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which is not the result of his Ilwn negligence. he is nllt responsihle if her makes a mistake in
judgment in getting out. e\'en if it wlluld ha\e been beller ifhe had time tll deliberate. Lewis \'.
Mellor. 259 Pa. Super, 509. 526. 393 A.2d 1)..1 (19781. Troutman \" Tahh. 285 (la. Super, 353.
360.427 A,2d 673 (1981 I, Rosatav, Nationwide Insurance Co.. 263 Pa, Super, 3..0. 3.... n.1.
397 A.2d 1238 (19791.
21. ia that negligence may not be implied because of a
failure to act so as to a\'oid a gerous situatilln arising so suddenly and unex~'Ctedly that there
was no opportunity to a
hend the situation and tll act according to the exigency. When onc
sition of danger which is nllt the result of his ncgligcncc. he is not
responsible i e makcs a mistake in judgmcnt in attempting to get out of it. An honest exereise
nt is all that is requif\-d of him. even if he could ha\'e done better had he had timc to
.berate. l.iuzzo v. McKav. 396 Pa, 183. IS::! A.2d ::!65 (19591. Unanl.!st \'. Whitehouse. 235
Pa. Superior Ct. "58. 344 A.2d 695 (19751.
2::!. The defendant claims that the plaintiff was contributory negligent. Contributory
negligence is negligencc on the part of a plaintilT that is a suhstantial factor in hringing about the
plaintiffs injury, The bunko is not on the plainlilTto pro\'c her fm.-dom fnl/tl contributor)'
negligence, The defendant has the burdt:n of prm'ing contributory Ih.'glil,'l:nce by a fair
preponderance of the cmIible e\'idmx. You must detennine \\hethcr the dcfcndant has pro\C1l
that the plaintiff. under all the circumstances present. faik-d to exercise reasonable care for his
own protection:
The defendant C\mtentls that p1aintitl' lkmadine Ckprer faikd to exen:ise re:uonabIe
cart for her ll\\ n !!oilli.'t} in the t~'" t\f ber \ rlIkk If) oulintl b) a \'f\-rofItlcrancC' of the
e\ ~~ tMt rtaintiO. ('~ laikd to C'..ercise ~>NbI.: care in hecli~ \\aminis about the
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PLAINTIFFS' POINT FOR CHARGE NO, 2
In civil cases such as this one, the plaintiff has the burden
of proving those contentions which entitle her to relief.
When a party has the burden of proof on a particular issue,
her contention on that issue must be established by a fair
preponderance of the evidence.
The evidence establishes a
contention by a fair preponderance of the evidence if you are
persuaded that it is more probably accurate and true than not.
To put it another way. think, if you will. of an ordinary
balance scale, with a pan on each side.
Onto one side of the
scale, place all of the evidence favorable to the plaintiff; onto
the other. place all of the evidence favorable to the defendant.
If. after considering the comparable weight of the evidence you
feel that the scales tip, ever so slightly or to the slightest
degree. in favor of the plaintiff, your verdict must be for the
plaintiff. If the scales tip in favor of the defendant, or are
equally balanced. your verdict must be for the defendant.
In this case. Mrs. Clepper has the burden of proving that Mr.
Nelson was negligent and that his negligence was a substantial
factor in bringing about the accident. If. after considering all
of the evidence. you feel persuaded that these propositions are
more probably true than not true, your verdict must be for Mrs.
Clepper.
Pa. SSJI
Otherwise, your verdict
J
tClv. tIS. J 8.,de. of
should be for the Defendant.
Proof.
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PLAINTIFFS' POINT FOR CHARGE NO.6
The law provides that an operator of a motor vehicle must
travel at a speed that is consistent with existing road conditions.
Thus, the operator of a motor vehicle traveling in adverse weather
conditions must travel at a speed that will permit him to control
his vehicle.
Smith v. Brooks, 394 Pa. Super 327, 575 A.2d 926 (1990), ~
ali2. 75 Pa.C.S.A. 53361.
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PLAINTIFFS' POINT FOR CHARGE NO. 14
Under Pennsylvania law, Mrs. Clepper may recover non-economic
loss damages (pain and suffering) in this case if she can show by
the greater weight of the evidence:
(11 Mr. Nelson was negligent in one or more ways as I
described to you in my instructions.
(2) Mr. Nelson's negligence was a substantial factor in
bringing about Mrs. Clepper's injury.
(31 Mrs. Clepper's injury resulted in non-economic damages.
(41 Mrs. Clepper suffered a serious .: U l impairment of
a body function.
To decide this last and additional element of proof, you must
decide, based upon the evidence,
(11 Whether the injuries sustained by Mrs. Clepper in the
accident injured or impaired one or more body functions.
(21 Whether that injury or impairment of a body function was
serious.
In determining whether the injury or impairment of a body
function was serious, you should consider such factors as the
extent of the impairment, the particular body function impaired,
the length of time the impairment lasted, the treatment required to
correct the impairment, and any other relevant factors.
An impair1'l\ent need not be peI1lloJ.nent to be serious.
The terms"serious' . i"r'. "irnpair1'l\ent." and "body function"
have no special or technical meaning ir.. the law and should be
considered by you in the ordinary sense of their cOllllllOn usage.
Pa, SSJI IClv.1 56.020 and 1~ Pa.C.S,A. 51704.
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PLAINTIFFS' POINT FOR CHARGE NO. 30
In calculating the amount of Mrs. Clepper's loss of future
earning capacity, you must include the entire amount without any
attempt to reduce the amount to its present value.
Raczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980).
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1
2 NAME
3 BRUCE GOODMAN, M.D.
. BY: MR. LUTZ
5 BY: MR. HILDABRAND
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WITNESSES
DIRECT
CROSS
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BRUCE GOODMAN, M.D., called as a witness, being
duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. LUTZ:
Q For the record, would you please state your name?
A Bruce Goodman,
Q Your profession?
A I am a physician, medical doctor,
Q I understand you are an orthopedic physician?
A Yes,
Q How long have you been an orthopedic surgeon,
doctor?
A I finished my training in 1960, and have been in
Harrisburg since 1960,
Q Would you please summarize for the jury your
educational background and your training?
A I am a graduate of the Jefferson Medical College
in Philadelphia. I interned at the Jefferson Medical
College in Philadelphia and did a five year graduate
prQ9ram.
I spent a year as the chief resident in
orthopedic surqsry at the State Hospital for crippled
Children in Elilabethtown.
I ca.. into Harriaburq in 1960 and vas on the
staff at Elilabethtown as one of the clinic chiefs, and t
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worked out of the Harrisburg Hospital, ultimately the Holy
Spirit Hospital, and today I am on the staff of the
Harrisburg Hospital, Polyclinic Hospital, Holy spirit
Hospital and Rehab Hospital.
I have confined my practice to orthopedic
surgery,
Q Over the years, have you come to treat people
that have been involved in motor vehicle accident trauma?
A Yes,
MR. LUTZ: At this point, I am going to move to
have Dr. Goodman admitted as an expert in orthopedic surgery
and ask if there are any questions on qualifications?
MR. HILDABRAND: I have no questions regarding the
doctor'. qualifications.
BY MR. LUTZ:
Q Doctor, we're now going to direct our questions
to the care and treatment that you provided to Hrs.
Clepper.
When did you first meet Hrs. Clepper?
A Hrs. Clepper was originally evaluated by me on
the 12th of Hay of this year.
Q At that point in time, did you obtain a hi.tory
fros her?
A
Q
Ve.,
Did you also have sose medical records?
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A I did.
Q Could you tell us, generally speaking, what
recorda that you had?
A I had office notes from Dr. Douglas Sanderson,
her attending physician for many years.
Q And did you obtain a history directly from Mrs.
Clepper?
A Yea.
Q Could you tell the jury what Mrs. Clepper told
you had happened?
A She told me that ahe sustained an injury
subsequent to being impinged, that is caught, between a
parked vehicle and a moving vehicle,
And she was taken by ambulance to the Holy Spirit
Hospital where she was admitted with a fractured pelvis aa
well as some soft tissue injuries in the lower abdominal
wall. That'a the part of the abdomen down near the pelvis.
And she had been treated and evaluated by a
general surgeon, an orthopedic surgeon and was .een by a
neurological physician.
Q Eventually, she was discharged?
A Certainly.
o And did she tell you what treat.ent that she
received after being discharged?
A She was s_n 1n .. very intenaive fash10n by her
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1 orthopedic surgeon for a prolonged period of time as an
2 out-patient,
3 Q Doctor, did Mrs. Clepper give you any history
4 with regard to her employment status?
5 A Yes,
6 Q Could you tell us about that, please?
7 A She never went back to work performing any type
8 of work activities until about ten months after her injury,
9 which would bring it up to about october of 1995, and she
10 was working about eight hours of work a week.
11 Q After obtaining the history, did you then perform
12 a hands-on physical examination?
13 A Yes, I did.
14 Q And could you tell the jury the highlights of
15 your examination?
16 A Well, prior to doing the examination, I took a
17 history relative to her complaints so that I would know
18 exactly what to examine, and her complaints referred to
19 discomfort in the inguinal regions.
20 They're the regions that are coamonly called the
21 groin.
22 She also had soae uroloqical problem. because of
23 urinary incontinency; in other words, she would wet herself
24 either with sneezing or coughing or someti..s just before
25 she could qet to the bathrooa.
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1 They were her main complaints, And they both
2 related back to the state immediately after the accident.
3 My physical examination noted that she was able
4 to walk in a perfectly normal fashion, There was no
5 evidence of a limp,
6 She was capable of walking on her toes and heals,
7 all of this is significant because it suggests to me that
8 there is not a problem with the nerve roots in the lower
9 back.
10 She had a full range of motion both forward and
11 backwards, side to side and turning side to side in the low
12 back, although she had some discomfort at the extremes,
13 I examined her hips, and they were perfectly
14 normal. I found some tenderness when I palpated or pushed
15 in the inguinal areas.
16 And it was my impression according to what her
17 syaptoas were and her examination that this lady had what is
18 called. meralgia paresthetica, which would be an
19 affectation of so.e of the nerves that run under the
20 inguinal ligament and were obviously traumatized at the time
21 of her pelvis fracture.
22 I wasn't at all certain about her urinary
23 incontinence because that could have been caused fro. her
24 accident, so that t made arranq.ments for her to underqo a
25 uroloqical consultation.
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1 Q Did you subsequently find out from the urologist
2 that in his opinion it was not related to the accident?
3 A That is correct. She had a urinary tract
4 infection which for some reason or other had not been
5 treated, and it was treated and her symptoms subsided.
6 Q Now, doctor, with regard to your diagnosis, was
7 that for both of her legs?
