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Home My WebLink About96-05228 ~ ~ ~ ". c ( ~ <t c.9 -"'... I I ( ; I ! ~ t I - I . . ~ .- ,,:~ . '.;;;,-;." '4,.<, ,i~,;> :,~""; ~ - -~ . p,.,,:,:ii 'f-..,,:.:,,~~ . 5t,. "::~r~:~~~ '>,'~ r *'L' JUSt...1 M_ MElJIJ.n TT.RRY S HYMAN DAVID L. LUTZ MIOIAfl. E. KOSIK PAMELA 0, SHUMAN RICI\ARD A. SAIlUJCK Angino It Rovner UrnDIN DAVID S WISNESKI hlllJUC O!.SON MICHAEL I, NA\IDKY IlISEftt M DORIA DUANE S, IARRJCX lAMES IltCINTI TIlE BFST lAWYERS -IN- AMERICA May 7, 1999 I. i \ RJC1IAIlDC, ANOlNO NfJL I ROVNtIl Mr. Rick Pierce, Court Administrator CUmberland County Courthouse One Courthouse Square Carlisle, PA 17013 1 I Re: Garman v. Lowe's i l , ; i , l ., i ~ I , Dear Mr. Pierce: Per the request of your office, enclosed please find four self-addressed, stamped envelopes for you to send the executed Orders to defense counsel, David Green, and myself. If you have any questions, please feel free to eall me. Imtg Enclosure. yours, lu.n/W'l'l:l ."'t 100.'" ._. "...f' ..._._ .. ..... '.... . i'1't"~ . ......"1-- - ,-..-...- '- . \ ...-.............,. I .".=.....~~~>~_~,\\.~jJt;}."1"''' _ 'I ." '1"~ f I '~~') . ,:,"1, ,. -)Ie::' ~ti f I '! 'J "). ~'-::-_. / '.' l.J J .. ~~ ,~ . HMt.lf k <"J; ri): NO POSTAGE NECESSARY. POSTAGE HAS BEEN PREPAID BY ANGINO & ROVNER PC 4503 NORm FRONT STREET HARRISBURG PA 17110 tvCO '--.-'-~"--""-"""'.-'.,,~.~' jTIIi1'iliTR,:,fiil'1"''''ij;:''f:_~lRlT1:''1itrT'['':rjil'T'R "j ,U' .,', 1 I . . :f , . ;-.'-' ., - . . -.-.... - . \, '~'_*,.,m.,,,,*,,'."_;'->-""""" .H, li~Ir::JrJrt:1"!r~'",~::tj2~~..,.",,_.',,_~~t~ -J>:,~~ ':U :', .~. ' 1 [ ....,.."'.:-,,..,...~,'...-..__.,~,'~"i;....,,,gct<i '.:..,' , ;>':,'\(.1'" ~: \~~.. .",.. '\ (. rJ ') . /. / , , I ~ ~ '_"..";J,:, .. P,'4ll(1'P ,; '~6-' " NO POSTAGE NECESSARY. POSTAGE HAS BEEN PREPAID BY ANGINO & ROVNER PC 4503 NORm FRONT STREET HARRISBURG PA 17110 ~C() . .~.......- ,- ~, . \, _ l L - I, ~ f'.l .-"';~ - ~ /J( -.. ..- ~.... t . ~'. ,', .?-.- /-~" ;, ~~ -i ~ _::'~'l.~ V.........." ".' '.j '. ~ I I ;1 .,1 ItM: r~' ~~ <';1>\ .",; Angino URovner 00 mffllM mEET IlAiRJSBllIG. PA 1711~li'lI DAVID M GREEN ESQUIRE 100 PINE STREET 4TH FLOOR PO BOX 803 HARRISBURG PA 17108-0803 - ~- Angino BRovner 00 NlIIll FiONf S1IF.ET HARlISBIJIG, PA 17110-1n ...~.......w " -- " ~ ~"~ ,-;::,,>",.'; ": _.II-f! ,~: ,,:(,v~:.; C: ;: ') "" ~: ;1,-"""; ., '_.J j ; I ~~!il~ ~s;o!'::" .~I . \, I ill IIUiJL I I~'...~~ DAVID M GREEN ESQUIRE 100 PINE STREET 4TH FLOOR PO BOX 803 HARRISBURG PA 17108-0803 and Ibuprofen, were being taken for pain at the time she evaluated Mr. Garman in July 1998. 5. It is admitted that Mr. Garman took depression medications prior to the fall in question. It is also admitted that after the fall, his family physician prescribed Buspar for anxiety. 6. It is admitted that Mr. Garman's Zoloft medieation was inereased after the fall at Defendant Lowe's by his physieians. 7. It is admitted that Defendant subpoenaed a variety of Mr. Garman's medieal records, including a subpoena for records from Philhaven. 8. It is admitted that Plaintiff's counsel objeeted to the subpoena for Plaintiff's Philhaven reeords as irrelevant because Plaintiff is not pursuing a claim for "psychologieal" damages per se. 9. Admitted. By way of further response, the injuries and damages claimed inelude pain and suffering, loss of life's pleasures, humiliation, embarrassment, disfigurement, past/future medieal expenses, and work loss/future earning eapaeity. 