured in Cumberland County, happens to live more than 300 miles
from the Cumberland County Courthouse; the Plaintiff has travelled to Cumberland County
twice for the purpose of this lawsuit, once for a deposition and again for an independent medical
examination; the Plaintiff will bear substantial additional expense in the event she is required to
pay costs associated with defense counsel's travel to Cincinnati, Ohio; said expense will
substantially handicap the Plaintiffs ability to fund a third trip to Cumberland County for the
2
I;.
,
r '.
I I U
I . I 0:
f-< I '"
< I - I UO ai
.... I '" I ZEo< 0: ~
.,,::! I :;; I < >0 W
I . I 3Ul<
~:; '" 02 I 0"'.... .., 0
I f-< I ....lUl'" 2
....l>O I '" I ~z <II .
"'''' I '" '" I <"''''' <II "
" ~
Z >0 ....l<.:l I "'0 :I . <<
ZZ I < =z I ""..:..... ~ .1 .ii 8 ~
0'" I 3 <- I 0"'''' z
~o.. '" Ul "'''' Ul '" '" ,.; . . '" .
I .... i:JOS .. I "':;: . . <II .
. 0 >
o . '" .... " "':i! . ~ . t
u~ " .... o......l " I o Z 2 . 0
" ~
I " .. '" '" I - 0 ~ . r ill .
~!:3 I " "'<.:l " I f-<Ul_ ~ . . .
I >0 .... .. I O"'f-< Ul 0 . 0 "
0 I '" " . '" .... I :0:"'- 0: . 0 ..
. Z ..
!;lU I i:! .... '" .. I "'''' ... ~ 0;
,., I 0.. ~<.:l'" I 0 ~ <<
:;'", 0 ::> Ul....lo.. Z U ::l ,
8j 0 I '" 3'tl I f-lWt.Lla ~ =
>-< " I ~~~~
I . . . " I . .
"''''' "" ..., e:; ....l I Q::J~_ 0: <<
='" '" I I ZOZVl ... .
Eo<'" I =i:! Z I t&JUt.Lla \:J :c
z~ . OS::> :c U I '" f-<o.. ~
0 I Ul 0 Z I t&J~~t.Ll
"'U Z I ....l<tl > ..., - I QO<~ '"
~
.
.. .
LEAH J. BURKEY and DWAVNE E.
BURREY,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
CIVIL ACTION - LAW
JOHN L. WADE, DEPENDABLE
TRANSIT, INC., and G , G
LEASING,
NO. 96-1003
Defendants
JURY TRIAL DEMANDED
DEFENDANTS' MOTION FOR ALLOWANCE OF
COUNSEL FEES AND EXPENSES TO ATTEND DEPOSITION
AND/OR STAY DEPOSITION
Defendants, through their undersigned counsel, moves this
Court pursuant to Pa. R.C.P. No. 4008 for an Order directing
Plaintiffs to pay Defendants' counsel's travel expenses and
counsel fees to attend the deposition of Nelson Ruddy, and avers
as follows:
1. On or about February 23, 1996, Plaintiffs commenced the
above action by Complaint against Defendants.
2. The Complaint alleges that Plaintiff, Leah Burkey,
suffered injuries when her automobile was struck by Defendants'
tractor trailer on February 23, 1994, on the turnpike near
Carlisle.
3. The Ccmplaint further alleges, in pertinent part, as
follows:
8. On the aforesaid date, while operating her
vahicle in a manner safe for the then existing
conditions, at or near mile pest 203.4, the plaintiff
was following a vehicle travelling directly in front of
her on Interstate 76, when the operator of the front
vehicle applied its brakes, causing the plaintiff to
copy of Plaintiffs' counsel's forwarding correspondence and
Notice of Oral Deposition are attached hereto as Exhibit "A".
6. In response to Plaintiffs' counsel's above letter and
Notice of Oral Deposition, Defendants' counsel indicated that he
would like to be physically present for the examination of Mr.
Ruddy particularly since Plaintiffs' counsel indicated they were
goinq to use the deposition at trial.
7. Moreover, Defendants' counsel requested that Plaintiffs
pay hi. travel expenses and attorney fees to attend the
deposition on June 8, 1997, pursuant to Pennsylvania Rule of
civil Procedure 4008. In addition, Defendants' counsel indicated
that he will not consent to the deposition as scheduled if the
Plaintiffs' were not willing to pay his expenses and fees. A
true and correct copy of the Defendants' counsel's letter is
attached hereto as Exhibit "B" and incorporated herein by
reference.
8. On May 13, 1997, the undersigned received a fax letter
from Plaintiffs' coup-sel stating that they would not agree to pay
his travel expenses and attorney fees to attend the deposition on
June 8, 1997. A true and correct copy of Plaintiffs' counsel's
letter of May 13, 1997, is attached hereto as Exhibit "C" and
incorporated herein by reference.
- J -
9. The proposed deponent, Nelson Ruddy, is a critical
witne.. to Plaintiffs so much so that they have even identified
him in their Complaint to allegedly support their allegations
that Detendant, John Wade, should have been able to stop his
tractor trailer in time.
10. Considering the importance of this witness, Detendants'
counsel wants to be physically present to take his deposition to
avoid any advantage that Plaintiffs' counsel may have by being
physically present with the witness; to ensure that the proper
documents and demonstrative evidence are shown to the witness; to
observe any physical gestures by Pluintitfs' counsel; to observe
the physical mannerisms of the witness as he testifies; to ensure
that all timely objections are raised; to ensure that there are
no communications problems by taking the deposition over the
phone as opposed to in person and other important factors which
necessitate Defendants' counsel to be present during the
deposition.
11. The deposition has been scheduled to be taken in
Cincinnati, Ohio, which is more than five hundred (500) miles
from the Cumberland County Courthouse. An affidavit of
Delendants' counsel is attached hereto as Exhibit liD" and
incorporated herein by reference.
- 4 -
12. Pursuant to Pa. R.C.P. No. 400S, the Court upon motion
I
I
,
I
1
I
f
,
,
t
I
I
I
t
i
[
.
,
;
I
!
i
,
l
;
.
,
may make an order requiring the payment of reasonable expenses,
including attorney fees, as the Court shall deem proper if a
deposition is to be taken by oral examination more than one
hundred (100) miles from the courthouse.
13. Defendants' counsel will most likely need to take a
flight from either Harrisburg or Philadelphia, Pennsylvania, to
Cincinnati, Ohio, to attend the deposition as well as expenses
for either a taxi or rental car. If he drives, he will need
reimbursement for his mileage expense at the current IRS rate
which is thirty-one (31) cents per mile.
14. Moreover, Defendants' counsel estimates that he will at
least spend ten (10) hours if he flies to the deposition location
or approximately twenty-four (24) hours if he drives to the
deposition location during which time he could be working on
other cases and billing at his normal hourly rate of $110 per
hour.
15. The Defendants request that the Court stay the
deposition until the expenses and fees are to be paid or, in the
alternative, order that it be held at a location within
Cumberland County, Pennsylvania, or at another location mutually
agreeable by both Plaintiffs and Defendants provided that the
witness can be directed to appear at that location.
- 5 -
Exhibit D . r
" -, -
.
'J
I I
,
,
r
"
~
, "
....
t"ll1t:n!' lil .1 ".uth\\\....!\.lh dll~'dhlll, \\1111 hn 1'.1......,"11.1'\.1 ...Ilk t.U "1/'.IIIUIIIIIII", Ir,.lIi\',
It) \\11I1~' 111l' pt.lllllllt', \dlldt' \\,\.... 1l11l\111~' illl!l\' afurl':'\OIid 1ll;llJlU'r, oIlltllher
,,'hid~ in Ill<' l'.1,11"'llIld I.II\\'. 'I 1 'I'll 1 Chl'\v 111I,lina lIlinivall was [)p~ratl'd hy N~Is[)n.l.
Ruddy. at ..buut .\5 llIil~s ..n hour. whl'n h~ ohs~rwd the pl..inlirf's v~hide lose conlrol; Mr.
Ruddy brought his whidl' tll a ~'Hllplcte stllp, pulling llrf the roadway mHo the berm on the
right hand side of lhe ~astbollnd lan~.
II. After pulling off the roadway, Nelson Ruddy observed lhe def~ndant's lC)<){)
Kenworth traclor trailer, driven by John L. Wade, pass him and continue lravelling until it
struck lhe plaintiff's vehicle without any effort to avoid the plaintiff's vehicle.
12. At all limes material hereto, plainliff Leah 1. Burkey acted with due care and
was not contributorily negligent.
13, Plaintiff's injuries and damages as set forth below, were the direct, legal and
proximate result of the negligence of the defendants, individually, jointly and/or severally and
were the direct, legal an proximate result of the negligence of lhe defendant, 10hn L. Wade,
acting within the scope of his agency and/or employment, individually, jointly and/or
severally as aforesaid and more sp~cifically in the following particulars:
a. plaintiff repeats, realleges and incorporates by reference the allegations
contained in paragraphs I through 11 of this complaint, as if the same were more specifically
3
sd fllrth at length hereiJ1.
b. in operaling a mollJr vehicle in a careless, rel'kless anu ncgligent
manner;
c. in "pt'raling his motor vchiclc at an exccssive rate of speed under the
circumstanccs;
d. in operating his motor vehicle, the 1l)l)O Kenworth, wilhout proper
control so as 10 stop said vehicle within the assured clear distance ahcad (75 POI. C.S.A.
~JJ62);
c. in failing to apply his brakes in sufficient time 10 avoid striking the
plaintiff's vehicle;
f. in failing to take proper sleps to avoid striking Ihe plaintiff's vehicle;
g. in failing to take proper evasive aClion to avoid impacting with
plaintiff's vehicle;
h. in failing 10 keep a proper lookout;
i. in failing 10 usc due care under the circumstances;
j. in failing to pull off 10 the side of the road as the vehicle driven by
Nelson Ruddy had done dcspite the fact Ihal Mr. Ruddy was directly behind the plaintiff's
vehicle and in front of the defendant's vehicle when he pulled off to the side of the road,
avoiding a collision with thc plaintiff's vchiclc.
k. in failing to apply his brakcs in sufficicnt time 10 avoid striking
plaintiff's stationary vehiclc; and
I. in operating his motor vchicle in disrcgard of thc rules of the road and
..
the laws of the Commonwealth of Pennsylvania induding but not limited to the Motor
Vehicle Code, 75 POI. C.SA ~J.16l and -'.162.
1-1. Plaintiff's injllries and damages as set forth below, were the direct, legal and
proximate result of the negligence of the defendants, individually, jointly and/or severally and
were the direct, legal and proximate result of the negligence of the defendant, Dependable
Transit, Inc., acting through its agents, servants and/or employees acting within the scope of
their agency and/or employment, individllally, jointly and/or severally as aforesaid and more
specifically in the following particulars:
a. Plaintiff repeats, realleges and incorporates by reference the allegations
contained in paragraphs I through 1.1 of this complaint, as if the same were more specifically
set forth at length herein;
b. in promoting the individual defendant, John L. Wade, to function as its
agent, servant and/or employee acting within the scope of its agency and/or employment,
when it knew or should have known he was not qualified by his training, background and
experience to operate the 1990 Kenworth during the weather conditions present on February
23, 1994 in the eastbound lane of Route 76, the Pennsylvania Turnpike;
c. in directing the defendant, John L. Wade, to operate the 1990 Kenworth
on February 2.1, 1994 when they knew, or should have known, that weather conditions were
hazardous and included ice and snow, substantially increasing the risk that the vehicle would
be involved in a collision; and
d. in directing the defendant driver John L Wade to reach his destination
5
h ,\ 'I"\'h' IlIll,' '" '1"1,' \.llh\' ""',III1<'r <'Illlditi<lll~ prl'~I'llt <In h'hruary 2.1, 1')').1,
I' 1'1.'"II,It', IIljllfil'~ .Illd d.llll.lg~s .IS ,\l'( f'}flh bel<lw. wer~ the dir~c(, legal ilml
I'r,""l,lI~ fl'Slllr ,'I' ,Ill' Ill'~~ligl'nl'l' <If Ihe defcnd.lllts, inJiviJually, jointly anu/or severally ilnu
\\l'r... Ihl' dirl'l't, kgal .Illd pro,im.lte r...sult of the negligence of the Jefenuant, G & G
leasing, acting through its agents, savants or employees acting within the scope of their
agenl'y and,or emplo} mellt, individually, joil1lly anJ/or severally as aforesaid and more
spccifkally in Ihc following particulars:
a. Plaintiff repeats, rea lieges anJ incorporates by reference the allegations
contained in paragraphs I through 15 of this complaint as if the same were more specifically
set forth at length herein;
b, in leasing its 1990 Kenworth to defendant Dependable Transit, Inc. with
knowledge that the vehicle would be driven in bad weather conditions on February 23, 1994,
substantially increasing risk of an accident;
c. in allowing Dependable Transit, Inc. to select and promote an individual
driver, specifically the individual defendant John L. Wade, to function as its agent, servant
and/or employee acting within the scope of its agency and/or employment, when it knew or
should have known he was not qualified by his training, background and experience to
properly operate the 1990 Kenworth during the traffic conJitions present on Interstate 76 in
the eastbounJ lane on February 23. 1994;
u. in failing to assure that operators of the vehicles it leased were properly
traincu III operate the vehicle in bad weather conJitions including ice and snow;
6
Ih, :\s a dircl't and pn1xim,llc rc~ult of the afllrcsaid 'Kl.'i of negligence of the
d.-fcndanl.'i individually. jointly andinr sl'ver,i1ly. the plaintiff Leah 1. Burkey suffercd the
fl'll"win~ injurics:
a, bulging disk,; at ('4. ('5. ('6, LJ and L-I:
b, post traumatk headaches;
c, fracture of the right fiflh and sixth ribs;
d, head laceration;
e, strain/sprain of the ce/Vical spine;
f, tendinitis of the right hallux;
g. severe emotional Jistress;
h. pain anJ suffering; and
i. other serious injuries.
17. As a direct, legal and pro.ximate result of the negligence of the defendants,
individually. jointly and/or severally as aforesaid, the plaintiff, Leah 1. Burkey sustained the
following damages:
a. she was admilled to the Chambersburg Hospital on February 23. 1994
through February 25, 1994 as a result of her injuries;
b. she has incurred hospital, medical and attendant therapies all in excess
of $5,000.00;
c. she has incurred a wage loss of $5,000,00 to date, as well as a reduction in
her earnings and earning capacity in the future;
7
{lsEP 0 ~ J997
L.EAIl 1. BURKEY and DWAYNE
BURKEY, hcr husband
Plaintiffs
IN TIlE COURT OF COMMON PL.EAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL. ACTION - LAW
vs.
NO. 96-1003
JOHN L.. WADE, DEPENDABL.E
TRANSIT. INC and G&G
L.EASlNG.
Dcfendants
JURY TRIAL DEMANDED
ORI>F.R
AND NOW, this _ day of
, 1997, upon consideration of
Dcfendants' Motion in L.iminc, the following Order is entered:
I. Plaintiffs shall be precludcd from proving and rccovering the first
$5,000.00 in mcdical expenscs incurrcd as a rcsult of the accidcnt in issuc;
2. Plaintill'L.eah Burkcy is subjcct to thc limitcd tort option as dclincd by 75
Pa.C.S.A. ~ 1705 and must establish at thc trial of this action that shc suftered a "scrious injury"
as defincd by thc Pcnnsylvania Motor Vchiclc Financial Rcsponsibility Law to rccover lor pain
and suftering and othcr nonmonctary damagcs; and
3. Plaintill'Dwaync Burkcy is barred from proving and rccovcring lor loss of
consortium in this action.
BY TilE COURT:
J.
cc: David L. Iluntcr. Jr.. Esquirc
Counsellor Plaintiffs
Clark DcVcrc, Esquirc
Counsellor Defcndants
u
f-< 0:
"'< ~ - III
0_ ~ Ul ~ 8
",:ij z '"
::> ~ "' '"
~:; '" z .., 0
.... ... ci
....l>o "' :r. Ul .
"
0..'" Z Ul '" <Jl ~ Ul " "
:z:~ ,.. .... ....l ... ...l :I . .
:i .... <tl " ~ j .ii 8 .
0", .... < . " z z . i
~'" '" .. "'<.:l '" ~ ,.; . . '" .
" Z~ " . . 0 "' >
o . '" .... "'~ ~ z ~ ~ . "
u~ " " o..Ul .... 0 . . 0 .
" ~
'" .... "'< ~ ~ ~ . r ID .
"'Z 0.. "'''' '" f-< X . . .
o=> e:; ....l 0 Ul 0 . 0 "
0 . :0: ~ . 0 ..
. z a.
~u i:!,; "''' '" ~ 0;
"" ,., ~t3 ~ N .
::>'" 0 => " Ul U ,
~~ 0 '" " ~ [~ ~ '" .
>-< .<J "0 Z ~
I . Ul . " < . Ii
"" .., :l ....l '" '" 0: .
::tl"' '" .c z '" .
:~ :c '" . '" \:J :c
~ ~ :au '" ~
0 <Jl oz '"
_u z ....l.c > ..,~ '" ...
~
.
. .
6. Thc Plaintiffs also scck rccovery for pain and suffering and othcr non-monctary
damagcs as a rcsult ofthc subjcct accidcnt.
7. In addition. Plaintiff Dwaync Burkcy sccks rccovcry for loss of socicty,
companionship, contributions and consortium lor thc injurics to his wifc.
8. Plaintiff Dwaync Burkcy was not a passcngcr in thc vehiclc involved in thc
accidcnt and did not suffcr any physical injurics.
9. Thc MVFRL providcs that "[aln insurcr issuing or delivcring liability insurance
policies covcring any motor vchicle of the typc rcquircd to be rcgistered undcr this titlc . . .
registercd and operatcd in this Commonwcalth. shall includc covcragc providing a medical
bencfit in thc amount of $5,000.00." 75 Pa.C.SA 91711.
10. Thc MVFRL furthcr providcs that "Ii In any action for damagcs against a
tortfeasor. . . arising out of thc maintenance or use of a motor vehiclc. a pcrson who is eligible to
rcceive benefits under the coveragcs set forth in this subchaptcr . . . shall bc precluded from
recovering the amount of benelits paid or payable under this subchapter. .. .. 75 Pa.C.S.A.
91722.
11. The loregoinl! scction has bccn intcrpretcd to prccludc uninsurcd Pennsylvania
residcnts from proving and rccovcring mcdical expcnscs which should have becn sccured
pursuant to 75 Pa.C.S.A. 91711. Pcllot v. D.&K. Fin. Corn., 9 D.&CAth 507 (Phil. 1991).
12. Since Pcnnsylvania uninsured motorists an: subjcct to thc preclusion from
recovcring thc rcquircd bcnctits. Ohio uninsurcd pcrsons who arc involvcd in Pcnnsylvania
accidcnts should bc trcatcd no morc favorably than Pcnnsylvania rcsidcnts, particularly whcrc
thcy tile suit in a Pcnnsylvania court.
.. 2..
1 J. Mor~o~~r. Plaintiffs' ta~itly admit tlmt th.:y ar.: subj.:~t tu this pr.:dusiun by the:ir
use: of language: in thdr Complaint that th.:ir m.:dkal .:xpe:ns.:s .:x~.:~d 'S5.000.00 whi~h is th.:
r.:quir.:d amount of b.:nc:lits.
I.t The: MVFRL was d':slgn.:d to d.:t.:r p.:opl.: from failing to insure: thdr ~e:hi.:ks
and su~h purpos.: wuuld b.: ddi:at.:d by allowing a nonn:sid.:nt uninsurc:d motorists to prow and
re~ovcr me:di~al e:xp.:ns~s that a r.:siJ~nt uninsur.:d motorist would not b~ able to prove and
re~ove:r und~r tho: Pennsylvania statuto:.
15. Moro:ov.:r. Plaintiffs w.:r~ not in complian.:e with 75 Pa.C.S.A. ~ l782(b) as far as
required proof of tinan~ial responsibility and should not be: rl:ward.:d by r.:c~iving a furthe:r
indiro:ct be:ndit through th.: la.:k of insurancl:.
16. Like:wise:, th.: MVFRL provid.:s that "lain own.:r of a curre:ntly regist.:re:d private:
passe:nge:r motor vchido: who doe:s not havo: linancial responsibility shall bl: de:e:me:d to have:
chosen tho: limite:d tort alternative," 75 Pa.C.SA ~ l705(a)(5),
17. Although the: Plaintiffs' ve:hicl.: was not register.:d in Pe:nnsylvania. the: Plaintiflil
should not be: able to avoid the automati~ limited tort election whkh would apply to uninsured
Pennsylvania residents, parti~ularly whe:r.: Plainti ftil brought th.:ir suit lor non-e~onomic
damages in a Pennsylvania court.
18. Moreover, Plaintiff Dwayne Burkey's claims for loss of consortium shollld not be
presented to the jury and are: not re~overabl.: b.:~aus.: he would also be subje~t to the limited tort
option and ht: was not involved in the a~cidt:nt and sufti:n:d no physical injuries. Brandau v.
BllSinl!er, 17 D.&C'.4th 593 (Clinton 1993).
WHEREFORE. Deti:ndants r.:sp.:~trully r.:qut:st that this Court grant the: tor.:going
Motion in Limine: and e:nt.:r the: following Ordt:r:
,
- J -
I . U
I .... 0:
"'<>l I - '"
0- I '" 0 1lI
",::a I :;; ~ 8
I ,.... W
OS:; I i'l ~ ~
I f-< 0 '" .., 0
....l,.. I '" a.. Z . <l
"'Ul I Z '" '" .... <11 "
Z I ,.. '" ...J . <11 '" :0: <11 " ,
zz I -.: ""' '" ,""u Ul .... 0 ! .
~lt I ~ ""' .~ z " ....l ~ . 8
U1 .
I '" ..... <=l - '" z z ;
I 'tlu Zr.n't;J .... Z :t: < . ~
. l
o . I '" " " "''''; " - . 0 U1
U~ I " <1l .... "'''' .. '" . ~ . .
I . .
I "'..c '" "'....l.... t.L.IZ " 0 .
"'z I "'... <=l u ....0 ~ I , ill .
o=> I ,.. :>0.. <.:l 0 ~- t . . .
0 I ",.s:: ;<If-< <11 g . 0 "
f-<U I ~ "'''' 0 ~ 0 ~
z ~
~ ,., I '" ~'"" - :0: ... '" oj
8~ 0 I ::> .. Ul ~ '" .
0 I <tl.s:: ~ f-< U ,
>-< I 'tl Z ~ '" .
I I " :;: ~
~'" "" I ..,,.. ....l '" 0 . .
'" '" z ~ ~
...'" I ~~ f'ii '" '" t
z~ I U '" \:J
0 I <II ,0 Z '" ~
....u Z I ....l'" > .., - '" '"
:<
. .
.
75 Pa.CS.A. ~ 1722. Pursuant tn th~ t')r~gl)ing s~~tlon, a plaintiff In an a~tllll1 against" [ortti:asllr
~annot Dlead. Dr",.: and re~"~<:r tirst party n~ndi!.i. S~~ Clrlsnn ~. Bunash, .B2 Pa.Sup<:r 51~.
639 :\.2d ~58 (19'141.
The s<:~tion 1722 pr~clusion has h<:~n hdd tll n~ appli<:ahk to own~rs of r<:gistered
uninsur<:d motor v.:hicks in Pennsylvania. ("he ~ounty ('uurts have h<:ld that the legislature
intended to exclude in<:ligible claimants. whicll would include uninsured r~gistered nwner~; of
motor vo:hides. from rewv<:ring tirst party b<:ndits ul1d<:r ~171~. Bas~d on this int~ntion. the
Court taund that it would b~ unr~asonabl~ and an absurd r~sult if an ineligible anwur uninsured
daimant und~r ~ 171 ~ wuuld be alluwed to prow. plead and introduce into evid<:n<:e any medical
bills or wage lusses as a result of an auwmobil<: accident und<:r ~ 1722, m~rcly becausll ~ 1722 is
silllnt as to indigiblc ~laimants. Pellot v. D&K Financial Corp., 9 D.&C4th 507 (Philaddphia
1991); Reed<:r v. YOUOl.!, 48 D.&C3d 4.11 (Lycoming 1988). "An absurd r<:sult would occur
because an ineligiblc claimant would bll allow~d to plllad. prove and introduce into evidence the
very thing he is excluded from recovering against a third-party turtti:asor. his medi~al exp.:nses
and wage losses." Pellut,9 D.&CAth at 51~.
Since the Courts have applied the preclusion provision of * I 722 to P~nnsylvania
uninsured motorists. Def~ndants arc r<:,/uesting that the Court make the next logical st<:p and
apply the provision to nonresident uninsur<:d motorists who are involved in Pennsylvania
accidents resulting in Pennsylvania civil a<:tions. While the Dcti:ndants were not able tu locate a
case on point in Pennsylvania. the Dcti:ndants submit that a nonresident uninsur~d motorist
should not be treated any more tilvorably than a resident uninsurcd motorist would be treated in
Pennsylvania accidcnts. The la~t that th~ accid~nt occurr~d in P~nnsylvania and was tiled in
- ~-
P~nnsylvania should lead tll th~ ~undusiun that th~ a~~ld~nt should t>~ gov~rn~d by P~nnsylvania
law and sp~dtkally th~ MVI'RI..
rh~ Plaintiffs' tacitly admit the fa~t that they ar~ govern~d by th~ MVI'RL by their
statement in thcir Complaint that Plaintiff "has incurr~d hospital. m~dical and attendantth~rapies
all in exc~ss of li5.000.00". Sin.:~ $5.001l.IlO is the amount of r~4uir~d b.:nelits. the Plaintiffs
themselves arc r~cogniling that they would have to prove in ex~~ss of that amount to r~cover.
The Ddcndants arc awan.: of Pcnnsylvania appellate cases which state that the MVFRL
docs not require insurers of motor vehicles that are regist~red outsid~ of Pennsylvania to provide
MVFRL lirst party bendits in Pennsylvania a~cid~nts. S~e Boone v. Stonewall. 382 Pa.Super.
104. 554 A.2d 968 (1989); Puuh v. Government Emolovees Ins. Co., 380 Pa.Super. 606, 552
A.2d 708 (1988). However, D~fendan,s are not aware of any cases which have addressed the
* 1712 preclusion. Moreover, these cases involvc situations where Ih.: nonr.:sident was insured in
another state and discuss circumstances whcr.: ther.: wcr.: questions of e1iuibilitv of b.:n.:fits
und.:r polici.:s.
In contrast. thc PlaintilTs in this cas.: wer.: not insured in another state and the issue is
wh.:th.:r th.:y should be dcnied certain favorabl.: treatment which would not b.: available to
P.:nnsylvania uninsurcd motorists. Th.: Courts haw repcatedly stated that a purpos.: of th.:
MVFRL is 10 encourag.: people to insur.: their v,:hicks and deter people who operate uninsured
vchiclcs. Sce Henrich v. Harlevsville Ins. Co., 533 Pa. 181,620 A,2d 1122 (1993) (the MVFRL
was dcsign~d to deter p.:oplc from failing to insur.: their vehicles morc forcd'ully than the prior
statute); Lamb.:rt v. McClure. 4117 Pa.Super. 257, 5'15 A,2d 629 (1991) (the MVFRL statute
attempts to address th.: problems caused by the incr~asingly high numbers of uninsured
.5.
than uninsur~d P~nns~ lvania r~sidcnb. Mor~llv~r. th~ Dckndanh ar~ unawar~ of any casc law
int~rpr~ting this suhs~ctiun ._u narrowly.
rhc basic tacts an: that Plaintiffs chollsc nllt to insurc th~lr vchid~. chouse to operat.:
th.:ir v.:hid.: in P~nnsylvania. w~r.: involv.:d in an accid.:nl in I'.:nnsylvania and th.:n cnuos.: to
tile suit in a Pennsylvania Cuurt. Th~ PI"intitTs hay.: choscn by th~ir tiling to submit to
P~nnsylvania law induding th.: MVFRL
Thc Ddi:ndants ar.: awar.: that th~rc is a S~ctillO 1705 ~xc~ption wh~n th.: torttcasor is
operatinl! a vehicl~ r~gist~red in anoth.:r stat.:. 75 Pa.C.S,A. ~ l705(d)(I)( ii). Th~ D~lendants'
tructor-Irail~r was r~gist.:r~d in th~ sIal.: uf Indiana. How~v~r. D~tendunts contcnd that PlaintitTs
should nol be excused from thc mandatory limited tort ~kction and th.: requir.:d showinl! of a
s.:rious injury simply becaus~ they were in a tortuitous circumstance of being involved in an
accident with an Indiana registered vehicle.
Delendants contend that it would be unreasonable to allow Plaintil'!:s to collect non-
e';onomic darnager, from Delendants should they prove their case, when Ih.:y would haw been
unable to respond with insurance had Delendant John Wade bcen injured in the accident. The
Defendants submit that the public int~rcst would b.: best scrved if Plaintiff Leah Burkey would
be preclud.:d from r.:covering lor pain and suflcring and other non-economic damages unl.:ss she
proves she sustained a "serious injury" as delined by the Act.
C. Plaintiff Dwayne Burkey should be precluded rrom proving and
recovering ror loss or consortium since he was the owner or an Ohio
motor vehide which was uninsured and involved in a Pennsylvania
accident resulting in a Pennsylvania lawsuit and where be was not
involved in the accident nor suffered any physical injury.
The Plaintiff Dwayn.: Burkey has brought a daim tiJr loss of sodety, companionship,
contributions and consortium of his wili: Plaintiff Leah Burk~y. Plaintiff Dwayne Burkey was
-7 -
not a pass~ng~r in th~ v~hide operated by his \viti: at the time uf the accident. Currespondingly.
he did not suiTer any physi~al injuries as a result of the accident.
As setlorth in the preceding se~tion. 75 Pa.C.S.A. ~1705(a)(5) directs that owners of
n:gistered but uninsured motor vehides will be subj~ct to the limited tort alternative. The
pcrsons who arc bound by th.: limit.:d tort dection are predud.:d by the Act from maintaining an
action lor any non-.:~onomie loss lur an injury sustain.:d in a motor vchicl.: accid.:nt unless the
injury sustained is a "serious injury". 75 Pa.C.S.A. ~ 1705(d). "S~rious injury" is d.:lined as "lal
personal injury n:sulting in death. serious impairmcnt of body function or pcrmancnt scrious
distigurement." 75 Pa.C.S.A. ~ 170:!.
In Brandau v. BasinL!cr, 17 D.&C.4th 593 (Clinton 1993) th.: Court of Common Pleas
reviewed a similur issue involving plaintiffs who wcre appar.:ntly Pcnnsylvania residents and
owners of a currently registered private passcngcr mOlor vchidc which did not have linancial
responsibility rcquired by the MVFRL. Thc dct"':ndant in that ~as~ contcnded that Mr. Brandau's
loss of consortium claim did not involve a s~rious injury and th~n:ture he was precluded from
bringing the action.
The Court noted that there could be several iJ1t.:rpr~talions of ~ l705(d). One
interpretation might be that wh.:never a motor vehicle accident results in a "serious injury" to any
party. any other party may bring an action tur non-cconomic loss r~gardless of whcther he or she
has selccted the limited tort alt~rnative. rd. at 595. How~vcr, the Court f.:lt that this
interpretation rendcrcd the provision practically mcaningless and was contrary to thc purposc of
thc Act, which is to reduce auto insurance ratcs and tort litigation by limiting thc typcs of losses
that a person who has selccted thc limitcd tort alternative may r.:covcr. ld.
- 8-
The Court concluded that the proper interpretation of that section was that an individual
who has sekcted the limited tort alternative may hring an action to recover non-economic losses
provided that person has suffercd a "scrious injury" in accordance with the Act. Id.
The Court noted that Mr. Brandau's alleged injury supposedly resulted indirectly from the
motor vehicle accidcnt and that loss of consortium is a non-economic type of loss. Id. at 595.96.
The Court also concluded that loss of consortium docs not fall undcr the dclinition of "serious
injury" found in the Act. Id. at 596. Tho: Court choose to view the claim indepcndo:ntly becauso:
a loss of consortium claimant has a scparato: and indo:pendent status as a plaintiff in his own right.
ld. Viewing tho: claim independently, the Court luund that tho: damages sought hero: where non-
economic and now from a motor vehicle accident and that Mr. Brandau did not suffer a "serious
injury." Id.
Likewise. Mr. Burkey's claim is obviously derivative in the sense that it arises from his
wife's injuries. However, Mr. Burkey's claim must also be viewed independently and there is no
question that he has not suffered a "serious injury" as requircd by the Act.
More fundamentally. Mr. Burkey will likely argue that he is not subject to this limited
tort election since he was the owner of a vehiclo: ro:gistered in Ohio which apparently did not
have financial responsibility laws at tho: time of the accident. lIowever, Mr. Burkey is
attempting to avoid a provision in the MVFRL which would certainly apply to uninsured
Pennsylvania residents. lIe would be claiming preferential treatment because he is a nonresident
uninsured.
Mr. Burkey allowed his vehicle to be driven in Pennsylvania and has chosen to lile suit in
Pennsylvania because the accidcnt occurred in Pennsylvania. Ho: should be bound by the
Pennsylvania MVFRL laws which Defendants conto:nd would pro:c1ude him from proving and
.9.
r~wv~ring lllr his alkg~d loss of so~iety, ~ompanionship. ~llnlrihutions and consortium of his
wil~ Plaintiff L~ah Burkey as a result of the a~ddent at issu~,
IV. ('ONCUiSION
('or the reasons set lorth ahov~. Ddi:ndants re';pe~tfully re'luest that this Court grant its
Motion in Limiilc, preclude Plaintiffs from proving and rccovcring tho;: tirst $5.000,00 in mcdi~al
~xpenses alkgcdly sustained as a result of this a~ddcnl. In addition. Defcndants request thaI
Plaintiff L~,1h Burk~y be suhj~~t to the limited tort e1e~tion and bc r~'iuired to prove that she
sustaincd a "serious injury" bclore she can recovcr ti,r pain and sun~ring and other non-
monetary damages. Moreover. Defendants r~spectfullj' requestthatlhis Court preclude Plaintill'
Dwaync Burk~y Irom proving and re~ovcring lor his loss of consortium type of claims because
he has not suffered a "serious injury" in ac~ordance with the Act.
METZGER, WICKERSHAM. KNAUSS & ERB. P,C,
By: .~~
Clark DeV~re, Esquire
Attorney 1.0. No, 68768
3211 North Front Street
P.O. Box 5300
Harrisburg. PA 17110-0300
(717) 238-8187
Attomey for Ddi:ndants
Daled: Scplember 4. 1997
- 10-
75 Pa.C.S.A. ~ 1722. Pursuant to the foregoing section. a plaintitl' in an action against a tortfeasor
cannot JlkllQ. ~ and recow first putty benelits. See Carlson v. Bubash. 4J.! Pu.Super. 514,
639 A.2d 458 (1994).
The section 1722 preclusion has been held to be upplicabl<: to owners of registered
uninsured motor vehicles in Pennsylvania. The county Courts have held that the I<:gislature
intend-:d to exclude ineligible claimants, which would include uninsured registered owners of
motor vehicles, from recovering first party benefits under ~ 1714. Based on this intention, the
Court found that it would be unreasonable and an absurd result if an ineligible and/or uninsured
claimant under ~ 1714 would be allowed to prove, plead and introduce into evidence any medical
bills or wage losses as a result of an automobile accident under ~ 1722, merely because ~ 1722 is
silent as to ineligible claimants. Pellot v. D&K financial COrD., 9 D.&C.4th 507 (Philadelphia
1991); Reeder v. Youmz. 48 D.&C.3d 432 (Lycoming 1988). "An absurd result would occur
because an ineligible claimant would be allowed to plead, prove and introduce into evidence the
very thing he is excluded from recovering against a third-party tortfeasor, his medical expenses
and wage losses," Pellot, 9 D.&C.4th at 514.
Since the Courts have applied the preclusion provision of ~ 1722 to Pennsylvania
uninsured motorists, Defendants are requesting that the Court make the next logical step and
apply the provision to nonresident uninsured motorists who are involved in Pennsylvania
accidents resulting in Pennsylvania civil actions. While the Defendants were not able to locate a
case on point in Pennsylvania, the Defendants submit that a nonresident uninsured motorist
should not be treated any more favorably than a resident uninsured motorist would be treated in
Pennsylvania accidents. The fact that the accident occurred in Pennsylvania and was filed in
-4-
Pennsylvania should lead to the conclusion that the accident should be govemed by Pennsylvania
law and spo:cilically the MVFRL.
The Plaintiffs' tacitly admit the lact that they are governed by the MVFRL by their
statement in their Complaint that Plaintiff "has incurred hospital, medical and attendant therapies
all in excess of $5.000.00". Since $5.000.00 is the amount of required benefits, the Plaintiffs
themselves are recognizing that they would have to prove in excess of that amount to recover.
