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WILLIAM L. HOWARD AND
BERNADETTE S. HOWARD,
PLAINTIFFS
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
CIVIL ACTION - LAW
V NO. 96-5554 CIVIL
MICHELLE L. FLECK,
DEFENDANT JURY TRIAL DEMANDED
DEPOSITION OF: JOHNSON COYLE, M.D.
TAKEN BY: PLAINTIFFS
BEFORE: MARIA N. O'DONNELL, RPR
NOTARY PUBLIC
DATE: APRIL 7, 1997, 11:00 A.M.
PLACE:
28 SOUTH PITT STREET
CARLISLE, PENNSYLVANIA
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APPEARANCES:
ANGINO & ROVNER, P.C.
BY: DAVID L. LUTZ, ESQUIRE
FOR - PLAINTIFFS
HARRINGTON, KAUFFMAN & SHILLING
BY: C. WILLIAM SHILLING, ESQUIRE
FOR - DEFENDANT
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Hughes, 7llbright, 'Foltz b-' J/aide J?eporting &n'ice, 8nc.
115 PINE STREET. HARRISBURG, PA 17101
Harrisburg 717-232-5644 Fax 717.232.9637 Lancaster 717.393.5101
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1 WITNESSES
2 NAME DIRECT CROSS
3 JOHNSON G. COYLE, M.D.
4 BY: MR. LUTZ 3
5 BY: MR. SHILLING
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1 JOHNSON G. COYLE, M.D., called as a witness,
2 being duly sworn, testified as follows:
3 DIRECT EXAMINATION
4 BY MR. LUTZ:
5 Q Would you please state your full name.
6 A Johnson G. coyle, M.D.
7 Q What type of doctor?
8 A Emergency department.
9 Q How long have you been a physician?
10 A 18 years.
11 Q Where are you presently employed?
12 A Carlisle Hospital.
13 Q Could you tell the ladies and gentlemen of the
14 jury what you do on a daily basis?
15 A I am responsible to do the initial evaluation and
16 treatment of any patient that comes to the emergency
17 department with an illness or an injury.
18 Q Doctor, would you please summarize your
19 educational background and training?
20 A I received my undergraduate degree from Juniata
21 college in biology in 1973, attended Jefferson Medical
22 College, graduated 1978 with an M.D. degree.
23 I had a year of family practice residency
24 training in Flint, Michigan at st. Joseph Hospital, and
25 became board certified through the so-called practice track
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1 in 1985.
2 Q Doctor, over the over the years, have you come to
3 treat people that have been involved in motor vehicle
4 accident trauma?
5 A Yes.
6 MR. LUTZ: At this point, I am going to move to
7 have Dr. Coyle admitted as an expert in emergency medical
8 care and ask if there are any questions on qualifications.
BY MR. SHILLING:
Q Doctor, you said that you were board certified
through the so-called family track?
A It's called practice.
Q Family practice track?
A I entered the specialty before there were many
residencies back in 1979, and after a certain period of
years of work and hours of education, you are eligible to
take the exam.
I took the same board exam that the residents
take and in 1985 became a board certified, a fellow of
the -- fellow in the American college of Emergency
Physicians.
Q Do you take the same exam that the residents
take?
A Yes, that's right.
Q Is there a different exam that is now given in
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1 family practice?
2 A It's board certified in emergency medicine, no,
3 it's the same two part exam, written and oral.
4 Q Okay. So the same one that you took in 1985?
5 A Yes, sir, that's right.
6 Q How long have you been at Carlisle Hospital?
7 A Five years.
8 Q Have you ever been in private practice on your
9 own?
A No.
Q How many doctors are at Carlisle Hospital in the
emergency department?
A There would be six to seven full time physicians
and usually about four part time physicians.
MR. SHILLING: I have nothing further at this
time.
BY MR. LUTZ:
Q Doctor, we're now going to direct our questions
to the care and treatment that you provided to William
Howard.
And in answering any of my questions or Attorney
Shilling's questions, you may certainly look at your medical
records.
When and where did you first meet Mr. Howard?
A It was on February 26th, 1996 in the x-ray
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1 department.
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When you first met him, did you obtain a history?
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Briefly. I
actually I obtain most of it from
4 Dr. Glaun who had seen him.
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Who is Dr. Glaun?
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He's a part time emergency department physician
7 that had been working the shift prior to mine and he saw
8 Mr. Howard as he arrived.
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Q
What history did you obtain?
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That he had been
11 MR. SHILLING: I will object at this time unless
12 this is information that Dr. coyle's specifically got and
13 not the information that he may have gotten from Dr. Glaun.
14 It is hearsay.
15 BY MR. LUTZ:
16
Q
His objection is noted for the record, doctor. A
17 judge will rule on it later.
18 I am going to actually ask you two questions.
19 What history did you obtain from Dr. Glaun, then after you
20 are done with that, I will ask you the second question, what
21 history did you obtain from Mr. Howard.
22 MR. SHILLING: I will object as to any information
23 he got from Dr. Glaun as being hearsay.
24 MR. LUTZ: Right. I understand your Objection.
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25 BY MR. LUTZ:
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1 Q So doctor, the first question is, what history
2 did you obtain from the records pertaining to the history
3 that Dr. Glaun obtained?
4 A What information did I obtain from Dr. Glaun's
5 information?
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Q
Yes, sir.
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A
Well, I put it all together, but I do have
8 independent recall of speaking with Mr. Howard.
9 But that he had been the restrained driver of an
10 automobile that morning, early, which had struck another
11 automobile in a head on collision fashion. And that the
12 patient's headed struck the windshield and had broken it.
13 And there was a question as to whether he had or
14 had not been unconscious. Dr. Glaun's impression was I
15 think that he had not been unconscious.
16 MR. SHILLING: Again objection.
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THE WITNESS: His injuries seemed to be confined
18 to the head and neck and the wrist.
19 BY MR. LUTZ:
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Q
Doctor, what history did you obtain directly from
21 Mr. Howard as to what had happened?
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A
I spoke with him in the x-ray department after
23 his initial x-rays had shown a cervical spine fracture, at
24 which point I went over personally to be sure that he was
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25 all right since I hadn't seen him.
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And I asked him again what had happened, and just
spoke with him regarding the events of the accident to see
what his memory was for that accident. And he confirmed
that he had been the driver, that he hact been wearing his
seat belt, and he was not very clear as to the immediate
events surrounding the collision, to my satisfaction. He
couldn't tell me exactly what had happened.
Q Why were you in the x-ray room?
A I was concerned because he had a cervical spine
fracture that his -- he was in danger of having a spinal
cord injury, and I wanted to assure myself that he was
okay.
Q Where was the cervical spine fracture located?
A It was in the upper part of the cervical spine.
There are seven cervical vertebrae. They're numbered from
top to bottom, one through seven. One is at the base of the
skull. Two is just below that. It's the vertebrae called
the axis. And that was the one that was injured, C-2.
Q Did you ask Mr. Howard about his pas't medical
history?
A In a general sort of way, yes.
Q What did you obtain?
A I would have asked him if he had any serious
medical problems, diabetes, high blood pressure, kidney
25 disease, any sort of immune compromise or major medical
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problems.
Q What did you learn?
A There was nothing that I heard that concerned me.
Q Did you then perform a physical examination?
A Yes.
Q And is this while he is in the x-ray department?
A I did examine him there briefly and again after
he returned.
9 Q What did your examination show, doctor?
10 A There what a large bruise over the forehead on
11 the right side, to the right of the midline. It was
12 approximately six or seven inches in extent. It was fairly
13 extensive.
14 And his chest and abdomen and pelvis were not
15 apparently injured. I checked to see if he had normal
16 strength in his arms and legs, which he did.
17 And I did sort of a mini mental status exam to
18 see if he was oriented and could speak clearly.
19 Q And that mental status exam revealed what?
20 A The findings were normal except that his memory
21 was poor for the event which showed what I would call
22 retrograde amnesia. He couldn't remember the few minutes
23 prior to the collision. He knew that he was driving, but he
24 couldn't fill me in on details of exactly what had happened
25 or how he came to be involved in the accident.
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Q Is that anything unusual?
A No, that's common with a head injury.
Q What is the cause of that, anatomically speaking?
A The brain is sensitive to vibration and impact,
and when it is shaken up, it doesn't function normally for a
period of time. And commonly you would see memory loss,
dizziness, headache, that sort of symptoms.
If you took the brain out and looked at it, it
would appear normal, but the functioning is not normal for a
period of time.
Q Doctor, you had mentioned x-rays earlier. Were
there other diagnostic tests performed?
A He had a CT scan, a computed x-ray scan of the
neck to show in better detail the fracture of C-2 and also a
CT scan of the head which I ordered after I found out that
his mental status was not quite normal.
Q What were the results of the CAT scan of the
head?
A There was no evidence of bleeding or abnormality
visible on the scan.
Q You indicated there was also a CT scan of the
cervical spine?
A Yes.
Q Did those results confirm what was evident on
x-ray?
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1 A Yes. And additionally they showed the spinal
2 cord in detail, and there was no injury to the spinal cord
3 by bony fragments, so there was nothing that required
4 emergency surgery. That was the reason that we did the
5 scan.
Q Were there any other diagnostic tests?
A He had an electrocardiogram which didn't show any
injury in my opinion. And often there would be some
laboratory studies drawn, but let me check the record.
There was some blood work done and urinalysis.
Q Why was the electrocardiogram done?
A In a deceleration injury where there body is
stopped sharply, with a seat belt, the concern is for an
injury from the seat belt across the chest, and without a
seat belt the concern is an injury from the steering wheel.
And the heart can be bruised as it's caught
between the spine and the fixed object. And there could be
injury in that fashion to the heart.
Q Doctor, what treatment besides the x-rays and the
other diagnostic tests, what treatment did Mr. Howard
undergo?
A We started him on an IV line so that we could
give him medication if that were necessary. And he received
some morphine for pain relief. That was given cautiously in
light of his head injury, but he received a small dose -- or
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I believe two small doses and got relief of the neck pain
fairly well with that.
Q What was done next?
A I spoke with Dr. Rogers early on as soon as I saw
that he had a cervical spine fracture. There was some
question in my mind as to whether he could be managed in
Carlisle since we are not a spinal cords injury center.
There wasn't any sign of injury to his spinal
cord. And when we found that there was no injury to the
brain on the CT scan, I thought it was appropriate to have
him stay if Dr. Rogers was willing to care for the injury,
which he was.
So I spoke with him twice, 8:00 o'clock and 8:30
by my notes.
Q What type of doctor is Dr. Rogers?
A He's an orthopedic surgeon.
Q Doctor, you had earlier mentioned that Mr. Howard
was immobilized. Why was that necessary?
A An accident victim is immobilized at the scene by
the paramedical personnel so that if in case there is injury
to the cervical spine or the lower spine, the patient is not
moved during transportation, being carried in and out of the
ambulance. And it's to prevent further injury in case a
fracture is present.
Q Is it your understanding that Dr. Rogers then
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1 came in and provided care to Mr. Howard?
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Yes.
3
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At that point in time, did Mr. Howard's care and
4 treatment more or less transfer to Dr. Rogers?
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Yes.
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Doctor, what was your final diagnosis before Dr.
7 Rogers took over the care?
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The three final diagnoses on my dictation are,
9 No.1, motorcycle accident; No.2, fractured vertebral body
10 of C-2, and a large contusion of the forehead.
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Q
Lastly, doctor, based on the history that you
12 obtained, your physical examination, the diagnostic studies
13 that you just discussed, do you have an opinion within a
14 reasonable degree of medical certainty, whether Mr. Howard's
15 forehead contusion and fractured C-2 was causally related to
16 the February 26, 1996 accident?
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Yes, I feel that it was.
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MR. LUTZ: Thank you, doctor.
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MR. SHILLING:
Off the record.
20
(Discussion held off the record.)
21
CROSS-EXAMINATION
22 BY MR. SHILLING:
23 Q Dr. Coyle, you had stated that you had an
24 independent recollection of speaking with Mr. Howard?
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25 A Yes.
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Q Do you remember this gentleman?
A Yes.
Q This occurred approximately fifteen months ago
from the time we're now taking this deposition?
A Yes.
Q In the course of a year, how many people do you
see in the emergency room?
A About 5,000.
Q Yourself personally?
A Yes. That's awful high. Make that about 3000.
Q Okay.
A Several thousand.
Q Somewhere around three to 5,000 a year, would
that be accurate, doctor?
A Yes.
Q That's you yourself?
A Yes.
Q I believe that you stated earlier that there is
six, seven full time physicians?
A Yes.
Q And Dr. Glaun was one of the part time
physicians.
Do you know what Dr. Glaun's schedule was that
day?
A He was off at 7:00 a.m. HE would probably have
1 worked from 10:00 p.m., nine hour shift would be most
2 common.
3 Q
4 A
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Are you in charge of the emergency room, doctor?
No.
5 Q
6 A
7 Q
8 A
Who is in charge of the emergency room?
Tony Guarracino, G-u-a-r-r-a-c-i-n-o, D.O.
He's the --
Director.
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Q Director of the emergency department?
A Right.
Q Doctor, you said that you had talked to
Mr. Howard and that he told you that he had struck the
windshield and broke it, is that correct?
A He probably didn't tell me that. No, that
information is usually obtained from the EMTs and paramedics
at the scene who describe the windshield in every accident.
Q Is there a record that the EMTs or the EMS
prepares that you review in the course of your treating the
patient?
A Yes.
Q Was one prepared on this?
A Yes.
Q I would be correct, doctor, that that report said
that the windshield was undamaged?
A Actually it says that the damage was to the
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1 passenger side and no damage to the windshield or steering
2 column.
3 Q Am I correct, doctor, that the only injuries
4 that you observed on Mr. Howard were the hematoma on his
5 forehead and the C-2 fracture?
6 A There was an injury to the right wrist that I
7 can't remember specifically, but there was an injury to that
8 wrist and forearm and
9 Q That's not mentioned in that report that you are
10 referring to, is it, doctor?
A It's in my dictated report, it's not a final
diagnosis, and this is not a comprehensive dictation, it
takes __ this would be dictated at the time that I was
finished with the patient's care.
And in fact this was done at 12:09 as the patient
was on his way out of the department.
Q But again, it says that there is nothing in your
dictated report which refers to the right arm or wrist,
correct, doctor?
A There is a description of an injury to the wrist.
Q I believe it only says an x-ray to forearm was
ordered?
A Injuries appeared confined to the right wrist and
forearm, but I didn't specify what the injuries were.
Again, this is a shorthand note and I am not certain what it
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I think if there had been a fracture or something
major, I would have tried to describe it more, but typically
a patient has multiple minor injuries.
Go ahead.
Q If we look at your physical exam, doctor, the
paragraph indicated there is no pain or radiation of pain to
the arms and that there was a large hematoma over the right
forehead, but no other signs of significant injury, is that
correct, doctor?
A That's correct. The radiation of pain to the
arms refers to pain in the neck going into the arms, not to
an injury of the distal or furthermost arms.
Q You indicated that in your report that at the
time that the x-ray was taken of the lateral neck that
the -- while there was shown to be a C-2 fracture, the
patient was neurologically intact, correct, doctor?