8 A She had primarily -- she did have tenderness in
9 both areas, yes.
10 Q What was your treatment plan given your
11 diagnosis?
12 A Well, this is a tough diagnosis because it
13 depends entirely on what the patient tells you as well as
14 your findings to feelings, But it's nothing that you can
15 feel, but if you can produce pain by pushing over certain of
16 the nerves, that's abnormal and it represents some
17 sensitivity on behalf of the nerves.
18 So I thought that she should be seen by soaeone
19 like an anesthesiologist who could do two things. They
20 could do what we call a diagnostic and therapeutic block; in
21 other wor~, if the block -- if by putting any type of
22 novocaine In there took away her syaptoms, that would be
23 diagnostic because that would tell .., "ell, apparently
24 that's where her pain is coslng from.
25 And therapeutlc because you also put ao..
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steroids, some type of cortisone or the derivative in there
to hope actually make the inflammation go away.
o In fact, did Krs, Clepper undergo such a nerve
block?
A She did.
o And was that at your direction?
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It was at my consultation, She was seen by an
anesthesiologist, Dr. Komin,
o Did you receive a report from Dr. Komin as to
what he did to Krs, Clepper?
A I did,
o Could you tell the jury in layman's terms what
Dr, Komin did according to the records that you have in
front of you?
A Well, he examined her, and he too felt that she
probably had clinical bilateral, bilateral means both sides,
.eralgia paresthetica, that's just a long terminology for
the particular nerves that have been effected and they were
probably irritated as a result of her injury,
Under fluoroscopic control, in other words, under
the fluoroscope, so that he knows exactly Where he's putting
this, he did put sose cane, Which is an anesthetic, in the
are. and then use so.e steroid or sose sort cortisone
derivative,
And following the blo.:k. ahe did have decreaeed
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1 about six weeks.
2 Q Doctor, before we get to that six week visit, do
3 you have a diagram here in your office that you could show
4 the jury, that you can better show the jury the injury we
5 are talking about?
6 A I have a diagram. Hopefully I can make it a
7 little clearer.
S MR. LUTZ: Why don't we go off the record at this
9 point and we will ask Dr. Goodman to go up to the diagram,
10 (Pause off the record.)
11 THE WITNESS: This is a picture of an individual
12 obviously facing forward. And from the back, we're not
13 interested in this back view, we're interested in this
14 forward view.
15 This area denoted by this thick black line,
16 that's the inguinal area. That's the area of the groin,
17 And underneath and in this inguinal area there is a very
18 thick ligament called the inguinal ligament.
19 I-n-q-u-i-n-a-l.
20 And the inguinal ligament, in the area of the
21 pelvi8, these are the pelvic bones are under there too, but
22 under the inguinal ligament run so.. very vital structure8,
23 among them the feacral artery, and the feacral nerve, and
24 the feacral vein, This is the feacral artery or vein.
2S Obviously, if they're c~pr~i.ed, that'. .
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1 serious matter.
2 They -- it was felt according to Dr, Sanderson's
3 original report that I reviewed that she had some type of
4 affectation to this nerve,
5 But I think at the time she also had an
6 affectation of this nerve, and this is the iliohypogastric
7 nerve. It's right under the skin, And it does produce an
8 entity called meralgia paresthetica.
9 I have seen meralgia paresthetica in the past,
10 for an example, in the service, This would not be an
11 infrequent finding in military policeman because they would
12 hang their revolvers over their inguinal area and walk all
13 day and constantly do this. (Indicating) And they would
14 come in with a meralgia paresthetica,
15 All I have to do is give them a shoulder holster
16 and their symptoms would go away,
17 I have seen it in people that carry tools in a
18 belt area with the same thing. Walking around all day and
19 as soon as they change, their proble.s go away.
20 It'. not an uncommon entity. It's not a total
21 cripplinq entity, but it's an annoyinq entity and it's a
22 competent producer of discoafort,
23 Q Thank you, doctor.
24 (Brief pause.)
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2S IY MR. LlIT11
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1 Q Doctor, I think that you were about ready to
2 discuss the fact that you referred her or ordered her to
3 return to you in six weeks.
4 Did she in fact come back to you again?
5 A Yes,
6 Q And when did you next see her?
7 A She was seen by me on the 7th of July,
8 Q How was she doing?
9 A She had been working four hours during the week
10 and six hours on Saturday having some difficulty with
11 prolonged standing relative to having some discomfort in the
12 groin area, She denied any other type of discomfort,
13 Q Doctor, did you at that point discuss with her
14 returning to more work than what she had been doing?
15 A Yes.
16 Q What did you tell her?
17 A I told her to gradually increase her work
18 capacity depending on how she felt. This woman was
19 significantly deconditioned as a result of not working, plus
20 she's an obese lady, And I it's not that -- quite that
21 siaple to return to an eight hour day for anyone who has
22 been off work, for anyone Who's been off work as long a. she
2) ha. been.
24 Q Doctor, you earlier aentioned in the history you
2S obtained, she had fractured pelvis that went on to heal, to
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1 your knowledge?
2 A Yes, a fractu~ed pelvis is really per se not of
3 much consequence, most of her symptoms were soft tissue, but
4 in order to break a bone, she did have a broken bone in the
5 pelvic area. Even though it was an undisplaced fracture,
6 there was no surgery to be done, the bone didn't move, the
7 bone was cracked, but in order to have that amount of
8 pressure to crack a bone, that's significant pressure in a
9 woman this size.
10 And in order for that to get down to the bone,
11 that has go through an awful lot of soft tissue, and that's
12 where hers primarily was.
13 Q Doctor, as I understand it the last time that you
14 saw her was July 7th, 1997?
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Yes.
16 Q What would your prognosis be for the bilateral
17 meralgia paresthetica?
18 A Well, I as not too sure she say not need further
19 treatment. This sight be treated succe.stully with another
20 couple of nerve block..
21 I have also advised her to get an evaluation at
22 this ti.. by a neurosurCJeon, and I know a neurosurqeon I
23 think who is very con.ervative.
24 I think she should .ee soeebody that 1. not going
25 to ru.h right in and do anythinq because if in fact this is
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1 her diagnosis, the only thing that could be done would be to
2 take away the discomfort for some numbness, And that could
3 be done either by surgically interrupting the nerve or by
4 sclerosing it,
5 This is sort of out of my field, and I think it
6 is remote, but it is a possibility,
7 It's just as possible another couple of nerve
8 blocks might help her and it might cure her problem,
9 Q Doctor, based on the history that you obtained,
10 your review of Dr. Sanderson's records, your care and
11 treatment, the diagnostic studies, do you have an opinion
12 with a reasonable degree of medical certainty whether Mrs.
13 Clepper's bilateral meralgia paresthetica is causally
14 related to the December 14, 1994 accident?
15 A Prior to answering that, permit me to say I have
16 also made arrangements for her to have a repeat
17 electrodiagnostic study by Dr. Samuels.
18 It's possible that she has Borne involvement of
19 the femoral nerve which he originally demonstrated.
20 There ia no question in my mind, and I certainly
21 can state with very reasonable degree of medical certainty
22 that her pre.ent problea, whatever the extent is, bears a
23 direct and causal relationship to her original trauma.
a. 0 And. doctor, w~ had .entioned the loss of work.
as Would that in your opinion also be ~elated to the acci~nt?
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1 A I saw this patient for the first time in May of
2 this year, and I am not comfortable commenting on her
3 ability to work prior to that time,
4 MR. LUTZ: Thank you, doctor, cross-examination.
5 CROSS-EXAMINATION
6 BY MR. HILDABRAND:
7 Q Dr. Goodman, as I understand it May of 1997 is
S when you first saw Hrs, Clepper?
9 A Yes, it is,
10 Q And her the accident that we have discussed
11 was December of 1994, correct?
12 A That is correct.
13 Q So to a large extent you were given records from
14 her prior orthopedic physician, Dr. Sanderson, and asked to
15 look over those, is that correct?
16 A Well, more than to a large extent, that was the
17 total exposure that I had to her prior history.
18 Q Okay. Were you given the hospital record as
19 well?
20 A I don't recall whether I had the hospital record.
21 Q Now, as I understand it, the -- we have two
22 proble.. that she had as a result of this accident. We had
23 a fractured pubic raaus, nondisplaced, which went on to heal
24 without any probl.. in the noraal course of events, 1s that
25 correct?
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A That is correct,
Q And the second problem that she had was this soft
tissue injury that you have described involving the bruising
to the abdomen and this nerve problem that you have
described, is that correct?
That's correct.
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Q
All right,
Now, with respect to that nerve problem, you make
reference, and did you make reference in your testimony, to
the referral to Dr, Momin?
A Momin, yes.
Q Momin, I am sorry, And I have his evaluation
reports which apparently he submitted to you, And he notes
in the report of 5-14-97 do you have that one, sir?
15 A Yes, I do,
16 Q On the second page, under physical examination,
17 about half way through the paragraph
18 A May 14th,
19 Q Y... It look. liks that.
20 A Oh, that's -- I have two report. on May 14th,
21 that's why I "'.. confused.
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Okay.
I have this, yes.
Okay. Thank you.
"e states there is . great deal ot tenderness
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1 underneath her inguinal areas bilaterally,
2 A Vh-huh.
3 Q But there is a large abdominal mass that folds
4 over this area.
5 Now, that would be her obesity, is that correct,
6 sir?
7 A Yes.
8 Q And she had that at the time of this accident?
9 A That or maybe more,
10 Q All right,
11 Now, you described with the diagram, the police
12 officer with the gun or the handyman with the belt.
13 Does the excessive body weight act in the same
14 way to cause that irritation with the nerve?
15 A It could, I don't recall seeing an etioloqy of
16 that fact. certainly it would co.promise her ability to
17 improve.
18 Q It appears that throughout the treatment that she
19 has had that the physician. that have seen her have
20 reco..ended to her that she lose weight, is that correct?
21 A V..,
22 Q Did you aske that recommendation?
23 A No, I didn't make that reco...ndation, I, you
24 know, I a. sure it'. been asde to her many time. by many
25 phy.ician..
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Q Did you see over the course of your treatment,
did you see any indication that she had lost any weight?
A She has lost no weight, I did see that,
Q Now, Dr, Komin in his reports indicates that the
way to treat her condition conservatively would be weight
loss, isn't that true?
A Well, I think that's a very naive statement, no,
I don't think it's true, I think certainly that would be an
adjunct, but I think it is awfully difficult to get somebody
that's been told so many times to lose weight and is
morbidly obese to lose weight,
Obviously, if she lost weight, I think that would
be an important conservative type of treatment. I am not
sure that it would cure her. But obviously that would be
the easiest thing to do and in the end she would gain more
for that than anything, I did see his note,
Q He did say that in his report there under plan
and recommendations, isn't that true?