The Defendants are aware of Pennsylvania appellate cases which state that the MVFRL
does not require insurers of motor vehicles that are registered outside of Pennsylvania to provide
MVFRL first party benelits in Pennsylvania accidents. See Boone v. Stonewall, 382 Pa,Super.
104, 554 A.2d 968 (1989); PUlZh v. Government EmDlovees Ins. Co., 380 Pa.Super. 606, 552
A.2d 708 (1988). However, Defendants are not aware of any cases which have addressed the
~ 1722 preclusion. Moreover, these cases involve situations where the nonresident was insured in
another state and discuss circumstances where there were questions of elifzibilitv of benefits
under policies.
In contrast, the Plaintiffs in this case were not insured in another state and the issue is
whether they should be denied certain favorable treatment which would not be available to
Pennsylvania uninsured motorists. The Courts have repeatedly stated that a purpose of the
MVFRL is to encourage people to insure their vehicles and deter people who operate uninsured
vehicles. ~ Henrich v. Harlevsville Ins. Co., 533 Pa, 181, 620 A.2d 1122 (1993) (the MVFRL
was designed to deter people from failing to insure their vehicles more forcefully than the prior
statute); Lambert v. McClure. 407 Pa.Supo:r. 257, 595 A.2d 629 (1991) (the MVFRL statute
attempts to address the problems caused by the increasingly high numbers of uninsured
.5.
than uninsured Pennsylvania residents. Moreover. the Defcndants are unaware of any case law
interpreting this subsection so narrowly.
The basic lacts are that Plaintiffs choose not to insurc thcir vchidc. choose to operate
their vehicle in Pennsylvania, were involved in an accident in Pennsylvania and then choose to
file suit in a Pennsylvania Court. The Plaintiffs have chosen by their Iiling to submit to
Pennsylvania law including the MVFRL.
The Defendants are aware that there is a Section 1705 el(ception when the tortfeasor is
operating a vehicle fl!gistered in another state. 75 Pa.C.S.A. ~ l705(d)( I )(iiJ. The Defendants'
tractor-trailer was registered in the state of Indiana. However, Defendants contend that Plaintiffs
should not be el(cused from the mandatory limited tort election and the required showing of a
serious injury simply because they were in a fortuitous circumstance of being involved in an
accident with an Indiana registered vehicle.
Defendants contend that it would be unreasonable to allow PlaintilTs to collect non-
economic damages from DefelJdants should they prove their case. when they would have been
unable to respond with insurance had Defendant John Wade been injured in the accident. The
Defendants submit that the public interest would be best served if Plaintiff Leah Burkey would
be precluded from recovering for pain and suffering and other non-economic damages unless she
proves she sustained a "serious injury" as defined by the Act.
c. Plaintiff Dwayne Burkey should be precluded from proving and
recovering for loss of consortium since he was the owner of an Obio
motor vehicle which was uninsured and involved in a Pennsylvania
accident resulting in a Pennsylvania lawsuit and where he was not
Involved in tbe accident nor suffered any physical injury.
The Plaintiff Dwayne Burkey has brought a claim for loss of society, companionship.
contributions and consortium of his wife PlaintilT Leah Burkey. PlaintilT Dwayne Burkey was
-7-
not a passenger in the vehicle operated by his wife at the time of the accident. Correspondingly,
he did not suffer any physical injuries as a result of the accident.
As set forth in the preceding section, 75 Pa.C.S.A. gI705(a)(5) directs that owners of
registered but uninsured motor vehicles will be subject to the limited tort alternative. The
persons who are bound by the limited tort election are precluded by the Act from maintaining an
action for any non-economic loss for an injury sustained in a motor vehicle accident unless the
injury sustained is a "serious injury". 75 Pa.C.S.A, ~1705(d). "Serious injury" is defined as "[a)
personal injury resulting in death, serious impairment of body function or permanent serious
disfigurement," 75 Pa,C,S.A. ~1702.
'n Brandau v. BasiOlzer, 17 D.&C.4th 593 (Clinton 1993) the Court of Common Pleas
reviewed a similar issue involving plaintiffs who were apparently Pennsylvania residents and
owners of a currently registered private passenger motor vehicle which did not have financial
responsibility required by the MYFRL, The defendant in that case contended that Mr, Brandau's
loss of consortium claim did not involve a serious injury and therefore he was precluded from
bringing the action.
The Court noted that there could be several interpretations of ~ l705( d). One
interpretation might be that whenever a motor vehicle accident results in a "serious injury" to any
party, any other party may bring an action for non-economic loss regardless of whether he or she
has selected the limited tort altemative. 'd. at 595, However, the Court felt that this
interpretation rendered the provision prp.ctically meaningless and was contrary to the purpose of
the Act, which is to reduce auto insurance rates and tort litigation by limiting the types of losses
that a person who has selected the limited tort alternative may recover. hl
.8.
The Court concluded that the proper interpretation of that section was that an individual
who has selected the limited tort alternative may bring an action to recover non-economic losses
provided that person ha.~ suffered a "serious injury" in accordance with the Act. .lfl
The Court noted that Mr. Brandau's alleged injury supposedly resulted indirectly from the
motor vehicle accident and that loss of consortium is a non-economic type of loss. !!L at 595-96.
The Court also concluded that loss of consortium does not fall undcr the definition of "serious
injury" found in the Act. 1!!. at 596. The Court choose to view the claim independently because
a loss of consortium claimant has a separate and indcpendcnt status as a plaintiff in his own right.
.lfl Viewing the claim independently, thc Court found that the damages sought here where non-
economic and flow from a motor vehicle accident and that Mr. Brandau did not suffer a "serious
injury." 1!!.
Likewise, Mr. Burkey's claim is obviously derivative in the sense that it arises from his
wife's injuries. However, Mr, Burkey's claim must also be viewed independently and there is no
question that he has not suffered a "serious injury" as required by the Act.
More fundamentally, Mr, Burkey wiUlikely argue that he is not subject to this limited
tort election since he was the owner of a vehicle registered in Ohio which apparently did not
have financial responsibility laws at the time of the accident. However, Mr. Burkey is
anempting to avoid a provision in the MVFRL which would certainly apply to uninsured
Pennsylvania residents. He would be claiming preferential treatmcnt because he is a nonresident
uninsured.
Mr. Burkey allowed his vehicle to bc driven in Pcnnsylvania and has chosen to file suit in
Pennsylvania because the accident occurred in Pcnnsylvania. Hc should be bound by the
Pennsylvania MVFRL laws which Defcndants contend would preclude him from proving and
- 9-
i '4 , (
," ..
I "
, I "
I" "-
, I.'" " .
r ~ ,
~. i C
L d
"
<-
,-, I
'. . C)' {)
I u
I
I . . 0:
I e:; f-< .;
"'< - z
0.... i:! '" 0 0: n
"'~ I Ul ~ <II - W 0
I ::> .... " f-< '"
~> I '" .... " 0 .., 0
....l;;:l I .... .... " :>: . 6
I '" u 'tl " "
"'''' I Z " '" " Ul <II " "
Z~ I ,.. ..... ....l .. .1.l :I . .
.
I ." " '" <.:>.... '" Eo< ~ j '" 3 ~
~'" I :s .... -.: z .. ;;J ~ z . z
Q '" sa -'" '" '" . z '"
. <<
'" 3 Ul . 0 "' >
o . I 'tl ~L5 z . . . "
2 . .. .
U~ I " 0 " 0 ~
I <II "'....l ....l Z ~ z , ID .
~!::i Q ~ . . .
I ,.. <.:> 53 >< " 0 0 0 "
0: . ..
0 I '" "" . Z ..
f-<U I ~.,; "'''' 0 0 '" ~ 0;
~
"" ,., I ~<.:> .., Ul u N .
~! 0 I ::> " -l ~ L'l ,
0 I '" " :s ....'" a
~ I .0 'tl ~g; ~
I I . <II . " . .
"" I ..., :> ....l <1l "'0 0: .
.
='" a> ,c ZU ... :c
~~ I := Z '" '"
I OS ~ , :c U "''''' ~
0 I <II 0 Z "'0 ...
_U Z I ....l,c > .., - "'''' ~
OFFICE OF PROTHONOTARY
COURTHOUSE
..-DaltiJi.I....lillnte.r..J.c.... ~L
821 State St.
.. '_0________ _.. ..., __.__..______._.__.._..
Carlisle. PA ~2tember 12L_._ , 19--2.!
.._Erie...1'A 1 6'iO 1
fHinLfee !9.!:<!~~<;Q!1.t; Lnuance of Defendant S 5 00
n'. '."'^". .--..--...-..-------.-.--------
-_... . ..._-. _In...BIil....-...i6-c-.lO.Q...LCi Illl.'l'=.. .. -..-.....-.--...- ~.~------
-_.. . _. _n___~.e.t..al.y~L \'Ii;1q~ , '\l.t...!!.!'. .. . -_.~~-
-... ---- .___._n.__ _u, -. . ..... -'..- -------.,--
.- .-.---- ...... . -~._...-_._--_._._..- ..._---~--.---_.. __..m m_._.__._'- -----.----...----..---.-.
.-.------ - > -"-'.- .----.-----.--..--..-- .. .. n -.,." n -- -
--. - ----.- ... - >. .--..---.-.- -.-- .. ---."-----,---
AKXJNl' DUE S 5 00
n n ..'... . __..._~____u_ m... .. .. . -- ---
-_.- - .-.----- -"'U'_h 'n' ... .. ...----,. . . .. "--'-. ~
--....... _. - .d --_._-~-----_. .. ... . .... --- . - -.. I-- -.. ._- _._- -.-
- ----~._- . .- - --~_.._--. .- .. - - -~----- - -- -. --
_.._---~.__.. _. .. b__._____.___. n'o. .- ---'" - . - - _._-- _..-
---~-+--- -. .. - --_._--~--_.,.. -. .- .. _. .. -. ~ -'-.--'--- _._~
,______d.. '- ..... '- - ---. . ... . ..,.---. .------ - - - ~- ~-- - ~
....-.- '-- - .. n . ... '---- '. -- ----- - . ... .."., .. -----_._--~- _.. .. u'_
_.- .. -.. - .. _n. ~_.,._.._.._.,,---_.._.,- _._.___u___~_.___..~_. --- ------ -~
MAKE CHECK PAYABLE TO PROTHONOTARY. COMMON PLEAS COURT
TO The County of Cumberland
,
.
.
LEAH J. BURKEY and
DWAVNE E. BURKEY,
her husband,
PlaLntiff:i
IN '1',i"; C0UK'I' 01:' CO"u"ul'l PLE,,:; Of
CUl'IBERLAllD COUlI'I''!, PElm;5YLVAIIlA
v.
C LVII. AC'HO,1 - LAli
JOHN L. WADE,
DEPENDABLE TRANSIT,
INC., and G & G
LEASING,
Defendants
NO. 9ci-1003 CIVIL TERM
ORDER or' COUH'f
AND NOW, this ,c;t~ay of S..ptc".w..r, 1997, upon consid..ration
of the attached letter dated Septembe.:' 12, 1997, fro". Defend"nts'
counsel respecting the deposition testimony of Robert J. Brocker,
Jr., M.D., a copy of which is attached hereto, it is ordered and
directed as follows:
1. Defendants' sd.cidS of ollj",ctions
commencing on page 5 , line 10, ".cd OVE"HULEO.
2. Defendants' objaction COuuUdl1cing on
page 18, line 4, is SUS'l'AIlIEO.
3. Defendants' objections COi,411clncing on
page 33, line 2, ilre SUS'l'AIl'leo.
4. Plaintiffs' objaction COUl.Ioilcncing on
page 73, line 22, is SUSTAIlI80.
5. Plaintiffs' ob j ec cion COI'Ulldncing on
page 74, line 15, is SUSTAIuc:O.
6. Plaintiffs' obje'ction CQuuulk;:nc i 119 on
page 76, line B, is SUSTAI1I20.
DBP(' .TION or DR. ROBERT BROCY-E.., JR.
5
MR. HtJNTEA: P,..ene WI hlv' David
Z Nuncer, Clark OIV.r., and Or. _obert J. Brock.r, Jr., In Dr.
3 'rockerl, of'fc. In YoungtCONn, Ohio. Ualr. hlr. for Dr.
. ,rock.r" vld.otlped depotltlon for us. It trill In thl c...
, of Lfah lurkey and Dwayne Burkey Vlr,u. John W.de,
6 Dependab,. 'ranllt, end G & G l..slng tn thl Court of Common
7 Pl'.1 0' Cumberland County, P.nnlylvlnl.; Civil Action
I Dock.. No. 96-100]. And Mr. D.V.r. on bon.l' of .n.
9 defendant wlnts to make. ItlCement.
10 MR. DEVERE: Okay. I'. going '0 pu'
11 two objectf~. on thl r.cord hart. Thl 'Irlt objection II
12 r...rdlng thl l.tl production of Dr. Brock.r'l report 0'
1] AugUl. 27 of 1997. Ihla r.por. wa. produced .f..r Inl. c...
14 WI' Ilstld for trill; and, In tlct, .ftlr the prltrl.l
'5 conf.rencl, 'mmedtatlly ther..ft,r I wa, fixed. copy of
16 Ihl. ropor.. Al.o .h. r.porl w.. produced .f..r Dr. E.gl.,.
17 (phone.lc apolllng) .Idoo..ped .rlal dopo.I.lan, whlcn w..
II h.ld on Augu.. 15 of 1997.
19 I would .rgue thlt wI'rl prljudiced beClUII WI were not::
20 able '0 pro.ld. Dr. Eagl. bofor. hi. dopo.I.lon . copy of
21 thl, report; ther.forl, I'm going to put on the rlcord a
22 con.lnulng obj.c.lon '0 .ny ....I~ r.gardlng .nylhlng '0
II do wl.h .h. Augu.. 27, 1997 r.port .nd mo.. '0 ..rlk. .ny
24 ....Ieony In Ih.. r.gard.
25 Th. ...and obj.c.lon I h... I. '0 th. la.. produc.lon
1 of Ih. campi... modlc.l fll. of Or. 8rockar. lnl. .0.
2 r~sted on thr.e prior occaltonl. I hive hid
] .ppro.lma..ly fl.. mlnu... of 'Ime 10 r..I.w It prior '0
4 this depo.ltton. I nottce that there are queltfonn.lres Ind
5 Ihlng. In Ih. fll. .ha. 1 h... nol bo.n privy '0 prior '0
6 .hl. depo.lllon today. Th.r.for., ag.ln, I boll... tn.
7 defendant I and th.lr counael ar. prljudiced beCIUII we werl
. not Ible to properly prt~r. llnee we do not hive a coq:Jlne
, copv of the -.dlcal recordl; Ind I have I continuing
10 obj...lon '0 .h. ....Ioony In .h.. r..pac. .nd . motion '0
11 OIrlk..
12 MR. HUNTER: Uell, II long al we want
13 to put our objection. on the rlcord at thil time, 1111 point
14 out I couple of things reglrdlng Mr. DeVere'a objections.
15 N~r one, with r.spect to the medlcll chart, I an behalf
16 of the plaintiff have reviewed thl medlcll chlrt of Or.
17 .rocker, who I note II loclted In Youngstown, Ohio, which II
1. not I locltion whirl lither Mr. DeVlre or mylllf la loclted.
l' I rlvlewed It for the flrlt time I half In hour ago. It II
20 lengthy. I did notlcl In the chlrt Iuthorizatlonl from Mr.
21 D.Vere thlt werl lent to Dr. Brock.r In June of 1996, .0
22 thlt In thl Ivent Mr. DeVer~ felt thlt the chlrt WII not
Zl c~l.tlly lupplled, further r~estl for dllcovery
24 r".rdlng the compllte chart could hive been made; Ind thet
25 Includll thl lick of queltlonnllr'l Ind the lick of complete
BROCKER
7
intormatlon thlt Mr. OeVlre is Illuding to. Thlt
2 Intormetlon WII not turned over by Dr. .rocklr, and It
] WOln" .paclllc.lly requoOlod by anybody.
4 Thl medicIl report I which lummarlzl Dr. Irock.rll
5 Ix~ln.tlon. Ind tr..tment of thl pllintlff, LI~ lurklY,
6 hive been provided and hlv' been in Mr. D.V.rl'l POISllllon
7 for lome ttme, ~Ill over I ye.r I' I II' from thll ~hlrt ~
e from the.e requ'ltl from Mr. OIVlr.', offiCI.
9 Also with respect to the Augult 27 Ixeminltlon Ind the
10 r.port of Augult 27, 1997, I will note thlt dllcov.ry by thl
11 partlls In thll CIII hll bI.n Infonmal. Mr. DIVer.'t luta
1l recon.truction expert, Mr. Rlc.rdls (phon.tlc tpelllng)
13 report, WI' produced .ftlr dilcovlry closed and, ~ bellev.,
14 .ft.r thl pretrial conf.rlnc. or wlthtn I day of the
15 pretrial conferenc.. In Iny event, there hadn't been any
16 ob),c'lon by .h. por.I.. '0 .h. I... produc.lon of ropor...
17 I further notl thlt In the pretrl.l narrltl~. thlt was
18 filed wl'h .n. Court 20 d.y., I boll..., prior '0 th.
19 pr.trlll conf.rencl, it II noted thlt I lupplemental r.port
20 would bo filed by Dr. grock.r. And, In fac., .n.
21 supplemental rltpOrt was filed Ind served on Mr. OeVerlon
22 the dlY it WI' r.c.lved by coun.el for thl plllntlff.
23 It II "otld thlt occurred Ift.r Or. Brock.r .xemtoed
24 the plaintiff on August 27, Ind h.'1 In .xamlntng phy,fcfen
25 .nd .Imply upd..ed hi. medical ch,,' In ....ne. In tn.
6
I
1 Augull 27, 1997 r.por..
2 And I further note thlt thlr. I. opportunity to rlYfew
3 the chert today, Ind I would invite Mr. OeV.re, If he would
4 like to tlke more time to continue to rlvlew the chart llkl
5 I have I half In hour ago.
6 So with thlt we cln begin, unllSI, Cllrk, you Wlnt to
7 excuse your.,l' and go 'nto I room and meke copie. of the
e chart or review the chart It more length until youlre mort
9 femlll.r wl'h 1<. 1 juOl no'lced .h.. .h.r.'.
10 questlonn.lr.l, I' you Illd, but everything .ll. I.
11 lua.tlnttllly conllltent with whet'. In thl rlportl.
12 MR. DEVERE: In brl.f rtbu...l, flr.,
13 of Ill, the Iccident reconstruction rlpOrt r.flrred to by
14 plllntiff'. coun.el WI' produced, like hi Illd, . day or two
15 or on the day of thl prltrlll conferencl, immediately beforl
16 the pretrial conference, end wea produced at the time It Wit
17 produced beeeuse we wert welting for plalntlffll accident
18 r.conltructlon report. AI fir .1 who hi' the burden to
19 prodUce Dr. Brocker'l medical rlcords, It wal requested In
20 discovery. It il plllntlff'l propoled ~Ical expert;
21 therefore, plaintiff had the burden of producing that
22 compllte medical file; and to put the onus an UI to attempt
23 to prepare while III the pertieiplnu, including the Doctor,
~4 f. weftlng for the d~sltion It not fllr and obviously
2S pr.Judlclal.
NAGY-BAKER COURT REPORTING, INC,
Pages 5 to 8
JR.
DIP'
rION or DR, ROBERT BROCKE.
9
"
1 "owev.r, I would Ilk.. copy 01 .nolO quullonn.lru
a prior 10 'hl. dopoll.lon.
J MR. HUNlIlh Okay. And, .gll n, the
4 tuthorllltlon WI' ICcoaplllhed by ~ elltnt, thl plalntlf'.
, Ovtr OM .....r .go and liven to Mr. DIV.r,'. offlc.; and
6 they1vI had .mplt ~rtunlty to let on thlt. I would
7 requett Dr. 'rocker to mak, c~I'1 0' thl document, Mr.
. DIV.r. II I.klng ~or.
9 IOlEREUPON,
10 D.. ROBE.T J. BROCIER, JR.,
11 of lawful .g., being by .. fir.. duly
12 l\fOrn to tl.tlty thl truth, thl whole
11 truth, .nd nothing but the truth, II
14 h.r.ln.ft.r c.rtlfted, depose. .nd
15 11'1' I' follow.:
16 DIBICT IXAMINAIION:
17 BY NIl. lIUNTIR
18 Q Dr. Brock.r, could you ItIC' your full
19 nooo lor .h. jury .h,"1 h..rlng Ihll ....I-.ny .od.y.
20 A My name " lobert Brock.r. II..
21 nourologl.. prac'fclng her. In Toung..own, Ohio. I .hould
Z2 lay Itlt Dr. Robert 'rock,r, Jr., 10 ,. not to offend my
2l f..her.
24 Q Tour ,..h.r II .110 . phYllclon pr.c.lclng
25 h.ro?
10
t A H.', . neurolurgeon. H. wot In practlc.
2 her. until two ""11" Igo. He did r.ttr.. He wa, her..
1 Q So '1'0. your answer, thl Jury know. then
4 you'r. . l tCeMed physician: correct?
5 A To., I ....
6 Q Ard wh.t st.u ere you licensed tn to
1 pracetCI IMdtclne, Doctor?
. A Lic~sed to prlctlcl hlr. In Ohio and in
9 PennlvLvanil: and I'. .lso licensed tn N... York, wh.r. I did
10 _ ...Inlng, end In Wy...fng In oddl.lon.
11 Q Ok.y. Doc.or, brl.fly could you ..11 .h.
12 jury wh.r. you won. 10 collag.?
1] A I grow up h.r. loc.lly end won. '0 hlgn
14 ochoal and .hen collag. a. Ohio 51... In Columbu..
15 Q Ok.y. And when did you groduou fr"", Ohio
16 ""01
17 A Gradualed In 1975, Juno 1975.
'1 Q And following your r.c.ipt of your degree
'9 'r~ Ohio Stltl, did you .tt~ .-dlcll .chool?
20 A y.., I did.
21 g And whore end when did you a".nd .nd
22 IreGJete 'rOIl medical .chool?
Z3 .. I vent to NcHell .chool down In
24 ~l.jlr., Me.lcoi Ind I immedlltely .t.rted there and
25 finished In 1911.
BROCKER
1 Q And ....1 d.gr.. did you rac.f..?
2 A Ih.1 woo .n M.D. down Ih.r..
] Q Now, following campl.,lon of Medical
4 .chool, did you participate In I r..ldency?
5 A T'I, I did.
6 Q And wh.re did you parllclp.l. In In..
7 ".Idene)'?
a A As It turns out with In Amtrlc."
9 gredultlng In I for.lgn Ndlcll school, you Iu.hd whit',
10 c.lled . Flf.n P..nway, which II . yo.r of ro.a'lng Ihrough
11 Amertcan hOlpltltl: ard I ...nt to 'rooklyn, N... York, .nd
12 did .n.. fr"", 1911 l.f111l '12, """'I coiled. F1f.h P,'hw.y.
13 And In," 1 did wh..,. called .n Inurn.hlp .n. fir.. y..r of
14 r.sldency, h.r. In Young. town, Ohio for. V.lr: and then I
15 ~ant beck to Brooklyn, Ne.. York, I luburb of Ne.. York City,
16 Ind did three yelr. of neurololY .peclllty training.
17 Q Okay. Now, I w.nl 10 beck up . 11111.
11 bl.. 'ollowlng campla.lon of medlc.l .chool, you win' '0
19 Long IIland Coll.g. HOlplul In Brooklyn, N.w Tork, for your
20 Flflh P,'hw.y, 01 I. ..r.?
21 A lh.. fa corrocl.
22 Q And IhO!" roullon 'hrough Ih. LonQ
23 I.llnd College HOlpitll: corrlct?
24 A Rlgh', All .h. g.n.r.l .. II" .1.
25 dlff.rent rotation., two months each, of .ll gtneral
12
1 hOlpttal., pediatric., Internll Pldlclne, lurgery, OS-GYN.
2 Q Okay. And .h.n you did .n Inl.rnlhlp?
] A TOI.
4 Q Who. I. .n fn.arn.hlp ...c.IYl
5 A An In..rnlhfp II Ih. ..rm Uled for Ih.
6 fir.. y..r of l'udyl"9 .f..r medlc.l .relnlng .h.. you ...r.
7 In..rac'lno wl'h pa.llnll. 11'. Ih. flr.' y.ar of
a rtlideney, 10 to lpelk. We cIll thlt In Internship, Ind
9 that, too, I, rotltlng tn many dlfflrent .r... of the
10 ho.plul.
11 Q And did you cone.n..... In. .poclflc .r..
12 durfng your Inlarnlhlp?
13 A Yee, I did. 1"" In general surgery.
14 Q Okay. And wh.n you campl..ed your
15 Internship, you mentioned thlt you then ..ent back to .. by
16 the ...y, that internship ..as done here In Youngitown1
17 A YII, just I few blocks from where WI Ira
18 h.ro .. 51. Ellzabolh'l "o.pl..l.
19 Q And when you cDll1Jleted that, you returned
20 '0 8rooklyn?
21 A Yel, I went out to Brooklyn It Downstlte
22 Medicll School, slightly different hOlpiul, In New York
2] Chy. 11'1. l.rgo cl.y. 8u' 1 did formal .ralnlng II
24 Downlt.te MedicIl Ctnter In klng'l County HOlplt.l, I think,
25 the second largest hOlplUl tn the United Statll.
NAGY-BAKER COURT REPORTING, INC.
Pages 9 to 12
DZP~ .rION ow DR. ROBBRT BROCK.. JR.
1 Q And what ar.. dId you lpodall.. In!
Z A Tn.. wo. In neurology.
J Q Now, h Chit the 14lI1Mt thing II .
4 f.llowshlp or . r..ldoncy?
S A This f. . r..ldency. A t.Uowshlp is
6 'GIIlIChtna th.l', done after I rtlJdency ulually. but thl,
7 I. -. . ~f.lty cr.inlng il you do . r..ldency In I
I c.rtlln .f... All the _peeletllts would do . rl.ldency.
9 Q And whit I. neurology, Doctor?
10 A NeuroloGV. the word Jta.lt meln. the study
11 of IWt'WI; but we, any probl.. d..lIng with the brain,
12 aplnal cord, perlpher.l nervI', be Ie ..fzur.., .crok..,
13 pltn, other tr~tlc Injurl.., wh.th,r Ie Iven be gunthot
14 wounds or any trl~tlc Injury to the br.in or lo-c.ll~
15 central nerVOUI Iyst.., we did .r.fnlng tn.
16 Q Ok.y. Now, wh... did joOU .."",1"0 your
17 r..ldoncy Ir.lnlnQ!
11 A I flnl.hed .h.. In .h. end of Juno, 1986.
19 Q So chiC WI' three year. It King'. County
2D Ko.pl.ol In Irooklyn!
21 A Yoa.
U Q Now, fOllowlnQ ..,.,,1.. Ion of your
Z] r..ldoncy, did you bec... offll,.ted wl.h . hOlpl.al!
24 A Ye.. My fath.r '1.1 her., ard I WII coming
25 beck to prlcel'. wfth him; 10 ..e knew, 10 we got ch.t
1 rolling .orll.r '0 I could como back h.ro end bogln
Z pnc.lco; boll I .h... bec_ .. opplled .nd achl..ed ....Ul
J on oIL Iho ho.pll.l. horo In YounQ"own.
4 Q And who. hOlpl..ll do you hove
S appointment, at her. In Youngstown?
6 A Ther. ar. two main hospital IYltema her.
7 In Younqllown: 5.. Ellzobo.h, ohlch I. . fow block. fr..
a her., and WIstern Rel.rve Car. Cent.r I, the other hOlpitll,
9 .h. ..tn onel In Younqalown. Th.ro'..... porlph.r.l
10 hoopholl ..- s.l... CClII1lU1l<y No.pl'ol, which .... <foO only
11 neuralogll' ther.; th.tl, about. hal' hour aWIY, and east
12 Liverpool CI.y Ho.pl..l which I. down '0 .h. .ou.horn pore
13 of Ohio, whIr. J go down the,.. IlIO; and J'II thl only
14 nourologl.. 'h.r.. And Trumbull M....rl.l II ono.h.r
15 hospital thatl, located In Warren th,t', 15, 20 minutl'
16 north of UI, that .1.. alia on the Ita'f.
17 Q Now, do you _I. po.I..... '0 'ho
11 hOlp".I?
" A AI it turn. out, line. I'.. consultant
20 tpeelllht, could but I generally donlt. .'m.
21 consult."t, 10 other. eciltft end they consult my opinion.
22 Q In oth.r wards, lomebudy .l.1 ".. the
Z] po.I.... Inl tlally, and th... If .n.y need 0 neurology
24 spechl ht to came In, they Ilk you to conlul (1
Z5 A Correct.
BROCKER
1]
15
1 Q Now, In edditlon to conlUltlng It the
Z hOlpital, do you hlye offlc. prlctlc..'
3 A V'I. I do conlultltion at III of tho.e
4 ho.phall, and then the ....jorhy 0' the timt actually I
S lpend In lRV privete 0"1,_ rt!Jht wher, weIr. tltCing fight
6 h'rf; but I ILIa have . day th't I .~ In the Salem
7 Ko.pltal 10.lng prl.... po.I..... and a day Ino. I lpond In
8 r,.t LI"erpw11 HOlpltal ...Ing prly.t. patlentl.
9 Q So you ... patiente 'I".ral day. . we.k or
10 .".ry dav 01 the wllk In one loe.elen or another?
11 A 'Iv. days a welk I 'orllllllY' I" patient.
12 'ho full d-.y.
t:1 Q OkaY'. Now, do you work with c~iropractor.
14 "fry ott.n, DI.ctor1
15 A "1', I do. lhe" ar. lame h.re In
16 Youngstown WI re'er eo, and they r.f.r to UI t~tl"l when
17 .hlnQ' nood furoh.r ....n"on; and I hove 0 folrly good
18 "latlonshlp "hh . ~r 0' chlroprIC1:Ort In the cltV.
19 Q And do you r..i.. 'ho work of
20 chlropractorl and the fr..emene thlt they provide to your
21 po"on..?
22 A
2lQ
24 charg.. that
25 A
Y...
Okay. And ar. you familiar w"h .h.
Ihoy bill po.lon..!
Yes, 11m ...ar. of their uluel and
14
16
1 cUltom.ry eh.rges.
2 Q Ok.y. Do.. 'ho. Include tho Mahonlng
] V.lley Chiropractic Cent.r htr. In Mahoning V.lllyt
4 A '''' It dotl. W. hl"e lort of ".telllt.
S o'flce thlt" lomewhat clo..r to them, and "I mutually r,fer
6 qultl I lew pattents. They r.ftr lorne to ut and we rel.r
T 10INt to them.
I Q Okay.
9 MR. HUNTER: I would off.r Dr. Brockor
10 II an ..pert In neurology Ind allo In thl fllld of
11 chlroprlctlc Clr. for purpol" 0' f.ntll.rtty with the
12 bllltng wfth ehl chlropr.ctort and thtfr ulUIIl and cuatomary
13 ChIfQ"_
14 MR. DEVERE: Doc.or, I'd Ilk. '0 ..k
15 you lome question. IS to quat I flcatlon.?
16 IHE WIINESS: Suro.
17 CROSS EXAMINAIION:
18 8Y MR. D.VERE
19 Q A coupll items on your r....... here. JUlt
20 out of curlollty, why dfd you attend medicol Ichool In
21 Ml!xlco.
22 A In Me.lco J went .. first .pplled to Ohto
2] S.ato, and had majored In nonor. blophy.lcl, hed . ].1.
24 ThlY laid thlt Wlln't high enough; that r should apply neU
25 year and major In .tr.lgn. biOlogy. And 'hrough OIU.ual
NAGY-BAKER COURT REPORTING, INC.
Pages 13 to 16
DIP(
nON or DR. ROBIRT BROCItB,
19
17
1 r,.'ona to not dillY, r went down and It.rted Immediat.ly
Z Ind didn't w.lt . y..r. 'tlrted In Mulco. Mad to t..rn
] Spanish 10 do .n...
4 Q You .100 llcanled In Wy...lnQ?
5 A IIQ/I..
6 Q Why I. .nan
7 A I hlv, . frl.nd thltll out Wett. I like
e the ...ac. Jutt ..anted to hi"" thlt option to be abl. to
9 do thlc. thlr," no apeelflc rl.ton.
10 Q You ,.Id you wtr. I conlult.nt
" neurologist; correct?
12 A Corr.c..
t3 Q Thlt .an. you Ira not I neurolurgton7
14 A No, I I. not I neurolurgeon. 1 did. y..r
" of tener.l lurg.ry. but I did not 10 fnto neurolurgery and
16 don'l do any for..l opor..lon. or aurg.ry .. .hl. II...
17 Q And do you ha.. .ny kind of .ub.pocl.Uy
,. In neurology .h.. you do?
19 A Na, Itlt Just IM'r.l. I do ... . lot of
20 h,edlch.. and 1"lurl.. Aglln, 11M In prlctlee with my
21 'Ith,r, . neurolurgeon, and mv broth.r, I neuro.urg.on; 10 I
22 'oo I 101 of Ih.lr poI..opor..I.. and pr.opor..I.. po.t.n...
2l Q And did you go 10 any formel .choollng for
24 chlropr,.'I. medicine?
25 A No.
1 Q And you .r. no' IIcan.ed '0 be I
Z chiropractor; I. that corrlet?
] A No.
4 MR. DEVERE. And I would obJ.c. '0 Dr.
S .rock.r'. quallflcatlonl II In Ixpert In chiropractic
6 -.l1.lne.
7
I
9 DIIECT EXAMINAYIDN:
10 IY Ma, HUN1EI
11 9 Dr. grock.r, did you 're.' .h. po.lon.,
12 L.ah lurk.y, Ih. pl.lntlff fn .hl. c.le?
11 A Y.., I did.
14 9 And whl' c.u.ed you '0 .. did .h. Ju..
15 CaRl It . pltlent to your office; "I' the r,'erred to you by
16 enother IOdlc.l pro.ldor?
17 A I belieYI ,he Nil nflrred .. w, Cln
11 fonoally look .. 1 boll... by . Dr. Ca...ldl from Ra.enn..
19 Q Doctor, hive you letn thl patient llnee
20 1994?
21 A
22;
2lA
MR. HUNTER.
MR. DEVERE:
II thlt It. Clark?
YII.
'tu, I hlv,.
When .... the lilt time you .IW her?
I 18.. her on August 21, 1991, jl.tlt .
24 c~l. w'lk, Igo.
lS Q Okey. Doctor, do you hlv, In opinion
BROCKER
JR.
1 r.g.rdlng L...'I medical condition, wh.. I. I.?
t--
nn. 88"1"1. I .jl1' Uurl', ..."
, IN 'IIWII~..I_. I~. -'r ..,,1..1......
4
5 A
6 ;
7 condl.lon?
8
MAw l~tlTill Will, "I'U II I~PIWIh.
YII, I do. I JUlt recently .....Ined her.
Whit I, your opinion II to her ~tc.l
"J. OI..UC. S~... _JuIIM.. TfI", ....
9 IUIf! ... tnf?"Hlon.
18 HR, IIWNTU. W.LL, N"U J._4t4U Ihe
tt U.tl,~.,..4 illI.'LL .4.14_ II, Mr., 1'4t LH., 1_ lllll" ,. the
lZ 8......L.... '.. ...,.,1,,1....,. , I, .t.
1] A N.r condl.lon, wh Ich I found on
14 ...mlnatlan on Augult 27, 1997, ..a. lubatanclaUy
15 con.rlbu'ed '0 by h.r .u.o .ccfdon' In 'ebruary 1994. Thl.
'6 luta accident CIUSed . per-.nent condItion of . craunarlc
17 c.r.lc.l dtlk dil..a. .nd ..r.lc.l redlculopo.hy.
18 Q Doctor, you .ay that her condition today
19 Wla lubl..n.l.lly con.rlbu'ed '0 by h.r au.o .ccldonl of
20 february, 1994?
21 A
22 Q
2] progno.11
Thlt t. corr.ct.
And whit I. h.r cordt Clon ..
far thl futur, go..?
fIr II her
14
mi. BC\'fIlC. eaj&4tI..... 1...1"........
as tabd...I.M.
18
20
1 A She no. a... bulging dllk. which or.
2 permanent. believe tho.. ... I t I. bien three y.e" plu.
] .n.. .n.y h... bo.n pr'l.n.. I .nlnk .h.. h.r condl'lon II
4 8Qlng to be .I~illr to thl. far many y.ars.
5 Q Now, Dacaor, heve you prlscrlbed tha
6 patl.nt medlcltlon for I~toma In your curr.nt tr.atment of
7 h.r?
I A YOI.
9 Q And what ..Irl the I~toml which ....
10 c.uatng you to pr.serlbe medicltlon at the pre.ent time a.