A Yes.
Q And you indicated that you had started an IV line
as part of the treatment, correct, doctor?
A The nurse started one.
Q That would be normal treatment, would it not,
doctor?
A Yes.
Q Okay. In fact most patients any more who come
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into a hospital get an IV line, at least if nothing more
than to keep the vein open, correct, doctor?
A That's true.
Q You indicated also that Mr. Howard was
immobilized by emergency medical team at the scene?
A Yes.
Q Wouldn't I be correct, doctor, that it is normal
in most accidents if there is any type of head injury or
neck injuries suspected, that immobilization is standard
operating procedure for emergency medical treatment?
A Yes, it is.
Q And again, there was no bony fragments impinging
on the spinal cord from this fracture, is that correct,
doctor?
A That's right.
Q And after you handed all treatment to Dr. Rogers,
you didn't follow this patient again, did you?
A I did not.
Q By the way, during the time that you were on, I
gather you came on at 7:00 a.m. that morning?
A Yes.
Q How many emergency room doctors were there
present at that time?
A Just one.
Q Just you?
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A Yes.
Q Is that normal at that time?
A Yes.
Q Your examination revealed no sign of injury to
the spinal cord or any injury to the spinal cord or the
brain, correct?
A The memory problem was evidence of a brain
injury, but there was no x-ray abnormality.
Q Again, I think that you said that that was common
to have some lack of -- loss of memory surrounding -- at
that time surrounding the accident, isn't that correct?
A Following blunt injury to the head, yes.
Q In fact, you could even have that playing
football, couldn't you?
A people can sustain concussions playing football,
yes.
Q And the medical history that you took was really
to check to see if there was any susceptibility to any type
of medication or to see if there was any prior neurological
diseases, correct, doctor?
A Those were the pain things that I wrote in my
dictated note. There is a brief routine that I would run
through.
MR. SHILLING: Nothing further, thank you, doctor.
REDIRECT EXAMINATION
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1 BY MR. LUTZ:
2 Q Doctor, you just testified that you see thousands
3 of people a year, why is it that you can remember
4 Mr. Howard?
5 A Cervical spine fractures are unusual in our
6 department and we -- I might only see a few in a years
7 time.
8 Additionally, I have a gift of remembering visual
9 things so that I can have a picture, I can remember what the
10 bruise on the forehead looked like and have some memory what
11 the x-ray looked like even in a remote instance like this if
12 I read the record to jog my memory.
13 BY MR. LUTZ:
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Q You just used the term concussion.
Can you give us a medical definition of that
term?
A A concussion would be a clinical syndrome,
meaning a collection of symptoms and signs displayed by a
person after injury to the brain wherein the brain has a
period of time when it functions improperly.
Usually it's manifested by memory problems,
difficulty concentrating, headache, dizziness, sometimes
slowed thinking process, and it persists for a varying
amount of time.
There is no radiographic, no x-ray evidence of an
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1 injury like that, at least with our current state of the
2 art.
3 As some newer imaging techniques are used on the
4 brain, we're finding that there is visible injury,
5 particularly to the so-called white matter of the brain and
6 there are tiny spots of bleeding and whatnot in the brain
7 with what we now call minimal head injury.
8 But at the level of sophistication that we have
9 today, there was nothing, even this scan that could
10 objectively quantify that when those patients are tested
11 with psychometric testing, mental status performance type of
12 testing, abnormalities can be picked up for quite some time
13 after blunt head injury.
14 MR. LUTZ: Thank you, doctor.
15 MR. SHILLING: I have nothing further, doctor.
16 Thank you.
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(Whereupon, the deposition was concluded at
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14:25 18:20 14:10 4:10 4:19 5:2 3:1 3:6 4:7
axis (I) 8:18 certify {'I 22:6 22:8 13:23 22:7
-8- 22:13 22:15 22:19 Coyle's III 6:12
8:00[11 12:13 -B- eervieall'l 7:23 CROSS {II 2:2
8:30{11 12:13 background \II 3:19 8:9 8:13 8:14 CROSS-EXAMINATION
baSe{11 8:16 8:15 10:22 12:5 {II 13:2!
12:21 20:5 CT{41
-9- based {II 13:11 10:13 10:15
basis{11 charge 121 15:3 15:5 10:21 12:10
96-5554111 1:3 3:14 check {21 11:9 19:18 CUMBERLAND II!
became 121 3:25 4:19 checked \II 9:15 1:1
-A- below \II 8:17 ehest{21 9:14 11:14 current \II 21:1
a.ml'l 1:10 14:25 belt{41 8:5 11:13 CIVIL 121 1:3 1:3
11:14 11:15
18:20 21:18 BERNADETTE \II clcar[ll 8:5 -0-
abdomen !I I 9:14 1:1 clearly {II 9:18 D.O{II 15:6
abnormalities !II 21:12 better 111 10:14 clinical III 20:17 daily {II 3:14
abnormality 121 10:19 betwccn {II 11:17 collection {II 20:18 damage {21 15:25 16:1
19:8
accident 1'1 biology {II 3:21 College PI 3:21 dangertll 8: I 0
4:4 bleeding 121 3:22 4:20 DATE[II 1:10
8:2 8:3 9:25 10:19
12:19 13:9 13:16 21:6 collision PI 7:11 DAUPHIN{II 22:1
15:16 19:11 blood 121 8:24 11:10 8:6 9:23 DAVID {II 1:14
accidents \I I 18:8 blunt 121 19:12 21:13 column \1116:2 deceleration {II 11:12
accurate II I 14:14 board {'I 3:25 4:10 common 141 1:1 DEFENDANT 121 1:5
10:2 15:2 19:9
actiOn{21 1:3 22:18 4:18 4:19 5:2 commonly III 1:18
additionally 121 body 121 11:12 13:9 10:6 definition III 20:15
11:1 Commonwealth 121 22:3
20:8 bonY{21 11:3 18:12 22:5 degree 13 I 3:20 3:22
administer \I I 22:5 bottom 111 8:16 comprehensive !II 13:14
16:12
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644\717-393-5101
Index Page 1
DEMANDED - indicated
Multi-Page '"
JOHNSON COYLE, M.D. fifteen III Guarracinolll I~.o
DEMANDED{II 1:5 7:4 7:14 124 14:3
department 1101 3:8 12:11 12:15 1125 fill III 9:.24
13:4 I J.O Il23 final PI IJK -11-
3:17 5:12 6:1 13:6
6:6 7:22 9:6 14:21 14:23 IKlo 1611 handlll 22:22
15:9 16:16 20:6 drawn III 11.9 financially III 2217 handcdlll IKlo
deposition {61 1:6 driverI'I 79 K4 findingll121A HARRINGTON III
14;4 21:17 22:9 driving II I 9:23 findings III 9:20 1:16
22:13 22:19 du1Y{21 3:2 22:9 finished {II 16:14 head 1101 711 7:IX
describe {21 15:16 duringl21 12'.22 IK 19 firstpl 5:24 6:2 10:2 Ill: I ~ 11l:lX
17:3 7:1 11:25 IKX 19:12
description \II 16:20 -E- Five III 5:7 21:7 21'13
detail 121 10:14 11:2 fixed III 11:17 headache 1'1 10:7
dctails \II 9:24 earlY{21 7:11l 124 20:22
education \II 4:10 FLECK \II IA headed III 7:12
diabetes {I I 8:24
educational \II 3:19 Flintlll 3:24 heard III 9:3
diagnoses \I I 13:X electrocardiogram \21 follow \II IX:17
diagnosis (21 13:6 hearsay \21 6:14
11:7 11:11 Following \II 19:12
16:12 6:23
diagnostic 14) 10:12 eligible(l14:16 follows \II 3:2 heart {21 11:16 II:IX
11:6 11:20 13:12 emergency {"I 3:X footbafl{21 19:14 held{11 13:21l
dictated {41 16:1 I 3:16 4:7 4:20 19:15 hematoma 121 16:4
5:2 5:12 6:6 16:8
16:13 16:18 19:22 forearm PI 17:8
11:4 14:7 15:3 16:21 16:24
dictation {2] 13:8 15:5 15:9 18:5 foregoing {I I 22:6 hereby {'I 22:6
16:12 18:10 18:22 hereof (I I 22:14
different \II 4:25 employed (II 3:11 forehead (61 9:10 hereunto (II 22:22
13:10 13:15 16:5
difficulty \II 20:22 employec 1'1 22:15 17:9 20:10 high{21 8:24 14:10
direct [3] 2:2 3:3 22:17 found \21 10:15 12:9 history \101 6:2
5:18 EMS(l1 15:17 fou'lll 5:14 6:9 6:19 6:21
dircction [I] 22:12 EMTs{21 15:15 15:17 7:1 7:2 7:20
fracture {IOI 7:23 8:20 13:11 19:17
directly {21 7:20 entercd{114:14
8:10 X:13 10:14 hospital {51 3:12
22:18 ESQUIRE \2] 1:14 12:5 12:24 16:5 5:1 I
DirectOf[21 15:8 1:17 17:2 17:16 18:13 3:24 5:6
15:9 evaluation {II 3:15 fractured {21 13:9 18:1
discussed \II 13:13 hOUr(l1 15:1
event{11 9:21 13:15 hours III 4:16
Discussion \I] 13:20 fractures \I] 20:5
cvcnts \21 8:2 8:6 Howard 1171 1:1
disease \I] 8:25 evidence [31 10:19 fragments {21 11:3 1:1 5:20 5:24
diseases {I] 19:20 19:7 20:25 18:12 6:8 6:21 7:8
displayed {I] 20:18 evident \II 10:24 full PI 3:5 5:13 7:21 X:19 11:20
distal{lI 17:13 exactly \218:7 9:24 14:19 12:17 13:1 13:24
dizziness [21 10:7 function \II 10:5 15:12 16:4 18:4
exam{,! 4:17 4:18 functioning {II 10:9 20:4
20:22 4:22 4:25 5:3
doctor [36] 3:7 3:18 9:17 9:19 17:6 functions \II 20:20 Howard's 121 13:3
4:2 4:10 5:18 examination {61 3:3 furthermost {II 17:13 13:14
6:16 7:1 7:20 9:4 9:9 13:12
9:9 10:1 I 11:19 19:4 19:25 -G- -I-
12:15 12:17 13:6 examine [11 9:7 illness {I! 3:17
13:11 13:18 14:14 GI41 2:3 3:1
15:3 15:1 I 15:23 exccpt{11 9:20 3:6 22:7 imaging III 21:3
16:3 16:10 16:19 cxpert \II 4:7 G-u-a-r-r-a-c-i-n-o \I I immcdiatc\l! 8:5
17:6 17:10 17:17 extensive {II 9:13 immobilization \II 18:9
17:20 17:23 18:2 15:6
18:7 18:14 19:20 extent 111 9:12 gather (I I 18:20 immobilized 131 12:18
19:24 20:2 21:14 generaltl18:21 12:19 18:5
21:15 -F- gentleman \I I 14:1 immunC{tl 8:25
doctors {2] 5: I I 18:22 fact PI 16:15 17:25 gentlemen \II 3:13 impact III 10:4
doesn't \I] 10:5 19:13 gift {II 20:8 impinging \II 18:12
done IS] 6:20 11:10 fairly 121 9:12 12:2 given{31 4:25 11:24 impression {II 7:14
11:11 12:3 16:15 family 141 3:23 4:1 I 22:20 improperly III 20:20
dose \I] 11:25 4:13 5:1 G1aun (71 6:4 6:5 inches \I I 9:12
doses \I] 12:1 fashion [21 7: II 11:18 6:13 6:19 6:23 indcpendcnt \21 7:8
dOWO\l] 22:10 February \21 5:25 7:3 14:21 13:24
Dr {201 4:7 6:4 13:16 Glaun's PI 7:4 indicated {51 10:21
6:5 6:12 6:13 fellow \21 4:19 4:20 7:14 14:23 17:7 17:14 17:19
6:19 6:23 7:3 few 121 9:22 20:6 graduated {II 3:22 18:4
Index Page 2
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644\717-393-5101
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injured (21 S: IS 9:15 look (21 'i:" 17:0 multiple III 17:4 13:13
injuries {'I 7:17 lookcd PI IllS 20:10 Oral{11 5:3
163 16:23 16:24 20:11 -N- ordcred (21 10: 15 16:22
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10:2 11:2 11:8 22:24
11:12 11:14 11:15 LUTZIIJII:14 2:4 Damel21 2:2 3:5 OWn\11 5:<)
11:1H 11:25 12:7 3:4 4:6 5: 17
12:8 12:9 12:11 6: 15 6:24 6:25 necessary (21 11:23 -P-
12:20 12:23 16:6 7;19 13: IS 20:1 12:IH
16:7 16:211 17:9 20:13 21:14 neck 1'1 7:IS 10:14 P.CIII 1:14
17:13 IS:X IlJ:4 12:1 17:12 17:15 p.m{11 15:1
1<):5 1l);X 1<):12 -M- Js.r) pain{1l 11:24 12:1
20:19 21:1 21:4 M.DI'I neurological III 19:19 17:7 17:7 17:1 I
21:7 21:13 1:6 2:3 neurologically II I 17:17 17:12 19:21
instance JI I 20:1 I 3:1 3:6 3:22 paragraph {II
22:7 neWerllj 21:3 17:7
intaet{11 17:17 major(21 X:25 17:3 ncxtJlI 12:3 paramcdical II I 12:20
intcrested (II 22:IX managed III 12:6 ninc(1) 15:1 paramedics {I I 15:15
involved 121 4:3 manifcsted JlI 20:21 normal 1'1 9:15 9:20 part {61 5:3 5:14
9:25 Maria PI I:X 22:4 10:9 10:9 10:16 6:6 8:14 14:21
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18:1 normally III 10:5 particularly {I] 21:5
mattcflll 21:5
may (21 5:22 6:13 Notary PI 1:9 22:4 parties {II 22:16
-J- 22:25 passengeflll 16:1
meaning III 20:18
Jefferson III 3:21 note (21 16:25 19:22 past{l] 8:19
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20:12 4:7 5:22 X:19 12:21
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2:3 3:1 3:6 IX:5 IM:IO 19:17 nothing 1'1 5:15 17:17 18:17
22:7 20:15 9:3 11:3 16:17 paticnt's 121 7:12
Joseph {II 3:24 medication (21 11:23 IX:I 19:24 21:9 16:14
judge III 6:17 19:19 21:15 patients (21 17:25
Juniata II I 3:20 medicine (II 5:2 now [41 4:25 5:18 21:10
14:4 21:7 pelvis {I] 9:14
jury 12] 1:5 3:14 meet III 5:24
memory 1'1 X:3 numbercd III 8:15 Pennsylvania [41 1:2
-K- 9:20 10:6 19:7 nurse [I) 17:21 1:11 22:3 22:6
19:10 20:10 20:12 people {41 4:3 14:6
KAUFFMAN III 1:16 20:21 -0- 19:15 20:3
keep III 18:2 mental{41 9: 17 9:19 o'clock {1112:13 perform (II 9:4
kidncy {II X:24 10:16 21:11 performance [I I 21:1 I
knew III mentioned PI 10:11 O'Donnell PI 1:8 perfonnedlll
9:23 22:4 22:24 10:12
12:17 16:9 oaths (II period {41 4:15 10:6
6:2 22:5
-L- mctlll object PI 10:10 20:20
MICHELLE{II 1:4 6:11 6:22 persists (I I
Lpl 1:1 1:4 11:17 20:23
1:14 Michigan (II 3:24 objcction PI 6:16 person III 20:19
1978(11 3:22 midline (II 9:11 6:24 7:16 personally {21 7:24
laboratory (II 11:9 might {II 20:6 objectively (II 21:10 14:9
lack {II 19:10 mind (II 12:6 observed {I I 16:4 personnel III 12:20
ladics(ll 3:13 mine(ll 6:7 obtain 191 6:2 6:3 pertaining {I] 7:2
large PI 9:10 13:10 mini(ll 9:17 6:9 6:19 6:21 physical PI 9:4
17:8 minimal{11 21:7 7:2 7:4 7:20 13:12 17:6
Lastly Jll minOT(1J 17:4 8:22 physician [2] 3:9
13:11 obtained PI 7:3 6:6
latcral(ll 17:15 minutes (II 9:22
13:12 15:15 physicians ISI 4:21
LAWJlI 1:3 months JI I 14:3 occurred JlI 14:3 5:13 5:14 14:19
learn {II 9:2 morning 121 7:10 off PI 13:19 13:20 14:22
least {21 IX:I 21:1 IX:20 14:25 pickcd(ll 21:12
legs (II 9:16 morphincJlI 11:24 often (II 11:8 pieturc(l120:9
less (II 13:4 most [41 6:3 15:1 OOCIS) 5:4 X:16 PITTIII 1:11
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644\717-393-5101
I ndcx Page 3
-,
place - traek
JOHNSON COYLE, M.D
M \. P '"
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PLAINTIFFS PI 1:2 reliefI'I 11 :24 12:1 set (II 2222 status 141 ,) 17 9: 19
1:1 1:15 remember 1'1 9:22 seven l::il 513 KI5 11I'lo 2] II
playingI'I 19:13 19:15 141 107 203 S:lo 9:12 14:19 staYlI1 12.11
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practice {'I 3:23 16:11 16:IS 17:14 shift (21 0.7 15:1 stopped III 11:13