10. It is admitted that Plaintiff's vocational and rehabilitation expert's report included 18 sessiona for counseling to "aaaist him with eoping with hi8 1088 associated with thia injury," Chronic pain management counseling 8e8sions are not .psychological" injuries, per 8e, and the coun8eling sessions for disabled, chronic: low b;ac:1t pain sufferers should not be precluded. ;2 ll. It is specifically denied that Plaintiff's voeational rehabilitation expert lacks evidentiary support. It is the job of a rehabilitation and vocational expert to perform eomprehensive rehabilitation evaluations. This job ineludes a review of all medical reeords, interviewing the elient and his doctors, and evaluating medieal, vocational, soeial, and finaneial information eoncerning the patient. A life care plan is then prepared based on the interviews and documentation reviewed, Speeific lifetime eare needs for the injured individual, along with assoeiated eosts and present day values are ealculated. Rehabilitation evaluations describe the impact the injury has had on the individual in relation to his physical limitations, social and emotional funetioning, and activities of daily life. For approximately 20 years, Plaintiff's vocational and rehabilitation expert, Barbara Orstein-Metz, H.Ed., C.R.C., C.C.M., has had expertise in providing case management life eare evaluations to individuals who have been injured, Her specialization is with eatast.rophie injuries, Plaintiff's expert is a eertified rehabilitation counselor, certified case manager, has specialized t.raining in spinal cord injury, life care planning, catastrophic ease management, and vocational assessment. She has been Viee President of and served on the Board of Directors for the Keystone State Head Injury Foundation, and is a member of the National Association of Rehabilitation Professionals in the Private Sector, both in the Forensic Section and Pa. cha.pter. The expense for the spinal cord stimulator itemized in Mr. Garman'. life care plan, isÿ ) based upon conservative, standard medical costs for insertion of this device. Specialists from Johns Hopkins Hospital have recommended not only this spinal cord stimulator, but spinal cord fusion surgery, as well as narcotic implants to help manage Mr. Garman's back pain. There is ample evidence concerning the medical need for a spinal cord stimulator, which costs were conservatively estimated by Plaintiff's vocational and rehabilitation expert utilizing present day medical costs for this device. 12. Denied. Plaintiff's vocational and rehabilitation expert prepared a life care plan for Mr. Garman based upon a review of all of his medical records relating to the injury he sustained in the fall at Defendant Lowe's in O~tober 1995. The review included records from the Annville Family Practice, Lebanon Orthopedic Associates, Hershey Medical Center, Good Samaritan Hospital, Dr. James Argires (neurosurgeon), Lancaster General Hospital, Apple-A-Day, Holy Spirit Hospital, Johns Hopkins Hospital, Dr. George Steinman, Dr. Neilson, and a multitude of pharmacy records for prescriptions by numerous of Mr. Garman' 8 physicians for management of his chronic back pain. The "persistent pain management program" cost itemized in Plaintiff's vocational and rehabilitation expert's report was based on factual data Bupported by Mr. Garman'B medical records, interviewB, reports, and depositions. D. Denied. As an experienced vocational and rehabilitation expert, who relies upon medical records, reports of medic.l personnel. intervh,w8, depositions. and a plethora of 4 l'i o. ?: "- C'-' ;.: ,. & OJ.' ~ ': . )..... f" ..... ,.... . '. ".