11 ropo..ed In your AUQu" 27, 1997 .xamlnatlon?
12 A She wa. h..lng n.ck potn radl..ing down
13 her right ann, lame lower back peln going down her right
14 l.g; and they were often, from tha neck pain Ih. .... gltting
15 lame .ev.r. heedach.s.
16 Q And whit have you pr'lcrlbed for her II .
11 relult of her headlche.?
18 A 'or headaches I gIve her, '.rcoeet;
19 thltll a potentially hlblt.for.lng Iynthetlc n8rcotlc.
20 Q Ok.y. And you prOlcrlbed .h.. whan?
21 A I prescribed that on A\JIult 27, two ....k.
22 ago.
2] Q Ok.y. And who. I. .n. progno.l. r.g.rdlng
24 h.r headach.s end her need for -.dleatlon?
2'
MR. 8(\'[11[. 8bJ.L_II....
.LJ-t-'_I"
NAGY-BAKER COURT REPORTING, INC.
Pages 17 to 20
DJ:PO~ _ TION 01' DR. ROBERT I3ROCKE... JR.
1 '__.&1.1_...
a A 1 be~ lev., Igeln from hI" hayt", betn In
l need of tht. nNdfcltlon for many y..r., thet It will be an
4 '".,tnlt. time thet Ih. My requlr. contlnuedp.ln
S -.die.tlonl and .ntl~ln'lammatory medic.llon.
6 Q Okay. Now, whh r..peer to th, foundation
7 for your opinion, Doctor, l'd llkl to go back to the
e begl,.,'", and r.vlew yoyr '1Illmination of Lllth the flrn 111M
9 'tOll .... h.r tnd the tr'ltment you'v. rendered to h.r Ind the
10 dfQr"MM'. you Mde In th, be9lmfng and whitis occurrod
11 alnc. .h.. II.... So If you could, go '0 your Inltl.l
12 ~..lna'lon and ..11 .h. Jury when w.. .n. flrlt .1.. you
13 ..w h.r.
14 A My fir.. .1.11 wl.h h.r w.. In April 1994.
15 Q Okay. Wh.t WI' the datI of thlt?
16 A .. w.. April 19, 1994.
17 Q Ana what w.. th, tnformltlon thlt WI'
,. ,I.on '0 you .. .n.. .1.. by .n. po.t.n'1
19 Ai th. had had an auto accident on I'tbruary
ao 23, 1994, end 'Ill.. c"",,,llin'na of h.edit'h., neck peio and
21 ~ lowr blck ptItn. Th.r. .... nlltlpl. palnl that she "'..
2Z _oopl.lnlna of rodl..lng In.o h.r .houldar. .nd .rma.
D Q SOap .h.r.. Wh.n you uy rodia.tng In..
Z4 h.r thoJldera w ......, whet do.. thlt metn?
25 A Th. paino ...roed In h.r neck and
22
t redilttd. trev.led from her neclc Into her should.r. and down
2 her .~. lut I furth.r found on examination, shl told me
3 ,h., ah. did h... I... h.ad .r.una requiring mot.l It.pl..
4 to _loa. In. ...-.d.
S Q rhll II II . r.lult of the u
6 A Th. luto accident about If x w.eka ..rll.r
1 frQIII when I .IW her.
. Q Ok.y. Any o.h.r I~'_ th.. .h. go..
9 you?
10 A She 1.ld .h. poln dlarupu h.r .l..p. sn.
11 WlI c~l.lnlng of numbnest of her flng.fl. Bending forward
12 .ggr.v...1 h.r poln and n.r condlllon.
130 An whit did Ih. uy about the acc:ldentj
14 how did .he r.II'~ .h. .cclden. '0 you1
15 A It w.. on th, Turnpike. H,r car had be.n
16 placed broad,lde acrou the highway, ard Ih, w.. struck by .
17 tire' lemt truck, broadside.
14 Q And at the ellM you .... har, DCKtor, on
19 April 19 of 1994, thlt would have been two months .ft.r that
20 tractor"tr.II,r .truclc her vehlcl.; corrlct?
21 A Cnrrlct.
22 Q And what medt en I an 'I" Ih. uk Ing at thl
D 11_1
24 A
25 Dlrvoclt,
When she CMle to me ,h, ..8. tiki",
Ylcodln end Tylenol No.3, prescribed by her
BROCKER
21
2l
1 hmlly doctor, Or. C.staldl, and An.proJl bv another doctor,
2 lay.r (phon.tlc lpolllng), which to an on".lnfl.....tory
] medicine.
4 Q Ard she WQI ..tlng you on April 19, 1994
5 to trut whan
6 A 'he pGln. The pain wasn't getting beUer.
1 Her oth,r phystcl,nl wert not navlng luc~ell It getting the
e pain tr..ted.
9 Q How, wo know thu ahe broke lane rlbl tn
10 the luto acoldent. DId you tr..t htr broken ribs?
.1 MR. Bf.r:ut. 8t.j....L 1_... L.a~J..,.
12 A I WI. IWlre thlt sh. had an X.ray that
1] showed she had brok.n rib.. Thac "I. pert of h.r
14 g.ner.llled poln, and .n. pain modic,'lon I g.v. h" WOUld
15 have helped thatj and the Inti.'nflemmetory medicine 1 gava
16 her would have be.n h.lplng thlt, 10 that wa. ptrt of h.r
11 generll condition. The molt prominent pain and problem wa.
18 her headache Ind nack pain.
19 Q Now, did you do a phYlfc.l exaninltfon of
20 Lalh, Doc tor?
21 A Y,., I did.
22 Q And ..ll .n. Jurv wh.. .h.. con.ll.ed of
2] and wh.. you found?
24 A That consilu .. ,he came to vltlt Ut, and
2S we put her fn I gown, you k~w, down to her underw.ar; and I
24
1 general physical .xamlnatlon II performed, lllt.nlne to her
2 he.rt, tlklng her blood pr,slur., Ind listening to h.r lungl
3 and .. Just . g.nerll luperficlal physical IxemlnatlOM; and
4 then I neurological examination fl performed of III the
5 varlout neurological .re.s.
6 Q So If rat you do . gener.l Ixam, and then
7 you do . neurologicll IXom?
a A Corrtct.
9 Q And whit did your neurologlc.l dlagno..lc
10 exam consist of1
11 A Ther, .r. .. firlC we do . IMntll ItlCuS
12 examination; and that has to do with your Iblllty CQ
13 remember, to name things, .nd Ibstract thinking Iblllty; Ind
14 then we ,x*"tne cr.niat nerVIS, which Irl thl IY's and lar.
15 end throlt, and then I motor .~amin.tlon and I lenlory
16 Ixaminatlon, coordination chich.
17 AI I specialilt, we do I compl.t' neurologic
18 Ixaminltlon; but then I mark down the positive findings on
19 her chert.
2Q Q What were the findings II you reported?
21 A Sne ned wh"'1 _.lled . po.I.I.. Spurling
22 to the neck base. 'hit Involve, putting lame pressure on
23 her head and Isking if this hurt. her heed when I prell up
24 her., It'd she said. no, It didn1t hurt hlr hearl. It hurt
2S her neck. $0 I would know thlt thlt would "In th.r,'. maot
NAGY-BAKER COURT REPORTING, INC.
Pages 21 to 24
DEP(' .TION or DR. ROBER'l' BROCKE.., JR.
, 25
likely e bulging dlak or problem In nor neck. ~.n I pu.
2 pr...ur. down .n.. woy, If 'her. I. . bulging dllk, I< will
J bull' further and 'IUI. Iymptoms, i. whit I WI' looking far.
4 And th.. w.. poII.I.o.
5 Mlr right .rlft rlfl.xl., whltla Cllled thl
6 br.r~tor8dlllt. r.fll., which I, I Itlndard deep tendon
7 r.fl.. whIch eln be Iv.lulted, WI' deer"led, .nd .he had
. 'elM' nurtInt'l. Shl had told UI that In the hlltory, but IS
9 thlt turned out thl nurbn... turned OUIt to blI in thl
10 dlatrfbut'on of . nerv, root from thl nick. It't ClUed I
11 C7, . ..venth ,.rvlcll nervI root.
12 Q And wh.. do.. .h.. ....n7
13 A Thlt meant the n.rvI Is gluing pinched
14 10000tr.. She h.. . pinched n.rvI In hlr neckj Ind coupled
15 .I<h .ho poII.I.o Spurling, It would bo .n.. Ihl h.. a
16 bulging dllk In hor neck Impinging on .h.. n.r.a roo.,
17 Q And wh.t wore your finding. .. conUlned
11 In Ih. cho..; wh.. dfd you r.porl hor .. h..lng7
19 A 1 Ihon, I fO<.nd 1_ .hlng. down bolow In
20 her lower beck, too; but J wrote MY fmpr.,.'on II, thl, t.
21 fit cllnlcll I~r...fan .ft,r thl Ixamlnatlon, WII that ,hI
22 haa bulging dllka; Ind I .old rlgn. C7 nor.. compr.I.lon and
2l rlQht 51 nor.. compr...fon.
24 Q Now, Doctor, whit f, right C7 nerve
25 CGq)I'I.1 f on; whit do.. that mean?
26
1 A Th.t II Ih, hili I pinched nlrVl In her
2 neck of .ho nor.. that goo. into h.r h.nd from tno dhk .h..
3 Cauled Iho bulge from th. occld.nl.
4 Q Wh.. doo. . bulgfng disk ....n7
5 A The dilks Ire pads between the verttbru
6 In the neck.. That enables us to move our he,d beck end
7 forwud Ind around. The pads, when pressure II put up Ind
e down chrough thl tnlal of perhaps In lutO Iccldent, or
9 there .r. other w.y., the dilks, which usually ar. flat,
10 bulge out to the .Ide. Anatomically the nervI root comes
n oul rlgh. bo.ldo .h. dllk. If .h. dhk. ar.n" bulging, no
12 probl.... \/hen .h. dllk bulge., I.~. In and pinch.. Ino
13 nerve Ind cluee. pain thlt trlvela from your neck, or It
14 cauld be your low.r back, down . ltg or dl3wn your Irm.
15 Q And, Doctor, do you have 4n Inltomlcll
16 _I Ih.. you could .how .h. jury wh.r. .n. C7 diak bulge
17 WI' on Le.h Burk.y?
18 A Yet. The'l Ir. the ..ven vertlbrl. of the
19 neck, and thl. II the Itventh one. These lInle peds right
20 her. ar. the disk.. "'. can Ie. thlt 1t II coyered by a bone
Z1 100000""'lt, bJt this yellow nerYI root comes out to the Ilde
22 of whir. .hl. dhk rig.. nor. II: and thh dllk ""en I.
23 bulge. out, It would impinge on the yellow nerve root. In
24 Leah It wa. actuaUy right here, right hert; and thl, nerYIt
2S root goes down the Irm tu her fingertips. "'Ith In Iccident
BROCKER
27
1 of being forw.rd and blckwlrdl, that putt pr...ure up Ind
2 down .nd mak.. tn.a. dl.k bulge..
] Th.y have .ame of the.., In thla modll, .oma of the
, dilk. her. ar. bulged wher. the onel up hart ar. not, but
, Che on.. h.re ar. bulging Ind protruding. Protruding to the
6 front doelnlt ~tter; It" to the .tde th.tla molt
7 Importlnt. Ittl wher. w. get Into thl, yellow nerve root.
a Q Doctor, II a r"ult of your ffncHna of .
9 bulging dllk .. C7, wh.. did you do for tho pa.l.n<7 ~..
10 did you order7
11 A I ordered lame .ntl.tnflUlMtory, I
12 It.rold .ntl-Inflammo.ory medlcln.. Ihll 10 '0 .ry to g..
,] tn. Inflammo'lon out of tho dllk .nd tho n.ry. root. I go..
14 .ome peln medlc.tlon ell led T.l.cen, .nd I g.v. h.r lome
1~ medlcln. for chrontc peln and heldache. cllltd, Itll an
16 Intideprelswnt called El.vll or Amitriptyline, to take It
11 night. I ordered lame plctur'l to be t.k.n of the .rll. In
18 quo..lon, which would bo .n MRI, whIch .tandl for ..gn..lc
19 r..onlting tmage. Hake. I very pr.cl.. pietur. of the n.rv.
20 r...1 and tho dllk..
21 I WI' going to order lome X-r.ya of her neck Ind law.r
22 bock wl.h wh.. wo c.ll fl..lon.....n.lon, bul Ih. h.d from .
23 Dr. D.S.ntll, a chiropractor I,,'ng h.r prevloully, h.d
24 .hol, .nd 10 I ju.. hed hor bring Iholo: and Ih.n 1 ..ked
25 her to r.turn to ... me In two weeks to lee if Ih.ta doing
28
1 bo...r.
2 Q Now, did you hIve In opinion It thlt time
] reg.rdlng wh.. C.Uled her bulging dl.k. .nd .ho pain Ih. w..
4 complelning of, the heldaches and the arm pain?
5 A hi, I did.
6 Q And "".. wu th.. oplnlon7
7 A That ,he had I tr.umatlc Injury, elullng
8 the dllk to bulge, pinching the neryel and cluslng the peln
9 Into her hind and somewhat of her lower back .nd cluling the
10 migraine h.adachel.
11 Q And wh.. wo. tho .raumotlc Injury?
12 A The accident on Februarv 23, 1994.
1] Q Th. Turnplk. accfd.n.?
14 A The Turnpike Iccldent, yes.
15 Q How, when was the n,xt time that you laW
16 Leah7
17 A I nlxt lOW her on July .- we got the MRII;
18 WI law her It the other office. We got the MRI' the
19 following month, Ind then J law her just .fter the 4th of
20 July for further examination.
21 Q Now, It that time did she report Inythlng
22 new regarding her history?
23 A I wrote down In my own handwriting,
24 minimal Improvement. Still the .ame ptln, end I Iwltched to
25 different Intl-Inflemmatory medicinel Ind I scronger pain
NAGY-BAKER COUR'l' REPORTING. INC.
Pages 25 to 28
DEPC:
lION OF DR. ROBERT BROCKE
MA. 8('JU[.
wbJ_u. In" II
1 pili.
2 Q
J 19941
4 A V...
S Q lII.flrrlng to thlt report, I' you look It
6 thl bottom of P,g. 2, you r,'.r thlr. to your .xaminlelon of
7 July 5 and who. Ih. r.por.ad 10 you. Could you JUII I.ll
a the jury whit you Indicated in your report ,h, r.port~ when
9 you I'W h.r In July1
10 A V", Ih. had .noth.r minor luto accident
11 on M.y 20, 1994.
1Z Q Okay. NOW, on Pig. 3 of thlt r.port, In
1] Ih. ucond poragr.ph fr... .n. .nd, you r.f.r co .n.. .nd 1
14 Jual alk you to 1.11 .n. Jury who. your opinion ...
15 rog.rding Ih.. fir.. .ccldont .10.0..1. .n. I'cond .ccid.n.
16 .. il r.laled 10 h.r o..roll oodlcal condlllon1
17 A V... ~y opinion .1 th.. .IIM, .nd I.
11 01111 II my opinion Ih.. 'hl, har condi.lon wal C'Uled by
19 Ih. flrlt accldon. .nd .ggr.va.ed by 'he I'cond accldenl,
20 r..ultlng In Ih.. modlc.l .....mon. .h.. 1 had gl.en n.r ..
21 Ih.. 111M.
22 Q Okey. Now, with r.spect to the ..eond
23 accident, you IndlClted thlt It wal I minor accident when
24 you wor. .alklng abou. i.1
25 A 't... And It.... Icmewhlt, CluSed her lome
Doctor, you hlv, . r.port dlted October 5,
1 lower bock poln. She originally hed had .01110. II
2 IggrtVleed the lower back .ftUltlon mor..
3 Q Now, what would th. tr..t~nt have betn
4 wh.n you IIW h.r .ft.r .h.. .ccldenn Old f. chang... .111
5 A No, the tr..tment remained the lame. 1
6 wa. Ir.allng wl'h .n.I.lnfl.....ory medlcln. and poin
7..dlcltlon, 10 It dldn1t changl.
a Q Now, you'vl tlltl',ed ..rll.r thlt her
9 pr...n. condl.lon had bo.n .uba'.ntf.lly con.rlbuted 10 by
10 Ih. original .cclden.. How do you .qu.r. .h. dlffer.nca.
11 becau.e at thl tlct thlt there WI' . lecond accident In May
12 of 19941
Il A Th. bulging dl.k w. ..w on .ne MRI. et..r
14 the original Iccldent. Tho.. were performed. The trauma
15 Involved In the .econd accident WI' of . ll.ler degree, and
16 that WI' not of lufflelent force to CIUle the, her per~nent
17 condl'lon a. I I" h.r today.
18 Q NOW, you .ald thlt you Ixamlned her the
19 fir.. .IIM on April 19 of 1994; rlgh'1
20 A Correct.
21 Q $0 that would have been one month before
22 that lecond Iccldent; correct?
23 A Thatll correct.
11'\;
.".., r-.t ~~...- ..... ...t~B..ft.t. ft' .h. hu.1..g.J...cg
2! JI_~ .t thl' '1m., lirpw;t?
JR,
29
l1
~
.a l4ldif\ll.
~
MR. Il~HTU. 1 ttLl..k ~"'fl j.~1t
4 __.._.1..1... ';,..1 1I.. 1...11.._., /,.1_ _l......4, _In.
] 1'1
fl.. dl..llv.l. I ... ,L.. <h._. ...... b..l~tl."
.& ~1..1t I.. ~ Allfll 19, 1??t flit.
1 Q And you IIV that there wa. I Spurling
a atgn: whatll that Igaln1
9 A Thltll whorl 'fOUl,.. pr.lllng on ;he hlld:
10 t f 'har. .. . bulging dllk, Ih. dhk bulg.. mor., 1""lnglnj
11 on thl nerve root Itll alreldy bumping Into.
12 Q Why would ner pr...n. condlllon bo .
13 rllult of thlt firlt accident wnen ahl hid thlt IIcord
14 accident; or how do ..
15 A The tr.une ot thl tlrlt .celdent WII
ld .ufflcl.nt '0 c.u.. Ih. dl.k. 10 bulg. .nd 1.01 un'll lad.y.
11 The trauna ot the ,.cond accident wa. of a l....r degr.. and
11 would only ha.. .ggra..ted 101110 .lr.ady mildly bulging
19 dllks; but the lecond accident lay hive not eluaed much
20 probl... .. .11 h.d Ih. nol .lr.ady had Ih. orlgln.l ona.
21 And I Ihlnk Ih. "Cond .ccldan. would h... C'Uled poln for a
22 flw months Ind w~uld hive re.olved.
2l Q Now, wh.n did you .. did you order .ny
24 .ddl'lonal medlc'llon or anYlhlng wh.n you I'W h.r In July
25 of '941
lO
l2
, A YoI. 1 gov. h.r .'ronger pain medlc.llon
2 end . dlff.r.n. .n.I.lnfl....tory medicine.
3 Q Now, what .bout the chlroprlctlc clr. that
4 she WIS receiving at that time; why was that requeated?
5 A The chiropractors were trying to do
6 phYllcol .herapy and align .ne .plne .nd Incr..I. Ih.
7 strtngth at the muscle. In her spine to conlervltlvety try
8 to pulh Ih. dllk bock in.
9 Q And where did ahe recelvl her chiropractic
10 care?
11 A Mohonlng Valhy Chiropractic. Itl. Dr.
12 DeSantis and Or. KOltlglou. I'll very familiar with them.
13 Again, welve mutually reterred loti of pltltnt..
14 Q Okay. Aro you fomlll.r with .h.lr
15 chafgel, Doctor?
16 A
17Q
18 pro.lde
19 A
20 do.
21 Q Old Llln Ih.rt wltn you .n. bil!l 'he. .he
ZZ received from the chiropractors?
23 A Yea, Iht did. I hid ae.n tho.e.
24 Q And, Doctor, do you have an opinion
25 regarding whether thOle bll h were ..e..onabl. and customary
Ves, I am.
And the nature of the tr.atment they
Ihe po.lenls?
( go Into their offfce and a.en whit they
NAGY-BAKER COURT REPORTING, INC.
Pages 29 to 32
BROCKER
DEPC:
nON or
DR. ROBERT BROCKE
]] I
]5
1 charg.. 'or thl Youngstown .r.. for chlroprlctorl7
2 MR. OEVERE: Object. I think IhorO'1
3 been en Inadequl;' fCK.ndatlon, Ind I doni! think h,', be.n
4 properly qualified '0 gl.o an opinion In .nla ,o.poCI.
S Q Illtd on your ...per l.ne. Ind ycur
6 f.H larlty with rlf.rrlng patients to dtlroprlctor., I know
7 you don't do chlropracttc elr'f but hiving ...n her bill.
I ~ hiving lent other pattent. to her, do you hive en
9 opinion II to whither th.t,. chlri" wtr. Ulu.l and cUlcomGry
10 ch.rgol?
t1 MR. DEVERE, S_ obJoc.lon.
IZ A YI', I hive an opinion about thlt.
1] Q And whol 10 .hatl
14 A Inolr '''1 aro qul.o approprl..o ond
15 CU8tONry for our Youngttown .rll. rh.re ere I rlUl'bIr 0'
16 o.hor chtroproc.ora horo .nd othorl I nOYO a rolotlonlhlp
17 with, and th.'r charg.. ar. thl .... I' the oth~r. to which
11 I rofor.
19 Q Now, Doctor, when you II" thl ".tllnt thl
20 nox. .1..., whot w.. h.. conditlonl
21 A I then .... her ebout . IlOf1th llt.r. I
22 wrot. down no ching,.; pain rllMlnt. I tried dlff.rent
2l OIOdlco'lon..
24 Q
25A
And when did you 100 her of... 'haU
Tho. WOI on Augu.. 16, 1994.
I Q
]4
And did thoro c.... . limo you saw her In
2 'ebruary of '951
] A Corr.ct.
4 Q And whit wa. hlr eondl II"" by February of
S 195, which would hlVI be." one yelr .fter the Turnplk.
6 Ice Ider.t?
7 A I wrote in rJrf own handwriting, all aspects
8 Ir. worlenl"g, d.lpltl phY11cal ther.pv and the medication
9 that wal given. The pltn r~lat.. to her right 11"1I. I
10 wro.o hor rlgh. orm to numb. ond hor rlghl c.lf I. numb
11 ILia. And then I pr'lcrtb.d lame further Intt.lnflammatory,
12 chronic pain OIOdlcln.. and dlfforont 'YPOI of pain
1] OIOdlc..lon..
14 Q And what about dllgngltlc te1ts?
15 A I at that time ordered an MRI of the neck
16 and of 'ho lowor back.
17 Q Doctor, whit: II an MAl?
15 A MRI lunda for Manetlc r..onltlng IlIIIge.
19 You USI . Ngnet to make I picture of 10ft t111Uf. X-ray.
20 take I look at bonel. W. need dlff.r.nt t.sts to look at
21 loft ttllue Ilk. nerv.s Ind dilkl.
22 Q And would you ho.o looked .. .he MIl fllml
2l yourlOlll
Z4 A
21 offlc., and my father,
'hI.
We have an MR I at our IItelll u
and my brother alway, look at the
BROCKER
JR.
1 ftllftl all our..lv.l.
2 Q And wi... .00 .ho finding. on Iholo MAIl 01
] I. rololed to 'ho dlagnolll you originally aado In April of
4 194 of butting disk; w.r. th.y conllatent or Inconll.ttnt?
5 A 'h.y w.rl conlilt.nt. W. IIW I bulging
6 dlak at I ru'Dlr of lavlt., both above and down below In thl
7 tower b.ck.
e Q And did you hlye In opinion .t thlt tlmt
9 In ,.bru,ry of 1991, .1 to whit WI' thl r'lltlonlhlp betw.en
10 the Turnpike accident of ,.brulry 194 .nd h.r condition It
11 .n.. .1...1
12 A T.., I did.
1] Q And what wo. .no. oplnlonl
14 A Ino Ir..... of Iho Tur."lko occ ldan. C'Uled
15 .no bulging dlak ond pain .nat Ino wa. auffortng 'rom.
16 Q Okay. Slneo 'obruary of 1995, ha.o you
17 loon 'ho pa.lon'l
18 A Too. Wo had dono .ho MRII, ond wo looked
19 .t tho.. eftlr t".t; Ind thIn I II" her two weekl Igo.
20 Q And who. did you find on phy.l.al
21 eumlrwt Ion two weekl Igo when you uw her? 'hi. would hive
22 boon AU1IU" Z7.
Z] A
24 Q
25 you laday.
That Is correct.
Two wllh Igo from the date WI que.tloned
36
1 A RighI.
2 Q Okoy.
] A And I olwoy. wrl.o down In my own
4 handwrl.lng who. I found. Sho w.. ..Ill ha.lng .ho mlgrolne
5 haadacho. .hat began with pain In tho bock of hor hood and
6 then rldilte ~ Ind CIUI. lome naUlel and vomiting.
7 Q And, Doctor, do you have In opinion
8 regarding the CIUS. of thOle heldache.?
9 A y", I do.
10 Q And wh.. I. 'hon
11 A Tho "Igg", pain.. or proclpl..t1ona of
12 those headache. are the neck pain, which fa verv camon.
13 p.ln o'ten rldlate. from the neck or bock of the heed
14 forw.rd. ltll. very common IltUltlon I' I preclpltlnt or
15 clusal of mlgrllne headaches.
16 Q Ard whit lbout the progno. I. of tholl
17 headachl'? Should they resolve or --
18 A Well, they hed been present for three
19 y.ara pluI. Pm Ilway. hopeful, but they MV note
ZO Q Who. kind of medicol caro will be
21 n.cenary for the headaches In the future?
Z2 A Wo hod tried .. I had '0 koep ..opplng up
23 the type 0' mtdtcltlonl I "I' giving h.~e on thlt date two
24 weetl Iga I prescribed some Percocet, which I. . mort
~5 potentially Iddictlng medication thlt I regretfully
NAGY-BAKER COURT REPORTING, INC.
Pages 33 to 36
DIP\'
TION or DR. ROBERT BROCK!
19
17
pr.lcribed 'or h.r. I w.. hoping to 1.11. -.dtcine to try to
Z .ll~l.t. the nee..llty for thlt, but I hadn't II of Ylt
] been lucc,,,'ul.
4 Q Now, Oaetar, In thl coyr.. 0' YOlJr
, tr.ltlng Mt.. lurk.., for thl palt thr.. y..r.. wnat bills
6 hla tn. boon chorGed by your offlc'?
7 A I th Ink I do hi"" . copy at thlr. Ther.
a wouLd hi.... be.n thl btlL. for the o'flcl Vllllt ~ for thl
9 MIl. end oth.r ..I.lng .n.. we did.
10 Q And whee II .n. .0Ul of .n. bllll th..
11 th." Incurred .ine. thl" trelted with yoyr 0'flc.7
12 A Tn. '0..1 of th. bill. wu 'l,900.
n Q And Ir' thol. the ulual end cl.lltomary
14 ch.rg.. .h.. you bill poopl. In .IMll.r .Ituo.lona n.r. In
15 y""",.town?
16 A Yet. Thly'r. approprlat. and cUltomery
17 'or our or...
'1 Q JUte flnllly, Ooctor, whlt" thl outlook
19 for L.ah lurk.y1
20 A W.ll, decton alwa.,. try to be opt lmlst Ie;
21 but, agaIn, ahl" be9n hIving h.edachl' for thr.. yl.rl. I
U think Ih. h.odoch.. ...r. IIk.ly .han no. .Ill con'lnu. for
23 thr.. y..r., If not mor., and I think that hlr neck pain
24 going '0 h.r rlghl .... 10 probably going '0 con'lnuo for ee
25 1..11 Ih.. lonG end poa.ibly long.r. '0 a. h.r .r"'lng
l8
, physlc.e", I would hope for tome Inproyemtnt, but I h.ven't
2 bten ...Ing It: '0 lid have to .IV I would be unc.rtll", but
] II would look th.t llk.ly .n.'a going '0 no.. .hl. pain for
4-.ny year. to eoea.
5 Q And wh.. kind of medlc.l .ro..mon. will
6 .h. need a. . r'lull of .nee condHlon?
7A Sh.'ll need ontl.lnfl......ory modlcln.,
8 Ih. _Iclno I'v. boon giving h.r, end pain _ico<lon,
9 whIch ...y ho.. to bo narco.lc..
10 Q Wh.. .bou. .h. chlropr.c.or.?
11 A Th. chlrapnctor. Ire good treatments for
12 .. theY're conlld.r~ treltment.. Th.y'" not .urgeon..
13 Surgery would always be the ll.t r.sort. Th.y'r. trying to
14 .llgn .h. .plno .nd .llow .n. dllk '0 g.t PUlned back In.
U And thlY help h.r: .hl fllll better when &he l..ves th.ir
16 offlc..
n Q Doctor, one thin; 1 forgot to Ilk you
,. about wal L.ah'l Work.r'. Camp ell;. which you r.fer to in
19 your report. How do4. chit cloud the pictur. or Ifflet h.r
;zo condition?
21 A Sh. had I minor Workmenll COft1) ... it wu a
22 lower beck Injury, but It really is not contributory to the
2] n.(k pat" whltlolver and the h.ld.che..
24 Q $0 .. you "' it, the Workerll C(lIl1) claim
25 'I for her low back?
JR.
1 A 'hlt'l correct.
2 Q Okay. II there any r.lnlonahtp bet"".,.
1 h.r Work.r'l Cemp Injury and h.r neck patn and thl
4 hlldachll1
5 A No.
6 MR. HlJNTER: All rig'''. I no.. no
1 further quilt Ion., Doctor. Thank you.
8 MR. DeVnE: I.It'l go off thl record.
9 I n.ed to rlvl.~ th..e edditionll doCumentl.
10 (Whereupon en off.th..r.cord dilculllon WI' hid.)
11 CROSS IXAMINAI1DN:
12 BY MR. DEVERE
130
14 fir.. of .ll?
15 A Y'I, It look. \lke Irock.r, but Itlt
16 pronoc.n:ed 'rocker.
17 Q You fir.. ..., L..h lurk.y on April 9 of
18 1994; II thlt corr.ct?
19 A That i. correct.
20 Q And that WII Ippro;c imetel y two month.
21 after h.r ~tor vehicle accident on February 2l of 1994; It
22 thlt c~rrect?
2l A
24 Q
25 A
Dr. Brocker, em i proncu1clng thlt riQht,
Thlt t. correcC.
And you .IW her upon r,f.rrll;
rig'''?
_Igh..
40
,. Q And who w.. the referring doccor?
2 A It w.. I Dr. CIUIldt. WI need to look
:5 for the ... I dldnlt review that. Th. flrll quelClonraalr.
4 .n.. aha filled ou. aha probably wrol. r.f.rrlng phy.lclan.
5 I think .h. wa. 1..lng . nuNlor of phY"lclona, 'hough, ..
6 that time. Shl WII ...ing Dr. DeSantlt. I know h. WI' the
7 chlroprlctor. Dr. lay.r and Dr. Clltaldi. Dr. CI.tlldl wat
e prlscrlblng ManY medlcltlona. It wI.n't cl.arly written how
9 Ihe WI' r.f.rred, but cho.. wer. the doctorl. Under another
10 plrt of thl questl~ir. Ih. laid ahe WI' ref.rred by I
II phYllclon and III" Or. C.I..ldl. Tho.'. h.r faMily doctor.
12 0 Ok.y. ?non.. I UI1doree.nd ... aha would
13 hive be.n referred to you for I c~ultltlon; correct?
14 A UtuGlly eonlultlclon and treatment UIUIUy
15 goes .4 it eM" be just I consultation without tr..t..nt, but
16 It w.. ConlUltltion and tr.at.
11 Q Would you be conlldared her priNry care
18 physician, Dr. 'rocker1
19 A 11m not Rur. about the ."'ct. Often the
20 priMlry ell" physiciana, who Dr. CI.tlldi e.rtllnly WII,
21 when thlY Cln't hlndl. the prObl~f thlY r.flr to UI and
22 then ISIUDe WI will tlk, OVlr complace Clr,. I don't
23 remember IA,ctly. Some prt..ry care want to jusr hlv' UI
24 both Ie, Chi patients. But mare often than not. theylve
25 tried and they can't get it bitter and they r.1.r to us, and
BROCKER
NAGY-BAKER COURT REPORTING. INC.
Pages 37 to 40
DEP(
fION OF DR. ROBERT BROCKE
41
.wo and 0 nalf yoor porlodl
That ,. correct.
4]
1 Me tlk. oyer the compl.t. clr..
2'" 14 ..~. ,.lit '''''lIIIt 'tv 'ft ,,,...
'iI.... I ....... her
~ Fl....? \0.'. ';".1..1_., Sf'. g',;ktr1
-------
MA. "IIMTIiAt nhj..... I think Itl,
,. tMlB1 ..ktd .14 ..,au'Irld.
6A"------.---- ",.L do.. yw-_Il1-~I~r.
7.phYtld~~~a~.yll "MO, t~.r"1 . l~. ft' ~i"'r.nt
8~.Uon..o+-th... The ,,1..,,; ""1 1 lilt' U..
94ftysiefen pr."'.lls.l.!lC-Ah....,..J.. .8MIlgYQp I".. 'ha.AlrIIA,ln".
10 Q
Okay. Ltt', handle It thll way. Doe.
r.fllet how meny timet you .aw her In 1994,
11 'fOUr recordl
lZ Doc.orl
,] A Y", Ie do...
140 And excluding MRI., Cln you tell us how
15 MnY .1.... you .ow hor In 19941
16 A st. .111101.
17 Q How many .11110. did you leo nar In 19951
18 A lhrea .,.....
19 Q I. Ihol IncludIng MRlll
20 A No, that', .. oh, no; It WII two times.
Z,'Th. third on. w.. on MRI.
2Z Q Okoy. And how many .111101 did you 100 nor
23 In 1996, Doctor?
24 A
250
Dldn" '00 har "' all In 1996.
So It" my understlndlng thlt
the WII not
1 recllylne any tr.atment In 1996 for her neck and beck
2 c~l.lnt. .nd headaches; I, that correct?
J A The other phyalcian tr.ating her WIS Dr.
. DeSantll, .rd I understood Ihe needed to conttnue seeing the
5 chiropractor. I don't know the .xact datel of thlt.
6 Q So Ih. WII 1..lng a chiropractor in 1996,
1 but Ih. didn't r.c.iv. Iny tr.atment from you; Is that
a .orr..., In 19961
9 A I'm not c.rtlin exactly when Ihe IIW the
10 chiropractor. I didn't Ie. her In 1996, but I think the was
11 1..lng .ith.r Dr. Clltlldi because h.r pain WIS continuing.
12 I think ,he was conc.rned about the COlt of leelng me, I
1] boLl..o.
14 Q
15 1995, Doc.or7
16 A 'ebru.ry 21, 1995.
17 Q And then the next time you uw her was on
11 August 27 of 1997; II thlt correct?
19 A That Is correct.
20 Q And thlt'l over two and I half ve.rl,
21 ballCllly two Ind I half yearl between Ippolntments; Is that
22 correct?
When wa. the lilt time vOU IIW her In
2lA
24 Q
25 Burkey "II not
Yes.
So I will IISume by your Inlwer thlt Lelh
receiving any type of treltment from you for
BROCKER
JR.
1 .
2 A
] Q
And, Doctor, I'm curious It to whV you I'W
4 her on Augu.. 27 of 19917
5 A Wh.n the depolltlon WI' I' ked, I mlw.YI
6 llk. to .xamlne the patl.nt prior to depolltlon '0 I :an
7 belt understlnd their ,XICt condttlon and belt t.ltlfy for
8 tnot.
9 Q
10 examination for
11 A
12 Q
1] .n..
14 A
15 Q
Okay. So this W.I . predepolltlon
. legl' elll; correct?
Correct.
Now, you'r. part of a prlctle. group; Is
correct?
Well, my brother and I.
And that's c.lled Youngstown Neurologic
16 Assoc: lites?
Thlt il corract.
Okay. And do.. your, I'll c.ll II e
19 clinic or I pr.ctlc. group, allo have MRI clpabillties?
Ye..
And 'hroughou. .h. bo.lcelly .wo yeara
22 that you .aw her, you performed four MRII on her; II th.t
23 correct?
17 A
18 Q
20 A
21 0
24 A
25 Q
Y'I, that'. corr.ct.
And thl MRII werl tlken at your
42
44
1 facilities; II that correct?
2 A 1"1 oc.uolly . foclll.y of my fothor who
3 II now retired and under I different corporation, "p.rlte
4 from Youngstown Neurologic A.soclates. But It il an
5 Issocllte of our office, a Iltelllte office, you could ..y.
6 Q As I understand It, the total co.t for
7 these four MRls was $3,460; Is that corr.ct, Dr. Brocker?