3:25 4:12 4:13 Reportcrt II 22:12 SIIILLlNG 1121 I:I() STREET (II 1:11
5:1 5:8 Reporter-Notary (II J: 17 2:5 49 strength PI 9:10
prepared {II 15:21 22:11 5:15 0:11 fi:22 struck PI 7.10 7:12
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present (21 12:24 18:23 residencies II) 4:15 19:24 21:15 studies (2) 11:\) 13:12
presently (II 3:11 residency (II 3:23 Shilling's (II 5:22 such (II 22: 17
pressure III 8:24 residents 121 4:J8 shorthand III 16:25 summariZCI!) 3:18
prevent tll 12:23 4:22 show 1'1 9:9 10:14 surgeon III 12:16
private II I 5:8 responsible {II 3:15 11:7 surgery (1111:4
problem III 19:7 restrained III 7:9 showed (219:21 11:1 surrounding PI 8:6
problems PI 8:24 results 121 10:17 10:24 shown 121 7:23 17:16 19:10 19:11
9:1 20:21 retrograde PI 9:22 sidel21 <):11 16:1 susceptibility (II 19:18
procedure III 18:10 returned III 9:8 sign 121 12:8 19:4 suspected (II 18:9
process (I\ 20:23 revealed \21 9:19 significant III 17:9 sustain III 19:15
provided 121 5:19 19:4 signsf21 17:9 20:18 swompl 3:2 22:9
13:1 review!l) 15:18 six PI 5:13 9:12 symptoms (21 10:7
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5:18 5:21 5:22 21:8 tested 11\
6:18 22:9 ROVNER III 1:14 sort{41 8:21 8:25 21:10
quite 121 10:16 21:12 RPRI21 1:8 22:24 9:17 10:7 testified \21 3:2
rule 111 SOUTH 111 1:11 20:2
6:17 testimony (21
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8:6 16:7
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22:14
reason (II 11:4 says 1'1 15:25 16:17 specify III 16:24 thinking (II 20:23
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11:23 11:25 10:15 10:17 10:20 18:13 19:5 19:5 thousands (II 20:2
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record (11 6:16 11:9 21:9 8:13 K:14 10:22 through 141 3:25
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"
J ndex Page 4
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717-232-5644\717-393-5101
Multi-Page'"
training - yourself
JOHNSON COYLE, M.D.
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HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644\717-393-5101
Indcx Page 5
~
" . ,\
)",.1
2
1
2 NAME
3 JOHN RODGERS, M.D.
4 BY: MR. LUTZ
5 BY: MR. SHILLING
6
7
8
9
WI'rNESS INDEX
DIRECT CROSS REDIRECT RECROSS
3, 7
24
6, 18
EXHIBIT INDEX
10 RODGERS DEPOSITION EXHIBIT NO.:
PRODUCED AND MARKED
(')
11 1. CAT SCAN (NOT ATTACHED)
12
24
13
l~
15
16
17
18
19
20
21
22
23
24
J
',j
25
3
1 THE VIDEOGRAPHER: My name is Brydon Lidle. I'm
2 a paralegal with Angino & Rovner. Our offices are located
3 at 4503 North Front street in Harrisburg, and I am operating
4 the video equipment for today's deposition. The date is
5 April 15th, 1997, and it is 10:22 a.m.
6 We are here to take the deposition of John
7 Rodgers, M.D., at his offices at 816 Belvedere street,
8 Carlisle, PA. Dr. Rodgers will be testifying on behalf of
9 the Plaintiffs in this case, william L. Howard and
10 Bernadette S. Howard, versus Michelle L. Fleck, in the Court
11 of Common Pleas of Cumberland County, pennsylvania, Case No.
12 96-5554 civil.
13 Attorney David L. Lutz of Angino & Rovner is
14 counsel for the Plaintiffs, William and Bernadette Howard.
15 Also in attendance is Attorney C. william Shilling of
16 Harrington, Kauffman & Shilling, counsel for Defendant,
17 Michelle Fleck. The stenographer will now swear in the
18 witness.
19 JOHN RODGERS, M.D., called as a witness, being
20 duly sworn, testified as follows:
21 DIRECT EXAMINATION
22 BY MR. LUTZ:
23 Q Would you please state your full name.
24 A John C. Rodgers.
25 Q Your profession?
.~
".-/
4
1 A Orthopedic surgery.
2 Q Would you please explain to the ladies and
3 gentlemen of the jury what you do on a daily basis as an
4 orthopedic surgeon.
5 A The treatment of musculoskeletal diseases and
6
7
8
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10
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injuries.
Q Doctor, would you please summarize your
educational background and training to become an orthopedic
surgeon.
A Okay. I did my undergraduate training at
Bucknell University, received a Bachelor's and Master's of
Science there; went on to Thomas Jefferson university,
Jefferson Medical College, and obtained my medical degree
there. I went to Albert Einstein Medical Center for about a
year and a half of general surgery training and then on to
Monmouth Medical Center for my orthopedic residency and was
at Cooper Hospital in Camden, New Jersey, for my orthopedic
trauma fellowship.
Q Doctor, how long have you been practicing
orthopedic surgery?
A Outside of r.esidency, this will be two years this
July.
Q And, Doctor, have you received referrals from
other doctors for orthopedic problems?
A Yes.
------.
{
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MR. SHILLING: Objection as to relevancy.
BY MR. LUTZ:
Q Doctor, do you have any hospital privileges?
A Yes.
Q Where, Doctor?
A At Carlisle Hospital and Mechanicsburg Rehab or
HealthSouth Rehab.
Q All right. Doctor, do you have any
certifications?
A I'm sorry?
Q I'm sorry. Do you have any certifications in
your field?
A Such as?
Q Are you board certified?
A I am board eligible. I am taking part two of the
oral boards this July.
Q And what does that mean and what does it entail?
A The oral -- the board certification is a basic
examination that the people who take the exam have a certain
degree of competency in that field, recognized by the
American Board of Orthopedic surgery.
Q And, Doctor, in your practice, have you come to
treat patients that have been involved in motor vehicle
accident trauma?
A Yes.
6
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Q
And would that include cervical spine fractures?
2
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Yes.
3
MR. LUTZ: At this point, I'm going to move to
4 have Dr. Rodgers admitted as an expert in orthopedic surgery
5 and ask if there are any questions on qualifications.
6 CROSS-EXAMINATION ON QUALIFICATIONS
7 BY MR. SHILLING:
8 Q Dr. Rodgers, you say you're board eligible?
9 A That's correct.
10 Q And your oral exam will be?
11 A This July.
,... ) 12 Q July of '97?
13 A Yes.
14 Q How many parts are there to the board
15 certification?
16
A
There's two parts. First part is a written
17 examination taken right after you complete your residency,
18 and part two is the oral exam taken two years following
19 completion of your residency.
20
Q
Does that require any additional classes in that
21 two-year period in order to become -- take your oral exam?
22
A
It doesn't require any additional classes. It
23 requires you to be out as an attending physician practicing
24 in orthopedics.
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Q
Do they also review any of your cases?
----
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1 A Yes. That's part of the -- that's part of the
2 oral examination is a case review.
3 Q When you get the oral exam, do they also look at
4 any work that you're doing? Do they come in, if you will,
5 look over your shoulder to see what you're doing?
6 A The part two examination is -- it's a case
7 review. They don't have an in-office review.
8 MR. SHILLING: I have nothing further. Thank
9 you.
10 DIRECT EXA}IINATION
11 BY MR. LUTZ:
12 Q Doctor, we're now going to switch gears and ask
13 you questions concerning the care and treatment that you
14 rendered to William Howard. In answering any of my
15 questions or Attorney Shilling's questions, you can look at
16 your medical records
17 A okay.
18 Q -- if needed. When and where did you first meet
19 William Howard?
20 A I first met Bill in the hospital -- at Carlisle
21 Hospital on the day of his injury, which was, sorry, on the
22 26th of February, 1996.
23 Q Do you know what medical treatment, if any, he
24 received before being seen by you?
25 A He was evaluated in the emergency room following
\
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1 his injury. He had obtained plain films of his cervical
2 spine, pelvis, chest, as per trauma, you know, protocols,
3 and identified a cervical spine fracture in the body of C2.
4 He had a clinical examination which revealed a large
5 hematoma on his frontal area of his skull. He had some
6 multiple contusions and abrasions secondary to the injury.
7 Q Was he seen by another doctor besides yourself?
8 A He was seen in the emergency room by one of the
9 emergency room physicians.
10 Q When you first met him, what was his chief
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complaint?
A His chief complaint was neck pain.
Q And, at that time, did you obtain a history from
Mr. Howard?
A Yes.
Q And what history did you obtain, Doctor?
A That he was on his way to work, traveling, I
believe it was Route 11, going towards Mechanicsburg, when
another vehicle coming in the other direction crossed the
MR. SHILLING: I'm going to object as to the
causation of what happened with the accident, since there is
an admission of liability, that causation cannot come into
the record.
BY MR. LUTZ:
Q Doctor, the judge will rule on his objection.
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1 You can continue.
2 A okay.
3 Q Because this is the history you obtained from
4 your patient.
5 A Okay. So the other vehicle crossed the middle of
6 the road and struck his vehicle basically head-on and
7 causing his injury or his -- you know, the accident. He was
8 restrained. He had struck his head on the windshield. He
9 had a blunt trauma to his chest from the steering wheel, and
10 he recalled -- at the time, he didn't think that he had any
11 loss of consciousness, but apparently, upon further
12 questioning, he may have had some post-injury amnesia, maybe
13 even transient. I don't know the exact length of time.
14 Q After obtaining the history, did you then perform
15 a hands on physical examination?
16 A Yes, I did.
17 Q Could you tell us the highlights of that
18 examination, please.
19 A Basically, he was in a moderate amount of
20 distress secondary to his injuries. He was lying in his
21 hospital bed. He had no neurological deficit. He had a
22 significant pain in his neck. He had pain in his -- I
23 believe it was his left forearm, and also his knees,
24 basically from, you know, from the contusions. But his
......)
25 main -- his main complaint was that of neck pain.
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Q
And, Doctor, you had mentioned earlier some
2 diagnostic studies. Did you review those studies?
3 A Yes, I did.
4 Q Could you tell us about them, please.
5 A Okay. He had plain X-rays initially upon coming
6 to the ER, which showed a fracture of the inferior anterior
7 portion of the body of the second cervical vertebrae. He
8 had some soft tissue swelling around because of that
9 injury. That goes along with that injury. He had some soft
10 tissue swelling noted on an X-ray of his skull secondary to
11 his hematoma on his forehead, and he had a CAT scan of his
12 cervical spine, which also demonstrated a fracture of the
13 body of C2 and did not indicate any other injury to the
14 cervical spine.
15 Q Doctor, beside you, do you have an enlargement of
16 the CAT scan?
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A Yes, I do.
Q Could you show that to us and explain it to us,
please.
A Sure. Can you see that? okay. This is a
computerized reconstruction of the CAT scan through the
central portion of the cervical spine. This is looking at
the patient from the side. This would be the front of the
patient, the back. This is up. This is down. This is the
vertebral column. This is the first cervical vertebrae
...-...,
J
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1 right here. This is the second cervical vertebrae, and this
2 is the third. Here's the spinal canal where the spinal cord
3 lies, and this is the intervertebral disc space right here,
4 and this dark line that you see right here is the fracture
5 line through the anterior inferior portion of the body of
6 C2. This is the fracture fragment right here (indicating).
7 Q Doctor, could you show us the model of the
8 cervical spine, where the fracture was located?
9 A Sure. Okay. This is a vertebral model. This is
10 the base of the skull right here. This is the first
11 cervical vertebrae here. This would be the second one right
12 here. So the fracture would be right here in the front of
13 this second cervical vertebrae right in about this fashion
14 right across the front there (indicating).
15 Q Doctor, given the history and your physical exam,
16 the diagnostic studies, what was your diagnosis in the
17 hospital?
18 A Basically that he had suffered a flexion injury,
19 a forward flexion injury to the cervical spine, and that
20 motion fracturing the anterior inferior portion of the body
21 of C2. The fracture appeared to be stable. He was
22 immobilized in a Philadelphia collar and observed.
23 Q What is the purpose of a Philadelphia collar?
24 A Philadelphia collar immobilizes the head and
25 cervical spine to prevent further soft tissue injury.
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Q Was he hospitalized?
A Yes, he was.
Q Could you tell us about his hospitalization?
A All right. It's here. Okay. Basically, he was
admitted on the 26th, the day of his injury. On that day he
had all his diagnostic studies done. His injuries were
identified. He was observed then in the hospital. On hia
second hospital day he began having some emesis, or some
nausea and vomiting. We thought this was secondary to his
head injury and had ordered a consultation with Dr.