A He said it may be the way to treat this
conservatively, and certainly it aay be.
Q All right.
Now, the nerve block that you mentioned that she
had received. that apparently provided benefit to her, isn't
that true?
A Te.porarily. ye..
21
1 you obtained or the records that you reviewed regarding any
2 disability or any medical problems that Krs, Clepper had
3 prior to the accident in December of 19941
4 A If they're mentioned in the notes that I had from
5 Dr. sanderson, then I am sure I saw them; if they're not, I
6 did not see them,
7 I did review his notes.
8 Q There is a reference to some of her prior history
9 in Dr. Komin's report of 5-14-97 in which he indicates that
10 past medical history is significant for an MI many years
11 ago. MI meaning?
12 It Myocardial infarction,
13 Q Or heart attack?
14 It Yes.
15 Q Did you see any limitation or restriction on her
16 during the time that you treated her due to that?
17 It No,
18 Q It also notes that she has a history of urinary
19 incontinence which you described, and arthritIs.
20 Did you find that any of her arthritis was
21 effecting her abilities or her activities?
22 It No.
23 Q You have indicated that she should go back to
24 work, she should increase her working as she reels able.
25 Did your place any restrictions on her working?
22
1 A No. I told her to go up to her capability she
2 had in terms of lifting and she doesn't have heavy lifting,
3 Q Did she describe the type of work she had been
4 doing?
5 A I think she did and it was primarily clerical.
6 Q I think she indicated
7 A Cashier or --
8 Q In deposition, she was a cashier at a deli or
9 Handy Market type store?
10 A That's my impression.
11 Q You felt that she could perform those duties
12 without any problem?
13 A Yes, up to her limit of toleration,
14 Q Okay. But placed no medical restrictions on her,
15 limited her hours or duties in any way?
16 A No, I told her to try. I really would like to
17 get her back doing something.
18 MR. HILDABRAND: Thank you, sir, that's all the
19 questions that I have.
20 REDIRECT EXAMINATION
21 BY MR. LUTZ:
22 Q Doctor, I just have a few follow-up questions.
23 You were asked questions about Dr. Maein's nerve
24 block studie..
25 Did the results of those studies re-enforce or
23
1 reaffirm your diagnosis of meralgia paresthetica?
2 A Yes,
3 Q Why is that?
4 A Well, to begin with Dr. Homin concurred with the
5 diagnosis, and secondly, at least on a very temporary basis
6 her discomfort abated.
7 Q And secondly, you had mentioned that you were
8 considering EMG studies to be reperformed by Dr, Samuels,
9 Tell the jury what an EMG is and why you felt
10 that was necessary.
11 A Well, an EMG studies the irritability of nerves.
12 Now when she had this nerve block by Dr. Homin, she also had
13 some effect of the femoral nerve, And that is the nerve
14 that supplies the thigh muscles; in fact, she lost her
15 balance after that because it was weakened.
16 Dr. Samuels' initial EMG -- not initial, his
17 initial impression. referred to the fact that the femoral
18 nerve was effected at the time of his consultation,
19 It is possible that what we're looking at also
20 has a femoral nerve component, that's is why I wanted her to
21 be seen by Dr, Samuels and have all of these nerves tested.
22 Q What i8 the function and purpose of the femoral
23 nerve?
24 A Femoral nerve innervates mU8cles, among them the
25 stabililing muscles of our leg.
24
1 MR. LUTZ: Thank you, doctor.
2 RECROSS EXAMINATION
3 BY MR. HILDABRAND:
4 Q I am lOOking at your report of May 20, doctor.
5 Am I correct that when you examined Mrs. Clepper at that
6 time that she had normal hip flexion, extension, internal
7 rotation, the external rotation, abduction and adduction?
8 A Yes, her hips were normal.
9 Q Functionally everything is fine?
10 A Yes.
11 MR. HILDABRAND: Thank you.
(Whereupon, the deposition was concluded at
12
13 2:05 p..,)
14
15
16
17
18
19
20
21
22
23
24
25
3
1 STIPULATION
2 It is hereby stipulated by and between counsel
3 for the respective parties that reading, signing, sealing,
4 certification and filing are hereby waived.
5
6 REZA G. AZIZKHAN, M.D., called as a witness,
7 being duly sworn, testified as follows:
8 DIRECT EXAMINATION ON QUALIFICATIONS
9 BY MR. LUTZ:
10
11
Q
A
Would you please state your full name?
My name is R-e-z-a, Reza, first name; second
12 initial is G, that's for George; and the last name is
13 Azizkhan, the surname, A-z-i-z-k-h-a-n.
14
15
16
17
Q
A
Q
A
Your profession?
I am a surgeon, sir.
How long have you been a surgeon?
Well, I would say I graduated from medical school
18 in 9/49, so virtually most of the time I have been a 8urgeon
19 apart from the other training I had.
20
Q
Would you summarize for the jury your educational
21 background and training to become a surgeon?
22
A
Well, first of all, of course. t graduated from
2) medical school. That was in Bombay University, India, and
24 after doing a little bit of Burgical training there I moved
;~, en tc) EncJl.tnd and Gr<!<lt Ihit.un and Illpl!nt approximately 10
0- .._.....__._. .____._,..._. ~'_''''''_'___'_'_'_ _"_~__'_~_____'_._'__"'__'~'"
4
1 years except for a very short break in between.
2 Most of the time was spent in England and
3 Scotland and I did British training in surgery, various
4 branches of surgery, but mainly general surgery.
5 Following that I took on an appoi~tment in a
6 place called Oarjeeling in the Himalayas and India where I
7 ran a hospital for three years where I did all types of
8 surgical work there; and then I came to America in 1964
9 where I -- I was fully trained at that time, I had all my
10 boards, surgical training boards from England, from Britain
11 and I had to do a certain amount of training over again to
12 satisfy the local regulations; so I did one year of rotating
13 internship which was needed to get a license in America; in
14 Pennsylvania, particularly, and two years of surgical
15 training in this country.
16 They gave me credit for my previous background,
17 so I was able to take the boards then with only two years in
18 this country of surgical training; so I sat for my boards in
19 surgery in January of 1968 and passed the American boards;
20 so I have the British boards and American boards in surgery.
21 0 Doctor. do you have any privileges at any of the
22 local hospitals?
23 A Yes, I have privilege at Holy Spirit general
24 hospital. I also am a .. because of my age 1 became a
~5 consultant. retired consultant. so to say. in Polyclinic
"",,",,~."......-----~,~
5
1 Hospital where I used to do a lot of my practice at one
2 time; but I decided to settle in one place only because of
3 my age and no running around from place to place, it became
4 a lot easier.
5 Q Doctor, as a general surgeon what do you do on a
6 daily basis?
7 A On a daily basis I just do surgery in some form,
a either office work, operating room work, emergency work. I
9 just do surgery, that's my work.
10 Q Over the years have you come to treat patients
11 that have been involved in motor vehicle accident trauma?
12 A I have been involved with a large number of
13 patients over the years,
14 MR. LUTZ: At this point I'm going to move to
15 admit Dr. Azizkhan as an expert in general surgery and ask
16 if there are any questions on qualifications.
17 MR. HILDABRAND: Just a couple questions.
18 CROSS EXA.~INATION ON QUALIFICATIONS
19 BY MR. HILDABRAND:
20 Q Doctor, my name is Karl Hildabrand --
21 A Yes. sir~
22 Q.. we met prior to the deposition. You said
;1) that ~'Ou complet€'d yt'ur Run;ety E'xamiflilt ions in this country
':4 In 1968. IS th,lt Cvlle-:t,
",,'';
A
1 did "'~'
1 $<it fvr and f"'lIs"d my boards in
19
20
21
22
2)
H
2S
7
1 0 You are not retired in any way?
2 A No, The only way -- the only thing is that I
3 confine my work to this hospital. I do not go to other
4 hospitals.
5 0 And do you see patients Monday through Friday in
6 your office?
7 A I have office hours on Monday, Tuesday and
8 Thursday, those are routine office hours. wednesday and
9 Friday I do elective surgery at Holy Spirit Hospital.
10 In between I see patients in the emergency room
11 or I operate on people on an emergency basis; so I do that
12 in between.
13 On weekends, most weekends I'm around, I'm on
14 call, I take call because I am in solo practice. I do get
15 some weekends off when colleagues take my call, but mostly
16 I'm around.
17 MR. HILOABRAND: That's all the questions I have,
18 thank you.
DIRECT EXAMINATION
BY MR. LUTZ:
o Doctor. we're now going to direct our attention
to the care and treatment that you provided to Mrs. Clepper
aftet. an accident t.hat occurred December 14th. 19~4.
Wh..n and Wh'H" did ~'Ou f i rat meet Mrs. Cleppel'
after an accident?
J
'~~,",,~,,-<,",,".....c..,'''''''''''''''_''-_'---'-'.~'_''______''~'^.'
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
A I first met Bernadine Clepper in Holy Spirit
emergency room.
o When you first met her. did you obtain a history
as to what had happened?
A Yes, sir. At the time I saw her she stated that
she had had an automobile accident where she was crushed
between her vehicle and another disabled vehicle; so that's
-- and she had numerous injuries from that. so that's why I
was asked to see her.
o
Before you saw her, are you aware whether any
24
other doctors had seen her?
A I believe she was in the emergency room when she
was first brought to be seen there and then I took over at
that point. They asked me to see her.
o By the time you had seen her, had there been any
diagnostic tests taken?
A To my to the best of my knowledge I believe
they had a cervical spine, a chest x-ray and an x-ray of the
pelvis. ! think they had all that done.
o And were any of those diagnostic tests showing
anything?
A Yes, sir. They -. she had a fracture of the left
pubic ramus.
Q Could you put that in layman'S terms?
A That's palt of the pelvic bone. The pelvic bones
25
9
1 form like a ring and to the left of the midline is a part of
2 the pelvic bone called the pubis and the two pubes come
3 together in the midline; and the pubic ramus is a branch
4 ramus means branch -- a branch of the body of this pubic
5 bone; so it would be somewhere about here.
6 Q Can you hold that up so we can get that on
7 camera, Doctor?
8 A Somewhere about here.
9 Q All right.
10 A In front.
11 Q After obtaining this history from Mrs. Clepper,
12 did you do a hands-on physical examination?
13
A
I did, sir.
14
Q
And could you tell us the highlights of that
15 examination?
16
A
The lady was, of course, quite distressed from
17 her injuries and the main things -- the salient features of
18 the examination really were extensive bruising of the
19 abdominal wall which extended from -. this is the -- this is
20 meant to be the belly button.
