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Home My WebLink About96-03237 , , ! ~ I I I ;.,'1\. i~' .,' , ;,.1 ' \:\' ;'" t.' ~'. !,;,:\ ',1\,', :;-,~ ,~ 1J ' - , - '. ,~~' \,' . " ",:'. .: H.l.;: )2:'! ".-,,".:' -r,'''' : ';;~t . ", "c -,'1 :'!s ;.-' '-d "'\' , . I . ji. , 'I L . I' , , i I' i ,. t .. ~ ~ ~ ~ ~ ~ ~ ~ " . ~ .'\.. { "", \ I ',-/ '. ,',.l' t.11", :. if : r,:', ,/' T~,~i1:- . . '1:,~.;G !:-' .~, r'~\"~" " V,J' 'l~ft~tl.1'. , .".h~. ! i I I . " ,'P, .' I: "" ~ - . . .' - c:J i;, '\' ~f I to,. , " '-.1' ~ ...J t~,\,\ f~ .10, Dale A. Betty, Esq. Jack Emas & Associates 3130 Center Square West 1500 Market Street Philadelphia, PA 19102 Attorney for Defendant :rc ~ ~fL ";J;I.~lq8, .J,. "'f. '" , l'_, , ,l{ i., ;!;l 1 . (' tl L " , ,,, ( - I l , f" ; I . " .. , , . " .. 1I0UGl,AS, 1I0UGl.AS " 1I0UGl.AS 27 W, IIIGII ST. pon 261 CARI.lSI,F. PA 17013 TF.I,F.PIIONF. 717.243-1790 WII.l.JAM .'. IXlUGLAS. ESQ. SupNme Cuurt l.D.N 37926 ..siev;;..p:..H;;lp.;;r................................................................ ......'Io..'fh;;..Co.ulT'o{..Co.mmon..pfeas...or..... Cumberland County Pennsylvania Plaintiff vs 1996 . 3237 Civil Term Schneider National Carrier, Inc. and Charles Vincent Furman Defendant Civil Action Law Jury Trial Demanded ........................................"..........................................................................................."........"""..................,.................",....................,............. AND NOW, this day of July, 1998, the attached Motion for Post Trial Relief is received and directed to be flied. P:.lrSuant to Pennsylvania Rules of Civil Procedure 227,1(b)(2), 227.2 and 227.3. The record is hereby ordered to be transcribed at the expense of the moving party. By the Court: ------------------------ Honorable J. Wesley Oler J. , ~ DOUGLAS, DOUGI.AS " DOUGI.AS 17 W, IfIGII ST. POB 161 CARLISI.E PA 17013 TELEPIIONE 717-143.1790 Wll.l.IAM 1'.lXlUOI.^S.I~~Q. Sup..mo Cuun ('[l.. 37926 .Steve"p~"H'elpef""""""""""""""""""""""""'"'''''''''''''' ......'Iil...j.he...Co'ulT'of..Co.mmon..Pleas..o{....... Cumberland County Pennsylvania Plaintiff vs 1996 - 3237 Civil Term Schneider National Carrier, Inc. and Charles Vincent Furman Defendant Civil Action Law Jury Trial Demanded ..........................................................................................,................................................................................,............,.................................... Plaintiff's Motion for Post Trial Relief . . And now, this 13th day of July, 1998, the plaintiff, Steve P. Helpel, by his counsel, Wi11lam P. Douglas, Esq., respectfully moves the Court as follows: 1, The learned trial judge erred in charging the jury on the subject of mitigation of damages \lver objection of the plaintiff in that it had an adverse effect on the credibility of the plaintiff. 2. The learned trial judge erred In permitting Dr. Boal to testify with respect to the calluses on the hands of the plaintiff In that it had an adverse effect on the credibility of the plaintiff. 3. The verdict Is contrary to the Instructions on law In the case and the jury obviously disregarded the Instruction of law in the case as given by the learned trial judge, The verdict of the jury was Inconsistent In that if the jury found the defendant negligent i.e. the driver of a vehicle Intending to turn left within an Intersection . . . shall yield the right-of-way to any vehicle approaching from the opposite direction which is so close as to constitute a hazard, then the plaintiff cannot be contributorily negligent because the vehicle of the defendant could not be lawfully within the intersection. 4. The verdict Is contrary to the instructions on law in the case and the jury obviously disregarded the instruction of law in the case as given by the learned trial judge. The verdict of the jury on the issue of contributory negligence of the plaintiff could only be based on speculation as the defendant offered no evidence that the speed of the vehicle of the plaintiff made any difference with respect to the happening of the accident. S, The plaintiff requests that Judgment notwithstanding the verdict be entered and/or the verdict vacated and/or a new trial granted on all Issues. 6. If the Court desires, plaintiff respectfully requests the notes of the trial be transcribed. WHEREFORE, the Plaintiff respectfully requests that his Motion for a New Trial and/or Motion for Judgment notwithstanding the verdict, and/or the verdict vacated, and a new trial be granted. Respectfully submitted, Date: July 13, 1998 . )'., [,). l ~rLl1A l; . lJJ1JJft.'..-1J f.;: .-'1' ~ j.:~ Lr; ILl~::' (,....: .- , -, If' . ., .;;.~ +.-: IJ.-~ -,- Cj' , ~.:J "-.- t,'- 'n . ,i) e:. N , ;.- UJL . -<j U.:! I =.~:j '.111 r-' -J 0... ". <0 :_) v U". U ,. Jack Emas & Associates ATIORNEYS AT LAW By; Dale A. Betty Attorney Identification No. 08609 3 I 30 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (2 I 5) 972-8065 Attorney for Defendants, Schneider National Carriers and Charles Vincent Funnan STEVE P. HEIPEL, dlb/ll D&S REFINISIJING SERVICE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. SCIINEIDER NATIONAL CARRIERS. INC. AND CHARI.ES VINCENT FIIRMAN No. 96-3237 PRE TRIAL MEMORANDUM OF DEFENDANTS I. FACTS PERTAINING TO LIABILITY: The motor vehicle accident occurred on June 19, 1994 at about 5 p.m. on State Route I I at or near its intersection with Cook Drive, Middlesex Township, Cumberland County, Pennsylvania. The intersection no longer looks the way it did at the time of the accident since at that time it was under construction which has now been completed. At the time of the accident there were at least two northbound lanes and the plaintiff was operating his van in a northerly direction in the right lane. It ;,' . intersected to the right with Cook Drive. The overhead traffic signals were green for traffic proceeding north and as he approached the intersection there was a white tractor trailer stopped in the lane to his left in order tll make a left turn across the southbound lanes of Route II to enter the entrance ramp of 181 north. As he proceeded along the side of the stopped tractor trailer at an estimated speed of 40 miles per hour he collided with the defendant's tractor trailer who was in the process of completing his turn from southbound Route II into Cook Drive. As a result of the collision plaintiff is maintaining that he sustained personal injuries and his vehicle was towed from the scene. II, FACTS PERTAINING TO DAMAGES: With respect to his personal injuries plaintiff's primary complaint is relative to his right shoulder; however the findings of an MRI on April 2, 1998 indicated no tear of the rotator cuff, minimal impingement syndrome with a nonnal study of the right shoulder. He is also maintaining a claim for loss of income and his insurance companies subrogation claims for damage to his vehicle. . . III. PRIMARY ISSUES: A. Negligence and comparative negligence B. Damages. physical and financial injuries. C. Mitigation of Damages IV, WITNESSESl 1. Charles Vincent Funnan 2. Richard 1. Boal, M.D. All witnesses listed on plaintiff's pre trial memorandum. V, EXHIBITS: 1. Photographs 2. Videotape deposition of Dr. Richard J. Boal VI. SETTLEMENT: Plaintiff's demand - $350,000 - Defendant's offer - 0 Respectfully submitted, JACK EMAS & ASSOCIATES BY: ~L~:'~;;7 DATED: 4/29/98 '.. c, ~r; ..;1 ,~':~. ~:.; i I' I ~ C,.'. I";! ' \.~.. !~ f (;.- f' ,-, " , .~" tfl' <'-, fi: ~-~ 'J t< [' -'J '0, rc .> 0 u. U -,'--""-~'~";"" 14. STEVE P. HEIPEL, D/B/A D&S REFINISHING SERVICE : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V SCHNEIDER NATIONAL CARRIERS, : NO, 96-3237 CIVIL TERM INC, AND CHARLES VINCENT FURMAN ORDER OF COURT AND NOW, February 17, 1998, by agreement of counsel, the above- captioned matter Is hereby continued from the March 16, 1998 trial term. Counsel Is directed to rellst the case when ready. George F. Douglas, III, Esq. For the Plaintiff \",~,-\..tc\ c...c) \' \ L .., Dale A. Betty, Esq. For the Defendant .J - .rL.\ _<\ Sj. Court Administrator :br ,. >, r:~ [T; ,,-. r.:~ C.~ , . l"!~' (2(; .... J (I.., ['to: ~~ :'.~ 1'_,.. Ye. -'I' '" f?:' N " ;,.~ ,. , , _:,". c~:\ li,j ("-,., '"', ll.1 ~'}l!... r ,. ..... IJ... (<'l :5 0 1::' U STEVE p, HEIPEL d/b/a D&S REFINISHING SERVICE, PLAINTIFF V, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SCHNEIDER NATIONAL CARRIERS, INC. AND CHARLES VINCENT FURMAN, DEFENDANTS 96.3237 CIVIL TERM ORDER OF COURT AND NOW, this 19th day of May, 199B, the above-captloned case Is continued to the July Term, Counsel Is not required to attend the call of the civil trial list on Tuesday, June 9, 199B, There will be no pretrial conference unless requested by any party. 1/ / By the Court, / .\ /' , I, George F, Douglas, III, Esquire For Plaintiff _ e*....... ,.,"'(l.~,.t s l~oI9l' .&l? Dale A. Betty, Esquire For Defendants Court Administrator :saa * Jack Emas & Associates ATIORNEYSAT LAW By: Dale A. Betty Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia. Pennsylvania 19102 (215) 972-8065 MAY 1 3 199BW Attorney for Defendants. Schneider National Carriers and Charles Vincent Funnan STEVE P. HEIPEL. d/b/ll D&S REFINISHING SERVICE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. SCHNEIDER NATIONAL CARRIERS, INC. AND CHARLES VINCENT FURMAN No, 96-3237 ORDER AND NOW, this day of , 1998, ullon consideration of the Motion in Limine of Defendants Schneider National Carriers, Inc. and Charles Vincent Funnan it is hereby ORDERED that the motion is GRANTED and no evidence may be presented at trial by plaintiff pertaining to the earnings ofD&S Refinishing Services, Inc. BY THE COURT: -.1 ,~ :3 ) C\\JdTr'ro\ Li6t .. Jack Emas & Associates ATTORNEYS AT LAW By: Dale A. Betty Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 972-8065 Attorney for Defendants, Schneider National Carriers and Charles Vincent Funnan STEVE P. HEIPEL, dlbln D&S REFINISHING SERVICE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. SCHNEIDER NATIONAL CARRIERS, INC. AND CHARLES VINCENT FURMAN No. 96-3237 DEFENDANTS SCHNEIDER NATIONAL CARRIERS, INC. AND CHARLES VINCENT FURMAN'S MOTION IN LIMINE TO PRECLUDE EVIDENCE AT TRIAL PERTAINING TO THE GROSS EARNINGS OR LOSS OF GROSS EARNINGS OF PLAINTIFF'S EMPLOYER I. Plaintiff is maintaining that as a result of his injuries sustained in the motor vehicle accident of June 19, 1994 he sustained a loss of earnings and earning capacity. 2, At the time of the accident the plaintiff was an employee ofD&S Refinishing Service, Inc. located in Boardman, Ohio. 3. The nature ofplaintitrs employment with D&S Refinishing Service, Inc. . was the refinishing of aluminum, vinyl and steel siding. 4. D&S Refinishing Service, Inc. had more than one employee, usually two or three. 5. The plaintiff was not an owner/shareholder. 6. In answers to interrogatories plaintiff has included a loss of gross earnings to D&S Refinishing Services, Inc. in the amount of $9,776.00 for the year 1994. 7. Plaintiff's employer D&S Refinishing Services, Inc. is not a party to the instant lawsuit. 8. Any loss of gross earnings to D&S Refinishing Services, Inc. are not relevant to nor related to plaintiff's claim for loss of earnings or earning capacity. 9. The alleged loss of gross earnings to D&S Refinishing Services, Inc. is inadmissible as evidence. ROl:ers v. YeUow Cab Company, Pa., 147 A,2d 611 (1959). WHEREFORE, Defendants Schneider National Carriers, Inc. and Charles Vincent Funnan respectfully request the Court to b'1'ant its motion entering an Order precluding the plaintiff from presenting any evidence relative to the gross earnings ? r-' (': -,' c:: ;::. I:: 9 :'.... llJ (. ~ ) , ) 1)",- ,_.1"" r< ' 1.-, od,: .... , l~ \., "., I. .. f{ . cD (. ! "il.. I .,Il :;:.... .,.,id (1- \~ - . ~:. ,'~~ I" :l: .', ron ~.1 0 (" ;,) MAY 1 3 1995t>O Jack Emas & Associates ATIORNEYS AT LAW By: Dale A. Betty Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 972.8065 Attorney for Defendants, Schneider National Carriers and Charles Vincent Funnan STEVE P. HEIPEL, dlb/a D&S REFINISHING SERVICE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. SCHNEIDER NATIONAL CARRIERS, INC. AND CHARf,F.S VINCENT FIIRMAN No. 96.3237 ORDER AND NOW, this day of , 1998, upon consideration of the Motion in Limine of Defendants Sclmeider National Carriers, Inc. and Charles Vincent Funnan it is hereby ORDERED that the motion is GRANTED and no evidence may be presented at trial by plaintiff pertaining to the earnings of D&S Refinishing Services, Inc. BY THE COURT: J. ,~ Jack Ema~ & Associates A TI'ORNEVS AT LAW By: Dale A. Betty Attorney Identification No, 08609 3130 Center Square West 1500 Market Street Philadelphia. Pennsylvania 19102 (215) 972-8065 Attorney for Defendants. Schneider National Carriers and Charles Vincent Furman STEVE I', HEIPEL. d/b/n I)&S REFINISIIIN(; SERVICE Couln OF COMMON I'LEAS OF CUMIJEI{LANI) COUNTY v. SCHNEJJ)ER NATIONAL CARRIERS. INC. ANI) CHARLES VINCENT FURMAN No. 96-3237 DEFENDANTS SCHNEIDER NATIONAL CARRIERS, INC. AND CHARLES VINCENT FURMAN'S MOTION FOR COMPULSORY NON SUIT Defendants Schneider National Carriers. Jnc, and Charles Vincent Funnan move for a compulsory non-suit based on the insufficiency of the plaintiffs proof for the following reasons: I. There is no evidence which would establish negligence on the part of the defendants. 2. There is no evidence which would establish that the defendants breached any duty of care to the plaintiff which was the legal cause of plaintiffs injuries. 3, The evidence establishes the mere happening of an accident for which there can be no recovery, 4, The plaintiff's injuries were in nil way related to any manner of conduct of the defendant, JACK EMAS & ASSOCIATES BY: ~ce,~~ DALE A, BE Y '" ':" i\-, i " I f.), \,.' 11-> ~'}'I ,-. (:1 I t. ~ ;: I '. " " . Ii.., i 'J ,. , ) ('2} t';" -- tr. -.0 '- t... ~5 9 . ..~-:'( ::;: '~)4 '"' r ~ .~ ::'--1 0 ....) :,:ilj fr N ;22 v' '" Il.1lU It: ::... '}.1o.. -) lL. \,0 :3 0 u' U . Commonwealth of Pennsylvania County of Cumberland Steve P. Heipel, d/b/a D & S Refinishing Service VI. Court of Common Plea.s 96-3237 Civil Term No. -------______________________________ 19____ Civil Action - Law In _____________________________________________ Schneider National and Charles Vincent Furman 1 Schneider Drive Carlisle PA 17013 Schneider National and Charles Vincent Furman: 1:0 ____________.________________________________ ..._------------~-------------------------------------------------------------------------------- You are hereby notified that Steve P. Heipel, d/b/a D & S Refinishing Service the Plaintiee has commenced an action in m?_~!!'.!!'_~!.1_~__:_E~~~}.__!'_r:!_~~_~_:__!'_~~_____________ against YOII whlci)' Y~~ a\i! required to deeend or a deCault judgment may be entered against you. . . l.. ,.". (SEAL) " . . Lawrence E, Welker ._-----------------p~~~~~~-----_.._~-------_. Dy ....~.,,,...~;jf.;.olJl,,,i,~.I"...... June 7. 96 Dale ---_____........____.._____..._ 19.___ , J cu I u . '.-i ~~ ~~ 'de Ei e "' .0 cu "' Ei cu .....Ul E-t 'd ..... ~ .S ~ f s Cl "'~ "' ..... . e e 0-1 J '.-i .......-i O+J J III , !:i ,> cu.c - '.-i e '.-i lJ,Ul +J cu ~ ro: tl.....as~. U ..-i'.-i "' U e cu e z e 0 r-- :I:'.-i ..-i '.-i M 4-l 1-<> +J ~J~~j~ N . cu cu U M Pol): 'd Ul ><I: I '.-i cu \D CUUl CU..... ..... *0 ~ '" > e I-< '.-i CU.. .c "' > ..~~ ....... i +J u.c ..-i ~ UlQ UlU U , 11 ~ ,~ ' a . \D G\ G\ ... '. l(J Gl 5 .., * .'\' . . SHERIFF'S RETURN - REGULAR CASE NOI 1996-03237 P COMMONWEALTH OF PENNSYLVANIA I COUNTY OF CUMBERLAND HEIPEL STEVE P ET AL VS. SCHNEIDER NATIONAL ET AL KRISTIN D. HERTZ CUMBERLAND County, Pennsylvania, to law, says, the within WRIT OF upon SCHNEIDER NATIONAL de~endant, at 1652100 HOURS, on the ~ day of June 19~ at ONE SCHNEIDER DRIVE CARLISLE, PA 17013 . CUMBERLAND County, Pennaylvania, by handing to KEN BOGDAN. OPERATING MANAGER . Sheriff or Deputy Sheriff o~ who being duly sworn according SUMMONS was served the AND ADULT IN CHARGE a true and attested copy of the WRIT OF SUMMONS and at the same time directing Hia attention to the contents thereof, Sheriff's Coatal Docketing Service Affidavit Surcharge 18.00 2,80 .00 2,00 S?~< ~ H, Thomas ~~1n~r1~~ ~22.8~ uOUGLAS DOUGLAS & DOUGLAS 06/27/1996 by ~Tu D 1o~ bepua 5~r1f1 Sworn and SUbacrib~:o before me this IlJ "t: day Of~ 19 ~c... A, D. '-- }....;.. P~\.h~~i-~ "11tf . SHERIFF'S RETURN - REGULAR CASE NOI 1996-03237 P COMMONWEALTH OF PENNSYLVANIA. COUNTY OF CUMBERLAND HEIPEL STEVE P ET AL VS. SCHNEIDER NATIONAL ET AL KRISTIN D. MERTZ CUMBERLAND County, Pennsylvania, to law, says, the within WRIT OF upon FURMAN CHARLES VINCENT de~endant, at 1652100 HOURS, on the ~ day o~ June 192a at 1 SCHNEIDER DRIVE CARLISLE. PA 17013 . Sheri~~ or Deputy Sheri~f o~ who being duly sworn according SUMMONS was served . CUMBERLAND County, Pennsylvania, by handing to KEN BOGDAN. ADULT IN CHARGE OF DEFTS PLACE OF EMPLOYMENT a true and attested copy of the WRIT OF SUMMONS and at the same time directing His attention to the contents thereo~. Sheri~f's ~~StSI Dockett.,g Serviue A~~idavit Surcharge 6,00 .00 ,00 2.00 8tl.l/ll/l ;=-~;~ ~ R, Thomas Kl1~tt DOUGLAS DOUGLAS AND DOUGLAS 06/27/1996 by ~.L A...<1h.~ LJ I'j/~ Deputy S 1%% Sworn and sUbscrib~ to be~ore me this 10 it:' day o~ .~ 19 q~ A.D, q.~11J- Q 'i~ AJ~ \ Prothonotary' the .... <:II , .- 11: c: i:..-= . ~ w!"? , ~. j " '. l.j, Ll_ ~ .~ j ~:' c:> ,~ : ) u'JL I',. 0' Ct ~I.I n. , t'.-J r lu ,~ VI II.. to } l..J (J\ U '- . . .ou ... "IIU'" .'QUI.,1I 'A 'u.r " :r:~~: ~.~'".t'fUI~:~ b~'~.l;'.'o~ ".~~~~~~' IUIlCO' Oil II IUIU."'.N' .1. .. IMII"&O .'1011"1' 'OU. ., DOUOLAS, DOUGLAS & DOUOLAG . ""O"~ni.' ,..w ,....."""."..... ..........., WI PO '1I .rn, ~unu, lIl., "'r ."HIN ,. A 'Alii: liNn en"""c, CUP, 0" 'HI: OIUJilHIlL , II' (I IN fllIL _CflO". .. -- 1l0UGt.AS, 1l0UGt.AS & 1l0lJOt.AS 27 W, 1II01t H. 1'00 261 CARI.ISU: I'A 17013 l'E1.IWltONll 717.243-1790 WILLIAM f'.IXlUGLAS. ESQ. Supreme Cllun I.D.H 37926 x GEORGE F.IXlUOLAS. m. ESQ. Supremo Cllunl.D.H 61886 - STEVE P. HEIPEL, d/b/a D & S REFINISHING SERVICE, IN THE COURT OF COMMON PLEAS OF CUMBERlAND COUNTY PENNSYLVANIA PLAINTIFF \I.) SCHNEIDER NATIONAL and CHARLES VINCENT FURMAN, 1996. 3237 CIVIL TERM CIVil ACTION LAW D!::FENUANr To: Lawrence E. Welker, Prothonotary fRAECIP..s Please substitute the attached verification for the attorney verification attuched to the Complaint filed September 11. 1996. Date: September 18, 1996 DOUGLAS, DOUGLAS & DOUGLAS by_t..-. ~~ Al~~le f'lnintiff ~ i;: .~ "- WS) If.o1(~5 c.~ @.,., r' r'i! . 0: Ii: I> ('., 'L l) C;, - r..~ -: :t:: ".f.' f.-~ ,.,.... ()I.',1 ....):'~ .')~ , ,::/fi , ." "~ .}iJ '.,'..... :..:3 CJ .... - ,- < , t;: It) (/I , . .. ",ou ..., ......., "'QUI.SO '0 'Ill .. WIl',,'N .'..OlUI '0 IHI IHCl.O'ln ."NUI '*INn I'" 0"". 'liD. ".vlet: H'"lo' 011 " ~UD.MrN' "la, ., '""UD ..lINn 'OU. 0' ,4 ..---. DOUGLAS, DOUGLAS 6. DOUOLA5 ""'O""E~!I 1," l....... .,......",,,.1..,,, ,. a "'~ '" Wt:: DO HIIU.' C'.Hr, TH'" THI WITHIN" " TIl\/( f"ln (' Cltllf cr CO'" u, HU" o III 1<J IH,(L "I 10 ~H THII "r.OO"'. .. .. .- , . . GEORGE F. DOUGLAS, m., ESQUIRE ATTY. I,D, # 61886 DOUGLAS, DOUGLAS & DOUGLAS 27 W, HIGH ST. POB 261 CARLISLE PA 17013 TELEPHONE 717-243-1790 A TIORNEY FOR PLAINTIFF STEVE P. HEIPEL, d/b/a D & S REFINISHING SERVICE V. SCHNEIDER NATIONAL CARRIER, INC., and CHARLES VINCENT FURMAN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION - LAW NO. 1996 - 3237 CIVIL TERM JURY TRIAL DEMANDED NOTICE ", ".1 You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (,'W) days '>, after this complaint and notice are served, by entering a written appearance personally or by attorney, and filing in writing with the Court your defenses .. or objections to the claims set forth against you. You are warned that if you fall to do so, the case may proceed without you and a Judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FOR1H BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Court Administrator Fourth Floor Cumberland County Courthouse 1 Courthouse Square Carlisle, Pa. 17013 717-240-6200 DO GLAS,DOU LAS~DOUGLAS Dy ,~..~ Attorney or Plaintiff AMENDED COMPLAINT 1. The plaintiff, Steve P. Heipel, is an individual residing at 7350 W. BL, BX 3723, Youngstown, Ohio 44512. 2, The defendant, Schneider National Carrier, Inc., Is a corporation with a place of business located at One Schneider Drive, Carlisle, Cumberland County, Pennsylvania. 3, The defendant, Charles Vincent Furman, is an individual residing at CR 905, Rt, 5, Bux 3418, Princeton, Texas 75077. 4. On May 19, 1994, the plaintiff was the owner of n 19116 Ford van. 5. At or about 5 P,M. on the aforesaid date, the plaintiff was operating the said Ford van In a northern direction on Route 11 in Middlesex Township, Cumberland County, Pennsylvania. 6, At the same time and place, the defendant, Charles Vincent Furman, while acting In the COUrse and scope of his employment, was operating a 1993 International tractor-trailer that was traveling in a southern direction on the said Route 11, Middlesex Township, Cumberland County, Pennsylvania, 7, The defendant, Schneider National Currier, Inc., was the Owner of the said 1993 International tractor-trailer and was the employer of the defendant, Charles Vincent Furman, 8, The defendant, Charles Vincent Furman, made a left-hand turn off of Route 11 north onto Cook Drive in the said Middlesex Township, when he failed to observe oncoming trafflc and puiled directly Into the path of the plaintiff. 9. The collision was caused by the negligence of the defendant- driver in the following respects: (a) in falling to operate the said tractor-trailer in a safe and prudent manner; hand turn. (b) in falling to keep a proper lookout, and (c) in falling to observ~ oncoming traffic before making a left- , . 10. As a result of the negligence of the defendant-driver, the plaintiff sustained a total loss of his said Ford van of $4,604.00, a deductible of $500.00, less a net salvage value of $649.00, for a net loss of $4,455.00. 11. In addition, the plaintiff suffered injuries which included, but were not limited to, pain over the right side of neck, right shoulder, right hip and low back area, WHEREFORE, the plaintiff claims of the defendants a sum In excess of the amount requiring compulsory referral to arbitration under the local rules of Court. A jury trial Is demanded. DOUGLAS, DOUGLAS & DOUGLAS Uy hoJ'n._~e.~ Ali6~~r Plaintiff , , HEIPEL V. SCHNEIDER NATIONAL &: FURMAN 1996.3237 CIVIL TERM C~j"~~~Of FENNS'/L'IANIA ) : 55. ) Steve p, Hefpel, being duly sworn according to law, dcposes and says that the averments in thc within plcadlng are truc and correct, to the best of signer's knowledge, informallol1, and belief. __ L')..I./I ....,A ~.J:'. .~ r:- I~ Steve p, Heipel Sworn to and subscribed before me thiS~ day of ~_, , /lOAf~ ). ~ Notary .....,\\\" ""'II. ,,'\'.~ ;s\J.'Y PlJJJ~ 1'/.;, " :'\ . \1\111 .../. '!.. .,...... "".~:\~}:\~f~~: ~\ . . 1996. . t.~ ,. ... ~. ..."".......'<<'J/!.'iIN:- i;: = ..~"/l.. -': l~~!~11 ~....,,~ ",II'"'' " fOO: e\,[!1\ NoIIIy P\aIIa ..,,,\1. Of OHIO lA1 c..,.d 'I...... 0l*lllIf 11._ . '.' .... ,.... ;,::;.}''; .' ,....:...~~..,,_......_,...4.....' ,. Jack Emas & Associates ATIORNEYS AT LAW By: Dale A, Betty Attorney Identitication No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvllnia 19102 (215) 972-8065 - '~:'~:~'~'j 1,'- Attorney lor Defendants, Schneider National Carriers and Charles Vincent Furman STEVE 1'. HEII'EL, d/b/ll O&S REFINISIIIN(; SERVICE couln ()It' COMMON I'LEAS ()Io' CLJMIJIo:RLANO COUNTY v. SCHNEmER NATIONAL CARRIERS, INC. AND CHARLES VINCENT FIJRMAN No. 96.3237 ANSWER WITH NEW MATTER OF DEFENDANT, SCHNEIDER NATIONAL CARRIERS, INC. AND CHARLES VINCENT FURMAN TO PLAINTIFF'S AMEISDED COMPLAINT I, Denied as stated. Based on information and belief, Plaintiff resides in Hordman, Ohio, 44512. 2, Admitted. 3. Admitted. 4. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph therefore they are denied and proof demanded. 5. Denied as stated, It is admited that on June 19, 1994 at or about 5 p,m, a , person identified as plaintiff was operating a Ford van in a northerly direction on Route II in Middlesex Township, Cumberland County, Pennsylvania. The remaining averments in this paragraph are denied and proof demanded, 6, Admitted, 7, Admitted in part, denied in part, It is denied that detimdant Schneider National Carriers, fnc, was the owner of the 1993 fnternationaltractor trailer and proof is demanded. 8. Admitted in part, denied in part. It is denied that Defendant, Charles Vincent Furman failed to observe oncoming traftic and pulled directly into the path of plaintiff and proofis demanded, 9. Denied, It is denied that the collision was caused by the negligence of the defendant/driver and it is specifically denied that he: a, Failed to operate said tractor trailer in a safe and prudent manner; b, Failed to keep a proper lookout; c. Failed to observe oncoming traffic before making a left hand turn; and proof of all the foregoing is demanded. 10. Denied. It is denied that defendant driver's negligence resulted in a net loss to the plaintiff for damages to his vehicle in the amount of $4,455.00, and proof is demanded, II. Denied. After reasonable investigation defen1ants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph therefore they are denied and proof demanded. WHEREFORE, Defendants, Schneider National Carriers, Inc, and Charles Vincent Furman request that Plaintiff's Complaint be dismissed and that judgment be entered in their favor along with costs, NEW MATTER 12, Plaintiff's claims are barred or limited by the provisions ofthe Pennsylvania Comparative Negligence Act. 13. Plaintiff's claim is barred by his assumption ofa known risk. 14, Defendants were not negligent and therefore not responsible to Plaintiff for any injuries or damages sustained, 15. Defendants breached no duty to the Plaintiff. 16, Plaintiff's damages are limited and/or bl\rred by his failure to mitigate his damages. 17, Plaintiff's claims are barred by the applicable statute of limitations, WHEREFORE, Defendants, Schneider National Carriers, Inc. and Charles Vincent Furman request that Plaintiff's Complaint be dismissed and that judgment be entered in their favor along with costs, JACK EMAS & ASSOCIATES BY: -- D^LE~:~Ci';~1 VERIFICATION LAwrence J. Sacot te Jr'slates that he/she is nuthorized to toke this allidavit on behalf of Defendant, Schneider Notional Carriers, Inc. that the facts set forth in the foregoing ANSWER WITH NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT ore true and correct to. the best ofhislher knowledge, infonnation and belief and that this stalement is mode subject to the penalties of 18 Po, C,S. Section 4904 relating to unsworn falsification to authorities. y;,....,,,'"o :I ~d~ i-'"~ (;: (JI '. ~:~; c: ," ..... w' , ) ()(' .. :( I" ~- :. :-;} j-I l.)t-, ~ ,., :/) 6" ;j( . c'< l~~; , ,i'I) ... L. !l.... ..,. ~) It. ,., Co C') U ~ -, f:: C'J .'- 1-' 9 ~^} ..-f, r ( )':'-' .- () :~l: ~-:; ~1 ....)~~ , r' . ;'r>1 C. .:l' . '1 .~:~ ("- C'J (;~.. 'lhriJ \l: \'..' ~ '. I" r; i ~I_ r.,;; CJ . ~. ".. \.0 :-.> 0 0' 0 . 'fOU AU HPH In Ar CUI_l" '0 'Ill A WIUTlI... .11 '\1'C1"\1 "I fill 111(1(1',111 .UHf'" hill N" unl IlA y... '''0114 ~.. II lilt: r Hllt[O, O~ A Jun'iMlllt ',Uy III IH,,"(o AGAIN" tou. ., '--.- DUUI..;I.^!.... DDU(~II\:; ,I. f)(IIJ'; I ;.', wr on HIUIII~ 1.11/111' IIIH "" ....ll1ml I.. " II/Ill A,jIlCOIlIlICfl.rll', "" Till 11Illt;lNAI IUI n II, Ill':. ALIj(1', , '" ." "'HI' 'd.l I II llo', 'II' . - )-~ c , STEVE p, HEIPEL, D/B/A D & S REFINISHING SERVICE VS, SCHNEIDER NATINAL und CHARLES VINCENT FURMAN : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY. PENNA. : CIVIL ACTION LAW : No. 96-3237 'r ! i AFFIDAVIT 1 I , \ I HEREBY SWEAR OR AFFIRM THAT THE FOREGOING IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND/OR INFORMATION AND BELIEF. THIS IS MADE SUBJECT TO THE PENALTIES OF 18 PA.C.S.g 4904 RELATING TO UNSWORN FALSIFICAT~ON TO AUTHORITIES. ./ ~P?/l;.qJ Steve P. Helpel if; ltl (~ 1,-.1 <..,.. ... .. .~..-~ Ie" ('-: (~.-, , . ~Ll' ' -::: ..) :_~ 1[. l:-'j ~ I\~i' LL- . ~ ,4 (4;:..: , i' ~;'; ,J ~\;" - ~ :~; C1-- :i(d cr: \, 1'-' "!(J,.. (' <.fl :j . ,n p. U C,' O'} .'". YOU UIE Hrun IrOUUlfD TO 'Ill A WIITTlN t["aNU TO IHr. (HCLOUD WITHIN nUN" 1101 DU. FlIO,", IUVICt Hura, 011 A JUPU/I4[NT ....., lIE IImERID AOA'".. YOU, IV ___..___. Ano...u DOUGLAS. DOUGLAS & DOUGLAS "0 fHlo "" W[ DO HUI,,,, cUlln 'HA' THIE WITHIN "'" TRUI AND CD.Ilcr co.., or TNt OIUGIHAl "UD IN fill'! ACTIoN, ., ATTOANna AT' lAW If 'If lunu IT"I" ~ i""""I GEORGE F, DOUGLAS, III., ESQUIRE A'ITY,I.D,#61886 DOUGLAS, DOUGLAS &: DOUGLAS 27 W, HIGH ST, POB 261 CARUSLE PA 17013 TELEPHONE 717-243-1790 ATIORNEY FOR PLAINTIFF you AM MEI'lEilY I'lEQUIIIlO TO F'U; A WI'lfTTEN I'lESI"ONSE TO THE ENCLOIEO WIn4IN TWENTY (201 DAYS ,"'* llIJIVtCE HE"EOF 0" A JUOQMENT MAY BE EHTEMIl AOAINST YOU, ( / IV ~1L.L..J~::;VJ(L."" "v- A TTOIlNEY STEVE P. HEIPEL, d/b/a IN THE COURT OF COMMON PLEAS OF D &: S REFINISHING SERVICE: CUMBERLAND COUNTY, P A, V, CML ACfION - LAW SCHNEIDER NATIONAL and NO. 1996 - 3237 CIVIL TERM CHARLES VINCENT FURMAN: NOTICE You have been sued In Court. If you wish to defend against the claims set forth In the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney, and filing In writing with the Court your defenses or objections to the claims set forth against you, You are warned that if you fall to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed In the complaint or for any other claim or relief requested by the plaintiff, You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Fourth Floor Cumberland County Courthouse 1 Courthouse Square Carlisle, Pa. 17013 717-240-6200 DOUGLAS, DOUGLAS &: DOUGLAS By b.Q...K\ a\ f. f)~\ 109.J<l...t- i.; Attorney for Plaintiff .1 , I I I , 1"1 ~ COMPLAINT 1, The plaintiff, Steve p, Helpel, Is an individual residing at 7350 W. BL, BX 3723, Youngstown, Ohio 44512, 2. The defendant, Schneider National, lnc" Is a corporation with a place of business located at One Schneider Drive, Carlisle, Cumberland County, Pennsylvania, 3. The defendant, Charles Vincent Furman, Is an individual residing at CR 905, Rt, 5, Box 3418, Princeton, Texas 75077, 4. On May 19, 1994, the plaintiff was the owner of a 1986 Ford van. 5, At or about 5 P,M. on the aforesaid date, the plaintiff was operating the said Ford van In a northern direction on Route 11 in Middlesex Township, Cumberland County, Pennsylvania. 