Jergenson (phonetic), who's a neurologist. Got a CAT or,
yes, a CAT scan of his head, which did not indicate any
intracerebral bleeding and was basically thought to be a
mild concussion, and clinical observation was recommended
for that. That was the second day.
On the third hospital day he had no problems with
his nausea and vomiting. His cervical spine x-rays were
repeated, including some flexion-extension views, which
helps to demonstrate any instability that we might not be
able to appreciate on the other films that we had, and those
did not show any instability, demonstrated the fracture in
his cervical spine to be stable, and he was then discharged
to home on the 28th and then was to follow up in my office.
Q Did you give him any other instructions upon
discharge besides follow-up in your office?
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A He was given instructions to call immediately if
there were any numbness, tingling or weakness in his armS or
legs, any loss of bowel or bladder control. He was given a
prescription for some pain medicine, percocet, to be taken
as needed for pain.
Q okay, Doctor, what I'd like for you to do is tell
us the dates that he came to your office, how he was doing
and what you did for him.
A Okay. First office visit was on March 4th, and
at that time repeated his physical exam. He was -- remained
neurologically intact. I repeated his X-rays of his
cervical spine and also repeated flexion-extension views,
and those showed the injury to remain unchanged. Basically,
he was instructed to continue with his Philadelphia collar,
have limited activities, and to return in a week for a
repeat X-ray.
Q Was he permitted to return to work at that point
in time?
A No, he was not.
Q When did you next see him, Doctor?
A Next he was seen on March 12th where a similar
examination, both physical and X-ray, was done. His injury
was unchauged and continued to be stable, and then he was
asked to return in two weeks, which would have been the 26th
of March. At that time, X-rays revealed some evidence of
14
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1 callus, or new bone formation, indicating fracture healing.
2 He had, at that time, had some complaints of some
3 burning and numbing type sensation in the front outside
4 portion of his right thigh, and that I thought was something
5 called neuralgia paresthetica, which is an injury to one of
6 the nerves just under the skin in that area, probably from
7 the lap belt. It goes along with his mechanism of injury
8 and is something that you would just simplY watch and
9 usually clinically resolves on its own.
10 His next visit was April 9th. He still had the
11 thigh discomfort. His X-rays revealed good bridging callus
12 at the fracture site. He was, at that time, allowed some
13 short trips in the car but was still needed to maintain his
14 Philadelphia collar, and he was to return four weeks after
15 that, which was May 7th.
16 At that time, I thought his fracture had healed
17 sUfficiently to discontinue the use of his Philadelphia
18 collar. His right thigh discomfort was improving modestly,
19 and he was allowed to, at that point, as he tolerated at
20 that month to return to work.
21 Q Doctor, why have you been taking serial X-rays?
22 What's the purpose?
23 A Basically you want to follow the fracture to make
24 sure that it's healing in an appropriate position and that
25 there's no instability noted in the spine that may develop,
~...-/'
15
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1 you know, after his acute injury.
2 Q You indicated that you saw him on May 7th, 1996.
3 What was the next contact you had with Mr. Howard?
4 A His next contact was a telephone conversation on
5 May 28th. He had some neck stiffness which was
6 intermittent. He felt it mostly on the right side of his
7 neck, and this responded to some local care, basically heat
8 and some nonsteroidal antiinflammatories.
9
Q
When did you next see him?
10
A
His next visit was June 24th, and at that time I
11 thought that he had pretty much healed up and was allowed to
12 follow up on an as needed basis after that time.
13 Q
Did you test his range of motion on June 24th,
15 A
Yes, I did.
'-\
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\,
I thought he had full flexion of his
14 1996?
16 neck. His extension -- the flexion is this way. Extension,
17
this way, was near full.
He
had limitation in side to side ~'l
,
estimated to be 70 percent of ~
18
motion about
he had 70
19 normal range of motion.
20
Q
And when was the next time you saw Mr. Howard?
21
A
The next visit was March 25th of this year.
22
Q
And, Doctor, was it your understanding that that
23 office visit was at my request?
24
A
That's correct.
.-,,'
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Q
And how was Mr. Howard doing at that time?
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A He was doing well. He had been back at work,
wasn't having any difficulties there. He still had similar
restriction in his range of motion of his cervical spine.
That had not changed from his visit back in June of '96. He
stated that he had most of the trouble when he would, say,
pull up to an intersection and look to see oncoming
traffic. He had some discomfort in his neck there.
Q What was your assessment or diagnosis at that
time?
A Basically, that he had a stable, healed fracture
of the body of C2 and he had some degenerative cervical
spine disease.
Q And just so we understand, that degenerative
spine disease existed before the accident?
A That is correct, and that was unchanged.
Q Doctor, based on the history of the February 26,
1996 accident, your physical exams, the diagnostic studies,
do you have an opinion with a reasonable degree of medical
certainty whether Mr. Howard'S cervical spine fracture at
C2, the cerebral concussion, the right forearm contusion,
the right knee contusion, and the right thigh numbness is
causally related to the February 26, 1996 accident?
A Yes, I think it was related.
Q Doctor, you had mentioned earlier the mechanism
of the cervical spine fracture. What do you mean by that
17
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,
. .~_/
1 and can you show that to us?
2 A Okay. Mechanism of injury is simply how an
3 injury occurs. The mechanism of Bill's injury was that of a
4 flexion injury. When the patient -- the patient comes to a
5 rapid stop, such as in his case, this head on collision --
6 MR. SHILLING: Objection.
7 BY MR. LUTZ:
8 Q Keep going, Doctor.
9 A Okay. -- causes a rapid forward motion of his
10 neck in this position right here, and then what happens is
11 when the neck -- this doesn't bend quite as good as a normal
12 spine, but when that bends forward real quickly like that,
13 the bone fails in this area right here, and that's where
14 that fracture occurred (indicating).
15 Q What happens to the ligaments and tendons
16 surrounding that area?
17 A Basically, you can have any degree of injury to
18 the ligaments, from a mild sprain to an actual tear. If the
19 ligaments fail in the back, then that allows the head and
20 the upper portion of the spine to continue traveling
21 forward, and you can then get an actual fracture dislocation
22 and a more significant spinal cord injury. In Bill's case,
23 I think that he had a sprain or strain of those ligaments.
24 It appeared on all the diagnostic studies that we got,
25 flexion-extension views, that those ligaments were stable
18
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1 and they had held.
2
Q
And, lastly, Doctor, you saw him recently in
3 March. What was your prognosis?
4 A Basically, that I thought that his injury had
5 recovered as well as it was going to. It was greater than a
6 year from his date of his accident. His neck range of
7 motion was unchanged from the June visit, and I thought that
8 he was not going to be able to improve on his later~l motion
9 any, and basically that his injury had healed at that
10 point.
11
MR. LUTZ: Thank you, Doctor. Mr. Shilling has
12 some questions, I'm sure.
13
MR. SHILLING: Can we go off the record. I want
14 to look at the doctor's records, please.
15
THE VIDEOGRAPHER: Off the video record. The
16 time is 10:43.
17 (Discussion held off the record.)
18
THE VIDEOGRAPHER: Back on the video record. The
19 time is 10:43.
20 CROSS-EXAMINATION
21 BY MR. SHILLING:
22 Q Good morning, Doctor.
23 A Good morning.
24 Q Doctor, you first saw Mr. Howard at the hospital?
-.- ~
25 A That's correct.
I,
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Q Were you called to the hospital or were you on
call there?
A I was on call that day.
Q And I believe you were testifying during your
direct examination that on day two Mr. Howard had some
emesis?
A That's correct.
Q And that occurred during part of the day,
correct?
A It wasn't -- it wasn't continuous, but it was he
had nausea and vomiting.
Q And by evening that had cleared up, correct,
Doctor?
A I don't know the specific time of that.
Sometime, I think it was that evening, or at least by the
next morning I know that at my visit he had not had any more
nausea and vomiting.
Q I believe, if we look at your hospital reports,
Doctor, which you had referred to earlier --
A okay.
Q __ it does say that later on that day he began
experiencing some emesis which resolved by evening?
A Okay.
Q Correct, Doctor?
A Yes.
,')
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Q About halfway down.
A That's correct.
Q Okay. And he was discharged from the hospital on
the third day, correct, Doctor?
A That's correct.
Q And, Doctor, you had also talked briefly about
there was a CAT scan done of the head, correct?
A Yes.
Q And that CAT scan showed no problems in the head,
no hemorrhaging or any problems, correct, Doctor?
A It didn't show any intracerebral problems, that's
correct.
Q And it didn't show any hemorrhaging in the head,
correct, Doctor?
A That's correct.
Q In fact, all of the tests that were done, the
main injury that was shown was this fracture of C2, correct?
A That's correct.
Q And that was a stable fracture?
A Yes, that was stable injury.
Q He had no internal cranial injury at all,
correct?
A No, he just had the very large hematoma on the
front part of his skull.
Q All right. And Mr. Howard recovered as you would
(1
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1 expect someone to have recovered in this case.
2 A The time course was what I would expect to see,
3 yes.
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Q And you had released Mr. Howard back to work on
May 7th of 1996, correct?
A That was the visit at which I thought he could
return to work if tolerated, that's correct.
Q Now, then, when you saw him again on June 24th of
1996, you thought he had reached full recovery, correct,
Doctor?
A That's correct.
Q And you also felt that there would be no further
treatment needed in Mr. Howard's case, correct?
A That's correct.
Q And that his prognosis was good for full
recovery?
A I didn't think that he was going to improve any
more than where he was, and that his injury was stable.
Q But, again, you did write to Mr. Lutz on July
11th of 1996, and I believe you stated that his -- that Mr.
Howard's prognosis is good for an eventual full recovery,
correct, Doctor?
A Let me just check that. What was the date of
that, please?
Q July 11, 1996.
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A Here we go.
Q Second paragraph down.
A okay. There you go, okay. Yes.
Q Thank you. Also, that you felt that he would not
need any further treatment at that time, cor.rect, Doctor?
A That's correct. I didn't think he would nQed any
further treatment.
Q And, in August of 1996, you again in your notes
indicate that you don't feel that he's -- thar Mr. Howard
was at significant risk for developing any future further
problems as a result of the fracture, correct?
A Not any more than he had already sustained.
Q And earlier you had talked about an office visit
of March 26th of 1996.
A Okay.
Q Where Mr. Howard had had some complaints of
burning or numbing type sensation on his right thigh.
A That's correct.
Q And that's the first time that's noted in your
notes, correct, Doctor?
A That's correct.
Q And this was a month after the accident occurred?
A That's correct.
Q And when you examined Mr. Howard on March 25th
of '97, that it showed a stable, healed fracture of C2?
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A That's correct.
Q And the degenerative cervical spine disease was
not related to the accident, correct, Doctor?
A That's correct.
Q In fact, but for the fact that you were giving
this deposition today, you would not have scheduled an
appointment for Mr. Howard, correct, on March 25th?
A That's correct.
Q And that was done solely because of this upcoming
deposition?
A That's correct.
Q Between June 24th of 1996 and today's date, Mr.
Howard hadn't called you, had he?
A No.
Q He hadn't called you with any problems and saying
he was having any difficulties.
A That's correct.
18 Q I believe that your instructions were that he was
19 to follow call you or follow up if there were problems?
20 A If there were problems, that's correct.
21 Q And there was no injuries to the ligaments of his
22 neck from this injury. It was just a strain and sprain,
23 correct, Doctor?
24 A Well, I would call that an injury, but, yeah,
'oJ
25 there was no injury that caused him -- his neck to be
23
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1 unstable.
2 MR. SHILLING: Thank you, Doctor. That's all I
3 have.
4 REDIRECT EXAMINATION
5 BY MR. LUTZ:
6 Q Doctor, I just have a follow-up question. You
7 were asked questions about the degenerative disease in the
8 cervical spine. Was that anything rare for a gentleman 53
9 years old?
i
,
10 A No, that's not rare.
11 MR. LUTZ: Thank you, Doctor.
12 THE WITNESS: You're welcome.
13 I~R. SHILLING: Nothing further.
14 THE VIDEOGRAPHER: The deposition is concluded.
15 The time is 11:02.
16 MR. LUTZ: While the video is off but we're still
17 on the record, I would just like to mark the CAT scan as Dr.
18 Rodgers Deposition Exhibit 1.
19 MR. SHILLING: Sure.
20 MR. LUTZ: That's all.
21 (CAT scan produced and marked Rodgers Deposition
22 Exhibit No.1.)
23 (Whereupon, the deposition was concluded at 11:02
24 a.m.)
',.-/
25
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25
1 COUNTY OF DAUPHIN
2 SS
3 COMMONWEALTH OF PENNSYLVANIA :
4 I, Jamie F. Hackman, a Notary public, authorized to
5 administer oaths within and for the Commonwealth of
6 pennsylvania, do hereby certify that the foregoing is the
7 testimony of JOHN RODGERS, M.D.
8 I further certify that before the taking of said
9 deposition, the witness was duly sworn; that the questions
10 and answers were taken down stenographically by the said
11 Reporter-Notary Public, and afterwards reduced to
12 typewriting under the direction of the said Reporter.
13 I further certify that the said deposition was taken
14 at the time and place specified in the caption sheet hereof.
15 I further certify that I am not a relative or employee
16 or attorney or counsel to any of the parties, or a relative
17 or employee of such attorney or counsel, or financially
18 interested directly or indirectly in this action.
19 I further certify that the said deposition constitutes
20 a true record of the testimony given by the said witness.
21 IN WITNESS WHEREOF, I have hereunto set my hand this
22 23rd day of April, 1997.
"'\
23
/~am' e
~ota
NOTARIAL SEAl.