21 It extended all the way down the whole anterior
2~ abdominal wall, the whole frent, all the way down into the
~3 upper thighs; so all thiS area was extensively bruised.
::4 swollen.
2~
She was
she had lugns of a lin Ie tenderrH~Sl!
I
L.__",.._..._ .
10
lover the pubic ramus. She obviously had a fracture there.
2 0 Doctor, anatomically speaking what causes
3 swelling?
4 A An injury would cause two things, it would cause
5 breaking of blood vessels that would cause seeping of blood
6 into the soft tissues.
7 Also, contusion of the fat or muscles, for that
8 matter; but in her case she was -- she had a good amount of
9 weight, so the fat was quite crushed and that crushing of
10 the fat and the bleeding will cause swelling like that.
11 0 When you examined her, could she walk?
12 A She was -- she was lying down when I saw her.
13 She wasn't walking when I saw her.
14 0 Doctor, based on the history of the accident,
15 your physical exams and the diagnostic tests, did you
16 formulate an initial diagnosis?
17 A Yes, I felt that the lady had multiple
18 contusions of the abdominal wall and upper thighs. She had
19 a fracture of the ramus of the pubis, of the left side of
20 the pubis, pubic bone,
21 She also had some trouble at that time urinating
22 because of the injuries that she had. She had to be
23 catheteriz:ed.
24
o
Tell us what it mean. to be catheteriz:ed. What's
25 done?
12
1 so I called in Dr. Samuels, Todd Samuels, who was the doctor
2 who saw her, the neurologist.
3
Q
Were there any other consultations besides Dr.
4 Sanderson and Dr. Samuels?
5 A In the hospital not that I knowof. I can't
6 remember anything else. Of course, there was the x-ray
7 people.
8 Q How long was she in the hospital?
9 A She was in the hospital approximately a week,
10 from December 14, 1994, to December 21st, 1994.
11
Q
How did she do while she was in the hospital,
12 Doctor?
13
A
She had a fair bit of pain, but she gradually
14 improved and she was, you know, given some encouragement to
15 move and walk and so on and when she was finally ambulating
16 sufficiently she was allowed home.
17
Q
Was there any treatment with regard to the
18 urinary problem?
19
A
Dr. Cochel just catheterized her and since she
20 was.- following that she was able to void herself; and she
21 had a urinary tract infection. so she was gi~~n medication
22 for that.
23
Q
Wen! you thE' doctor that discharged her?
HI
25 L.....
A. Yes, snr.
o loIlh\t Instn.,'t lor"ll did you qlv.. Mrlil. Clltppi!f upon
1 discharge?
2
A
13
Well, she should -- she was to rest at home. She
3 was to see Dr. Sanderson for follow-up. Physical therapy
4 and so on would be arranged through him.
5
I gave her some pain medication. I asked her to
6 come back to see me for follow-up in my office,
7
Q
Doctor, what was your diagnosis as of the time of
At the time of discharge my final diagnosis was
10 fractured pelvis of the left pubic ramus, extensive hematoma
8 discharge?
9
A
11 formation and bruising involving the lower abdominal wall
12 and upper thighs.
13 Traumatic fat necrosis.
14 The next diagnosis was contusion of the right
15 femoral nerve. That means bruising of the right femoral
16 nerve from the injury.
17 The fourth thing was temporary urinary tract
18 difficulties with retention and infection. That was the
19 discharge diagnosis,
20 Q
21 A
22 penpheral
I
2J thlgh. It
.24 I frD!n und.H
)') I e....')~~.9 d<)wn
I
1
,
What is the right femoral nerve?
The right fernor'al nerve is a major' nerve,
Mnve In tbe [',-,<1,' wlllch comes out in front of the
CO!ll<!1l (.ut ft,.,." h"'le \mdt'!'l the
it comes out
this what"", call the inguinal ligament and
tho'! thl<}h and It $UPpllt'!'$ In.. !1U1Sd~s of the
14
1 thigh and front of the thigh; that's the anterior thigh,
2 innervates these muscles and controls motor function of
3 these thigh -- anterior thigh muscles.
4 They also supply some degree of sensory function,
5 feeling; so in her case it seems to be more a motor thing,
6 she's not able to move the leg very well.
7
You had also mentioned the term necrosis. Would
Q
8 you please explain that to the jury in layman's terms?
9
A
Necrosis strictly means something that dies. If
10 something dies. it's -- it tends to go necrosis.
11 This lady had fat necrosis, so because of the
12 contusion, severe crushing force of her abdominal wall ani
13 thigh, especially to the front, this fat had undergone some
14 changes due to the crushing, there was some necrotic
15 changes.
16 This is what we call an aseptic necrosis; in
17 other words, it is not a necrosis with sepsis like some
18 like gangrene of the foot, for instance, is necrosis, too,
19 but that's obviously infection there.
20 This fat necl'osis usual! y comes f rom a crushing
21 injury, so that's what she had; so there was a temporary
22
,n I
::. I
JS t
I
L
destruction of the fat, some loss of blood supply from the
severe contusion; 90 th~t 's neclosis.
o Do.::tor. rGu h.lc1 lndu:dtt'!'d that L').n~ of the
In.:1t-f-uctlons ''.is th~'t $ht? W~hJ t"~) S~~ ,'t)U \1\ )"OUf arf lC~
15
1 after discharge?
2
3
That's correct, sir,
A
o
Could you tell us the dates you saw her, how she
4 was doing and what you did for her?
5
A
I saw her initially on January the 24th, '95. If
6 I may refer to my notes here.
7 January the 24th, '95 was the first office visit
8 and she was concerned at that time about the lower abdominal
9 walls which were very thick and I described as being
10 indurated, which means thickened.
11
This was from the fat necrosis. Most of the
12 bruising had gone, but there was residual thickening
13 apparent and I thought this was from the traumatic fat
14 necrosis of the abdominal wall peniculus.
15 peniculus means the fold of fat which people have
16 and I explained that to her. She also complained of pain in
17 the left hip with some difficulty in raising the left leg.
18 She walked at that time with a limp, the left leg moving
19 less well than the right.
20 She also said the right hip bothered her before,
21 but it had recovered now. She had recovered all sensation
2;' whIch she had lost and she was !.Ieeing Or. Sanderson for a
~3 follOW-Up and also 01'. Todd Sa!llu~l. fer a follow,up.
2.- At that time I .. , since Dr. Sanderson was the
2~ main person involved with ner care, at that point tasked
..""~-,~.,~-"-_......,-,--...,~--_._--~~'-_._- -..._-- ,,,._--_._._-....-..._~,- ----~~....._---.--.._.~_....._..~--_.~,.,-...,.,........ -- .,
17
1 which was, I felt, unrelated to her injuries.
2 Q Okay. And, Doctor, did you see her in June of
3 1995 for accident related problems?
4 A I saw her again June 20th, 1995. She came back
5 mostly for the lipoma problem which had been excised, but
6 also I did. of course, evaluate her generally for injuries
7 that she had.
8
9
10
Q
A
Q
What did your evaluation show?
She appeared to be progressively improving.
Just so the jury understands, the lipoma is not
11 related to the motor vehicle accident?
12 A That's correct, sir.
13 Q Just so the jury understands, what is a lipoma?
14 A Li poma is a fatty tumor.
lS Q Okay.
16 A It's, in the vast majority of cases, a benign and
17 nonmalignant, fatty tumor.
18 Q When did you see Mrs. Clepper again, Doctor?
19 A We saw her again in December of -- 12/1~/95.
20 That was the next time I saw her.
21 Q And how was she doing at that point in time?
22 A At that ti~ she was still complaining of some
23 limplng and sorene.s in her right hip on and off, she was
;14 see tng Ill'. Sanderson every lllOnth for this.
2') She was noted to "...ave some limitaUon in ftIObility
---'---,............."--_.......~~--'''',_....._--_......''-,.-",..''''._....-",_.~".~'-"'."",""""_...---~~~~......"'..-_,.,.--...._-...-------_..,~'"
1
Yes, sir, I feel sure that these were related to
A
2 that, because I saw her just after the accident.
3
MR. LUTZ: Thank you, Doctor.
4 CROSS EXAMINATION
5 BY MR. HILDABRAND:
6 Q Dr. Azizkhan, let me ask you first of all about
7 the visit to the emergency room and the hospital visit for
B Mrs. Clepper.
9 A Yes, sir.
10 Q AsI understand it, there were a number of tests
11 done
12
Right.
A
13
-- when she was admitted on December the 14th
Q
14 and I assume you were the doctor that ordered those tests,
15 is that correct?
16 A I think initially the emergency room doctor
17 orderp.d. Sometime these two functions fuse, you know, the
18 emergency room -- usually the emergency room doctor orders
19 some of the initial tests and then if they feel they need a
20 surgeon or anyone else. then they bring them in; so there's
21 a combination of the ER doctors and myself. we order a
22 number of tests. yes.
2l
Q
As I understand It x-rays were done of the neck.
24 chest and pelvis?
~5
I
L-__
^
Correct, air.
19
I
I
I
~m~..-J
.-
20
1
2
3
4
5
6
7
e
9
10
11
Q The x-rays of the neck and the chest were
negative for any fracture, is that right?
A Correct, sir.
Q
The x-ray of the pelvis showed the fracture of
the left pubic ramus that you've described?
A Right, sir.
Q And the records indicate that that was without
displacement?
A It was a non-displaced fracture.
Q Would you explain what that means?
A
Well, actually it means that the two ends of the
12 when you have a fracture, you have a break in the bone,
13 the two ends of the break are in alignment, they're not
14 separated by they may be separated in the sense that
15 there's a little line between them, but they're not up or
16 down; they are more or less together.
17 Q Both pieces of the bone - -
18 A Are together.
19 0 are in the proper position for healing, is
20 that correct?
21
A
Right.
22 Q Am I correct, sir, that there was no 8urqery don~
23 to treat that fracture. is that right?
24 A Perfectly right, sir.
.2S
o
And how de you tn~,tt oil non.diapl,h....d fl~(,nll" 01
__~~_...____'~_"~".~"_"_~__"_____H__.___.__. "'___'_.___~_.~___"~._ _.__"'....~__. . ____.
21
'-,
1 the left pubic ramus?
2
A
Generally there's no surgical treatment for
3 that. They usually heal with initial rest and then some
4 physical therapy, depending upon how much difficulties they
5 have with mobilization and so on.
6
Q
Am I correct that there is no type of casting or
7 wrapping of any kind --
8 A No.
9 Q - - to stabilize the fracture?
10 A No,
11 0 So basically the patient receives no medical - -
12 A No.
13 0 - - treatment other than rest?
14 A Not for that type of fracture there's no other
15 treatment.