6. At the same time and place, the defendant, Charles Vincent Furman, while acting In the course and scope of his employment, was operating a 1993 International tractor-trailer that was traveling in a southern direction on the said Route 11, Middlesex Township, Cumberland County, Pennsylvania. 7. The defendant, Schneider National, Inc" was the owner of the said 1993 International tractor-traller and was the employer of the defendant, Charles Vincent Furman. 8. The defendant, Charles Vincent Furman, made a left-hand turn off of Route 11 north onto Cook Drive In the said Middlesex Township, when he failed to observe oncoming traffic and pulled directly into the path of the plaintiff. 9. The collision was caused by the negligence of the defendant-drlver In the following respects: (a) in falllng to operate the said tractor-traller In a safe and prudent manner; (b) in falling to keep a proper lookout, and (c) In falling to observe oncoming traffic before making a left. hand turn, ~ 1""'\ 10. As a result of the negligence of the defendant-driver, the plaintiff sustained a total loss of his said Ford van of $4,604.00, a deductible of $500,00, less a net salvage value of $649.00, for a net loss of $4,455,00. 11, In addition, the plaintiff Incurred medical payments totaling $4,913,68, His Injuries Included, but were not limited to, pain over the right hip and low back area, WHEREFORE, the plalntUf claims of the defendants a sum In excess of the amount requiring compulsory referral to arbitration under the 20cal r .Ies of Court, A jury trial Is demanded, F' ~ r:;; . .(..." I.J R,6-- ~ DO LAS, UGLAS & DO LAS By r. AU rney for Plaintiff ~ Affidavit This verification is made pursuant to Pa.R.c.P 1024(c) by counsel for the plaintiff, because the plaintiff is llut of state, and because of time constraints. To the best of the signer's knowledge, information and belief, the foregoing Is true and correct, ~J/flJ)L ~~4--'~ George F. Douglas, III Attorney for plaintiff .z..!i/Yi~\ {1:~~p.,JtDt' uk II, j)f"'f!Lrl'b t....~r;42~i,t,) I f. ,r) Dr~..t.<(...." 0 ':PfJ.- ~~ May 9, 1996 Schneider National, Inc, P.O, Box 2545 Greenbay, Wisconsin 54306 Claim No.: 611-3009958 Date of Loss: 06-19-94 Insured: Steve P. Heipel DBA D & S Refinishing Service . Claimant: Schneider National, Inc. Your File No.: ~.~Q.Q7 Amount of LOSS:~$9,368.6~ Deat. .sir: We are enclosing copies of portions of our file which detail the basis of our settlement with our insured, We have made payment as follows: $4,604.00 $ 500.00 -$ 649.00 $4,913.68 COllision Deductible Salvage Medical Payments Homeowner Comprehansive Rental Reimbursement Uninsured Motorists P.I.P. $9,368.68 Total Sincerely, Karen Gary Subrogation Examiner hp/17/246 Enclosure Onange MutuEll Ca"ulllt)' Co., OranHe UCe 'nluMlltCQ CO'I Qr3l111e CUIlTlJlan Inllurance co., TruIllIllI'cJ In.unaneD Co., Q~I Prl!mJum OudHet. Inc. 6.~O Soulh Fronl Slrcel, P.O. Do. 1218. Columbus. Ohio ~J216.1218 6101/+15.2000 ... . -, SELLER: GRANGE MUTUAL INS. P,O Box 300 GIRARD, OH 44420 CHBCJl: NO. 01485 147201 nD. lD' U.11107I1 C=~C1' 133935 . SUIVIIVlAI ION ~ -- 86 FORD F250 VAN 11F'l'F!2 4N5GHCO 7 7 52-"."" S'l'BVl!: S'l'BVI!: IVAN o'6/img/i;41 SAL! PRICE 'l'OWING CHARGE S'l'ORAGE CHARGE CPS 'l'OWING CPS HANDLING 'l'I'l'LE FEE CPS S'l'ORAGE 900.00 95,00 520.00 41.00 43.00 5.00 251.00 . ,~. 1.\', I' \) ~CHANICSBURG PA 170551 C~;~ I L::::j OLLIS 'l'RUCK SALES 996 NOR-BA'l'H BLVD OR'l'HAMP'l'ON, PA 18067 --.. ............-....... P.O.IIox:l'l!l._H.......PAIT.l7O PI.&ASJ: DJ:TACH HnOIll!: DB:POSITINQ CllECX NET CHECK AlTAl:H..:.1 704.00 649.00 .... ". '" . ., 1o.ooIA._1 ,.. .-----------~~~~ Wi's: FRONr'STAEeT':SOX;2;S------ "";1:5:5-:;;;';- COMPANY COLUMBUS, OHIO 4:1218-1218 No. .wo i " I .,!, 10;'" 4 occ. .)I",t II ~)::l099~ PAY $ It***::l.a99..~a STFVF. P HEfFEL - STEVE P HEfFEL DBA 'AY ro rHE )RDER )F "''''I'UIN1' 0fII MEDICAL FAVMEN;~ 1)1"")I~I)~l)09q~P, QMI ~. (')(:u,)(\ \ 3S9-=e T1./o,)El CJ _1LOCIl "CHllCICIO 1ltI DlW'T ,. .. I'IJLL IIITTI.!I.OlINT AND AILaAU DI' AU. CLQlI ~ 11<1 '....1.) """ IIWflY TO I'IIIlIOH AIfll OAMAO. TO ,AOPllATY NOWIX1IT1NQ OR 1tIRWTIIl....1HO _THlIH8URIO... A"Ul.T~ Tl<1 ____ ACC:lOINT. I1<IN'f\JCKYlIllLlAal ON OIW'T II NOT VAUll ~ ,._ IIWIllU '''0 UNCIA AN AUTQlOIfLI UAlIIJ1'Y 1H8U1lANC11'DlJOY,) -- f" ."lIull "" ~ .~ (-;7" .~":.-.. ......, _,..; .. ----::...-:..;..:.-:.~~.::.=~~~.s - - _______ VOID AP1Vl'1IIOH'nCI "'OM DATI 0fI DfWIT . , 3a,~NCH CPO'CO CCpy -------------- -- .- -.. -.--..-......-------------- ,.. ." . I - . - ---------- ~U...LTY-' ~ s. 'p~~~m~i:T..;;x_;;;;_------------- - 0000""'7",,_2110' COMPANY CO~UMBUS, OHIO 4:1218-1218 No. . ..... ........wo \, ace. NO. DATI 00 ,)""1 t 9:5 PAY $ ***;j".""t:56.n,) PAY TO STEVE P HF I PEL THE OROER OF . """YWIM' 0fII - STEVE F' HEIPEI_ OBA CJ -lLOCIlfl CliICI<Ill_ OIW'T II IN I'IJLL SITTI.Il.IINT AND AILIAaI OP AU. Q.U,IS ~ Tl<I 'A.IIII) """ ",""flY TO,.AIOH AND ONolAaa TO '~TY NOWIXIIITINO OR "IIIAI'TIA _ oIOAlNST 1I<IINlUAlO.. A AIIIJt.T ~ Tl<1 - ACClOINT. ~ IlILIA8I ON DfWT " NOT VAUO OOA P!Jl1lOlW. IH.,OUAJU'AIO UNIlIIl AN AIIT'DIlOOU l.lAlIlUTT INlUfW/CI Pa.JCY.) -",..... r. ..~... Ba1<. ~OH MEDICAL PAYMENTS '"""'.... 1)1)0')0::30097313 OC,Ol):;!::75 t:l TL/A3 ., ,,' , f'.'-- \ -- ......_', '" _ "I.l~~~ ~'j;~1 ",;:_, I J,';:-:l_= ... . .. "\ "YQDAPTVI I IIONTHI '"OM DATI: 011 0IIAJrT ---- A DITACH U'ORI 01l'08/T1NQ ROBERT LISOTTO ATTORNEY AT LAW 1280 BOqRDMAN CANFIELD RO YOUN613TOWtI OM 44:51:.2 AllEHT NO. 1)004709 IAI_ 000000000 OFFICE USE ONLY w.JOR CLMT. PAY LOSs PERIL NO. COOE AMOUNT 114 00 PP ***.*-Itlr136.0,) ~ 0: 3RA,'1CH CFFiC~ COP'I -------------.-. -- .-.. ..- '--- -- .----.------------ .... PART - III ClIIm No. (L'~ ..... - Bin No. INVESTIGATION REPORT - I CIeI'll8j1l" NlIII18 J. ~ ___ n /Clalmant.. No. l~;~ ffn_8 y \ ., = r: TYPE Date r r (E>cept Hasp. AdmJasiona) 1btaI __ Incurred ~ : DI8gnoeac ll'NlIMIIt Amount :., l Amount Amount ~~O ..... .~Oo ~'l/"9."..('1 .'2/ "'.5'0 ,,1,.,do .T. 00 l./~.t,( Uc;('.I~ ''11.00 14100 q'NOC q.~ClO '-v .J _ O~ ..., , I ~'3~OO :;.~i'" 1,\/,0" lSf.pOO -,- " lIeclal ExpetIN (Doctor, Hosp/laJ, Drugs, etc.) 1 I.".l ~ tlQ..ll\) 21tl.C4, t..O. ,,......, a :Ck (11. . OJ_. . --. 4c ".-!r;:;- n....~ _A.,~ I II, f1,., ...J:) . . II r..-. i:3. ..... ..L'l 7 l"'I.lf'JLV.....1-o. I ~ e.o.a.u r." . 1\ 'I 10 \.. I '" 11 12 13 14 18 18 17 1. 18 20 ~1"l.~IFl ~~ ...- 'BI~ ... '5n. /' rJ:.~~ /' 101- ."llJ I. ,.. -.2J,-~ ,/ 5Q-I~l4ICt ...-. .. , ~ . " J J f" <;' -;t::" :!J, \ I I ",'" ," i' 10,.' .h..:... I~. I'V ........ C:t N c:J C, ';}"" .. r:; . I ~J V1 ~':l ~\ .-. a 0 '=' .. .. 1,... w~ + 40 + of- 11"_" ..~. - - - , .J ,'J ',' . . , " J 'J ,\l .. 'J' \'1 '.'1 (;. '-' ',;1 .~. I." . . . . . 0 .. ,. .~ 0 ~, 0 . <:) ';J "' 0 -J . n n :! II " .. -'- . , I lost Wages (Sha.v ComputatJons): Other EJcpensas: Ambulance Bill (NOT 10 BE INCLUDED IN ABOVE MEDICAL EXPENSE): _ Ie Yo. Cue ReM",../ Date/ ' '.. 'lbllll Speclala , Amount ReqUMted Date Amount AuthorfDd . Page _ of_Pages I~L_~ Amount DIIte AIMIICN ("', 1-,"' ,/& ~ ~ .~.r;tlC() l;ilpN' J .('1.G'U 'I" Dm. NOTICE OF THIRD PARTY CARRIER SUBROGATION _ 0 No 0 Yes NII111 ~ Carrier -WRITE THE CORRESPONDING NUMBER ON THE LOWER RIGHT CORNER OF THE Bill. --NDN'SUBROGATED COLLATERAL SOURCE (TOTAL AMOUNT ) ~~ n-MO Signed By Parson comPletfn~........ . By . DOUGLAS, DOUGLAS & DOUGLAS 27 W. HIGH ST. POD 261 CARLISLE PA 17013 TELEPHONE 717.243.1790 WILLIAM P. DOUOLAS, !!SQ. Supremo Court I.D.' 37926 OEOROB P. DOUOLAS, In, ESQ. Supremo CourtI.D.' 61886 " (, f" STEVE P. HEIPEL, d/b/a D & S REFINISHING SERVICE, P:O. Box 3723, Youngstown, OH 4451 .- PLAINTIFF IN THE COURT OF COMMON PlEAS OF CUMBERLAND COUNTY PENNSYLVANIA f - "I f" , I, . , . f; F, ( ,. Ill;'. " !.~ ." , ! 1996 - 3..1.37cIVIL TERM .. \e ',SCHNEIDER NATIONAL, -11861 Cottage Grove '~[:hica:go, IL 60628 and St. B, CIVIL ACTION LAW DEFENDANT , CR905 RT 5 BOX 3418, Princeton, TX 75077, DEFENDANT To: Lawrence E. Welker, Prothonotary ~ Please issue a writ of summons in a civil action sgainst the within defendant, Schneider National, and the defendant, Charles Vincent Furmsn. Date: DOUGLAS, DOUGLAS & DOUGLAS by ~.L Po t~11-- ~ Attorney for the Plaintiff June 7, 1996 ,~ ~~ ,,~ Uo '-9 . "",c,- ~ '~ ~N\ ~~ .# ~ t ~ ~J. - M '1 ;:)~ 't; ::<: )~ 0- ')- . ~ f;:l . " V) r- :~ I} ::f It) I ~ W. ~ I~ ~ 9 ~ . ~ ~ ,. 'ft. . .. . Commonwealth of Pennsylvania County of Cumberland Steve P. Heipel. d/b/a D'S RefiniBhing Service VB. Schneider National 11861 Cottage Grove St. B. Chicago. IL 60628 Court oC Conunoll Pi.... No. __9.Ji':-_~A~LCAYJ.!__T!!_glu_______ 19____ AND I II u _ _ _ _ _ _G :J._'!:!), _ AC;;.t_!9J!_ ::_M!'!.m____m. Charles Vincent Furman CR905 Rt 5. Box 3418 Princeton, TX 75u77 To u~_c:!t_'!~.J:.<.:'!!.~__fi~_~~_l!~!!Ll.!!I_IL'=!JJ!F_~~_B Vincent Furman You are hereby notiried that ._~_t:.~X~__~:u!.l!!.!p..t;!L~.L!l.l~ul;?__lji__~__I!!i!_U_~_:!:!:I_I}!ng__!?!t~!P.Q___m__mn_um._______ the Plain tire ha B commenced an action In __u_.c;.:.!Y-!J.__!\_c:;!:_~g_'!___:._Al.!!'!.u___u_.__u__________. against you which you a", "'quired to deCend or a deCault judgment may be ente",d against you. (SEAL) Date June 7 ---------------.-------------- 19__~_6 Lawrence E. Welker .----------------.-p~th~~~~;y-------------...-.- Dy m~-c2-~-1t~-m- Deputy . .-l tl' \Q " QJ ~~~ U .... . t.:l .B ~~ 'tiC: ~l:) .t:lQJ ~j :::8 . ....1Il OM 'tI1ll .a .." . r-l m PooC :;j ...j~ c: j :. I'll ~ t- O'" I'll .-l ..-l ~r ,~ '... c: ..:l III . l~ - "'QJ ::It.:l... CJ I'll U .-l 8811l~~ < ~,~ Z c: '... t- ,... > .c: =1 ~ ~ ~> .... . Ill..-l~ . QJ QJ CJ r.. ..... QJ \Q ,., PooP: 'tIm ~=.-l"" , .... QJ ~ ..~.~ \0 QJIIl QJ.-l 01 > .E~ ~t.:l:a.-lQ QJIlI U.m o l:) ~ . ... QJ 8 t- I'll . IIlQ IIlCJ t.:l NCJH ,. Jack Emas & Associates ATIORNEYS AT LAW By: Dale A. Betty Attorney Identification No. 08609 3130 Center Square West 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 972-8065 Attorney for Defendants, Schneider National Carriers and Charles Vincent Funnan STEVE P. HEIPEL, d/b/a D&S REFINISHING SERVICE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. SCHNEIDER NATIONAL CARRIERS, INC. AND CHARI.ES VINCENT FURMAN No. 96-3237 DEFENDANTS SCHNEIDER NATIONAL CARRIERS, INC. AND CHARLES VINCENT FURMAN'S REQUEST FOR INSTRUCTIONS TO THE .JURY I. Under all the facts and evidence in this case your verdict must be in favor of the defendants. \2- ~ ,. 2. The mere fact that the plnintiffinstituted this lawsuit does not in any way mean that defendants are liable. Green v Morelli Rros., 463 F.2d 725 (3'd Cir. 1972). , 5. The legal tenn negligence, otherwise known as carelessness, is the absence of ordinary care which a reasonably pm dent person would exercise in the circumstances here presented. Negligent conduct may consist either of an act or an omission to act when there is a duty to do so. In other words, negligence is the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, in light of all the surrounding circumstances established by the evidence in this case. It is for you to detennine how a reasonably careful person would act in those circumstances. Pa.SSJI (Civ. 3.01). , 7. In order for the plaiutifTto recover in this case, the defendants' negligent conduct must have been a substantial factor in bringing about the accident. This is what the law reCOb'l1izes as legal cause. A substantial factor is an actual, real factor, although the result may be unusual or unexpected, but it is not an imaginary or fanciful factor or a factor having no connection or only a insib'l1ificant connection with the accident. Pa. SSI 3.25. . 8. The plaintiff must prove more than evidence of an accident to prove negligence. In some circumstances all accident may occur that is unavoidable and not the result of anyone's negligence and in such a case the jury may find that the accident was unavoidable. Trolltmen v 1:Jlbb. 285 Pa. Super. 353. 427 A.2d 673 (1981). 10. A statute which has application is 75 Pa,C.S.A. *3112 which provides, in pertinent part, as follows: (a)(I) green indication (i) vehicle traffic facing a circular b'feen sib'ltal may proceed straight through or tum right or left unless a sib'ltal in such place prohibits either such turn except that vehicle traffic, including vehicles turning right or left, shall yield of right-of-way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time the signal is exhibited. If you find that the plaintiff Steven Heipel violated this statute, you may consider his violation as evidence of negligence. Your finding on this issue may be based on the alleged traffic violation alone; but in the event that there is additional evidence bearing on the accident, you will consider the alleged violation together with all the other evidence, if any, bearing on plaintiff's negligence. 11. The Comparative Negligence Act, 42 Pa.C.S.A. ~70 12(a) will be applicable to this case. , " 12. The jury is not required to believe any person who testifies even when their testimony is ullcontradicted. Ray v City ofPhiladelphill. 35 A.2d 145 (Pa. 1942); Morlln" v J.Jhiln Electric Co . Pa. Super.. 445 A.2d 1263 (1982). , '. 13. The number of witnesses offered by one side or the other does not in itself detennine the weight of the evidence. It is a factor but only one of many factors which you should consider. Whether the witnesses appear to be bias or unbias; and whether they are interested or disinterested persons are important factors which go to the reliability of their testimony. In short the test is not which side brings the greater number of witnesses or presents the b'1'eater quantity of evidence but which witnesses or which evidence you consider most worthy of belief. , I, , 14. Dwnages are not presumed and must be proven by competent evidence and the plaintiff has the burden of proving each and every element of damage he has claimed. I direct that if you find any element of those damages to be unrealistic or not properly proven then you cannot return a verdict for the plaintiff which includes any such element. . J,' 15. Compensation for an injury to the plaintiff has to be given with the least burden to defendant consistent with the idea of fair compensation. Mnss R&I Company v Johnson and Harder Company, 348 Pa. 512, 35 A.2d 721 (1944). t" . 16. If you find that the credible evidence on the subject of any of the plaintiff's claimed injuries or other losses is against the contention of the plaintiff or that the evidence is equally balanced then the plaintiff has failed to meet his burden of proof then your finding must be for the defendants with respect to his claim. ~.138A.2d93(Pa.1957). ., .,' , 17. In order to award damages the law requires sufficient data from which the claimed damages can be ascertained with reasonable certainty, the damages cannot be based upon guess, conjecture or speculation. Pratt v Stein, Pa. Super., 444 A.2d 674 (1982); Stevenson v Economy Rank of Amhrid!:l:, 197 A.2d 721 (Pa. 1964). to .... · 18. All of plaintiff's damages need not be accepted by you but only those that are fair, reasonable and necessary. Those damages which are doubtful and speculative may be rejected by you. Loeb v AII~&:heI1Y COllnty, 394 Pa. 433, 147 A,2d 336 (1959). .....1. P 19. When detennining damages for personal injuries it is proper for the jury to consider the failure of the plaintiff to undergo recommended medical treatment or surgery which an ordinary pmdent man would have submitted to under the circumstances in an effort to better his condition. Thus if you find that the plaintiff Steve Heipel failed to fulfill his duty to mitigate damages 110 damages should be awarded for the hann that might have reasonably been avoided. Yost v. Union R .c&.. 551 A.2d 317 (Pa. Super. 1988). IC\. A. ..hoe r1o."ntoff hA.~ Q.. dV8 to ml-\,~1e h,s e\Cl..W\o.al!~. 'I ~ "the rl4\l'\tff hid. b..eY' CLov.cl IS c4.ftt,l,le 0+ worh,:na' he l'~ 1'~~~'I'@d to ctH't"lt'lft :cJ .J,,,J (It+-tAI'\'''~\~L -emrl'1~'t"nt I l.,t' elC(t."cf'le, ~t"cI,,,- jobs, ltlht jobs a..tJ st"d""faa w~, rhvs.,t if#ot.. ..ItlqJn~L ~,f fI4'~ !,1f J.'J -n()t tttl..m;Jf 10 Imef tJtl/~nif.I"ve emf" 't1Ul1f, (fttu.... 'H1V..r1' rt"duc<. 111/ c./-rt..? ~ loss ~ /! ,on, ___ /, J fl. "'"'0 ,,,,t- 1-1. T h ~ eo" lei )/ll J/e etG/I;ucl a-t- a/I~"I<III'f' -t!Hl/,/'ptt"l C!rJ",iJr v: I3tJ/'l1! S--fS- ,IJ.J.cI 9Jj- (1?.S"'f~,/798) >> " .. 20. If you find that the plaintiff should have proceeded with the treatment recommended by his physician, Dr. Danyo in 1995 then you should not award any damages after three months had elapsed from the time of the recommended arthroscopy. This would include all damages for pain and suffering pertaining to his shoulder and lost wages. JACK EMAS & ASSOCIATES BY: .oA.4A. ~ DALE A. BETTY ~ " ~ ::l 0 Z a ~ ~ ~ " .., w >- !c 0: ii Ul - Ul ~ N Z ~ ~ n M Ul Z 0 ti % 0 Iol' " 0 Il Q,O ::l z i d ~g a: 0 0 . 0: a ~ ~ Ul ~ N :; ~ " ::l 0 a , . . . Ll. An Act of Assembly of this Commonwealth, in effect at the time this accident occurred, provided in part: The driver of a vehicle intending to turn left within an intersection. . . shall yield the right-of-way to any vehicle approaching from the opposite direction which is so close as to constitute a hazard. 77 P A.C.S.A.S3322 and/or Upon a roadway no person shall turn a vehicle or move from one traffic lane to another . . . unless and until the movement can be made with reasonable safety. 77 PA.C.S.A.S3334(b) This Act dictates the duty of care required of someone in the same situation as the defendant. If you find that there was a violation of this Act, you must find the defendant negligent as a matter of law. However, before you answer the question of plaintiff's right to recover, you must determine whether this negligence was a substantial factor in bringing about plaintiff's injury. 3.30 (Civ) NEGLIGENCE PER SE-VIOLATION OF STATUTE Heipel points for charge page 2 L2. In this case it is admitted that the defendant Charles Vincent Furman, was at the time of the occurrence acting as the employee of the other defendant, Schneider National, known as the employer, and was engaged in furthering the interests, activities, affairs, or business of his employer. An employer is liable for the negligence of his or her employee occurring while the employee was acting in the course and within the scope of his employment. Therefore, if you find the defendant, Charles Vincent Furman, to be liable then you must find the defendant Schneider National also liable. If, however, you find the defendant Charles Vincent Furman not liable, then you must find the other defendant not liable also. Pa, S.Civ. J. I. 4.02 Helpel points for charge page 3 D4. If you determine the plaintiff's injuries will continue beyond today, you must determine the life expectancy of the plaintiff. According to the statistics compiled by the United States Department of Health, Education and Welfare, the average life expectancy of all persons of the plaintiff's age, sex and race, at the time of the accident is 36.1 years. This figure is offered to you only as a guide, and you are not bound to accept it if you believe that the plaintiff would have lived longer or less than the average individual in his category. In reaching this decision you are to consider the plaintiff's health prior to the accident, his manner of living, his personal habits and other factors that may affect the duration of his life. Pa. S.Civ. J. I. 6.21 I-Ielpel points for charge page 7 05. The plaintiff claims the following property damage in this matter: property damage and expenses $4455.00 The plaintiff is entitled to be compensated for the harm done to his property. In addition the plaintiff is entitled to be reimbursed for incidental costs or losses reasonably incurred because of the damage to the property, such as towing charges and loss of use of the vehicle. Pa. S.Civ. J. I. 6.01 J Helpel points for charge page 8 07. The plaintiff is entitled to be compensated in the amount of all medical expenses which you find he wll1 reasonably incur in the future for the care and treatment of his continuing injuries. The current expected future medical expenses are in the amount of $6,250.00 Pa. S.Civ. ]. I. 6.01 B Heipel points for charge page 10 08. The plaintiff is entitled to be compensated for the amount of earnings that he has lost up to the time of the trial as a result of his injuries. This amount is the difference between what he probably could have earned but for the harm and less any sum which he actually earned in any employment. Pa. S.Civ.].I. 6.01C 09. Based upon the evidence and the law applicable thereto you must find in favor of the plaintiff and against the defendant. r, '1' \',,- Respectfully submitted, DOUGLAS, DOUGLAS & DOUGLAS ~C?\ William P. Douglas, Esqu' e By Heipel points for charge page 11 KELLY ALSEDEK, LAWRENCE CRAFT and LINDA CRAFT, his wife, JOSEPH FRY and JOAN FRY, his wife, WAYNE GEHR. JOEL HOSLER and PAM HOSLER, his wife, JAMES MCLEAN and JESSICA MCLEAN, his wife, KAREN RINEARD, EMILY SCHWARTZ, TERRENCE TRUSDELL and DANI 10 TRUSDELL, his wife, Plaintiffs, :IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, :PENNSYL VANIA :NO. 96-3327 :CIVIL ACTION. LAW :JURY TRIAL DEMANDED V. THE BOROUGH OF CARLISLE OF THE COMMONWEALTH OF PENNSYLVANIA, Defendant. PLAINtIFFS' ANSWER TO THE PRELIMINARY OBJECTIONS OF THE DEFENDANT NOW, come the Plaintiffs in this matter by and through their attorneys, O'BRIEN, BARIC AND SCHERER, and respectfully answer Ihe Defendant's Preliminary Objections as follows: I. INTRODUCTION 1. Admitted in part and denied in part. Plaintiffs admit that they are bringing this action as homeowners and tenants who reside on Redwood Drive in the Borough of Carlisle. It is also admitted I:.allhey suffered damages on January 19, 1996. The remainder of the averments are denied as stated. By way of further answer, the Plaintiffs suffered water damage as a result of the Borough of Carlisle's actions in dumping and accumulating a tremendous reservoir of snow, thereby creating an artificial and unreasonably dangerous condition upon the land owned and maintained by the Borough. 2. Admitted in part and denied in part. PlaintilTs admit that the winter of 1995-1996 included winter stonns and precipitation throughout the Commonwealth of Pennsylvania. The remainder of the avennents are denied as stated. By way of further answer, the PlaintilTs homes did incur water damage liS a result of the actions of the Borough and the winler stonns did not accumulate the snow on the Borough's property. Rather, the snow was accumulated by dump lrucks and olher construction equipment. 3. Admitted. By way of further answer, the Borough created mounds of snow measuring approximately fifteen (IS) to twenty (20) feet in height and extending over a wide area of the PP&L Tract which bordered PlaintilTs' development, was higher in elevation and which contained a 8tonn water system which directed water onto PlaintilTs' property. 4. Admitted. 5. Admitted. 6. Admitted. By way of further answer, il was the Borough's actions in improving Ihe PP&L Tract, changing the topography of the PP&L Tract, concentrating stonn water from the PP&L Tracl, amassing an enonnous reservoir of snow on the PP&L Tract, moving equipment over the PP&L Tract thereby damaging the soil and otherwise conducting related activities constituting alteration and/or development which alTected the stonn water runolT characteristics of the traet and led to the damage incurred by the PlaintilTs. 7. Admitl~d. 2 II. VlELlMINARY OBJECTIONS At Demurrer to Pllintitrl Comolalnt 8. Admitted in part and denied in part. Admitted that The Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S.A. ~850l ~1.GlI. provides limited or qualified immunity to political subdivisions. Denied that the exceptions are "narrow". By way of further answer, the exceptions are applicable if the conditions set forth in ~8542(a) have been satisfied, namely: (1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under ~8541 or ~8546; and (2) The injury was caused by the negligent acts of the local agency or an employee thereof acting withing the scope of his office or duties with respect to one of the categories listed in subsection (b). 9. Admitted. 10. Denied. By way of further answer, ~8542 (b)(3) contains an exception pertaining to Real Properly. The Borough of Carlisle's negligent and reckless actions with regard to the Induslrial Pool Site and the PP&L Tract clearly exceptlhem from immunity resulting in Ihe imposition of liability as provided for in the statute. Section 8542 (b)(3) reads as follows: (b) Acts which may impose liabillly. -- The foliowing acts by a local agency or any of its employees may result in the imposition ofliability on a local agency: (3) Real Properly -- The care, custody or control ofreal property in the possession of the local agency, exceptth!lt the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, "real property" shall nol include: (I) trees, traffic signs, lights and other traffic controls, street lights and street lighting systems; 3 (ii) facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights-of-way; (iii) streets; or (iv) sidewalks.' 11. Denied. WHEREFORE, Plaintilfs request thai the Preliminary Objections ofth~ Defendant be overruled, alternatively, Ihal Plaintiffs be permitted to file an amended complaint. 12. Plaintiffs incorporate by reference paragraphs 1-11 as though set forth in full. 13. Denied. By way of further answer, Plaintiffs pray that if the court deems that the Complaint aa filed should be amended as a result of the Defendant's Preliminary Objections that they may be given the opportunity to file an amended complaint. 14. Denied. By way of further answer, Plaintiffs assert their claim against the Borough under Ihe exceplion from immunity contained in ~8542 (b)(3) of The Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S.A. ~ 8501 ~ 15. Denied. By way of further answer, The Pennsylvania Political Subdivision Tort Claims Act, ~8542 (b)(3) does nol contain a 'notice' requirement. To allege Ihat the Plaintiffs' claims cannot proceed without such notice is an erroneous reading of the statute. The Borough's negligent, careless, wanton and reckless actions would be recoverable under common law or a stalute creating a cause of action as required in ~8542 (a)(I). In addition, the injuries suffered by the Plaintiffs were caused by the negligent acts of the local agency or an employee thereof acting 'Defendants have raised no objection to Plaintiffs cause of action under the Slorm Waler Management Act which specifically includes a municipality as a potential Defendant for a violation thereof. 4 within the scope of his office or duties, thus the requirement contained in ~ 8542(a)(2) has also been satisfied. WHEREFORE, Plaintiffs request that the Preliminary Objections of the Defendant be overruled, alternatively, that Plainliffs be permitted to file an amended complaint. Respectfully submitted, O'BRIEN, BARIC AND SCHERER By~;/J~~I David A. Baric, Esquire 10# 44853 17 West South Street Carlisle, PA 17013 (717) 249.6873 5 KELLY ALSEDEK, LAWRENCE CRAFT and LINDA CRAFT, his wife, JOSEPH FRY and JOAN FRY, his wife, WAYNE GEHR, JOEL HOSLER and PAM HOSLER, his wife, JAMES MCLEAN and JESSICA MCLEAN, his wife, KAREN RlNEARD, EMILY SCHWARTZ, TERRENCE TRUSDELL and DANI JO TRUSDELL, his wife, Plaintiffs, :IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, :PENNSYL V ANI A :NO. 96-3327 :CI\<lL ACTION - LAW :JURY TRIAL DEMANDED V. THE BOROUGH OF CARLISLE OF THE COMMONWEALTH OF PENNSYLVANIA, Defendant. CERTIFICATE OF SERVICE - I hereby certifY that on July Z~ ,1996, I, David A. Baric, Esquire, of O'Brien, Baric & Scherer, did serve a copy of the Plain tilT's Answer To The Preliminary Objection Of The Defendant, by first class U.S. mail, postage prepaid, to the party listed below, as follows: David J. MacMain, Esquire Montgomery, McCraken, Walker and Rhoads 123 South Broad Street Philadelphia, Pennsylvania 19109 A".2? c::: tf David A. Baric, Esquire '- m i#: c.. ~~ .. ILl!" , " (.,. " , , r~: ..... J (e': ) ! C" :!..!l. ('- ; L>' ..-". '.1 I :'.j ....'... " C"l :.J u ( , u PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within ITIi.Itter far the next Argune.nt Court. -----------------------------------------------------------------------..--------------- CAPTION OF CASE (entire caption IlUSt be stated in full) . A'.(.~ "i A~SeiUsU;- t..tltl-''''~EN~6' Cilttlt,frr .."".ll. .(''''-'0'"'' C,wN.....,... -rIa. 4;;'.~ ..kS ''';1 jb Ifl~ " . , r . '""~ 4\) .J:;.;lrJ1V "''-1, I "",~ "-1"'6'1 ,WoIfIf.44r- ~"I -"Zt:.. Mor(i'~ A'.c.~ ~M #"s"~t..y A',t lior/'"1!) ........ n ..., ",-", 14' ..-"", ~ ..., C........ ," , "''''' ......,'" "',...""" f..", 4 r.,._"", nA!"-4t:e- r.e.u"bl.l!.'A.t-~ ~A.' "';e> ~e'sl11LL.,;/i,:. tv/t'?::-~ I (Plaintiff) VB. ny.. &oIt'.t7....6'61'"'l""" c;;,~UU' (jY- ;;r.....L C;"".w~;r.-tJ-r"(..17I /$",- 4.A-WS~t bAM.;(J (Defendant) No. 7h Civil 33Z 7 19 1tp 1. . ion f trial defendant's State matter to be argued (Le.. plaintiff's rot or new , denurrer to cc.nplaint. ftc.): , .be-"'Z!r........l>..~7"S /kU"~/N"'~$1 tr&I.!'C7l0-vS >'l!J ~~;(I'N)- 2. Identify counsel who will argue case: L? (a) for plaintiff: L::>Nv,'d' N. ~/~ e$~, Address: /7 n-. ~r.v s,.. ' C.o.Qc. ,t;~ ~ 4 174"13 (b) for defendant: ~ ,/ ~ AI.."I:. II1I/1J;'" e..'P' Address: ~V,,~ ~. ,~ J /2.3, &a~ &w)? s 1""-. ~n.:.. 'lUGif)/'I,'1Q./. /~ /910'9 . . . t' witnin boo days that this case has 3. I will notify all parties J.1l wn. J.1lg been listed for arguTEnt. 