JAMIE F. HA<!l<MAN,
Harrisburg, Dauphin ~~
M Commission E -IIJ'
24
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'96 - complaint
JOHN RODGERS
,
attorney ('I 3:1l carelli 7 l3 157
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11121 8:18 21:25 abrasions 111 86 bascdlll 16:16 causally III 16:22
11:02121 24:15 24:23 accident 191 5:24 basic{11 5:18 causation 121 8:21
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26th{41 7:22 12:5 American 111 5:21 6:14 13:12 16:3 16:11
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APPEARANCES 111 Bucknclllll 4:11 clinieal{21
burning 121 14:3 8:4
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area 14) X:5 14:6 16:20 20:17 22:25 coming 121 H: 19
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HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644\717-393-5101
I ndcx Pagc I
812 925 dales III 137 donel'l 12h 13:22 1010 It'! 22
complamtS121 141 DAUPHIN III 25:1 20:7 20lh 23:9 fellowship 111 4 IS
22:16 David 121 1 17 3.13 down 1'1 10:24 :!O:l felt 111 I ~o 21 12
complete 111 017 Defendaot 111 1:6 22:2 25:10 22:4
completion III f\,ll} 1:21 310 Drl'l 3:8 6:4 field 1'1 5.12 5:20
computerized" I 1021 deficit 111 9:21 6:8 12:10 24:17 films 121 8.1 12:20
conccrninglll 713 dcgcncrati vc 1'1 10:11 dulYI'I 3:20 25:9 financially 111 25:17
concluded 121 24:14 16:13 23:2 24:7 during (21 19:4 19:8 first 191 0.16 7:18
24:23 degree 1'1 4: \3 5:20 7:20 S:IO IO:l5
concussion 121 12: 14 16:18 17:17 -E- 11:10 13:9 IS:24
16:20 DEMANDED{II 1:6 educational 111 4:8 22:19
consciousness III 9:11 demonstrate {II 12:19 Einstein 111 4:14 Fleck PI 1:0 3:10
3:17
constitutes III 25:19 demonstrated 1'1 10:12 cligiblc {215: 15 6:8 flexion {'I 11:18
consultation {II 12:21 11:19
12:10 emergency PI 7:25 15:15 15:16 17:4
contact {'I 15:3 15:4 deposition {131 1:9 8:8 8:9 f1exion-cxtension PI
continue III 9:1 2:10 3:4 3:6 emesis III 12:8 19:6
23:6 23:10 24:14 12:18 13:12 17:25
13:14 17:20 24:18 24:21 24:23 19:22 follow {'I 12:23 14:23
continued \II \3:23 25:9 25:\3 25:19 employee \21 25:15 15:12 23:19 23:19
continuous \II 19:10 dcvclop\ll 14:25 25:17 follow-up {21 12:25
control III \3:3 dcvcloping{11 22:10 enlargement \II 10:15 24:6
contusion {21 16:20 diagnosis (21 11:16 entail {II 5:17 following {21 6:18
16:21 16:8 equipment {II 3:4 7:25
contusions (21 8:6 diagnostic 1'1 10:2 ER\l1 10:6 follows \II 3:20
9:24 11:16 12:6 16:17 ESQUIRE {21 1:17 forearm 121 9:23
conversation {II 15:4 17:24 1:20 16:20
Cooper {II 4:17 difficulties (21 16:2 estimated \II 15:18 foregoing {II 25:6
COrd{21 11:2 17:22 23:16 evaluated \II 7:25 forehead {I I 10:11
correct {"I 6:9 dircet{'1 2:2 3:21 cvening {31 19:12 formation {II 14:1
15:24 16:15 18:25 7:10 19:5 19:15 19:22 forward 1'1 11:19
19:7 19:9 19:12 direction 121 8:19 eventual \1\ 21:21 17:9 17:12 17:21
19:24 20:2 20:4 25:12 evidence \I I 13:25 fourlll 14:14
20:5 20:7 20:10 directly \I I 25:18
20:12 20:14 20:15 exact \II 9:13 fracture 1221 8:3
20:17 20:18 20:22 diselll 11:3 examPI 5:19 6:10 10:6 10:12 11:4
21:5 21:7 21:9 discharge \1\ 12:25 6:18 6:21 7:3 11:6 11:8 11:12
21:1 I 21:\3 21:14 discharged 12\ 12:22 11:15 \3:10 11:21 12:21 14:1
21:22 22:5 22:6 20:3 examination {121 3:21 14:12 14:16 14:23
22:1 I 22:18 22:20 discomfort III 14:1 I 5:19 6:17 7" 16:10 16:19 16:25
22:21 22:23 23:1 14:18 16:7 7:6 7:10 8:4 17:14 17:21 20:17
23:3 23:4 23:7 discontinue III 14:17 9:15 9:18 13:22 20:19 22:1 I 22:25
23:8 23:11 23:17 19:5 24:4 fractures {II 6:1
23:20 23:23 Discussion \II 18:17 examincd \II fracturing \II 11:20
counSel{'1 disease{'116:12 16:14 22:24
3:14 fragmcnt {II 11:6
3:16 25:16 25:17 23:2 24:7 exams \II 16:17
County 131 1:1 3:11 discases \II 4:5 Exhibit 14\2:9 2:10 front {61 3:3 10:23
25:1 dislocation \II 17:21 24:18 24:22 11:12 11:14 14:3
existed \1\ 16:14 20:24
course II I 21:2 distress \II 9:20 frontal \II 8:5
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experiencing III 3:23 15:15
cranial \II 20:21 4:23 5:3 5:5 19:22 15:17 21:9 21:15
CROSS {II 2:2 5:8 5:22 7:12 expert \1\ 6:4 21:21
CROSS-EXAMINATION 8:7 8:16 8:25 explain \214:2 10:18 future \II 22:10
10:1 10:15 11:7
{21 6:6 11:15 13:6 13:20 extension 121 15:16
18:20 14:21 15:22 16:16 15:16 -G-
crossed {218: 19 9:5 16:24 17:8 18:2
Cumberland \21 1:1 18:11 18:22 18:24 -F- gears III 7:12
3:11 19:13 19:19 19:24 Fill 1:11 25:.1 general {II 4:15
20:4 20:6 20:10 gentleman {II 24:8
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date {'I doctor's \II 18:14 fails III 17:13 giving \II 23:5
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docsn't {216:22 17:11 February 1'1 7:22 good 161 14:11 17:1 I
complaints - good
JOHN RODGERS
Multi- Page f"
Indcx Pagc 2
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644\717-393-5101
Multi-Page'"
greater - ncxt
JOliN RODGERS
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improving 111 141S 310 s.IS
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indicated (II 15:2 1:17 3:l) 3:10 mentioned 121 101
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Harrisburg (II 3:3 indirectly II) lap (II 14:7 Michellc PI
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20:13 12:21 14:25 limitation 111 15:17 15:18 15:19 16:3
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highlights (II 9:17 intact (I) 13:1 I located {21 3:2 lI:H multiple (II 8:6
history 161 8:13 8:16 intercstcd (II 25:18 look{61 7:3 7:5 musculoskeletal {II
9:3 9:14 11:15 mtermittcnt {II 15:6 7:15 16:6 18:14 4:5
16:16 internal (II 20:21 19:18
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hospital {"I 4:17 intervertebral III 11:3 loss{21 9:11 13:3 namelll 2:2 3:1
5:3 5:6 7:20 intracerebral 121 LutZ{"1 1:17 2:4 3:23
7:21 9:21 11:17 12:13 3:13 3:22 5:2
nausea (4) 12:9 12: 17
12:7 12:8 12:16 20:1 I 6:3 7:11 H:24
19:11 19:17
18:24 19:1 19:18 involved (I) 5:23 17:7 18:11 21:19
20:3 24:5 24:11 24:16 nC3f!1I 15:17
hospitalization {II 12:3 -1- 24:20 neck 1"1 8:12 9:22
hospitalized {II 12:1 lying 111 9:20 9:25 15:5 15:7
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1:3 3:9 3:10 Jcfferson 121 4:12 -M- 23:25
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8:14 15:3 15:20
15:25 18:24 19:5 Jergenson (II 12:11 3:7 3:19 25:7 ncedcd{'17:IH 13:5
20:25 21:4 22:9 Jersey (II 4:17 main[lJ 9:25 9:25 14:13 15:12 21:13
22:16 22:24 23:7 John 161 1:9 2:3 20:17 nerves 111 14:6
23:13 3:6 3:19 3:24 maintainllJ 14:13 neuralgia [II 14:5
Howard's III 16:19 25:7 March 1'1 13:9 13:21 neurological {I I 9:21
21:13 21:21 judge(ll 8:25 13:25 15:21 18:3 neurologically III 13:1 I
JulYl61 4:22 5:16 22:14 22:24 23:7 ncurologist III 12:11
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Junel61 15:10 15:13 Master's 111 13:21
12:7 4:11 14:10 153 15:4
immediatcly {II 13:1 16:4 Is:7 21:8 may 161 9:12 14:15 15:9 1510 15:20
immobilized III 23:12 14:25 15:2 15:5 15:21 19 16
11:22 juryl21 1:6 4:3
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644\717-393-5101
Index Page 3
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JOHN RODGERS
Multi-Pagc'"
nonsteroidal {II 15:1'1 13:5 prognosis III IS:3 13:10 13:11 13:12
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nothing 121 78 parts {21 6:14 6:16 residency {41 4:16
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21:8 patients III 5:23 6:6 resolves III 14:9
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22:17 pennsylvania 1'1 1:1 questions 111 6:5 restrained 11 I 9:8
numbness {21 13:2 I: 14 3:11 25:3 7:13 7:15 7:15 restriction (I I 16:3
16:21 25:6 18:12 24:7 25:9
people (II 5:19 quickly (II 17:12 result{'1 22:11
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observed 121 11:22 Philadelphia {61 11:22 rareI'I 24:B 24:10 right {221 5:8 6:17
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4:13 12:11 reasonable {II 16:18 12:4 14:4 14:18
8:1 9:3 physical 1'1 9:15 recalled {II 15:6 16:20 16:21
9:10
obtaining (II 9:14 11:15 13:10 13:22 reccived PI 16:21 17:10 17:13
occurred {ll 17:14 16:17 4:1 I 20:25 22:17
4:23 7:24
19:8 22:22 physician {II 6:23 risk III 22:10
occurs II] 17:3 physicians (I I 8:9 recently (I I 18:2 road{l]
9:6
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office {61 12:23 12:25 PLAINTIFF {II 1:10 reconstruction [11 10:21 3:8 3:19 3:24
13:7 13:9 15:23 Plaintiffs {41 1:4 record {7] 8:23 18:13 6:4 6:8 24:18
22:13 1:18 3:9 3:14 18:15 18:17 18:18 24:21 25:7
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old {II 1:1 3:11 records 1217: 16 18:14 8:9
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one PI 8:8 11:11 portion {6110:7 20:25 21:1 Rovner(111:17 3:2
10:22
14:5 11:5 11:20 14:4 recovery III 21:9 3:13
operating {I I 3:3 17:20 21:16 21:21 RPRlRMR 121 1:11
opinion {I I 16:18 position 121 14:24 RECROSS (II 2:2 25:23
oral 111 5:16 5:18 17:10 REDlRECT{21 2:2 rule{11 8:25
6:10 6:18 6:21 post-injury {II 9:12 24:4
7:2 7:3 practice (I I 5:22 reduced {II 25:11 -S-
order( I I 6:21 practicing 121 4:19 referrals (II 4:23 S(21 1:3 3:10
ordered {II 12:10 6:23 referred (II 19:\9 SaW{'1 15:2 15:20
orthopedic 191 4:1 prescription (II 134 Rehab 121 5:6 5:7 18:2 18:24 21:8
4:4 4:8 4:16 PRESENT 11\ 1:22 related PI 16:22 16:23 scan {91 2:11 10:1 I
4:17 4:20 4:24 pretty III 15:11 23:3 10:10 10:21 12:12
5:21 6:4 relative (21 25:15 20:7 20:9 24:17
orthopedics (II 6:24 prevent (II II :25 25:10 24:21
outside 121 4:21 14:3 privileges III 5:3 released (II 21:4 scheduled III 23:6
own{1J 14:9 problems 191 4:24 relevancy (I I 5:1 Science (II 4:12
12:16 20:9 20:10
20:1 I 22:11 23:15 remain (I I 13: 13 second 111 10:7 11:1
-p- 23:19 23:20 remained (II 13:10 11:11 11:13 12:8
P.C(l1 produced {21 2:10 rendered {II 7:14 12:15 22:2
1:17 secondary 141
pain 161 8:12 9:22 24:21 rcpcat (I I 13:10 8:0
9:20 10:10 12:9
9:22 9:25 13:4 profession I II 3:25 repeated 141 12:18
sce(71 7:5 10:20
Index Page 4
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644\717-393-5101
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JOliN RODGERS
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22:17 still 141 14:W 14:13 traffic III 107 vomiting 141 121)
serial III 1421 10:2 24:16 training 111 4~ 1217 ]'1:11 IY.17
set{'1 25:21 stop (II 175 4:10 4:15
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Shilling 1161 1:19 Street PI 1:13 3:3 traumal414:IS 524 watch (II 14S
1:20 2:5 3:15 3:7 S:2 9:1) weakness (II 1):2
3:16 5:1 6:7 struck 121 9:0 y:s traveling {21 S: 17 week (II 1J: 15
7:8 8:20 17:6 studies {61 10.2 W:2 17:20
18:11 18:13 18:21 weeks 121 IL!4 14.14
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short III 14:13 25:17 22:5 22:7 WIIEREOF(lI 25:21
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show {61 10:18 11:7 sufficiently II I 14:17 trips (II 14:13 1:20 3:9 3:14
12:21 17:1 20:11 summariZC{11 4:7 trouble (II 16:5 3:/5 7:/4 7:jtj
20:13 windshield (II 9:S
showed [41 10:6 13:13 surgeon 121 4:4 troe(ll 25:20 within(lJ 25:5
4:9
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4:20 5:21 6:4 7:6 13:24 19:5
side{41 10:23 15:6 surrounding {I J 17:16 two-yeartlJ 25:9 25:20 25:21
15:[7 15:17 6:21 writc(lJ 21:19
significant {ll 9:22 sustained [II 22:12 type 121 14:3 22:17 wrillcn(l16:16
17:22 22:10 swear (I I 3:17 typewriting {II 25:12
similar {21 13:2 I [6:2 swelling {21 )():S -x-
simply {21 14:8 17:2 10:10 -U-
site (II 14:12 switch [II 7:12 unchanged {41 X-ray III 10:10 1J:16
1J:13 13:22
skin{.] 14:6 sworn {21 3:20 25:9 1J:23 16:15 IS:7
undeq21 X-rays 161 10:5 12:17
skull [41 8:5 10:10 14:6 25:12 13:1 I 1J:25 14:11
11:10 20:24 -T- undergraduate (I I 4:W 14:21
soft III 10:8 10:9 !takinglll 5:15 14:21 understand {I I 16:13
11:25 25:s University {21 4:1 I -y-
solely {II 23:9 tcaqll 17:J8 4:12 4:15 15:21
telephone {II 15:4 unstablc(ll year III
someone [II 21:1 24:1 18:6
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sorry Il I 5:10 5:1 I test {I] 15:13 [5:11 15:12 16:6 24:9
7:21 testified {II 3:20 19:12 23:19 yourself {I] 8:7
space {II 11:3 testifying 121 3:8 upcoming {II 23:9
specific {II 19:14 [9:4 upper (II 17:20
specified {II 25:14 testimony 121 25:7 usually {II 14:9
spinal III 11:2 11:2 25:20
17:22 tests {II 20:16 -V-
spine [221 6:1 8:2 Thank {'I 7:8 18:11 V{II 1:5
8:3 10:12 10:14 22:4 24:2 24:11 vehicle [415:23 8:19
10:22 11:8 11:19 thigh {'I 14:4 14:11 9:5 9:6
11:25 12:17 12:22 14:18 16:21 22:17 3:10
13:12 14:25 16:3 third PI versus III
16:12 16:14 16:19 11:2 12:16 vertebrae 1'1 10:7
16:25 17:12 17:20 20:4 10:25 11:1 11:11
23:2 24:8 Thomas (I I 4:12 11:13
sprain III 17:18 17:23 thought 1101 12:9 vertebral 121 10:25
23:22 12:13 14:4 14:16 11:9
SS{I] 25:2 15:1 I 15:15 18:4 video {41 3:4 18:15
18:7 21:6 21:9
stable {91 11:21 12:22 through (21 18:18 24:16
13:23 16:10 17:25 10:21 VIDEOGRAPHER 1'1
20:[9 20:20 21:18 11:5 1:23 3:1 18:15
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HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644\717-393-5101
Index Page 5
PLAINTIFFS' POINT FOR CHARGE NO. 2
Given the stipulation that Ms. Fleck was negligent, you must
find the amount of money damages which you believe will fairly and
adequately compensate Mr. and Mrs. Howard for the amount of damages
they have sustained as a result of the accident. The amount you
award them today must compensate them completely for damages
sustained in the past, as well as damages they may sustain in the
future.