16
Q
And did Mrs. Clepper's fracture heal without any
17 problem or complication?
18
A
Well, Dr. Sanderson has been following that
19 angle. so 1 did not x-ray her to see if it healed because 1
20 left that to him, but I would feel that clinically it should
;:1 have healed.
22
o
Now, t note in the records that Mrs. Clepper.
23 upon admission. is shown to be about 192 pounds and about
24 five foot one inch in height. is that correct?
.25
A
Correct, sir.
;
l.._.....__~_____.......-__
24
1
2
3
4
5
6
7
see the letter was on February the 7th, 1995, and Mrs.
Clepper was discharged, you know, long before that; so that
question wasn't asked.
She did not volunteer that information to me and
I didn't know about that, but I did see that in Dr.
Sanderson's note.
Q Now, the first visit that you had with her after
her discharge from the hospital was January 24th, 1995, is
8
9
10
that correct?
A That's correct, sir.
11
Q I'm looking at your note for that date. Am I
correct that you noted at that time about halfway down the
page, patient says the right hip which bothered her before
was fine now. She has recovered all sensations which she
12
13
14
15
16
had lost?
A Right. I said that.
17
Q And would that involve the fe~ral nerve that you
have described?
A That's the femoral nerve.
18
19
20
21
22
o And then you didn't see her until May 2nd, 1995,
is that right?
A That's correct, sir.
21
o And then you note in your visit 1n May.. on May
the 2nd. doing better hom standpoint of traumatic fat
..4
25
necrosis, 18 that right?
I ."."..... 'N'_ ..... ..... .......:.._.____. ..............
. -.^.."-~.~_.._,.,,~._-,-_._._...._-----,-'"...~--_.._-~,,.
~
1 A
2 0
3 time?
4 A
S 0
6 A
7 0
8 A
9 Q
10 A
11 Q
12 A
13 Q
2S
That's correct, sir.
You also note that she was walking better at that
Okay. Where...
About a third of the way down?
You mean on May 2nd?
Yes.
Oh, yes. Walking better, yes.
And below that, overall --
Has made great progress.
-- has made great progress?
Yes.
Then you note patient has developed a fatty mass,
14 left upper abdomen?
lS A Yes.
16 0 Is that the lipoma that you described?
17 A Yes, li poma .
18 Q And that had nothing to do with this accident?
19 A No, sir.
20 Q And you mentioned the last time you saw her,
:21 12/12/95, that she had indications to you of stress, is that
22 correct?
23 A What she said was that -. she complained -- she
24 was nervous, forgetful and had shakiness since the accident
~5 and that she had emotional -- she was emotional and teary at
.~~-
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Multi-Page ' ,,~ & - cervical
Rcza G. Azizkhan, M.D.
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-J- I~'I" 1~.2:: lassociatcd III 2' 14 I bothered 121 1~:211
10/11 J_:~ lablcl'l 4 I' 122(1 assumellllQ 14 24-13
12112195121 17.IQ I 14" I ~ II ! al1cntion III ;,21 boy III ::::.21
::~.21 absorbed 121 In.l~ attorney 121 2'11" branch", Q;3 Y;4
12114111 2";17 28.7 2Y 17 94
14111 12:10 absorbs II I 27'" authorized I'I 19.. branches I II 4;4
14thl'l 7;23 18,::~ accident 1"1 ; II automobilelll ~" break 141 41 20:12
19;13 7.23 7,::~ ~" 23,::5 I 20;13 27;7
1014 J7J 17.11 aware 121 8.11I
15111 :::::16 18;; 18;9 18 I~ away 1'1 2t1:5 breakdown 121 16;14
192111 21:23 IH.::~ 19.1 2~.lti Azizkhan III 1'9 16;18
1964", 4;8 25_24 2~.:: 26;; 23 H 313 breaking/ll 10;;
19681'1 419 ;.24 ::f1J.. 21\ I~ :!h I~ ~ I~ 19 " ::::'n breast III 616
20 I' 21,1- bring /II 1920
" I II I~ ";21' laccordinglll
1978111 (\-~ ::ftt- I Britain 121 3.2; 4;W
19941'1 -:-:D I:: Hi .accumulation 121 :~ I -B- British 121 43 4.20
Il\.::~ ' "'trt< I background 121 ! brought III
1:: 10 I _.. 3.21 8;13
19951'1 Itl.= 17 j lactlonl21 I.' Z'i I~ , 4.16 Ibruiscdll19.23
lactivcIl1 :2 I' I
IH 24 I ::4~ I Bakert'l III 2'1" I bruising III 9.1~
2420 'adequate /II "" i :!'J 24 i II::: 1311 13 I;
1997121 1.1:: 29.23 . adjoininglll :.. I~ IbalanCC/l1 II 14 i I ~ I:: In - IH
i
I administer III 2V~ I based 121 10 14 18 18 i 27.1"
-2- ladmissionl'l 21 23 Ibasisl'l 50 ' - I burning /II 1621
20th/ll 1'4 I admit III ;!' I '11 buttonlll ., 21
21st "I 1::1\1 ~.ZJ i admitted I II II.:; I ~ I became 1214 :. ~ :.
24th,., 1;5 I; - 'afterwards" I ;!~.IJ Ibccomel213 ~: ~11" I -c-
~4S lacain"1 4 II In I bed "' Ill" IcaIlIlSI'1 .. .
" .
271'1 24 ~'~ I IN 1"'1)0 1-"'" !belly III q~, I camera 1'1 ~-
2nd "I IH ~4~1 j Against III ~~ I~ lbelo",", 2~ ,~ ICAMP,., 114
2.& 2" :5 fi ,Age 121 4,4 ~ } Ibcniplll P 10 I . 2b.20
! capac:lly III
ago 1'1 :~ It\ 1 Bernadine: 121 II icaptionlll2'J 14
-3- airlll :",l', i IU 1;.2;
, 1 can:: 1'1 '22
3111 11:: II ignlDCllt 1'1 ~u :~ I Besidelll II I~ icue 1'1 Iv ~ 14.~
3,7111 2.' allowed III I~ If" I llest III ~ ," '. ,
I 2119 .~ II
3:07111 1 I: llmostlll 20 I" lbetterJfl It. It ., . cases UI I' '0 28 .
3:45111 2~16 ,ambulatinc JlI I: l~ 1ft.::; 24 :.. :~ : Icasti1lC11121"
; :~ ~ 21>14
I America 121 H I catheterization III 114
-s- .&1; ! belt.cell", ) : lcatheterizcd "I 1<'23
IAmericall'" ~ .. I ~ III .. I:
4" I IV 2.& II I l~ 1\1
5.191'1 :!~ , ~- 2{; I ~
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amount 111 4 I; It, ~ 'bladder Uti I : IUlIscd III It 10
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!ahwenltl :~I Ii ! II d li ;: 14 :: 'ttnailltll 4 II
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71 nn"~M4"1)'.S101
changes - first Multi-Page a,f
Reza G. Azi7.khan. M.D.
changes 111 14 14 ! :!91 I discharge '"I 1.1 I IERBIII 1:1
14 I ~ icouplelll ~Ji I.'q, J ~ II IJllI iespecially III 14.1)
chest III ~ I~ 1~.24 I course ,", 1':: "If\ I ~ I 14'" IESQUIREIlI I Jll
2U] I II:': 12 fl 17. idischarged "I 1"'. .,~ : 1:'1
CHURCH III II! 2~ 1(1 :!4: I ESTATE 111 14
jCOURTlI1 I discussed 111 ..,.,.,
CIVILI'I I) IJ II levaluatelll 17'~
Clcpperll'l II iereditlll 4 I" , displaccmcntlll 111 " !evaluation III 17 )l:
~ 2: ",24 81 ICROSS1l1 ~,2 dissipated III 2l'.,12 Iblll
'JII 12.1~ 1718 ~ 18 W4 dissipates "' 2~~ Icxamination 1'1 H
181l I~ s 2l:~2 crushed 1'1 8." distressed 111 lilt! 1 ~ It. 'It) ~12
22_10 23.11 23.22 IIIQ lid :2 :~ I 1I I~ Q.lb I~ 4
204.2 21\.11 crushing 141 I doctor 1l>1 4 ~ I 2t.2~ """'''1
Clepper's (1' Ill" ~5 ..' ....
18.21 ,
1-1,12 14.14 142tl ~.2(l ",21 Q- ,cuminations III 5.23
2I:JfI 2221
CUMBERLAND III HI.: WI" 114 Icxaminedlll Hili
clinically III 2Ull 1.1 II I" 12:1 1~12
close III 22_23 12.:~ 13- 14.24 Icums", III.I~ 18'~
c1osclYlll16 I -0- 16 ) 17.: I' 18 caccptlll 41
'his I~J 1~14 I . d ,.
Cochellll 1~19 I caelSC III'..,
daily 121 ~.6 5:7 I~ I" 1"18 :3,: EXECUTRIX 1'1 14
colleagues III 7.15 damaged III I 26.23 :"21 :"',2. ICapenll1 ~.I~
collection III 28:8 2712
I doctors '" b.11 1921
combination III 19.21 D&Jjcclinglll 4.6 23,ft leaplain 12114.~ 211:J{t
COMMON/II 1:1 date", 111 24:11 idocsn'tll12- Is caplaiocd III I~ I"
Commonwealthl'12Q3 I daleS III ID jdODCI'1 hi" 102~ I cx tended PI 9 '"
DAUPHIN III I 9.21
2Q~ 291 I IQ II 114:; 20 :: I
complained 1'1 1~'16 jDAVlDlI1 1.19 idown"l till q.:: icatcnsivc 141 ~J~
1621 1~_1~ 183 Ideals 1'1 613 I III 12 III! 13_~~ ! 13 W I~.I~ 18.11
I~ ' 1~.13 I December 1'1 7.1~ 1 2tt-lfi :01 I: =~.~ !cxtcnsivcly 1'1 Q:23
complaining III I........ I 12.W 12 W 1- I" ~I(j ,cxtravasated "I Itd7
completed III ~_:n Ill:~ I~ I) !Dr""1 ~ I~ II J7 icuravasatioo II) 16.16
complication 111 2J 17 I decided 1'1 ~.Z II ,~ I: J 12,3
I DEFENDANT 121 J2 .. I: !~ 133
concentrated I' I :~t8 I:~ "...., t~ 1) I~ 24 -F-
I I" I ~.....
concemlll I~X -- l~_2" l':Ifi 21 I~ Ifact 111 ::1-J3 28:11
conccrned 1" t I.l!o i dqrcc IZI 144 18.211 :.2 ~ ~3 I~ 13 U. I fair IZI un :('Il
IH I~ I I DEMANDED JII 15 ; 24.5 Ifalllll ::32"
concludedI'I 2S:I~ I depending III :!14 idriYCfl1l :~ I'" I family 121 2221 233
confinelll'J jdepositlll16 I) IDrivin~I'1 :: IJ!. ifarlll 2: 24
connected" I 2.2.23 i depositlOD I"I !-9 idntnk 121 :: 1" ::11\ :fate..1 HI"!' 10."