4. Argune.nt Court Date: Dtted: 7/es-/7G!:? ~L/ C. (i . Attorney for /-t~,,,.,;,,,,.;.S i i -. ....) i ';'.: It , ~ - (-" - .-:! (I;: :.,~ /I. .. . ':.::.J ell: , , rn il] '-'~ ! w.i:- "'I , -. G:!: :ill ~ ,I'"..!... 1.1. <') J U (,;, U STEVE P. HEIPEL. d/b/a D & S REFINISHING SERVICE Plaint! ff #3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA V. SCHNEIDER NATIONAL CARRIER. INC., and CHARLES VINCENT FURMAN Defendants CIVIL ACTION - LAW NO, 96-3237 CIVIL TERM PRETRIALCDNfERENCE At a pretrial conference held April 29, 1998. before Edgar B. Bayley. Judge. present for the plaintiff was George F. Douglas. III. Esquire. and William P. Douglas. Esquire, and for the defendants. Dole A. Betty, Esquire. This is on automobile accident case in which liability. in the words of defense counsel. is "a minor issue". Plaintiff claims he suffered injuries to his right shoulder. elbow and right side, He is an Ohio resident and seeks medical expenses of approximatelY $5.000,00. lost wages of approximatelY $45.000.00. loss of earning copacity and other ~eneral damages. Defendant contests causation and maintains that plaintiff has not adequatelY mitigated any damages he sustained as a result of the accident. tim. of 0f(;;lf Edgar-~BoYle . J~ George F, Douglas. III. Esquire William p, Douglas. Esquire For Plainti ff to two days. Estimated Dole A. Betty. Esquire For Defendants :prs ~ - t '" i'" I.~ ~:j...1': IS ::'l~; 'tJ.,. - .);:( li-lo n: '-- '-J :::~I '--~- ~5' . - ::' ~/3 '-'1',,; I 1.I.r ",.:';~ ttU.1 ~ .!JU-l .. L::~c.. r- :.c ,- LJ... cr.I !5 u CI' u . . '..I . . YOU Altl MUu,n R(OUJlU:D TO rill " ."unrN Ilr'''ONIt TO rH~ r"ClO'ltI) WlfHIN 'WU'!"'I' 1t01 PAYS rllO.. !IUVlcr MIIlIO' o. ... JUDCONtHT ..".,. Il( (NUIlID AOAIN" YOU, ." _._~-~. ----- ATTO""n DOUGl.AS. DI.)UGI.A~ & DOUGLA:,j i'-'l rurll,p':l A,l I"',." "w. IIlOU "'<Ill' " l') 110. Ie, ~ C...RLI51..r::. Pf:NNS....LVMlIA 1101l'0.1., WI: DO HOln CtAIl,., THAT THr WITHIN" A TRUI "HD CQ",nCTCO,", 0' TIU: all'GIHAL "LED IN THIS JUN 11 1998ot::"oH. " nORNEr ---.--- , . -, ..-.' ..". YOU AU HUU, .eOUllln '0 JlLE A ..'fTIN IU"'"II: TO 'HI .MCLOllD "'THINT,nN""" DAYS '10" InVlel Hilla' 01 , .,IUDO"eN' MAy ar IN'lIn AeA'"'' YOU, JY _~___. AnOIlNr, DOUGLAS. DOUGLAS & DOUGLAS 3> ~, "T:~OANEYS "r LAW lJ W "UGH ."ntr /" ~ ,,0. .OX ."'. />>/ CARl.ISLE, PENNSYLVANIA ~PR 1101)'0".' 2 2 1998 WI DO HUn, .C"TI'~HAT THI WITHIN I' A nUl AND call neT co.., 0' THI ORIGINAL 'IUD IN THI. ACTION, I. 1\ ATToINn } " ~ ~ GEORGE F. DOUGLAS, III., ESQUIRE ATTY. 1.0. # 61886 DOUGLAS, DOUGLAS & DOUGLAS 27 W. HIGH ST. POB261 CARLISLE PA 17013 TELEPHONE 717.243.1790 A TIORNEY FOR PLAINTIFF STEVE p, HEIPEL, d/b/a D & S REFINISHING SERVICE V. SCHNEIDER NATIONAL CARRIER, INC., and CHARLES VINCENT FURMAN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CIVIL ACTION. LAW NO. 1996.3237 CIVIL TERM JURY TRIAL DEMANDED PRE-TRIAL MEMORANDUM 1. A-mtement of the basic facts as to liability. On June 19, 1994, the plaintiff, Steve P. Heipel, was operating a ]986 Ford van in a northern direction on Route 11 in Middlesex Township, Cumberland County, Pa. The defendant, Charles Vincent Furman, was an employee of the co-defendant, Schneider National Carriers, Inc., at the time of the accident. While in the scope of his employment, he was operating a tractor-trailer owned by Schneider, in a southern direction on Route 11 when he made a left turn into the path of the plaintiff. The plaintiff collided with the vehicle of the defendant, causing property damage to the plaintiff's van and personal injuries to the plaintiff. 2. A statement of the basic facts of damage. The plaintiff sustained a total loss of his said Ford van of $4,604.00, a deductible of $500.00, less a net salvage value of $649.00, for a net loss of $4,455.00. In addition, the plaintiff has suffered injuries to his right shoulder, right elbow, low back strain, and contusion of the right knee. ... . . 3. Principal issues. Liability of the parties. The proper amount of the damages. 4. Legill issues. The proper amount of the damages. 5. Witnesses. Steve P. Heipel John Toomey Dr. J. Joseph Danyo 6. Exhibits. Videotape deposition of Dr. J. Joseph Danyo 7. Settlement. The plaintiff has made a demand of $350,000.00. There has been no offer from the defendants. Respectfully submitted, DOUGLAS, DOUGLAS & DOUGLAS William P. Douglas, Esquir ~ {':~~;; GeJrge F. Douglas, III, Esq Ire Attorneys for Plaintiff Dated: April 22, 1998 t , '. . . , . ~\ . STEVE P. HEIPEL, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION. LAW SCHNEIDER NATIONAL: CARRIERS, INC,. and CHARLES VINCENT FURMAN. Defendants NO. 96.3237 CIVIL TERM VERDICT Oueslion I: Do you find Ihat Defendants were negligent'! YesL No If you answer Question 1 "No." Plaintiff can nol recover and you should not answer any further questions and should return to the courtroom. Queslion 2: Was Defendants' negligence a substantial factor in bringing aboul the hann 10 Plaintiff? Yes~ No If you answer Question 2 "No," Plaintiff can not recover and you should nol answer any further queslions and should return 10 the courtroom. . " ~ I !, "'1. Ouestion 3: Was Plaintiff Steve P. Heipel contribulorily negligent? Yes~ No If you answer Question 3 "No," proceed to Question 6. If you answer Question 3 "Yes." proceed to question 4. Oueslion 4: Was Plaintiff Steve P. Hc:ipel's contributory negligence a substantial faclor in bringing about his harm? YesL No If you answer Question 4 "No," proceed to Question 6. If you answer Question 4 "Yes." proceed to Queslion 5. Ouestion 5: If you have answered "Yes"lo Questions 1,2,3 and 4, then answer the following: Taking the combined negligence thai was a substantial faclor in brining about the harm 10 Plaintiff Steve P. Heipel as 100 percent, what percentage of thai causal negligence was attributable to the LJefendl1/1ls and what pcrccntage was attributaNe 10 Plaintiff Steve P. Heipel? PERCENTAGE OF CAUSAL NEGLIGENCE 10 AITRIDUTABLE TO DEFENDANTS: % PERCENTAGE OF CAUSAL NEGLIGENCE A'rJ'RIBUTABLE TO PLAINTIFF STEVE P. IIElPEL: ~% 100% TOTAL . , , . . If you have found PlainlifTSteve P. Heipel '5 percentage of negligence 10 be greater than 50%, PlainlifT can nol recover and you should return to the courtroom. Quegtion 6: Stale the lolal wnounl ofdamagcs, ifany, you find Plaintill'sustained as a result of Defendants' negligence. TOTAL $ ?-~"?e Date ~'(k.-.JJ~__. Foreperson 0' I , I lo!")\\ \ , , -~\ I j_j( \ - (C. -'( \ 6\ "\ \ C- '.1.)<': \, (\ I( , , , ~ -1 " I \ '; j x V \u.w \ \ 0 '~.... \... \,)- .... ~ ( -..J '-' .\ \,,\ ~\.)- () 'I, ~ ,--J \ t' >r o , ''-)'''0\ \~e'f'-<"'e... \'er'6 \ r.J I ( ,)1, I -\ (:(j Q/(u (~ Ooo_.t , ~ (J i'!l.) (r' t -.""-----~,....-_<+..-'- ""'--...---'.. ~._~-<",.., -- . '~ ' (\ ~' r,..' 4 : :.~'r ,\ ; .. 'I ... ' '.,' ., I"~ " . '-'. .....J.' . , ,. . ,..' . " " '......\ ' ...~.. ~ \'J i', ,. ,.~~t.~' ~ \, .. ~,.''J 1 . '. .\;' ," , !<<" ""I .. 'I' I I , J),~ I, , , 'j'" . " . ;b. ~'. "'r" ;a., . I .. ,'~ ' , J It. ., . '".- . ..... '.', ~ J- ,..".- ... - ^,.----.-' I "'.... I . .. ,;, B~ f <II., ! '. .., , ~ t I..' 'I" ;' r J" ! I , ." I . I r Ii I , 1') i' t " " r ': ( " ~ i\ f I !' I IMTB: "1. (. - 9 f <Xl1RI'IIDf . I tll. Ij'(... l':lJ1CML "1<....... CASE N>. 'I ,~.Jt 1.' 2.' I . 'of IiJO S:l:ev~n <;--:J ,<..<, \ 5.' ern ~f-k, I 6L~~ ' 0 I ~::-:ttq l%~~~ S~~'~~ 03 8...3 L6(s fxJj} ;0B _ ,. ~. 31.0 ~ra .s('fYl(~orrs-'D:4 10.' -3 SrI) \/en f<Dhe., ...___ r-ll.' ~'X:J --rlJmrH.t~ ('J:Ck 1) 2- U.'.~ ;r00n'R;~ . 13.' '5L{- fv1 ir0l.11l !!6..ude, 14.' % ?tiwo...rd lJ~ 15..1~O 1)fl&:e.1 6ov'ClII~. , 16.' Co -Lifle CfJea 1.. , \ .. , . 20.' .I ~ ',I ! . '. ,i I ":i_ .l' I ,,/ . " , I i ~. . '. , . \t [.~ ...",., I ,,' . '. Ii i ~' ~! I J. \ ;,.\ ~~ll' Lj ! , I I, I' l'.' , "4~ "" 2 . -- 23.' 'I ,'c \ '-~-, , , . l , " , " ~ I \ ,. r , 1 I ' i' ," ., , , , .' 'Ii'":'. '.~ c' I' .. 24.. 25.' 26.. , . :I:, , , ,I, , I ' 21.' {) . 1Ul "-:441',... ( e.lCl._,".... ' ~ \ The defendant claimed that when he turned there were no vehicles approaching on the road between he and the interstate 81 overpass. (t.n. 63 In. 2) The defendant testified that the overpass bridge was a quarter of a mile away. (t.n. 51 In 10) The defendant also testified that he traveled two to four seconds, from the stopped position, before he was struck. <t.n. 55 In. 8) This would mean that Steve Heipel would have to be traveling between the speeds of 225 mph and 450 mph at the time of the impact. "Our cases hold that "(w)here a verdict is so greatly against the weight of the evidence as to be a shock to the judicial conscience, a court has not only the right but the duty to disagree with the jury ..:ld to overturn Its verdict no matter how many trials need be had In the interest of justice. . .." Denman v. Rhodes. 206 Pa.Super. 457, 460, 214 A.2d 274,275 (1965). See also Mlcozzl v. Klysh. 207 Pa.Super. 77, 215 A.2d 263 (1965). "(I)n passing upon the question whether a verdict Is against the weight of the evidence, the court is not required to consider the evidence In the light most favorable to the verdict winner. . .. It Is of course true "that the assaying of the credibility of witnesses and the resolving of conCllcts In their testimony are for the jury. But It Is equally true that the trial judge may not hide behind the jury's verdict; he has a duty to grant a new trial when he is convinced that the judicial process has resulted In the working of an injustice upon any of the parties, . . ," Denman v. Rhodes. 206 Pa.Super. Supra at 459, 214 A.2d at 275 (1965) (citations omitted). See also Pritts v. Wigle. 414 Pa. 309,311,200 A.2d 386, 387 (1964)." Lind v. Thomas. 265 Pa.Super. 121. 401 A.2d 830 (1979). The grant of a new trial Is appropriate where a jury verdict may have been based on improperly admitted evidence. Whyte v Robinson, 421 Pa Super 33, 617 A2d 380 (1992). Also, a judge may grant a new trial If he finds that Improperly admitted evidence may have prejudiced the jury. Boscia v Massaro. 365 Super Ct 271, 529 A2d 504 (1988), app denied 517 Pa 620, 538 A2d 874. It is obvious that the credlblllly of a party transcends both the Issue of damages and liability. The court permitted Dr. Baal, testifying on behalf of the defendant, to make the claim that for Steve Heipel to have calluses on his hands he must be doing some heavy work such as digging ditches for at least 6 to 8 weeks (t.n. 12 In. 12-25). This conclusion was not supported by the facts and was nothing more than an attack on the credibility of Steve Heipel by the physician which Is Impermissible. The Court permitted Dr. Baal to testify that Steve Helpel could have gotten medical assistance from the state to pay for his surgery (t.n. 6 In. 20-25). This Is again an attack on the credibility of Steve Heipel by the defense physician and Is not based upon fact. In essence, the aforesaid testimony forced the jury to decide the Issue of credibility on irrelevant and factually unsupported testimony. In conclusion, It Is the position of the plaintiff that Steve Helpel should be granted a new trial due to the admission of Irrelevant evidence which severely damaged the credlblllty of the plaintiff and due to the physical Impossibility of the contributory negligence of the plaintiff being a substantial factor In causing the accident. August 20, 1998 R.esp.ectfully itted'l \,uLQ. Lv- WlI1lam P. Douglas, Esq Attorney for the plalntif ... . I N D E X TOW I T N E SSE S FOR THE PLAIN~IFF John Toomey DIRECT CROSS REDIRECT FECROSS 37 40 Charles Furman (as on cross) By Mr. Douglas By Mr. Betty EXAMINATION 42 47 RE-EXAMINATION 56, 62 57, 63 steve Heipel 64 CROSS 88 REDIRECT RECROSS DIRECT 102 -- J. Joseph Danyo, M.D. (t.estimony by video shown on page 105) FOR THE DEFENDANTS Charles Furman DIRECT CROSS REDIRECT RECROSS 112 J. Joeeph Danyo, M.D. (testimony by video shown on page 122) . . 1 July 6, 1998 2 Courtroom No. 1 3 11:30 a.m. 4 (Whereupon, 5 Plaintiff's Exhibits Nos. 1 through 7 6 were marked for identification.) 7 THE COURT: This is the time and place for a 8 jury trial in the case of steve P. HeiDel. doina business 9 and tradina as D'S Refinishina Service v. Schneider 10 National carriers. Inc.. and Charles vincent Furman. We 11 will let the record indicate that the Plaintiff is 12 represented by William P. Douglas, Esquire, and George F. 13 Douglas, III, Esquire, and Defendants are represented by 14 Dale A. Betty, Esquire. 15 There are a numbsr of miscellaneous matters 16 that have to be disposed of prior to ths commencement of the 17 balance of the trial. O~e of these is a motion in limine 18 filed by Defendants. It is titled Defendants Schneider 19 National carriers, Inc., and Charles Vincent Furman's Motion 20 in Limine To Preclude Evidence at Trial Pertaining to the 21 Gross Earnings or Loss of Gross Earnings of Plaintiff's 22 Employer. The Court understands that this matter has been 23 resolved, is that correct? 24 25 MR. WILLIAM DOUGLAS: Yes, Your Honor. THE COURT: And how has it been resolved? 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2S ~ ~ MR. WILLIAM DOUGLAS: Your Honor, we will only be presenting wage loss figures for Mr. Heipel as far as wages he received as an employee of 0 , S. THE COURT: And do counsel wish me, therefore, to grant the motion? MR. WILLIAM DOUGLAS: Yes, I have no objection to the motion. MR. BETTY: Yes. THE COURT: We'll enter this order. (Whereupon, the following Order of Court was entered.) ORDER OF COURT AND NOW, this 6th day of July, 1998, pursuant to an agreement of counsel, the motion, which is titled Defendants Schneider National Carriers, Inc., and Charles vincent Furman's Motion in Limine To Preclude Evidence at Trial Pertaining to ehe Gross Earnings or Loss of Gross Earnings of Plaintiff's Employer is granted. By the Court, /s/ J. Weslev Oler. Jr. J. THE COURT: Other matters which remain to be ruled upon, the Court understands, are certain objections contained in a deposition of a Dr. Boal, B-o-a-l. MR. WILLI~I DOUGLAS: Yes, Dr. Richard J. 5 1 2 3 4 5 6 7 8 9 10 11 12 ~ 13 >> 14 15 16 17 18 19 20 21 22 23 24 25 ~ . Boal. THE COURT: Dr. Richard J. Boal, which is to be shown to the jury by way of videotape. Do counsel wish to qo over those objections one at a time, and I will rule upon them? MR. WILLIAM DOUGLAS: Yes, Your Honor. with respect to the first objection, it's on paqe 22, line 8 of the deposition, and the question was asked by Mr. Betty, How do patients normally pay for your services, to which an objection was made. And the answer, Most people have medical insurance and the insurance company pays for the services. Our objection to the question, that how most patients pay for services isn't relevant to the matter at hand. And then the next question follows it up, And if they don't? And then there was an objection. And then the answer starts on line 15 of paqe 22, which states, Certainly people can and if they have no insurance at all, we still take care of them, and we expect them to pay on a monthly basis or as they can. Most states have medical assistance. If people don't have incomes, they can qet medical assistance from the state which is a state insurance company. And reimbursement to us is much lower than it would be from a reqular insurance company, but we certainly still take care of people with medical assistance. 6 ~ - 1 What Dr. Boal's office does and what his 2 opinions are and what might have been available to Mr. 3 Heipel in Ohio or his speculation of what would have been 4 available to Mr. Heipel in Ohio isn't relevant to the matter 5 at hand. 6 THE COURT: All right. Mr. Betty, do you 7 have a response to that? 8 MR. BETTY: Yes, Your Honor. It is within 9 the scope of his report of November 11, 1997. It's relevant 10 to the defense of mitigation of damages. Mr. Heipel has 11 taken the position in this case that he cannot work. He 12 cannot work because he has not been able to have the 13 treatment which has been recommended by one of his 14 physicians, Dr. Danyo, and is one of the possible solutions 15 to his problem, which was testified to by Dr. Boal. 16 And the reason that Mr. Heipel states he has 17 not had any medical treatment in the last several years, has 18 not undergone this recommended procedure, is because he 19 doesn't have any money. He doesn't have any health 20 insurance or medical insurance. And as a result, he just 21 has declined to undergo that particular treatment. And it 22 goes to the issue of mitigation of his problems since his 23 own physician indicated that if he has this procedure, it in 24 all probability will result in him making a full recovery, 25 and he'll be back doing his heavy-duty work of aluminum 7 ~ - 1 siding cleaning and power painting within three months atter 2 undergoing rehabilitation. 3 THE COURT: Mr. Douglas, is your client going 4 to testity that those are the reasons that he has not had 5 turther medical treatment? 6 MR. WILLIAM DOUGLAS: Your Honor, it's not a 7 matter ot refusal. What happened is, he used up his 8 $5000.00 worth of Ohio benefits, and he did not have the 9 means to pay the, what Dr. Danyo has estimated, $6250.00 to 10 have the surgery on his shouldar. It's not a matter of 11 refusing treatment, it's being unable to obtain it. 12 THE COURT: All right. To put it another 13 way, is he going to testify to that effect? 14 MR. WILLIAM DOUGLAS: Yes. 15 THE COURT: All right. That objection 16 well, let me ask this. Whose expert is Dr. Boal? 17 MR. WILLIAM DOUGLAS: The defense expert. 18 THE COURT: All right. The objection as to 19 that testimony is overruled. I was under the impression 20 there was an objection earlier in the testimony which had 21 been mooted, but we need to put on the record what that is 22 as well. 23 MR. WILLIAM DOUGLAS: There was an objection 24 on page 16, which became moot because the doctor was asked a 25 question with respect to x-rays, And were they essentially a 8 ~ ~ 1 normal right shoulder, which an objection made, leading. 2 And the question was then asked, What is the conclusion of 3 reading tha films, Doctor? And then we believe that the 4 respon&e would be proper. 5 THE COURT: All right. Are both counsel 6 satisfied that the Court does not need to rule upon that 7 objection? 8 MR. BETTY: Yes. 9 THE COURT: Mr. Douglas, are you also? 10 MR. WILLIAM DOUGLAS: Yes, Your Honor. 11 THE COURT: All right. And what was the 12 third objection that the Court does need to rule upon? 13 MR. WILLIAM DOUGLAS: There was an objection 14 on page 24. On line 15, the objection was made. The 15 question starts on line 11, question being, Doctor, if you 16 performed the procedure which you indicated, if it became 17 necessary, what would be the probability, it you can give 18 such probability, of there being no tear? I made the 19 objection, calls for speculation. 20 And the doctor went on to answer, I have to 21 agree with the objection. I think that it is speCUlation. 22 I think it's either there or it's not. To give you a number 23 would be difficult, From for my clinical impression, I 24 think, if anything, he has impingement and not glenoid 25 labrale tear. So I think thut it would probably be less 9 .-- .-- 1 than 50 percent, but I can't give you a hard number on that. 2 THE COURT: All right. I was under the 3 impression, trom our discussion in chambers with counsel, 4 that there was no need to rule upon that objection. S MR. WILLIAM DOUGLAS: Yes, Your Honor. with 6 respect to that objection, we don't need a ruling on that. 7 THE COURT: All right. Mr. Betty, are you in 8 agreement with that? 9 MR. BETTY: Yes, except tor, I need to know 10 how much is going to be deleted on the videotape. Based 11 upon our discussion and the statement made by Mr. Douglas, I 12 believe the deletion would be on page 24, line 11 through 13 line 25, page 25 through line 14. 14 MR. WILLIAM DOUGLAS: I'm not asking it be IS deleted. I'm withdrawing the objection. 16 MR. BETTY: Oh. 17 MR. WILLIAM DOUGLAS: Yeah, I'm asking to 18 withdraw the objection. They can just 19 THE COURT: That was my understanding. 20 MR. BETTY: All right. So you withdrew the 21 objection? 22 MR. WITJLIAM DOUGLAS: Yeah. 23 MR. BETTY: okay. 24 THE COURT: All right. And I believe there 25 was one objection remaining that the Court does have to rule 10 ~ -- 1 upon? 2 HR. WILLIAM DOUGLAS: Yes. On page 11, line 3 4, the question -- actually the question, line 2, Doctor, 4 what is the significance of hard calluses on his hands? 5 Answer, To me, calluses are very significant. If the jury 6 would look at their own hands, if you do very heavy work, 7 YOU'll have calluses. If you don't -- then the objection 8 was made. I'm going to object to -- and at that point the 9 videotape was turned off. 10 Then at line 9, page 11, I'm going to object 11 to any conclusion that the doctor is going to try to draw 12 with respect to his skin condition. The reason for the 13 calluses could be numerous, and it's going to be nothing 14 more than conjecture. And in addition, any testimony you 15 want to bring, I will move to strike. I'll put the 16 objection on the record now as far as striking so we don't 17 have to go back off the record due to the fact that the 18 videotape was being made. 19 THE COURT: I don't recall any discussion of 20 this item in chambers before trial. The only discussion I 21 remember about another objection had to do with whether an 22 opinion as to the Plaintiff's ability to -- the Plaintiff's 23 ability to work was properly elicited from Dr. Boal in light 24 of the contents of his report. 25 MR. BETTY: That's correct, Your Honor. On 11 ~ ~ 1 page 24 -- 2 THE COURT: I'm completely unfamiliar with 3 this latest issue. 4 MR. WILLIAM DOUGLAS: Doctor -- or Your 5 Honor, I had failed to raise, as I had overlooked it when we 6 were sitting in chambers. It goes on this same work issue. 7 The answer was, As I was saying before we went off the 8 record, calluses don't just appear on your hands. The only 9 way a callus can form is if someone uses their hand with a 10 repetitive basis doing some type of work or activity. I do 11 surgery every day. 12 I have no calluses on my hands. If I were 13 digging ditches and holding a shovel, I would most likely 14 over a period of six or eight weeks develop calluses. If I 15 stop doing heavy work, it takes about six weeks to three 16 months for calluses to go away. Calluses will not remain 17 unless the hands are being used in a heavy manner. And so I 18 did notice calluses on this gentleman'S hands. 19 Examination -- the balance of this statement is fine. But 20 what happens, we moved to strike that. 21 The doctor is going on a litany of 22 dermatology, and he was offered as an orthopedic surgeon. 23 And in addition, he's making these statements, drawing the 24 conclusions that this gentleman is digging ditches, and 25 that's the reason for the skin condition on his hands. I 12 ,.,. ~ 1 think that would be highly prejudicial based on nothing but 2 speculation. 3 THE COURT: What is the injury that the 4 plaintiff allegedly suffered? 5 MR. WILLIAM DOUGLAS: Shoulder injury, injury 6 to the elbow, the two most significant. 7 THE COURT: Mr. Betty. 8 MR. BETTY: Mr. Heipel has informed his 9 treating physician and Dr. Boal that the type of work he 10 does is considered heavy work, and he was injured and cannot 11 do that kind of work. He wasn't doing that kind of work at 12 the time of this particular examination. And it is 13 significant to Dr. Boal, as an orthopedic surgeon, in his 14 evaluation, as he indicated in the videotapo, and it's in 15 his report, this gentleman has calluses on his hands which, 16 to him, indicates that he has been doing hard work 17 notwithstanding his statement that he hasn't been doing any 18 hard work. 19 And that will be a jury question with respect 20 to the doctor's finding because he specifically states that 21 it was of significance to him in his evaluation was this 22 fact. And it goes right to the issue to their lost wage 23 claim, to his ability to do work, and to his veracity and 24 credibility with respect to what he told the physician, 25 because the physician indicated in the beginning of his 13 ~ ,.. 1 videotape that a history taken trom the patient, who he's 2 never treated, is important to him, and he takes that 3 history down, and it's in his report, and he's testitied to 4 that type ot work. 5 And he tound that this physical condition is, 6 in tact, that is contrary to what he would expect based upon 7 the history. That goes to the jury as to whether or not 8 that's true. 9 THE COURT: That objection is overruled. Is 10 there a final objection that requires a court ruling? 11 HR. WILLIAM DOUGLAS: Your Honor, there was 12 an objection made with respect to the report. We were 13 provided with a three-page report signed by Dr. Boa1. And 14 in addition, we were provided with a one-page supplemental 15 report. The original dated November 11, 1997, and 16 supplement dated April 14th, 1998. What I suggest is, we 17 staple these together and make them one exhibit. 18 (Whereupon, 19 Plaintiff's Exhibit No. 8 20 was marked for identification.) 21 THE COURT: How has that item been marked? 22 HR. WILLIAM DOUGLAS: Your Honor, the item 23 which is the two reports combined, has been marked as 24 Plaintiff's Exhibit 8. 25 THE COURT: All right. 14 ~ ~ 1 MR. WILLIAM DOUGLAS: Your Honor, on page 24, 2 line 3, the question wa6 asked, or excuse me, actually the 3 question begins on page 23, line 25. 4 THE COURT: You're speaking of Dr. Boal' s 5 deposition? 6 MR. WILLIAM DOUGLAS: Dr. Boal's deposition. 7 THE COURT: All right. 8 MR. WILLIAM DOUGLAS: The question was posed 9 by Mr. Betty, At the time of your examination, do you have 10 an opinion with respect to whether he would have been 11 capable of doing some type of employment? Objection. We 12 are going way beyond the scope of the report. The answer 13 was offered. Certainly from a physical standpoint after 14 interviewing him and examining him, this gentleman is 15 certainly capable of sedentary work, many times of light 16 duty work, and even some occasional moderate work. Your 17 Honor, the report itself does not address the employment or 18 the employability of Mr. Heipel while he has been off since 19 he has been injured. We believe that that would go beyond 20 the scope of the report. 21 THE COURT: All riaht. Mr. Betty. 22 MR. BETTY: Your Honor, I think it goes -- 23 it's well within the fair view of the report. Plaintiff io 24 aware of it. He was not confronted with any surprise, and 25 the comments, Dr. Boal in his report, on page three, his 15 ~ -. 1 report of November 11, 1997, the next to the last paraqraph 2 states, I think it would be prudent to try to qet to the 3 bottom of this qentleman's complaints with respect to his 4 riqht shoulder, correct them, if possible, and then have him 5 qet back to work in a timely fashion. 6 I think that his testimony is consistent with 7 respect to his statement of his work capabilities. The man 8 indicates that he only -- he's been doinq this heavy work 9 for over 20 years, tells Dr. Boal that. Dr. Boal examines 10 him, says, I think we should qet to the bottom of his 11 problems so he can qet back to doing that work, but in the 12 interim, and he didn't put that in his report, but he says, 13 escapable of a, b, and c. And I don't think __ 14 THE COURT: I'm sorry. Escapable of a, b, 15 and c? 16 MR. BETTY: Which is sedentary work, his 17 exact words were, sedentary work, many times of light duty 18 work and even some occasional moderate work. 19 THE COURT: That's not in his report, that's 20 in his deposition. 21 MR. BETTY: That's right. I said, that is 22 consistent with his report. It's not totally beyond the 23 scope of his report because he addressed his work 24 relationship in his report, and it's within the fair view of 25 his report. The Plaintiff was aware of it, that he 16 ~ ~ 1 addressed his work capabilities, and was not put in any 2 surprise at the time of the videotape, and could counter it 3 any way possible. 4 THE COURT: When was Dr. Boal's deposition 5 taken? 6 MR. BETTY: May 15, 1998. 7 THE COURT: And when were these reports 8 supplied to Plaintiff's counsel? 9 MR. BETTY: The report I'm referring to is 10 November 11, 1997. 11 THE COURT: And all the report says is that, 12 he should be treated so that he can get back to work? 13 That's all it says about work? 14 MR. BETTY: With respect to the treatment, 15 yes. 16 THE COURT: It doesn't say -- 17 MR. BETTY: It says here in the next -- he 18 refers to it in other places in the report. On the second 19 paragraph on page three, On the other hand, he continues to 20 complain of pain and does state that if his right shoulder 21 were well, he could go back to doing his former job. Then 22 right before before that, he talks about how he doesn't have 23 any atrophy in his shoulder, and he has his calluses on his 24 right hand. I believe he is using his right upper extremity 25 for work activities. 17 ~ -- 1 THE COURT: Can you say that again? 2 MR. BETTY: with respect to his right 3 shoulder, Mr. Heipel may well have injured his right 4 shoulder at the time of the accident, and he may have 80me S continuing problems with his shoulder. Against any 6 continuing problems is the fact that he doesn't have any 7 clearcut muscle atrophy. He does have calluses on his right 8 hand, and I believe he is using his right upper extremity 9 for work activities. On the other hand, he continues to 10 complain of pain and does state that if his right shoulder 11 were well, he could go back to doing his former job. 12 THE COURT: All right. I will overrule the 13 Objection. Now I think there is also an issue as to 14 possible testimony of Charles vincent Furman, who is one of 15 the Defendants. Mr. Furman, I believe, is present in court 16 at this time. What is that issue? 17 MR. WILLIAM DOUGLAS: 'lour Honor, with 18 respect to that, Mr. Furman was noticed for deposition back 19 in May, and he was not produced for deposition, and we would 20 object to him Offering any testimony on the issue of 21 liability due to the fact that we haven't had an opportunity 22 to depose him. 23 THE COURT: Mr. Betty. 