~ .;: ~- )....., ~~. ~ .-t~ \D :'::L'J rl: f ;..... :>.- ~'~t:) -~ ... ;,. . !.:l: 4 en cj ...., (1\ f.) .. . GEORGE E. GARMAN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-5228 CIVIL vs. LOWE'S OF PENNSYLVANIA, INC. t/d/b/a LOWE'S OF MECHANICSBURG and LOWE'S HOME CENTER, INC., Defendants JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANTS' MOTION TO PRECLUDE GEORGE GARMAN'S CLAIM FOR LOSS OF EARNINGS AND/OR IMPAIRMENT OF EARNING POWER AND CAPACITY 1. It is admitted that Plaintiff has a claim for loss of earnings and impairment of earning power and capacity. 2. It is admitted that Plaintiff's tax returns were filed for the years 1989 through 1995. along with various form W-2s and form 1099' s. By way of further response, self -employed individuals such as Mr. Garman often are not compensated in manners analogous to those individuals who are not self-employed. The tax returns do not accurately reflect Mr. Garman's compensation due. 3. It is admitted that Plaintiff has produced the economic expert report of David L. Hopkins, A.S.A., which includes his opinion of Mr. Garman's loss of earning capacity. work life expectancy. past lost earning cllpacity, medical costa, and household services baaed on his review of records in this case and conversations with Mr. Garman. ... Plaintiff' III economic tUlPflrt report of David L. Hopkins, A.S.A., is a written document which speaks for itaeIf. \4 '(J. lfwt'q 1 ORIGINAL .. (See, report of David L. Hopkins, A.S.A., attached hereto as Exhibit A) . 5. The actual earnings in the form of wages and net business income based on Mr. Garman's income tax returns are stated in Plaintiff's economic expert report of David Hopkins, attached as Exhibit A. 6. It is admitted that for a period of less than six months time in 1995, Mr. Garman's total income from United Waterproofing Systems, ....as $16,619.00. This would project an approximate $30,000 annual loss had Mr. Garman not been incapacitated by the injury to his back as a result of the fall at Defendant Lowe's in October 1995. 7. Plaintiff's economic expert report of David L. Hopkins, A.S.A., is a written document ....hich speaks for itself. By way of further response, Plaintiff's expert report is premised upon a review of Mr. Garman's medical records, deposition transcripts of Mr. Garman, James O'Brien, Dr. Argires, Defendant Lowe's employees, tax returns, and conversations with both George Garman and James O'Brien, Mr. Garman's employer at United Waterproofing Systems. 8. Plaintiff's economic report of David L. Hopkins, A.S.A., is a written document which speaks for itself. 9. Denied. Mr. Garman has history of earning $30,000 per year as evidenced by his income tax returns. By way of further response, the normal status of a healthy penon ia to progre.., and Mr. Garman'. progress haa been curulled .. a reault ot injuries he sustained at Defendant Lowe's on October ,. 199$. 1 . . 10. Denied. The expert report of David L. Hopkins, A.S.A., is based upon history of earnings and testimony of Mr. O'Brien, the owner of the basement waterproofing company, which confirmed Mr. Garman's expected promotion and income of S50,000 annually. 11. Denied. According to Mr. O'Brien, not only did a salesperson earn SSO,OOO/yearly for United Waterproofing Systems, but a Dart-time salesperson/installer earned SSO,OOO working for the company as well. (James O'Brien Deposition Transcript, p. 95). Furthermore, Mr. 0' Brien repeatedly testified that Plaintiff's economist, David L. Hopkins, may indeed have called, but at that moment in his deposition, Mr. O'Brien could not recall the specifics of the contact. (James O'Brien Deposition Transcript, p. 117) . 