, ~:2: 2111~ 29:9 Iduelll
CONNIE III !-4 1414 1 Will 1313 14.11
constitutes" 1 2913 2<11" !d1l1Y121 ) - 2V9 I 1413 1420 U.22
2V2tl described ..,
consultant 111 1~9 ! i I~ II I~I) I~I~
"_2~ 2tl~ 22 t :4-18 j I*,~ 16" 24.24
.. ::~ I -E-
I ~~ '" :"24 , 28 1: 28 J)
consultations 1'1 II 19 I describes III 23.2f1 !EIII 14 1 fatty 1'1 16 '2 t~.:~
,,-
I. ", I c1cstntctiott III 14,:J lcuicrlll ~ 4 1 Ii 14 1717 :~ I)
controls III 142 dcvcJopcd III ~~ I) Icdllcatiottaltll ) 211 ! fcatan:s III 917
contusion J1J 107 I diapolill" 10 16 leithcrlll ~-~ ! Febntary tll 24 I
I J I> 14 I~ 14.23
I. Il' If' ::: 182J I I) 7 11" J) 14 ielective III -~ !fccIiIlCI'1 14 ~
, 13 I~
contusions 1'1 ! lC~lICyllet ~ ~ I felt 1'1 Wi" 1"'1
Will 14i~_tic 141
I~ l~ Ill. ; - II' -H . ~ ~..
l It...; HH~ I~ 19 " I: 1-- ... 19 I. !fcmoralPI 13 l~
COm:ctI2" ~ 2' I dies IZI 149 14 Itt I" I~ ,,, l~ :J'
.t' I'" . ~ 19 I~ i J) l~ 13.20 t321
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717.212-SM41191'S 101
MI' 1M
u II-Page fivc - mean
five III 2124 Ig~~~~ated III Reza G. Azizkhan, M.D.
3.1- indicate III :w ~ 1120 IUI I~.~
Ouidslll 11.10 11:14 ~ll J I~ 7 ~J 4
fold 111 11.1~ I greatf'l 3.~~ I" 24 indicated 111 14,24 ,large '" ~ J:
follow 11 I 1".1 I ~1:J11 ~~_J I I indications III :!~1J !Jastlol :'l I~ Ih I~
follow-up III D.3 grow 111 27:'1 I indirectly III 1"1).. , I~D :!~_211
I3f\ 1~.2.l 15.~3 guess III 234 indurated III 15111 latex 111 II ~
2h.23 i induration 111 LAWIII IJ
following 111 I" ~
4" -11- 'I".~ ~~ I) layman's III M:24
11.211 ~I I~ I infcction 1'1
halfway III 2.1 I: 1::1 1 IU
follows 111 3.7 hand 111 2'J :1 I 131~ 14:11) left 1111 h.22 9:1
foot III 14 I~ 21:24 hands-on III infonnation III 244 WIQ II.~) I3:W
forccl'l 14.12 21:1" '1.12 inguinal III 11.17 15J7 11,1~
Harrisburg 111 13.~4
2717 6.22 initial 101 Ig,21 2t1:~ 21 I
foregoing 111 29:" heal 121 ~JJ :!I.ltl )1: 101" 21 :!U ." 2~: 14
19:19 213 .......
forgelfullll ~5:24 healed 121 21 I~ :1.2' injured III ~7.2(' 27.2
forgetfulness 121 18:) hcalingll120lQ injuries I"I Icgl>1 11.21 11:24
2h:i height I'I 21 24 ,,:17 14" 15.17 !~ 18
8:~ 9:17 10.22 Icgslll
fonnJ1l 5.7 9:1 help 121 I~'II 231 17.1 17" 23:12 ~):15
:7:9 helpinglll~~:19 23:15 less 121 15.19 20:1"
fonnation III 1311 hematoma 121 13 III injury f1I W4 11;2~ letter 121 2125 24.1
forms 111 2U i 18.:: 13 I" 14.2' 23 ~) Iicen5C III 4.13
fonnulatelll WI" lhemodynamielll III.. 27:D 2: I ~ lliftingllf 1121
fourth III 13 I- I hemosiderin 1'1 '" I) innervates III 14.2 ligament I II 13.24
fracture 1191 h.22 I" 14 In 1'1 instance III 14,1~ I limitation III 1"J_2~
III I JO IQ 11.23 hereby I'f ): )4 instructions III 12 :~ limp III 111~
2\l.2 204 20'9 :9 ~ j 101.2.' limpinglll I'" "I ~
20:1: 2ll~3 2u.25 hereof III interested fll ....'
2t11.a ~I~ line III 2u 15
21:',1 2114 ~I f" hereunto III I internship 111
.:: I 27.3 27.11 2'1':: 413 lipoma (1f I".~~ 175
27 13 2714 ':7:1'7 hersclflll I~ ~I' ! tntravcDOus 111 1110 - 1:'.10 17.13 1'1"
fractured 101 13:11I I highlights III Q 14 I involvc 11124 1- ~~Ifl =~:14
1~21 .,.,., :':JZ IH~ltabran~:!.": 11J I involved 101 ~ I J list III :3 to
.../...
fractures III :2.3 ~ 1'1 ! S I: 11 - 1 ~:~ IiVCl21 I~ )" ~:24
frcclll :7.JIoi I ~::u 7 17 Iv:~ I iDvolvin~ III 13 II local 121 4-1: 4.2:
2t =1 .,...... :8 t~
Friday 121 ... .....' jironlll Itll~ located III 6 2{;
" 7:9 IHILLIII 114
-. IIVIII Ilookinglll
front III QJ(I q...., Himalayas III J I ~.; 2411
.. 4.
13 :: 14 I 14 IJ I Ilosclll 1111
full III 3 II' ".24 IhlP111 I~ I' l~ ~, j + lIoss III 14,::
fully III I ''''.:3 I~ I 2.4 n I I 10Rt III
4~ I history III ~ ) ~I II !J 111 III 2\1.& I~=~ ;'4' J~
function III 141 , Iii 14 IH I. I~ I 2'114 I lower 111 I) II IH
100 Iholdl'l iJanuary 101 4 I" lK::
""
functions III 191- 1 Holy 1'1 4 :3 '" l~ r l~'" 24 ~ i LUTZ 10f I'" 10
fUSC111 1917 I ~I jjoiDtll1 ~ I. i 19 ~ I" 720
j~fJI 11 I~ IJulYIlI I I: ~:) It'.J 2b.13 271
13: I =',2)
-G- I hospital 1121 I J line 121 I' . IH
4 . '. IIYiD&111
~ury 1>1 WI:
Gill I- ':.3 . ...~.. ~ I ., ) I ~ l.:!li
'" ) I: 1'l' -;',i J: ~ I~ ). ,IU I'"' II ''"' IJ
1~''J 11 II I~' '" I ! -M-
gant:rt'ne III 14 I. :~ ~ '- ,
general 111 0 4 1U -K' IM.D,o, I' . -
.. .. ~ I holqIllals 121 -'
-' .. :: H 2</-
" ~ I ~ ~- IKarlul ,
. . I' III: :1
" ! lDllin 1"
f'; I~ fI I ~ i hours III Ikeep"1 - I' II ~
gcDCrally 1" .- . . III' I ~ =~
,- . I hypoYOlcauc III 'killed III :: if == : i
:: : :.. '" :h t Ii I: ,IIYJOf III :,; t
:l'i .a !bacllll :1 ~ :: :1 i_jont'tll r" II'
lJC:OllC '" ) I: :!- I 2'"' I,.
IKNAUSSIII t :. '_Ill' l"':'.' :' p
gi~III'1 I: I" I: :1 ltllll'rcuiotll" ;"'1 !Ii:DC"" "1 " . I_tterl" I,:: ~
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717 2.\:HM4/W1-5101
mcans - reaction Multi-I'age T"
Reza G. Azizkhan, M.D.
means ,., Q4 10.24 Inccdl'l 14 1'1 I order 121 II" Ill..:!! I practice I-I 5:1
III I)I~ 14Y nccded III 4 1.1 I ordered 1211" 14 II' J '7' ; ".I~ ~24 7:14
I~ 10 151 ~ 20W negative III :!ll.;! lorderslll I previous III 41"
20 II 1" I~
mcantlll 9.:11 NELSON III 14 iorthopedie 1'1 11 In Ipreviously III I~Q
I.~ hi) Ilf, II I" . 1.1 I ~
medical 1'1 ) 17 ,
~2) 11\211 ~I II I nerve 1111 II:~ D I~ lover.IIIlII"~4 :~ 'j iprimarilYI'1 " I)
~2 II 13 II 1).1" IJ.:!11 1).21 iownlll IH Iprivatelll" I~
medication III I)~I 13.:: Ittlll I privilcge II I 4.23
1~:21 lh.22 I~ 2) 201.17
IJ~ 241Q .p- privilegcs III 4.21
mcctlll '7.24 nervous II I 2S.24 p.mlll I 12 lKI'7 problcml'l 12:1~
mentioned III II:I~ nervousness III IbJ :04.13 17.5 21:17
'" 7 25.20 page III problems 1'1
2~.7 painl'l I~ I! 13:5 ~14
mctlll ~.:2 8.1 neurologist III 12.: I~ ,~ 11:8 11.24 17J
8) 2311 23.23
METZGER III nevcr I_I :11: 22:11 part III ~.25 Q I process 11127.20
1:21 234 23:Q particularly III
midline 121 9:1 4.14 produce III 27:1)
DCWIII 27:'1 :~.14
9 ) 27"1"
might III next I_I I) 14 I~ ) parties III 3.3 2Q I" produces III 277
IR II I~ 4 1'1.2(1 jpasscd 121 4 IQ
milCIII 2:2~ ~ :~ product III I~ 14
non-displaced 121 20'1 ipassingllll~ I'
miDo"'1 23 15 20.2~ I past III products "I 16 18
mobility "' 17:2~ nODmalipantll1 17 I~ :: I(l I profession III 3:14
mobilizatioclll 21:~ Notary 1'1 I II 2Q 4 IpatieDtl-1 21 II :=" professional (2) 18:14
:2:1: 2J~ 24 D
MODday 11' .,;~ 291~ I 25.1) 2~.2U
'7 note(7J 21.:= 2~:~ patients I_I professionally II) 18:J7
5.10
moDthll1 172_ 2_~ 2_11 24.23 \ ~ J3 ::~ 71(1 progress 1'1 16.24
moDths 11127 10 27:10 2~.: 2~:1~ IPAULIII II 2~.1O 2~:1I
most 1'1 3 18 ..2 noted 1_' 11.2) 17.25 Ipelviel'l ti.2:t 8.~ progn:ssivcly (I) 17:9
"ll) I ~ II :7;~ 2310 ::.. I: ~.~ PI'OJlCf I'I 2019
28 ~ DOICSIII I~" pelvis 1_' ~ I' IJIII provided (II 7::::
mostly III ' I ~ 1':'.5 I nothing III :~ Iii ! UL:!I I~ :'" 11""-1 Ipsychiatric III 1810
Mother's III =:.u ! noticed 1112~ Q :~ I: :" ,.. I psychiatrist III IRIll
motOfJ!1 5.11 I".: now 141 ~ : tl ~.- IpcniculuSI'1 1 ~ 1.4 I pubes III ~,:
14' I'll Ig :~ i :!I I~:I :1 :: : I ~ I ~ Itd J ipubicIIl1 1,':3 Q.)