24 MR. BETTY: The Plaintiffs -- the Plaintiff 25 is the party who certified the case for trial, said it was 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ ready for trial. THE COURT: When was it listed? MR. WILLIAM DOUGLAS: It was on the May list, and then it was knocked off, and then it moved to the July list. MR. BETTY: It was before May of '98, and THE COURT: Now wait. It was on the May list. Who listed it and why did it get removed from the trial list? MR. BETTY: The Plaintiff list-::d it. THE COURT: All right. MR. WILLIAM DOUGLAS: Your Honor, we couldn't get to it on the May list. What happened, I was involved in a malpractice case in front of Judge Bayley, and when that concluded, the jury panel had already been discharged so this case wasn't started. However, the deposition was noticed before that trial was commenced, before the week of trials in May. MR. BETTY: THE COURT: And -- Well, let's find out when it was listed. THE COURT: I have one praecipe listing this case for trial filed January 27, 1998, by George F. Douglas, III, on behalf of the Plaintiff. And I have a second praecipe listing the case for trial signed by George F. 19 ~ ~ 1 Douglas, III, which was tiled January 13, 1998. 2 MR. WILLIAM DOUGLAS: Maybe we made a mistake 3 on one. We tiled back to back. I think we might have 4 omitted something on the tirst. 5 THE COURT: The praecipe tiled January 13, 6 1998, indioated that the trial term would be oommenoing 7 Maroh 16, 1998, and the second praecipe tiled January 27, 8 1998, indicates that the trial term would be commencing on 9 May 18, 1998. There Wbe an order signed by Judge Hotter 10 dated February 17, 1998, continuing the oase pursuant to an 11 agreement of counsel trom the March 16, 1998, trial term, 12 and directing counsel to relist the case when ready. 13 There's also an order dated May 19, 1998, 14 signed by Judge Bayley, continuing the case to the present 15 July term of court, and indicating that counsel would not be 16 required to attend the call of the civil list on Tuesday, 17 June 9, 1998, and that no pretrial conference would be held 18 unless requested by a party. 19 It would appear that as of January 13, 1998, 20 Plaintiff was indicating that the discovery had been 21 complete in the case. Was this deposition that was sought 22 of Mr. Furman a discovery deposition or was it a deposition 23 for use at trial? 24 MR. WILLIAM DOUGLAS: Discovery deposition, 25 Your Honor. 20 ~ ~ 1 THE COURT: Mr. Douglas, did you have a 2 further response to what Mr. Betty has said? 3 MR. WILLIAM DOUGLAS: Your Honor, with 4 respect to the listing matters for trial, I don't believe 5 the current local rules preclude one from engaging in 6 discovery after filing a praecipe listing it for trial. We 7 merely asked that he make his client available for a 8 deposition as a party in the case. We offered to take it on 9 the telephone, if that would be a possibility, and Mr. Betty 10 told us he wasn't going to produce him. 11 THE COURT: Mr. Betty told you what? 12 MR. WILLIAM DOUGLAS: He wasn't going to 13 prcduce him for a deposition. 14 MR. BETTY: Your Honor, if I may respond to 15 that. The pretrial conference was held April 29, from my 16 recollection. And a pretrial memorandum was filed, and we 17 went to the pretrial conference. And I listed my witnesses, 18 and one of which was the Defendant, Mr. Furman. At that 19 conference, or after -- immediately after that conference, I 20 think it was George Douglas, requested that I take his 21 deposition, and he then sent me a notice. 22 And I noticed I got my fax on May 7. I 23 responded to him on that same date, and I quote, I am in 24 receipt of your notice of deposition to take the oral 25 examination of Charles Vincent Furman on Thursday, May 14, 21 ~ ~ 1 1998. I will not be able to produce Mr. Furman at this late 2 date in view of the fact that the pretrial conference has 3 already been held, and the judge was informed that the case 4 was ready for trial. In addition, as you know, Mr. Furman 5 is no longer employed by Schneider National Carriers, Inc., 6 and is residing in Texas. And pursuant to your request, I 7 am enclosing another copy of his statement. So I did not 8 produce him, that is correct. 9 THE COURT: Is Mr. Furman going to testify to 10 anything different than what is in his statement? 11 MR. BETTY: In context, no. 12 THE COURT: I'm not sure what that means, in 13 context. 14 MR. BETTY: That means that, in his 15 statement, there's a reference to miles per hour, but he is 16 not going to give an opinion at the time of trial with 17 respect to the speed of Mr. Heipel's vehicle. And the 18 statement that -- that was produced, Mr. Furman's statement 19 was an inner-company statement to his er.ployer, and it was 20 an after-the-fact type of conclusion. 21 Based upon the severity of the impact, this 22 guy must have been going x miles per hour. And he's not 23 going to testify to that, unless they ask him on cross 24 examination. I'm not going to bring it out on direct 25 because Mr. Furman is -- does not have the requisite 22 ~ ~ 1 inrormation to give an opinion with respect to the speed or 2 Hr. Heipel's car. 3 THE COURT: Mr. Douglas. 4 HR. WILLIAM DOUGLAS: It is my understanding, 5 ir I understand this representation correctly, is that Hr. 6 Furman will testify that he didn't observe Hr. Heipel's 7 vehicle prior to the collision, is that correct? 8 MR. BETTY: That's correct. 9 HR. WILLIAM DOUGLAS: And the collision 10 occurred, and it wasn't until after the collision that he 11 observed the vehicle? 12 HR. BETTY: Correct. 13 HR. WILLIAM DOUGLAS: If he is not going to 14 deviate from that, I have no objection to him testifying to 15 that. 16 THE COURT: All right. That takes care of 17 that problem. I'm not sur~ whether we have a panel ready to 18 select a jury from or not at this point. 19 HR. BETTY: 'lour Honor, since we are -- I was 20 going to wait until later in the case, but maybe it should 21 be raised now in all fairness to everyone. You can rule on 22 it. I did raise it in chambers. Plaintiff's complaint does 23 not allege economic damages specifically for any medical 24 payments, and if Plaintiff is not going to produce any of 25 the medical bills that were incurred by the Plaintiff, even 23 ~ .. 1 though they were paid for by his Ohio insurance carrier, 2 then I have no objection. 3 But if he is, I just raise the objection, to 4 be ruled upon, that it w~sn't pled. I am aware of his 5 exhaustion of $5000.00 of the first party benefits. But his 6 complaint only alleges the subrogation interest, that the 7 insurance carrier for the vehicle, and his and lists his 8 injuries, which are non-economic damages. So I'm making a 9 motion that the economic medical bills in the past should 10 not be permitted to be entered into evidence or referred to 11 by counsel through the case. 12 MR. WILLIAM DOUGLJ.S: Your Honor, with 13 respect to the medical bills, it's my understanding that 1.1 defense counsel had no objection to them. Now-- 15 MR. BETTY: Oh, no. I'm not contesting that 16 he didn't go to the doctor and those aren't the bills. 17 MR. WILLIAM DOUGLAS: And the amount is 18 admissible in the case. However, you don't want to see any 19 of the bills with the conclusions that are drawn in the 20 bills. 21 MR. BETTY: I'm saying, they're not 22 admissible bc~~use you didn't plead them. 23 MR. WILLIAM DOUGLAS: You don't have to plead 24 the medical bills. 25 MR. BETTY: The damages, I think the rules 24 ~ A 1 say, you have to plead your cause ot action, and he didn't 2 plead econoIDic damages tor purposes ot medioal. 3 MR. WILLIAM DOUGLAS, It says, in addition, 4 paragraph 11, the Plaintitt inourred medioal payment. 5 totaling $4913.68. 6 MR. BETTY: Is that the complaint or the 7 amended oomplaint? 8 MR. GEORGE DOUGLAS, III' May I pleas. 9 respond? 10 MR. BETTY: wait a minute. Is that the 11 complaint or the amended oomplaint? I'm reterring to the 12 amended complaint. 13 MR. GEORGE DOUGLAS, III: Your 1I0nor, I wrote 14 the oomplaint. I'm George Douglos, III. I wrote the (iret 15 oomplaint. I included the medical bills. Mr. Betty called 16 me and said, I want you to amend your oomplaint and take 17 those out. You shouldn't be putting tho.e in there. So I 18 amended the oomplaint at his request. And I amended them 19 and took them out, oorrect. 20 MR. BETTY' Uh-huh. 21 MR. GEORGE DOUGLAS, 1111 Now he's trying to 22 say that since he asked me to do that, that I oan't plead 23 that, is that oorreot? 24 THE COURT: Mr. Douglas, are you going to try 25 to prove the medical bills? 25 ~ . 1 MR. WILLIAM DOUGLAS: Your Honor, my 2 understanding, coming in here today, is that there was no 3 objection to the property damage or the amount of money paid 4 by Grange, and we prepared an exhibit with respect to that. 5 And the property damage in the amount after &alvage, etc., 6 comes to a net of $4455.00. And the past medical expense is 7 $4913.68. 8 Mr. Betty, my understanding, talked to George 9 earlier on, I don't believe was appreciative of the fact 10 that Mr. Heipel was from Ohio. With respect to a Ohio 11 resident, his insurance carrier has a right of subrogation 12 fr.om dollar one with respect to that amount, both the 13 property damage and the past medical expense. And this is 14 the first time that Mr. Betty said it's been an issue. My 15 understanding, we were stipulating to those two amounts, and 16 that wasn't a problem coming in here today. 17 THE COURT: Are you seeking recovery for past 18 medical expenses? 19 MR. WILLIAM DOUGLAS: Yes. 20 THE COURT: Are you saying that's somehow 21 improper? 22 MR. BETTY: I'm saying that it's not improper 23 in that they're seeking a claim for it, because they're an 24 out-of-state insure~ with an out-of-state Plaintiff. I'm 25 just making a statement that I'm objecting because of the 26 ~ ~ 1 fact that it wasn't pled in the amended complaint, 2 non-economic damages. 3 THE COURT: What does the -- 4 MR. BETTY: I mean, economic damages. 5 THE COURT: What does the amended complaint 6 ask for by way of medical expenses? 7 MR. WILLIAM DOUGLAS: Your Honor, they 8 weren't mentioned in the amended complaint. 9 MR. GEORGE DOUGLAS, IIII Becau.e it was 10 requested they be taken out by Mr. Betty. 11 THE COURT: In other words, there's no 12 request even generally for past medical expenses? 13 MR. BETTY: How it generally came up is that 14 I thought originally that the msdical expenses would be 15 barred by our Pennsylvania Motor Vehicle Code Section 1720, 16 22. And I called Goorge Douglas and spoke to him about it. 17 He filed an amended complaint, and then I read the case of, 18 I think it's Brown v. Nationwide, something like that, and 19 our Motor Vehicle Code can't exclude an out-of-state 20 insur~r's subrogation right for their first party benefits 21 and, therefore, Plaintiff produced them for purposes of 22 trial. 23 And as a result, I'm just raising this 24 particular objection for purposes of the record. We did 25 discuss it. Hs did hnvG the treatment bills. I'm not 27 ~ "" 1 contesting that they were incurred. I'm just stating that 2 they shouldn't be permitted to go before the jury. 3 THE COURT: It seems to me, there's something 4 unfair in precluding the possibility of recovery for past 5 medical expenses given that histo~y. I will entertain a 6 motion to amend the complaint to specifically request that 7 it~m of damages. 8 MR, WILLIAM DOUGLAS: Your Honor, with 9 respect-- 10 THE COURT: Is there such a motion? 11 MR. WILLIAM DOUGLAS: Yes, Your Honor. 12 THE COURT: All right. It is granted. 13 MR. WILLIAM DOUGLAS: We would request the 14 Court then to amend to include medical expenses. 15 THE COURT: All right. With that, we will 16 recess, I think, for lunch, unless there's a jury panel 17 available. I'm not sure whether the court administrator has 18 been keeping potential jurors waiting or not. plaintiff's 19 Exhibit 8 is admitted for purposes of preserving the record 20 on certain objections during the testimony of Dr. Boal. 21 (Whereupon, 22 plaintiff's Exhibit No. 8 23 was admitted into evidence.) 24 THE COURT: Is there a stipulation by counsel 25 in this case that any negligence on the part of Charles 28 ~ ,.. 1 Vincent Furman would be attributed to the Defendant 2 Schneider National? Was Mr. Furman a driver? 3 MR. BETTY: Yes, he was, Your Honor, and we 4 are aoknowledging that at the time the accident, he was 5 within the scope of his employment. 6 THE COURT: So I may, for purposes of jury 7 instructions, eventually treat the two Defendants as one 8 entity? I think it would simplify things, if that's 9 acceptable to counsel. 10 MR. BETTY: It is. 11 MR. WILLIAM DOUGLAS: Yes, Your Honor. 12 THE COURT: All right. Mr. Hursen, is a 13 panel waiting? 14 MR. HURSEN: They won't be back until 1:15. 15 We probably won't piok until two, aocording to the court 16 administrator. 17 THE COURT: All right. Then I'll ask counsel 18 and the parties to return at 1:30, if you don't mind, just 19 to be safe. Thank you. 20 (Whereupon, a recess was taken at 11:57 a.m. 21 and proceedings reconened at 2:55 p.m.) 22 (Whereupon, 23 Plaintiff's EXhibits Nos. 9 and 10 24 were marked for identification.) 25 THE COURT: We will let the record indicate 29 ~ ,... 1 that the Court has reconvened in open session. Are counsel 2 ready for a jury to be brought in from which the jury will 3 be selected? 4 MR. WILLIAM DOUGLAS: Yes, Your Honor. 5 MR. BETTY: Yes, Your Honor. 6 THE COURT: All right. Plea~e bring a panel 7 in. 8 (Whereupon, a jury was duly empaneled and 9 sworn.) 10 THE COURT: Thank you. Please be seated. We 11 will continue until about 4:30 today and then resume 12 tomorrow at 9. Would anybody like a five-minute recess 13 before we do that? All right. We'll take a five-minute 14 recess and then reconvene. Be sure you don't discuss the 15 case during recesses. 16 (Whereupon, a recsss was taken at 3:55 p.m. 17 and proceedings reconvened at 4:00 p.m.) 18 THE COURT: Are counsel ready for the jury to 19 be brought in? If so, please bring the jury in. 20 (Whereupon, the jury was brought in.) 21 THE COURT: Welcome back, ladies and 22 gentlemen. You have now been sworn as the jury to try this 23 civil case in which Steve P. Heipel, the Plaintiff, is suing 24 Schneider National Carriers, Inc., and Charles Vincent 25 Furman, the Defendants, seeking an award of ",,:ney for 30 ~ . 1 damaqes he claims resulted from the Defendants' neqliqRnce. 2 Your oath as a juror has committed each of you to be an 3 active participant in the administration of justice. 4 The trial will develop questions of fact upon 5 which the parties do not aqree. It is your duty as jurors 6 and yours alone to determine the facts from the evidence 7 presented durinq the trial. Questions of procedure and of a the law to be appli~d to the facts will also occur in the 9 course of the trial. It is my duty as the trial judqe to 10 make certain that the trial is conducted properly and 11 accordinq to rules of law. And I will instruct you after 12 all the evidence has been submitted as to the law which you 13 will apply to this case. 14 Now for the record, I will tell you some 15 qeneral thinqs about the procedure we will follow and how 16 you ara to perf~rm your duties. First, the ~laintiff's 17 attorney may make an openinq statement outlininq his case. 1a Immediately thereafter, the Defendants' attorney may also 19 make an openinq statement outlininq the defense or he may 20 postpone it. 21 The Plaintiff introduces his evidence first, 22 and when he is finished, the Defendants may present their 23 evidence. Evidence in rebuttal may also be introduced. The 24 direct examination of witnesses is conducted by the attorney 25 callinq the witness, and all witnesses may be cross-examined 31 ~ ~ 1 by opposing counsel. I may ask questions of a witness in 2 order to obtain information or bring out some facts not 3 fully dsveloped by the testimony. 4 At the end of all the evidence, the attorneys 5 may maks their closing arguments. In these arguments, the 6 attorneys give you their views of what the evidence proves 7 on the questions you have to decide. And these arguments 8 should be given due consideration, but they are not 9 evidence. only the evidence which has been admitted during 10 the trial can be considered by you in determining the facts. 11 The admission of evidence in court is governed by rules of 12 law. 13 During the trial, the attorneys may deem it 14 necessary to make objections, and it then becomes my duty to 15 rule on those objections and to decide whether certain 16 evidence can be admitted for your consideration. You must 17 not concern yourselves with the objections or my reasons for 18 my rUlings. You must not consider testimony or exhibits to 19 which I have sustained an objection or which I have ordered 20 stricken from the record. None of my rulings should be 21 regarded as an indication of my opinion as to what your ~2 findings should be. 23 You should not take any questions I may ask 24 witnesses as any indication of my opinion as to how you 25 should determine the issues of fact. Any opinion which you 32 ~ ~ 1 think I may have as to the facts would not be at all 2 important, for you and you alone are the sole finders of the 3 facts. You must consider and weigh the testimony of each 4 witness and give it such weight as, in your judgment, it is 5 fairly entitled to receive. 6 The matter of the credibility of a witness, 7 that is whether his or her testimony is believable in whole 8 or in part, is solely for your determination. I will 9 mention some of the factors which might bear on such a 10 determination: whether the witness has any interest in the 11 outcome of the case or has any friendship or animosity 12 toward other persons concerned in the case; the behavior of 13 the witness on the witness stand and his or her demeanor; 14 his or her manner of testifying and whether he or sha shows 15 any bias or prejudice which might color his or her 16 testimony; the accuracy of the witness's memory and 17 recollection; his or her ability and opportunity to acquire 18 knowledge of or to observe the matters concerning which he 19 or she testifies; the consistency or inconsistency of his or 20 her t~~timony; as well as its reasonableness or 21 unreasonableness in light of all of the evidence in the 22 case. 23 Do not discuss this case or anything 24 connected with it among yourselves until all of the evidence 25 is in and you have received the final instructions from me 33 ~ ~ 1 and have retired to the jury room for deliberations to reach 2 your verdict. Do not permit others to discuss this case 3 with you or in your presence. It such a thing should occur, 4 you should advise me promptly. In addition, do not talk to 5 counsel ~r the parties or witnesses on any subject. It you 6 were to do so, even though innocently, it could be 7 misinterpreted and could create serious problems. 8 Counsel and I are required by law to take up 9 certain matters out of your hearing. We may do this at the 10 bench or in my chambers or I might ask you to leave so that 11 we could do so in the courtroom. You should not concern 12 yourselves with any such proceeding. During the course of 13 the trial, you may find that you're having trouble hearing a 14 witness or seeing some exhibit that is being shown to you. 15 You might find that you need to use a rest 16 room or need a glass of water or you might find that I'm not 17 speaking loudly enough or that counsel are not. Whenever 18 any such thing happens, just raise your hand, and we 'will 19 take care of that problem. We will try to take a recess at 20 least once each morning and once each afternoon. I am told 21 that this case will not last more than a day, but however 22 long it lasts, that is the procedure we'll follow as to 23 recesses. 24 So far as your seating goes in the jury box, 25 it doesn't matter to me where you sit when you come in each 34 ~ ~ 1 time, except I do ask the two alternates to sit in the seats 2 that they are in now. That would be Ms. Benner and Hr. 3 Heok. The idea is to have the regular jurors nearest the 4 witness who is testifying. 5 Those are the preliminary things that I 6 wanted to tell you about the case. We will now hear the 7 opening statements of counsel. These statements are not 8 supposed to be arguments. They're simply statements as to 9 what counsel expect the evidenoe to show in the case. The 10 arguments come at the end of the trial. The Plaintiff goes 11 first. Mr. Douglas. 12 (Whereupon, Mr. William Douglas presented an 13 opening statement on behalf of the 14 Plaintitf.) 15 (Whereupon, Hr. Betty presented an opening 16 statement on behalf of the Defendants.) 17 THE COURT: Thank you, Mr. Betty. It is now 18 4:30, ladies and gentlemen. We will adjourn for the 19 evening. During this adjournment and during every 20 adjournment and recess, do not disouss this case among 21 yourselves or with anyone else. Do not attempt to 22 investigate the case. Do not read, see, or hear anything 23 about the case, and keep an open mind. We will return 24 tomorrow at 9:00 a.m., and Ms. Hench will show you what room 25 to return to. Court is adjourned. 35 ~ ^ 1 (Whereupon, the proceedings adjourned at 2 4:30 p.m.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 :7.5 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 t-\ ~ July 7, 1998 Courtroom No. 1 9:05 a.m. THE COURT: Are counsel ready for the jury to be brought in? MR. WILLIAM DOUGLAS: Yes, Your Honor. THE COURT: Mr. Betty, are you ready for the jury? MR. BETTY: THE COURT: Yes, Your Honor. All right. Please bring in the jury. (Whereupon, Defendants' Exhibits Nos. 1 through 6 were marked for identification.) (Whereupon, the jury was brought in.) THE COURT: Good morning, ladies and gentlemen. Mr. Douglas. MR. WILLIAM DOUGLAS: Your Honor, at this time we call Chief Toomey. Whereupon, JOHN TOOMEY having been duly sworn, testified as follows: DIRECT EXAMINATION BY MR. WILLIAM DOUGLAS: Q Sir, would you tell us your name, please? 37 ~ ~ 1 A John Toomey. 2 Q Could you tell me your work history prior to 3 you retiring from the police force? 4 A I have 25 years with the Silver Spring 5 Police, 22 with the US Army, most of that in criminal 6 investigation. It was state Police prior to going back to 7 the Army. 8 Q sir, as part of your job with Silver spring 9 Township, did you investigate auto aocidents? 10 A Several. Well, a lot, yes. I was the chief, 11 so I was the administrator. 12 Q Did you witness a motor vehicle accident on 13 June 19th of 1994? 14 A I did, sir. 15 Q And could you tell me where you were, where 16 you were sitting at the time the accident happened? 17 A Well, I was off duty out of my territory in 18 Middlesex Township, coming out of the Bob Evans restaurant. 19 I had the wife. I was coming up to the intersection. I 20 think it's Cook Road or cook Street and 11. And I was 21 waiting for my turn to come out. And that's when the 22 accident occurred. 23 Q What did you see happening? 24 A Well, the tractor trailer was making a left 25 into Cook, and the van was coming down or going north on 11 38 """ ~ 1 and made contact with the rear wheel of the tractor. 2 Q Sir, where on the roadway was the van when it 3 made contact with the rear wheels of the tractor? 4 A It was in the right lane of tratfic ot the 5 two lanes going north on 11. 6 Q Is that where the impact actually occurred? 7 A As far as I can recall, yes, sir. 8 Q sir, for the benefit of us, you talked about 9 a tractor, and I used the term tractor trailer. Could you 10 tell us what the two components of a tractor trailer are so 11 we can identify where these wheels are you're talking about? 12 A The pulling unit has the two front steering 13 wheels and driving wheels, usually eight, four on each side. 14 Then the trailer is hooked to the tractor, and then it has 15 its own wheels in the back. 16 Q So if I understand correotly, the van that 17 Mr. Heipel was operating hit those rear wheels of the 18 tractor, the front part of the truck? 19 A I think the contact was made with the two 20 front drive wheels of the, not steering, but the drive 21 wheels. 22 Q What did you do following the accident? 23 A I left my vehicle parked and went to oheck on 24 injuries. At the same time, I had my portable radio, and I 25 contacted Cumberland County and asked them for a Middlesex 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 ~ 19 i! :1 " 20 ., d ., Ii 21 .I ;j 22 i 23 24 25 ,--. A unit, and waited for Middlesex to get there. MR. WILLIAM DOUGLAS: cross-examine. CROSS EXAMINATION BY HR. BETTY: Q Chief, what was the weather like that day? A As far as I remember, it was outstanding. Q And your wife was with you in your car? A Yes, sir. Q And do you have a recollection of that part ot the highway of Route 11 that was -- there was construction being done to parts of it? A There was construction. Now for me to sit here and swear to exact would be impossible. I don't remember that. But I know the light, I didn't think was there, but according to the photographs, it was there. Whether it was in operation, I'm not sure, but I know I had to stop. Q Am I correct in my understanding that you do not know how fast Mr. Heipel's van was going at the time of impact? A No, sir, I have no idea of either vehicle. Q And did you get out of your car after the accident? A Yes, sir, immediately after the accident, grabbed my portable, and went out to see if anybody was 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,--. ~ injured. Q Did you notice how many people were in the van? A Well, there was two, as far as I know. Q And while you were at the scene ot the accident, did you have to render first aid to anybody? A Negative, sir. Q While you were at the scene of the accident, did you notice any type of physical injury to anybody? A Not really, sir. Q Do you have any recollection of ever hearing any type of noise, like squealing of tires or anything of that nature? A I hate to admit it, but I do not remember that, sir. Q Do you have any recollection of anybody ever complaining of injury? A I was only there for maybe 10, 15 minutes, and not that I know of. Of course, I was not investigating, so I didn't get too involved. Q And if I understand your testimony correctly, since you were not this accident happened in Middlesex Township? A Yes, sir. Q So the police that investigated were from 41 that township, and you were not a part of the investigation ot this accident? A Right, sir. MR. BETTY: Thank you. HR. WILLIAM DOUGr~s: I have no turther questions. THE COURT: Okay. Thank you very much, Chief. MR. WILLIAM DOUGLAS: Your Honor, we request that Chief Toomey be excused. THE COURT: Mr. Betty, do you have any objection to that? MR. BETTY: No. THE COURT: All right. You're excused, sir. Thank you. MR. WILLIAM DOUGLAS: Your Honor, at this time we call Charles Vincent Furman as on cross. THE COURT: All right. Whereupon, CHARLES VINCENT FURMAN having been called as on cross examination, having been duly sworn, testified as follows: AS ON CROSS EXAMINATION BY MR. WILLIAM DOUGLAS: 42 ~ ... 1 Q sir, would you state your name, please? 2 A Charles Vincent Furman. 3 Q And your current address? 4 A Well, I use a P.O. Box, P.O. Box 1205, 5 Princeton, Texas. 6 Q Sir, on June 19th of 1994, were you employed 7 by Schneider National? 8 A Yes, sir. 9 Q And how were you employed? 10 A As a truck driver/training engineer. 11 Q Do you recall being in an accident on June 12 19th of 1994? 13 A Yes, I do, sir. 14 Q Where were you coming from and where were you 15 going to? 16 A I was coming from the Carlisle Schneider 17 National OC, which is located, I believe, about a mile away 18 from the scene of the accident. And I was going to the 19 Econo Lodge, because myself and my student were finished for 20 the day, and we were going to shut down and layover until 21 the next morning. 22 Q Where had you been driving? Had you been on 23 the road all day that day? 24 A More than likely, yes, sir. 25 Q sir, what direction were you traveling on 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,... ".. Route 11? A I believe it was southbound. Q And you were here and heard Chief Toomey testlty? A Yes, sir. Q Were you attempting tQ take a turn at the time the accident happened? A Yes, I was. Q Sir, you had filled out a statement for your employer, and you had indicated that you were traveling about 5 to 10 miles an hour. Is that your recollection? Yes, sir. How would you know you were going 5 to 10 A Q miles an hour? A One, because of the amount of gears I had to go through to make a left-hand turn. Two, more than likely because when you come to a complete stop, you have to start in tirst gear and work your way up at a slow rate of speed because of the weight ot the truck, because of the turn. So I recollect that it was about 5 miles an hour -- like I said, 5 to 10 miles an hour. Q Just so I get an understanding of where you were on the roadway, it's my understanding, in that area there are two lanos northbound and two lanes southbound, is thet correct? 44 ,--. "". 1 A Correct. 2 Q And which lane were you in on the southbound 3 side of the road before you started your turn? 4 A I was in the left-hand lane on the southbound 5 side before the accident. 6 Q And you were attempting to make Q turn back 7 towards the motel? 8 A Correct. 9 Q Were there bny other vehicles on the roadway 10 prior to you attempting to make your turn? 11 A Yes, there were. 12 Q And what other vehicles do you recall being 13 on the roadway before you started to make your turn? 14 A There was a large white tractor tr~iler 15 vehicle directly in front of me going which would be 16 going northbound. He was also trying to make a left-hand 17 turn onto Interstate 81 going northbound. I guess it would 18 be northbound. And there were a couple vehicles going 19 northbound on the northbound side. That's why I had to come 20 to a complete stop. 21 Q When you came to the light, was it green? 