8 A Well, 1"1 800 an MRI, 10 .h.t lound. like
9 I. would be rro..y clolo. I dldn" .dd I. up .epora.oly.
10 Q Now, you mentioned you were her tr.atlng
11 physician on numerous occallons. Iln't it truI, Dr.
12 Brocker, that you did not treat Mrl. Burkey .xcept to give
1] her medlc.tlonal
14 A I gay. her polturll lugglstlons and
15 llfal.ylo lugg...lon., bu. I dldn'. do phy.lcal Ihoropy or
16 do surgery on her, If thatll what you mean.
11 Q Well, 11m going to reld you part of Leah
18 Burkeyll P~.ylvanla depolltlon. Stlrtlng on Plgl 61:
19 "And you mentioned Dr. Brocker, I neurologist; whit did h.
20 ~o fa,. yOU?" Answer: "0r. Brochr, he gave 1M medication
21 for my migralnes.11 "Old you see him for your headachll?"
22 III leln him for my migraines and for III the prOblems I wa.
21 havtng up In my head and my .plne.1t 1I0ld he give you any
24 other treatment1" IlMedieatlon, MRI.II "And when WII that
25 MRI? Wa' that the one on May 26 of '94?" "I don't know
NAGY-BAKER COURT REPORTING, INC.
Pages 41 to 44
JR,
DEP<.
fION OF DR. ROBERT BROCK:&:
47
45
1 wnen It "I'." "How uny tlllles did you ,.. hlm111 "Oh, ,..,
2..ybo .Igh.." "Wh.. kind of .r...men. did h. gi.. you ..Id.
3 'rOIl Mette.clon?" IIH. dol.n't do any kind. HI nconmctnded
4 I 10 beck to ... Dr. DIVI, and Doctor glvI me . physical
5 .h.r.pl..."
6 Do you agr.. with her t.atlmony?
7 A . .nlnk wh.n you ..ked h.r .n.. quu.lon
I wh..h.r . do phy.lc.l .h.rapy.nd I laid I don" do phy.lcal
9 therapy, Dr. Dlv. DeSanti, II who ,he" reftrrlng to. He',
10 thl chiropractor. Ht do.. hands. on phYllcll therapy.
11 Q So Do.ically wh.. you did I. you
12 pr..crlbed medlcatlonl and offered suggestions; I. that
1] correct?
14 A Y.I, I tr'lted her contlrvltlvaLy.
15 Q And looking a. your r.por. d.ted April 20
16 of 1994, In fac., you pr.lcrlbod four dlff.r.n. klndl of
17 -.dleatlona for her on that oce'llon; I. that correct7
18 A V,., that', corr.ct.
19 Q OkIY. One "I' an Intl-lnfLemm8fory; on.
20 wa. . pain -.dIcit Ion; one .... I tedltlvl, and on. w.. In
21 antldepr...lnt; t. that corrlct?
22 A That'l thl general cltegory of the
2] -.dle.tlonl, y...
24 Q Iln" I. <rue .h.. Luh Burk.y qull golnQ
25 10 you Dock In 1995 DoC.UI. ah. dldn" w.n. '0 Do on .ny
1 Dedlc,'lon .nymor.?
Z A I'm not certain. We could laok at my list
3 vlalt. Thl Atlvan I gavI hlr wal . ledatlvl, wa. two pi 11.
4 to tlke the MRI, wal I tatal of two pi 111. The Elavll waa
5 whit I orlglnatly gave hlr; thatll a mild antldeprelsant.
6 Thl dOli. we USI of that arl not antldepre"ant. They help
7 .tgr.tne headachll.
a Q 11m looking at her testimony In her Ohio
9 dopo.lllon on P.g. 19. 5h. soya: "I didn't w.n' '0 QO on
10 -.dicatlon anymore. Thltll why I quit going to Dr. Brock.r,
11 bul I'. 'hlnklng .h.. I mlgh. ha.. '0 ga. ....thlng for .h.
12 poln."
13 Do.. thlt refre.h your r.calllctlon of why she Ito~
14 going to you .ftlr 1995, Dr. Brocker?
15 A I wouldnl t be Iwarl of why she stopped
l' going to me. Thlt would be her own decision. 1 mean, th.
17 belt medicine I, no Medictne; I would certlinly Igr.e with
11 ~Ir .entl-.nt. If she can get by without medicine, that
19 would be good.
20 Q Ok.y.
21 report, tf WI could.
22 A Ye., I hlVI that.
23 Q Okay. You IUtl in your conclusion that
24 she was suffering from bulging disk with nerve root
25 comprlsllon at C7 right, which II in the cervlcll spine; II
Letls turn back to your April '94
1 that corrlct?
2 A
l Q
4 A
5 IIcr""'.
6 Q Ok.y. Old you ra.ch .hl. dlagnoll. wllh
1 the lid 0' any )(-rlY' or "'U IClns at thlt tllM?
a A No; purely from neurolog'cal I.amlnetlon.
90 So you hid done Ibsolutely no tlstlng
10 yourlelf, asldo from your e.am, to relch thet dlagno.is; ts
11 that carrlct?
YII, that II correct.
And 51 rlgh', which I. th. I.crum?
Yeah, It's thl tower .plnt, jUlt abovI the
12 A Let'l took at when .. right. Thlt'l
13 correct. That'l from, Ifter flrlt visiting, clinlclt
14 .....Inatlon on April 19, on April 20, . l....r II dlct..ed
15 CO har hmlly doc.or abou' my f..lIng. aft.r .h.
16 neurological examination.
17 Q Old you r..low .ny pUI IIIodlc.l rocordl on
11 La.h lurk.y prior '0 1..lng h.r on April 1901 19941
19 A I w.. IWlr. that there werl lame X-rays
20 tlken thlt ,he had I fractured rib. She wa. In Intelligent
21 po.lln., and I go. n.r PO" IIIodlc.l hl..ory from h.r.
22 Q Okay. So thl Inswer to my queltlon h,
23 no. you did not review any palt mediclt recordl on Mrl.
24 Burkey; II thlt corrl:t1
25 A YII, that'l correct.
46
48
What II nervI root comprellton, Doctor?
NerVI root compresllon I. . compr'llton or
I nerve root. which II . nerve that lelve. the
1 Q
2 A
3 lqueez I n9 of
4 spinal cord.
5 Q
6 c~relllon?
7 A
And what CIU'I' thlt .qullllng or
It Cln be CIUSed for other "ISona. The
8 malt common r...on for that I. . bulging dt.k.
9 Q I want you to take. look It the MRI
10 r.pnr.. from your clinic h.r.. You hod MR.. done ?n May 26
11 of 1994, ..ar.lng wl.h .h. one on Ih. ..r.lc.l .plno. And I
12 wlnt you to tlke a look It the third paragraph where It "YS
13 there is lame flattening of the thecal .ac Interiorly with
14 no Impingement on the nlrve root and neurll foremen. What
15 does that mean?
16 A That mesns at that tevel, C5.C6. there fl
17 no cord comprl.slon or latlral ..tension of the neurll
18 foramen It that llvIl.
19 Q So that meanl there It no Imptne~t, In
20 other words, It thlt level?
21 A Thlt meanl at thlt llvll with thl patient
22 lying flat IS they are with an MAl, there II no Impingement
23 of the nerve root; that I. correct.
24 Q So the MRl that wa. done on the cervical
25 spine did not support your diagnosis; Is thlt correct?
BROCKER
NAGY-BAKER COURT REPORTING, INC.
Pages 45 to 48
D&:P<.
rION OF DR. ROBERT BROCK.
JR.
1 A In. MRI .. C6'C7 i. .n. one .h.. would nt~
Z the C7 nervI root Ind doa ahow . bulgl"l thtrl. 'he MIIII is
J porfo_ ."n .h. po.len. lying _. Wllh n.r w.lklng up
. ana .e....'''', d1 f '.rent ch Ingl h-wen that you can ... on
S the MIl thlr.. It lupported th,t ,hI hed but~ing dilks, '$
, I hid l.ald. It did Ihow thl bulging disk .t thl ."atamlcat
, appropt'l.u piece to hi t thl C1 ".rva root but did not :ahow
. KrUll c~...ton whllt th. patient 'tal lying doMn; but
9 I.,. well known '0 on~ w"n . bulging dllk, wltn
10 gr..I.y, If you II. down In.. dtak I. 1..0 bulging.
11 Q l&n'e it true that bulging dlakl Ir.
12 f.lrly conoon In Indl.!duaI11
'3 A At patient. glt alder, it does glt vary
14__.
15 g
16 or_.i_
17 A
11 In . 50-
19 .glng.
2D Q And you con n... bulging dllk. wi tnou.
21 Mrw t""lngemenci I, thlt correct?
Z2 A Thlt ,. po.llble. AI WI thaw with thl
Z3 ~l, thl nervI rooC '..v.. right be,lde the dfsk. It
Z4 dDnnl, tlte IlUCh bulging off to the tide to Caull; but
Z5 enttrlar bullt,. forw.rd NY not bl,..:I Into thl n,rvI roat.
And th... tin be c",,"d wi thour any
Incident; II thlt correct?
In I 30-V-.r old ~tltnt, probebly not.
or 6Q-y..r old pltlent probebly, ..ybe dlHI to
50
, Q Okay. 1 ..ant you to taka. look It the
2 ~I of .h. luobor Iplno ..kon by your _llnlc on M.y 26 of
] 1994. and ag.ln dlr... your ...on'lon '0 .n. 'hlrd par.graph
4 wh.r. It leye there II lome fllttenfng of thecal I'C
, ....t.riorly with no l~ing.-nt on the ner.... roou or neurel
6 for...". All oth.r dltk levels Ippea,. "or.l. Again,
7 Doctor, thll MRI doel not lupport your dtagno,ta, doea In
. A The t...r ar.. WII minor In Irrftetlon.
9 The carvicIl WI' .uch ~r. pr~fnent; and, Igain, the MAl II
10 done wf.h .n. po"en. lying down and would no' n......rlly
" be contrlry to the neurologicll findings.
12 Ct Woulct'll t you Igr"1 Doctor. thlt both the
1] MIll roporu thow no 1..,lng_<1
14 A Yea, I would. Wl<n tn. po.len. lying
" ftl\'. th. NCM.Itd hive no ner.... root t~lngement. 1 would
" agr.. with thlt.
17 Q Oleey. Tou alia mention tha 51 right as
,. h.~I", ner.... root c~rll.lon. I donlt I.e any MAls that
19 were t.ken on the I.cr~ or thl ,acral .r.a?
20 A The .natomlcll r...on, the L5 disk thltl,
21 liared thlrt would hit the 51 nerve root.
22 Q And .non If .n. L5 would nl. tn. 51 root,
2J I doni t IN any ref.rencl to thl LS on thl MIY 26. 194
24 report; Is thlt carrtct?
25 A At L4 end L5 there I, . thickened
BROCKER
51
1 poltlrlor longitudinal' I g.ment , which I. thl ll..-ent right
2 llol1ind .n. disk, probably IUlIg""ng .h.. i. .ill'" bulg. ..
J oth.r tlmal. lut on that pletur. with th. ~tlent lyfng
4 'l't. there ..., no bulaing dllk.
, Q Ok.y. 00 you h..... the questfomatr. thlt
6 Mrl. lurkey filled out 'or the tppotntmtnt nlte of July' of
7 19941
a A YII.
9 Q I "Gnt you to turn your .ttentlon 10 P.,.
102 of th11 quettlamefre. 00 you h.". thlt, Doctor?
11 A YI', I do.
lZ Q It I'y,: Plf.le d.lcrtbt your condttion
13 or pain. first of aU, i)octor. thi, il . qulltiornelre
14 th.tls completed by the pltlent. Leah BurklY, hlr..lf; II
15 thlt corrKt?
16 A
fhltll carr.ct. Thatll hlr handwriting
11 we're looking It. Okay.
18 Q When Ihe delcrlbes hlr condition or pain,
19 Ihl "Y' .Igr.lnes, ""'*'nI1I down 11"11II. lq.; no ,..ling In
20 th. firl' and I..ond dlgl' of rlgh' hand; do you I" th..?
21 ,. Oh, y...
22 Q How far doe. the pain rldl.t.?
2] A lh. f... and .h. flng.r..
24 Q And ,he goes through with III th...
25 ather cGq)l.lnU. "How long h..... you had thlt cordttlon11f
52
1 She put. approxtmetely ftvI we.k.. Do you 'Ie th.t, Doctor?
2 A T.I. I wonder which condition Ihe'l
3 rlf.rring to, hut I do .Ie It IMYI .pproxim.te'y flv. weeks.
4 .
, o..uu...... ""~'" it', ..", UAtli'lttA .tI. JUle
5 ._4. i~l. I.. 'hi ",,"iawI ,I".gr.ph.
A
ilia 1II1YTIZD. nhj....,.I~- 11 c.~U,,''"'tar
'7 _p--'" ~"i^", ..... .h. p..... ft. to"" O<<'r~r rt'i.....t'~1I ,..... 1ft. ....
A-..Lk.lng-.bo<lf --
9 A AI her physictan I tr..ted her ..rlier,
10 ,nd shl had .U, or ..peci.lly the nunbn... right to tho..
11 fln,er.. 'r~ my Ixamlnation 0' Aprtl.
12 Q aklp 8~)0I:I ..ould di 14'. u ..I ,It ".... Ihe
1.1 ~t deWA, ttll' hi" 1...1111.. un 'Rly 1~~~."I~.al.,. fl....
1(' ..--1."1 " tRII URal 'r'.w'., ~.i'fhg?
1~__ liD WIIYTU. 8h;....L. "rg~Utlvw.
16 Q Would you .gr.. ..ith hlr It.tement thet
17 h.r condition ..a, only .ppro.l~tely fl.... ....kl old?
18 A I'll not lure which condition ,he ....
19 r.f.rrlng tc. 5h. ..., h.vlng mlgrlloa headache. when I ....
20 her In April earlier.
21 Q Ok.y. WeH. llt'l turn your .ttentlon to
22 the bottom of the fonn. "I, thll condition due to .n
23 Injury?ll IfY..... "If yet, \R:Ser whit clrcl.lltltancll did the
24 injury occur?" She hIS In Ie by lutomoblll .ccld.nt. "O.tl
25 of injury?" "MlY 20, 1994.11 IlPl..se describe the
NAGY-BAKER COURT REPORTING, INC.
Pages 49 to 52
l')a:P~
TION or DR, ROBERT BROCX&
5:
1 whir. needed; but:
a In f.r, situation.;
55
don't actua~l'f ever look It thac IXCept
and In this clse I didn't look Ie tt.
1 Incldon..,
2 Do you
] A
4>Q
s.-..-__~.,~
. -'-
ttSOlleOne pulled out in 'rant of ..."
... thlt, Ooctor?
VII, I I" thn. ,."C', rlatu: h.r..
A~'1 a~ .h. A..~~I~-1 ..~ r~~lplon due
GA ~'Y lQ.....o.t..1994?
Mft W' liTeR. Sbj-'tl.::... 'owl" WI ty,n
Ldf to". fIlM. '\-1". 'gr I _I......,
S rh. <r....1tV\1"'Q .__ In ha ...1..,...... .... I..:r.h lu""'"",',
......... If .hll. ..'" ."'. tilL...d _L ."11 qulltlomllr.. ena It
10 N8Uhll In IMPI .11111'.11'.... .. .,.n1 TV'-'-" 191- 9""",-v .h"'ut
,. Ii.. .1...1. .., _1.t4 fit.... ....., Dr 'r90;\('''' Wall II --1
11 ...tffl'ld .'I"I..IAftrl~ .ha. .h..... 1_ ..~rama ..r.
a.,rtll...1 ,rtt~ to t~. I".V ", I..j....y. .-4 .1011 ,,1d"ttarff1'lQ I,
14 .....-1.,. ...,,_...Iu. 1ft ..aturA arvt h. ".111"0 tnr
'5 ap--ula.I""" _ th. pal" ft' th. ..I._a. ".g...rtl..V ~k.. 'hi
'6 ......,. If .1... If . ,," h k4~ _ u"'t ;;1- 1117' Ut:ltA the
1~.."PH.UI. en,ware to ,p'III'il 4_...tl.....-trr'flf1.
1~-..1~-1~""': 'ft. I ...... ROt ':)ell".,. '''It iii, ,,.r,,.rtatt '01" 18
19 g,. I,.aka, ta.. "'III,t", ab,wl L.4t. .~.kl,'. ,tatl .,
2ft .IM.. "i'I WI." Ioi." put in th'. report.
2+----' MA. DIVI:R8~ In r.-;;iontt. Or Ir.-It:
22. .Lr.___..tlfl~ .h....ft. ~ta ...1 "\fl... _'181' ..U-cal
aa.,,~. - ..... I....~W' f~.t ,.... .....1. I..... ..;. f..... .nd .0
~h .~ t... Mr.. Iw,k~ ~Ir.alf. ~ th, hi. t'll,~ Ihlt
Z5 <r_.tl~~I... 9'1' f,." ".. I.. .... .......-... "r n.. II..",..".,.;
54
1 _4 I.... _.1.1... 1.1. ..uh..1 "llf~lfll. 'Itf, ,.._...1.........;....
Z AI.I..I, I.. ~..I_l, ...li..4 _. I_IM.I..II tLI' ',nUI,nt.
]
"'A.IIWNT&A. lill f'rr,h9'" OjI..,.I'" .nd
4 -Jeer Dua'... th-...I. ..
...... '.............1...... .........11... ,h.,..l. no
5 tenfIPQA'; th&. D~'oMefI-f"'i)taillld 'hf. WI." h, ..id en
6 ..--tR'ItOR. 1~1Ifll.1 'Y. I~ ~t....,...ly ~ ....I~
7 r~ng ...... I ...h .II..It~I. .f.t. of IIIlnd "IS when ,h.
I fill.... _I. 'hi. <r-,III'V'iI'UII,.. r\nlv Dr" Ilr"ocll:el"" history
9 t~~~ ~. tftAlr I,.",. 'h. patlant dtt.C!~Y i. r".f.rr.d fn by Dr.
\Q..Irocllu..ilWliLnlU..' .
11 MI. DIVEAIiI lJ~.r Lt"'. II" .......~ an
II ,.I,. ,....4.lI_
1] Q Dr. Irock,r, we lIIIer. looking It I
14 quoa'lonnoiro do.ed July 5 of 1994. Do you r..iow .n..
15 quettlonnafr. prior to teeing thl patient on thlt dlte?
16 A No, I don".
11 Q Why It thlt queulom.lre uken?
18 A OUr .ecretarl.a her, con,truct the
19 t'fPllWl"hun p.r'lInph on our hl'tl)ry n plty.icll Ihe..t frem
20 tht, quettIQlY\ll'r.. It', the upper peraguph. It would be
21 pr"ant or II pr..ent In the letter that'. written to the
22 "f,rrlng physlclln on th.t dati. That t,uer it
D constructed In th.t I Ilk thl JMtittnt mys.lf, queacion them
24 -raltl, In the ..aminlng rOOll ard fonn my awn opiniona. I
25 do IIl~, over whit is typed up and then further quest i on
BROCKER
JR,
] Q Now, Ooctor. I want you to turn to your
4 report ot OctoCor 5 ot 1994.
, Ai Yel.
6, Q flrat of .ll, do you hive th.t report,
7 Doctor?
IA
9Q
10 .ddreued
11 n.?
12 A
1] .no. time.
1.4 8
n \.1._1 1111I1
'I'll, I hlv, It.
first 0' Ill, Doctol", th.t report II
to Mlch.el J. ,.ldmln, Attorney .t l.N. Who I'
H. I, In Ittorney thlt L.lh hid 'n Ohio at
'M .t.. iii. v'''tWIt' I ,.,IPI fl'. '1'14 It
16
MIl MY"TiA. GIIjl4,lIh.
.tan" .1.1.....1..
17A
... 1il11"'~D. 5....~... _ T...._ """, thl
19 t.p., ~l.....
20 Mr. 09Vtr. It ....'hAI". 'hi IIIIt1fLu, fllarlll.., IhI
21 r~I"""" .....r QUllb,1" I. 100~. I ......tll ,.JII' .. 'hi .nUnt
22 tM~r_O.V.'__i..Hki-nt 'or hurta, II.tl~., dUUl lJ1at
23 Mt4tlul r'l&... _, "1..1 u'u4 .0. S. 4_~~. .. .d..L I.. n_1
24 bawa ..~-,t.-1 I j\ltT t1~ till" itV' 11''',1''. fir.. II IU,
25 l~ . p""f'A" '.....-1..1_ .. N ....'ltt ~~"'N. .1~lr u....-
1 cau&ed..Or IIr9C:tc:4r tq ...,.It. .hl. .,....1....1 "r report.
56
2 M~\~~i. C.".~1aG1c-on..-
] Q (BV MR. DEVERE> Or. Brockor, wh.. cau.ed
" you to >>1"1 t. the report of October 5, 19941
5 A I IlII not cOII'pltt.ly clruin. I beU.....
6 thlt the patient ~y hlv, told.. that .he h.. an Ittorney:
7 would J pll." writ. . .ummery to h.r attorney. We could
8 "ll"ch the chlrt. Ther. pr~blv I, . relel" to her
9 attorney, and probably It .,k, me to write I description of
10 her medlcll .ltUltlon to her prlsent attorney. I usually do
11 thlt for patients.
12 Q OkIY. Now, Doctor, lItis loak It the
13 I'cond plge 4f your report, at thl list paragrlph on the
14 lecond pogo.
15 A ''', I "' H.
16 Q It Slya here: "Mia, Burkey.... IlIn on
17 July 5 of '94, .t whteh time Ihe r,llted thlt ,hi hid been
18 In another lutO Iccldtnt on MIY 20 of 1994." Doctor, Ilnlt
19 It correct thlt the flrlt time Ih. told you about the Mev 20
20 of 1994 .ccldent was on JulV 5 oi' 19947
21 A V...
22 Q -.~t--" 18"11I' ala. I~" 'h. fI,.. If..
2] .h... 1-" ..~...ally ....... .4..__...- ,.....'t.._a......y ......I..g .hrouuh
24 Mill. ..., h..,. _pi..., HI' 9R "IY i~ ,.. 'OQ~1 1...1.. 'hit
25 .....,..._...,
NAGY-BAKER COURT REPORTING, INC,
Pages 53 to 56
DE PO
:ION or DR, ROBERT BROCKE~
59
57
Mh-ttUNfiAI I i~ -':"j....,,: aM Sit' oft
Z ....h. .._.....14 pl....,.
] II.. II'-"Ian '"k. f........I.~. ..... I would Ilk .n.t lb'
4 __lon-....,.........~_IooI-I_ w.. 'b, flr.~1lao
5.,.. 'I'~IFM uui.At-t,o bt 4oNr-"..."t.. thlP' '''IR 'i" H.S"'tI
6 a41_11,. "iii, Jhe-4... '''AI '""At ....; It.... ~ftA ~......,..t-1
1 prhp It tit. MI'; 10. 100'1 .uIV_...._. ~y.4..a.lev.ant;
a VId 'lIthOId th., "'''''fliAI 'h.,,', . Luk If "t.at4d.tl~
9 regardfnv-th. "., 1I,.. ......_Ll_. t1*.l. b...,'....t I... Ll" ...11........
10La. th. p.....nt' .'mA.
11 MR- PI'liRII ,. M~k ."..
12 Q (BY MR. DEVERE) Doc.or, wh.n ... .h.
13 flrlt time thlC "Ria Wlr. Ictuelly done on Mr.. BurkeY'1
14 .plno .. your clinic?
15 A on May 26, 1994.
16 Q And .h.. would h... bo.n al. daYI .f..r
17 hlr lecond DOtor vehlcl. Iccldent; f. thlt corr.ct?
11 A lh.. I. correct.
19 Q So II I. .lao corr... .h.. you did no.
20 h... In your poll.I.lon .ny MRII prior '0 May 20 of 19941
11 ..It UIIUT~D. I ......J..... 1.1. Mil"
11 "~M 'R~ IRIUlF'lliI. YeW'VI Iw..lor ~..ttfoR~ tk, ,,~........
2] . ..... dl.~4 1I~. fl.. thl' ht mid. In ulMfa...,.... uhhl'lrol'" ..Drs
24 MArIO" .0 ,-.. .... -..1... .. ...u.g.......I. "I ,...rut,..1 ,.11.., '"Jl1ry
25 tl~ 1..I.t'A~'. 10 I~
1 b.... _.~..~ .., id InlwBred.
2 Q ~... ~"t..~ ,,~ lIuwer.
] A Th. flral MRI w.a porformod on May 26
4 after the .,cond minor IUtO Iccldent; thlt tl true.
5 (Whereupon In off4the"r.cord dhcullton w.. hid.)
6 MR. DEVERE: Can WI uke I moment off
7 Ih. r.cord?
a (Wherf\4XN'\ In off-the-record dllcullion w.. hid.)
9 Q (BY MR. DEVERE) Or. Brocker, we were
10 ..lklng .boUI .h. reporl of Dc.ober 5 of 1994. 11m going '0
11 turn your Ittentlon to PIge 3 of the report, ple.I'.
12 A Yel, I hive It.
1] Q Could you look .. .h. flrl' paragraph?
14 You Itlte, first of Ill, that Ihe hId In Iggrlvltion of her
15 prevloul Injury; h th.t correct?
16 A That II correct.
17 Q And the Iggrlvation. I
18 be thl aggravation caused by the Mav 20,
19 thlt corrlct?
iO A That II correct.
21 Q Okay. You ILia state thlt Ihe hiS nerve
22 cemprlllton, nerVI root comprelsion at C6, right? Do you
Z3 ... thlt, Doctor?
24 A
25 Q
would ISlume, would
1994 accident; ts
VII, I do.
Doctor, would you agree with me
that that
NAGY-BAKER COURT REPORTING, INC.
Pages 57 to 60
BROCKER
JR.
1 I. . now finding?
2 A y.., I _ld. Tn. orlgin.l w.. ju.. C7.
] In.. wal . n.w finding.
4 Q And, In flct, turning to the fourth
5 paragraph of that page, she wa, complllnlng of right arm
6 aching Ind pain. Would you al,o agr.e th.t thlt wa' . new
7 c~I.lnn
I A You a.ld rlgh. arm?
9 Q C~I.lnlng of rlgh. .r. .chlng .nd pain.
10 A That" been what shell complllned of .v.r
11 IlnCI flrlt hlYO ,e.n hlr. .ight arm, .chlng, pain,
12 numbnesl, burning.
13 Q Maybe you Cln 1..llt me Ind point out In
14 your prior report I where that wal noted, Doctor?
15 A My orlgln.l .1111 of April 19, .. I.y, Ih.
16 complain, 0' numbne'l of her fingers. Thltls the right
17 f1ng.rl. My orlgln.l ...mln.llon w.. finding .'/ft'Il''''' of
18 nervI root compresllon 'rom the neck down. We cln go
19 through her orlglnll questlonnatre, but It I.Y' pain
20 r.dl...1 through h.r n.ck .nd Ihould.r.. I.,. on .n. right
Z1 Ilde. The nurtne.. of the finger. wal from the shoulders,
22 redla.lng from .h. Ihould.r. '0 Ih. flng.r..
23 Q So whln you mentioned It the first time,
24 you meant from the neck all thl way down, In other words?
25 A When I ..Id rlgh' C7 hyp.lg..I., .h.
58
60
1 dermatome runs 'rom the base of the neck out to the Index
2 and mlddl. flngar..
3 Q Doctor, I want to turn your att.ntlon to
4 your second round of MRII, which were tak.n on March 8 of
5 1995.
6 A YII, I have them.
7 Q And hnlt It correct, ltartlng with the
8 MRI of the cervical Ipine, they alto do not ,how any nerve
9 Implngemen. on .h.. MRI?
10 A Yea. Whh .h. pa'l.n. lyIng down fl..,
11 there was no nerve root compre'llon. That would m.ke .enl,.
12 Q Okay. How .bou. .h. MRI of .h. lumber
13 aplne; Isnl t It correct thu the conclusion of that MRI done
14 on March 8 of 1995 by your offlc. II .h.. I. w.. . normal
15 lumber Ipln. MRI?
16 A The original one was lilted I' normal In
17 ~arch 1995; thltla correct.
18 Q Okay. In foCI, .h. MRI of .h. lumber
19 Iplne does ~t even Ihow any bulging dllk whltsOlyer; II
20 that correct?
21 A
22 I.
2] 0
24
25
Yes. Agotn, with the patient lying 'lit,
did not show I bulging dllk; thatll trul.
Okay.
MR. DEVERE: Go off thl r.cord.
(Whereupon In off. the-record ditcussion ..a. had.)
DEP(
-
rION 011' DR. ROBERT BROCKE.
JR.
61
, Q Now, Dr. Brocker, I Will'il to turn your
2 alun.lon 10 Ih. ouo,"onnolr. d..ed AlJilu" 27 of 1997.
] A Yo..
4 Q And Ilnll it carr'Cot thn this
S questlonnalr. w.. compl.ted by plaintiff, Leah Burkey?
6 " Y,., it w...
1 Q Turn your attention to Pagl 2, It ..ys:
. liAr. you presently working?" 'he put no. Did Ihe ...plain
9 to you NhV Ihl w.. not working at thlt time?
10 A I un hypoth..ht for thlt, but I didn't
11 .peclflcllly ~. I don't review tht, queatlonnnir. prlcll.ly.
U Thle cr.at.. thl ptlragr.ph thltll on our "lstary and
13 plly.le.l, and I quo..lon .n. po.ion. fr... wha. I ... .n.r..
" With III'f IUlllnatlon of her I can hypothesi.. why 'he
15 would no. be workl"ll, bu. I dldn" .poelflc.lly uk h.r
16 _.1<.
11 Q WIU, we don't wlnt you to gue.., 10 I'll
18 _ on 10 Ih. "OX, quo,"on.
19 Turn to your lttt.r of August 21, 1997. Doctor, can
2D you 1.11 us who you propored .hl. r.por. 'or, fin. of .ll?
21 A J prepared thi, report for the p8tltnt, II
U I .lw.ys do.
23Q
24 10 Da.ld L.
25 A
Then why I. .n. oddr... block.. .n. 'op
"I.I'\ter, Jr., Attorney It law?
It'. my practice, I trllt patients and
62
1 I'LL do thing. to their Iuol"ney. for them speclflc.Uy; but
2 I e.rlalnly would no. do I. .poclflcllly for .nelr ...orn.y.
3 I would do II for .h. po"an. only. I. "Y' reg.rdlng Loan
4 lurkey. I .....Ined her bofor. thl. depo.I.lon 10 I can be..
5 oaplaln Ih. f.c...
6 Q OklY. Now, during the first plngrlph she
7 Itet.. that ,hela .llo hiving low blck pain thlt radlnes
I down .h. dor.ol...r.l ..pocl of h.r rlgh. l.g. WOUldn't you
9 ..r.., Doctor, that thi, f. . new complllnt?
10 A No; the dol"lolaterel ..pect 0' her lower
11 let would cornlate with IfrI first time I I'W her. Right 51
12 hypalgl.ia would II"IvIl down the dor.el l.peCt 0' her right
1] log '0 .n. foo..
14 Q Okay. So th it h another one of thlSe
15 tl"lvelllng coqJlafnts thlt goes from one end of the body
16 down to thl toe. Lik, you ,.Id the flrat one WIS from thl
17 Moulder to the hind. Thl .econd one WI' from the back
18 down '0 .n. ..
19 A Right. It travell the trecle of the nerve
20 frOM whlre the nel"ve ftIIINtn out of the Ipi ne down to where
21 It ft. In the foot or the finger; thatts correct.
22 Q Okay. You Itlted that ,h. Will slpanted
21 frOll her hUlband at that time. What did ,he till you in
24 thlt r",rd, Doctor?
25 A I dldnlt find that relevant for treating
BROCKER
6l
1 n.r Alodlcally. don'l know any'hl"ll abou. .h... In..'.
2 plrt of the loci.l hl.tory welre 1000000whu required to Ilk
] and per. of tn. locl.l hl..ory which II ..kon In g.neral
4 medic.l carll but It wcx.tdn1t be I relevant hctor for 1M
5 treilt lng hlr.
6 Q
7 In that regard1
IJ A No, I dtdnl t Isk her
9 on her qullrlo".,.lre ,hi put that, but
10 about Ina..
11 Q OhV. You state In the lilt plrlgreph on
12 Plge 1 that her gilt WII norllll. What do you .In by gli t?
13 A She did not demonltrue . we.knell with
14 walking In her tegt.
15 Q 'tau ..Y no other deflcl u wore 'Ien. What
16 do you meln by th.t, Doctor?
17 A I ...an I did. c"""lot. neurologic
18 Ixaminltion lreI thl positiVI finding. wlr. mentioned abovliil
19 Ird I didn't tind othe" on the neurological l"am'Ntlon,
20 atlter thin whet" mentioned lbove thlt.
21 Q And your ilt'pr,slIlon I. trll.lMtlc cervlcll
22 dllk dl.pl.ctmonl and cervlc.l redlculopo.hy .nd luN>or
2] rodlculopotny. Thll I. th. fir.. "me I'v. ..en In any of
24 your reports, Doctor, the UII of the t.rm treUMtlc cervlcll
25 dllk dllpl.c....n.. I. tn.. I.....hlng different 'hon th.
OklY. Do you remember Wilt Ih. cold you
abou' .h... Probably
I didn't question h.r
64
1 bulging di.k you d..crlbed in Oe'ober 0' 19947
2 A Thatll .ome .. the terminology changed a
] little bit. It 'I referring to the .ama Inatomiell. It
4 would bo ldon<lcal '0 my finding of bulging dhk; bu. It
5 would refer to how the disk became but Sed, WI. through
6 trallNl.
7 Q So the firlt time you used the tel"lI.
IJ actual terms, trlunltic cervicll dllk dl.pllcement, wouldnlt
9 you .gr.., Doctor, wla on August 21 of 19977
10 A Yo.. In. urmlnology h.. cnonged now.
11 Thetis my term that we hive In neurology cirCle" have uaed
12 dl.k dhpl.c....n. u oppolod '0 bulgl"ll dhk. It could be
13 lurbe,. disk displlcement or cervical disk dlspl.cement. but
14 thlt'l the term which correlat.s to the number. that well".
15 to be using for dlutS" It this time In medicine.
16 Q Okav. Doctor, you st.te thlt, and YOU''''
17 mentioned this a couple times throughout your depolitlon,
18 thlt sha wla involved in I mlnol" IUto accident and us. your
19 own words. minor auto accident, In May of 1994; II that
20 correct?
21 A
22 Q
23 was Involved
24 A
25 under"lndlng of
That II corrIe t.
And who g.ve you thl, infonnation that ahe
In . mlnol" lutO Iceident in May of 19941
80th the pltlent and lIrV Ixamlnatlon and
finding. I Ctml to that conclusion.
NAGY-BAXER COURT REPORTING. INC.
Pages 61 to 64
DEP'
nON OF DR. ROBER'l' SROCICE.
65
67
1 th.re for, J th I nk wt ...r, there lor .~t 'our or , Ive hour
2 toul. 8y thlt time I had talked to rnv oth,r doctor.
] could 'tOt. lot 01 pain in I lot of .rea.."
4 "Wer. you given any inttr-uetion. ... 'ar .iI .~I' ~W.ll.
, neck br.CI w. h.a to wear. I had to war I Mek bra.:..
6 rhey g.v. me Ic. pacu tor Ifrf n.ck. I don' t r~r .,
7 thor. w.. any medication or anything .l.e ..Id or done."
8 "W.r. you instructed to follow-up \IIfth 'four physician?"
9 "Ch, yeah." II~h.n did yOtJ do thlt1" 11Th, Ml'lt day." "And
10 yOt.l 'ollowed up wi th who?" "0ay, DeSantis," Itls he .
11 chlroprtctor1" IIYe., in rthlbtllt.tlon.1t
12 1100 you know who would haYI driven you to thl doccor"
1] ottic.'" liMy husband."
14 "00 you remember ~at you told him?" "wen, I rlllMtmber
15 whar: h. ch.cked, my "ecok II1d my back, my hip on the l.ft
16 side, "" arm on the l.ft side and 1 r......mer having _ really
17 ad h.adAch. because h4 had to turn the l tght off in the
18 room 10 I wouldnlt have th't l tght shining Into"", held.
19 donlt know It it was rib pain or It It ..a. beck patn beeautl
20 realty sometimes I unIt: dtsttnQUlsh IIV ribe whither they're
II bad or IIItd-blck but It was that Ir.., tor Icme re..on II",
22 thinktng thatll my calt too, but Jim not sur.."
23 uSa youlre still ...king treatment for Injurle. from
24 19941" IIFor tffY nick, mv neck and mv rlbs.ll
25 "lIlght. They'r. not really lurl what hlppentd ther..
I Q And ""a_ do you moan by ,.tnor1
J" CllUling tittle trlUNl to thl occupanu.
J Cl And you laid Ihould h4v8 r'lot'led within
4 ,i~ eonth' to one y..r; I, that correct?