Pa. SSJI (Civ.) ~6.00 - Damages.
.~\
PLAINTIFFS' POINT FOR CHARGE NO. 4
In this case, you have heard testimony concerning various
medical services provided to Mr. Howard. Under Pennsylvania law,
his medical bills were paid by other sources and are not
recoverable in this case.
However, you may consider all of the
medical services performed in determining the extent of Mr.
Howard's pain and suffering.
75 Pa.C.S.A. U711, 1722.
See also, Ronca , Pennsylvania Motor
Vehicle Insurance, An Analysis of the Financial Responsibility Law,
p. 490.
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PLAINTIFFS' POINT FOR CHARGE NO. 13
As a result of Mr. Howard's injuries, his wife, Bernadette
I
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Howard, may also be entitled to damages based on loss of
consortium. You may determine an award of monetary damages to Mrs.
Howard for the loss of aid, assistance, comfort, society, guidance,
solace, services and sexual relations that her husband would be
expected to render her but for his injuries suffered in the
accident.
Mueller v. Brandon, 282 Pa. Super. 37, 422 A.2d 664 (1980).
r
trial is estimated to be of a duration of one and one half days.
An issue which may arise in the case has to do
with allegedly uncompensated loss of wages on the part of
Plaintiff William L. Howard. It is the Plaintiff's contention
that, although $3.000.00 of his lost wages was compensated by an
automobile insurance carrier (at the rate of $1,000.00 per
month), and although a disability carrier compensated him for an
additional sum in the approximate amount of $4,000.00, a further
loss of wages which has not been reimbursed remains, in an
amount under $3,000.00. Although a related (and apparently
moot) issue has been briefed in the past by counsel, this
precise issue has not, and briefs are requested from counsel at
least five days prior to the commencement of the trial term on
this issue.
To the extent that any videotape depositions to
be presented to the jury require rulings by the Court, counsel
are directed to furnish copies of the transcripts of such
depositions, with the areas of objection being pursued
highlighted, and brief memoranda on their respective positions
at least five days prior to the commencement of the trial term.
This case has been accorded priority, according
to counsel, by the court administrator, and they indicate that
they have been promised that the case will will commence on
Monday, July 7, 1997.
With respect to settlement negotiations, the
r
demanded $150,000.00.
Defendant has offered $10.000.00. and the Plaintiffs have
David L. Lutz, Esquire
For Plaintiffs
C. William Shilling, Esquire
For Defendant
Court Administrator
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WILLIAM L. HOWARD and
BERNADETTE S. HOWARD,
plaintiffs
vs.
NO. 96-5554 Civil
Ie-
MICHELLE L. FLECK, /
Defenda~ JURY TRIAL DEMANDED /
PLAINTIFFS' BRIEF IN -SUP-PORT-..OE A .CLAIM' FOR RECOVERABLE
WORK LOSS UNDER 75 Pa.C.S.A. fi1722
I. Relevant Facts
Plaintiff william Howard was injured in a motor vehicle
accident that occurred on February 26, 1996. As a result of the
motor vehicle accident, Mr. Howard sustained a C-2 fracture and
other injuries. As a result of Mr. Howard's motor vehicle accident
injuries and resultant disability, he was unable to return to work
from the time of the accident until May 13, 1996.
During this
time, Mr. Howard treated with Dr. John Rodgers, an orthopedic
surgeon. Dr. Rodgers testified by way of deposition that he did
not release Mr. Howard to return to work until mid-May. (Dr.
Rodgers videotape deposition testimony was taken on April 15, 1997,
and the transcript has not yet been transcribed.)
Office Max store. His yearly salary is $43,291.46. Had Mr. Howard
At the time of the accident, Mr. Howard was a manager of an
not been injured in the subject motor vehicle accident, he would
have earned $9,157.83. As a result of his motor vehicle accident
injuries, Mr. Howard made a first-party benefits claim with his
insurer, Erie.
Erie paid Mr. Howard $3,000.00 of work loss
112090/MTG
1
Howard by Erie is not recoverable. Likewise, the amount paid by
this subchapter, or workers' compensation, or any program,
group contract or other arrangement for payment of benefits as
defined in section 1719 (relating to coordination of benefits)
shall be precluded from recovering the amount of benefits paid
or payable under this subchapter, or workers' compensation, or
any program, group contract or other arrangement for payment
of benefits as defined in section 1719.
Therefore, there is no issue that the $3,000.00 paid to Mr.
Mr. Howard's short-term disability plan is also not recoverable.
However, the $2,747.35 of uncompensated work loss is recoverable
and therefore the Plaintiff can plead, prove, and seek recovery for
said loss.
Additionally, Plaintiffs' counsel, in a letter dated January
14, 1997, addressed to defense counsel" attached as Exhibit B,
listed the witnesses and exhibits that would be called to trial,
including witnesses and exhibits relating to Mr. Howard's
uncompensated work loss.
Secondly, in a letter dated April 21,
1997, attached as Exhibit C, Plaintiffs' counsel corresponded with
defense counsel and specifically outlined the recoverable work
loss.
IV. Conclusion
The jury should be afforded the opportunity to decide whether
Mr. Howard is entitled to be compensated for his wage loss not paid
3
paid by a collateral source. 75 Pa.C.S.A. 51722; see also, Browne
v. Nationwide Mutual Ins. Co., 449 Pa. Super. 661, 674, A.2d 1127,
appeal denied, 682 A.2d 306 (1996).
Date:
Mac 1, (1~7
ANGINO & ROVNER, P.C.
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4503 N. Front Street
Harrisburg, PA 17110
(717) 238-6791
Counsel for Plaintiffs
4
WILLIAM L. HOWARD
JANUARY 3,1997
MuIti-pageThl
Page 38
I Q At some point in time, did it change from being
2 weekly to some other type of interval?
3 A Yes.
4 Q What did it change to?
5 A Bi-weekly.
6 Q Do you have any idea how many visits that you
7 made to Dr. Rogers on a weekly baois?
8 A No.
9 Q Now, at some point in time hc told you that you
10 could go out of the house, correct?
II A Correct
12 Q When was that?
J3 A J am not sure.
14 Q Do you know if you were still seeing him on a
15 weekly basis when he told you that?
16 A I am not sure.
17 Q Of course, you had to leave the house to go see
18 Dr. Rogers?
19 A Yes.
20 Q Did you leave the house for any other reason?
21 A No.
22 Q When did Dr. Rogers tell you you could go up and
23 down stairs?
24 A I am not sure on that eithcr.
25 Q When you were first discharged from the hospital,
Page 39
1 were you told to stay in bed?
2 A I am not sure if J was told that I had to stay in
3 bed or not I was told that I definitely couldn't go up and
4 down steps. And'- but I couldn't move around, so I had to
5 stay flat on my back, so J would say initially, yes, as soon
6 as I got out of Ihe hospital, J had to stay in bed.
7 Q And how long how long did that last?
8 A I am not sure.
9 Q Of course, you were told Ihat you couldn't go to
10 work?
11 A Correct
12 Q At some point in time, did Dr. Rogers prescribe
13 any type of physical therapy for you?
14 A As far as at home or going to a--
15 Q Either.
16 A At home he said when you were taking showers to
17 do some stretching exercises.
18 Q Did he ever prescribe any type of fonnal physical
19 therapy wilh you in an outside facility?
20 A No.
21 Q When were you first allowcd to start taking
22 showers?
23 A Whenever I was up to doing it, when I felt
24 like.. but my wife had to do it all. I couldn'l stand up
25 by myself in the shower. She had to be there with mc and
Page 38 - Page 41
Page 40
I hold me SO I didn't slip or anything.
2 Q How long after the accidcnt occurred did you
3 start laking showers?
4 A I am not sure. I mean she would take a rag and
5 soap and I didn't go for a week without, you know, being
6 clean, but I didn't stand up in the shower or anything. It
7 was probably a week or so, maybe two weeks, I am not sure.
8 Q Prior to being ablc to take a shower, could you
9 takc a balh in the bath tub?
10 A Yes.
I I Q When did you start doing that?
12 A In a week. I am not sure of that eithcr.
13 Q Did you need assistance in that?
14 A Yes.
IS Q What typc of assistance did you need?
16 A Somebody to help me sit down in there and thcn
17 somcbody to actually clean me.
18 Q How long did your wife have to help you in the
19 shower, for how many weeks?
20 A I am not sure.
21 Q At some point in time, were you discharged to
22 return to work?
23 A Yes.
24 Q When was that?
25 A Around the middle of May.
Page 41
Q Do you know exactly when you returned to work?
2 A Not the exact date, it was a Monday after he said
3 I could go back to work.
4 Q That was Dr. Rogers?
5 A Yes.
6 Q Would I be correct that you were out of work
7 approximately three months?
8 A Ten weeks.
9 Q Were you out ten weeks?
lOA Correct
I I Q Where you work at Officc Max?
12 A Correct
J3 Q Do they have long term or short term disability
14 programs?
15 A Yes.
16 Q Both or --
17 A Both.
18 Q Short term is for how long?
19 A Ninety days.
20 Q So you were covered under short term disability?
21 A Correct
22 Q And did they pay the short term disability pay
23 your salary while you were out of work?
24 A Part of it t:. I.. b'1
25 Q How much did they pay? c-'IJ \ \ I T"
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644/393-5101
Multi-Page'"
Page 42
1 A The insurance company paid up to a thousand
2 dollars a month, and then short term kicked in. I got
3 seventy percent of my base. That was it.
4 Q You say the insurance company paid a thousand
S dollars a month?
6 A Correct.
7 Q Which insurance company?
8 A Which?
9 Q Yes.
10 A Eric.
11 Q Is that your car insurance?
12 A Yes.
13 Q So Eric paid a thousand dollars a month?
14 A Yes.
IS Q Okay.
16 And short term disability paid sevcnty percent?
17 A The balance of whatever it would have b<.'Cn. I
18 got a total of 70 percent of my base salary.
19 Q So -- by the way, who is the short term insurance
20 through?
21 A Through Office Max. I think it is Aelna. I am
22 not really sure.
23 Q Where is that administrated?
24 A Cleveland, Ohio.
25 Q Cleveland?
Page 43
1 A Yes.
2 Q Is that where Office Max is headquartered?
3 A Correct.
4 Q So the short term didn't pay seventy percent of
5 your..
6 A No.
7 Q Base salary?
8 A Correct.
9 Q They paid seventy percent of whatever was due and
10 owing to you after you got the money from Erie?
11 A They paid what was left to make up my 70 percent,
12 if that's what your question was.
13 Q Okay.
14 A The maximum I got was 70 percent of my base
1 S salary.
16 Q Am I correct that that disability though was
17 non-taxable?
18 A Though the insurance?
19 Q Yes.
20 A Yes. That's non-taxable.
21 Q It's non-taxable?
22 A Correct, through Ihe insurance, but not through
23 short term.
24 Q Is the short term taxable?
25 A Yes.
HUGHES, ALBRIGHT, FOLTZ & NATALE
717-232-5644f393-5101
\
WILLIAM L. HOWARD
JANUARY 3,1997
Page 44
I Q Did Ihey take the lax out before you got your
2 pJY?
3 A Yes.
4 Q Now, you did get your bonus in 1996. correct?
5 A Eventually, yes.
6 Q When you say eventually, when did you get it?
7 A Approximately two months afler I was supposed to
8 get it.
9 Q When were you supposed to get it?
10 A February 25th.
II Q Which would have been the day b<:fore this
12 accident occurred?
Il A Correct.
H Q You didn't get il then?
15 A No, sir.
16 Q Well, February 25th was a Sunday?
17 A Vb-huh.
18 Q Do you know why you didn't get it on the 25th?
19 A Because I was off that day.
20 Q Because you weten't working?
21 A Correct, I was still an employee of Office Max,
22 but I had not came back to work. And since I didn'l show up
23 Monday, I went on leave of absence. They don't pay bonuses
24 when you are on leave of absence,
25 Q So you didn't get your bonus until April?
Page 45
I A Sometime then, yes.
2 Q You were still on leave of absence though,
3 weren't you?
4 A Correct.
5 Q So they paid it to you even though you were on
6 leave of absence?
7 A Yes. After many phone calls, many people
8 involved, many letters.
9 Q Do you have copies of those letters?
10 A My district managers letters, no, I don't.
I I Q Did you write any letters?
12 A No, mine was all phone.
Il Q To who?
14 A Customer service.. or hum.an resources and
15 district manager regional manager.
16 Q Who's the district manager?
17 A Bob Povirk. p.o-v like in victory I-R-K
18 Q Where is he located?
19 A At the Union Deposit store.
20 Q Was he the district manager in February of 1996?
2 I A Correct.
22 Q Is he also a store manager, plus district manager
23 or just the d:strict manager?
24 A District manager.
25 Q So your district offices are at the Union Deposit
Page 42 - Page 45
C. William Shilling, Esquire
Page 2
January 14, 1997
3. Damage witnesses:
a. A. Harris - Silver S?rings Ambulance EMT
b. Dr. Johnson G. Coyle - emergency room physician
c. Dr. John C. Rodgers - treating orthopedic surgeon
d. Deb Louden - assistant manager at Office Max
e. Plaintiff Bernadette Howard
f. Robert Schepis - Mrs. Howard's father
g. Rose Schepis - Mrs. Howard's mother
h. Jennifer Howard - Plaintiffs' daughter
i. Justin Howard - Plaintiffs' son
j. Jarrod Howard - Plaintiffs' son
k. Plaintiff William Howard
DLL:mtg
4. Damage exhibits:
a. Silver Springs Ambulance EMT trip sheet (enlarged)
b. Carlisle Hospital emergency room records, including
the radiological reports (enlarged)
c. Cervical spine x-rays and radiological reports
(enlarged)
d. Cervical spine CT Scan and radiological reports
(enlarged)
e. Photographs of the Philadelphia collar
f. Photographs of Mr. Howard in the Philadelphia
collar
g. Model of the cervical spine
h. 1995 and 1996 income tax returns
i. 1995 and 1996 W-2 forms from Office Max
j. 1995 and 1996 W-2 forms from the Patriot News'
k. Photographs of Mr. Howard's home, including
photographs of home improvement proj ects (i. e. ,
decking, remodeled bathroom, roof, etc.)
Should you require further information and/or documentation in
order to prepare your case for trial, please advise.
Very truly yours,
~tz
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JOSEPH M. MELn.LO
TERRY $. HYMA."