22 A Yes, sir. 23 Q And then you stopped to let some northbound 24 vehicles go by? 25 A Correct. 45 ,--. ~ 1 Q And there's a truck sitting across from you 2 occupying the same spot you are going in the opposite 3 direction? 4 A Well, kind of the same spot. The only thing 5 separating us is the yellow line, the double yellow line 6 that separates the traffic. 7 Q Did that truck commence its turn betore you 8 commenced yours? 9 A Negative. 10 Q What kind of tractor was on this tractor 11 trailer? 12 A What we call a conventional. There's two 13 types of tractors, conventional and cab-over. I was at the 14 time driving a cab-over, which means, it has no nose, the 15 engine is underneath the driver. The conventional, on the 16 other hand, has a nose, which the engine is in front of the 17 vehicle. 18 Q Do you know what the length of the tractor is 19 that you were driving that day? 20 A It was approximately 15 feet long. 21 Q sir, isn't it fair to say that you never saw 22 Mr. Heipel's vehicle before you turned in front of it? 23 A That is true. 24 Q When the vehicles made contact, what portion 25 of Mr. Heipel's van hit what portion of the truck you were 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ driving? A Mr. Heipel's van had directly hit the last two drive tires. You have the steering tires. You have another set of tires. And then you have the last set of tires on the tractor. When I approached the vehicle, he had hit -- the vehicle appeared to have hit the last two tires on my tractor. Q Were they damaged? A I'm sorry? Q Were they damaged? A Yes, they were. MR. WILLIAM DOUGLAS: I have no further questions. THE COURT: Mr. Betty. EXAMINATION BY MR. BETTY: Q Mr. Furman, would you -- you've explained to this jury questions by Plaintiffs' attorney your recollection of the lane of traffic and the manner of your turn and the accident. Would you be able to draw a sketch so that we could visualize your oral testimony about what happened? A Yes, sir. Q Could you step down? A (Witness complied.) 47 ~ ,.. 1 Q Could you diagram what you just testified to 2 with respect to the physical layout of the roadway, bearing 3 in mind that you were going Route 11, as has been 4 established at that point as north and south? 5 A Okay. (Wi tness oomplied.) 6 THE COURT: I think the witness I think 7 you're going to have to speak up pretty loudly so the 8 stenographer can hear you, so you have to move aside so all 9 the jurors can see what you're showing them. And, Mr. 10 Betty, do you want this item marked as an exhibit so that we 11 have it for the record? 12 MR. BETTY: D-7. 13 THE COURT: All right. We'll take a moment 14 and have that marked, and then the witness oan go ahead and 15 describe what's being shown. 16 (Whereupon, 17 Detendants' Exhibit No. 7 18 was marked for identification.) 19 THE COURT: All right. That item has been 20 marked as Defendants' Exhibit 7? 21 MR. BETTY: Yes. 22 THE COURT: Okay. 23 BY MR. BETTY: 24 Q Mr. Furman, would you plac~ an s on the 25 right-hand portion of that sketch with an arrow showing the 48 ~ "". 1 southbound direction which you testified that you were 2 going? Speak up. 3 A I was proceeding this way going southbound. 4 This is northbound going this way. (Witness complied.) 5 THE COURT: So north is lit the bottom of that 6 drawing? 7 THE WITNESS: No, north is going this way, 8 Your Honor, and south is going this way. 9 THE COURT: So, in other words, south is at 10 the top of the drawing, and north is at the bottom? 11 THE WITNESS: Yes, sir. 12 THE COURT: okay. 13 BY MR. BETTY: 14 Q You said that you were pulling into a 15 driveway. The chief indicated he was pulling out of a 16 driveway as described as Cook Drive. Could you write in the 17 word Cook where that drive was or the Econo Lodge where you 18 were headed to? 19 A (Witness complied.) This would be Cook Drive 20 and Econo Lodge. The Econo Lodge would be located 21 approximately over here. 22 Q And you have indicated in red a long 23 rectangle. What does that represent? 24 A That would indicate the white vehicle that 25 was in front of me. This would indicate my vehicle that was 49 ~ "*' 1 sitting at the light waiting to make a left-hand turn. 2 THE COURT: By this, you're indicating a 3 rectangular object that's at the bottom ot that picture? " THE WITNESS: Yes, sir. 5 THE COURT: All right. And that's been drawn 6 in black? 7 THE WITNESS: Yes, Your Honor. 8 THE COURT: All right. 9 BY MR. BETTY: 10 Q Now your vehicle was stopped there, you 11 stated? 12 A Yes. 13 Q And was it stopped because of the traffic 14 light -- because of the -- you had to wait to make a 15 left-hand turn? 16 A It was stopped because there was other 17 vehicles coming, number one; number two, because I didn't 18 have a clear visual view due to the white truck. It was 19 safer to come to a complete stop and wait for the vehicles 20 and try to get full view of traffic. 21 Q What was the total length of your tractor 22 trailer approximately? 23 A Approximately -- you have a 53-foot trailer 24 and then 15 feet of tractor, but some of the trailer hangs 25 over, approximately 5 feet hang over the tractor. So 50 ~ ~ 1 probably what, 60 feet, I think. 2 Q And was -- to the best of your recollection, 3 was the size of the white tractor trailer approximately the 4 same? 5 A Yes, it was. 6 Q Would you explain to the jury the other 7 markings you have on your sketch that states, overpass, 8 1-81, entry of exit. Can you explain what that is? 9 A Well, the overpass, approximately from my 10 location, was about a quarter of a mile away. There was an 11 entry ramp at the time. There was an entry ramp where the 12 traffic entered onto Interstate 81. There was also an exit 13 ramp that comes off of 1-81 and comes down here, and there's 14 a stop sign at the end here. When you exit, you're supposed 15 to come to a complete stop, and then proceed on the 16 northbound lane. Of course, this is Cook Drive where I was 17 turning into. This, at the time, because of the lB construction, was an entry ramp for Interstate B1 that led 19 traffic onto this highway. 20 THE COURT: By this, you're referring to 21 something on the right side of the drawing that's been 22 marked how? 23 THE WITNESS: On ramp. 24 THE COURT: okay. 25 BY MR. BETTY: 51 ""' ~ 1 Q To your recollection, that's where the white 2 tractor trailer was intending to go? 3 A Yes. 4 Q Would you elaborate exactly, to your best 5 recollection, everything that you did as a driver atter you 6 came to a stop up until the time of the impact? 7 A As I recollect, I came to a complete stop, 8 again for the reason that there was traffic on the 9 northbound side. And due to the -- due to the fact that I 10 could not see past the white 18-wheeler, it was a lot safer 11 just to come to a complete stop and wait for the traffic and 12 see if any other traffic was going to come. I stopped after 13 a tew vehicles had passed. I proceeded from first gear to 14 make a maneuver left. I stopped a second time in front of 15 this vehiCle, because when I had stopped here, I did not 16 have a clear view of some of this highway. 17 THE COURT: By, this vehicle, do you mean the 18 white truck? 19 THE WITNESS: The white truck. I'm sorry. 20 Because of the white 1B-wheeler, I did not have a safe or 21 clear view of the interstate of the US highway. So being 22 trained the way I was, I felt it was safer to pullout, come 23 to another complete stop in front of this vehicle, the white 24 18-wheeler, and look down US 11 to see if there were any 25 other vehicles coming. 52 ~ ~ 1 BV MR. BETTY: 2 Q Let me interrupt you tor one moment. You J said you brought your vehicle to a stop, as indicated. Do 4 you know how wide each lane of traffic was for traffic going 5 north? 6 A Yeah. These were 12 feet -- excuse me. 7 These were 12 feet apart. 8 Q So when you brought your tractor trailer to a 9 stop, as indicated, how far would you say the front of your 10 tractor or cab was from the divided yellow line there? 11 A I would have to say, at least six feet. 12 Q Would you put a six there? 13 A (Witness complied.) 14 Q All right. Continue. 15 A After I came to a complete stop, I looked: 16 down the whole interstate. I had looked as far back as the 17 overpass, which is US 81. Now the reason I can only look 18 really just to the overpass is because the distance between 19 the overpass and the turn that I was making gave me more 20 than enough time for an 18-wheeler to make the turn safely, 21 and nobody -- anybody at this point at the overpass -- I 22 should have not interfered with anybody's flow ot traffic in 23 that time period, because I would have had enough time to 24 make a maneuver from a complete stop to Cook Drive to get my 25 whole vehicle out of the way of the flow of traffic. So I 53 ~ -- 1 really only looked as far as the overpass because ot the 2 distance. 3 Q Then what did you du? 4 A I looked. I saw nothing. I observed no 5 vehicles coming in my direction. I telt at the tillle that it 6 was sate to continue my maneuver into Cook Drive trom a 7 complete stop over to the Econo Lodge. 8 Q Did you complete your turn? 9 A Yes, I did. 10 Q The accident did occur? 11 A Yes, it did. 12 Q Where was the front of your cab or tractor at 13 the time of the impact? 14 A At the time of the impact, starting from 15 first gear, going as high as third gear, because I had 16 approximately 30, 41,000 pounds of weight on the vehicle 17 an 18-wheeler, my 18-wheeler had 18 gears at the time. So 18 it was -- it is a slow vehicle to get started. I started 19 from first. From first gear, you can only go 2 miles per 20 hour, then you have to shift to second gear to third gear. 21 So I was approximately going maybe 5 miles an 22 hour by the time I had reached -- or my tractor had 23 reached -- this is just a tractor had reached Cook Drive. 24 I was approximately six feet into Cook Drive at the time of 25 the accident. Mr. -- the Plaintiff's vehicle, van, had hit 54 ~ ".. 1 the back of my veoicle approximately here, which were the 2 two back tires of the tractor trailer -- of the tractor, I'm 3 sorry. 4 Q How long would you estimate that it took you 5 to accelerate trom the stopped position, as indicated here, 6 to the time ot the impact? 7 A probably two to tour seconds. 8 Q Do you know how long a distance is trom where 9 the impact occurred to the stop sign at the exit ramp of 10 1-817 11 A Yes, I do. 12 Q What is it? 13 A It's a hundred twenty-eight yards from the 14 point of impact of my vehicle to this stop sign of the exit 15 ramp. 16 Q How do you know that? 17 A I measured it for -- we measured it the other 18 day, on Monday, I believ9. 19 Q Yesterday? 20 A Yesterday, I'm sorry. 21 Q And the manner in which you measured it was 22 how? 23 ^ By my feet, three -- one, two. 24 Q So you took a hundred twenty-eight paces and 25 extrapolated it out at each one as a yard? 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ".. A Yes, sir. Q So three feet to a yard? A Yes, sit.. a You may retake the stand. A (Witness complied.) Q Betore the impact, did you hear the screeching of any brakes? No, sir. Before the impact, did you hear the sounding A Q of a horn? A Q stop? A No, sir. Upon impact, did you bring your vehicle to a Yes, I did. MR. BETTY: I have no further questions at this time, Your Honor. THE COURT: Mr. Douglas. AS ON CROSS RE-EXAMINATION BY MR. WILLIAM DOUGLAS: Q sir, would it be fair to say that -- well, let me back up. You said that you can go how fast in first gear? A Approximately 1 to 2 miles per hour. Q How fast in second gear? 56 1 :a 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ,... A You go to three to four. Q And third geari' A Four to six probably. Q Sir, the date that you tilled this out tor your employer was June 21st of 1994, is that correct? A Yes, sir. Q In that report, that's when you said you were going 5 to 10? A Yes, sir. Q sir, would it be fair to say that prior to the impact that, you've already said it, that you didn't see Mr. Heipel's van? A No, I did not. Q It also would be fair to say that the van was on the road? A Yes. MR. WILLIAM DOUGLAS: I have no further questions. THE COURT: Mr. Betty, is there going to be evidence as to what the speed limit was at that area? MR. BETTY: I'll-- RE-EXAMINATION BY MR. BETTY: Q Mr. Furman, do you know what the speed limit was at the time? 57 ~ ... 1 A It was 35 miles per hour. 2 Q And did you notice whether or not there was 3 any construction barrels along the side ot the road? 4 A Yes, there were quite a tew. 5 Q I'm going to show you what's been marked as 6 Exhibit D-1. I'm going to ask you it you could identity 7 that photograph? 8 A Yes, I can, sir. 9 Q What is that? 10 A That would be the intersection that I was 11 making a left-hand turn. 12 Q And does that show the direotion which you 13 were proceeding? 14 A No, this would be the direction that the 15 Plaintiff was going in. 16 Q I am showing you Defendants' Exhibit No.3, 17 and ask if you can identify that? 18 A Yes, I can. 19 Q What does that show? 20 A The same intersection, the same intersection 21 that I was at at the accident. 22 Q In whose direction would that -- does it show 23 what direction who was going? 24 A The Plaintiff was going also in this 25 direction. 58 ~ --- 1 Q All right. So Defendants' Exhibits 1 and 3 2 are taken and showing Route 11 in a northbound direction? 3 A Correct. 4 Q Which is the direction that the plaintiff was 5 proceeding? 6 A Yes. 7 Q I'm going to show you a photograph marked 8 Defendants' Exhibit No.2, und ask if you can identify that? 9 A Yes, I can. That was -- I'm sorry. That was 10 the direction I was going in. 11 Q That's the direction you were going in? 12 A Yes, the same intersection. 13 Q Defendants' Exhibit No.4? 14 A Once again, that's the intersection, and 15 that's the direction that I was going. 16 Q Does that particular exhibit show the 17 35-mile-per-hour sign that you have testified to? 18 A Yes, I believe it's in between the two 19 18-wheelers on the right-hand side. 20 Q I'm going to show you exhibit -- Defendants' 21 Exhibit 5, and I'll ask you if you can identify that 22 photograph? 23 A Yes, that would be -- it's not the 24 intersection of the accident, but it's a picture of the exit 25 ramp from the -- from Interstate 81 and the closed exit ramp 59 ~ ~ 1 from Interstate 81 North. 2 Q And that particular exit ramp you just 3 referred to in that photograph, is what you sketched in 4 Exhibit D-7? 5 A Correct, sir. 6 Q Do you have a recollection as to whether the 7 tire from Mr. Heipel's car came off? 8 A Oh, yes. 9 Q Was the front axle gouged into the road at 10 all? 11 A I cannot truly remember. 12 MR. BETTY: I move for the admission -- can I 13 move tor the admission at this time even though it's not my 14 case? 15 THE COURT: Certainly. 16 MR. WILLIAM DOUGLAS: I have no objection, 17 Your Honor. 18 THE COURT: That would be of what exhibits? 19 MR. BETTY: D-1, 2, 3, <1, and 5, as well as 20 7. 21 THE COURT: Mr. Douglas, any objection to 22 that? 23 MR. WILLIAM DOUGLAS: I have no objection. 24 THE COURT: All right. Defendants' Exhibits 25 1, 2, 3, 4, 5, and 7 are admitted. 60 ,--. ~ 1 (Whereupon, 2 Defendants' Exhibits Nos. 1, 2, 3, 4, 5, and 3 7 were admitted into evidence.) 4 MR. BETTY: And I ask permission of the Court 5 to have them circulated by the jury at this time so they can 6 have an understanding of what he just testified to. 7 THE COURT: Mr. Douglas. 8 MR. WILLIAM DOUGLAS: I have no objection. 9 THE COURT: All right. permission is 10 grantod, and we'll let the record indicate that the 11 photographs are being published to the jury. 12 I think the jury has completed looking at 13 those photographs. Almost? Not quite? 14 Now we will let the record indicate that the 15 jury has completed viewing Dsfendants' Exhibits 1 through 5. 16 MR. BETTY: I have no further questions, Your 17 Honor. 18 THE COURT: Mr. Douglas. 19 MR. WILLIAM DOUGLAS: Your Honor, I'd like to 20 approach the witness, please. 21 (Whereupon, 22 Plaintiff's Exhibit No. 11 23 was marked for identification.) 24 THE COURT: All right. 25 AS ON CROSS 61 ;'1\ .. 1 RE-EXAMINATION 2 BY MR. WILLIAM DOUGLAS: 3 Q I'm showing you what's been marked as 4 plaintiff's Exhibit No. 11. On it is a diagram. Did you 5 draw that diagram? 6 A Yes, I did, sir. 7 Q Did you draw that on June 21st, 1994, two 8 days after the accident? 9 A I can't remember. I thought I may have drawn 10 it the day of the accident, to be honest. I can't remember. 11 Q Was it either made the day of the accident or 12 within a couple days after the accident, would that be fair 13 to say? 14 A Yeah. 15 Q Sir, isn't it true, on that diagram that you 16 drew on the day of the accident, or within a couple days of 17 the accident, you don't show your tractor entering Cook 18 Drive at all, but rather you show the tractor occupying only 19 the lane of travel that Mr. Heipel was driving in, correct? 20 A That's the way I drew it, yes. 21 Q Sir, also on that diagram, did you indicate 22 that the distance from Interstate 81 overpass to the point 23 of impact is being about a quarter mile, is that correct? 24 A Yes, I believe that's what I said. 25 Q And do you believe that's true today? 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ A I do. Q So I understand your testimony, you've indicated that you looked the whole way up the roadway to the Interstate 81 bridge, and you saw no cars coming or no vans coming towards you, is that correct? A I saw no vehicles at all. MR. WILLIAM DOUGLAS: I have no further questions. THE COURT: Mr. Betty. RE-EXAMINATION BY MR. BETTY: Q Mr. Furmnn, the sketch that you just referred to, or Plaintiff's counsel has referred to, that was not drawn to scale, was it? A No. Q And those -- that is your free-hand sketch of the scene? A Correct. Q Just like that particular exhibit, D-7 is? A Yes, it is, sir. MR. BETTY: I have no further questions. THE COURT: Mr. Douglas. MR. WILLIAM DOUGLAS: I have no further questions. THE COURT: You may step down. Thank you. 63 ... A 1 Whereupon, 2 STEVE P. HEIPEL 3 having been duly sworn, testified as follows: 4 DIRECT EXAMINATION 5 BY MR. WILLIAM DOUGLAS: 6 Q sir, would you state your name, please? 7 A steve P. Heipel. 8 Q And your current address? 9 A I use a P.O. box, Box 3723, Boardman, ohio. 10 MR. BETTY: I didn't hear the address. 11 THE WITNESS: P.O. Box 3723, Boardman, Ohio. 12 BY MR. WILLIAM DOUGLAS: 13 Q At the time of this accident, were you a 14 resident of Ohio? 15 A Yes. 16 Q Could you tell me how you were employed on -- 17 well, in June of 1994? 18 A Yeah, I was out here representing All Sides 19 siding Manufacturer. I was out power washing houses that 20 day. It was a beautiful day. And I was on my way to do my 21 work that day. 22 Q How long had you been in the business of 23 power washing houses? 24 A Since 1974. 25 Q What does your business entail, this power 64 ,.. fI\ 1 washing ot houses? 2 A That's the first process. First we power 3 wash it. Aluminum, we can power wash it today, and tape you 4 and spray tomorrow, okay. You have a brand new house. And 5 vinyl, we can power wash it today, and we have to wait seven 6 days because it does not dry. Then we come back atter seven 7 days, tape up your house and refinish it, and we're done. 8 You have a new house. 9 Q When you say, refinish it, I guess you're 10 talking about two processes -- well, three processes. One 11 is, power wash the house? 12 A Yes. 13 Q Two is, tape it oft? 14 A Yes. 15 Q And three is, repaint the house? 16 A I don't call it repainting. We call },t 17 refinishing in my business. 18 Q Refinishing the house? 19 A Yes. 20 Q I'm showing you what's been marked as 21 Plaintiff's Exhibit No. 1 and Plaintiff's Exhibit No.2. 22 What does Plaintiff's Exhibit No. 1 depict? 23 A This is power washing. This is really a 24 great photograph of this. 25 Q Does that show what you did prior to this 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ -- acoident? A Oh, yes, sir. Q And how many houses would you power wash in a day? A Depends how far they are. Probably six a day, at least. Q Could you walk me through the steps that you have to go through when you arrived at a house to power wash it? A Okay. First step, I'd walk around your house, see if anything is damaged, any broken windows or anything. I'll pull it to your attention as the home owner. Shrubberj,es or whatever, because I'm not a landscaper, I'll ask you, do you take care of your shrubs around the house or anything, because people, you know, holler about that. So then I would ask you to shut your windows, and we proceed to break our equipment out and proceed power washing your house. Q That's what I want you to walk through is, that equipment process. What do you have to do to get up to power wash a house? A Oh, well we got to get a 300-pound machine, and depends on the height of the house, maybe 28-footer, sometimes a lot here, these bigger houses right here, this is a 36-footer. Probably -- this looks like a 36-footer 66 ~ ~ 1 here to me. Deponds on the height of the house, the ladders 2 w& use. 3 Q Do you thsn put the ladder -- well, do you 4 brinq the ladders with you? 5 A Oh, yes, they're on my van. 6 Q Where are they stored on your van? 7 A On the roof and inside. 8 Q Did you do this job by yourself prior to June 9 14 of 1994? 10 A No, sir. 11 Q Did you need somebody to help you do it? 12 A Oh, definitely. You can't get a machine out 13 of the truck yourself. 14 Q What is the Machine? 15 A Simpson 3000-pound power washer. That's one. 16 Q What's it consist of? What major parts are 17 to it? 18 A Motor, pump. That makes the pressure. 19 Q Gasoline engine? 20 A Oh, yes. 21 Q That's attached to a water pump? 22 A Yes. 23 Q And then it would be my understanding that 24 that's attaohed to a hose that you have to hold in your hand 25 up against the house while you're up on a ladder, is that 67 ~ ... 1 correct? :I "Oh, yes. 3 Q I guess the most common experience for 4 everyone would be -- Ii A Going to the car wash. 6 Q Okay. 7 A That's a small version ot it. 8 Q What's a small version ot it, the car wash? 9 A The car wash is a small version of the 10 pressure that I use. 11 Q Is there any force exerted 0;\ your arm or 12 hand when you're holding this power washer to power wash 13 your house? 14 A Oh, yes, traumatic force. 15 Q When the force comes out of the power washer, 16 and it hits the aluminum siding, what does it do to the 17 finish on the siding? 18 A It takes off all chalk and contaminations off 19 the house. 20 Q And do you have to do this over every square 21 inch that you're going to paint? 22 A Everything. 23 Q How long would, say, a 36-foot tall house 24 take for you to finish this job? 25 A Well, this Exhibit 1 here, this picture one, 68 ~ ,... 1 this house here, I would say 30 s~uare, it would take us 2 about three and a half, four hour. power washing it because 3 it's white. Whit., usually you have to sorub real good. 4 Then the following day, we mask it out and spray it. It 5 would be a two-day process, and then you have a new house. 6 7 8 9 10 11 is that correct? 12 13 14 15 16 17 18 19 20 21 A Let's see. We just dropped my lady off at 22 the motel, and we were headed down towards Mechanicsburg out 23 by the Comfort Inn. There's a road that bears off to the 24 left there, Middlesex Road or whatever, back in that 25 development back there. Q How many days a week would you work? A Every day God gives me sunshine. Q That inolude the weekends? A Don't matter wl1at day it is to me, sir. Q The accident occurred on June 19th of 1994, A Yes. Q And what were you doing that day? A We had already power washed five. Q Five? A Five vinyls. Q Five vinyl houses? A Yes. Q And where were you headed at the time that tho accident happened? 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ^ Q Were you going to power wash another house? A Oh, yes. Q which direction wers you traveling on that day? A Well, I was traveling north on 11. Q Could you describe for us what you observed as you approached the intersection of Cook Road? A okay. As I -- I seen a green light. I seen a white semi next to me. And he was just sitting there. He had his blinker on. There was a couple ~f cars that went ahead. And me and my helper, we were going to take care of this next project, and we were just talking, and I looked straight ahead. I glanced over at the white truck, and I've got like five feet. I see this orange blob there, and it petrified me, so I slammed my brakes, hooked left. I seen this big trailer sitting there. I ~~ought, oh, Lord, this is going to kill me, so I hooked a hard right and aimed for his tire, because I knew I didn't have a shot. Q Did the impact occur? A Oh, you bet, sir. Q What happened to your vehicle when the impact occurred? A The bumper flew down the road about 50 yards. The front tire, the whole bearing assembly in the van was just -- it was allover the highway. The equipment in the 70 A Q A Q total loss? A Q fI\ --- 71 ~ -- 1 accident? 2 A The only word I heard trom him was, oh, I 3 thought I killed you guys. And I was in a state ot shook. 4 I just said, thanks, you wiped my business out, you wiped me 5 out, get away from me. 6 Q Did he indicate -- strike that. You talked 7 about the business. When you would go to work, how would 8 you be paid? 9 A How did I get paid? 10 Q Yeah. 11 A I'm the general ~anager of the business, so I 12 just pay myself a salary. 13 Q Sir, following this accident, were you 14 15 16 17 18 19 the time of the accident? 20 A okay. D & S Aluminum, Incorporated/D & S 21 Refinishing Services, Incorporated. 22 Q And that's who would cut your paycheck at the 23 time of the accident? 24 A Yes. 25 Q Following the accident, did you continue to physically able to perform your duties as a power washer? A No, I have not been able to. Q Have you tried? A I've tried, yes. Q What was the actual name of your employer at 72 ~ ~ q . ~i i: ~ ~ 1 do some work for D'S? 2 A I subbed a couple guys out. The one guy 3 worked tor me, and I got another guy to help him out, help 4 him out after I got a new van. 5 Q When you got a new man, were you able to 6 still take the same pay that you were getting at the time ot 7 the accident? 8 9 A Q No. I'm Showing you what's been marked as 10 plaintiff's Exhibit No. 6. Coul~ you tell me what that is? 11 12 A It's a work loss. Q sir, could D & S stay in business without you 13 working for them? 14 15 A No. Right now, they're out of business now. With respect to the van that was in the Q 16 accident, did you own that? 17 18 19 20 A Yes, I did. You owned that personally? Personally. sir, exhibit -- plaintiff's Exhibit No.6, Q A 21 does that show the amount of wage loss that you have Q 22 incurred from 1994 to the present? 23 A Relatively so, yes. 24 Q sir, following -- well, in the accident, were 25 you injured? Were you injured in the accident? 73 ~ -- 1 A Oh, yes. 2 Q And could you tell me what your injuries were 3 and when you realized that you were hurt as a result ot this 4 accident? 5 A I didn't bother medical at ti\e time ot the 6 accident. I was in a rage, okay. So I went back to the 7 room instead of going to the hospital, because I didn't want 8 to shock my lady to death. She was out here all alone. So 9 I went home. After I waited for a car for two days, I went 10 to the hospital. 11 Q Let me talk first about your process of 12 getting home. You said you stayed -- did you stay in the 13 hotel two days? 14 A Yes. 15 Q Why did you do that? 16 A Because there was no rent-a-cars available. 17 There was a convention in Harrisburg. We were stranded out 18 here. 19 Q Did you finally get a rental car two days 20 later and get home? 21 A Yes. 22 Q And when you got home, what did you do? 23 A Had to take the rent-a-car back to the 24 pittsburgh airport. After we took care of all that, then I 25 went to the hospital and got x-rayed. 74 ~ ,.... 1 Q What hospital did you go to? 2 A Ncrthside. 3 Q Where is that located? 4 A Northside of Youngstown. 5 Q Is Youngstown in close proximity to Boardman? 6 A Yes, it's a suburb like -- it's a suburb. 7 Q And when you went to Youngstown to the 8 hospital, what did they do for you? 9 A Took a bunch of x-rays of my neck, shoulder, 10 back, knee, hip, and told me that my shoulder was not good. 11 Q The places that they took x-rays, were those 12 the areas that you were having problems with? 13 A Yes, I had those treated. 14 Q And following leaving the hospital in 15 Youngstown, what medical care did you get next? 16 A My family physician referred me to Youngstown 17 Physical Therapy. 18 Q And who's your family physician? 19 A Dr. Dunlea. 20 Q And Dr. Dunlea referred you to physical 21 22 23 24 25 therapy. Did you go? A Yes, I went for three weeks. Q Did it help? A No, they hurt me there. Q When you say they hurt you, are you saying 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,.... ~ they made your condition worse? A Yes, it made my condition worse. Q Did you then sesk medical care from someone else? A Yes. MR. BETTY: I'm going to object to the question and the response, and ask that it be stricken since it's leading. THE COURT: MR. BETTY: THE COURT: It's leading? It was leading. All right. The objection is overruled. BY MR. WILLIAM DOUGLAS: Q Sir, following the treatmont at the rehab -- where was the rehab located? A On Market street in Boardman. Q After you went to the rehab for three weeks, who did you go see next as far as physical care? A Dr. John Escaro. Q What kind of doctor is he? A He's a chiropractor. Q And how long did you see him? A Probably about six months. THE COURT: Do you know how to spell his name? 