:2~ ..."...... 14- I Pennsylvania 1'1
movcl'l ~ I'- 1':.15 .... .. II Q4 101 10.20
2~.14 I
IH ' I 14 4 14 ::'-' ~ I IlIO 18.21 2\1:5
moved 1'1 ~:!" fl.:: numbcrl'l~ I: IQ III i 2'1 ~ . 11.1 22.: :7:1
f! :: 19:2~ I people I-I 7 II J:," I pubis 1'1 9.1 10:19
movilllllll~ I~ rumcrouslll H I 1~ I~ ::.1'1 I 10.2\1
MnJl'1 '" "',24 !peflll I~ 7 Public 1_' III 2'14
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" I: 1820 IH loaths tll ~~ Ipcriphcrallll I) :: jPUtlll 824 III
:1 If> 21 :: :.2.10 lobtailllll 8J i pcnoII UI II . I ~ :~
:121.1 :3 II ::3 :: I physlC:all_' -Q-
2_ I l!i It I obtaininc I II q II ~ I: I
multll'lelll 1017 iobviollSlIl '" 11 It ~ I ~ 133 IJIl : I qualificati01lS 1'1 H
, Itll" :I.a
muscles 1'1 lobviovsly 1'1 i ~ I f\ 5 18
10' IllI I pieces III :1' I-
t) :~ I.: 14 ~ ] '.19 ! qucstlOllS 141 ~ If!
:'" I" I Occasionally, II :~ II tP1Cmcnt 111 If'l .to; I ~p , 17 2\lq
IOCCllm:d 12I ... :3 :placcl'l II) 4. iquitel'l . I. 1119
-N. I 114 ~: ~ ~ ~J ' II:
, tll: 2'11-
nameI'! .. JIO 10fflll - !~ '''' ':' I PLAINTIFFS ('I ,
office "I I: i -R-
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71'-212'S644nn'5101
Multi-Page ", read - tissues
Rcza G. Azizkhan. M.D.
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read 111 ~3.J4 jroutinell17 ~ I shown III 212.1 ~ I ~ ~,~J ~:"
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UtVHi'
BERNADINE and PAUL CLEPPER, .
.
Plaintiffs .
.
.
.
vs. .
.
.
.
CONNIE L. NELSON, .
.
Executrix of the ESTATE .
.
OF RICHARD E. NELSON, .
.
deceased, :
Defendant .
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-5075 Civil
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
.mIca
TO: Bernadine and Paul Clepper, Plaintiffs
c/o David L. Lutz, Esquire
Angino , Rovner, P.C.
4503 N. Front Street
Harrisburg, PA 17110
You are hereby notified to plead to the enclosed Answer and
New Matter of Defendant Connie L. Nelson, Executrix of the Estate
of Richard E. Nelson, deceased, within twenty (20) days fro.
.ervice hereof.
METZGER, WICKERSHAM, ItNAUSS , ERB
'If:g1If~tiuire
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
(717) 238-U87
I'?
.
Attorneys for Defendant
Date I
"'"l-"fl.
BERNADINE and PAUL CLEPPER,
Plaintiffs
.
.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-5015 Civil
vs.
CONNIE L. NELSON,
Executrix of the ESTATE
OF RICHARD E. NELSON,
deceased,
.
.
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
Defendant
DEFENDANT'S ANSWER AND NEW KATTER
1. Admitted in part and denied in part. It is admitted that
Bernadine and Paul Clepper are Plaintiffs in the above-referenced
action. Defendant is without knowledge or information sufficient
to fora a belief as to the truth of the remaining averaents set
forth in paragraph 1 and the averments are therefore denied.
2, Admitted.
3. Denied. It is specifically denied that the allegation.
of Plaintiff.' Complaint are correct with respect to the incident
which occurred on Dec_ber 14, 1994. It is admitted that there was
a ~tor vehicle accident on December 14, 1994 at or about 5:30 a.m.
which occurred on William. Crove Road in CUmberland County,
Pennsylvania.
4. Admitted.
5. Admitted.
6. Admitted in part and denied in part. It is admitted that
the Tauser vehicle was stopped in the southbound lane of Williams
Grove Road on an icy bridge prior to the arrival of the Defendant's
vehicle. Defendant is without knowledge or information sufficient
to form a belief as to the truth of the remaining averments in
paragraph 6 and the averments are therefore denied.
7. Admitted in part and denied in part. It is admitted that
the Clepper vehicle was stopped in the southbound lane of travel on
Willia.s Grove Road on an ice covered bridge to the north of the
Tauser vehicle prior to the arrival of Defendant's vehicle.
Defendant i. without knowledge or information sufficient to form a
belief as to the truth of the remaining averments set forth in
paragraph 7 and the averments are therefore denied.
8. Admitted in part and denied in part. It is admitted that
Plaintiff Clepper was standing in the vicinity of the Tauser
vehicle and the Clepper vehicle on the ice covered bridge on
Wlllia_ Grove Road at or about the ti.e Defendant's vehicle
arrived on the scene. Defendant is without knowledge or
inforaation sufficient to form a belief as to the truth of the
re..ining aver.ents .et forth in paragraph 8 and the averments are
therefore denied.
9. Admitted in part and denied in part. It is admitted that
Defendant'. decedent, Robert E. Nelson vas operating a 19.9 ford
Lariat XLT vehicle northbound on William. Grove Road and approached
the icy covered bridge described above. Defendant i. without
-2-
knowledge or information sufficient to form a belief as to tne
truth of the remaining averments set forth in paragraph 9 and the
averments are therefore denied.
10. Admitted in part and denied in part. It is admitted that
Defendant's vehicle slid on the ice covered bridge and collided
with the Tauser pick-up truck. The remaining averments of
paragraph 10 are specifically denied and proof thereof is demanded
at trial.
11. Denied. Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments set
forth in paragraph 11 and the averments are therefore denied.
12. Denied. The averments of paragraph 12 are specifically
denied and proof thereof is demanded at trial.
13. The averments of paragraphs 1-12 hereof are incorporated
herein by reference.
14. Denied. Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments set
forth in paragraph 14 and the averments are therefore denied. Any
liability on the part of Defendant's decedent is specifically
denied.
15. Denied. Defendant is without knowledge or information
sufficient to form a belief a. to the truth of the averments .et
forth in para9raph 15 and the aver.ent. are therefore denied. any
liability on the part of Defendant'. decedent is spacifically
denied.
-)-
16. Denied, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments set
forth in paragraph 16 and the averments are therefore denied. any
liability on the part of Defendant's decedent is specifically
denied.
17. Denied. Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments set
forth in paragraph 17 and the averments are therefore denied. any
liability on the part of Defendant's decedent is specifically
denied.
18. Denied. Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments set
forth in paragraph 18 and the averments are therefore denied. any
liability on the part of Defendant's decedent is specifically
denied.
19. Denied. Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments .et
forth in paragraph 19 and the averments are therefore denied. any
liability on the part of Defendant'. decedent is spacifically
denied.
20. Denied. Defendant i. without knowledge or inforaation
sufficient to for. a belief a. to the truth of the averaent. set
forth in paragraph 20 and the aver.ents are therefore denied. any
liability on the part of Defendant'. decedent 18 specifically
denied.
-4-
21. Denied. Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments set
forth in paragraph 21 and the averments are therefore denied. any
liability on the part of Defendant's decedent is specifically
denied.
22. Denied. Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments set
forth in paragraph 22 and the averments are therefore denied. any
liability on the part of Defendant's decedent is specifically
denied.
23. Denied. Paragraph 23 states a legal conclusion to which
no answer is required. To the extent that an answer is deemed
necessary the averments are specifically denied and proof thereof
is demanded at trial.
24. The averments of paragraphs 1-23 hereof are incorporated
herein by reference.
25. Denied. The averments of paragraph 25 are specifically
denied and proof thereof is demanded at trial.
lfn IIA'l'TD
26. P1aint1ff.' c1a1m 1. barred, in whole or 1n part, by the
.election of the liaited tort option on applicable policie. of
insurance.
-5-
27. Plaintiffs' claim is barred, in whole or in part, by the
provisions of the Pennsylvania Motor Vehicle Financial
Responsibility Law.
28. Plaintiffs have failed to mitigate their damages.
29. Plaintiffs' claim is barred, in whole or in part, by the
provisions of the Pennsylvania Comparative Negligence Law.
30. The negligence of Plaintiff Bernadine Clepper consisted
of the following:
(a) She brought her vehicle to stop on a through roadway
creating a hazard and obstacle to approaching traffic;
(b) she failed to warn approaching traffic, including
Defendant's decedent, of the hazards created by her
vehicle stopped on the roadway;
(c) despite being warned to stay in her vehicle and to not
walk about on the bridge given the icy conditions
existing thereon which she was fully aware of she allowed
herself to be placed in a position of peril for
approaching traffic when she knew, or should have known,
in the exercise of reasonable care that the same icy
condition that she had encountered would be encountered
by approaching traffic;
(d) she failed to exercise that degree of care, caution and
skill reasonably required under the circuastances;
(e) she failed to take those steps reasonable and necessary
to avoid being struck in a subsequent collision involving
approaching traffic; and
-6-
vs.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Ne. 'Iv' 'JiJ II' (:.~"-' T ~
BERNADINE and PAUL CLEPPER, :
Plaintiffs:
.
.
.
.
Connie L. Nelson,
Executrix of the Estate
of Richard E. Nelson,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
COMPLAINT
1. Plaintiffs Bernadine and Paul Clepper, citizens of
the Co_onwealth of Pennsylvania, are husband and wife, adult
individuals who reside in Mechanicsburq, CUmberland County,
Pennsylvania.