DAVID t.. LlI'rl
MICHAEl. E. KOSIK
PA..\tELA O. SHUMAN
RIatARD A. SADLOCK
DAVID S. WISNESKI
NUOLE C. OLSON
ANGINO & ROVNER, PoCo
MICHAEL S. NAVITSKY
LAWRENCE F. BARO:-''E
DAWN L.lEN'NL'lOS
SOLOMON Z. KREVSKY
JOSEPH M. DORIA
DUANE S. BARRICK
S^"\lES DlCIS'Tl
USTED (N
TIlE BEST LAWYERS
-IN-
A.\lERICA
RICHARD C. ^"'iGlNO
NED.. 1. ROVNER
April 21, 1997
C. William Shilling, Esquire
HARRINGTON, KAUFFMAN & SHILLING
100 pine Street, Suite 300
Harrisburg, PA 17101
Re: Howard v. Fleck
Dear Bill:
In your letter dated January 10, 1997, you indicated that
neither Mr. Howard's lost wages nor his medical expenses will be
admissible. While I agree that his paid medical expenses are
inadmissible, Mr. Howard's uncompensated wage loss is recoverable.
As you will recall, Mr. Howard testified that between Erie,
his first-party benefits carrier, and Aetna, his short term
disability insurer, he received 70% of his wage loss. More
specifically, I believe that Erie paid $3,000.00 and that Aetna
paid the remaining difference up to 70% of Mr. Howard's wage loss.
In other words, during Mr. Howard's period of disability, he lost
30%. This translates into approximately $3,000.00.
Should you have any questions, please do not hesitate to
contact me.
Very truly yours,
~z
DLL:mtg
l04963/MTG
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CERTIFICATE OF SERVICE
I, Mary T. Geraets, an employee of the law firm of Angino &
Rovner, P.C., do hereby certify that I am this day serving a true
and correct copy of PLAINTIFFS' BRIEF IN SUPPORT OF A CLAIM FOR
RECOVERABLE WORK LOSS UNDER 75 Pa.C.S.A. 91722 upon all counsel of
record via postage prepaid first class United States mail addressed
as follows:
C. William Shilling, Esquire
HARRINGTON, KAUFFMAN & SHILLING
100 Pine Street, Suite 300
Harrisburg, PA 17101
Dated: ')-;)-1)
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TERRY S Hnl-\'\
O-\vIDL LlTZ
~llCH.\EL E. KOSIK
P\\lEl\G SHl'\,,-..
RICHARD A. S..\OLOCK
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:"IJOLE C. OLSQS
ANGINO & ROVNER, P.C.
~IICH\ELJ ~\"'lTSKY
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RICHARD C. A.'\or.-oo
SErl J. ROV~'ER
December 18, 1996
C. William Shilling, Esquire
~~RINGTON, KAUFFMAN & SHILLING
100 pine Street, Suite 300
Harrisburg, PA 17101
RE: Howard v. Fleck
Dear Bill:
Below please find Plaintiffs' Response to Defendant's Request
for production of Documents;
1. See attached statements of Steven Farmer and Robert
Wolfe;
2. See attached photocopies of photographs of Plaintiff's
vehicle, Plaintiff's injuries, and photos taken at the
accident scene;
3. See attached police Accident Report for diagram included
therein;
4. See police Accident Report attached in response above;
5.
No experts or consultants have
Plaintiffs; therefore, no documents
at this time;
been retained by
of this nature exist
6. plaintiffs have not consulted with any experts to render
an opinion of the cause of the accident; therefore, no
documents of this nature exist at this time;
7. None;
8. plaintiffs have not yet made this determination. See
.police Accident Report and above witness statements
...... attached in response above. Reference is also made to
the medical records;
I=-- L \ I oJ iJ
V 'f.-r-V t? I n T
4503 NORTH FRONT STREET, HARRISBURG. PA 17110.1708
(717) 238-6791
FAX (717) 238.5610
Page 2
December 18, ::. 996
9.
No ~ther documents at this time;
10.
See attached records from Carlisle Hospital dated
Feb~uary 26, 1996, see also attached records from Silver
Sp~~ng Ambulance dated February 26, 19% and reco~ds from
Orthopedic Surgery of Carlisle dated February 26 to May
7, ::'996;
11.
None;
12.
None;
13 .
None;
14.
See attached report of Dr. John C. Rogers;
15.
None in Plaintiffs' possession;
16.
plaintiff submitted an application to Erie Insurance
Company. It is believed that Erie has a copy of this
application;
Q
09
See attached report from OfficeMax, Inc.;
1993, 1994, and 1995 Income tax returns are attached;
See attached medical bills from Carlisle Hospital, Silver
Springs Ambulance and Orthopedic Surgery of Carlisle;
20. No other documents at tn~stime. To be supplemented as
app~opriate;
19.
21 . None.
Plaintiffs will supplement this Response as required by the
Pennsylvania Rules'of Civil'Pro'cedure.
Lastly, the deposition of your client is scheduled for-January
3, 199_7,..' please provide responses to the Plaintiffs' discovery
before that date. . "'::'::.::c.
Very truly yours,
DLL/ elm
Enclosures
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OfficeMax, Inc.
Headquaners: 3605 Warrensville Center Rd., Shaker Heights, OH 44122.5203
Mailing Address: P.O. Box 228070, Cleveland, OH 44122-8070
Phone: (216) 921-6900 Fax: (216) 263-3395
Wri1er's Extension: 6165
May 28, 1996
To whom it may concern:
William Howard
278-38-4724
William Howard was employed by OfficeMax on 3-10-91 to the present. His position is a
Store Manager. Job desciption I do not have nor is it in his file. Mr. Howard's last pay
was in March 1996 with a rate of pay being 20.81\hr (salaried 43,29! A6/yr). Me Howard
works up to 40hrs a week with an annual merit.
Me Howard's leave of absence took place on 2-26-96 and he returned to work on 5-13-96.
please call me at (216) 921-6900 ext. 6185.
ynthia L. Herrod
Field Human Resource Administrator
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. CLAIHS HANAGEHENT SYSTEK .' . '.::;CSI'PG?9B]f
RESERVE AND PAYHENT DETAIL PRINT.' F'AliE.:~.,t":-J': .1''" "
REQ: ROACH ,f'
eLK: 910170219224
HP/CL: 156/FN
RH: 3000.00
SUP: E256
AlA: NA 91 NF
CLI'lT: 001
CUR-RES:
ADJ:
OFC: 017
WILLIAM L HOUARD
SPEC: H928 APPR:
SUIT: DAYS:
CK TR
L942730 PP
90
M035666 PP
HO'/9126 F'P
DATE
C:l3/1211996
911. 12,1,.,.:.
04/11/1996
05/0711996
LOSS-PD
1000.00
,- ee..ee
11)00.00
1090.00
EXP-PD TIN PAYEE
N WILLIAM HOWARD
N WILLIAM HOWARD
II WILLIAM HOWARD
D~ b'+-G
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I' ~~~~RANCE
I GROUP
~~ AMENDED DECLARATIONS 02 · · EFFECTIVE
i,;! l00EllO In.. PI ATTACH THIS TO YOUR POLICY
Erie. PA 16530 .
~. REASON FOR AMENDMENT - SEE ... ON FIRST DECLARATIONS PAGE
AGENT ITEM 2. POLICY PERIOD '.' . :POLlCY NUMBER
ERIE
t'lONEER
07/24/95
INSURANCE EXCHANGE
FAMILY AUTO POLICY
AA7646 FETROW INS ASSOCIATES
ITEM 1. NAMED INSURED AND ADDRESS
1."111...111,..."11"11,,,,1111,,,,,11,,1,,1,,,11,1,,1.1.1,1
WILLIAM L HOWARD &
BERNADETTE S HOWARD
14 JANE LANE
CARLISLE PA 17013-1034
\GENT - FETROW INS ASSOCIATES
\GENT PHON~ - (717) 766-3200
1l5.9J1
AS LISTED BELOW
5299 E. TRINDLE RD.
MECHANICSBURG PA 17055.
*******************************************************************
. FIRST ACCIDENT FORGIVENESS APPLIES. THE FIRST SURCHARGE FOR A ·
. FUTURE AT-FAULT ACCIDENT WILL BE WAIVED'. ·
*******************************************************************
ITEM 4..AUTOS COVERED
\UTO YR MAKE VIN ST TER SYM RATING CLASS DDP
1 94 BUIC SKYLARK CU lG4NV5533RC260066 PA 27 7 A2L-MULTI
2 90 DODG CARAVAN SE 2B4SK4536LR581011 PA 27 3 A1BL-MULTI
ITEM 5. ~~~~~M~~ I~o~~~b~~? ~~~~SAA~~E~~~ALO~R~~r&MSlxR~H2~Fb~~o~~~
III 112
.....GOOD DRIVER RATES APPLY.....
___ THE FULL TORT OPTION APPLIES TO ALL PRIVATE PASSENGER VEHICLES. ---
LIABILITY PROTECTION-
BODILY INJURY S300M6P~RSON $300M/ACC 108 110
PROPERTY DAMAGe SlO M/ACC 51 52
,IRST PARTY BENEFITS-
MEDICAL EXPENSE $lOM 25 33
INCOME LOSS S 1M/MONTH , $15M MAXIMUM 9 12
ACCIDENTAL DeATk SSM 1 2
FUNERAL BENEF ITS 2. 5M 1 2
~NINSURED MOTORISTS COVERAGE-
BOD INJ S300M/PERSON S300~ACC-STACKED 16 16
IlNDERINSURED MOTORISTS COVE GE-
BOD INJ S300M/PERSON S300M ACC-STACKED 50 50
PHYSICAL DAMAGE COVERAGeS-
COMPREHENSIVE - $50 DED 46 26
COLLISION - S200 OED 137 85
OPTIONAL COVERAGES-
ROAD SERVICE 4 4
TRANSP EXPENSES - COLL $20/DAY, $600/LOSS 11 11
TOTAL ANNUAL PREMIUM FOR EACH AUTO 459 403
TOTAL ANNUAL POLICY PREMIUM $ 862
PREMIUM REDUCTION DUE TO THIS CHANGE $ 214CR SEE REVISED INVOICE BELOW
I
ITEM 6. APPLICABL~ POLICYh ENDO~SEMENTSh EXCEPTIONS TO DECL~RATIONS ITEMS
LL AUTOS - FAP 05/91, ABPu02 06/95, ABPNOl 07/90, AFPA03 03/94.
...DRIVER INFORMATION AMENDED
...AUTO 3 DELETED
ASSIVE RESTRAINT DISCOUNT APPLIES - AIRBAG AUTO 1
NTI-LOCK BRAKE DISCOUNT APPLIED AUTO 1
Dih,'b/f:b
CERTIFICATE OF SERVICE
I, Mary T. Geraets, an employee of the law firm of Angino &
Rovner, P.C., do hereby certify that I am this day serving a true
and correct copy of PLAINTIFFS' BRIEF IN RESPONSE TO DEFENDANT'S
BRIEF REGARDING THE PLAINTIFFS' RECOVERABLE WORK LOSS upon all
counsel of record via postage prepaid first class united States
mail addressed as follows:
C. william Shilling, Esquire
HARRINGTON, KAUFFMAN & SHILLING
100 pine Street, suite 300
Harrisburg, PA 17101
Dated:)_I~-q/
n. ISSUE
IS THE PLAINTIFF, WILLIAM HOWARD, PERMIITED TO SEEK
UNCOMPENSATED WORK LOSS IN TIllS THIRD-PARTY ACTION GIVEN THE
MANDATES OF 7S PA. C.S.A. ~ 17227
SUGGESTED ANSWER: NO.
m ARGUMENT
The Plaintiff has never substantiated his work 1055 claim as presented either at the pre-trial
conference or in his brief in support of his position that he is entitled to recover monies under
~ 1722.
Despite requests for production of documents that were served on the Plaintiff in
November 1996, there has been no evidence presented which would substantiate the position
taken by the Plaintiff. It is inconceivable to believe that a first-party carrier would only pay
$3,000 of wage loss. Most insurance companies write wage loss in multiples of $5,000. It is also
unknown how much the insurance company agreed to pay each month that Plaintiff was
unemployed. Nor is there any evidence to support their contention that only $3,000 was paid by
the first-party carrier and 70% of the remaining amount was paid by a short-term disability
insurance carrier.
The Plaintiff was instructed to outline his claim of $3,000 for lost wages both in an
evidentiary fashion and in a legal fashion. While Plaintiff's counsel has set forth the legal
requirements for computing whether or not wage loss can be claimed at time of trial, he has not
fulfilled the evidentiary requirement as set forth by the Court.
Whether or not Plaintiff had sent a letter to defense counsel on January 14, 1997, which he
attached as Exhibit B, Plaintiff's counsel is well aware that defense counsel was objecting to the
4~-S~S4 [IVIl TE"~
Pi =< ~ ? ~ F -; ~ I A, r 0 ,'~::-;:- ~ r '.J ~
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I.>O\J ~ ,Jon both in Oil ev;df'nr l(!r~1 f(J~)h.l"Or1 f!!Hi :'1 (] IF'gO] f(J~)II!on
Wi til the brief to Df: fur r:i (, :!'(j ~n tfre COi!~. t Hll "),1') seven cJOYS of
toejoy' '> dote ann to e!pf~lIs8 , '''!rIsel, \01] li1l11 '>'Vf'n eiuys rlf
I'pcelpt. of that [Jlief, [lefE,r,se counsel is (lil'eeter: to l'esponrJ,
if this issue is further in dlsDute,
Mr, Lutz Is not avo liable for trial on May 19 and May
23, nor is defense counsel available on ~ay 23,
By tile Court.
, J,
David L, Lutz, Esquire
Lawrence F, Barone, Esquire
4503 North Front Street
Harrisburg, Po, 17110
For the Plaintiffs
C, William Shilling, Esquire
100 Pine Street, Suite 300
Hal"risburg, Po, 17101
Far the Defendant
Prothonotary
Court Administrator
:mtf
JOSEPH M. MELIllO
TERRY S. HYMAN
DAVID L. LUTZ
MICHAEL E. KOSIK
PA.\{ELA G SIIUMAN
RICHARD J... SAD LOCK
DAVID S. WiSNESKI
NUOLE C. OLSON
ANGINO & ROVNER, P.C.
MICHAEL J. NAvrrSKY
LA~~NCEF.BARO~T
DAWN L JENN~GS
SOLOMON Z. KREVSKY
JOSEPH M. DORIA
DUA."ffi S. BARRICK
JAMES DlCINTI
l.ISTED IN
TIlE BEST l.AWYERS
-IN-
AMERlCA
RICllARD c. ANGI:'<O
NEIL J. ROVNER
May 13, 1997
Mr. Lawrence Welker, Prothonotary
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Re: Howard v. Fleck
No. 96-5554 civil
Dear Mr, Welker:
Enclosed for filing please find the original of Plaintiffs'
Brief in Response to Defendant's Brief Regarding the Plaintiffs'
Recoverable Work Loss.
If you have any questions, please feel free to call me.
Very truly yours,
~
Dav~d L. Lutz
/mtg
Enclosure
cc Judge George E. Hoffer (w/enc.)