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ THE WITNESS: E-s-s-c-r-o. MR. GEORGE DOUGLAS, III: Excuse me. He's E-s-c-a-r-o. THE COURT: Does that sound right? THE WITNESS: Yes. THE COURT: Thank you. BY MR. WILLIAM DOUGLAS: Q What kind of things did Dr. Escaro do tor you over the next six months? A Again, he got my neck straightened out and my back in pretty good shape through therapy or whatever, electric stimulations and traction and all that, and he decided that my shoulder just, we didn't -- he couldn't help me no more. Q Had you ever been to see this chiropractor before? A A couple times. Q And why did you go see him before? A Because he took care of me, fixed me. Q For what? What physical problem were you having that you went there? A If you knock your back out of whack sometimes, like people do, you go in, and he fixes you up. Q Following those previous visits, was your back okay? 77 111I\ --- 1 A Yes. 2 Q Did there come a point in time -- you said 3 that they fixed up your neck, and they fixed lip your back, 4 but there wasn't much he could do tor your shoulder. Did he 5 try or did you witness him trying to get you any medical 6 care from somebody else or anybody else with respect to your 7 shoulder? 8 A Yes, sir, I did. He was on the phone on the 9 caller, on the speaker phone -- 10 MR. BETTY: Objection, if he's going to state 11 what the chiropractor said to somebody else on the phone. 12 THE COURT: Mr. Douglas. 13 MR. WILLIAM DOUGLAS: It's not for the 14 substance of what the chiropractor said, it's for the fact 15 there was an attempt made to get him under care. 16 MR. BETTY: He's already testified to that. 17 Now -- my understanding of the question is that he is going 18 to state what the doctor -- what the chiropractor said to 19 some unknown person, which is hearsay. 20 THE COURT: Is that what you were going to 21 elicit? 22 MR. WILLIAM DOUGLAS: No, Your Honor. 23 THE COURT: Okay. So the question is simply, 24 was there an attempt to refer you to somebody else, and the 25 answar was, yes. 78 ~ ~ 1 BY MR. WILLIAM DOUGLAS: 2 Q Was anybody else willing to see you? 3 A No, because I did not have hospitali~ation. 4 Q sir, I'm showing you what's been marked as 5 Plaintiff's Exhibit No.7, and could you tell me what that 6 is? 7 A It's property damage. It's the little bit 8 amount I got for my totaled out van. The medical expense 9 was paid out from my insurance company for my medical bills 10 through Youngstown Physical Therapy and Dr. John and 11 probably Northside Hospital. 12 Q sir, what are the amounts of those two items? 13 A property damage was $4455.00. And past 14 medical expense was $4913.68. 15 Q Was that $4913.68, was that paid to the 16 various health care providers that you saw in Ohio before 17 your benefits were used up under your policy? 18 A Yes. 19 Q Did you have hospitali~ation coverage at the 20 time ot this accident? 21 A No, sir. 22 Q Sir, did there come a time when you saw 23 another doctor following the chiropractic treatment to 24 examine you? 25 A I've been examined in the state of PA here. 79 A Q Dr. Danyo? A Q request? A Q last? A ~ ~ 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ Q Sir, what I want to talk to you now is, what occurred with you when your income started going downhill. Physically, were you able to pay your bills? A No. Q Where did you live -- what type of residence did you have at the time of the accident? A At the time of the accident, I had a 1300 square feet, two-bedroom, two-bath apartment. Q Were you able to stay in that apartment? A No, we finally got evicted after a while. Q Why were you evicted? A I couldn't pay the rent. I had to pay my new van payment. Q You said a new van payment. Following this accident, did you replace the van that was damaged in the accident? A I went out and bought a brand new one. Q What year was the new one? A Ninety-four. Q Did you have to put any money down on that van? A Five thousand dollars. Q Did you borrow money to buy that van? A No, I took the money out of D & S account and put down on it. 81 A Q A Q payments? A Q A Q down? A ~ ~ 82 ,--. ~ the house. Q them rent? A Q A Q A Q A Q A Q A Q accident? A B3 ~ --- Q business? A Q A real dad. Q A Q A Q 84 ,.. . 1 at Cook Drive? 2 A There was some traffic ahead of me. They 3 went, and the guy behind me blew the horn. That was because 4 me and John was talking. So I just drove up there, and I 5 was taking it easy. 6 Q Do you know how many vehicles were behind 7 you? 8 A There was probably two, I think. 9 Q When the -- just ao I understand this. Was 10 there any tratfic control devices betore 81 that you had to 11 stop at? 12 A Oh, there's red lights and etuff, yes. 13 Q What I'm trying to do is, get a pioture of 14 when this psrsan beeped at you to go that was bshind you. 15 MR. BFTTY: Objection to counsel's 16 description ot what he's trying to do. I ask that that 17 remark bs disregarded. 18 THE COURT: The objection is noted but 19 overr\1led. 20 BY MR. WILLIAM DOUGLAS: 21 Q sir, you had indicated, somebody beeped 22 behind you? 23 A Yes. 24 Q Where was your vehicle sitting when that 25 person behind you beeped? 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IlII\ -- A Probably at the Eat 'N Park, somewhere around that area. Q Would that have been on the other side of Interstate 81? A Yes. Q When I say, the other side, that's the opposite side from the accident? A The opposite side, yes. Q And then trom that point, when that individual or person beeped their horn and you began to travel on Route 11 towards the 81 overpass and ultimately Cook Drive, did you stoy anywhere in between those two places up to the point of the impact? A No. I take that back. I had to slow down because people were turning in front of us. I slowed down a little bit. Q But no place you had to stop? A No, no. Q Do you believe that if you get the surgery, you'll be able to go back to work? A Well-- MR. BETTY: Objection, objection, calls for speculation. THE COURT: Mr. Douglas. MR. WILLIAM DOUGLAS: I'll withdraw the 86 ~ ".. 1 question. 2 THE COURT: All right. 3 BY MR. WILLIAM DOUGLAS: 4 Q Do you want to go back to power washing? 5 A Yeah, I love what I do. 6 Q What is preventing you physically right now 7 from doing power washing? 8 A My shoulder, my right shoulder. 9 Q Your right shoulder. If the problem with 10 your right shoulder subsides, do you believe you'll be able 11 to go back to power washing? 12 A Yes. 13 MR. WILLIAM DOUGLAS: Cross-examine. 14 THE COURT: Why don't we take a ten-minute 15 recess at this point for the mid-morning break, it that's 16 acceptable. And during this recess and every recess 17 adjournment, of course, do not discuss the case among 18 yourselves. Keep an open mind. We'll see you in ten 19 minutes. 20 (Whereupon, a recess was taken at 10:20 a.m. 21 and proceedings reconvened at 10:37 a.m.) 22 THE COURT: Are counsel ready for the jury to 23 be brought in? 24 25 MR. WILLIAM DOUGLAS: Yes, Your Honor. THE COURT: Mr. Betty. 87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in. q6ntlemen. Betty. BY MR. BETTY: Q you first saw was orange? A Q A Q first saw it? A Q ~ -- MR. BETTY: Yes. THE COURT: All right. Please bring the jury (Whereupon, the jury was brought in.) THE COURT: Welcome back, ladies and Hr. Heipel, you are still under oath. Mr. CROSS EXAMINATION Mr. Heipel, I believe you stated that when the Schneider tractor trailer, the color ot it Yes. And that you were five feet from it? Yes, I was. Where was the tront of the tractor when you Right in front of my van. And from the time you first saw it until the time of the collision, how much time went by? A (Witness snapped his fingers.) Q Instantly? A About three seconds. Q And when you first saw the tractol: tl"ailer, you were going how fast? 88 ~ ~ 1 A Between 35 and 40. 2 Q Do you remember me taking your deposition on 3 July 23, 1997? 4 A Not really. 5 Q And I was asking you certain questions, and 6 on page 18, line 15, I asked you, And do you recall what the 7 speed limit was? Answsr, Forty. 8 A I thought it was 40. 9 Q Question, And do you recall how fast you were 10 going? Answer, Forty. Question, Within 30 seconds prior to 11 the accident? Answer, Forty. So from this particular 12 deposition transcript, which was taken almost a year ago, 13 you indicated that for 30 seconds prior to the accident, you 14 were going 40 miles an hour, isn't that correct? 15 A I really don't recollect my correct speed on 16 the time. 17 Q You're not saying what's in here is 18 incorrect, ars you, in the deposition transcript? 19 A It could be 35 to 40 is what I said. 20 Q Let me read it to you again. 21 MR. WILLIAM DOUGLAS: Your Honor, this is 22 argumentative. He just read it, and the question confirmed 23 it was 35 to 40. 24 THE COURT: It's cross examination. 25 BY MR. BETTY: 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I . 25 ~ ~ Q Question, And do you recall what the speed limit was? Answer, Forty. Question, And do you recall how tast you were going? Answer, Forty. Question, Within thirty seconds prior to the accident? Answer, Forty. Now are you saying that those answers are incorrect? A Possibly, because I slammed my brakes on. Q Did you come off the interstate exit ramp onto Route 11? A No. Q As a result of this particular accident, did your right front wheel come off, tire come off? A Yes. Q You've identified some photographs from your attorney. And Plaintiff's Exhibit 5 shows your vehicle in its damaged condition? A Yes. Q Is there any damage to the left front headlight? It's not broken, is it? A It's not even there. It's not even there. Q Is the left front headlight different than the right front headlight? A The right one is over here. This is the left one r~ght here. It's not there. Q Oh, the way you're looking at it? A When I'm looking at the picture, the right to 90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 " . left. Q As you're looking at the photograph, you're reterring to the left A Yes. Q As you're looking at the photograph? A Yes. Q If you ware sitting behind the driver's wheel, that would be the right? A I'm not. I'm looking at the picture. Q And these photographs in~icate what power painting is, an illustration of it. Is that you in those photographs? A This is power washing. That's airless spraying. THE COURT: Well, let's have those two items identified. BY MR. BETTY: Q P-1 is? A That's power washing. Q And P-2 is? A Airless spraying. Q Are either of these two men you? A This is me. THE COURT: In Plaintiff's Exhibit 1? MR. BETTY: Two. 91 ~ -- 1 THE COURT: All right. 2 BY MR. BETTY: 3 Q You had longer hair at that time? 4 A Yes. 5 Q You're not able to estimate the speed of the 6 Schneider tractor trailer, can you? 7 A Crawling. 8 Q What would you estimate your speed was at the 9 time of the impact? 10 A After I slammed the brakes on, laid on the 11 horn, I probably got it down between 35 to 32. 12 Q Did your when the tire came off. of your 13 van, did you ever -- after the accident, did you notice 14 whether or not your axle or your beam, however you want to 15 refer to it, was gouged into the concrete? 16 A Yes, it sure was. 17 Q And that would be if you were sitting in 18 19 20 21 22 23 Defendants' Exhibit 6, and ask you if that is the area of 24 the gouge where the axle would have went into the concrete? 25 A This picture here looks like a spot on the the driver's seat ot your van, that would have been the right front axle, correct? A If I was sitting in the van, it would be the right axle. The beam holds the whole wheel assembly on. Q I'm going to show you what's been marked as 92 ,.. .. 1 road to me. 2 Q Is that about the area though of the -- where 3 you applied it into the right rear -- 4 A What's this over here? What's this? 5 Q That's Cook Drive. 6 A That's Cook Drive. Yeah, that's ~robably it 7 right there then. 8 Q So if my underetanding i9 correct, you did 9 not go seek any medical attention in the State of 10 pennsylvania until atter this accident? 11 A I was in a state of shock at the accident. 12 Q And the first medical care you had was 13 approximately two days later? 14 A Yes, it was. 15 Q You weren't rendered unconscious by this 16 accident, were you? 17 A No. 18 Q And your windshield was not broken or 19 shattered, was it? 20 A I don't remember. 21 Q In the photographs of your vehicle, does it 22 indicate whether or not your windshield was broken or 23 shattered? 24 A No, I don't think it was. 25 Q When you went to the Youngstown 93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ,.. Rehabilitation Services, after you were done treating there, you went to Dr. Escaro, is that correct? A Yes. Q And Dr. Escaro was a chiropractor? A He's a manipulator, yes. Q And he had treated you on -- prior to the date of this accident? A Several years before that, yes. Q You had a problem with your back? A Working with ladders and everything, sometimes everybody hurts their back. Q So you did have a prior problem with your back that required Dr. Escaro to give you ~edical treatment? A Once in a blue moon. Q And isn't it correct that the last treatment you had for the injuries sustained in this accident was on September 8, 1995? A The date, I do not remember, but it's probably. Q And the only other examination that you had, other than on behalf of the Defendants of Dr. Boal, was your attorney recommended that you be examined by a Dr. Danyo, is that correct? A Run the question by me again. Q Your attorney recommended that you be 94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ .. examined by Dr. Danyo? A I don't know who recommended, but I had to go sse him. Q How did you find out that you should go and be examined by him? A Through a letter. Q From who? A I gue,ss my attorney. I don't know. I thought you guys agreed on it. Q And so you drove in from Boardman, Ohio, to be examined by Dr. Danyo? A Yes, sir, I did. Q Dr. Danyo never treated you? A No. Q Just examined you? A Yes. Q And you still are not undergoing any treatment, are you? A No. Q You indicated in questioning that you had an automobile liability policy that provided medical payments, and your exhibit, I think it's 7, states, $4913.68 of past medical expenses, and that exhausted your policy limits, is that correct? A Yes. 95 A Q 1986 van? A Q A Q A Q ~ ~ 96 ~ ~ 1 A sir, the van was worth a lot more than that 2 to me. I didn't ayree on it. The insurance company did. 3 Q You received a payment, didn't you? 4 A Yes. 5 Q Then you went out and bought another van? 6 A Yes. 7 Q And what year did you buy the other van? 8 A 1994. 9 Q And you bought the van in 1994, you bought a 10 19 -- what year was the van that you bought? 11 A 1994. 12 P. You didn't buy another 1986 van? 13 A No. 14 Q So you made a decision that you were going to 15 buy a new van, and you made the decision that you would 16 tinance it, correct? 17 A I guess. 18 Q Now you made a claim for work loss, and your 19 attorney has provided an exhibit, which you have identified, 20 and it shows work loss from your -- strike that. It shows 21 income from your Federal tax returns commencing in 1992, and 22 part of your total income in 1992 was from unemployment 23 compensation, isn't that correct? 24 A Yes. 25 Q And in 1993, some of your total gross income 97 ~ ~ 1 was unemployment compensation? 2 A Yes. 3 Q That was before the accident? 4 A Yes. I pay in it. 5 Q And you were healthy then? 6 A Yes. 7 Q And you could do the work? 8 A We're seasonal. We work seasonal. We only 9 work-- 10 Q Oh, I didn't know that. 11 A Well, you know it now. 12 Q And in 1994, you collected unemployment 13 compensation? 14 A Yes. 15 Q Now you indicated that you supplemented your 16 income because you couldn't work by terminating and 17 withdrawing your IRA's? 18 A Yes. 19 Q And you said 8 to $10,000. OO? 20 A Yes. 21 MR. WILLIAM DOUGLAS: ObjecUon, Your Honor. 22 That's not a correct characterization. It was an IRA and 23 some mutual funds. 24 THE COURT: I think he did -- I don't recall. 25 The jury will have to remember. 98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ^ THE WITNESS: They're both. IRA's and mutuals. THE COURT: Go ahead. BY MR. BETTY: Q Your exhibit for work lofts indicates that for the year 1996, part of your gross income for that year was an IRA distribution of $2100.00? A That's at one time. Q And there are no other references to IRA's, correct? A That I could not tell you. Q And there is no reference at all to any mutual fund? A Mutual funds do not go on your tax forms, sir. Q You indicated::hat you did not have hospitalization? A True. Q Did you ever apply for medical assistance? A Pardon me? Q You never applied for welfare or medical assistance, did you? A No, I never applied for welfare. Q Did you ever apply through your -- through any state agency for any benefits for medical care because 99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ A of the predicament you said you were in, in that you didn't have any hospitalization or income to pay for medical services of any kind? A I looked into it. Q That's not what I asked you. I asked you whether or not you ever applied? A I applied for welfare one time, got turned down. Q What year? A 1995. Q Why did they turn you down? A Because welfare reform. Single white male, they figure, they just do -- don't ask me. Because you're a single white male? Because my fiancee, I do believe, was on it Q A at the time. Q You indicated that you did some -- did you say painting or wallpapering in exchange for rent and a house that you and your fiancee and her son are living? MR. WILLIAM DOUGLAS: It was daughter. BY MR. BETTY: Q A Q A Daughter? Yes. What's the address of that house? I use a P.O. box for my mailing address. 100 I ~ ,... 1 do not disclose my address, so thank you. 2 Q Wh!1t city is J.t in'? 3 A It's in Boardman. 4 Q Did you ever attempt to obtain employment 5 trom any employer at a job that you would have been oapable 6 ot doing? 7 A I can say, I've been doing wallpapering and a 8 little interior painting. 9 Q In your exhibit of income, you don't show any 10 11 12 13 14 15 type of job between the time of this accident and today? 16 A Yes. 17 Q Who? 18 A Pardon me? 19 Q With who? 20 A Different painters I know. 21 Q I'm referring to the same deposition that I 22 took on July 23, 1997, and I refer to page 63, line 9. My 23 question to you was, Have you looked for other kinds of work 24 since you're not working for D & S anymore? Answer, I'm not 25 taking a five-dollar-an-hour-job or something like that, income from wallpapering or painting? A It's cash. Q So it's not reportable? A It's not much to speak of. Q Did you ever apply with any employer tor any 101 .-- ~ 1 some tlunky job. I'm 42 years old, guy. I'm used to going 2 out and knocking a thousand, one thousand five hundred, two 3 thousand a day down. I can't do that. Do you remember 4 saying that? 5 A Yes, I do. 6 Q So you're saying, you wouldn't take a tive 7 dollar or a minimum type wage job? 8 A Would you take one, sir? 9 Q sir, you are the plaintiff in this case. I'm 10 just trying to get the facts of what occurred here. 11 A No, I'm not working at McDonald's or nothing 12 like that, no, I'm not. 13 MR. BETTY: I have no further questions. 14 THE COURT: Mr. Douglas. 15 REDIRECT EXAMINATION 16 BY MR. WILLIAM DOUGLAS: 17 Q sir, when you talk about knocking down a 18 thousand or fifteen hundred or two thousand dollars a day, 19 what does that -- what does that mean? 20 A That means, just like this white house, I'd 21 have, for example, of power washing and painting the house, 22 that house may be a $1500.00 house easy a day. That's what 23 I'm talking about, sir. 24 MR. WILLIAM DOUGLAS: I have no further 25 questions. 102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IIiI\ ~ THE COURT: MR. BETTY: THE COURT: Mr. Betty. I have no turther questions. All right. You may step down. Thank you. MR. WILLIAM DOUGLAS: Dr. Danyo. THE COURT: All right. I think we are going to be seeing a videotaped deposition of a doctor by the name of Danyo, is that correct, Mr. Douglas? MR. WILLIAM DOUGLAS: Yes, Your Honor. THE COURT: All right. What is his first name? Richard? MR. WILLIAM DOUGLAS: Joseph. THE COURT: Joseph Danyo. And that's D-a-n-y-o? MR. WILLIAM DOUGLAS: Yes. And we have marked as Plaintiff's Exhibit No. 9 the written transcript of Dr. J. Joseph Danyo, M.D., and marked as plaintitf's Exhibit No. 10 is the video recording of the deposition of Dr. Danyo. THE COURT: Ladies and gentlemen, the sworn testimony of a doctor by the name of Joseph Danyo, taken by videotaped deposition prior to this trial, is about to be presented to you. The testimony of a witness who, for some proper reason, cannot be present to testify in person may be presented in this form. Such testimony is given under oath 103 ~ ,.. 1 and in the presence of attorneys for the parties who 2 question the \litness. 3 A court reporter takes down everything that 4 is said and then transcribes the testimony. The use of 5 videotape pormits you to ses and hear the witness as he or 6 she appeared and testified under questioning by counsel. 7 This form of testimony is entitled to neither more nor less 8 consideration by the jury because of the manner of its 9 submission. 10 Are counsel in agreement that the 11 stenographer in this trial may be excused from taking down 12 the testimony of Dr. Danyo since we have a transcript of his 13 testimony? 14 MR. WILLIAM DOUGLAS: I have no objection, 15 Your Honor. 16 MR. BETTY: No objection. 17 THE COURT: All right. 18 A JUROR: Excuse me, Your Honor. There's a 19 lot of glare on the TV from that window right there. 20 THE COURT: All right. 21 Did that take care of the problem? 22 A JUROR: Thank you. It's better. Thank 23 you. 24 THE COURT: Thank you. For the jury's 25 benefit, how long is this videotape? 104 ~ ".. 1 MR. WILLIAM DOUGtAS: Your Honor, it's 48 2 minutes. 3 THE COURT: All right. We will let the 4 record indicate that the jury is now viewing the videotaped 5 deposition testimony of Dr. Danyo. 6 (Whereupon, the videotaped deposition 7 testimony of Dr. J. Joseph Danyo was shown 8 to the jury.) 9 THE COURT: We will let record indicate that 10 the jury has concludsd viewing the videotaped deposition of 11 Dr. Joseph Danyo. Ladies and gentlemen, we will at this 12 point recess for lunch and resume at 1:00. In the meantime, 13 do not discuss the case among yourselves or with anyone 14 else. Do not attempt to investigate the case. Do not read, 15 see, or hear anything about the case. We'll see you at 16 1:00. 17 (Whereupon, a lunch recess was taken at 18 11:50 a.m. and reconvened at 1:01 p.m.) 19 MR. WILLIAM DOUGLAS: Your Honor, just one 20 matter tor the record, because I'm not sure exactly if this 21 was addressed. Paragraph 6 of the amended complaint, it 22 states, at the same time and place, Charles vincent Furman, 23 while acting in the scope of his employment was operating a 24 1993 International tractor trailer that was traveling in a 25 southern direction on said Route 11, Middlesex Township, 105 ~ --- 1 Cumberland County, Pennsylvania. That was admitted. And 2 that's for purpose of agency. 3 THE COURT: Is there something you want to 4 tell the jury about it? 5 MR. WILLIAM DOUGLAS: No, no, I just wantsd 6 to put that on the record because I believe we had talked 7 about a stipulation, but I'm not sure if it ended up on the 8 record, and that was admitted in the pleadings. 9 THE COURT: I think the stipulation did end 10 up on the record, that the employer would be responsible tor 11 any negligenco and causation co~mitted by the employee. Am 12 I right, Mr. Betty? 13 MR. BETTY: Uh-huh. 14 THE COURT: I think I'm right, that y~u did 15 stipUlate on the record that 16 HR. BETTY: I did. 17 THE COURT: -- that the employer was to be 18 responsible. 19 MR. BETTY: That's correct. 20 THE COURT: I'm just going tv tell the jury 21 they're to be treated as the same entity for purposes of the 22 verdict slip and deliberations. 23 MR. WILLIAM DOUGLAS: Your Honor, with that, 24 we would move for the admission -- 25 THE COURT: Well, let's do this in front of 106 "" A 1 tha jury so they know what's admitted and what isn't. 2 MR. WILLIAM DOUGLAS: Okay. 3 THE COURT: Are counsel ready for the jury to 4 be brought in? 5 MR. WILLIAM DOUGLAS: Yes, Your Honor. 6 THE COURT: Please bring the jury in. 7 MR. WILLIAM DOUGLAS: Your Honor, with 8 respect to the one exhibit that we had the diagram in, I 9 think we're going to cut the top off, because it has writing 10 on that wasn't admitted in evidence. 11 (Complied.) 12 (Whereupon, the jury was brought in.) 13 THE COURT: Welcome back, ladies and 14 gentlemen. Mr. Douglas. 15 MR. WILLIAM DOUGLAS: Your Honor, at this 16 time we would move for admission of Exhibits 1 through 11, 17 and the plaintiff rests. 18 THE COURT: Let's see. I don't have a 19 Plaintiff's Exhibit 8. 20 MR. WILLIAM DOUGLAS: That was the report of 21 Dr. Boal. That was previously admitted. 22 THE COURT: I don't think that was identified 23 for the record -- I see. I do have Plaintiff's Exhibit 8, 24 and that was already admitted. So the request, Mr. Betty, 25 is for the admission of Plaintiff's Exhibits 1, 2, 3, 4, 5, 107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 6, 7, 9, and 10. MR. BETTY: I only want to see the exhibit ot the sketch of Mr. Furman's. THE COURT: MR. BETTY: All right. I have no objection, to them, Your Honor. THE COURT: All right. Plaintiff's Exhibits 1, 2, 3, 4, 5, 6, 7, 9, and 10 are admittod. (Whereupon, Plaintiff's Exhibits Nos. 1, 2, 3, 4, 5, 6, 7, 9, and 10 were admitted into evidence.) MR. WILLIAM DOUGLAS: And 11 is the diagram prepared by Mr. Furman following the accident. THE COURT: All right. I didn't have that identified either. Are you sure that's been identified for the record? MR. WILLIAM DOUGLAS: Yes, Your Honor, Mr. Furman identified it. THE COURT: As Plaintiff's Exhibit 11? MR. WILLIAM DOUGLAS: Yes, Your Honor. THE COURT: Mr. Betty, are you satisfied that Plaintiff's Exhibit 11 has been identified? MR. BETTY: Yes, I am. THE COURT: All right. Plaintiff's Exhibit 11 is admitted also, if there is no objection to that. 108 ~ -- 1 HR. BETTY: No. 2 (Whereupon, 3 plaintiff's Exhibit No. 11 4 was admitted into evidence.) 5 MR. WILLIAM DOUGLAS: And the Plaintiff 6 rests, Your Honor. 7 THE COURT: All right. Mr. Betty. 8 MR. BF.,:ry: I "..ould like to make a motion at 9 this time. 10 THE COURT: All right. Ladies and ge~tlemen, 11 if you'd like to stand up and stretch, please go ahead. 12 (Whereupon, the following discussion was held 13 at sidebar.) 14 MR. BETTY: If the Court please, I make a 15 motion for a compulsory nonsuit on the basis that 16 Plaintiff's evidence shows just a mere happening of an 17 accident. It called Mr. Furman, the Defendant of -- a 18 Defendant as on cross examination. He's bound by his 19 testimony. And he indicated that he proceeded into the 20 intersection, and it was clear, and his own client 21 contradicted that testimony by saying that he never saw him, 22 and the accident occurred. 23 And the second aspect of my motion is that 24 Plaintiff's claim for medical treatment prior to the time of 25 trial should be stricken since Dr. Danyo never testified 109 ~ 1{ I', ,( ~ " I I , I I, 1 that the treatment was the result of the accident. He said 2 his injuries were a result of the accident. He never stated 3 that his treatment by the physicians in Ohio were a result 4 ot this particular accident. And, likewise, he nevsr stated 5 that his loss of income was a result of the injuries in this 6 accident, although he did say he couldn't do heavy work. 7 THE COURT: All right. Mr. Douglas. MR. WILLIAM DOUGLAS: Your Honor, I don't 8 9 uelieve procedurally the Defendant is entitled td a 10 compulsory nonsuit at this point. The reason being, it's 11 due to the fact that evidenco was presented by the Defendant 12 in the Plaintiff's case-in-chief, and it that is the case, a 13 nonsuit is not proper. 14 THE COURT: That's an interesting point. In 15 any event, The Defendants' motion for a compulsory nonsuit 16 is denied. I noticed that, Mr. Betty, you prepared a 17 written motion to the same etfect as your oral motion. Do 18 you want that tiled of record in this matter? 19 MR. BETTY: Yes. THE COURT: All right. We'll take a brief 20 21 recess and ask you to take that down to the prothonotary's 22 ottice and have it stamped in as of this time, because I 23 don't accept documents for filing. They have to be filed in 24 the prothonotary's office. 25 MR. BETTY: Isn't it just part of the court 110 ~ ,.. 1 transcript, like an exhibit? 2 THE COURT: Your oral motion is, and if 3 that's satisfactory -- 4 MR. BETTY: That's satisfactory. It just 5 reiterates-- 6 THE COURT: But I won't put this in the tile 7 as an official document, because it hasn't been filed. If 8 you want it to be -- 9 MR. BETTY: I better get a stamp then. I'll 10 get a stamp. Where's the prothonotary's office? 11 THE COURT: First floor. 12 HR. BETTY: First floor, okay. 13 MR. WILLIAM DOUGLAS: Your Honor, we'd note 14 our pxocedural objection to the file copy and the oral 15 motion. 16 (Whereupon, the discussion at sidebar 17 concluded, and Mr. Betty exited the 18 courtroom.) 19 THE COURT: Mr. Betty is just getting 20 something clocked in at the prothonotary's Office, so he'll 21 be right back. 2~ (Whereupon, Mr. Betty returned to the courtroom. ) THE COURT: The Plaintiff has rested. Mr. 23 24 25 Betty. 111 ~ ,... 1 HR. BETTY: I'd like to call Mr. Furman back 2 to the stand. 3 THE COURT; All right. 4 Whereupon, 5 CHARLES VINCENT FURMAN 6 having been duly sworn, testified as follows: 7 DIRECT EXAMINATION 8 BY MR. BETTY: 9 Q Mr. Furman, YOU've already testified, having 10 been called in the Plaintiff's case. There's a few 11 questions I still want to ask you with respect to the 12 happening of this particular accident. 13 THE COURT: Would you like that television 14 moved so you can see the witness? 15 MR. BETTY: Please. 16 THE COURT: certainly. 17 (Mr. George Douglas, III, complied.) 18 THE COURT: Thank you, Mr. Douglas. Mr. 19 Betty. 20 BY MR. BETTY: 21 Q What is your educational background? 22 A I graduated from high school with honor.. I 23 took about two years of community college at Richland 24 community college in Delp -- in Richardson, Texas. 