2. Defendant Connie L. Nelson, is the Executrix of the
Eatate of Richard E. Nelson, pursuant to Letters Te.tallentary
qranted to her by the Reqister of Wills of York County on July 30,
1996. Attached as Exhibit "Aft is a copy of the Certificate of
Grant of Letters Testamentary.
3. The facts and occurrences hereinafter related took
place on or about December 14, 1994, at approxillately 5:30 a.II., on
Williams Grove Road, CUDberland County, Pennsylvania.
4. At that time and place, Mrs. Clepper was operatinq
her aotor vehicle, a 1984 Chrysler Lebaron, in a south.rly
dir.ction on Willia.. Grove Road.
5. At the .a.. ti.., Mr. Samu.l L. Tau.er had be.n
operatinq hi. 1919 Toyota pick-up truck, travelinq North on
Willia.. Grove Road.
1
6. As Mr. Tauser entered onto a bridge on Williams
Grove Road, his 1989 Toyota pick-up truck slid to the West side of
the bridge and came to a stop.
7. When Mrs. Clepper entered onto the bridge, her
vehicle also slid West on the bridge and came to a complete stop
several feet in front of Mr. Tauser's stationary Toyota pick-up
truck.
B. After Mrs. Clepper's vehicle came to a stop, she
exited her vehicle and walked to the front of her vehicle to
inspect whether there was any damage. Mrs. Clepper was standing
between the front of her vehicle and the front of Mr. Tauser's 1989
Toyota pick-up truck.
9. While Mrs. Clepper was standing between her vehicle
and Mr. Tauser's pick-up truck, Robert E. Nelson, operating a 1989
Ford Lariat XLT, was traveling North on Williams Grove Road,
approaching the subject bridge.
10. Mr. Nelson was traveling at a speed too fast for
weather and road conditions because he did not bring his vehicle to
a stop, notwithstanding the two vehicles stopped on the bridge, and
the front of his vehicle collided into the rear of Mr. Tauser's
stationary 1989 Toyota pick-up.
11. The force of the i.pact to the rear of Mr. Tauser'.
pick-up caused the truclt to be pushed forward and crushed Mrs.
Clepper betveen the front of the 1989 Toyota pick-up truck and the
front of her Chryaler Lebaron.
:I
12. The foregoing accident and all of the injuries and
damages set forth hereinafter sustained by Plaintiffs Bernadine and
Paul Clepper are the direct and proximate result of the negligent,
careless, wanton and reckless manner in which the Defendant's
decedent, Richard E. Nelson, operated his motor vehicle as follows:
a. failure to have his vehicle under such control
as to be able to stop within the assured clear distance ahead;
b, failure to keep alert and maintain a proper
watch for the presence of other motor vehicles on the highway;
c. failure to stay within his lane of travel;
d. failure to apply his brakes in sufficient time
to avoid colliding into the rear of Samuel Tauser's pick-Up
truck;
e. failure to travel at a safe speed;
f. failure to keep a proper watch for vehicles
stopped on Williams Grove Road;
g. failure to drive his vehicle with due regard
for the highway and traffic conditions which were existing and
of which he was or should have been aware;
h. failure to keep proper and adequate control
over his vehicle; and
1. driving his vehicle upon the highway in a
manner endanqerinC) persons and property and in a reckless
..nner with careless disregard to the rights and safety oC
others and in violation of the Kotor Vehicle Code of the
commonwealth of Pennsylvania.
CLAIM I
Bernadine CleDDer v. Connie L. Nelson. Executrix of
the !state of Richard E. Nelson
1). paragraph. 1 through 12 of the COaplaint are
incorporated herein by reCerence.
)
14. Plaintiff Bernadine Clepper sustained painful and
serious injuries, causing a serious impairment of bodily function,
which include but are not limited to multiple trauma, fractured
left pubic ramus, extensive hematoma and bruising of the lower
abdominal wall and pelvic areas and upper hip areas, a contusion to
the right femoral nerve, depression, and anxiety.
15. By reason of the aforesaid injuries sustained by
Mrs. Clepper, she was forced to incur liability for medical
treatment, medications, hospitalization and similar miscellaneous
expenses in an effort to restore herself to health, and claim is
made therefor.
16. Because of the nature of her injuries, Mrs. Clepper
has been advised and, therefore, avers that she may be forced to
incur similar expenses in the future, and claim is made therefor.
17. As a result of the aforementioned injuries, Mrs.
Clepper has underqone and in the future will undergo physical and
mental suffering, inconvenience in carrying out her daily
activities, loss of life's pleasures and enjoyment, and claim is
made therefor.
18. As a result of the aforesaid injuries, Mrs. Clepper
has been and in the future will be subject to humiliation and
ambarras..ent, and claim is made therefor.
19. As a result of the afor..entioned injuries, Mrs.
Clepper has sustained a serious injury and a serious iapairaent of
bod il Y functl on,
4
20. As a result of the aforementioned injuries, Mrs.
Clepper has sustained work loss, loss of opportunity, and permanent
diminution of her earning power and capacity, and claim is made
therefor.
21. As a result of the aforementioned injuries, Mrs.
Clepper has sustained uncompensated work loss, and claim is made
therefor.
22. Mrs. Clepper continues to be plagued by persistent
pain and limitation and, therefore, avers that her injuries may be
of a permanent nature, causing residual problems for the remainder
of her lifetime, and claim is made therefor.
23. The insurance forms Mrs. Clepper signed with her
insurer, State Farm Mutual Automobile Insurance Company, do not
comply with 51705(a) (2) of the Pennsylvania Motor Vehicle Financial
Responsibility Law providing that the tort option notice shall be
printed on one sheet of paper in prominent type and in a prominent
location and moreover, the State Farm form did not provide Mrs.
Clepper a place for her to sign the form as required by
51705(a) (1).
CLAIM II
Paul Cleaner Y. Conn!. L. Nelsan. Administratrix af
the Estate of Richard E. Nelson
24. Paragraphs 1 through 23 of the co.plaint are
incorporated herein by reference.
25. AS a re.ult of the afore.entioned injurie. sustained
by his vife, Plaintiff Bernadine Clepper, Plaintiff Paul Clepper
5
1 ·
#28
BERNADINE and PAUL CLEPPER,
plaintiffs
.
.
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
.
.
v.
: CIVIL ACTION LAW
.
.
CONNIE L. NELSON, Executrix
of the Estate of
RICHARD E. NELSON,
Defendant
.
.
.
.
96-5075 CIVIL TERM
IN RE: PRE-TRIAL CONFERENCE
At a pre-trial conference held August 27, 1997,
before Edgar B. Bayley, Judge, present for the plaintiffs was
David L. Lutz, Esquire, and for the Defendant, Karl Hildabrand,
Esquire.
On Deceaber 14, 1994, Plaintiff, Bernadine
Clepper, slid on some ice and her vehicle came to a stop near a
pick-up truck that had also slid on the ice and had come to a
stop. plaintiff got out of her vehicle. Defendant approached
in his vehicle, slid on the ice, struck the rear of the other
vehicle which pushed Plaintiff between that vehicle and her
vehicle causing her personal injuries.
Liability is contested. Defendant claiaa
Plaintiff was contributorily negligent. Counsel should provide
the trial judqe with a brief on the issues of liability and
contributory negligence. Plaintiff sustained a fractured pelvis
and related soft tissue injuries.
Plaintiff seeks general daaag.s, lost vages and
loss of earning capacIty. Her husband, Paul Cleppar, ...ks lo.s
of consortlua.
i
Defendant, Richard E. Nelson, is deceased and his
death had nothing to do with this accident. Defense counsel
represents that he will not be calling the executrix, Connie L.
Nelson, as a witness unless testimony develops at trial that
would make her input relevant.
Under a case decided by the Superior court, upon
which the Supreme Copurt has accepted review, Plaintiff
acknowledges that a limited tort issue applies to the facts of
this case and both counsel agree that the limited tort issue
will be submitted to a jury. Plaintiff has filed a motion in
limine to protect the record, maintaining that limited tort does
not apply in case the Supreme Court reverses the superior Court.
The trial judge should make a ruling on this motion in limine in
order to protect the record for Plaintiff.
Plaintiffs' counsel seeks to show the jury a
day-in-the-life video of Plaintiff as she is affected by her
injuries. The defendant will object. The admissibilty of such
a video should be briefed and submitted to the trial judge at
the co.aence_nt of trial.
The e.timated time of trial i. 1 1/2 days.
By the cou,r~1"
//
J.
David L. Luta, EsquIre
rol' plaintiffs
Itarl R, Hllubrand, EIIq\IIre
For Defendant
)
:lkt
793 CIV.L 1993
The jury's conclusion, based on these factors, docs not shock our sense of justice. There
was evidence that, among other things, the plaintiff was not prevented from performing any of
the normal activities of daily life, and was able to play softball, drive a motorcycle, move his
belongings across the country and travel. Furthermore, he was only immobilized from the
accident for a short period of time and no evidence established conclusively that an impairment
would develop in the future.
In response to the plaintiffs second contention. it is well established that the trial court
has a broad grant of discretion ,.ith regard to expert testimony. Whistler SoorlSwear. Ine. v,
B!!l!2. 289 Pa.Super. 230, 433 A2d 40 (l981). Furthermore, in Pennsylvania, it is now agreed
that an expert opinion as to an ultimate issue in a case should be excluded if it /"ould mislead,
confuse or prejudice the jury. Bessemer Stores. Ine. v, Reed Shaw Stenhouse. Ine.. 344 Pa-Super.
2l8, 496 A2d 762 (l98S). The plaintiff argues that Dr. Lippe should have been a\lowed to state
his opinion on whether Mr. Orl\ic's injury was serious aocording to the standard set fonh in
Dodson. supra, The way in which the suspect questions were phrased, the doctor was asked to
express an opinion not only about Mr. Oravic's injury but about the substance of a judicial
holding. In other words, the opinion elicited was not only with regard to the extent of injury but
whether, as a lu!l matter, it met the required thresho\d. We arc satisfied that elicitinc this
opinion from a medical witness ....as prejudicial to the defense. We continue to be satisfied that
the ucIusion of this opinion testimony ,,'as not error.
We win grant the plaintiffs requested relief based on his third argument. We originally
denied plaintiffs motion to amend till complaint bcause It came on the mormng of the trial and
we felt that such a late amendment ",oollS be extremely preJudicialt" the dcfenlhnt Upon
fullher romldcr:atl(\n. holocv\'r. ,"c belie\e the motl",n shwld have betn grantc\! In
3
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REQUESTOR JlFTDSON. P
JOB STA UNA AUTO
CART NO. 295' DOC toe
POLICY NO. 7169737
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