SA Thlt il corr.ct.
, Q And that IllO would have bftn baled on the
1 Information she gav. you tnd yOLr own finding., Doctor1
. A And on the neurologic,t 11Ilamlnetlon tnd
9 Ira her hinory It would h...,. btten balled on that.
10 Q I want to r.ed for you lome .xcorpu from
11 her dapoliclon ,he ,.va conc.rnlne the Ohio Ictlon, and then
lZ I went to Ilk you I' your ~Inlon hal chlnged onCI you heor
13 wh.t the t.ltltled to; ok.y?
14 "Mr. Uhrolt car c... oft the aft rlq) at 1.76 and juIU
15 drove right etrlight IcrOll, .nd w. Ilammed into the .Ido ot
16 hi. c.r, the drl",,"'1 eiefe of the c.r.H
17 ''When w.. the 'irat time you IIW Mr. Penn', car111 "I
,. think It WI' right Mtor, we lIM.hed into it.'1
19 .could you doacrlbe who. hoppened '0 you upon t",,"c,
ao whll. you were tn.ide the vehicle? Were you thrown Iround
21 Intld. th. vehlcl.?1I "I just, Will, 1 WII ...tbllted In.
n ...fcally It "I.' jun up to the front and back to the bock,ll
n "Your heed dldnlt hit the window?" liMy knees went Into the
24 dt.ha My .qla.... got knocked off on the windoW.'1
a "DId you ha.o any Ill1l1Odla.o physicol c,"",latn.. rl~h.
1 afte.. while you were welting for the poUCI?" "Ch, YI.h,
2 yeah, I did. My neck w.. real bod. I hod a roally bod
] hledeche, end My left .rm "8' both.ring M.II
4 NAnd someone called the .oul.nee from thl Icene 0' the
S accident? "I think tomeone celled the pol tel, beelut. If
6 1 '. not .I.t.ken, thl pol Ie. were there before thl
7 Mbullr'lCl.11 "How long before the eabJlanc. errtvtd, if you
I r.....,.'.. J donlt h...,e any. no idee.11 lllut you werl taken
9 fr~ the leene by anDJlance, though?" liVes. II
10 lIQo you rlftltCllber If th.y .valulted your beck or did any
11 ex_lnation of your blck It the tlme?" "5... I rtmefftter, I
lZ r_r ho.lng I.... X-roys done. I r_r being on a
13 beck board a J remenDir havine I Mek braCI on. I rementMtr
14 .ekint for I phDnll 10 I c:ould clll ""I doctor becau.e my back
15 .... hurting and I Wi'll strapped down to the back board. I
16 w.nttd him to tllk to, you know, ~ doctor. But itls like
17 in detail what: thlY did, I don't remttrCtr."
1. HI told him my back W'I ,.llll'1 Itartlng to hurt and I
19 had been tift on I back board tor almost two hGY,.s Ind
20 couldn't stand tt anymore. I WBS crying and just wanted up.
21 Thl _rgency roan doctor hid 10 many people thlre, I IMln,
22 he lpent ..'tOe five Illnutes with mw. I nev.r seen him the
Zl rut of the time. I WII llying In the hallway on . beck
24 ....rd..
25 III had luch . migrline tnd It WB.n't until I WitS laying
BROCKER
JR.
66
61
1 Wh.n I WII in the hOlpital in the '1 rst accident thl K.rays
Z ond ..ulf .hay .ook utd rlbl ftvo ond alx. Then otter 'hla
] napponed, .hoy laid .noy ware healing o. 3 Inrough 8. Bu.
4 then rrf'I ribs ltarted popptng out 0' place~ I ne..,er hid them
5 pop out 0' placI after the Itrst accldent.11
6 11M geuing toward. thd end, Doctor~
7 IlDld you have low back pain?" """, yet." IINICk
8 pain1tl ""e., ye..lt "And you rec.ived treatment from Dr.
9 D.Santis 'or these Injurl..?.. "YIS~1I
10 "Would you conlidlr them limllar cDq)lyintl that you
11 had tn this accident? "Yes, other thin my n.ck WII mort
12 .ever..1I "But the beck petn WOI pretty much limUlr?" Nit
13 WBS, It was slmltar Ixcept I noticed it was up higher; Ie
14 was more like my mid-beck."
15 nWhen you Injured your back, did you conlidtr yoursel'
16 he.led; or would you have con.idtrtd yourself he.led .. t.r
11 81 c~l.intl tram the accident of May of 19941 IIOh, no, I
18 elways had headache. II'ld neck probll:ml and blelllche. at
19 work. I had to wa,. . b.ck brece. tlThls WI' constant frem
20 May of 1994111 "1lve Il...y. had to u., . ,elt tn tltf car;
21 live alway. had to use . special plllaw to sleep on, and
22 live 8lways had to wear a back brlce since the second
23 accident when I work."
24 lIl~ould you consider the n..turt 0' your injurlts you
25 received in the February at 1994 accident Ind the tr.atment
NAGY-BAKER COURT REPORTING, INC.
Pages 65 to 68
DBi'C
:ION or DR. ROBERT BROCKE.
71
)'aU received ~ Or. OeS."cll, Or. Brock,r following thl 1~
Z '_Ulry accfdent .imB.,. In nlcur. 0' the Injurl.. of th.
). Cr..c.-nc received frOllt Or. O.,."tll II'd Qr. .rQCk,r
4 '01 towing. Ch, MIY at 1994 ec:c ldent?" "~O.'l
S NOW. Doctor, liter listening to chit .< ....a I
6 epolotlll; it WI' ~.ry long, but Char. was. coupl. things I
1 ..-,ted to cov,,. daIS thu It III Chen". your opinion af
I ~.th.r thl MIV of 1994 accident IofOUtd be considered I mi lcj
9 accidon<1
10 A No.
n Q Okay. Why no'?
12 A Thac ICcident 111.' with her hining
13 .~thlng forward. She WI' hot.t~ 'rota thl ("Iun. by thl
14 Mhol, fronc end of her hood. 'hi other accident WI' .
" broad'lde hit with no protection 0' thl Ingln., hood ot thl
16 car. Shl w.. betted In Chi second accident. Without thl
17 prlYtaua Injurl.., thl second ICcident wouldn't hive been 10
11 probl..tfc to hI", 'ram"., undtrscandlng of it.
19 Q So you'r. going by thl ..
ZO A 'ha weight of the truck hitting her
Z1 c..,.nd to the weight of the Clr would have bien
22 dra.tlC8lly differenc In the ffrlt accident c..red to the
2l ...ond.
24 Q So Wlen you'r. de.cribing lit ld, Doctor,
Z5 you'" delcribing the actual Impact of the vehicles; thatls
1 whae you're delcrlblng?
2 A I'. d'lcrtbing the trau.a that would be
] placed to the occupanU of the vehicl., or to my INtient.
4 Q Now, you allo I'Y In your Augult 21 of
, 1991 report thlt th. .llo did have a .Ild low beck injury
6 that w.. under Work.r', Campen..tlon II noncontributory to
7 h.r current c.rvlc.l pain and probl..... Whit doc~U did
I you review r'glrdlng her Worker', Comp Injury, Doctor?
9 A Only IIkl", her, I understoad Ihe had 10Int
10 work Injury. 'rom when I "" se.fng her Chi lower back W'I
11 not IUCh of . problem. Ie Ill" noncontributory to h.r
12 .flr.I.....; and the Mjor pain and problem which I IIW WIS
13 her neck. Th. lawer beck wouldnlt contribute to tna neck,
14 II whit I .tlted.
15 Q Old she t.ll you th.t ,he h.d amargency
16 r~ trelt-.nt II I r.lult of the work.r" Camp accident?
11 A No. I WII d'llIng '11th what I saw hit It
11 thlt IDlInt. The lower back injury WII _inor It thlt time.
19 Q Okay. So I t Nil at that tl... II: ""n not
20 nee"I'" ty III nor when I t occurred; is that carrKt1
21 A I t appeared to be h.at iny to ma.
22 Q Okay. $0 It the time you "'" h.r ..
2l A On Augu.. 27.
24 Q .- on August 27, thlt Work,rll C~ accident
Z5 ""lch occurred in March of '96. W'I atill helting; il thlt
BROCKER
JR.
1 correct?
l A [~ \lfl.lftinor 1n degr.. It that time. (t
J appeared to be minor in respect to "ar ",,"ole f)ain and
4 luff,ring th4t ,hi Wi' having.
, II In respect: to the whol., Is that wh.t
6 you're laying1
7 " In respect to her personlt pain and
.lu".rl"\1, il whit I "'01 reftrring to.
9 Q Oid you know, Doctor, that Iho Wit oft at
to work ., I resul t 0' the Work,r" COII'p 1"ldent?
1'" l would certtlnly .. It', '0 connon,
12 lifting, bending It work aggravat., lower backs; Ind to aet
13 It to h'lt uluallv WI get off wor_ 'or thlt. Thltl, how WI
14 try to get it bett.r.
1~ MR. DEVERE: Can you go oil .n.
14 record.
11 (Whereupon an off. the. record dllculllon WI' hid.)
18 Q And, OO(:tor, gotng beck to this Worker"
~9 CoqJ accident, did you have WI opportunity to review a
20 r.port 'rom I chiropr.ctor, Robert L. Hunku., reglrdtng this
21 work.r'. Camp accident?
22A No, I dldn".
23 ......--~--I4e--....'nl.. tt II .... Iwt... RI' body
2~IJlII.,18....t1 i.lil... altll 1... ..... IMI... IAI ......
Z, t~il 1M'" ~..... ,'II,elslveti WI"', I". IRi, ,.,.,t ts
7D
n
1 da'ed-Ap,.,H.4~:..of.-....J..Q6.._.y-12.JQ.... .k. 1.1.. ."p-fOt_Ing
2 I.u.... I~ .......10 pal.. ....10.1..10. l;_glA tog n...tau GillR tier righc
3 ~.I" 'loot "II .111 IJtllll'h"liFl' '-WfRfRI I" h.f l4w b..~rand
",,*,wn..' .
5
MR. IUIYTJ:II. r.ft I.t. g" ..44 .~d
It triP' I IU4nd7
1 Q d;Wfl IRtf" Ihl fi,h' lilt.
8 M.R.JlUUEII. I ..,pUg Ie wai. wntll
9 r.' Ii",l.h-t .10.... .-'t~'t. IIldI I w...1 t.4 "jl4.t 14 the
10 qa....i....... ....I..'r'lQ .... .........,. I... .. ....p"'.... ..10..... 'h. .....~k.r
11 ~;..'I ,,,,.lWlI '-11_ .~ A..rUr ..,8 "In. ... Ihl fall thlC Ie
12 C.Atll.. d"1p.--- ,h.t .rt 'nrwll"~ 19 9Y~ clllm
13 C~......I~ .h. ftAr<1o .nrl n~ .r~kArl. t.....ft6ft. ..f phe neck.
14 1,1'. - h"""llaU obiltCtlon.
1~
MR. l)IuliAIi I I q .......p....... 1\.. ........"'r
lVitn-atrndy-tertH+ed-, q...Jl... bt~k 4..MilllifLU lull ..ha! hi
11 f......t~ I. . .l..[~, .,d "......,.-ertufng;.-tnt+fytne;-tft.t-Ih-...
18 w....L.... .. t_..... ....'ide... is MUCHlftt,......'OfIyT-I-4:ft.tM-h...gg..
19 tg the be.il for his opinIGnj..It'Id-rttftnk--t-4~..k 10.1.. ...-
20,autu.i.2r" in that- reg.rd:
21 Q (BY MR. DEVeaU Now, Or. 'rocker, just
22 'or the r.cord, you ~.r. not her tr.atlng phy.iclan for h.r
23 Mlrch 1a of 1996 Worker's Camp claim, wert you?
24 A No, I ""asnl r..
2S Q So you don't know ....ctly whit treltment
NAGY-BAKER COURT REPORTING, INC.
Pages 69 to 72
DEPC
rION or DR. ROBERT BROCItE.
13
1"5
1 Q 1 f hi. conelu.fon on physical .umlnatlon
Z wa. thlt thl neurological exam of Mrl. Burkey on Mlrch 29,
3 1994. wat nor~l, would that hlVI any .'f.et on tour oplnton
~ .oday?
5 A H. is In orthopedic: .urg.on. Hit
6 neurological IVllultlon would probably be dlff.rent than
1 mine or I neurosurgeon" would bI: and I think our
8 '~Gmlnatlonl could dlff.r, and I would want to form my own
9 opinion .bout thl n.urologlc Ixemlnatton.
10 Q Now, Doctor, did you hi..,. an opportunity
11 to r.vllw thl X-ray reportl from St. Illt.beth H,.Lth Clnter
12 which w.r. tak,n on thl day 0' hi' ..cond motor vehicLe
1] accld.n. on May 20 of 1994?
14 A No.
15 Q So you have never r.yf.wed any other , lima
16 I.,d. from thl filma, chIC you took I' ".rt of your clfnlc:
17 It that corrlct?
18 A Correct. Again, I would want to ,It the
19 actual 'i Ims and 10 J ha..,. not r.vlewed them or liked hlr Co
20 bring .h....
21 Q Okty. Were you Iwar. chit Leah Burkey WI'
22 r.terred to . Dr. Jorge Mlrtinel from Che Headache & Plln
2J Intervention on September 21 of 19941 Were you eWlre of
24 Ih.. fac.?
25 A No; but, ot cour.., knew ,he WI' hlvtng
t .... rendered or by whom; t I chat correct?
a A That II correct.
J Q I1klY. Doctor, now, your opinion here is
4 Chit sh. ha. craunatic: C:'l'vtC:lt dilk dhpllcemtnt Ind
, Clrvtcll redlculopathy. Do you con. IdeI' ch.t Co be I
6 po_. Condl.lon?
7 A Y.., I do. Th. bulgl"9 dllk tr... ,n.
. tr..... of the ..ccidenc will be perl1llntnt.
90 And hive you hed I chlnce to r.vl.w any
10 MAl r.port. other thin tho.. tlk.n by your clinic regarding
11 L.a11 Burk.y?
12 A No, I hev'"'t.
13 Q If I wert to Ihow you In X4rlY r.port
14 dated .Irch 22, 1994 from Mldwelt Rediology Conlultant.,
15 would thlt ...Iac you It Ill, Doctor?
16 " No. AI' neurologllt or I neurolurgeon,
17 would .lw.y. wan' '0 look .. 'ho original films '0 form an
'1 opinion.
19 Q So I f the,.. I. I report dated March 22 of
20 1994, ""Ich thows no .thet whatsoever on the disks th.t
21 you ho.. mon.lonod, you would no' f..l .n.. '0 bo n.lpful?
22 MR. HUNTER: ObJec,.o .n. lac. .n..
Z3 blted on he.rllY you'r. trying to r.ad the r.port Into
24 evidence. He'. alreedy .lld he relt.s on thl films, not the
Z! reportl; ~ you're trying to read lome hearslY Into the
1 record.
a A Those Ire lomeone'S opinion. 1 would like
] to look and for. my own opinion I' to whether or not I think
~ 'h.. dhk la bulging.
, Q Did you, Doctor, did you know that Leah
6 lurkey ..a. r.ferred to an orthopedic phYliclan on March 29
7 of 1994?
IA
9g
10 A
11 g
12 rood from you?
1]
1~ pi.....
15 In your queltion I objec.t based on hearlty. You're
16 r.t.rrlng to the opinionl at Inother doctor thlt Dr. Brock.r
17 hat not relied on In renderins his opinlonl today.
11 MR. DEVERE: I .nlnk 1"1
19 pr...ture. I hlven't lIked any queltlons.
20 MR. HUNTER: I I.W'Ideratand where you're
21 ,otng wl.n I.. Con"nulng objec.lon.
22 A His primary office i. In Greenvlll.,
23 Pennlylvanla. He ha. .ame latelltte offlclS cloler, which I
24 believe II'. cloled now. I understand hil primary offlc. il
25 In Grlenvllle, to my knowledge at thil time.
No, I didn't.
Do you know John P. Steele, M.D.?
Yel.
In tlct, isn't his office just down the
MR. HUNTER: Go of f the record,
BROCKER
JR.
74
r:hn time
76
1 quite sever. headachel II 1 "II leelng her In
2 porlod.
] Q
~ A
5 Q
Do you know Dr. Mertlnez?
No.
And If
first
he .tatls that she Ipper.ntly
accident, you ..ouldn't have any
6 recovered from the
7 knowledge of .no.?
I
9 to the hearsay Ind
10 luthor.
11 A Is he a neurologist or I neurolurgeon,
12 would IRk to be able to rely on his neurologic examln8tlon.
13 I'm lure he Is not I neurologllt or a neurolurgeon. I know
14 all the ones in the are8.
15 Q Okay. You've mentioned Dr. DeSanti., .nd
16 10 1 would assume r:hat you have It l..It lpoken to or leen
17 lome report. by Dr. DtSantls in your clre of Lelh B~rkey; I.
18 th.t correct?
MR. HUNTER: Of cour.e, I'm objecting
the opinion, In the report. He Ilnlt the
19 A No. Dr. DeSanti, il a Chiropractor.
20 would refer her to him If that wa. the occl.lon to do
21 physical ther.py to straighten, and I wouldn't .. hell not a
22 neurologl.t or neurosurgeon. I wouldn't be relying on his
23 neurologicll examination.
24 Q But you testified e.rller, Doctor, that
25 you reviewed his bills. Didn't you review hi, records with
NAGY-BAKER COURT REPORTING, INC.t
Pages 73 to 76
DE PC
fION or DR. ROBERT BROCK!
n
79
r-
1 hi. blll11
a A Ch, Y'I; (III well aWlre of ChI bIUI.
] know ~.r. hi. o"'c. II. fI'Il lOin hi, equipnent. 1''11
4 been tnto hi, offlc.. .tlOrl WI "f.rred people I wlnted to
5 10 .noro.
'II So your ItUlrnony fa thlt you did review
7 hll rocord. whh lho blll11
. A I ,.vtawed thl charge, Chmt he pllced.
9 ..I' Iw.r. of thl ehlrg. and thlt ..II all.
to II You dIdn't "vl,w the treatment r~t'l
11 ...oclated with the ch.rll1l7
12 A Ino .roo._. .hal ho II... II oil
13 1'.ll." to my knowledge; and, no, I did not.
14 II So you don't even know ..",t tr.atment ht
15 'I'" for tho.. ch",I'; 'I thlt corrlct?
16 A No; I .lld I know hI, typical tr.atment.
17 11'11 been to ht, attfcI. I know h,l. II chlroprlClor. He
18 trill to Illgn thl ,pine. Moll: trlltmentl Ire Ilmller, end
1910 I'. IWlr. of thl approach.. thlt h. ut., on III p.rl.ntl.
ze . A... ,_ ....... _, L1,.". 8_1..." I,. .., ..I... :,. ..
21 ,wt"#,. "'" J..... 1 ...r UlS, .fL.., 1,...4tl,'1iI (hi, p.tI4..t f4.
U 1I1. f.b.__, (l, 19'" .""I~tlL. "'.LI..'UC". '..'^"'.. Lv
2] I. .111."1 WII f .~Nb~-and"')1Ilpt'" t1tr'. dT....l'..'~
24 ~..If Icon. I " .lId ah....... '01".., ........................""" I
25 dIU'cu&..Ue----''''1 .tor i.lhiM.....-ideftHh.t ...,.:...'r_~ ..n
1 MI." In. tOO~ ......~tenlll,..ft.. -gg..,u~tloq ~f the
Z arlalnal ~nr.tn. It Is also mY oolnlon thlt the cowcal
] cfkk-4nJf.W.l.~.,:'. ..t likely nlat1'Cif ''1" t~. MQUr ...fH.e.t1
4 '.".1'11 l"It ...LJrrld VA ""y "0, 1994."
5
MR. KWN1E~....., "d II ko 10 10 off-
6 t1.. ,.........d.
7---Andi-egalft;-you'" r..dh~ opwlN'l. frf'llft nther
a .hll"tlPr.~t"I"'.. f........ ..hl.."'P...,.......... I....." ..~. record.
9 ..a nFVFIJ:. I tin,,'.. Itnnu hftu lfnu "an
10.....v that kit,....,. , Vol J"'" ~.d gr. Bralk." tf.~lIy "0 Dr.
11 D,t--..I.l hllJa.
12
MR. III1I1T!:D. 11.".1.....-1 ('l't~'r."
1" ..h...g....
14
ya n~U':D':. .......,..... h.......I.. ......n ."-n
15 11II\' .."'!tal rU<ilr4if, t'if l~.t It"lil 1I."lpg it I n~ ~,..t.,...ly
16 111r. ",. .."tl'J'''' If '/<ilU ~J'At U brlR9 ~I", fA II 10IM8M-
17 wlta "... -__"..rthe reClardlM Dr. DeSanthl~....L think I.
18 M'l Ilk hl"lil ~'_dfnn..
19
20 ..... lI"Ut-ioA.
21
22
MR. HuttTCR. Yo\llFe-Hk4.rg <pJ..tlfJns
MR. B~'.~R[, I 'hlAk I -,"
MR. 1tUtt1'!lt:-.........hoslf-.rr-qJtntons-that
Z3 II" bttuaV I... ........... _'1d...I.lft1llml t Nt am,,1..,lble.
24
25 Q
IIR. 8C':CR[~ 8&81& "l+-
(BY MR. DEVERE) Now, Dr. Brocker. were
BROCKER
JR.
1 you lwar. thlC Dr. D.Santl. f.lc that h.r .~tQle Wlr.
2 r.tolved aft.r chi 'tbruary 2J, '94 Iccldent, prior to thl
:s .econd motor vthlel. Iccldent?
" A No, I wasnl c, but I would hlVI 101M
5 comntnU .bout gen.rel chiropractic trefnlnl and th.ir
6 oplnionl if I wat 'lIked Chat.
7 Q Okay. Ard ""It wQUld be tho.. camnenn?
8 A Chiroprlctora 'Innot pr'lcrlbl medicltton.
9 They Ir. not phYllci.n.. Th.y have not blln to Medlcll
1Q ,chool, nor hlv, they po..1d balrdl In Intlrnll -.dlclnl.
11 ThlY .r. nontrldltlonll medicine. I vi... them II therlplltl
12 '0 n.lp po'lon.. go. bal.or. Tnolr oplnlona abou'
13 neurological .Ituaclonl, I would vt.w with gr.lt elution.
14 They II'I not phYliclanl Ind ClmoC prllcribl IMdtcltlon..
15 Q In fICC, fln.t chiropractic care lamett.1
16 harm'ul 'or I perlon thac h.. dflk t"Jurl..?
17 A Absolutely. Thltll why we hive the
18 .poclol rolo.lonlhlp whh lho M.nanlnl volloy. lnoy 10'
19 MRI. frOll UI before thl'" NIl'pullt. . patllnt. When we IIW
20 thlt, we knew thlY wert lomewhat different In thltr
21 tre.tment. They h.ve not been to Mdlcll Ichoo~ Ind trl'ned
22 In neurolnltOlll'f and neurological luminatlon.
21 Q In conclullon hIre, Doctor, I wlnt to
24 brlofly .ouch an .... ....omen.. Ih.. Lo.h Burkoy h.. oodo
25 pro.lou.ly In depoII.lon. In .nl. c... on 'ogo 65 of hor
78
10
1 PeMlylvllnil deposition. IINow, I "I thlt I'VI looked It
2 your records and IhoWI you werl r.lllsed from elr. by
3 M.honing Vlll.y Chiropractic an May 19 of 1994, the day
4 before the IIcord MOtor vehicle accldenn" "Uh-htil." 1100
5 you remeri:wtr thlt?1I "Veah.'1 uWho r.l..ted you from carelli
6 "01'. David DeSantll.11 IIWhy did h. r.l.... YOU?II ItSecau.. I
7 wal r.edy to go back to work. 1 nleded thl money. w.
B woro flnonclolly Ilrappod, ond I 'houghl If I .ook It o"y
9 I'd be able to do that.II
10 Okay. L.cls turn to the Ohio depoSition.
11 A And that was, of cours., I mlstlk..
12 Q It was I mllukl by Dr. DeSantis?
1] A By .h. p.'len.. She Ihough. -- .h. needed
14 the money end thought Ih.ld get back. to ttOrk. Th. bulging
15 dilk probably would ha."e been Iggravated by gotng back to
16 work.
17 Q P.ge 46: "Thl rlCorda 'ay thlt 'IOU wire
18 relelSed frCllll clre for the first Iccldent of Mlrch 19. I III
19 Ju.. .rylnl '0 clarify 0 fac., ond 'hen I ballo.. II Ihould
20 '.'1 May7" 'IOh, yeah, It wal May.11 IIThlt11 'lour tlltlmony
21 thlt you were rel.l1sed on May 19?1I IIMay 19, "'1..11 nArd
22 then it ItlCII the following day Ihe we, involved In I motor
23 vehicle accident. You would Igree with thin- "VII."
24 MA. HUNTER: I, there a quelt I on out?
25 MR. DEVERE: 1'10 going '0 can. I""".
NAGY-BAKER COURT REPORTING, INC.
Pages 77 to 80
DEPC
nON 01' DR. ROBERT BROCKE.
Il
81
t MR. MUNfeR: Youlr. doing to rtad some
2 oor. ..I.lmony? All rlgh..
] Q She continues on ,.ying It Plge 48:
4 *Would you con.l~r your t"juri., to be cl..rld up by thaC
5 day frOll your 'Irlt Icctdent and thltl, WlY you were
6 r,I.lled?" "Will, I ~.lt good enough that I Wlnted to go
7 beck to work, you know. I f,lt good enough thlt 1 did hive
e flower beda, you know, and Nil pun Ine How.r beda in and
9 Ituff lIk, thlt,lI And ,hi goel on to Mntlon thlt ,hi "III
10 doing .ardenlng and 10 torth on . continuing balll.
" MSO when Dr. O.S.ntll' r.cordl Itat, hlr. thlt you Ntr,
12 r.l.ased, I gua.. thl, Itlt.., IH,r condition improved and
1] ,hi WI' r.I.I.ed.' Wlr. you r,l,.sed to r.turn to work or
14 wert you r.l,.eed from clr. far Injur... aUltllned In thl
" tint Iccldent1t1 Shl ..yl, "AI fir II I know, I WI' donl.l.
16 ~ld ,.~ I.rll '" .-fnartt vllo" ..... ....fo-.,h nro,
17 I._I...?
18
M.. II!:1NTCR. I'd obI..' h.. 1~' IIRII
19 th.t ,~'re ..kl"l fir gr Irnklr u rn~ Lt"~ a....I...y'a
20 .1\.4 _~__. lllt., ,h, UI""" " II '"k U ',vrk ,~g '/t.1t
21 glr'""--'''& ...At tv t.1~ IA ItFIR' vi hlr ,.'trlll ,ud-4l:ll
22 c.........itf"^: .'" hi. ~Latal~Ui"8 for .f'I""uLat.ian..b)l Dr.
2l .,.,,,.Ir...
24
:eR. D!Un~. L_t'a GO off the record
25 U__..........iftt-t............. ,,, ~k.j.....,^"'.
1
12
In~'poR... Dr Irotktr bit In opIQI--- ..~m..~i"8 "Ih
2 lurk.,', dJ..blll., hlr.. .~ hi II,' It" I,trmunenc
3 condltit.. nidi''', "I' pF',~llllll Ir~ ,!:It', I~Vr"8 .h. .......
4 c""",..l..t..l, '............ ..a, ..a, Ibl, t. "U~f4NGk-40-wrk
5 ~~'deni",,-,,~~," tlt.ll~ 'GAt'l~i.tQ'1. Ind
6 ....thfnJc--l-een-..k.hhn-..que.c.iOR. Ibn'It ...h...h.... th..I.
1"",.,'11'.
I
MR. "'MUNTiA, Fe" ttll, PII" gf
V....t h..., ~':' p't~ ~h, ~IfH("'''' I... 11"1
9 "-=FI...ly
...................
.
1n .~eurat. manner.
11 Q (BY MR. DEVERE) flrl. of all, Or.
12 Brock.r. would you Igr.. wfth Mrs. lurkey's tfstlmonv that
13 Ihe WI' r.l.lsed from clr. on MIY 19 of 19941
14 A I hlv, no r...on to doubt thlt. live
" helrd t.stfnKHTY. I Wlan't therl to heir her ,IY thlt. But
16 If ,h, wa, r,l,a,ed from I:lr. by I chiropractor, a non-M.D_
H p/lYllclan, no. lIconaed by the 5.... '0 mak. medlc.l
18 decisions to my knowledge, I would question the Icfentiflc
19 valldltv of that rel.al., Chiropractors In our Stlte are
20 lIcenled to do physical therap.,. and do not make major
21 -.dll:al declllonl, to my knowledge; and I'm lure that would
22 be true In '.nnavlvanll. 50 J would wonder about how a
23 chlropractof might releal' somebody to go to work or make
24 declatonl about their neurologll: .xamlnatlon. live never
25 h..rd I chlropral:tor m.king tho.. type of decisions In my
BROCKER
JR,
1 relltlonshtp with them.
2 Q Oka.,., Would you agree that ahl Wit
1 captble of putting flower bed. In and gard.nlng. ,i~it'f
4 gardening.. .h.. "...?
5 A I would wond.r .bou. .h... In. bulging
6 disks which I ,.w In tha MAl with bending 10rwtrd, If Ih.
7 was putting tn gardening., ,..1Ing mfnd Ind body togethef,
8 if ahe liked to put flow." tn and might hIve done that, I
9 hope not heavv lifting. thlt .Ight hlv, mede her f..l
10 better, It It I. Important to fell bett.r to heal; but I
11 Ihe Should not be h.avy lifting. If the 11ow.r. w.r. verv
12 heavy, I would think thlt would hlv' Cluled her patn.
t] 0 Shl Ihould hive be.n hurt InQ I f ,hi w"
14 doing heavy lifting, f. whit vou'r. laying; l:orr.ct1
15 A 'tll, If ,ha WI' doing heavy 11 It lng, ,h.
16 would he.. bl.n hur'lng.
17 MR. DEVERE: Th,"a I. for Itrf
11 qu...lona.
19 REDIRECT EXAMINATION:
20 BY MR. HUNIER
21 Q Doctor, JUII to clarify for the jury, 'f04
22 dilgnosed Leah Burkey" bulging dtl.' one month ,ftlr hlr
23 Turnpike al:l:ld,nt when ,hi Wit hit by Mr. Wade; I:orrel:t?
24 MR. DEVERE: Objoc.lon. Le.ding.
25 A That II I:orrect. Thlt'. whit I wrote down
14
1 the flrlt time I IVlr saw her.
Z 0 lh.. Ih. had bulging dlska?
3 A YII, I "rot. 80 partl.l, YII; thlt mGlnl
4 bulging disks. My :irat examination of her.
5 Q And In your opinion In AugUl' of 1997, you
6 INIke the ume finding, but you ull It traunatlc I:lrvll:al
1 disk dlsplll:ement; I, thlt correct?
8 A That I I corrll:t.
9 MR. DEVERE: Objoc.lon. Ag.ln
10 le.ding.
11 A Those refer to the lxaCt ume Ident ICll
12 neuroanatomlcal condition.
13 Q With respel:t to . chiropractor, f, It
14 polllble to recelvl I:htrqpractlc I:.r. and Itill go to work?
15 MR. DEVERE: Obj.ctlon. Loading.
16 A Chlroprac.lc do p/lyalc.l 'herapy .nd
17 INIss.gel and other ttralghtenlng of the spine, and people
18 feel better when they lllve their office and feel I:onfldent
19 to do things.
20 Chiroprll:tors wltl not menlpullte somebody with a
21 hernilted disk thlt might need surgery or major bulging of
22 disks beCIUII thlt I:ln't I:ure it. I think a lot of people
23 feel I:ontiderablv bettlr when leaving their offil:e, Ind It
24 does help the body to he.l. So I think man.,. patientl would
25 be under .. very optimistic In leaving their office.
NAGY-BAKER COURT REPORTING, INC.
Pages 81 to 84
DEP(
rION or OR, ROBERT BROCKE
15
17
,.-'
1 I Hlvin, h.ard aU Chit t'ltlllCW'l'l dlJrl"l
Z your OrOIl u.lno"on fr... Loah Iurkoy abou. InO N.y
J Kcldent when sh. w.. in thl 1.ltbelt: and sh. Nlnt oft th,
4 U lOt hit on th, ....11 r-., do 'IOU hlYI an opinjon .. to
S ...ther LHh I. condt t Ion CQdey, or .t lo.te when YQU .... her
6 In Al4U8t, NI. . '.Iull of or w.. lublcancl,tt.,. contrtbut~
7 '0 by 'ho lurf'4llko occldon"
. Ai 't.., I do.
9 Ii And whir: it thlt oplnton .g_in. Doctor?
10 A My opinion I, t:hl tr8UNI that Ihl tuffered
11 fr.. Ih. Turf'4llko .oolden' w.. of conlldorably dlfforenl
12 _~tcudl eh.., thlC In the second, lIlhec I t.rmed . IIlnor
1] ..olden'; and .ho original or...... Is who. 10 r..ponllbl. for
14 hor ponaononc oondl.lon .h.t Ino h.. loday.
15 Q And do you nold 'ho. opinion '0 a
16 ,...~,. degr.. of -.dlcl' clrtlinty, Doctor?
11 A ,.., I do with"" neurological tr.lnl"l.
11 MR. NUNIIR: Inenk you, Doclor. I
19 h... no fur.h.r quoulon..
2D RICROSS IIWlINATIONI
ZI If ... DE'I1!RE
R Q Recroll. You u.. the ter. _jor. IInlf
2l It correel lh.. Mr.. lurkoy do.. no' no.. any ...jor bulging
24 disks?
25 A Th. ..jor bulglno dllk. would uluolly bo
1 t.rwed . h.rnlatlon. Shl doe. not need lurlltry for her
Z oondl.lon a. 'hla .1...
] MR. DEVERE: Okay. lh..,. ".
It MI. HUNTlI: Thank you, Doctor.
BROCKER
JR.
1
2
]
4
5 I HEREIY CERIIIV .n.. .h. abo.. and foregoing I. .
6 true .nd corrlct eran.crlpe 0' .U thl tlUlmony Introduced
7 end proceedings hid In thl teking 0' thl te'tlmony In thl
8 .bo~I-fl1cllled NUlr, It &hewn by my Stlnotype notlt Uk."
9 by M .t thl time 'Itd Ultlmony "'.. tllleen.
10
11
12
1]
REDORIER'I CERl"ICAIE
~ ~. ~.g~4af..r
AIg Itered Ir t Reportlr
16
18
1 STAll Of OHIO I ss:
2 MAHONING CooNIY
]
4 I. Us. C. ".gy~8.levr. Notary Public
5 wi'hln 'ho Ito.o and Coun.y o'oroloid, duly comMlI.lonod and
6 qualified, do horaby o.rolly .n.. lh. abo..-_, DR.
7 ROBERT J. 8ROCKeR, JR.. w.. by me ,tru duly sworn to
a tl'tify thl truth, the whole truth, and nothing but 'Chi
9 truth. Ind thlt thl forqot"9 depotltion Ma. written by ..
10 In stenotype In thl pre.lnce of thl wttnell; that by
11 agreement of countll, aignlturl MI' wllved.
12
13 I do further Cll"'t Ify that I .. not of
14 countll. attorney or rel.tlv. to lither party. or othel"'Mtse
1S Intel"'lSted In thl Ivent of this Ictlon or proceeding.
16
17 IN WITNESS WNEREOf, I h..o horeun.o ...
18 -V hand and Sill of offiCI It Youngstown. Ohio. thit 11th
19 PlY Qf SepteniJer, A.D.. 1997.
20
21
22
2]
CERlIflCAIE
~~s~~i::~~ar~p'r.:ol~/l2/~l'~
NAGY-BAKER COURT REPORTING, INC.
Pages 85 to 88
I
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
(September 3, 1997, 2:05 p.m.)
MR. DEVERE: This is Clark DeVere. I'm
here on behalf of the defendants in this action, John
Wade, Dependable Transit, Inc., and G&G Leasing. We're
taking this deposition by telephone by agreement of the
parties. This deposition will be used at trial in lieu
of Terri Champagne's personal appearance. Therefore,
all objections should be made on the record.
Dave, do you have any objections as to the
unavailability of the witness to appear at trial?
MR. HUNTER: No, I don't.
MR. DEVERE: You want to go ahead and
swear the witness.
TERRI CHAMPAGNE,
being first duly sworn on oath to tell the truth, the
whole truth, and nothing but the truth, testifies as
follows:
EXAMINATION BY MR. DEVERE:
Q Can you state your name for the record, please.
A Terri Champagne.
Q What is your current address?
A 450 South Wall Street, Denmark, Wisconsin.
Q How long have you lived at that address?
A Three years.