25 Q And did you ever serve in the military? 112 ,.. ~ A Q A Q A Q A Q Carriers? A Q Q And then you terminated your employment with Schneider? A Yes, I did. Q And who are you working for now? A LSI, Liquid sugars, Inc. Q And where are they located? A They're located in Dallas, Texas. Q At the time you were a driver for Schneider, where did you live? 113 1 2 ~ ~ A I still lived in Princeton, Texas. On the day of this accident, as you were Q 3 proceeding to make your turn until the time the accident 4 occurred, was there anything wrong with you physically? 5 6 7 8 9 10 A Nothing. Do you wear corrective lenses to drive? Q A No. Q Is your eyesight okay? A Yes. 11 of this accident? Q What were the weather con~itions on the date 12 13 A " prett~ perfect. \, attach~d to your Q I have to agree, they were And the trailer, which was 14 tractor on the day of this accident, was it loaded or 15 unloaded? 16 17 18 19 20 diapers? 21 A A It was loaded. 22 Q Q And what was in it? A Diapers, if I recall. And what was the weight of a full load of Q With the load of diapers, it's 11,000 pounds. So you originally testified that the trailer 23 weighed about 30,000? 24 A 25 Q Correct, trailer and tractor. So loaded on the day of this accident, it was 114 /IIIlll ~ 1 about 41,000 pounds? 2 A Correct. 3 Q Chiet Toomey testified. You were here and 4 you saw him? 5 A Yes, I did, sir. 6 Q Do you remember seeing him at the scene of 7 the accident? 8 A I believe. I'm not sure. I believe I saw 9 him after the accident, and the reason I remember him is 10 because he was the individual that had a radio and was 11 calling for emergency assistance. 12 Q There was another officer who actually 13 investigated the accident? 14 A Yes, a police officer who took the 15 information from my driver's license, logbook, medical card, 16 all that information. 17 Q I'm going to show you -- 18 THE COURT: You'll have to speak into the 19 microphone though. 20 BY MR. BETTY: 21 Q -- DefendantR' Exhibit No.3, and you 22 previously testified, this is a photograph taken in the 23 direction that the Plaintiff was traveling at the time of 24 the accident? 25 A That is correct. 115 ~ ,.,. 1 Q Could you place either a line or an arrow 2 where the front of your tractor was at the time of the 3 impact? 4 5 6 7 8 9 which is a photograph which you previously identified, 10 taking the direction you were going, and I'm going to ask 11 you to do the same thing in that particular photograph? 12 A (Witness complied.) 13 Q And what is your estimation of distance from 14 the white line that shows the extreme right lane ot Route 11 15 to where the front of your tractor was at the time of the 16 impact? 17 A Could you repeat the question, please? 18 Q Could you give an estimate as to the distance 19 from the white line which deliniates the extreme right lane 20 of Route 11 from that point to where the front of your cab 21 was at the moment of impact? 22 A I believe it was 10 feet. 23 Q You previously identified Defendants' Exhibit 24 4, and indicated that it shows the exit ramp from 1-81 that 25 comes out onto Route 11 north. Could you place, whatever A (Witness complied.) Q Put an arrow indicating the direction you were going, please. A (Witness complied. ) Q Now I want to show you Defendants' Exhibit 2, 116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ your preference is, a circle or an x, to show where that exit ramp is? A (Witness complied.) Q I'm going to show you Detendants' Exhibit 5, which you previously indicated shows the entrance and exit ramps of 1-81 and the old exit which was blocked off of 1-81. Could you, with an x, show where the exit ramp that you had previously referred to in your testimony is located in that photograph? THE COURT: Can all of the jurors hear? I think it's a little bit hard, Mr. Betty, for them to hear you in the back there. THE WITNESS: (Complied.) BY MR. BETTY: Q And could you, with a circle, indicate the entrance ramp? A Q A Q To Interstate 81? Um-hum. (Witness complied.) After the accident, you got out of your traotor? A Correct. Q Did you have any conversation with the driver of the van that collided with your tractor? A I don't recall having a conversation with 117 ~ ~ him, but I did have a conversation with his passenger. Q Did Mr. Heipel say anything to you? A Yes, he did. Q Did you say anything to Mr. Heipel? A No. Schneider's polioy at the scene of an 1 2 3 4 5 6 accident is usually that we don't say anything. We just 7 give the information of the tractor, the trailer, our 8 driver's license, our medical cards, logbooks, whatever the 9 police officer at the scene wishes to have. But we try to 10 stay away from speaking with the witnesses -- not witnesses, 11 but speaking with the person that's been involved in the 12 accident unless we have to render help or care or something 13 like that. 14 Q Mr. Heipel testified this morning, and I 15 wrote down what I believe I heard him say about what you 16 said to him. And I believe I heard him say that you said, I 17 thought I killed you guys. Is that true? 18 A It was something similar to that, but it 19 wasn't quoted like that. What had happened was, because of 20 the impact that occurred, I honestly believed, before even 21 getting out of the vehicle, that somebody had gotten killed. 22 That's how the impact was. So when I got out of the 23 vehicle, I immediately noticed the Plaintiff's passenger. I 24 don't know his name. But he was walking away from the van. 25 As he was walking away, I asked him if he was 118 ~ ~ 1 the driver, because I didn't know how many people were in 2 the van. Because of the impact, I wanted to nlake sure 3 everybody was either out of the van or make sure nobody was 4 injured in the van. I asked him if he was the driver. He 5 intormed me, no. I said, where is the driver? He did not 6 have any idea at that time where the driver was. 7 The way I was standing, I could actually see 8 in the van. The two doors of the van were open, so I had a 9 clear view through the van. I did not see any bodies. I 10 didn't see any people or anything like that. I immediately 11 became concerned. While I was making my maneuver towards 12 the van, I believe I made the indication that I said, man, I 13 thought somebody got killed in this accident. I mean, I 14 really thought somebody got killed. 15 I did not state that I -- that it was my 16 fault or anything like that. After I was making that 17 statement, the plaintiff, who was on the other side of the 18 van, he was apparently already assessing the damages of his 19 van, walked around in front of his van, and -- I don't want 20 to be disrespectful to anyone, but as he came around the 21 front of his vlln, the first words out of his mouth to me 22 were, Schneider, I hope you got a lot of f'in money, because 23 this is going to cost you an arm and a leg. 24 There was no indication of concern for his 25 passenger or for my welfare. Apparently -- after he had 119 ~ ,.... 1 made that statement, since we're not supposed to talk to 2 anybody anyway, it was obvious to me that I should not speak 3 with this individual because of possibly future lawsuits, 4 because of, you know, I just felt -- I did not feel 5 comtortable speaking with him because he was obviously 6 upset, and it was not a good idea. 7 Q Were you on the scene of the accident when 8 the investigating police officer arrived? 9 A Yes, I believe I was. 10 Q And did you speak with him? 11 A Yes, I did. 12 Q And did you answer all of his questions? 13 A I didn't hear you. I'm sorry. 14 Q Did you answer all of his questions? 15 A Yes, I did. 16 Q And did you give him your version of how the 17 accidunt happened? 18 A I did. 19 MR. BETTY: I have no further questions. 20 THE COURT: Mr. Douglas. 21 MR. WILLIAM DOUGLAS: I have no questions. 22 THE COURT: You may step down. Thank you. 23 MR. BETTY: If the Court please, I would at 24 this time like to present the testimony of Dr. Boal by means 25 of videotaped deposition. 120 ~ ",. 1 THE COURT: All right, And has the videotape 2 and a transcript of it been marked? 3 MR. BETTY: No. 4 THE COURT: Why don't we take a moment and do 5 that. If you'd like to stand up and stretch, ladies and 6 gentlemen, please go ahead. I'm not sure how long this 7 videotape is. 8 MR. GEORGE DOUGLAS, III: Approximately 30 9 minutes. 10 THE COURT: About 30 minutes, I'm informed. 11 (Whereupon, 12 Defendants' Exhibits Nos. 8 and 9 13 were marked for identification.) 14 THE COURT: I believe these items have now 15 been marked as Defendants' Exhibits -- 16 MR. BETTY: The transcript is Defendants' 17 Exhibit 8, and the videotape is Exhibit 9. 18 THE COURT: All right. And, ladies and 19 gentlemen, the sworn testimony of a doctor by the name of 20 Richard Boal -- I think that's spelled B-o-a-l -- taken by 21 videotaped deposition prior to this trial is about to be 22 presented to you. As with the other videotaped deposition, 23 I need to tell you that the testimony of a witness who, for 24 some proper reason, cannot be present to testify in person 25 may be presented in this form. 121 ~ ~ 1 Such testimony is given under oath and in the 2 presence ot attorneys for the parties who question the 3 witness. A court reporter takes down everything that is 4 said and then transcribes the testimony. The u~e of a videotape permits you to see and hear the witness as he or 6 she appearsd when testified under quest.ioning by counsel. 7 This form of testimony is entitled to neither more nor less 8 consideration by the jury because of the manner of its 9 sUbmission. 10 Are counsel in agreement that our 11 stenographer may be excused from taking the testimony since 12 we have an exhibit which contains the transcript? 13 HR. BETTY: Yes. 14 MR. WILLIAM DOUGLAS: I'm in agreement, Your 15 Honor. 16 THE COURT: Okay. We will let the record 17 indicate that the jury is now viewing the videotaped 18 deposition testimony of Dr. Richard Boal. 19 (Whereupon, the videotaped deposition 20 testimony of Dr. Richard Boal was shown to 21 the jury.) 22 THE COURT: We will let the record indicate 23 that the jury has completed viewing the videotaped 24 deposition of Dr. Richard Boal. 25 MR. BETTY: Your Honor, I move for the 122 ~ ~ 1 admission of all exhibits, one through nine. 2 THE COURT: Well, I think some exhibits had 3 been previously admitted. 4 MR. BETTY: Yes. 5 THE COURT: The ones that I have that have 6 not yet been admitted are Detendants' Exhibits 6, B, and 9. 7 MR. BETTY: So I move tor their admission 8 specifically. 9 THE COURT: All right. Mr. Douglas, do you 10 have any objection to the admission of Defendants' Exhibits 11 6, B, and 9? 12 MR. WILLIAM DOUGLAS: I'm making sure I know 13 what they are. I have no objection, Your Honor. 14 THE COURT: All right. Defendants' Exhibits 15 6, B, and 9 are admitted. 16 (Whereupon, 17 Defendants' Exhibits Nos. 6, B, and 9 18 were admitted into evidence.) 19 MR. BETTY: And the Defendants rest. 20 THE COURT: All right. Mr. Douglas, do you 21 have any rebuttal testimony? 22 MR. WILLIAM DOUGLAS: Just a couple seconds. 23 THE COURT: Sure. Are you calling a witness? 24 MR. WILLIAM DOUGLAS: Yes, Your Honor, I 25 recall Steve Heipel. 123 ~ ~ 1 Whereupon, 2 STEVE HEIPEL 3 having been duly sworn, testified as follows: 4 DIRECT EXAMINATION 5 BY MR. WILLIAM DOUGLAS: 6 Q sir, I just want to ask you about a statement 7 that Dr. Boal made. with respect to the skin on your hands, 8 you stated that he examined you in November of 1997. Is 9 that correct? 10 A Yes, I do believe. 11 Q And I believe he said, six weeks preceding 12 that examination. Had you been involved in any heavy 13 physical manual labor, such as digging ditches, like he 14 suggested? 15 A No. 16 MR. WILLIAM DOUGLAS: I have no further 17 questions. 18 THE COURT: Mr. Betty. 19 MR. BETTY: I have no questions. 20 THE COURT: You may step down. Thank you. 21 MR. WILLIAM DOUGLAS: We have nothing 22 further. 23 THE COURT: Mr. Betty, any surrebuttal 24 testimony? 25 MR. BETTY: No, Your Honor. 124 ~ ~ 1 THE COURT: All right, ladies and gentlemen, 2 this concludes the evidentiary phase ot the casso I need to 3 meet with counsel outside your presence to rule upon the 4 requested points for charge, and when you return, you will 5 hear the closing arguments of counsel and the tinal 6 instructions of the Court and then will retire to 7 deliberate. Even now, do not discuss the case among 8 yourselves, and keep an open mind. We'll see you in about 9 15 minutes. 10 (Whereupon, the jury left at 2:10 p.m.) 11 THE COURT: We will let the record indicate 12 that the Court is in session outside the presence of the 13 jury. With respect to the Plaintiff's requested points for 14 charge, point one will be covered. I noticed, Mr. Douglas, 15 you have an L.1 and an L.2 in front of each number. I'm 16 afraid I'm revealing my ignorance, but I don't know what 17 that means. 18 MR. WILLIAM DOUGLAS: The L.1 and L.2 are 19 just liability points, and then I started with D.1 for the 20 damages points. 21 THE COURT: Thank you. L.1 will be covered. 22 L.2 two will be covered by a simple statement to the jury 23 that the Defendants should be regarded as one entity. D.1 24 will be given. D.2 will be given. D.3 will be given. D.4 25 will be given, assuming counsel are in agreement as to that 125 ~ ~ 1 life expectancy figure. Is there any dispute as to the 2 number given in that point? That is 36.1 years. 3 MR. BETTY: No. 4 THE COURT: All right. I realize, Mr. Betty, 5 you're not conceding that that point should be given as a 6 whole but at least to the 7 MR. BETTY: I'm objecting -- 8 THE COURT: Wait, wait. -- at least as to 9 the number, you are not disagreeing? 10 MR. BETTY: No. 11 THE COURT: D.5 will be cov~red, although I 12 do not believe I will attempt to give a damage figure, but 13 D.6 will also be covered with the same caveat. 14 MR. WILLIAM DOUGLAS: Your Honor, with 15 respect to D.5 and D.6, the number, that was stipulated to 16 by the parties. That's the reason that I request that you 17 give with respect to those. 18 THE COURT: Well, I will send that exhibit 19 out with the jury. Unless, Mr. Betty, you have no objection 20 to my using the number. 21 MR. BETTY: I object to you using the number. 22 I prefer the exhibit go out with the jury. 23 THE COURT: All right. Was there a 24 stipulation as to the amount? 25 MR. BETTY: There wasn't a stipulation to the 126 ~ . 1 amount. I indicated that I had no objection to the amount. 2 I wasn't going to say that the value ot the vehicle was not 3 $4500.00. 4 THE COURT: All right. And D.7 will also be 5 given without a reference to a specific number. D.8 will be 6 given in the language of the standard charge. And D.9 is 7 retused. 8 with respect to the Defendants' requested g points for charge, point one is refused. Point two will be 10 covered generally in the language of the standard charge. 11 Point three will be covered. Point four will be covered in 12 the language of the standard charge. Point five will be 13 given. Point six will be covered in the language of the 14 standard charge. Point seven will be given. Point eight 15 will be covered. Point nine will be covered by telling the 16 jury what the Vehicle Code provides as to a green light. 17 Point 10 will be covered. Point 11 will be covered. Point 18 12 will be covered. point 13 will be covered. Point 14 19 will be covered generally. Point 15 will be covered in the 20 sense that the standard charge language on damages will be 21 given. Point 16 will be covered with the standard language 22 as to burden of proof. Point 17 will be covered. Point 18 23 will be covered using the standard language from the 24 suggested standard civil jury instructions. And Points 19 25 and 19-A will be covered in more general language, 127 ~ --- 1 indicating that a party who has been injured has a duty to 2 mitigate his or her damages. And point 20 is refused as 3 stated. 4 If counsel has any objections, suggestions, 5 or corrections with respect to the charge given, including 6 the rulings that I have just made, counsel should come 7 torward at the conclusion of the Court's charge and place 8 those objections, suggestions, or corrections on the record. 9 otherwise, the objections, suggestions, or corrections will 10 not be considered preserved notwithstanding that I have made 11 these rUlings prior to the charge. We'll 'take a brief 12 recess, and then when we reconvene, we'll hear the closing 13 arguments of counsel. Mr. Douglps __ 14 MR. BETTY: May I ask His Honor a question at 15 this time? 16 THE COURT: Sure. 17 MR. BETTY: In order to avoid any objection 18 by Plaintiff, may I argue to the jury that the Court 19 instruct them with respect to the mitigation of damages 20 that, at a minimum, they can take into consideration the 21 minimum wage that was existing at the time? 22 THE COURT: I don't intend to talk about the 23 minimum wage to the jury. 24 MR. BETTY: Would there be any prohibition 25 for me arguing minimum wage? 128 ~ ~ 1 THE COURT: I don't have that issue in front 2 ot me at this point. All I can say is, I don't intend to 3 tell the jury what the minimum wage is. If you make an 4 argument, and there's an objeotion, I certainly would rule 5 upon it at that time, but at this point I don't know that 6 there would even be an objection to that, that argument. 7 MR. WILLIAM DOUGLAS: Your Honor, while we're 8 still on the record, I would make a motion with respect to 9 the mitigation for a directed verdict. The reason being i~ 10 that Defendant had the burden to prove that my client 11 unreasonably refused medical care for his benefit. I don't 12 believe there's any testimony that he reasonably refused. 13 There's merely been testimony that he didn't have the 14 finanoial means to do so. Therefore, I don't believe that 15 the Defendant has met their burden of proof with respect to 16 mitigation of damages, and we move for a directed verdict. 17 THE COURT: All right. The motion -- do you 18 have a response, Mr. Betty? 19 MR. BETTY: I believe it should be denied in 20 view of the faot that he is under a duty to mitigate his :7.1 damages, period, pursuant to the applicable law, and it's a 22 question for the jury to determine whether or not he did 23 mitigate his damages or whether or not he attempted to 24 mitigate his damages. 25 THE COURT: All right. The motion for a 129 ~ ,.. 1 di~ected verdiot made on behalf of the Plaintift is denied. 2 All right. Let's take a few minutes and gather your 3 thoughts, and then we'll have the closing arguments. 4 (Whereupon, a recess was taken at 2121 p.m. 5 and proceedings reconvened at 2:30 p.m.) 6 THE COURT: Are counsel ready for the jury to 7 be brougrt in? 8 MR. WILLIAM DOUGLAS: Yes, Your Honor. 9 THE COURT: Mr. Betty, are you also ready? 10 MR. BETTY: Pardon? 11 THE COURT: Are you ready for the jury to be 12 brought in? 13 MR. BETTY: Yes. 14 THE COURT: All right. Please bring the jury 15 in. 16 (Whereupon, the jury was brought in.) 17 THE COURT: Welcome back, ladies and 18 gentlemen. This is the time tor the closing arguments of 19 counsel. The Detend8nts go first. Mr. Betty. 20 (Whereupon, Mr. Betty presented closing 21 arguments on behalf of the Defendants.) 22 (Whereupon, Mr. William Douglas presented 23 closing arguments on behalf of the 24 plaintiff.) 25 THE COURT: Thank you, Mr. Douglas. This is 130 '" - 1 the time for the final charge ot the Court. It will take 2 about 40 minutes. Would anybody like a tive-minute recess 3 betore we do that? I think that would be advisable. Even 4 now, ladies and gentlemen, do not discuss the case among 5 yourselves. Keep an open mind, and we'll return in tive 6 minutes. 7 (Whereupon, a recess was taken at 3:21 p.m. 8 and proceedings reconvened at 3:31 p.m.) 9 THE COURT: Are counsel ready for the jury to 10 bo brought in? 11 MR. WILLIAM DOUGLAS: Yes, Your Honor. 12 THE COUR'l': Mr. Betty. 13 MR. BETTY: (Nodded head affirmatively.) 14 THE COURT: Yes? 15 MR. BETTY: Yes. 16 THE COURT: All right. Please bring the jury 17 in. 18 (Whereupon, the jury was brought in.) 19 THE COURT: Welcome back, ladies and 20 gentlemen. This is the time for the final instructions ot 21 the Court. I will talk to you about the stipulation of 22 counsel that the Defendants are to be treated as one entity 23 in this case, about negligence and causation, about the 24 burden of proof, about damages, about some miscellaneous 25 matters, and finally I will give you the concluding 131 ~ ~ 1 instructions. So you can follow the course of the chargo 2 through that outline. The fact that the Defendants are to 3 be treated as one entity, negligence and causation, burden 4 ot proot, damages, some miscellaneous matters, and finally 5 the last part of the instructions. 6 It has bsen stipulated that the Defendants in 7 this case are to be treated as one party. In other words, 8 to the extent that Mr. Furman was negligent and would be 9 liable to the Plaintiff, you are to treat the other 10 Defendant, his employer, the same way. For that reason, I 11 will be reterring to the Defendants as one entity throughout 12 these instructions. 13 Now with respect to negligence and causation, 14 I want to advise you and instruct you as follows: Plaintiff 15 claims that he was injured and sustained damage as a result 16 of the negligent conduct of the Defendants. The Plaintiff 17 has the burden of proving his claims. The Defendants deny 18 the Plaintiff's claims, and assert as an affirmative defense 19 that Plaintiff was himself negligent and that such 20 negligence was a substantial factor in bringing about 21 Plaintiff's injuries. 22 The Defendants have the burden of proving 23 this affirmative defense. Based upon the evidence presented 24 at this trial, the only injuries for you to decide in 25 accordance with the law as I shall give it to you are, 132 ~ ~ 1 first, were the Defendants negligent; second, was the 2 Defendants' negligence a substantial factor in bringing 3 about harm to the Plaintiff; third, was the Plaintiff 4 himself negligent, ~nd was such neglig~nce a substantial 5 factor in bringing about his injuries. And finally, 6 depending upon your answers to those questions, what 7 damages, if any, were sustained by the Plaintiff. 8 The legal term negligence, otherwise known as 9 carelessness, is the absence of ordinary care which a 10 raasonably prudent person would exercise in the 11 circumstances here presented. Negligent conduct may consist 12 either of an act or an omission to act when there is a duty 13 to do so. In other words, negligence is the failure to do 14 something which a reasonably careful person would do or the 1~ doing of something which a reasonably careful person would 16 not do in light of all the surrounding circumstances 17 eotablished by the evidence in this case. It is for you to 18 determine how a reason~bly careful person would act in those 19 circumstances. 20 I used the term ordinary care. Ordinary care 21 is the care a reasonably careful person would use under the 22 circumstances presented in this case. It is the duty of 23 every person to use ordinary care, not only for his or her 24 own safety and the protection of his or her property, but 25 also to avoid injury to ochers. What constitutes ordinary 133 ~ ~ 1 care varies according to the particular circumstances and 2 oondition. existing then and there. The amount of car~ 3 ~.quir.d by the law must be in keeping with the degree of 4 danger involved. In this case the Defendants' claim that 5 the plaintiff was contributorily negligent. contributory 6 negligence is negligence on the part of the Plaintiff that 7 is a substantial factor in bringing about the Plaintiff's 8 injury. 9 The burden is not on the plaintiff to prove 10 his or her freedom from contributory negligence. The 11 Defendant has the burden of proving contributory negligence 12 by a fair preponderance of the credible evidence. You must 13 determine whether the Defendants have proven that the 14 Plaintiff, under all the circumstances present, failed to 15 exercise reasonable care for his own protection. 16 Even if you find that the Plaintiff was 17 negligent, you must also determine whether the Defendants 18 have proven that the plaintiff's conduct was a substantial 19 factor in bringing about the Plaintiff's injury. If the 20 Defendants have not sustained that burden of proof, then the 21 defense of contributory negligence has not been made out. 22 In order for a plaintiff to recover, the Defendants' 23 negligent conduct must have been a substantial factor in 24 bringing about the harm complained of. 25 This is what the law recognizes as legal 134 -- .. 1 cause. A substantial factor is an actual real factor, 2 although the result may be unusual or unexpected, but it is 3 not an imaginary or fanciful faotor or a factor having no 4 conneotion or only an insignifioant connection with the 5 aocident. And you should use the same definition of 6 substantial factor when you are r~viewing the alleged 7 contributory negligenoe of the Plaintiff. 8 The Court has instructed you generally now 9 what you may consider in determining whether the Defendants 10 were negligent, whether the Plaintiff was contributorily 11 negligent, and whether such negligence, if any, was a 12 substantial factor in bringing about the Plaintiff's harm. 13 If you find in accordance with these instructions and thoss 14 instructions which I will give you in a moment about 15 negligence, if you find in accordance with those 16 instructions that the Defendants were negligent and suoh 17 negligence ~as a substantial factor in bringing about the 18 Plaintiff's harm, you must then consider whether the 19 Plaintiff was contributorily negligent. 20 If you find that the plaintiff was 21 contributorily negligent and such contributory negligence 22 was a substantial factor in bringing about his harm, then 23 you must apply the comparative negligence act which provides 24 in section one as follows: The fact that a Plaintiff may 25 have been guilty of contributory negligence shall not bar a 135 ~ ~ 1 recovery by the plaintiff where euch negligence was not 2 greater than that causal negligence of the Defendants. 3 But any damages sustained by the Plaintiff 4 shall be diminished in propor.tion to the amount of 5 negligence attributed to the Plaintiff. Under this act, if 6 you find that the Defendants were causually negligent and 7 you find that the Plaintiff was also causually negligent, it B is your duty to apportion the relative degree of causal 9 negligence between the Defendants and the Plaintiff. In 10 apportioning the causal negligence, you should use your 11 common sense and experience to arrive at a result that is 12 fair and reasonable under the facts of this situation as you 13 have determined them from the evidence. 14 If you find that the Plaintiff's causal 15 negligence was greater than the causal negligence of the 16 Defendants, then the Plaintiff is barred from recovery, and 17 you need not consider what damages should be awarded. If 18 you find that the Plaintiff's causal negligence was equal to 19 or less than the causal negligence of the Defendants, then 20 you must set forth the percentages of causal negligence 21 attributable to the Plaintiff and the percentage of causal 22 negligence attributable to the Defendants. 23 The total of these percentages must be 100 24 percent. You will then determine the total amount of 25 damages to which the Plaintiff would be entitled if he had 136 ~ . 1 not been contributorily negligent. In other words, in 2 finding the amount of damages, you should not consider the 3 degree, if any, of the Plaintiff's fault. After you return 4 the verdict, the Court will reduce the amount of damages you 5 have found in proportion to the amount of causal negligence 6 you have attributed to the Plaintiff. I realize that's a 7 little confusing, but I want to distribute the verdiot slips 8 and just go over them with you, and I think it will be clear 9 at that point. 10 (Whereupon, copies of the verdict slip were 11 distributed to the jurors.) 12 We will let the record indicate that each 13 juror has a copy of the verdict slip. 14 The principles that I went over are really 15 not all that oomplicated, but they are hard to understand 16 when they are simply expressed to you for the first time. 17 The first question for you to decide is, do you find that 18 the Defendants were negligent? If the answer to that 19 question is, no, obviously the Plaintiff hasn't proven his 20 case, and the case is over. 21 So if your answer is, no, you would check 22 that block, and the foreperson would sign the verdict slip 23 and date it, and then you would return to the courtroom to 24 announce the verdict. On the other hand, if your answer is, 25 yes, the Defendants were negligent, then you would go onto 137 ~ ~ 1 question two, and that question is simply, was Defendants' 2 negligence a substantial factor in bringing about the harm 3 to Plaintiff? 4 If your answer to that question is, no, the 5 case is over at that point because the Plaintiff has not met 6 his burden. But if your answer is, yes, then you need to go 7 onto question three, and decide whether the Plaintiff was 8 contributorily negligent. If your answer to that qu~stion 9 is, no, you're at least done with the aspect of the case 10 dealing with contributory negligence, and you can move onto 11 damages. 12 But if your answer to that question is, yes, 13 then you need to go onto q~estion four before you go any 14 further, and decide whether the Plaintiff's contributory 15 negligence was a substantial factor in bringing about his 16 harm. If it wasn't, then the Defendants haven't met their 17 burden as to contributory negligence, and you don't need to 18 go onto question five, which has to do with trying to 19 apportion the degrees of negligence. On the other hand, if 20 your answer to that question is, yes, then you go onto 21 question five, and in this question, you are simply 22 apportioning the amount of negligence, that's causal 23 negligence, and the amount that's attributable to the 24 Defendants. 