12. Denied. Plaintiff's economic expert specifically took into account the nature of United Waterproofing System's business and dependency on rainfall when he evaluated Plaintiff's past lost earnings and future earning capacity. 13. Denied. Plaintiff's expert, David L. Hopkins, A.S.A., did take into account the fact that Mr. O'Brien spoke with several other individuals concerning po.sible partnerahip positions. It wae only with Plaintiff George Gal'1ll&l1 that Mr. O'Brien felt most comfortAble with for thia position. (James O'Brien Deposition Transcript. pp. 71. '6, and '71. It i. further deni@d that Plaintiff'. expert did not take into aec~nt varioua structures in the way in which the SSO, QOO ~rlv iilCOtlle would be ) I .. . , . George E. Garman BACKGROUND George E. Garman was born on June 22, 1949. Therefore, he is cur- rently 49.1 years of age. Hr. Garman was injured in a fall at a retail store on October 6. 1995, As a result of hia injuriea, Hr. Garman haa undergone aeveral back aurgeries and suffers continuing pain. Hr. Garman continues on regular pain medlcationa at an eatlmated cost of $3.000 per year. At the time of the accident. Hr. Garman was employed on an Indepen- dent contractor baals for United Waterproofing Systems, He had been 10 employed for approximately four to five montha prior to the time of tbe accident. Hr. Carman was involved In the sales and Installation of bale- ment waterproofing aystems. The owner of United waterproofing SYlteml, Hr. JlD O'Brien. baa indicated that Hr. Carman waa a reliable and honeat em- ployee and that he waa very .dept at dealing with clients. Hr. O'Brien baa furtber indic.ted th.t it was hia intention to broaden the r~aponaibilitiea of Hr. Canaan in hla budneaa. .nd that the .nticipated eaminas level for Hr. Canaan would have been $50.000 per year. had be not been Injured in the .ccident of October 6. 1995. Following the accident. Hr. Canaan .ttempted to return to thia work from September of 1997 to December of 1997. but he val unable to continue working al a result of hia dllablllty, Hr. Caraan ia a hieh Ichool gradu.te, He .lao obtained training .a a ainiater at lere.n College in Dallal. Texal, Prior to hil eaployaent vith the United Waterproofing Syateaa, Hr, Carman had worked .. a rooflna laln- perIOD. conatructton worker. cook. beauty luppliea ..lelperlon. inaurlnce aaleaparlon. .nd .1 a al.eaperaon In other related bulldtng tr.dea. Ac- cordine to inforaatlon from Mr. CarBIn'a tncose t.x returnl. hia .ctu.l earningl for the ye.rl 1989 through 1995 were .1 followa: Net lualnell Uneap1 oJ1lent Tear W.a.&.."-~ Inc_ ~Jl:!n~.t}~ Total -- -.-----.- - ~ 1M' $4.091 $5.9" $4,610 $14.961 1990 $16.522 $971 $17.49J 1"1 $1'.616 U',616 1991 $15,10' $6,lU $11.491 1991 $6.289 -- $n,964 $1'.2H 19'4 U.611l $1,120 $1.\16 tlO,214 1995 un $6.114 $6.704 Mr. Ca..... it _ _"Ie to ,.rfora vari.... a"I''11e.. fnr the Ilpknp of hla ~..h4I' ~Ir~ h" 1'811llll'I, prn.,t..' ,rtor to t~ tt.. .f hi. .ta- ."tllt,. ~.. h~..hot' s.l'vle.. ~Ill' tatl.... r~.llna. tepatra. ..la. t._e. I.....". yar4lwotlt. uto _l.tnnn. .... otllttr "ul'.1 lwN....t. rher... It,. C.flMlI Illdlutu t\\,at he .,."t u ...."'.. of IlIlVr-d_ttt, II) '-n ,., .... petf.u...1... thoae unlr.. ~1ch he it ". I....,. .\1. tOt ....- vl4<t . -1-