25 Q And what is your occupation?
Gales Reporting
(920) 496-9313
3
"
1 A
2 Q
3 A
4 Q
5 A
6 Q
7
8 A
9 Q
10 A
11 Q
12 A
13 Q
14
15 A
16 Q
17
18 A
19 Q
20 A
21 Q
22 A
23 Q
24 A
25 Q
Truck driver and dispatcher.
How long have you been driving trucks?
Twenty years.
What type of trucks do you drive?
Tractor trailer, semitruck trailer.
And you say you're a truck driver and a dispatcher. Do
you work for a specific company?
Yes, I do.
What company is that?
Dedicated Systems Transportation and Warehousing.
And where are they based?
Green Bay, Wisconsin.
Have you ever worked or had any affiliation with
defendants Dependable Transit, Inc., or G&G Leasing?
Not to my knowledge.
And aside from this accident, do you personally know
defendant John Wade?
No, I do not.
Now, you have a family in Wisconsin; is that correct?
I have in-laws in Wisconsin.
Okay. Do you have any children?
Yes, I do.
Okay. And what are their ages?
Two and a half and four.
And because of your children, does that make it
Gales Reporting
4
(920) 496-9313
.
1
2 A
] Q
"
5
6
7 A
8 Q
9
10 A
11 Q
12 A
1] Q
14 A
15
16 Q
17
18 A
19 Q
20
21 A
22 Q
2]
24
25 A
difficult for you to appear at trial?
Yes, it does.
We're going to be asking you some questions about an
accident which occurred on February 2]rd of 1994 on the
Pennsylvania turnpike around 9:12 a.m. Were you a
witness to that accident?
Yes, I was.
And do you have a recollection of what occurred that
day?
Yes, I do.
Now, on that day, were you driving a motor vehicle?
I was driving a commercial vehicle.
Okay. And what type of commercial vehicle?
I am trying to recall which truck I was driving. I was
driving one of our company trucks and a 48-foot van.
Do you remember what your destination was immediately
prior to this accident?
Hershey, Pennsylvania.
And do you remember what road you were traveling on
prior to this accident?
As far as I recall, it was the Pennsylvania turnpike.
You were on the Pennsylvania turnpike heading towards
Hershey. That would mean you were traveling in the
eastbound direction. Would that be correct?
Yes, it is.
Gales Reporting
5
(920) 496-9]13
. .
1 Q
2
3 A
4 Q
5
6 A
7 Q
8
9 A
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Do you remember how many lanes were in the eastbound
direction of traffic for the turnpike?
Yes, I do. It was two lanes.
What lane were you in, if you remember, immediately
prior to the accident?
The right lane.
Now, what first drew your attention that something was
going on behind you?
I had my CB radio on, citizen band radio.
MR. HUNTER: When the wi tness I'efers to
transmissions on a CB radio, I object to hearsay
testimony.
MR. DEVERE:
MR. HUNTER:
Okay.
I ask you to question her
about what she observed.
MR. DEVERD: In response to your hearsay
objection, I don't think that anything on the CB
transmission is going to be offered to prove the truth
of the matter asserted. Therefore, I don't think the
hearsay objection would apply. More over, transmissions
and so forth, I would argue, is not assertive type of
conduct which would not apply with the hearsay rule.
MR. HUNTER: Nevertheless, I'll object to
hearsay and--
MR. DEVERE: ~ld also, if I may complete
Gales Reporting
6
(920) 496-9313
.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16 Q
17
18 A
19
20
21
22
23
24
25 Q
my response to your hearsay objection, that this would
fall under an exception to the hearsay rule for present
sense impressiun or exited utterance.
Do you wish to have a continuing objection to this?
MR. HUNTER: I sure do. And I further
note that you're raising a defense of contributory
negligence, and I think that your testimony regarding
anything on CB transmissions would be relevant to that
matter theoretically. So I think the present sense
impression doesn't apply, and I think that it does go to
the truth of the matter that you're trying to assert.
So I'll make it a continuing objection and raise any
additional objections if I think it's necessary, but
I'll note that they're continuing right now.
MR. DEVERE: Okay.
Miss Champagne, my question is, what first drew your
attention that something was going on behind you?
I'm going to have to say it again. I heard on the CB
radio that there was a car that was beginning to lose
control that was driving too fast for the conditions on
the road, and I looked in my rearview mirror to see if I
could see what was going on or find out where it was
going on. And I don't know if he wants to object to
that then.
He can make his objections.
Gales Reporting
7
(920) 496-9313
.
1
2
3 A
4
5
6
7
8
9
10
11
12
13 Q
14
15 A
16
17
18
19
20 Q
21
22 A
23
24
25
MR. HUNTER: I've already done that, so
you can go ahead and testify.
I listen to the CB radio so I can get a grip of what the
road conditions are or if there's something out there
that's happening that is going to endanger my life or
somebody else's life.
MR. HUNTER: I just want to interpose
also a lack of foundation because there's no testimony
as to who was making the transmission, where anybody who
was making the transmission was located on the roadway.
So there's a lack of foundation as well.
MR. DEVERE: Okay.
How long had you been using the CB radio that day? Do
you remember?
My radio had been on all day long because of the road
conditions. The weather was bad, and I like to find out
if there's an accident somewhere on I might need to
avoid. It's just a thing that truck drivers do. They
listen to the radio for road information.
Okay. The people that are providing this road
information to you, who are these people?
Most likely truck drivers. Occasional base stations
that give us a weather report. Basically, drivers
telling other drivers where there's a slick spot or a
place to avoid in the lane.
Gales Reporting
8
(920) 496-9313
.
1 Q
2
3 A
4
5
6
7 Q
8
9 A
10
11
12
13 Q
14
15 A
16
17
18
19
20
21
22
23 Q
24
25 A
And do you recall who was giving you this information
about th~s car losing control behind you?
I do not know who was saying it, but just that they gave
a mile marker of where the car was at. And I knew I was
in the area, and I kept on looking in front of me and
behind me to see if I might need to avoid something.
Okay. And did they also provide you with a description
of the vehicle?
Yes. They said it was a white car.
MR. HUNTER: I object to the leading
questions and just ask you to ask the witness what she
heard.
Can you tell us exactly then what they said on the radio
to you that drew your attention behind you?
Well, it wasn't said directly to me. It was said in
general knowledge to anyone who was listening to the
radio that there was a white car that was coming up
pretty fast and that she, the person driving the car,
should not be driving as fast as they were because of
the road conditions, and that there was a good
possibility of her losing control, that she was an
accident waiting to happen.
Okay. After you heard this transmission, what did you
do?
I looked in my ~irrors to see if I could see anything
Gales Reporting
9
(920) 496-9313
.
1
2
3
4
5 Q
6
7 A
8 Q
9
10
11
12
13
14
15
16 Q
17
18
19 A
20 Q
21
22 A
23
24
25
going on behind me. I was looking up ahead of me to see
if it might be in front of me so I could slow down and
avoid it. And that's when everything started cutting
loose.
Okay. And do you recollect your approximate speed at
the time that you locked in your rearview mirror?
It was somewheres between 45 and 50 miles an hour.
And were you driving with the traffic, or were you
driving faster than the traffic around you or slower
than the traffic around you? How would you describe
your speed in relation to the other traffic?
MR. HUNTER: I object to the question for
lack of foundation, and first ask if there--what other
traffic was around her.
MR. DEVERE: Okay.
Let's take it back then. Was there other traffic around
you at the time that you made the--you looked in your
rearview mirror?
Yes, there was.
Okay. Why don't you tell me about the other traffic
around you at that time.
There was other cars and trucks going right around the
same speed I was. Some were going a little faster. I
wasn't passing anybody. The road was too slick to be
doing that. Too much slop on the road. There was
Gales Reporting
10
(920) 496-9313
.
1
2
3 Q
4
5 A
6 Q
7
8 A
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24 Q
25 A
people going faster than me because I was in the
right-hand lane.
And what were the traffic conditions? Were they light,
moderate, or heavy at that time?
It ~dS moderate.
Okay. After you looked in your rearview mirror, why
don't you tell us what happened then.
I locked back in the mirror, and there was a truck that
I saw probably right around a little less than a
football field behind me in the left-hand lane. He was
going right-- From what I could guess, he was going
about the same speed I was because he wasn't coming up
on me very fast.
And I looked ahead. I looked back in front of me
so I--because I was driving my own truck, and I couldn't
look in the mirror the whole time, and made sure that I
wasn't going to cause any problems or any problems
weren't going on in front of me.
And I looked back in the mirror, and I saw a car in
front of the truck and wondering how she got there. I
can't see-- You know, I didn't see everything that
occurred behind me because of the fact that I was
looking in front of me, too.
Okay. And what color was that car that you ob~erved?
It was white.
Gales Reporting
11
(920) 496-9313
1 Q
2
3 A
4
5
6 Q
7
8 A
9 Q
10
11 A
12 Q
13
14 A
15
16 Q
17
18 A
19 Q
20
21 A
22
23
24
25
And when you saw the car behind. you, what was the car
doing?
It wasn't going very straight. It wasn't rolling
straight forward. It seemed like it was fishtailing a
little bit.
Okay. What lane of travel was that car in when you
first observed it?
In the left-hand lane.
And did you remain in the right-hand lane the whole
time?
Yes, I did.
And I understand the car was to the right of you; is
that correct?
No, the car was in the left-hand lane. I was in the
right-hand lane.
I meant to say I understand the car was behind you. Is
that correct?
Yes, it was behind me.
And after you observed this fishtailing, what happened
with the car next?
At that point I had to look away to make sure I wasn't
going to get involved in anything up ahead of me. And
then I looked back in my mirror, and that's when I saw
the car hit the wall. And my jaw about dropped. I
couldn't believe I was watching it happen in my mirror.
Gales Reporting
12
(no) 496-9313
1
2 Q
3 A
4
5 Q
6 A
7 Q
8
9 A
10
11
12 Q
13 A
14 Q
15
16 A
17
18
19 Q
20
21
22
23
24 Q
25
And then that's when I saw the truck hit the car.
You saw the car hit a wall. What wall was that?
The retaining wall between the eastbound and westbound
lanes, I believe.
And do you recollect what side of the car hit the wall?
It would be the left front quarter.
So the left front corner of the car hit the wall. Would
that be facing the direction of traffic?
It was on the driver's side of the car, kind of--it
wasn't a straight shot into the wall and it wasn't
sideswiping the wall. It kind of hit it at a diagonal.
Basically, an angle to your direction of traffic?
Yes. She was not straight.
And after the car struck the wall, what did you observe
next?
The truck-- I could see the truck had tried so slow
down, and it hit the car on the driver's side of the
car, from what I recall.
And after the truck hit the car on the driver's side,
what happened next?
MR. HUNTER: I'd object. I think the
testimony wa~ that she saw the truck hit the car on the
passenger side.
What side did the-- I might be having trouble hearing
you. What side of the truck-- What side of the car did
Gales Reporting
13
(920) 496-9313
.
1
2 A
3
4
5
6
7
8 Q
9
10 A
11
12
13
14 Q
15
16 A
17 Q
18
19
20
21 A
22
23 Q
24
25
the truck strike?
I'll be honest with you. I'm really not sure which side
of the car the truck hit because I had to look away so I
could see where I was going and make sure I wasn't
causing problems. I did not see 100 percent of the
accident in my mirror because I had to drive my own
truck, too.
Okay. And after the impact with the vehicle, what
happened next?
I could tell the traffic was starting to get tied up. I
went down just a little ways and found a clean spot on
the shoulder. I pulled off to see if I could help
anybody.
Now, did you observe the vehicles after the impact to
the time that they came to a final rest?
I did not go up to the car and look at it, no.
During the time that you were observing this accident
and what occurred afterwa~ds, did you come on any
information that any other vehicles were involved in the
accident?
I was not aware of any other vehicles involved in the
accident.
And did the truck that hit the white car, did that
jackknife?
MR. HUNTER: Object to the leading
Gales Reporting
14
(920) 496-9313
,
1
2
3 Q
4
5
6
7
8
9 Q
10 A
11
12 Q
13
14 A
15 Q
16 A
17 Q
18 A
19 Q
20 A
21
22
23 Q
24
25 A
question. She's already testified to what she saw, and
you're asking her a leading question.
Why don't you tell us what happened, what you observed
happened to the truck after the impact.
MR. HUNTER: I object. It's been asked
and answered.
MR. DEVERE: Well, I think she stated
that she pulled off to the side and then came back.
Where was the truck when you came back?
As far as I know, it was still in the left-hand lane
with the car in front of it.
When you observed the truck in the left-hand lane, was
it still running?
I do net know if it was running or not.
Was it in an upright position?
Yes, it was.
Do you know what I mean by jackknife?
Yes, I know what a jackknife is.
Tell us what a jackknife is.
A jackknife is when the trailer is at an angle to the
cab pulling it beyond a 15--well, officially it's a 15-
degree angle. Beyond that is considered a jackknife.
When you observed the truck that struck this car, was it
jackknifed?
No, it was not.
Gales Reporting
15
(920) 496-9313
1
2
3
4
S
6
7
8
9
10
11
12
13
14
lS
16
17
18
19
20
21
22
23
24
2S
MR. DEVERE: No further questions at this
time.
~AMINATION BY MR. Ht~TER:
o Ma'am, I just have a couple of questions. You don't
know how far behind the white car the truck was when the
white car hit the retaining wall, do you?
A I do not know exactly how far, no.
o And you didn't see any minivan following the white car
between the white car and the truck in the right-hand
lane, did you?
A No. That was behind me, and I could not see that far.
I knew there was a truck behind me, but I did not know
what was between me and that other truck because I was
throwing off spray because of the road conditions,
o And you can't tell us how many times the white car spun
around or whether it spun around after it hit the
retaining wall before it came to a rest and before the
truck hit it, can you?
A No, I cannot.
o And you didn't see the minivan come to a stop behind you
in the right-hand lane either, did you?
MR. DEVERE: Object. She already stated
that she did not see the minivan.
o Go ahead and answer..
A I did not see a minivan anywhere.
Gales Reporting
16
(920) 496-9313
. .
1 Q
2
3 A
4 Q
5
6 A
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Okay. So you saw the car hit the wall, and then you saw
the truck hit the car, correct?
Yes.
And other than that, you didn't see 100 percent of the
accident itself, did you?
I stated that I did not see 100 percent of the accident.
MR. HUNTER: That's all I have.
MR. DEVERE: No redirect questions.
Miss Champagne already decided that she did not
need to review and sign the transcript prior to the
deposition. So I just ask the court reporter to put an
expedite on this if he can. We are scheduled, I think,
to begin trial possibly on September 15th.
Is that going to be a problem?
THE REPORTER: No.
MR. HUNTER: Are we off the record now?
MR. DEVERE: Yes.
(Deposition concludes at 2:28 p.m.)
Gales Reporting
17
(920) 496-9313
Worc1 li1<1ex
(05 - MOTOR]
o
os (l) (1,1) .
." - --. ~..". ..-
1
1-.---.............. -,.......
10001 (14I')l (1'1."1 (11.11]
U (11 1'5.5
15 (~l lS,HI 1l'),JlI
15TH j1.1 11"1,1)J
U,. (1) 'i.41
1997, (11 11.LI
,
HRD ILl 1'i.4j
:I, (11 11',18
I,ll) 11.1/
,
U 01 110,11
450 III (J,UI
.. 01 f';i,ISj
5
SO 0) ftlJ,1j
.
. -. - - -. - . .. . - . - - . - . . - . - . - . ~ . .. . . - - . - . . - -
ACCIDIHT {141 14.161 (S.41IS.51 (S.lll
J!,'01 14,51 18.11' I',n 14,01
14.11) 114.:10) (U.....) (17.51 (17.61
ION (1) {l.l\
ADDITIONAL (11 1 111
AllIlIlBllS ()) p, HI II "I
Ar.ILIATION (1) ,..111
AlTlaWARDS (l) ( H. 18
AllIS (I) l'i"l
AllU-.rr 1 ().51
AUAD c,) (J,U) ('.:1) (10,1) (11,14)
In. nl 114. HI
AIIOt.I (l) Ill. UI /15.:101 [15.....)
AIt8W&..D Ul (15'
AIIYBODY (ll (81.9! [l0.:l4) (14,11\
_ONI Cl) I'."
AlmfHWU (1) (16 .51
.u,.... (>) 13.101 1'.11
.u,IAIWICI 1') /).11
AJ'LY (l) 5,:10 (6.:111 (1,101
AI.IOXlMATI (1) 110,51
H&(l1 1'.'1
UIOI It! IU~I
ASlIR'r (11 (1.111
ASSS.TaD III (6, U!
"'laTIVW (1) 1,,111
A1T&NT10N U) 6.11 P 111 (9.141
AVOID 1'1 18,111 (8,151 {!J,61 {lO,l]
>>1MB 1 14.4:1J
MAY 1>1 11>.411 114,]1
.~~._.4..........__.....________________
8
..____4___._..____..___..____..___._____
lACK 1'1 110.16\ (lli8) [11.141 IU,191
In.'' 115"j 15.9
lAD UI (8.16
IlUID 1" 10..
lAB. 1) 8. ;Ill
IABIO 1') ('.111
USICALt.Y UI (a,HI (LJ.L2)
aAY UI 14.11)
alGIIIINUIG ILl (1,191
IIHALl' 1') 13.)1
UHl'~~J Ht If''[~L l~I 1nl,(~~rl [B:11
u'UI (U,18) (U,SI 116,111 (14,1;11
le.l0
a LIavI 1;11 111,4:5) [ll,41
UTWBBH (4) 10,1J (ll,l) 06,91
I16.UI
..yeND (21 (15, HI (15,22J
lIT (l) (1).51
c
CAI (l) (15.211
CAlli (41 (14,151 ll'Ii,!J1 115.91 [16.1.1)
CANM01' (11 116 1')1
CAR (H) p.ul ['),21 1'1,41 1'1.91
9,1'1 19,191 111,19 11, 241 112,11
n.l U.O ,'.ll 12.14 1>.161
11.20) (ll,:al l1],ll [1].21 LJ,SI
11.1) (ll.91 [ll,141 (1),17 LJ,181
; U.191 111'''llll'''j 1".JII14.161
11&.:1) 15.11 15.Jl 16 S 1661
16.11 [16,'1 [16.151 [11.d 111,,1
CAaS 0) {10.:UJ
CAUsa III [11.171
CAUSING (ll { 14 , 5 I
ca C11 {6,91 (6.11J [6,1"11 (7.131 (1,lBI
(t,)) (B.ll
CHAMPAGNE 141 Il,UI [l.20J [1.1iil
111. '1
CHNtPAGNE'S (ll II '1]
CHILDREN 111 [.."nl [-i,Jlij
ClTIZE" (1) [6191
cr-UK (1.1 I'"
CLiAN (U 14,111
COLOA (l) 11, .H
COMING (4:1 ['J.1"1 (11. UI
COMMKRC[AL ;;1) 1'i.1JI ['i, 1 II
COMPANY (ll [4,1} /".'11 IS.l'il
COMPLETS (ll 16.J'i
CON(,LUoE~ III Ill,llll
Cl)NDITI()N~ (ii) II,JO [~,"I III,t,,1
I'J, .1oJ (It.ll lib, ".
CONDUCT (11 16.24
CONS [CERED I II 11 'j, JJ 1
CONT [NtJ I Nt:; III "I,"J {"I,lll (7.l41
CONTRIBlrrORY (11 P,6J
r.ONTROL III P,JQl ('l.JI ['l,211
CORNER (1) 111"1
COUP~I (11 16,4
COURT III (1'1.11
CURRSNT (11 Ilolll
CtITTING (ll la, J
D
DAva (1.) [l,ll
DAY (41 [5. 'll (5,111 {II. ill fll,151
DEClOEQ (1) (17,91
oEOICATKD III 14,101
DBPlNDANT (1) 4,1"'
DEFENDANTS 1JI Il,) (4,141
OErlN5S (1) P,61
DlnRRS III Ils.2JI
DENMARK {11 {1,2J
DEPBNDABLB III (1.41 {4,141
DISCRIDE (11 [10,10
DESCAIPTION (1) 1'1,11
DRSTINATtoN (1) S.lIil
DEVO'E (15) (1..1 (l,'1 []I'" 111"1
1'.1]1 [6.161 16,2gJ [7.15 le,n
10.151 (15,1) 116.11 [l6.H) (11,8)
17,11
OIAGONAL {11 (ll,lll
DIl":CULT (1) 15.11
DURCTION (.1 5,2"1 (6.4:J (ll,al
(ll,111
DIRICTL't (1) (9,151
DISPATCHdA (~I [4.11 (.,til
DOWN III 1'0,'1 [11,111 1"1"1
DRRW 01 1i.11 [i.161 [9.l4
OAIVR (:1) {4,41 (14.61
DRIVSA (~) [4,11 (4,6
DRIVER'S III [13.91 (1).11) {11 191
DRIVORS ('I (0,1.1 1""11,,"118.241
DRIVING Ill) (4,4: '1.11 S.ll 5.14
15.151 1,:101 (9.1111 [9,1')1 [lo,al
10.9 11,151
DROPPBD 1) (1;1,l4)
DULY (11 !J.1sl
DORING (1) (14.111
o
!.ASTBOUND 0) (5.H) [6,11 {U,ll
iITHER (11 116.21)
ELSS'S (1) 8.61
INDANOBR 11) (11.51
EXACTLY (21 (9,13 116,71
EXAMINATION (1) ()llltJ (16.31
EXCEPTION (1) {1,2
BXITEo (1) (1.11
ItXPEDITE (1) (l7,UI
.-.-..-.--.---------.---.--.-.......-...
.
rACING (1) ll1.8)
FACT (Ii Ill,H)
FALL III 1.2)
,AMILY (1) 1-1,191
FAST (4) (7.201 [9.181 (9,191 [ll,lll
VASTSR OJ [10,9) (10.1ll 111,11
FEBRUo\A't (1) 15,41
FIBLD III 111,101
VINAL (1) 14.15
fIND (2) [7.411 18,161
FIAST (5) (J.IS1 (6,1 1',161 fl0.lll
[ll, "I)
FISHTAILING (l) 114:141 [l.1,191
FOLLOWING (ll {16j8
FOLLOWS (1) [ll"
FOOT (1) (S.15
FOOTBALL (1) fll,101
FORTH (1) (6.211
PORWARO (ll {12,41
FOUND (11 IU.l1J
POUNDATION (ll fB.AJ {II, 111 (10.111
FOUR III I''-HI
FRONT (9) ('I.S 110.21 (11.14J {l1.1S!
(11,201 111.21 1),6 (lL7J (15.111
FURTHER (21 17.51 (16. lJ
<J
GAVE (11 ('I, II
GENERAL (U 19, lIil
GIVING III 1'),lJ
GOOD (lJ 1'l,2ul
GREEN (11 14,121
Gal.. Reporting (920) 496-9313
rll"r'MltM
r]R[P t 11 III, II
1;IJE5S III [11.111
It
HAL' t 11 14, HI
HAND (10) (11,4:1 111,1111 11J,II11LJ,91
112,l4111.l.,1'l1 {1'l,l(lJ Il'i,lJ Ift.'J
16,21
HAPPliN IJI l'I,.l..l1 (U,l')!
UAPPiNKo (6) 1\1,71 ILL1'JI (11,.101
114. 'II 115, II l1'i.41
IIAPPBNINt1 III ','ll
HEADING III 15,.121
HEARD (H 1',1&1 l'f,UI 1'l,HI
HEAJI:NG (1/ 111,241
HEARSAY P) /i.l11 (t.,161 (Ij.JOJ 1/i.221
16.14] [1.11 {"1'
HEAVY (U ( 11. 4
HE~P (11 (14.1.1
HERSHEY (.1 ('S,Ul l'i.:nl
HIT (16) {l4:'H\ {U.l! [1),JIIIJ.'i1
111.11111'.1'1 13.11J (1l.1<) l),"JlI
14,1 l4.lJ lli,6J 116,161 (16.111
11,1 11.1j
HONBST III [141 JI
HOUR (1) IlO.l
ItlJNTSR 1'51 11.111 16.101 16,14116.;))1
1'.51 It. 11 a '1 {9,ln\ {liJ 1J
lJ.HI [14,15j {tS.51 116.)1 {l"'.11
11.16
- - - ~ . - - . . . . - . . . .. . " . . . . - - . - - - . - - - . - . - . - .
I
-.....--...--.........--......-.-...-
IMHRDrATBLY 12) I'), 161 16,4J
[MPACT 01 14,81 114.141 (11),4)
[MPRlSStON (21 11,11 P.I01
IHC (21 P,4) 14,14
INFORMATION (41 {B.l'll fll,211 ['l,11
(14,191
INTIRPOSB III (8,7J
INVOLYED IlJ (14:.1:011 (U,U) {U,HI
.......__.__...._..__....4.....__,......_
J
JACUNIP'8 (61 {14.HI 05,111 115.181
(15.1<)} 115.l01 [15,HI
JACICKNIP'ED (1) {lS.l4J
JAW (1) (12, H)
JOHN (2) (J,JI 1..111
.--.---..-.-..-----..--.......-----.----
.
. - - . . - - . . . - - - - - . -. . . - - - - - - - - . . ~ . _. - - - - --
KEPT (1) 19.51
IINO (2) 11.91 (LJ.llJ
KNEW (1) 'l,4) 116,UJ
KNOWLEDGB :2) (.,151 (9.161
- - - . - - - - - - - - - - . - - - - . - ~ - - - - - .. . . - -. -. . -. -
~
_ _ _ _ _ _ _ _ . _ _, ~ 4 _. _ _ _ _ _ _. _ . _ .. _. _ . ... _ _. . _ .
LACK (.JJ 18,81 f8.111110.1l)
LANB 1141 16.41 (6.6 8.251 111,'J
111.101 1".6' (".' 14.9 14.141
ll.15 15'101 [15.121 [16110) [16,ll)
LANes (3) [6.1 (6,3J IU.4
LAWS (1) {4.20
LEADING (1) 19,101 (14.4:5) [15.21
t.EASING (ll J,4) (4,UI
LEF1' (11 {ll,101 (12,81 [,U.H) (U.61
(U,11 (15.101 (15,UI
LESS (1) 111.9J
LIEU (1) l.6j
LIFS (2) 8.5 lB.61
LIGHT (l) lU,ll
LIKELY 01 18.UI
LISTEN (:Jl 8,11 [8j191
LISTENING (11 ['l.16
LITTLB (fJ (10, HI (ll,'11 (ll.51
(U,UI
LIVED (1) lJ.211
LOCATED (11 (8.101
LCcnD U1 (lQ 61 111,81
LONG I4J I). ul (4.21 [a.111 (II 151
LOOKBD (81 [1.211 19.4:SI (lQ.l11 111,61
(11.141 (11,1"1 (11.11)) (l2.l11
LeaKING (ll (').51 [10,11 {ll.HI
LOOSE (1) 1111.41
LOSE III 11.1'J1
LOSING (21 ['J,21 ['3,211
M
MA'AM (1) 116'4!
MAKING (21 [II. 'J {B,101
MARKER (11 9.4
MATTER (l) 6,1'11 [1,91 [1.111
MEANT III 11.1,16
MIGHT (4) 6.11J {'.l.til [10.21 [lI,HI
MILE (1) (9.41
MILES (1) (lO,lJ
MINIVAN {41 116,al {1.6.2al {16,l]J
[16,25J
MIRROR 1101 11,211 110.61 {10,lal
111.61 (11.81 Ill,llil Ill.1'l1 [ll,HI
ll.251 114.61
MIRRORS (11 19,251
Mf.lOERATE (2) [11,41 fll.SI
MOTOR (11 (5.111
Page 1
WUS-c:t IllClex
[NAMB - YEUS
N
NANI (Ii fl,IJI.
.ICUSAAY.',"", 1/.111
JfSQLIGINCI (1 f t"1, "1
uv.aTH&L.SS t 11 16, J JI
IIOTI (2) 11.'} "1"'1
IIO'rHUIQ (11 'I, l'
o
OATH (1) {.).1~1
OBJ'ICT {<)l [6.111 liS.HI 11.,uJ ('l,IO!
(10,UI rU.lll 1141151 11<;,51 [lli,U
OIJICTlON ISI (6.11 (ti.JOI 11,1] p,"]
11.111
OiJlCTIONS ltl Il,a] (L9J l'7.111
11, HI
O.SI.va (;II IlJ.14-1 114.141
aas.aVID'11 (6.1'i 11.,H1 (1.1.11
rll.19) 15, JI (15.1.11 {15, .HI
OUeRVING (0 (1...1.11
OCcASIONAL (11 (8.11
OCCUPATION (11 I J I"
OCCUUBD (4) IS." (5.111 (ll.ll!
114,111
otna&D III 111,1111
orrICIALoL'I III r 15. HI
on (11 IS. IS)
OWN' (.11 11.151 U4.61
~ ~ - -. - -. . '. . . . .. . . . . . .. . . . . . . - . . - . - - - - - .
.
.......1.,. (11 II. 6'
.ASIIJIQI. (l) (1J. :ill J
'USING (1) Ilo,.HI
'INIfSYLVAlf%A 41 (5,5J (5.181 (5,111
.~;t~lOI i...1Q] 11I.:HI (11.1)
PlRCIII'1' (JI 114.'1 111.61 111,61
.IRSOII I1l I>, III
PlRSOHAL (11 11,11
PIRSONALLV 11) [t.1li1
.lolCI (1) .,"1
.LlASI (11 [1,10,
~INT (1) IU,U
POsntOR (1) (tS, Ul
POSSI8U..IT'I (1.1 (9, HI
POSSIBLY (I) 1"/111
'RI9I11'1' m 11.' 11.>1
.RITTY (1) 19,1.
,axoI (4) ($,11) (5,:10) (6,51 (11,101
'IQIL.IM (11 ( 11 , 14 J
PlOIL1N8 (JI 111,111 111,111 114.51
Plova f 11 16, III
'.OVID. (11 [9,1)
PROVXDING (1) (8,~O\
.llLLIll UI [14,1>1 15..1
POLLUIG (1) 115.>11
._._._--_._-------_.~._---_....q..-.----
Q
--.---.--......-----.-.-----------.....q
guMTS. (1) (11,61
Ql,II9TIONS (5) [5.11 I>, III [16, II
116,61 111,01
.....------.--..---.----.---..q.-q---.--
R
RADIO (10) 16.91 (6,>1 161111 11inl
J"l) (a,lll [lI,lS) (8,19 [9,ll
9,111
UI (1) 11,1>1
IAISING (11 P,61
UAaYIIW (4) (1,:H) [10,6) (10,18)
111,61
UCALL (61 15.161 rs,>l1 1>.11 [1l.1I1
UCOLIoIC'!' m [10, 'I 11l,51
UCOLLliCTION (1) 15,1)
UCOID (]I [l.l) 1,1'11 (11,16)
llOnlC'!' (1) 1",'1
..,.as (1) [6,10
RlGAaDING (1) (1,11
ULATION (1) 110,11)
ULlVABT (1) 1,111
UMAIN III {n,91
UMKMIBR CSl (5,161 [5,1'11 [6,11 (6,41
Ca,UI
I'PORT (11 [1I.ll)
IIPORTSR (J) 111.111 (1'1151
USPONSS IJ) 6161 [1,1
UST (1) (14.151 [16,l1l
IITAININO III [1]\]1 [16,61 [16,171
OVUM III [11,10
lOAD IlQ) [5 l'J1 1 HI 18.41 [II,l,)!
11,191 (I,~ol ('l,20! (lO..HI (10,:2S
16,UI
ROADWAY (1) 11I,10!
lOLLING (1) 12,1
aULa 1:2) [6, :2JI 11 ;;1]
IUNNINa (:2) (15,1)1 [lS,UI
----------.--..--..-..----.......--.--.-
5
.--------.-..-------------.---.-----.-.-.
SCHBDUl.8D (1) {1',121
SIDtlD (11 [lJ.41
SDlITRUCK III [4.SI
SaNS. lol) f7. 11 [1 'l]
Sln_SI (1/ o,d (n,nl
.sHe',9 (11 [1'). 11
SHOT (1) [1),10
SHOULDER (1) (U, UI
SIOI (lal 11I,SI (11,1J IU,171 1\ 1.1'JI
Ill,])) (11,HI IlJ,4';1 11,lSl l...J!
1'1,81
SIDRSWIPING III (11,111
~Ir;N (11 111,10j
SLICK (1/ {9, h f t'J. HI
3LOP 11) IUI,.iS
SLOW (11 10.11 [ll,llij
SLOWIR (1\ 110,11
3CMEBOOY (11 [11,61
SOM!WHERB III {", 1'1 j
SQMEWH&RlS (ll {la, 71
SOUTH (1) {l,lll
SPI!:CIPIC (11 {4 7\
speeo {41 (lo,'}1 (10.111 (llJ,.lI]
(11,14j
SPO" (1) (a,HI (U,lLl
SPRAY III (1.6,141
SPUN Il) 116,1S1 [16,161
STARTBD (1) (la, ])
STARTING III {H,101
STATI (11 {1.111
STATBO (1) (lS.11 116,221 I1J,ril
STATIONS (:.) {II. 111
STILL (JI (1'l.10) 115, lJl
STOIiI IU {16,.O)
STRAIGUT (41 [U,l) (11,41 {11,10J
(l1,lll
STRlIl1' (11 11."1
STRUB ill 14,1
STRUCK (;1) I}.141 115,.)1
SIlRa (5) (7,51 [11,16) (12,:l11 114,1)
{U,41
SWIM (11 11.131
SWORN (l) 1, 1'i
SYSTEMS (1) {4,101
T
..--------.---.-.----.----.--.--..-----.
TaLIPHoNB 11) {1,5]
TILL (II) 1,151 ('J,lll (10,101 [11,11
(H.10) [15,11 (15,19 [16,15
TILLING (1) (II HI
TSRRI (I) [1,11 [1,UI [1,'01
TBSTI'I&:D (1) [1'1,11
TBSTIPIIS (1) IJi \6
TBST!PV f 1) (8,;1
TISTIHONY (4) [6,l:2J [1,.1J (8,BI
111,"1
THBOReTICALLY (1) 11,91
THIRI'S (Sl IB,41 (8,8 18,11118,111
10. HI
THING II) 1..101
THRIH: (1) 1,14
THROWINO (1) [16,141
TUD II) 114,101
TIMI >1 10.6j 110'''1 OO,>1!III"1
(11.16 (11,10 14.15 {l4.11 16.1
TIMES (1) (16,151
TOWARDS (1) IS' U!
TRACTOR (1) .,51
THAI'PIC IU) (6,11 [10 III [to,'}1
110,lOJ (HI.1l1 (U,14\ (lG,16J HO,lOI
11,11 (11.111 [ll.ll) 14,101
TUlLIA (ll [4,5) (.,SI (15,101
TRANSCRIPT (l) {11,101
TIMSIT (11 1],41 [4, HI
TRANSMISSION 4) (Ii, 181 (9,9) (8,101
[<J,nl
TRANSMISSIONS 0) 16,l1J f6,101 P,81
1'RAHSflORTATION (LI (4,10)
TRAVEL (1) IU,61
TUVILING (ll (5,191 (5,211
TRIAL 161 1],61 (l,lQ) (5.11 [11,UI
TRIBD L) ll,16J
TRor)BLI III (11 .41
TRUCK UB) (4,If (4,61 (5,141 18,181
!s,nl (11,9) 111,15J (ll,:W 11,1
11,161 (1],16J [1311'l1 IUI121 {1l,l51
14,lll14,]J [14,1 (14,:21 {15.'"
15,9 15.111 (15.11) {16,SI [lli,'ll
16,HI {l6,11J {16,191 (11, l)
TRUCKS (4) (4,21 14,41 IS,lSI {10,JlI
TRUTH IS) 11,15 ILUI [L161 16,18
[1.111
TURNPIII (4) {SISJ [S,HJ {5.lJI 16,ll
TWENTY (1) 14}
TWO /21 [4.24116,J'
Type III (4,4 5,111 [6,211
u
UNAVAILABILITY (1) n,10)
UNOER III [7,21
UNDERSTAND (2} 111, l:.!1 112.161
UP (6) [<J,111 {lO,ll (11.121 [ll,Jll
[14,101 [14,161
UPRIGHT III 115,151
USED (1) [1,61
USING III 18,111
UTTERANCE III (7, ] I
y
VAN (11 [S, lS!
ViHICLB (51 [5.111 [S,lll ['i,lll (<J,ltl
Gale. Reporting (920) 496-9313
-
rIJl)'f'rMI.lM
fli.ltl
VIiHICLB.') (I) 11-1,141114,1'1) 114,HI
.
WADI (21 1],41 [4.1J!