25 The total has to add up to 100 percent. And 138 ~ . 1 if you find when you've done that, that the amount of causal 2 negligence that you have attributed to the Plaintiff is 3 greater than 50 percent, then the Plaintiff cannot recover, 4 and the case is over. On the other hand, if you haven't 5 found that it is greater than 50 percent, you need to move 6 onto question six, which is the damage question, and you 7 simply have to state the amount of damages, if any, that you 8 find that Plaintiff sustained as a result uf the Defendants' 9 negligence. 10 You do not try to apportion that according to 11 your apportionment of negligence in question five. The 12 Court does that as a mathematical computation later on. So 13 once you've reached a verdict, then the foreperson would 14 sign the verdict slip and date it, and you would return to 15 the courtroom. So that's a brief look at the verdict slip, 16 and I'll ask Mr. Hursen to collect these, and I will 17 continue on with the instructions. 18 There are a couple of other points that I 19 need to make about negligence, and one of them involves what 20 is called negligence per se. As you know, the legislature 21 in the Commonwealth passes legislation, and it's the 22 obligation of people who are drivers in the Commonwealth to 23 obey the laws of the commonwealth, so I want to go over some 24 of the legislative provisions that have been passed. 25 An Act of Assembly of this Commonwealth in 139 ~ . 1 effect at the time this accident occurred provided in part 2 as follows: The driver of a vehicle intending to turn left 3 within an intersection shall yield the right of way to any 4 vehicle approaching from the opposite direction which is so 5 close as to constitute a hazard. Another Act of Assembly of 6 this Commonwealth in effect at the time this accident 7 occurred provided in part as follows: Upon a roadway, no 8 person shall turn a vehicle or move from one traffic lane to 9 another unless and until the movement can be made with 10 reasonable safety. 11 Another Act of Assembly of this Commonwealth 12 in effect at the time this accident occurred provided in 13 part as as follows: Vehicle traffic facing a circular green 14 signal may proceed straight through or turn right or left, 15 unless a signal in such place prohibits either such turn 16 except that the vehicle traffic including vehicles turning 17 right or left shall yield the right-of-way to other vehicles 18 and to pedestrians lawfully within the intersection or in an 19 adjacent crosswalk at the time the signal is exhibited. 20 And finally, it is and was at the time of the 21 accident the law of the Commonwealth that a person who is 22 driving a vehicle on a public highway must obey the speed 23 limit. If you find that there was a violation of any of 24 these provisions, you must find that the driver who 25 committed the violation was negligent as a matter of law. 140 ~ . 1 However, before you answer the question of the effect of 2 this violation upon liability, you must determine whether 3 this negligence was a substantial factor in bringing about 4 Plaintiff's injury. 5 The last thing I want to mention about 6 negligence and causation is that the mere happening of an 7 accident does not necessarily show negligence. Obviously, 8 some accidents happen without anyone's being at fault. Now 9 I want to move on to the burden of proof. 10 In all civil cases, such as this one, the 11 Plaintiff has the burden of proving those contentions which 12 entitle him or her to relief. When a person or party has a 13 burden of proof on a particular issue, his or her contention 14 on that issue must be established by a fair preponderance of 15 the evidence. The evidence establishes a contention by a 16 fair preponderance of the evidence if you are persuaded that 17 it is more probably accurate and true than not. 18 To put it another way, think, if you will, of 19 an ordinary balance scale with a pan on each side. Onto one 20 side of the scale, place all of the evidence favorable to 21 the Plaintiff. Onto the other, place all of the evidence 22 favorable to the Defendants. If, after considering the 23 comparable weight of the evidence, you find that the scales 24 tip ever so slightly or to the slightest degree in favor of 25 the Plaintiff, your verdict must be for the Plaintiff. If 141 ~ -- 1 the scales tip in favor of the Defendants or are equally 2 balanced, your verdict must be for the Defendants. 3 In this case the Plaintiff has the burden of 4 proving that the Defendants were negligent, that their 5 negligence was a substantial factor in causing his injury, 6 and that he suffered damages as a result. As I mentioned, 7 the Defendants have the burden of proving contributory 8 negligence on the part of the Plaintiff, and that the 9 contributory negligence was a substantial factor in bringing 10 about the Plaintiff's harm. 11 Now we're at the point of the charge dealing 12 with damages. Damages, like other contentions of the 13 Plaintiff, have to be proven by a preponderance of the 14 evidence, and they may not be -- an award of damages may not 15 be based upon mere speculation or conjecture. If you find 16 that the Defendants are liable to the Plaintiff, you must 17 then find an amount of money damages you believe will fairly 13 and adequately compensate the Plaintiff for all the physical 19 and financial injury he has sustained as a result of the 20 accident. 21 The amount you award today must compensate 22 the Plaintiff completely for damage sustained in the past as 23 well as damage the Plaintiff will sustain in the future. 24 The damages recoverable by the Plaintiff in this case and 25 the items that go to make them up, each of which I will 142 ~ A 1 discuss separately, are as follows: past medical expenses, 2 future medical expenses, past lost earnings and earning 3 capacity, past pain and SUffering, future pain and 4 SUffering, loss of the enjoyment of life, and property 5 damage. 6 with respect to medical expenses, I want to 7 instruct you as follows: The Plaintiff is entitled to be 8 compensated in the amount of all medioal expenses reasonably 9 incurred for the diagnosis, treatment, and cure of his 10 injurieB in the past. These expenses have been given to you 11 as far as the Plaintiff's oontentions go, and I believe they 12 appear on an exhibit which will go out with you. The 13 Plaintiff is also entitled to be oompensated for all medioal 14 expenses which you find he will reasonably incur in the 15 futurs for the treatment and care of his continuing 16 injuries. 17 The Plaintiff is entitled to be oompensated 18 for the amount of earnings that he has lost up to the time 19 of the trial as a result of his injuries. This amount is 20 the difference between what he probably could have earned 21 but for the harm and any less sum which he actually earned 22 in any employment. The Plaintiff is also entitled to be 23 fairly and adequately compensated for such physical pain, 24 mental anguish, discomfort, inconvenience and distress as 25 you find he has endured from the time of the accident until 143 ~ ~ 1 today. 2 The Plaintiff is also entitled to be fairly 3 and adequately compensated for such physical pain, mental 4 anguish, discomfort, and inconvenience and distress as you 5 believe he will endure in the future as a result ~f his 6 injuries. The Plaintiff is also entitled to be fairly and 7 adequately compensated for past, present, and future loss of 8 his ability to enjoy any of the pleasures of life as a 9 result of his injuries. 10 Finally, the Plaintiff is entitled to be 11 compensated for the harm done to his property. If you find 12 that the property was a total loss, damages are to be 13 measured by either its market value or its special value 14 from the Plaintiff, whichever is greater. Again, I believe 15 you will have an exhibit which states the property damage 16 which the Plaintiff indicates he suffered through the loss 17 of his vehicle. 18 still on the subject of damages, I need to 19 advise you as follows: If you find that the Plaintiff's 20 injuries will continue beyond today, you must determine the 21 life expectancy of the Plaintiff. According to statistics 22 compiled by the United states Department of Health, 23 Education, and Welfare, the average life expectancy of all 24 persons of the Plaintiff's age at the time of the accident, 25 sex, and race, was 36.1 years. 144 ~ . 1 This figure is offered to you only as a 2 guide, and you are not bound to accept it if you believe 3 that the Plaintiff would have lived longer or less than the 4 average individual in his category. In reaching this 5 decision, you are to consider the Plaintiff's health prior 6 to the accident, his manner of living, his personal habits, 7 and other factors that may have affected the duration of his 8 life. 9 Finally on the subject of damages, there is a 10 duty on the part of a Plaintiff to mitigate damages if it 11 can be reasonably done. That means that a person is under 12 an obligation to reduce the degree of damages that he or she 13 would otherwise suffer, but only to the extent that it would 14 be reasonable to do so. 15 Now we are up to to the miscellaneous part of 16 the charge of the Court, and I want to instruct you first 17 about expert testimony. You will recall that two witnesses 18 in this case gave testimony as to their qualifications as 19 experts in the field of orthopedic surgery. A witness who 20 has special knowledge, Skill, experience, training, or 21 education in a particular science, profession, or occupation 22 may give his or her opinion as an expert as to any matter in 23 which he or she is skilled. In determining the weight to be 24 given to his or her opinion, you should consider the 25 qualifications and reliability of the expert and the reasons 145 ~ . 1 given for his or her opinion. 2 You are not bound by an expert's opinion 3 merely because he or she is an expert. You may accept or 4 reject it, as in the case of other witnesses. Give it the 5 weight, if any, to which you deem it entitled. In general, 6 the opinion of an expert has value only when you accept the 7 facts upon which it is based. This is true whether the 8 facta are assumed hypothetically by the expert or they come 9 from his or her personal knowledge, from some other proper 10 source, or from some combination of these. 11 In resolving any conflict that may exist in 12 the testimony of expert witnesses, you are entitled to weigh 13 the opinion of one expert against that of another. In doing 14 this, you should consider the relative qualification and 15 reliability of the expert witnesses as well as the reasons 16 for each opinion and the facts and other matters upon which 17 it was based. 18 Questions are sometimes asked of expert 19 witnesses where the witness is invited to assume that 20 certain facts were true and to give an opinion based upon 21 that assumption. These are called hypothetical questions. 22 If you find that any material fact assumed in a particular 23 hypothetical question has not been established by the 24 evidence, you should disregard the opinion of the expert 25 given in response to that question. 146 A .. 1 By material fact, we mean one that was 2 important to the expert in forming his or her opinion. 3 Similarly, if the oxpert has made it clear that his opinion 4 or her opinion i, based on the assumption that a particular 5 fact did not exist, And from the evidence you find that it 6 did exist and that it WAS material, you should give no 7 weight to the opinion so expressed. 8 This is the last miscellaneous matter that I 9 want to instruct you on. The number of witnosses offered by 10 one side or the other does not in itself determine the 11 weight of the evidence. It is a factor, but only one of 12 many factors which you should consider. Whether the 13 witnesses appeared to be biased or unbiased or whether they 14 are interested or disinterested persons are among the 15 important factors which go to the reliability of their 16 testimony. 17 The important thing is the quality of the 18 testimony of eAch witness. In short, the test is not which 19 side brings the greater number of witnesses or presents the 20 greater quantity of evidence, but which witness or witnesses 21 And which evidence you consider most worthy of belief. Even 22 the testimony of one witness may outweigh that of many if 23 you have reason to believe his or her testimony in 24 preference to theirs. 25 Obviously, however, where the testimony of a 147 ~ -- 1 witness appears to be of the same quality, the weight of 2 numbers assumes particula~ significance. Now this is the 3 last portion of the instructions. I've now outlined for you 4 the rules of law applicable to this case and the need for 5 you to weigh the evidence and determine the facts. Upon the 6 conclusion of my instructions, you will retire to consider 7 your verdict. 8 You must determine the facts from all the 9 testimony that you have heard and the other evidence whioh 10 has been received during this trial. You are the sole 11 judges of the facts. In that area, neither I nor anyone 12 else may infringe upon your responsibility. Any comments I 13 may have made as to my recollection of the evidence during 14 the trial or in these instructions may be disregarded 15 entirely by you, if your recollection of the evidence is 16 different from mine since you are the sole judges of the 17 facts. 18 On the other hand, and with equal emphasis, I 19 instruct you that you must accept the rules of law as I have 20 given them to you and apply that law to the facts you have 21 found. The attitude and conduct of the jurors at the outset 22 of their deliberations are matters of considerable 23 impo~tance. Upon retiring to the jury room, your 24 deliberations should begin and proceed in an orderly 25 fashion. 148 ~ ~ 1 Your first order of business in the jury room 2 will be to select one of you as foreperson to preside over 3 your deliberations. The foreperson's vote is entitled to no 4 greater weight than that of any other juror. If, in the 5 course of your deliberations, you should find yourselves in 6 serious doubt conoerning some portion of my instructions to 7 you on the law, it is your privilege to return to the 8 courtroom for further instructions. 9 In such event, you would transmit a note to 10 me through Ms. Hench, the tipstaff, signed by your 11 foreperson. No juror should attempt to communicate with the 12 Court by any means other than a signed writing, and the 13 Court will not communicate with any juror on any subject 14 touching the merits of the case otherwise than in writing or 15 orally here in open court. 16 You should not at any time reveal even to the 17 Court how the jury stands numerically until you have re~ohed 18 a verdict. Your function to reach a fair conclusion from 19 the evidence and the applicable law is an important one. 20 Your verdict should be reached only after careful and 21 thorough deliberation, in the course of which you should 22 consult with each other and discuss the evidence and 23 reasonable inferences to be drawn therefrom freely and 24 fairly in a sincere effort to arrive at a just verdict. 25 It is your duty to consider the issues with a 149 ~ . 1 view toward reaching an agreement, if you can do so without 2 violating your individual judgment and your conscience. 3 You must each decide the case for yourself, 4 examining the issues and the evidence with candor and 5 frankness and with proper deference to and regard for the 6 opinions of each other. Mature consideration requires that 7 you be willing to re-examine your own views and change your 8 opinion, if convinced that it lacks merit or validity. 9 While maintaining this flexibility, you are not required to 10 surrender your honest conviction as to the weight or effect 11 of the evidence solely because of another juror's opinion or 12 for the mere purpose of returning a verdict. 13 Your verdict must represent the jury's 14 considered final judgment. While it is important that the 15 views of each of the jurors be considered, it is not 16 necessary under the laws of this Commonwealth that your 17 verdict be unanimous. 18 By an act of the Pennsylvania legislature, a 19 verdict in a civil case rendered by at least five-sixth of 20 the jury shall constitute the verdict of the jury and shall 21 have the same effect as a unanimous verdict of the jury. 22 Consequently, when, after your deliberations, at least ten 23 of your number have agreed upon a verdict, that decision 24 shall constitute the verdict of the jury. 25 You'll then inform Ms. Hench that the jury 150 ~ .. 1 has reached a verdict, so that you can be returned to the 2 courtroom to render your verdict. Keep in mind that the 3 dispute between the parties is for them a most serious 4 matter. They and the Court rely upon you to give full and 5 conscience deliberation and consideration to the issues and 6 evidence before you. You should not allow sympathy or 7 prejudice to influence your deliberations. 8 You should not be influenced by anything 9 other than the law and the evidence of the case. All the 10 parties stand equally before the court, and each is entitled 11 to the same fair and impartial treatment at your hands. 12 Does either counsel have any suggestions, objections, or 13 corrections with respect to the charge? 14 (Whereupon, the following discussion was held 15 at sidebar.j 16 THE COURT: Mr. Betty. 17 MR. BETTY: I am requesting that His Honor 18 reconsider his refusal of point nine where you said it would 19 be covered. I think that the jury needs to be instructed 20 with respect to the right and the type of rights that a 21 green light denotes. I also am requesting that the Court 22 reconsider its rulings on points 19, 19-A, and 20. Twenty 23 was refused. 24 I don't think the charge, as given, 25 adequately instructs the jury with respect to mitigation of 151 ~ - 1 damages. It applies to both medical treatment and injuriea 2 aa well as employment and the ability to find, based upon 3 the testimony that had been presented, particularly with 4 respect to Drs. Danyo and Boal, that Mr. Heipel is capable, 5 haa been capable of doing light and moderate work. 6 THE COURT: All right. Mr. Douglas, do you 7 have a response to those points? Do you feel that the Court 8 should i~struct further on them? 9 MR. WILLIAM DOUGLAS: No, Your Honor, and the 10 reason being, with respect particularly to the mitigation of 11 damages, it's my understanding that the Plaintiff is not 12 barred from a full recovery by the fact that it would have 13 been reasonable for him to make expenditures or subject 14 himself to being a risk. It is only when he is unreasonable 15 in refusing or failing to take action to prevent further 16 loss that his damages are curtailed. 17 I believe the term that you used is 18 reasonableness. I think that the Defendant has to prove 19 something more with respect to the mitigation. With respect 20 to the wage issue, it's my understanding historically, when 21 that has been applied is when you have a situation -- how 22 can I put this -- when you have a situation where a person 23 is permanently disabled and chooses not to work. However, I 24 don't believe during the pendency of the litigation, an 25 individual is required to go and find a lesser paying job 152 -- -- 1 pending medical treatment which may take them back to their 2 former employment. 3 THE COURT: Well, I think the Court'. 4 instructions were adequate on the points, and I will note 5 the objections for purposes of the record. Mr. Douglas, do 6 you have any suggestions, objections, or corrections with 7 respect to the charge? 8 MR. WILLIAM DOUGLAS: I just have one ooncern 9 with respect to the literal reading of the comparative 10 negligence act. It sounded as if the jury is to diminish 11 any potential verdict by the amount of the causal negligence 12 they may attribute to the Plaintiff. 13 THE COURT: I think I was pretty clear that 14 they were not to do that. 15 MR. BETTY: Yeah, that's absolutely right. 16 He said they're not to. The Court will do that as a matter 17 of mathematics. 18 MR. WILLIAM DOUGLAS: Okay. I was just 19 concerned. 20 THE COURT: okay. And as far as the exhibits 21 go, I'll send them all out except Dr. Boal's report and the 22 transcript and videotapes from the two depositions. 23 MR. BETTY: Okay. 24 (Whereupon, the discussion at sidebar 25 concluded.) 153 -- .. 1 THE COURT: Ladies and gentlemen, with 3 re.pect to the exhibits which will be sent out with you, you 3 will receive Defendants' Exhibits 7, 1, 3, 2, 4, 5, 4 Plaintiff's Exhibits 1, 2, 3, 4, 5, 6, and 7, as well a. 5 Defendants' Exhibit 6 and Plaintiff's Exhibit 11. Now the 6 only item remaining is to thank the two alternate jurors for 7 their service in this case, Mr. Keck and Ms. Benner. 8 I want to thank you very much for your 9 service during these two days. Everybody stayed healthy, so 10 it won't be necessary to~ you to retire to deliberate. And 11 I'll thank you a little more formally when your fellow 12 jurors have retired to deliberate, but I did want to do that 13 in front of the regular jurors. You are excused, but I'll 14 ask you to stay in place for a moment. We'll let the record 15 indicate that the jury is retiring now to deliberate. 16 If you find that you would like to come back 17 tomorrow and continue deliberations, jUGt let us know, and 18 we'll accommodate you on that point. If you find that you 19 would like to stay here and would like dinner ordered, we 20 will do that also. So that's entirely up to you. With 21 that, we'll let the record indicate that the regular jury is 22 retiring to deliberate. 23 (Whereupon, the jury left to deliberate at 24 4:19 p.m.) 25 THE COURT: Mr. Keck and Ms. Benner, again 154 ~ ~ 1 thank you very much for your service in the case. If you'd 2 like to know how this case turns out and you don't find out 3 some other way, please feel free to call my office and just 4 say you were an alternate juror and you were curious about 5 the result. I have been asked to ask you to return tomorrow 6 at 1:30 to the jury assembly room. Apparently at that point 7 another jury is to be selected. Thank you again very much. 8 You are excused. 9 Will counsel let my secretary know where you 10 are going to be. If you're not right around here, let us 11 know. 12 (Whereupon, a recess was taken at 4:20 p.m. 13 and proceedings reconvened at 4:40 p.m.) 14 THE COURT: Are counsel ready for the jury to 15 be brought in? 16 MR. WILLIAM DOUGLAS: Yes, Your Honor. 17 MR. BETTY: Yes, Your Honor. 18 THE COURT: All right. Please bring the jury 19 in. 20 (Whereupon, the jury was brought in.) 21 THE COURT: Welcome back, ladies and 22 gentlemen. It has been indicated that you would like to go 23 home tonight and return tomorrow to continue deliberations, 24 and that's fine. During this adjournment, of course, you 25 must not discuss the case with anyone nor attempt to 155 .- . 1 investigate it. And when you return tomorrow morning, I 2 will ask you to return at 8:45. 3 There is another jury that is coming into 4 that room at 9100, and so w. n..~ to make .ur. both juri.. 5 aren't arriving at the sam. time, and we will, of cours., 6 accommodate both juries in the process. But with your 7 indulgence, I'll ask you to return at 8:45 to that room that 8 you are deliberating in. I will ask you not to resume your 9 deliberations until you have been brought into open court. 10 That makes for a cleaner record, and it also assures the 11 jurors who may arrive later than others that no 12 deliberations are taking place in their absence. 13 So I will ask you to return tomorrow at 8:45. 14 We will need to get the exhibits back into the 15 stenographer's hands and the unfilled out verdict slip. And 16 you're excused until 8:45 tomorrow morning. 17 (Whereupon, proceedings adjourned at 18 4:42 p.m.) 19 20 21 22 23 24 25 156 .. . 1 July 8, 1998 2 Courtroom No. 1 3 8155 a.m. 4 THE COURT 1 We will let the reoord indicate 5 that the Court has reconvened, and I think Mr. Betty has 6 been delayed, but we need to get started and get the jury 7 deliberating again because another jury is coming in in a 8 few minutes in Another case. Please bring the jury in. 9 (Whereupon, Mr. Betty entere4 the courtroom.) 10 THE COURT: We will let the record indicate 11 that Mr. Betty has just arrived. 12 (Whereupon, the jury was brought in.) 13 THE COURT: Good morning, ladies and 14 gentlemen. We will let the record indicate that the jury 15 has now reassembled to resume deliberations in the case of 16 HeiDel v. Schneider National Carriers. Inc.. and Charles 17 Vincent Furman. The Court understands that the jury has 18 requested d black board or something of that sort to work 19 with, and I believe that has been furnished to you. And 20 with that, we will ask you to retire and resume your 21 deliberations. 22 (Whereupon, the jury left to resume 23 deliberations at B:55 a.m.) 24 (Whereupon, proceedings reconvened at 25 10:40 a.m.) 157 " -- 1 THE COURT: We will let the record indicate 2 that the Court has reconvened in the case of HeiDel v. 3 Schneider National Carriers. Inc.. and Charles Vincent 4 Furman at No. 96-3237 CIVIL TERM. The Court understand. 5, that the jury do.. have a verdict. Are counsel ready for 6 the jury to be brought in? 7 MR. WILLIAM DOUGLAS: Yes, Your Honor. 8 MR. BETTY: Yes, Your Honor. 9 THE COURT: All right. Please bring the jury 10 in. 11 (Whereupon, the jury was brought in.) 12 THE COURT: Welcome back, ladies and 13 gentlemen. Mr. Jumper, would you please stand and give your 14 juror number? 15 THE FORPERSON: Juror number 11. 16 THE COURT: And without telling me what it 17 is, has the jury reached a verdict in this case? 18 THE FOREPERSON: Yes, it has. 19 THE COURT: Would you please hand that 20 verdict slip to Mr. Hursen and have a seat for a moment. 21 (Complied.) 22 THE COURT: And I will return this to the 23 foreperson and ask all the jurors to stand. Hr. Foreperson, 24 in the case of HeiDel v. schneider National Carriers. Inc.. 25 and Furman, has the jury reached a verdict with respect to 158 -- " 1 question one? 2 THE FOREPERSON: Yes, it has, Your Honor. 3 THE COURT: That question was, do you find 4 that Defendants were negligent? What is the answer that the 5 jury reached? 6 THE FOREPERSON: The answer is, yes. 7 THE COURT: Ladies and gentlemen, so say at 8 least ten of you, that- the answer to question number one is, 9 yes? 10 THE JURY: Yes. 11 THE COURT: Thank you. Mr. Foreperson, with 12 respect to question number two, has the jury reached a 13 verdict? 14 THE FOREPERSON: Yes, it has, Your Honor. 15 THE COURT: That question was, was 16 Defendants' negligence a substantial factor in bringing 17 about the harm to Plaintiff? What was the jury's answer to 18 that question? 19 THE FOREPERSON: The answer is, yes, Your 20 Honor. 21 THE COURT: Thank you. Ladies and gentlemen, 22 so say at least ten of you, that the answer to question 23 number two was, yes? 24 THE JURY: Yes. 25 THE COURT: Thank you. Mr. Foreperson, with 159 ~ .. 1 respect to question number three, has the jury reached a 2 verdict? 3 THE FOREPERSON: Yes, Your Honor. 4 THE COURT: And that question was, was S Plaintiff steve P. Heipel contributorily negligent? What 6 was the answer to that question? 7 THE FOREPERSON: The answer is, yes, Your 8 Honor. 9 10 11 12 13 14 15 16 THE FOREPERSON: Yes, Your Honor. 17 THE COURT: That question was, was Plaintiff 18 steve P. Heipel's contributory negligence a substantial 19 factor in bringing about his harm? What was the jury's 20 answer to that question? 21 THE FOREPERSON: The answer is, yes, Your 22 Honor. 23 THE COURT: Thank you. Ladies and gentlemen, 24 so say at least ten of you, that the answer to question 25 number four was, yes? THE COURT: Ladies and gentlemen, so say at least ten of you, that the answer to question number three was, yes? THE JURY: Yes. THE COURT: Thank you. Mr. Foreperson, with respect to question number four, has the jury reached a verdict? 160 ~ .. 1 THE JURY: Yes. 2 THE COURT: Thank you. With respect to 3 question number five, Mr. Foreperson, has the jury reached a 4 verdict in apportioning the causal negligence between the 5 Defendants and the Plaintiff? 6 THE FOREPERSON: Yes, Your Honor. 7 THE COURT: And with respect to the 8 percentage of causal negligence attributable to Defendants, 9 what was the jury's verdict? 10 THE FOREPERSON: We found the Defendant 10 11 percent guilty, the Plaintiff 90 percent guilty. 12 THE COURT: All right. Ladies and gentlemen, 13 so say at least ten of you, that the percentage of causal 14 negligence attributable to the Defendants was 10 percent and 15 the percentage of causal negligence attribut~ble to the 16 Plaintiff was 90 percent? 17 THE JURY: Yes. 18 THE COURT: Thank you. For that reason, Mr. 19 Foreperson, did the jury not go on to award damages because 20 it had found that the causal negligence of the Plaintiff was 21 more than 50 percent? 22 THE FOREPERSON: That's correct, Your Honor. 23 THE COURT: All right. Ladies and gentlemen, 24 so say at least ten of you, that that is also correct? 25 THE JURY: Yes. 161 -- ~ 1 THE COURT: Thank you. Please be seated. ~ And we will let the verdict be recorded. 3 (Whereupon, the verdiot was recorded at 4 10:45 a.m.) 5 THE COURT: Ladies and gentlemen, I want to 6 thank you very much for your servioe in this case. And I 7 know that the attorneys also thank you for your service, and 8 so do the parties. Your service is over for this term. 9 Thare is another jury, I think, to be selected, but there 10 are enough jurors for that pool that we do not need to ask 11 you to continue your service, so thank you very much, and 12 you are excused. This case was very nicely tried, and I 13 want to thank the attorneys and the parties, and court's 14 adjourned. 15 (Whereupon, the proceedings adjourned at 16 10:46 a.m.) 17 18 19 20 21 22 23 24 25 162