\ffAI1'rNG (11 ['1.1.11
WALL (lJ) [JllJJ [l.LHI (11,.11 [lJI"
111.)1 Ill,S llJ,71 fll,101 {\1.1l
11, l41 [16,61 (10.U! [11.11
IlIARBHOUSlNO (1) 14.1'J
WATCHINQ (1/ (1.1,.151
WAYS III [14.11J
WKA1'HBR (:21 18.161 18,l)J
WBSTBGUND (11 (1).)1
WHITS 19) 1'1'1 1..111 11'1>51 [161"1
[16,51 {16.ti (1~.!f1 (llS,') (16,15
WIIOtll OJ p, U] (11,161 [U,'ll
WISCONSIN (4) (1.2.11 (4,111 (4. L'll
[4, lO!
WI.::iH (1) 1" 4J
WONDBP.INll 1) [11.401
WORK III 4,1J
WORKBD (II (4,111
v
.-.-.---.--...-..----.... .-----..-....
YEARS i21 (I HJ [4,11
Page 2
.' ,
, I
;
, , "
,
C,_
l~
, ..
L_ I
I ~'.
I' r'-
c... c '- ,
.
- ,. \';J
c; <i.
}.:':
to ,
,
.:"
','
( ,'''I
" I
,. ,LJ
c' <.
Lo
, r- .' .
C) u'" , .>
August 27. 1997.
10. Pursuant to PU.R.C.P. No. 401 9(a)( 1)( yiii). the ('llurt may. on motion. make an
appropriate order if a party. . . otherwise lails . . . tn obey an order of I:ourt respel:ting disl:overy.
II. The Court has the authority under Pa.R.C.P. Nll. 40 I 9(1:) to make an order staying
further proceedings until the Order is obeycd. imposing punishmcnt li,r contcmpt or making sUl:h
order as is jus!.
12. Furthermore. the Court may require a party or the attorney adyising such conduct
or both of them to pay to Deli:ndants the reasonable expenses, including attorney fecs, incurred
in obtaining the order of compliance and the order lor sanctions whkh the Deli:ndants estimate
would probably be approximately $400.00 to $500.00. Pa.R.C.P. No. 401 9(g)( I).
13. Considering that this action has aln:ady been tried. approximately a month has
passed since the Court's Order in this regard and there has been repeated opportunities to
comply. the sanctions requested arc particularly suitable for this willful disregard of the Court's
Order resulting in Deli:ndants having to lile yet another Motion in this case in which there
already has been several.
WHEREFORE, Defendants lespectfully request that this Court enter an Order imposing
sanctions upon Plaintiffs as this ('ourt deems just for non-compliance with this Court's Order of
August 27. 1997 including the payment of$I.211.87to attend the deposition of Dr. Brocker and
$400.00 to $500.00 lor the reasonable attorney Ii:es and expenses in obtaining the order of
compliance and
- 3 -
I
i
,
,
j
I
i
I
I
I
I
c\
1
exhibit A
"l.!
, ,~
r
I I
,
L
1"
I '
I'
0 u
,... u:
,... ...J ai
r....: .... z ...:
0.... '" 0 .... ~ 0
",:a ~ .... '" w 0
,... ,... '"
oJ~ .... '" 0
,... '" :< ':\
-'>- ""' ow <JI ~
""'" z w Cl.,Z U) ... "
z >- <JI ...J '" "" ~ . .
~z ..: .... ~ ... 0'" . j Ui 8 ~
0,,", 3: .... " 0 z
i"" '" . .... "'''' '" z"" :( , . " z
, .
"0 ... ~;z "0 .... . 0 Ul ,
0 "0 " " w.... " Z ~ It . ;
u~ " "'... ""'" " "" 0 % w 0 ~
" .0 " ',,", <1; .... ""'.... . z , <D z
"'Z "'.... ",w " .-l[-l , . . z
0::> >- ~ "" ...JQ "'0 U) 0 0 0 w
0 ""' -" "'~ ~ " Z <l. a.
..U ~ ""' '" ... . ~
'" .., ... :;] .., ~ .
::> ~ 0 ::> " '" '" '" u "' ,
0 0 '" .0 :< ,... "" ~ " ~
~~ .... "0 Z "" ~
I . " ...: .... . .
'" ~>- ...l " '" ,... 0: .
=""' '" :c~ z z ... .
:~ z w .... " r
oJ::> = U "" j "
0 '" 0 z w ~
HU Z ...J'" > -, .... '" "" ...
"
. .
Even if lhe (\'urt tinds lhat lhis i.ssue was preserved and not "aived. lhe Plainlilh'
citation to lhe case of RO/ane v. l'rnany. infra. is nol supportive to their position and not
dispositive of this "'''>lion. In RO/ane. the ddi:ndant's vehide rear-ended Ihe plaintilIs' vehide
while she was Slopped at the end ul' an exit ramp waiting to merge into tranic. 444 Pa.Super.
645, 6M A2d 619. 620 (199;). In addition. the dcli:ndanl admitted liability. hl In fact. the
Court stated "[iln this case it was undoubtedly dear thaI Appdlees negligence caused Plaintiff
injuries." 644 A.2d <It 62 I.
In contrast. the Delendants in this action vigorously delended liability and there was no
admission of responsibility. The jury was called upon to decide who was responsible for this
accident. The jury easily could have Illund. and in alllikdihood did lind. that Ddi:ndant John
Wade was not the cause of Plaintill's' alleged injuries considering th<lt Plain!iff l.eah Burkey had
spun out-of-control by her own negligence and ended up all over the highway. Mon:over. the
jury may have lound that both Leah BUlkey and John Wade were lesponsible lur their own
injuries/damages. Thus. the case cited by Plaintiffs and the rdated ca:!es simply do not apply
since they deal with situations where it is undisputed that there was liability and causation.
In Goertel v. Muth. 331 Pa.Super. 179.480 A2d 303 (l(84). the action <lrose from a
vehicular intersection accident invulving two vehicks ....here the basic issue at trial was who had
the green light. Liability was not admitted by delendant in the case and the jury was presented
with a verdict lorm similar to that used in this case. The jury lound the ddi:ndant negligent but
that her negligence was not a substantial factor in bringing about the damages. In addition. the
jury luund that Plaintiff was negligent and then continued on to determine comparative
negligence.
-4-
. . u I
,.. ... a:
"'oil '" .... ..
0.... ~ '" a: 8
en~ ;.r.
'" ~ s w ,"
i:i:':i '" .., 0
... Q 0
....,.. '" " " "- .
",en '" .... '" ... ;;J <11 .
Z ,.. .... .... . " <11 . ~
~ .
zz :'l ... OJ c.; " 0 J .
4 j 3
~~ "" .. -<: "'''' g Z <II .
'" " Q.... " -.: . . " i
.... ;.r.", " ~. . . 'j} .
o . '" " "';:j.... . 0 >
~ . . .
u~ " .... -' ~ . ,. .
" ... ~....C!: -<: . 0 ~
4 . . .. .
"'''' Q ... L . . .
00 ,.. '" '" <11 0 0 .
0 '" . ... a: . 0 u.
!-<U ~.,; "'''' . Z u.
... < d
'" <"I ~'-' ~
""Q 0 0 " '" U N .
,
~~ 0 '" " =< ... ~ " .
.... .&J "'" Z .
I . <11 " <>: . ii
'" ., :l .J <U Q a: .
;Ii", '" '" Z ... .
~~ ~ ~ 51 u.J " L
U '" ~
0 <11 0 Z W
....U Z -'''' :> ., .... '" ...
:a:
~lrtke an~ olher ~~hid~s and did nol ja~kknite th~ Irador.lralkr Ddendant was tra~e1ing under
Ihe ~p<=ed Iimll with Ih~ prop~r <;ontrol of hi~ vehide and th~ onl~ issu~ i~ whether h~ had the
approprial~ lilllowing dislan<;~.
II. LEe;..\[. ISSl'F.S AND PRINCIPLF.S
A. L1ABIUTY
The Plaintiffs have broullht suit against th~ driver of th~ lractor-trailer based on
negligence and their theory against him has now been narrowed to an alleged violation of the
assured d~ar distance rule. As r~pres~nted at the pretrial conlerence. the Plaintiffs' theory of
liability against the remaining Defendants is premised on the doctrine of respondeat superior as
well as some alleged independent negligence involving plessure to deliver a load at a certain
time. However. Dclendunts submit that there is no evidence of any independent negligence on
the remaining Delendants and that therefore liability. if any. would be solely on the basis of
vicarious liability.
In response. the Detendants contend that Dctendant Wade did exercise the proper assured
clear distance under the conditions existing at the time of the accident. Moreover. he was faced
with a sudden emergency caused by Plaintitl' Leah Burkey's loss of control of her vehicle and
therefore this is an absolute detense. based on the facts. to the claims of negligence against him.
Moreover. Dctendants contend that the true cause of the collision was solely Mrs. Burkey's
negligenc.: and theretim: she will be unabl.: to eSlablish causation and her claims may b.: barred
pursuant to the Comparati~e N.:gligence Act.
The Detendants also have raised a counlerclaim tilr property damage. service charges and
loss of use in the amount of $5.644.76. The Detendants' counterclaim is based on negligence.
.2.
to thc dircction of trawl. Plaintiff I.cah Burkcy admits that Ddcndant was not rcsponsiblc for
hcr initial loss of conlrolof hcr whiclc. Morcovcr. Ddi:mlants contcnd thatthcrc is no cvidcncc
that Ddi:ndant John Wadc had any signilicanttimc or opportunity to avoid thc situation creatcd
by Plaintiff. Id.; Troutman v. Tabb. 285 Pa.Supcr. 353.427 A.2d 673 (1981); I.cwis v. Mcllor.
259 Pa.Supcr. 509. )9) A,2d 941 (\ (78).
B. EVIDENTIARY ISSllES
Thc Dcfendal1ls haw liIcd a Motion in Liminc which addrcsscs various evidentiary issues
under the MVFRL. The Defcndants direct the Court's attcntion to its Bricf fikd in support of the
Motion.
One issue which may arisc in this trial was a hcarsay objection during the tclephonc trial
deposition of Wilncss Terri ChampagOl:. Tcrri Champagnc was a tractor-trailer driver who was
traveling in front of Dcfendant John Wade when she obscrvcd thc accident occur in her rearvicw
mirror. She testified shc was initially alertcd to somcthing occurring behind hcr by a CB
transmission which warned of a white vchicle losing control and driving too fast for conditions
and advising that this vehicle was an accident waiting to happen.
After receiving this transmission. Ms. Champagne looked in hcr reurview mirror and
observed the white car coming up behind her and then observed it lose control, hit the concrete
median barrier and then observed the collision between the vehicles.
The Plaintiff has objected to the testimony of the transmission as hearsay. Defendants
Iirst contend that it is not hearsay because the transmission is not being offered to prove the truth
of the matter asserted in thc transmission, but rather is being ollcred in the context of what drew
a witness to the scene behind her. An out-of-court statemcnt constitutes hearsay only when
ollcred in evidence to prove thc truth of the matter asserted. Anderson v. lJ.S.. 417 U.S. 211,
- 5 .
219 (1974). The testimony goes to the", ilncss' state-of-mind and ",hat drew hcr attention. its not
offered to prove that Leah Burkey "'as a eraL.y driver driving too fast for conditions and losing
control. especially when its already admitted that she lost control of her vehicle.
Moreover. the cn transmissiolls arc not the assertive type of cOllduct rcquired for hearsay
and arc simply warnings to othcr drivers. Such utterances are not intcnded expressions of fact or
opinion and therclore arc not assertions I'Jr purposes of the hearsay rule.
Even if the Court linds that this statement is hearsay. then the present sense impression
and/or excited utterance exceptions to the hearsay rule would apply. The present sense
impression is a statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition. or immediately therealier. See Commonwealth
v. Harris. 442 Pa.Super. 6, 658 A.2d 392 (1995). An excited utterance is a statement relating to a
startling event or condition made while the declarant was under the stress of excitement caused
by the event or condition. Obviously. the transmissions were made while the declarant was
observing the events and during the excitement caused by the events.
Another signilicant evidentiary issue is PlaintilTs' attempts to qualify Dr. Brocker,
Plaintill's treating neurologist, as an expert in chiropractic medicine to establish the
reasonableness and necessity of Plaintifl's chiropractic bills. Defendant~ submit that this is
entirely improper since Dr. Brocker admitted that he has received no education in chiropractic
medicine and is not licensed to be a chiropractor. Moreover. Dr. Brocker admitted during his
deposition that he did not even review the medical records to go with the bills so that he docs not
know what treatment was rendered and whether the charges that he alleges he reviewed were
reasonable and necessary.
.6.
('. DAMAGES
The D.:li:ndants strongly dispute the PlaintifE;' cI:Jimed injuries in this action. rhe
Plaintiffs will be offering the medk.tl videotape trial deposition of Robert 1. Brocker. Jr., M.D..
Plaintifl's treating neurologist. and the testimony of the emergency room doctor Jamcs E. flurley.
M.D. to support her claims for injuries. The Defendants will be submitting the medical
videotape trial deposition of Perry A. Faglc. M.D. to support that Plaintiff Leah Burkey had at
most some broken ribs and a cervical andlor lumbar sprain from the accid<:nt.
Plaintifl's neurologist Dr. Brocker contends that Plaintiff Leah Burkey has a traumatic
cervical disc displacement and cervical radiculopathy and also lumbar radiculopathy from th<:
February. 1994 accid<:nt. fie opines th,lt h<:r neck and back problems may resolve in three years
and also that they may be permanent in nature.
Plaintiff Leah Burkey has testit1ed in an Ohio deposition for a subsequent motor vehicle
accident which occurred on May :!O, 1994 that she was released from care for th<: F<:bruary, 1994
accid<:nt on May 19, 1994. She related hcr problems to the second motor vehicle accident. She
was also involved in a work-related accident on March 18. 1996 in which she re-injured her
back. She was disabled from this accident and awarded bene tits.
The Defendants arc not responsible for aggravation of injuries resulting from later
entirely unrelated accidents such as the second motor vehicle accident on May 20. 1994 and the
work-related accident on March 18, 1996. BOl!l!avarapu v. Ponist. 518 Pa. 162.542 A.2d 516
(1988); McKnilT v. Wilson. 404 Pa. 647, 172 A.2d 80 I ( 1(61); McGuire v. flaml<:r Coal Minim:
('0., 355 Pa. 160,49 A2d 396 (1946). Since Plaintiff Leah Burkey sustained injuries to the
same parts of her body in the subsequent accidents as sh<.: alkg<.:s she injured in the accident at
issue, she must individuate h<.:r injuries and damages sustained in the resp<.:ctive incid<.:nts at kast
.7.
Aug-27~97 02:05P Youngs. Neurologic Assoc. 330-747-9248
Youngstown
Neurologic
Associates
Robert J. Brocke, Jr., M.C.
Brian P. Brocker, M.D.
P.02
August 27. 1997
David L Hunter. Jr.
Al10rney At Law
821 State Street
Erie, Pennsylvania 18501.1316
RE: LEAH BURKEY
Neurolofly & Neuroeul'llery Dear Al10mey Hunter:
. Neut.v.ro"'~
.l'edMtIc~
.S_*IIc~
. *-UIVIIY
. SpIMI SUIgIIY
. NecII.Itad,...
. c...,., mflrcf/On
. CetJNI Tunntl
. SeIIuIu
. Neun/t,.
. Nelwllocb
Complete DlqnoetlCll
. ~ .ta..- crs....nln'
. MIll s....nlll,
.1t.RIp
. ...........
.CIa.....-
.Ne'h
.IMG.
. lEG.
. ItIOftd Potanfilll
.U~
.7Il.........fIlIt,
yO....II""'.... OllIe.
1.1. Covlnglon It
Y_II._. 01110 44510
Ph_ (3301747-1215
F.. (3301747.1:141
MRl c.w
1300 1IoInIlft....c...ftold Rd.
IIoardm.... 01110 44S1l
Phofle (3301721-7575
Fa (3301721-7579
I saw Leah Burkey in the office today. As you know. she is a 35 year old lady
with complaints of neck pain and headaches. These problems began aner she
was involved in an automobile accident in February of 1 994. She Is also having
low back pain that radiates down the dorsal lateral aspect of her right leg. She
has chronic daily headaches that are sometimes provoked into a nauseating
migraine. She has numbness and tingling of her right hand and fingers and has
been dropping things with her right hand. She says that the severity of Ihe pain
on a scale from 1.10 is an 8. This pain is disrupting her sleep. If she bends
forward. sits. slands. walks. or coughs the pain in her neck gets worse,
Leah is allergic to Codeine Her past medical history is relatively umemarkable
except for 80me peptic ulcer problems. She has had some arthritis. She had a
partial hysterectomy in August of 1996. Her 80clal history reveals that she is
separated from her husband. She rarely imbibes alcoholic beverages and
smokes ~ pack of cigarelles per day (which is less than before). She drinks one
cup of coffee per day, denies use of recreational drugs, and does not drink lea.
Her family hlslory reveals that her falher is alive and well at Ihe age of 68 and
her mother is alive and well at the age of 64, and neither one requires
medications or has any major disease processes.
A complete review of syslems did nol reveal any new disease processes. All
her prOblems are related to her neck and back pain. Sometimes when a
headache becomes more severe she has Iighlheadedness and dizziness,
General physical examination revealed a 35 year old lady in some distress wilh a
blood pressure of 110170 and a pulse of 86. She was afebrile. She Is 5 feetlall
and weighs 160 pounds.
Neurological examination demonstrated a pOSitive Spurling to Ihe nght neck base
with right C6 and C7 hypalgesia There was a decreased right brachioradialus
reflex as well as a decreased right Achilles' tendon reflex. Galt was normal. No
other deficils were seen.
u
. ?:i 0:
"'< ...
0.... .... '" .. 8
"'~ '" ~ a:
~'i:j ~ w '"
0 '" 0
....1>- UJ ... ~ . 6
..'" '" <II .
~ffi ~ <II UJ <II ;i:; <II . ~
.... ....1 "' ~ . .
.... ~ ." ....1 4 j Iii rS !
~.. '" ..... t:) '" -<: z . .
"""' Oi!:Z~ ~ '1: . , ,^ <<
0 . "" "" LiJ......~ '" . a "' >
U~ " "'.... ..'" " ... 2 ~ If. . ;
"'.., '" UJ<'.J.... I w a .
"'~ <II.... '" " ~ 4 . :. ill .
00 >< ::I" ....e X . . .
UJ.c: .. <II ~ 0 0 .
...u 1:1 ... UJt:) a: . Z a. a.
'" .., :i!<3 '" ... 0( ci
~~ '" :> " ~ .
0 ",.c: :>:"" ... ',! N ,
- ~ ~ '" .
I . . . " ~
'" ~~ ....1 '" '" . .
~~ a> z a: .
<<
",. UJ ... t
. O::U ... '"
0 <II 0:<: UJ i:!
....U Z ....1'" > .,.... e ...
~
. .
. .
LEAH 1. BURKEY and [)WA YNE
BURKEY. her husband
Plaintifr~
IN nil' ('(){IR r Ill' COMMON Pl.EAS OF
('{ 'i\.IBFRI.:\NL> e(){ 'NlY. PENNS YLVANIA
CIVIL A('TION -LAW
vs,
N().'lh-IOIU
JOHN L. WADE. DEPENDABLE
TRANSIT. INC. and G&G
LEASING.
Dclimdants
JURY fRIAL DEMANDED
DEFENDANTS' PRETRIAL MEMORANDUM
I. Statement of Facts on Liabilitv: On February 23. 1994. Plaintiff Leah Burkey
was operating a 1989 Mercury Sable and lost control of her vehicle while tmveling east on the
turnpike near Carlisle. At the time of the accident. the roads were covered with ice and snow.
Her vehicle traveled into both lan.:s. spinning and sliding and struck the concrcte median barrier
separating th/il eastbound and westbound tramc. At the time that Mrs. Burkey lost of her control
of her vehicle, Delcndant JOM Wade was \Jperating a tractor-trailer which was owned by
Defendant G&G Leasing and leased to Delcndant Dependable Transit. Inc. in the left lane
eastbound immediately behind Mrs. Burkey.
Defendant Wade applied his brakes and allcmpted to take evasive action but was not able
to come to a complete stop before striking Mrs. Burkey's vt:hicle. which was across both lanes of
travel. Defendant Wade was able to keep his tractor-trailer under control so that he did not strike
any other vehicles and did not jackknife tht: tractor-trailer. Delcndant was traveling undt:r tht:
speed limit with the appropriate following distanct: and with tht: propt:r control of his vehicle.
2. Statement of Facts on Damal!es: Plaintiff Leah Burkey contends that sht: sufli:red
a head injury. neck injury. back injury. brokt:n ribs. headacht:s. shouldt:r and arm injuries, leg
injuries. hip injuries. pdvic and stomach injurit:s and foot injuries as a result of the accident on
February 23. 1994. On May 19, 1994. Plaintiff Leah Burkey was rdeast:d to return to work and
did not require any further treatment. otht:r than on an as nt:edt:d basis. Howevt:r, she W1S
involved in a second motor vehicle accidt:nt on May 20. 1994 which resultt:d in furtht:r injurit:s
and treatment to most of the same body parts. In addition. sht: was involvt:d in a work-related
injury on March 18. 19'16 of her lower back. ti,r which sht: is pursuing workers' compt:nsation
claim.
Mrs. Burkey has tt:stilkd in Ohio in a deposition lor the second motor vehicle accidt:nt.
for which she is pursuing a claim. that shc was rdeased from medical care on May 19. 1997 and
that she was released to rt:turn to work bclorc the second accident. Delcndants also had Mrs.
Burkey undt:rgo an IME in which tht: perlilrming doctor concluded that she sufli:red at most a
ct:rvical and/or lumbar sprain Ivhich resolved itself and some rib fractures which arc now ht:aleJ.
Tht: (ME doctor also found that shc nceds no furthcr trealment. the bulk of her P,lst treatmcnt
was unnecessary amI unrcasonable and that she cxhibitcd symplom magnilication during thc
t:xamination.
3. Princirml Issucs of I.iahility ,lOd Dama!.!cs: The Plaintifr:~' claim is hast:d on
negligcnce against John Wade for allcgedly tailing to maintain the assurcu clear distance ahcad.
The Dclenuants contend that Delenuant John Waue diu exercise the proper assurcd clear
distance ahead. was laced with a suuden emcrgen9 caused by Plainti ff Leah Burkey's loss of
control of her vehicle and that the causc of collision was solely due to Mrs, Burkcy's negligt:nce.
The Defendants also contt:nd that the Plaintiffs' claims arc barrcd pursuant to the Comparativt:
Nt:gligenct: Act. Tht: Plaintiffs have not t:stablisheu any basis for liability against the Dt:tendant-
employt:r or tht: It:asing company and Defcndants will b~ submitting a Motion in Limine in this
rt:gard.
As far as damages, Dt:lendants submit that Plaintiff Leah Burkey sustained at most a
slight ht:ad injury. rib fractures and somc strains/sprains which wt:re resolved prior to her second
motor ychicle accident on May 20. 1994. Delendants contend that any further treatment
fi)lIowing May 20. 1994, was caused by subsequcnt accidcnts. Howeyer. PlaintilT was not
exhibiting any injuries whatsoever at the time that she was examined on March 17. 1997.
Dcfendants also have a counterclaim for property damage. service charges and loss of use
in tht: amount of$5.644,76.
4. Summarv of Le!.!allssues regarding Admissibility of Testimony. Exhibits or any
Other Matter: The Defendants will be submitting a Motion in Limine to exclude any evidence
against Delendant-cmploycr and Icasing company as no discovcry has been taken in this regard.
the case was listed for trial undcr agrcement of the parties and thcre is no evidence of record to
support any claims. Moreover. Defendants will bc rcqucsting that the Court exclude any
evidence concerning Defendant Wadc's driving rccord or similar mattcrs prior to the accident on
February 23, 1994. becausc such evidcncc is not relcvant. inadmissiblc and should be cxcluded
from the trial in this action.
Dcfcndant will also be seeking to admit into evidcnce thc Civil Complaint filed by the
Burkeys in the Court of Common Pleas of Mahoning County, Ohio pcrtaining to the motor
vehicle accident on May 20. 1994. the deposition transcript of Pluintiff Leah Burkcy taken on
May 9. 1997 in thc Ohio action. and the Ohio Burcau of Workers' Compcnsation documents on
Plaintiff Leah Burkey's work-related injury on March 18. 1996 and an application lor
employment submitted by Plaintiff Leah Burkey which was complcted l)n March 6. 1995.
Plaintiffs' counscl still has not submittcd a complcte listing of the medical and
miscellaneous cxpenses Plaintiffs will be claiming in this action. dcspite thc scrvice of discovery
in this regard. Dcfendants will be secking a Motion tll Compclthis information at the risk of
preclusion.
..,
,
i.sue i. to be utilized by Plaintiffs, including any evidence of
the driver'. prior driving record, Plaintiffs shall first secure
Court approval for introduction of such evidence. Defendant G&G
Leasing was the lessor of the tractor being driven by Defendant
Wade.
Plaintiff Dwayne E. Burkey sues for loss of
consortium. Defenses include the absence of negligence and
contributory negligence,
This will be a jury trial in which each side
will have four peremptory challenges, for a total of eight. The
trial is estimated to be of a duration of three days.
One issue which may arise at trial involves the
right of Plaintiffs to recover if the Plaintiffs' vehicle was
not covered by proper insurance. Briefs on this issue shall be
supplied to the Court at least five days prior to the
commencement of the trial term.
To the extent that any deposition testimony will
be received by the jury in lieu of live witnesses, and such
testimony includes objections which are being pursued by
counsel, counsel shall furnish a transcript of the testimony to
the Court at least five days prior to the commencement of the
trial term, with the areas of objection being pursued
highlighted and with brief memoranda in support of their
respective positions.
By separate Order of Court, the Court has
Chambenbur8 1I0spital and her neurologi~t from Ohio. The Plaintiffs will also offer the
te~timony of Nel!lOn Ruddy. the driver of the vehicle in the slow lane who observed the incident.
and his passenger. Donald lIall. who observed the same events. Mr. Ruddy and Mr. Hall were
deposed and their depo~ition for use at trial will be read into evidence. due to their unwillingness
and unavailability to travel from Ohio where they reside to Cumberland County for trial.
II. Statement of Liability.
Plaintiffs allege that John Wade. the driver of the 1990 Kenworth. failed to maintain an
assured clear distance and failed to exercise extreme caution due to the conditions of the
roadway, to-wit snow and ice dUf: to inclement weather on the date of the accident, February
23, 1994. Plaintiffs will offer the expert testimony of Kenneth G. Eland. a mechanical engineer
with over 3\ years experience in the trucking industry. concerning negligence of the defendant
truck driver. The remaining defendants, G & G Leasing and Dependable Transit, Inc. were the
owners and lessees the tractor-trailer. respeclively. and are liable on the basis of vicarious
liability and as a result of their master/servant relationship with the driver of the tractor trailer.
1lI. Witnesses
Witness Damages Liability
I. Leah Burkey X X
2. Dwayne Burkey X
3. Nelson Ruddy X X
2
4. Donald Hall X X
~. Kenneth J. Eland X
(report attached hereto)
6. James E. Hurley, M.D. X
(report attached hereto, supplemental report to be provided)
7. Robert J. Brocker, M.D. X
(report attached hereto, with supplemental report to be provided)
IV. ElIhibits
I. Photographs of 1990 Kenworth and 1989 Mercury Sable
2. Medical records of Leah Burkey from Chambersburg Hospital & Robert J. Brocker.
M.D.
3. Pennsylvania State Police accident report
V. Unusual Legal Issues
None
The Plaintiffs respectfully reserve the right to call witnesses listed in defendants' pretrial
narrative and to file a supplemental pretrial narrative when supplemental ellpert's reports are
received from Dr. Hurley and Dr. Brocker. Dr. Brocker's deposition for use at trial has been
tentatively scheduled for August 27, 1997 or September 15, 1997. depending upon his
availability.
3
00-12-1',97108: 13P/1 FROM /<ENI',ETH t;,. EtJ,tli; O.C
Lj
1~3144S~237l P.~3
J, ~
, .f
Inilial Rcpon of Findings
August 12, 1997
Burll:.y v. Wad.
rNCIOENT
On Wednesday 23 FEB 94 at approximately 0912 hours, Leah J. Burkey
lost control of the automobile she was driving eastbound on the
Pennsylvania Turnpike. As her automobile came to rest after
striking the medial barrier, it was struck broadside by an
eastbound truck-tractorlsemi-traller combination driven by John L.
Wade.
DOCUMENT AND FACTUAL SUMMARIES
The follOWing were considered 1n the preparation of this report.
Pennsylvania State Police Accldint Report 15-3667BO
Photographs of the Roadway and Vehicles
Statement of Lori Champagne. . .
Photographs of the Truck-tractor
Statement of Nelson Ruddy.
Statement of Donald Hall
Deposition of John L. Wade .
Deposition of Donald Hall. .
Deposition of Nelson J. Ruddy
23 FEB 94
23 FEB 94
23 FEB 94
01 MAR 94
22 MAR 94
22 MAR 94
03 FEB 97
08 JUN 97
08 JUN 97
Accord i ng to the Pennsy I van ia 5ta te Po 1 ice Acc i dent Report, the
incident took place 260 feet east of the 203.4 milepost of the
Pennsylvania Turnpike. The Burkey vehicle was a 1989 Mercury
Sable VIN IMEBM50UOK6645687. The Wade tractor was a 1990 Kenworth
T-600 VIM INKALB9XILJ547203; it was a 5-axle combination, pulling
a van trailer. The motor carrier is Dependable Transit Inc.,
Hartford City IN, MC-152730. It was daylight at the time of the
incident, and the weather was snow, with plowed snow roadway. The
roadway was level at the scene of the incident. The Kenworth
struck the Mercury 30 feet east of the point where the Mercury
struck the medial barrier after moving from the fast to the slow
lane and back to the fast lane again.
Photographs show that the Mercury was str~ck at apprOXimately the
location or the B-post. The Kenworth showed damage to the
passenger-side front fender.
Nelson Ruddy stated that he was eastbound on the PATP in the slow
lane at approximately 35 mph. It was snowing at the time of the
incident, and the slow hne was bumpy wiH, Ice. Visibility was
satisfactory. The Mercury passed him and, approximately 7S yards
ahead, its rear end hit the medial barrier. It spun off the
lIedial barrier, and was stopped, or almost stopped, when it was
struck by a truck in the fast lane. The truck passed him while he
was slOWing in response to the actions of the Mercury. He was
~. able to stop without being involved in the collision.
:L
~' .
1
~
~
1a8-12-l'3'3? 0:3: 13PI1 Fi<CM KE"""ErH G. ELHND 0.':.
rl~l
L:n.1.15.1~..;;?l P.iJ4
'. .
\ ,
^
Initial Rcpon of Finding~
Au&ustl2, 1997
Burkey v. Wade
nPCU~ENT AND FACTUAL SUM~ARIES ICont'd}
Donald Hall stated that he was a passenger in the Ruady vehicle.
There was snow and ice on the roadway which ~as very rough 'rolll
the ruts and tire tracks. The Mercury pass~d them. then went out
of control approximately 5-6 car lengths ahead. He believes the
rear end of the Mercury hit the medial barrier; it then spun out
and callie to rest in the middle of the roadway. After the Mercury
cille to a stop, the tractor-trailer in the fast lane hit it. The
point of impact was 4-5 car lengths ahead of their vehicle. They
were able to stop without being Involved in the collision.
Lori ChaRlpagne stated that she looked in her mirror and saw a
white car lose control. It hit the medial barrier in front of a
truck which then hit it.
John L. Wade stated the he has been driving tractor-trailer
combinations since 1980, and has been with Dependable Transit
since 1983. He had been driving the Kenworth since it was new in
1990. He never had a problem with the brakes or the air system of
the Kenworth. He be 1i eves he had departed Hart ford C lty I N the
lIIorning of 22 FEB 94, and picked up a load in Muncie IN destined
for Orrtanna PA. He had spent the night of 22 FES 94 at the
Sidel1ng Hill rest area on the PATP because of the snow storm.
He called dispatch from Sideling Hill and advised that he would
not make his Wednesday morning appointment at Knouse Foods in
Orrtann.. He estimated his arrival at 1000, but would be there as
soon as pOSSible. On 23 FES 94, the roadway was snow-covered and
slick. but It was better than the night before. He was
travelling 40-45 mph, and had no difficulty. At the time of the
incident he was travelling in the fast lane because the slow lane
had ruts and potholes in the snow. While passing other vehicles,
he saw the Mercury go out of control 2-3 truck lengths ahead. The
rear end of the Mercury begi\n going back and forth, hit the
guardrail, went from the fast lane to the slow lane then hit the
wall, and went 'over here and back over here". Meanwhile he was
trying to brake and keep his truck under control as close to the
wall as possible.
y
t' '4
:.(
2
08-12-1'39'7 Bu: t.IF-'I'f FRIJM "U-.tjETH l::i. El_~ND 0.'::.
fiJ
181~~S~2371 P.05
'. ,
\'. 'I
Initial Report of Findinjs
AUjUSl12, 1997
Burk.y v. Wad.
DISCUSSION
There .re tMO s.p.rate incidents Involved; the 1055 of control .nd
spin-out by Burkey, and the collision of the truck Mith the
Mercury. The second Incident involves the third prinCiple of
def~nslve driving. The Margin of Safety - the distance. driver
allows between hls or her vehicle and the vehicle ahead. The
Federal Motor Carrier Safety Regulations require that the driver
of a co..erclal motor vehicle exercise extre.e caution and reduce
speed when conditions such as those extant at the time of the
incidents are present.
Separ.tion between vehicles is rightfully measured In time. By
doing so, following distance 15 automatically set, regardless of
the speed of travel. For example, a separation of 5 seconds will
yield. following distance of 440 feet at 60 mph; and a following
distance of ZZO feet .t 30 IIIph. Deterlllnation of separation by
tim. is easily accomplished; count seconds after the vehicle ahead
passes a landmark.
The purpose of maintaining a proper fol10Ming distance is to allow
the driver to respond to occurrences ahead, and take appropriate
action. There are two actions that can be taken. braking and
steering. In driver tr.lning, the writer recommends a mlnlmulI
follOWing distance of 4-5 seconds on dry roadways in heavy
traffic. Where possible, thls should be increased. During
inclement weather, this separation should be increased by SO-100~.
The loss of control by a vehicle ahead during adverse conditions
of vehicle traction, such as those 8lIhnt at the time of the
incidents, is re.sonab1y foreseeable; particularly to a
professional driver. Wade stated that he was 2-3 truck lengths
behind Burkey when she lost control of the Mercury. Allowing 60
feet as the 1.ngth of a tractor-trailer combination; Wade's
following distance was 120-180 feet. At a spud of 40-45 mph,
this is a range of separation of 2.0.2.7 seconds. This is half of
that which is reasouble on a dry roadway, and 1/3-1/4 of that
which is reasonable for the conditions e~tant at the time of the
incidents.
Had Wade been maintaining proper following distance. the
spin-out by Burkey would have been an isolated incident. Wade's
failure to maintaIn a proper following distance resulted in the
second i nc I den t. Wade had reduced speed as requ I red by the
Federal RegulatiGns. but he faIled to exercise extreme caution.
'. ~
I
J
.. ';'
"Ii.
~
1di;j-l:2-l'3S7 88: 150"1'1 FROM KENNErH G. ELAND a.c.
TIJ
1:3144542::;'/1 P.ol?
KENNETH G. ELAND
TRANSPORTATION MANAGEMENT SERVICES
P. O. BOX 36
WESTTOWN. PA
19395 ' 0038
TE~ 810.39t-0747
FAX: 810 - 399 . 0281
3207 ASBURY AVE,
OCEAN CITY, NJ
08226
TEL: 809.399.0746
FAX: 609. 3Q9 - 0748
C1J1UlICULllJI VI'l'AB - KBNJfB'l'H G. E:UUID
'!DtJ(!A.TtOff:
Drexel Unlv.~.ity, Phila., pa, B.S. Mechanical Engineerinq, 1959
West Pbiladelphia Hiqh School, Phil.., Pa, 1954
gggR9ES TAUGHT IX .IELO OF EXPERTygg:
COntinuing Educat.ion: The Pennsylvania State Uni versi ty
Michigan State University
Ongoing guest lecturer covering the following topics: High Technology Tools I
Equi~nt, The Basis for Specifying Vehicle Components, Maintenance Shop Work
Planning I Scheduling, Malntenanca Budgeting, The Role of a Maintenance . Equi~nt
Manager, Functions of Manageqent, Supervision, Driver Training.
SPECY~t. OUAL~.Y~TYON9:
Pennsylvania Commercial Driver's License Class A, with Air Brake, Tanker and
Hazardous Materials .ndorsements. Extensive experience in trucks, including
tractor-trailers and hazardous materials. Hands-on experience in mechanical work and
walding, perfo~nce auto.obiles and motorcycles.
'R'YPlI!Rt1=::HCE:
1981 On
CONSULTANT IN THE AUTOMO'l'IVE FIELD.
Services cover vehicle application, maintenance systems,
management, driver qualification and training.
. Detel'1llination of propel' component spec If icat ions fOl' heavy trucks frOll
operational analysis.
risk
. Optimization of vehicle configuration from product handling and weight
distribution require.ents, particularly permit and specialty
applications.
- Analysis of component performance and fa~lures, with emphasis on
dl'lveline, brakes and steering.
Preparation and modification of ~intenance programs for fleets ranging
from .etor carriers to taxicabs; private and municipal.
1
1il8-l2-10i'l7 0;':: 15FM FROM KENNETH G. ELriND O.
rlJ
~,j1445.j23"il P.id8
CURRICOLOII VITAl - .....tAU;.. G. .BLAIfD
CONJULTAN'r IN THE AIJTOMOTI~ FIELD (Conl;'ct).
- Development and presentation of various specH1c, rigorous, successful
driver training programs.
- Development of fleet risk .anageMenL and safety proyrams.
o Review and analysis of records and procedures for c~llance with
federal regulations.
Establismaent of continuing driver qualifica~ion procedures for ~tor
carriers,
- Investigation, review, and analysis of vehicle incidents for cause and
preventab i 11 ty.
o Lectures to fleets and industry groups on componentry, ..intenance and
safety.
o Retained to manage the liquidation of a large truck dealersh1p.
o Services to law f1nus, including court test1G1Ony.
1975-1981 KENWURTH TRUCKS PHILADELPHIA: Sales Manager.
1981 On
- Provided engineering support for salesmen dealing with detail.d fl..t
specifications and applications.
- Developed c~uter programs for truck application engineering,
providing salesmen an effective knowledge base.
- Instituted a decision-based used truck marketing program, involving
reconditioning and analytical appraisal. Supervised a team of
..ehanies responsible for the repair work.
- Supervised a team of drivers lOving new trucks and retrieving wrecks
thoughout the country.
- Chaired E~loyee-"anagement Committee.
1973-1915 PBTERBILT KO'l'ORS COMPANY: R-.qional Manager.
o Developed design parameters and marketing projections for a specialized
vehicle, adopted as the model 353.
- Handled dealer special warranty approvals.
- Advised dealer body on matters of service, parts, sales and finance.
z
08-1.2-1'397 08: 16Pf1 FROM KE~~,C:TH G. ELHND o.e.
ru
1814-1:.-I2J'I1 P .Id:l
C1DDUc:tJLIlM VI'fU - KJDINE'1'B G. &LARD
1965-1973 ATLANTIC RICHFIELD COMPANY: Motor Vehicle Engineer.
- Developed coaprehensive, perforaance-based specifications for
prOCUfelent of all classes of motor vehicle and trailers.
- Developed special short tank trailer for city trucks.
- Developed complete air control system for oil delivery trucks.
. Developed corrective measur.s for heavy truck ride problems.
- Developed access systems and working surfaces for vehicles.
. Investigated the impact of power on performance and fuel econo~.
- Pioneered automatic transmissions In heavy city trucks.
. Pioneered electronic anti-lock systellS for air-bra:.ed vehicles.
- Pioneered fiberglass utility bodies in the oil Industry.
- Analyzed vehicle noise "isslons and remedies required for compliance
with federal regulations,
- Integrated and developed bottom-loading vapor-recovery systems for tank
trucks and trailers.
1962-1965 ATLAMTIC RICHFIELD COMPANY: Jr. Design Enqlneer.
- Worked under project engineer on major refinery modifications totalling
$50 million, assuming responsibility for review of contractor's
specifications for mechanical equipment and integration of the new
units into the refinery.
1959-1962 U.S. ARMY: Ordnance, White Sands Missile Range.
- Served as te~t engineer and sole military representative on a civilian
project group Investigating flight characteristics of Nike-Hercules
.issile under zero-length launch conditions.
3
r.
N~~
Neurological Diagnostic Clinic
Robert J, BtoCk,r, M 0.. F A,C,S
Robert J, BrOCk,r Jr., M O.
A N,u,o(o,;co( autpofllnt Focility
0\: ~I:'I':::;;;'
.-
'. .
!.::v;.
MJ.c:h:-j,;~,l J. F,=:,l'~llnl'l. 1:'ltt-'~:'r:'it:-"" r-'tt L,~Vl
55 F':,I~-:,!1. \,1". :;,1!J.-:1j'-\:~ ~~I.l1. t:~-::. ':;','11>
Cl~:', ,.r .,n.!. I-ill ,I.!: I"
De::-H- 1=-11' \.~ r".. I"'! ,1'1' I;:
Fi~_; L:,:' -,h r~UI"~-~!'"
Lr:.;;1!-'; f~~_\r-;:<' h.t; to. S~-',,-:!-, ".; I:hl'~ ~'l"'lJr~:-l-,,,(] Lc.::-ll D,l.,~IJil'J'5tic Clin~(:
on {1fJi'-L: 1'~, Tt'il"" ::,.'r-:-'.'lr"' wi.::! fl:Ol1\dt~ ~'l~j"~ ccmr'l:lini.nq Ot
~h~('p i-':'''; i..,::\(t. !.I,O:lll'l Lf"I Ii":::;" ['n:.,:..d, 1"J':;;:~"f and m.id- tr..1 lijt'Jt:'r'" bt:\c~;
r'1~(JLOI'I':':. :::~-,~", rf'l'i'<:):'~:.r-''':! Cj: hl"1"I'!,:\;':r)',:~':~ c,f he~" entil'-p ~k,',:-td, "'"'lith
.....-~di~'l:LI-.::'n t,:, h,-;'r II'-"":~ ..;tn"i :::",'y_!ld'i'r"~;. ~:;he SL3t.t?sth,:\I; shl'? ~;I.IFft:-H"ed
;1 he.:;d ':f.:.\u:n,-\ ~.Jl-"1:~t, j"oE"":-t':lr',::,-J i';p:~::"jl ~I'.:\plj~c:'> I:(~ clc_-;21 the vJClund,
which l~ ~~I._I;irt'J h!~r- a 11"t (~~ paLIl nO~~I. Her pain dj.stLlrbs har
.::;.l.:.?"'-''':;.. ::;:\~'I':" L~:':',:I':,L;;'\IJ'i;:- C!;-~ nl..,lljhn\:-:'~';:~ ()f h,::r i:in,~":'!"';;. P0ndin(J t:end~j
t,:, _'-t:":~ ,.",1:.':' :1"1' l:''',rILJ';.~:,I.IJn. ::j::'tf~ r-,_:.\t'J!:~S Oll-::I?t o{. h~,'~' cc:lndJ.l:icn 1:0
,,:.n "~'I" :-"'1 ! 1. :.\c:.:: td',:,;-: I.:' '~H'l ~:'-=-::'~ ":',i..l1 ~11),,7'n ,:1 ~1~llii.-I::'"3CtOr- tr-::\,i.ll?f"
'st~-I.IC! l"':,~, .,;>~,;"R l:'-~, c,r'l l:i-tl':' l:,.'.n-tp.~k,~ Ul i:'~.:'nn.;\/l'i':lni.a. Shn vJar; ndt
\f'JI~ I'~~ i Ii (:J .
F:ECE:ilr i:'lrl;-' F':~:.:Z';.~::",;r l"If':D!Cr'ifTtJr-l: Tlie pi1!:i.ent lir-:t.?d DoJl""/OCl,=,l: ~.l 10(:),
~ji,-=,:)::Jll"I~ ,~rl\:l T',~'2f.,)l 1t-:,':.'1 ::-c;~ :,~j'-l.?'5cr~LbS'.d b'! C'r. Ca~:italdi, and
An2\pr-r.::; ~\.;:; pl.","C~t~,"'1.!'::,":.'d b'/ r-r--~ P,::~::'r.. ='Jh:;.' hE~'S no knollJn c111i?rg.i.es to
m.::--:-Ji.':','it:tnn. :3r'f'.> d~:nJ.~~'.-J ~tl...:.~.':J./ to :::,Jlt~ fLr:h, or- ~(-I"'.~y d','e.
j:'I::'.2T H!:;:-Cl~~:
T!-~e 0~st !1i0t'j~-V r~v~Jled tl,~~ th0 p2tient was
h':~,!;.;-'.!:.:,tL;:C' 1;'1 t.~j"'" hJr .:?Ii ,::".',:\r"li:1rl C','3t.
:3c,r: I',;
H :-.::
-,-,.
0'1:-1
l'!,:\?~ "'::;;
-;- :-:~-. p;'\ t i, !"'~n ': S:!I~:::.t
t ,':: f; '\''::
c ~
c: 1. 0,';:; '"': ::. :--'.-'" ",,' ,~, -' ,
::: ~
n';,~I...\:ne:.::
ten
C>Je,';5 G f
m,:;n the
.-.: (j ;: F '.;~': p ','} t~ ':!:"4'/.
SI-:\=:.
,:;::r: = '.!IT,
:~ : ':- ~.;- .- ~ . ':
b~~'.'t?-~,;i,:::::.S: C'('C~?
!:,.-:?t'
r:.::,...!IL'.,' Hr;TfJ::;I': T:-"o:, p:,t':'S::.i~:"=- P':1f~~J~,t:1 ~lr-~ ~t1.'..e z\r1(! vlell.
is a hL~t~j~( ~~ I:~n~~~ li~ h~~ f~')lilJ.
Th!~'..,;:?-
S'r"3TSj1rC F:~::'.'!E'.:;: r~ ::Q:Tl::.:l:;;.t.-:~ re\iif:~'J Ot thii-: s'is~:em':: r-!2'/E'..,!ad thai:
the r::~~:_i. -,;. ;', h~\j f~If.-"_.,:~:'- ';::_:';:'-::2f',~d r~~cm p;-:':-~'_\"n',jr'ia, hyr:.e:.-ten:dc.n,
rM.=:t'.l~i',:~LiC rt'=1';f-~;-1 !:L:!:"?r,;~'_\lIJ':;i:;. C.:1nc'::t-, he,~ft: dL<;e.-;\s;(~, di-~bel:es~
5l\"]! h,'C;I!'"l:--',"j r.':~,>L..!,,~'(i;'^ '_' t'ILj':H"'.::i=-(-;''::'~.'::. Th':'2 pi~I::L"-~fl!: Euffl"?red
fro/;: ,'-'~"1 ~}l:.:'~"~- in tr.;o'~.~.
GErli::?Rr:-;L
\..JA: 1.-=1 h':!ij
PH :,.:; TC>~!_
ltl'j 1 b.
E (;~,r'l: Tills::: ',--'?,;:H'- old f!?ln,-:ile i~ 5' Oil and
!.::t':'iGd !-:':--P'::.-;'+.Ir""(:: 11(I/7<J. F'ul':!e: 6",.
H'-'r-~-.. t!.'n'J":::, bl'"'i'o-~,l'3~,::: 2nd -=,bdc':ne:l ~'I':-_'!'"-''':'
,'11: 1 ',,?':O: ,'. :::'r, : .
dF.:"/rJ 1. d
Ft?:; ~::. L r' .:-' !" '.. '::. !-, ,,"
Oi: ':in".
,~_ 1:; R: .:. -+- .~ ~
'6~~ ClJ'/'rtgfCrl S!rl!~r . YOUi"'!f}'itoJ'Nn. OhiO .tJ510 . Phon/'! 12161 iJ7-3215 . Fax (216) 747-92.:a
MAl CENTER. 1;1f)1) 8L1Mr1rn,ln.r:,lnhf~ir1 F'l(lJ': . Bo.lrdman. OhiO 44512 . Phan+J (216) 726-7575' F:!1- (216) 726-757'9
1..1IJ\MBERSAURG
.1AMBERSB~RG, PA
HOSPITAl,.
17201
.
DISCHARGE SUMMARY
BURKEY, LEAH
MR,.: 457128
Admission Date: 02/23/94
Discharge Date: 02/25/94
J. E. Hurley, M.D.
FINAL DIAGNOSIS: 1.
2.
3 ,
Multiple trauma.
Right 5th rib fracture.
Scalp laceration,
OPERATIONS/PROCEDURES: Closure of scalp wound.
DISCHARGE MEDICATIONS: Darvocet N.I00 prn.
ADDITIONAL INSTRUCTIONS: Cleanse wound b.i.d. with H202 and apply
Bacitracin. Regular diet. No strenuous activity.
HISTORY: The patient is a 32-year-old white female who was involved
in a 2-car (car vs. tractor-trailer) motor vehicle accident at 9:30
a.m. on 2/23/94 going approximately 20 mph on the turnpike. She
denied any loss of consciousness and was not wearing her seatbelt.
She was trapped in the car for 1/2 hour. She complained of right
chest pain as well a~ head pain. Her vital signs were stable on
transfer. Her Glasgow coma scale was 15 on transport. She had no
alcohol on her breath.
PHYSICAL EXAM: A well-developed, well-nourished white female in no
acute distress. Blood pressure 138/74, pulse 74, respirations 18.
HEENT - revealed 2 1/2 cm. laceration to the occiput with no bony
deformity palpated. Neck, heart, abdomen, extremity, neurologic,
pelvis, back, and rectal exams were unremarkable. Examination of
the chest revealed clear and equal breath sounds. Chest wall
slightly tender on anterior right chest wall. No crepitus or
displacement palpated.
The patient wa~ found to have laceration of her occipital region of
the scalp along with right chest wall contusion and fracture of
right 5th rib. The scalp laceration was repaired in the Emergency
Room. She was admitted to the floor, On 2/23/94, she had a slight
vasovagal episode on getting up to the bathroom but this resolved
quite quickly. Her lungs wer.e clear and abdomen was soft and
nontender. Vital signs were stable after this episode. On 2/24/94
again she was afebrile with stable vital signs. Her chest wall was
less tender and wound look~d good. She was begun on regular diet.
On 2/25/94, again she had chest pain but this was decreased. Her
wound looked good and abdomen was soft and nontender. She was
tolerating regular diet well. Her x-ray evaluation included
C-spine, pelvis, chest films which basically revealed right 5th rib
JOHN L. WADB, DBPBNOAlILB
TRANSIT, INC., AND G . G
LIlASING,
LIlAH J. BURJtBY AND DWAYNB I
B. BUKJtBY, her hu.band, I
PlaintiU. I
I
I
I
I
I
I
I
IN THB COURT or COMMON PLBAS or
CtlMBBRLANO COUNTY, PBNNSYLVANIA
v.
CIVIL ACTION - LAW
Defendant.
96-1003 CIVIL TBRM
IN RBI G. G LBASING DISMISSBD
ORDBR or COURT
AND NOW, thi. 16th day o! September, 1997,
pur.uant to a .tipulation of coun.el reached in open court,
defendant G . G Lea.ing i. diami..ed from thi. action.
By the Court,
1.
David L. Hunter, J~., ..quire
ror the Plaintiff.
ee-.~~. ~"IA~i..L,c:\.
9/'7/'l?
,,,Y.
Clark DeVere, ..quire
ror the Defendant.
_1
0 -D (")
r _J
..- ..,
,'t': ,I) ,:I
fllr, . ..,
-.... ..., .'i-'1
.:'-' 'J~
~ . ~ - -' :f"}
"' .,
, "-'iI
".
.. :..c , '-
:;? ~F?
":". 1
\'--)
-,
. .r.
- I,' ~
MTE: '1)11. I <I 7
a:lJR1'IU.14' ~
CASE 1<<>. ..l.3
..,
1<<>. Cjt, IOV i CIVIL T.l.._
1.' rJ Y~J~ob~ r01n III toY!
t>~'2
A, .
~ /I J..
rt1;t II ~
6.' 104
7.' ~~
::: ~~
10.11 41-
b.u
1i'
Ii.
14.'
I
~~~:~ ~(vr~_ .__
01,ch.J . FV;,.L
\ luO ;' Q. f),nit-v
r;t I'lL ::;n r rYl .--'-
, n rO-M.sc/0_____
}t,o.-+jJ..~ .fk...,JU..___
~
, I vn-> t
18.' to ~ SJ"UlJno..... 'h1LmJtli~::> ~
; n
19.1 7LP ...<J.vz.J\./Ld ~.c1..J ,
;1'
20.' IllJ
UgJk\'C'L . 1 G r"[u tl6-J
21.' 'lCf JJ_l..I.')h" 7J~OrJ..9.1) "
22.' .K.O F (' lVyu..<..>:) 121 U, w, 'fLL.,
23.'
24.'
25.' }"
26.'
--
27.' --
LEAH J. BURKEY and DWAYNE
BURKEY. her husband
Plainti ffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION. LAW
vs.
NO. 96-1003
JOHN L. WADE. DEPENDABLE
TRANSIT. INC. and G&G
LEASING,
Defendants
JURY TRIAL DEMANDED
DEFENDANTS' ANSWER TO PLAINTIFFS'
MOTION FOR NEW TRIAL
." n
"..' I
"
)
I ."
I ,".J
:
.-.,
~. , ; ~~i
;
,
,J " I
I
.'J s.~
<.J -,
1. Admitted.
2. The jury verdict slip speaks for itself.
3. The jury verdict slip speaks for itself.
4. Denied as stated. The Defendants admit that there was a collision between the
parties' vehicles and that Leah Burkey was transported by ambulance to Chambersburg Hospital
where she was treated for injuries. The remaining averments are denied insofar as it alleges that
Defendant Wade caused Leah Burkey's injuries, which was in fact not found by the jury as set
forth in 3 above.
S. Denied as stated. The evidence presented at the trial speaks for itself. Moreover.
Plaintiff has the burden of proving causation.
6. Conclusion of law, no answer required. If an answer is required, the averments
are specifically denied. On the contrary. the jury's finding was based on the evidence and
Plaintiff assumes that there was not a dispute on liability in this case which there certainly was as
presented in the evidence.
,
~. )
" z....
..
,. I.
I. I
i..L' ,.
,
(
1,-
U
... '" 0:
"'< .... '" III
0.... '" '" a: 8
"'::! '" .... w
;:i ... '"
~~ z '" 0
... .... 0
....1:>- UJ j:;l <II .
""'" z UJ .
z~ ~ <II ..... '" ...... <II . ...
~ .
.... '" "' co: 4 . Iii 8
OUJ .... < ." 0'" z j .
~"" n ..... 0"'''' ... :.: . . '" i
"'"' zz-,j :>: . . .
o . "" " " UJ.... " CO:UJ . 0 <II >
. . . J
u~ " '" ..... ..'" <II UJz ~ . u. 0 .
"'"" '" UJ;:'j.... :>: 4 . In .
. . .
~~ <II.... C <II "'CO: X . . .
... ~.. .....C ::i!~ <II 0 . 0 .
0 UJ.c: a: . 0 Q.
tu i:l ,.. '" '" ... . Z Q.
.., ~ ... . Z " ~ - .;
N .
::>C 0 ::> .. '" '" 0 U 0
8~ 0 "'"" :3: ... .... ~ '" .
- "" ~ E-< ~
I . . " 0 . .
'" ...,:>- ..... '" 0 ;i:; .
~UJ '" UJ z a: .
...
Z~ ~~ 51 . UJ Cl I
, U '" ~
0 '" 0 Z UJ
....U Z ....1'" > ..., .... CI ...
~
, .
u
. . 0:
>< ...
"'< '" .... ..
0.... 1::l '" II 8
"'~ 0 :-.1 w '"
~~ '" O<l '" 0
'" ... <II 6
'" .... "' .
<II .
..'" '" .... '" " <II . ;::
'" i '" .... '" ~ . .
z'" "' '" "" 0 4 j Iii 8 <
0'" " -<: . " W W z . i
:f!"" "" .... 0 '" OJ '" <.:J ..: . '"
'" ~ Ot:\... 0 ,. < . ~ <
. 0 ,
o . " .... "'.... 1) .. ;'! . If . .
u~ " .. """'0 0 I > 0 >
'" W;:'j '" U 4 w .
. r iD .
"'''' ""....1 .. X . . .
0::> >< '" <II 0 . 0 .
0 '" 0 II . 0 a.
. z a.
...U 1::l.; "'''' '" "- ... 4 0
'" '" ~d ... ~ OJ .
~~ 0 => " "'''' U ,
0 '" '" ~ ."... ~ .., .
.... ..c "" 0'" ~
I . <II " "'.... . .
"" ..., :l .... '" "'0 a: .
::="-l '" ..<: "-"- ... <
~! ~ z '" .., r
.. :cU 0 ~
0 1) <II 0'"
....U Z ....1..<: > ...,..... ...
::!:
f
. ... '"
- -" '
.. A .,
.J4,
4A
.
I .
t. Under all the evidence and the law in this case you must return a verdict lor
Defendants.
,
/\
.
4
.
2. III civil cuscs such us this OIlC. thc Pluintifls havc thc burdcn of proving those
contentions which cntitlc Ihcm to rclief.
Whcn a party has thc burdcllof proof on a particular issuc. his conl<.:ntion on Ihut
issuc must be establishcd by a fair prepondcruncc of thc evidcncc, Thc cvidcnce establishes a
contention by lair prcpondcrance of thc cvidcncc if you arc pcrsuadd that it is morc probably
accurate and truc than not.
To put it anothcr way, think, if you will. of any ordinary balance scale, with a pan
on cach sidc. Onto onc side oflhc scale, placc all of the evidcnce lavorable to thc Plaintills, onto
the other, place all of the eviden,e favorablc to thc Dcti:ndants. [f. after considering the
comparable weight of the evidcnce. you feci that thc scales tip. evcr so slightly or to the slightest
degree, in favor of the Plaintiffs. your vcrdict must be lor the Plaintiffs. If Ihe scales tip in favor
of the Defendants, or arc equally balanced, your vcrdict must bc lor the Dcti:ndants.
[n this casc, the Plaintiffs havc the burden of proving the following propositions:
that the Deli:ndant John Wade was negligent, and that that negligence was a substantial lactor in
bringing about the accident. The Plaintiffs also have the burden of proving that Defendants
Dependable Transit, Inc. and G & G Leasing are responsible for any Iinding of negligence on the
part of Mr. Wade or that they are independently negligent and that Ihis negligence was a
substantial faClOr in bringing about the accident. If, aftcr considering all of the evidence, you
feel persuaded that these propositions are more probably truc than not true. your verdict must be
for the Plaintiffs. Othcrwisc. your vcrdict should bc l()r thc Dcli:ndants.
(pennsylvania Suggestcd Standard Jury Instructions (Civil) "SSJI" 5.50)
- 3 -
6, The Plaintiffs claim that they were injured and sustained damage as a result of the
ncgligent conduct of the Defendants. The Plaintifr~ have the burden ofpruving their claims.
The Defendants deny the Plaintifl:~' claims and assert as an aftirmative defense
that the Plaintiff Leah Burkey was herself negligent and that sueh negligcncc was a substantial
factor in bringing about Plaintiffs' injuries. The Ddi:ndants have the burden of proving this
allirmative defense. The Defendants Dependable and G JG G also claim that Plaintiff Leah
Burkey's negligence was a substantial factor in bringing about their damages in their
countcrclaim. The Defendants have the burdcn of proving their countc7c1aim.
Based upon the evidence presented at this trial, the o~ly issues for you to decide
in accordance with the law as I shall give it to you, arc:
First: Was the Defendant John Wade negligent?
Second: Were Defcndants Dcpendable and G & G l.easing rcsponsible for any
negligence of Defendant John Wade or were they independently ncgligent?
Third: If yes to the !irst and/or second, was any conduct by Defcndants a
substantial factor in bringing about harm to thc Plaintiffs?
Fourth: Was the Plaintiff Leah Burkey hcrself negligcnt and was such negligcnce
a substantial factor in bringing about Plaintiffs' injury?
Fifth: Was Plaintiff Leah Burkey's negligence a substantial factor in bringing
about Defendants Dependable and G & G l.easings' damages?
(SSJI3.00)
- 7-
.I'-
.
7. Thc Icgal tcrm ncgligcncc, othcrwisc known as carelcssncss. is thc abscnce of
ordinary carc which a rcasonably prudcnt pcrson would cxcrcisc in thc circumstances hcrc
prcscntcd. Ncgligcnt conduct may consist eithcr of an act or an omission to act whcn thcrc is a
duty to do so. In othcr words, ncgligcncc is thc lililurc to do somcthing which a rcasonably
carc:liJl pcrson would do, or thc doing of somcthing which a rcasonably carcful pcrson would not
do, in light of all the surrounding circumstanccs cstablishcd by thc evidcncc in this case. It is lor
you to dctcrminc how a rcasonably careful pcrson would act in thosc circumstances,
(5511 3.0 I)
- 8 -
39. You will now n:tin: to ~onsiJ.:r alloflh.: .:vid.:n<:.: r.:<:.:iv.:d in this trial in the light
of the various I;I<:lors I hav.: pr.:sentcd to you and apply th.: law as I have given it to th.: 1;lcts as
found by you,
[f you tind that th.: dcti:ndant was ncgligent, and that th.: dcti:ndanl's conduct was
a substantial lactor in bringing about harm tll lh.: plaintiff. your vcrdict must bc in favor of th.:
plaintiff and against th.: d.:fcndant.
How.:v.:r. if you tind that th.: plaintiff wa.s contributorily n.:glig.:nt. and that h.:r
neglig.:nc.: was a r.:al lactor in bringing about h.:r own injury, and that h.:r ncgligcnc.: was
greall:r than that of the deli:ndant or combincd ncgligcncc of thc dcli:ndants, your vcrdict must be
fl,r th.: dcfcndants,
[f you find thatthc deli:ndant was not ncgligcnt, or that his n.:gligence was not a
substantial factor in bringing about harm to the plaintiff, your verdict must be for the defendant.
[f your verdict is in favor of the plaintift: you must then determine what damage
th.: plaintiff was and will b.: caused to sulIer by rcason of the defcndant's negligence and r.:tum a
verdict for the plaintiff in that amount. The same instructions apply as to Defendants
D.:p<:ndabh: Transit and G & G L.:asing's counterclaim.
(SSJI 3.50)
- 41 -
NO. 96-1003 CIVIL TERM
STATEMENT OF FACTS
On February 23, 1994, Plaintiff Leah J. Burkey was driving a
1989 White Mercury Sable in the eastbound lanes of the Pennsylvania
Turnpike. It was snowing and the road surface was icy and snow-
covered. At approximately 9:15 a.m., near milepost 203.4, Ms.
Burkey's vehicle skidded in the snow, fishtailed, hit the concrete
medial barrier and came to a stop. A tractor trailer driven by
Defendant John L. Wade was travelling in the east-bound passing
lane behind Ms. Burkey's Sable and collided with her vehicle.
Nelson J. Ruddy and Donald Hall were also driving east on the
turnpike behind Ms. Burkey's vehicle the day of the accident. They
both witnessed Ms. Burkey's car spin out of control and the
subsequent collision. Mr. Hall testified that he felt that both
Ms. Burkey and ~lr. Wade were travelling too fast for the road
conditions that day.
James E. Hurley, M.D., was working in the trauma unit of the
Chambersburg Hospital the day of the accident. He treated Ms.
Burkey for a laceration to the back of her head. Dr. Hurley noted
that she suffered from a right chest wall contusion. X-rays
revealed that she also suffered a fracture of the right fifth rib.
No soft tissue swelling of abnormalities of the spine were noted.
Dr. Hurley prescribed pain medication and released Ms. Burkey.
Ms. Burkey was involved in a subsequent car accident three
months later, on May 20, 1994. In March of 1996, she experienced
2
NO. 96-1003 CIVIL TERM
lower back problems at work. Ms. Burkey was diagnosed with ovarian
cancer in August of 1996.
Ms. Burkey alleged various injuries as a result of the
accident, including cervical or lumbar strain. At trial, Ms.
Burkey testified that she had experienced constant headaches and
sleeplessness since the February 23, 1994, accident. She testified
that she had to take Rleeping pills in order to sleep since the
accident. She also testified that she suffered from back problems
and that her movements were limited. Ms. Burkey indicated that
following the accident she received treatment from a chiropractor.
Ms. Burkey testified that she had pain every day and needed to use
heating pads.
Dr. Perry Eagle, an orthopedic surgeon, testified for
Defendants. He opined that Ms. Burkey may have sustained cervical
or lumber strain due to the accident. However, he felt that at the
time of a medical examination in 1997 she was no longer suffering
from these symptoms and that no further treatment was necessary.
Following trial, the jury found that Defendants Wade and
Dependable Transit were negligent, but that their negligence was
not a substantial factor in bringing about the harm to Plaintiff
Leah J. Burkey. In the counterclaim of Dependable Transit against
Ms. Burkey, the jury found that Ms. Burkey was negligent, but that
her negligence was not a substantial factor in bringing about the
harm to Dependable Transit. Plaintiffs' have filed a motion for a
3
NO. 96-1003 CIVIL TERM
new trial alleging that the jury's verdict on their claims was
against the weight of the evidence.
DISCUSSION
The decision as to whether to grant a new trial based upon the
weight of the evidence is cOlmnitted to the sound discretion of the
court. Krymalski v. Tarasovich, 424 Pa. Super. 121, l27, 622 A.2d
298, 301, appeal denied, 535 Pa. 675, 636 A.2d 634 (l993). In
resolving the issue of whether to grant a new trial, the court must
examine all of the evidence presented. Seewagen v. Vanderkluet,
338 Pa. Super. 534, 544, 488 A.2d 21, 26 (1985). When the basis
for a motion for a new trial is that the verdict is against the
weight of the evidence, the "evidence supporting the verdict [must
be] so inherently improbable or at variance with admitted or proven
facts or with ordinary experience as to render the verdict shocking
to the court's sense of justice." Brindley v. Woodland Village
Restaurant, Inc., 438 Pa. Super. 385, 399, 652 A.2d 865, 872
(1995). A mere conflict of testimony is not enough to justify the
grant of a new trial. Baldino v. Castagna, 505 Pa, 239, 248, 478
A.2d 807, 812 (1984). Additionally, the finder of fact "is
entitled to believe all, some, or none of the evidence presented."
Rafter v. Raymark Industries, Inc., 429 Pa. Super. 360, 372, 632
A.2d 897,903 (1993).
First, the court notes that the jury found both that
Defendants were negligent, but that their negligence was not a
4
NO. 96-1003 CIVIL TERM
substantial factor in bringing about che harm to ~ls. Burkey and, on
the counterclaim, that Ms. Burkey was negligent, but that her
negligence was not a substantial factor in bringing about the harm
to Dependable Transit. Plaintiffs did not object to the jury's
verdict on the ground that it was inconsistent or request to have
further instructions given to the jury. Thus, Plaintiffs have not
preserved any issue as to whether the jury's verdict was
inconsistent. See Picca v. Kriner, 435 Pa, Super. 297, 645 A.2d
868 (1994).
Because Plaintiffs have not pursued the issue of whether the
jury's verdict was inconsistent, the court will focus upon
Plaintiffs' claim that the jury's finding that Mr. Wade and
Dependable Transit, were negligent, but that their negligence was
not a substantial factor in bringing about the harm to Ms. Burkey,
was against the weight of the evidence.
In support of the claim that the jury's verdict was against
the weight of the evidence, Plaintiffs rely on two decisions of the
Pennsylvania Superior Court: Craft v. Hetherly, ___ Pa, Super. ___'
700 A.2d 520 (1997) and Rozanc v. Urbany, 444 Pa, Super. 645, 664
A.2d 619 (1995). However, both of these cases are distinguishable
on their facts from the present case.
Craft v. Hetherly, Pa, Super. , 700 A.2d 520 (1997),
involved a motor vehicle collision which occurred when a defendant
made a left turn into a second driver's lane of travel, directly in
5
NO. 96-1003 CIVIL TERM
front of the second driver's vehicle. At trial, there was no
dispuce that the second driveL" was injured as a L"esult of the
accident. Furthermore, ev idencd presented indicated that the
second driver was driving at a safe speed and that she had no time
to stop or swerve her vehicle to avoid the collision when the
defendant pulled into her lane. The jury found that the defendant
was negligent, but that his negligence was not a substantial factor
in bringing about harm to the second driver. The Pennsylvania
Superior Court held that this conclusion "[ bore] no rational
relationship to the evidence adduced at trial." Id. at ___, 700
A.2d at 523. The Court reasoned that the fact that the defendant
pulled directly into the second driver's path, and that the second
driver had no way to avoid the collision, were "so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts [was] to deny justice." Id., at _, 700 A.2d
at 524, quoting Thompson v. City of Philaddlphia, 507 Pa. 592, 601,
493 A.2d 669, 674 (1985). Therefore, the Court concluded that the
verdict shocked the court's sense of justice because it ignored the
greater weight of the defendant's negligence, and, therefore,
warranted the grant of a new trial. Id. at ___, 700 A.2d at 523.
ROZdnc v. Urbany, 444 Pa, SupeL". 645, 664 A.2d 619 (1995),
involved a motor vehicle accident in which a defendant rear-ended
a vehicle which was stopped on an on-ramp waiting to merge with
traffic, injuring the driver of the stopped vehicle. At trial,
6
NO. 96-1003 CIVIL TERM
uncontradicted evidence was introduced that the driver of the
stopped vehicle was injured as a result of the collision.
Furthermore, the defendant admitted that she had collided with the
stopped vehicle because she was looking over heL" left shoulder and
not paying attention to the vehicleu in front of her. The jury
found that the defendant was negligent, but that her negligence.was
not a substantial factor in bringing harm to the driver of the
stopped vehicle.
The Superior Court found this to be 'completely contrary to
the evidence provided at trial." Id. at 651, 664 A.2d at 622. The
Court noted that the defendant had admitted that she was not
watching in front of her and that this had led to the collision and
observed that it was "undoubtedly clear that [the defendant's]
negligence caused [the plaintiff's] injuries." Id. at 649,664
A.2d at 621. Consequently, the Court held that the jury's finding
was shocking to the court's conscience and remanded the matter for
a new trial. Id. at 651, 664 A.2d at 622.
In the present case, Ms. Burkey was traveling on the
Pennsylvania Turnpike when she negligently lost control of her
vehicle, causing an abrupt and unexpected obstruction to be placed
in the path of vehicles traveling behind her on an icy highway.
The jury may have concluded that Mr. Wade was driving too fast
for conditions at the time, but that, even if he had been driving
at a speed which most people would consider correct for the weather
7
NO. 96-1003 CIVIL TERM
conditions, he would not have been able to avoid the sudden
emergency which Ms. Burkey's neg ligdnce created when she lost
control. The jury may, in other words, have concluded that Ms.
Burkey's negligence in losing control of her vehicle and placing
herself in the middle of an icy roadway was significant in terms of
causation and that any negligence on Hr. Wade':!) part was not.
Under these circumstances, the assessment by the jury that the
negligence of Ms. Burkey was causally important enough to be
considered a substantial factor in bringing about her harm and that
the negligence of Defendants was not cannot be said to have been so
inherently improbable or at vaL"iance with admitted or proven facts
or with ordinary experience as to render the verdict shocking to
the court's sense of jus tice.
For the foregoing reasons, the
following order will be entered:
ORDER OF COURT
AND NOW, this 27th day of February, 1998, upon consideration
of Plaintiff's motion for a new trial, and for the reasons stated
in the accompanying opinion, the motion is DENIED.
BY THE COURT,
sf J. Wesley Oler. Jr.
J. Wesley Oler, Jr., J.
David J. Hunter, Jr.,
821 State Street
Erie, PA 16501
For the Plaintiffs
Esq.
'I
8
,
-~. ~
" '";-.,
.,~
'< ,....
"'-...,
"
'-\"...)
( \ '''-',
-
,
.'
-.
-.J
-
-.......'-
"
,
i'i',
, '-
.....-
,/... ~
, ~.-J
-1,
.,
"
'--..J
....,
-'
It. -',
"
:>0 H
~< '" ... H
0.... ~ U1 :4
Z '" '"
"':;: "" ~ (;
<> '"
"'-' H 0
-':>0 '" ""
0..'" "" '" ,..,
"" :>0 en -' en
'" Z ~ "" '" u ...
0 '" .... ..: . " 0
~ 0.. 0 ,,. Ot:l oJ
u Z:ot.:-o :>0
I .", " "'.... " '"
U~ " ... 0..'" " H
'" '" "'j.... ""
~2'i ..... o " '"
0:::> >< 0.. -'0
0 I '" . '"
HU I ~.,; "'t:l 0
'" '" I ~r:3 ...
:::>0 a I :::> "
8j a I '" '" :. '"
.... I .0 .", 0..
I I . III " ....
"'''' '" I ,.., ::l -' '" U
:c'" '" I .Q '"
!-o'" I :c z ;:i
""s i5 ... :c U
0 " III 0 '" 0..
...U "" I -'.Q :> ,.., ...
.. _.._.-~-- ',-'" .. ,'.'---,_. ..._..__.._-~
.
\-
'" ,.
~ ~
~ ~
'E [; ~
" 'i c
'n;( :J .5 ~
~:2 ; lfl-
t.eZ'
J:~~ .2 ~
.J:;aS .!i' _0.
~O 2 'f .
, :: ~
/. 0."-
~ ;'j~
.. , - C
M -" >
"-
E co
, ~
:::