C. William Shilling, Esquire (w/enc.)
l05321/MTG
4503 NORTH FRONT STREET, HARRISBURG, PA 17110.1708
(717) 238,8791
FAX (717) 238,5610
HOWARD and
S. HOWARD,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
vs.
NO. 96-5554 Civil
MICHELLE L, FLECK,
Defendants
JURY TRIAL DEMANDED
PLAINTIFFS' BRIEF IN RESPONSE TO DEFENDANT'S BRIEF
REGARDING THE PLAINTIFFS' RECOVERABLE WORK LOSS
first-party benefits carrier.
First, in the Defendant's Brief, the Defendant asserts that
she was "unaware" of Mr, Howard's earnings at the time of the
February 26, 1996, accident, However, in the Plaintiffs' Response
to the Defendant's Request for Production of Documents, said letter
being dated December 18, 1996, attached as Exhibit A, Plaintiffs'
counsel provided defense counsel with records from Mr. Howard's
employer, Office Max, Inc. Additionally, Mr. Howard's 1993, 1994,
and 1995, income tax returns were provided,
More specifically,
defense counsel was provided with a copy of Cynthia Herrod's May
21, 1996, employer report from Office Max, attached as Exhibit B,
and Mr, Howard, in his discovery deposition, testified about his
wage loss as a result of his motor vehicle accident.
The second argument raised by the Defendant in her Brief is
that it is "unclear" how much Mr. Howard was paid by Erie, his
Mr. Howard testified that he was
paid $3,000.00 by Erie, and attached as Exhibit C is Erie's first-
party benefits verification confirming that $3,000.00 was paid.
The Defendant, in her Brief, argues that it is "inconceivable to
112S33/MTG
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CLAIMS MANAGEMENT SYSTEM
RESERVE AND PAYMENT DETAIL PRINT
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CLH: 010170219224
MP/CL: 156/FN
RH: 3000_00
SUP: E256
AlA: NA Ell NF
CLl'll: 001
CUR-RES:
ADJ:
OFC: 017
WILLIAM L HOWARD
SPEC: H928 APPR:
SUIT: DAYS:
CK TR DATE
L942730 PP 03/12/1996
..00 911.II(ln"
11035666 PP 04/11/1996
M018126 FP 05/07/1996
LOSS-PD
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EXP-PD TIN PAYEE
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'.~~ AMENDED DECLARATIONS 02 * * EFFECTIVE
~! l00E'iolns,PI. ATTACH THIS TO YOUR POLICY
Ene. PA 16530 .
ERIE.
ERIE
"IONEER
07/24/95
INSURANCE EXCHANGE
FAMILY AUTO POLICY
[
REASON FOR AMENDMENT - SEE *** ON FIRST DECLARA
AGENT ITEM 2. POLICY PERIOD POLICY NUMBER
AA7646 FETROW INS ASSOCIATES 06/10/95 TO 06/10/96 I 006 ~a29~~
ITEM 1, NAMED INSURED AND A~DRESS___. ITEM 3, OTHER INTEREill____
1."111...11""""1"11,,,,1111,,,..1,,,1,,/,.,,1,/.,1,1./,1
WILLIAM L HOWARD &
BERNADETTE S HOWARD
14 JANE LANE
CARLISLE PA 17013-1034
AGENT - FETROW INS ASSOCIATES
AGENT PHON~ - (717) 766-3700
AS LISTED BELOW
5299 E. TRINDLE RD.
MECHAnICSBURG PA 17055.
*******************************************************tt*ttttttt*_
* FIRST ACCIDENT FORGIVENESS APPLIES. THE FIRST SURCHARGE FOR A *
* FUTURE AT-FAULT ACCIDENT WILL BE WAIVED'. *
ttt.._ttttttttt_.*_*______.*____.______*_._____*_*____***t*ttttt.t.
ITEM
AUTO
1
2
ITEM
4. ,AUTOS COVERED
YR MAKE VIN ST TER SYM RATING CLASS DDP
94 BUIC SKYLARK CU 1G4NV5533RC260066 PA 27 7 A2L-MULTI
90 DODG CARAVAN SE 2B4SK4536LR581011 PA 27 3 A1BL-MULTI
5. t~~M~~~7 leO~~~~~~? ~~f~SAA~~E~A~tlALO~R~~rbMSI~R~H2~Fb~~0~~~
#1 #2
*****GOOD DRIVER RATES APPLY*****
--- THE FULL TORT OPTION APPLIES TO ALL PRIVATE PASSENGER VEHICLES. ___
LIABILITY PROTECTION-
BODILY INJURY S300M/P~RSON $300M/ACC 108 110
PROPERTY DAMAGE S100M/ACC 51 52
FIRST PARTY BENEFITS-
MEDICAL EXPENSE $10M 25 33
INCOME LOSS SlM/MONTH, $15M MAXIMUM 9 12
ACCIDENTAL DEATH S5M 1 2
FUNERAL BENEFIT S2.5M 1 2
UNtNSURED MOTORISTS COVERAGE-
BOD INJ S300M/PERSON S300!5ACC-STACKED 16 16
llNDERtNsuREn MOTORISTS COVE GE-
BOD INJ S300M!PERSON S300M ACC-STACKED 50 50
PHYSICAL DAMAGE COVERAGES-
COMPREHENSIVE - $50 DED 46 26
COLLISION - S200 DED 137 85
OPTIONAL COVERAGES-
ROAD SERVICE 4 4
TRANSP EXPENSES - COLL S20/DAY, $600/LOSS 11 11
TOTAL ANNUAL PREMIUM FOR EACH AUTO 459 403
TOTAL ANNUAL POLICY PREMIUM $ 862
PREMIUM REDUCTION DUE TO THIS CHANGE $ 214CR SEE REVISED INVOICE BELOW
I
ITEM 6. APPLICABL~ POLICYh ENDORSEMENTSh EXCEPTIONS TO DECL~RATtONS ITEMS
ALL AUTOS - FAP 05/91, ABPu02 06/95, ABPNOl 07/90, AFPA03 03/94.
***DRIVER INFORMATION AMENDED
***AUTO 3 DELETED
PASSIVE RESTRAINT DISCOUNT APPLIES - AIRBAG AUTO 1
ANTI-LOCK BRAKE DISCOUNT APPLIED AUTO 1
Dih ib, f-:t
004927
II
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LAW OFFICES OF
HARRINGTON, KAUFFMAN & SHILLING
100 Pine Sltee~ Suite 300, Harrisburg, PA 17101
TIM J, HARRINOTON, JR.
HOWARD 0, KAUFFMAN
C, WlllJAM SHIUJNO
TEUP!lONE: (717)71Q.0700
FACSIMIU: (717) :136-9080
Direct Dial: (717) 720-t042
May 9, 1997
Prothonotary
Cumberland County Courthouse
I Courthouse Square
Carlisle, PA 17013
Re: Howard v, Fleck
Docket #: 96-SSS4-Civil
Our File: 96-11-196
Dear Prothonotary:
Enclosed for filing please find the original of Defendant's Briefin opposition to Plaintiff's
Briefin Support ofa Claim for Recoverable Work Loss,
Please return a date-stamped copy to me in the enclosed self-addressed, stamped
envelope, Thank you for your cooperation in this matter,
CWS/caj
Enclosures
cc: The Honorable George E, Hoffer (w/enc,)
David L, Lutz, Esquire (w/enc,)
Mr, James Harkins, USF&G (w/enc,)
2600-292820-02-2
IV. LEGAL ISSUES
It is contended that Mr, Howard's uncompensated work loss of $3,000,00 is not
admissible at trial and that he has not met the threshold for admission of wage 1055, Further,
Respectfully submitted,
inasmuch as liability has been admitted by the Defendant, the photographs of the damaged
vehicles should not be admitted at time of trial,
V. WITNESSES
The Defendant reserves the right to call any of the witnesses listed in Plaintiff's Pre-Trial
Memorandum,
VL EXHmrrS
None,
VII. CURRENT STA TUS OF SETTLEMENT NEGOTIATIONS
Plaintiff has demanded $150,000,00 to settle this matter and the Defendant has offered
$10,000,00 to settle this matter,
HARRINGTON, KAUFFMAN & SHILLING
C 'iam Shilling,
Supreme Court 0,: 46995
Attorney for efendant
Dr. John C. Rodgers, an orthopedic surgeon, treated Mr. Howard
in the hospital and after his discharge, Dr. Rodgers did not
release Mr, Howard to return to work until the middle of May, 1996,
Mr. Howard is a manager of an Office Max store.
III. Statement as to orincipal issues of liability and damaqes.
A. Liability.
None.
B, Damaqes.
Essentially the jury will be called upon to decide the amount
of compensation the Plaintiffs are entitled as a direct result of
Mr. Howard's motor vehicle accident injuries.
IV. Summary of leqal issues.
Mr, Howard was disabled from work for approximately ten weeks.
from the time of the accident, February 26, 1996, until May 13,
1996. During this time, Mr, Howard's first-party benefits carrier,
Erie, paid a total of $3,000.00. Additionally, Mr. Howard received
short-term disability benefits from his employer's insurer, paying
up to 70% of Mr. Howard's work loss, Therefore, Mr, Howard's
uncompensated work loss totals 30% of the income he would have
earned, calculated to be approximately $3,000,00. 75 Pa, C. S .A.
U722.
.
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JOSEPH M. MELn.LO
TERRY S. HYMAN
DAVID L. LllIZ
MICHAEL E. KOSIK
PAMELA G. SHUMAN
RICHARD A SADLOCK
DAVID S. WISNESKI
NUOLE C. OLSON
ANGINO & ROVNER, P.C.
MlCHAEL J. NAVTTSKY
LAWRENCE F. BARO/'<l'E
DAVIN L. JENNINGS
SOLOMON Z. KREVSKY
JOSEPH M. DORIA
DUANE S. BARRICK
JAMES l>ECfm-1
USTEDIN
TIlE BEST LAWYERS
-IN-
AMERICA
RICHARD C. ANGINO
NEll. J. ROVNER
September 13, 1996
Mr. James Harkins
USF&G
2805 Interstate Drive
suite 200
Harrisburg, PA 17110
Re: Claim Number: 2600APD292820-02-1
Insured: Michelle Fleck
Claimant: William L. Howard
Date of Accident: 2-26-96
Dear Mr. Harkins:
I want to try this case. I would be very interested in
determining the amount of compensation a Cumberland County jury
would award. However, in an effort to reach an amicable
resolution, enclosed is my settlement analysis. Should you require
further information and/or documentation, please contact me
immediately.
DLL:mtg
Enclosures
87322/MTG
Cin I h4. ff
4503 NORTH FRONT STREET, HARRISBURG, PA 17110.1706
(717) 23B'6791
FAX (717] 236.6610
WILLIAM L. HOWARD and
BERNADETTE HOWARD
Plaintiffs,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO.
MICHELLE L. FLECK
Defendant
JURY TRIAL DEMANDED
ECONOMIC EVALUATION FOR SETTLEMENT
I. FACTS AND LIABILITY
On February 26, 1996, at approximately 5:45 a.m., William L.
Howard left his home in Carlisle to go to work at Office Max. Mr.
Howard is the store manager at Office Max.
Mr. Howard was operating a 1990 Dodge Caravan while traveling
north on Route 11 in Middlesex Township. At that same time, a
vehicle driven by Michelle Fleck, traveling south on Route 11,
crossed the center of the road, over a five inch median, became
airborne, and collided head-on into Mr. Howard's Caravan. Attached
as Exhibit A is an enlarged photograph depicting the property
damage to both vehicles immediately following the subject accident.
Charles Miller was a witness to the accident. Mr. Miller was
traveling behind Mr. Howard's vehicle when the accident occurred.
He told the pOlice at the scene that he saw Ms. Fleck's oncoming
vehicle suddenly cross the median and collide into Mr. Howard's
vehicle. Mr. Miller stated that there was nothing Mr. Howard could
have done to avoid the impact.
95857/STU
1
steven R. Farmer was also a witness to the accident. Mr.
Farmer was traveling south on Route 11 when he noticed Ms. Fleck's
vehicle about thirty yards ahead of him. Mr. Farmer saw Ms.
Fleck's vehicle quickly gain speed after stopping at a traffic
light. He estimated that Ms. Fleck's vehicle was traveling at
about 50 m.p.h. when it began "swerving back and forth in her lane
about 5 times." Finally, Ms. Fleck's vehicle began to pass two
tractor-trailers when it veered across the median and collided into
Mr. Howard's Caravan. Attached as Exhibit B is steven Farmer's
eyewitness statement.
Another witness to the accident, Mr. Robert E. Wolfe, was
driving one of the tractor-trailers that Ms. Fleck's vehicle passed
on Route 11 south. Mr. Wolfe was driving his rig behind another
tractor-trailer when he noticed Ms. Fleck's vehicle come up on the
left of his truck in the passing lane. At the point where Ms.
Fleck's vehicle was adjacent to the rear wheels of the tractor-
trailer in front of Mr. Wolfe's rig, Ms. Fleck's vehicle began
weaving and drove left over the median, colliding into Mr. Howard's
vehicle. Attached as Exhibit C is Robert Wolfe's eyewitness
statement, and attached as Exhibit D is the Middlesex Township
Police Department Report.
Both Mr. Farmer and Mr. Wolfe statements and the police report
confirm that the weather conditions on the morning of the accident
were clear and dry. There is no reason to believe that Ms. Fleck
lost control of her vehicle due to slippery road conditions. On
the contrary, Ms. Fleck was cited on the scene by police for
2
failing to keep to the right. Ms. Fleck pled guilty and paid a
fine on March 8, 1996.
II . DAMAGES
A. Medical Treatment
1. Ambulance to the Carlisle Hospital
A Silver Springs ambulance was dispatched to the accident
scene. The emergency medical technicians recorded that Mr. Howard
was experiencing head and left knee pain. Additionally, the
technicians noted that Mr. Howard suffered from a two inch
contusion on his forehead and lacerations on his left knee. Mr.
Howard was transported to the Carlisle Hospital. Attached as
Exhibit E is the Silver springs Ambulance report.
2. Carlisle Hosoital
At the hospital, Mr. Howard was admitted and examined. CT
scans were taken of his cervical spine and skull and an x-ray was
taken of his right forearm. Dr. Johnson G. Coyle, M.D. was the
admitting physician who diagnosed Mr. Howard as having a fracture
of the second cervical vertebra and a large hematoma area over the
right forehead. Dr. Coyle also recorded that Mr. Howard had memory
loss immediately following the accident to the extent that he could
not remember all events following the accident or whether he had
any loss of consciousness. Mr. Howard was given an IV and morphine
in intravenous doses for the pain and ice was applied to his
forehead. Dr. Coyle requested a consultation with John C. Rodgers,
3
M.D., an orthopedic surgeon. Attached as Exhibit F are the
CarliSle Hospital Emergency Room records.
3. Dr. John C. Roaers. M.D. - OrthoDedic Suraeon
Dr. Rodgers further diagnosed Mr. Howard as having a
significant anterior cranial contusion and ecchymosis tracking
bilaterally to both periorbital areas (black eyes). Mr. Howard
reported pain in his neck, right forearm, and right knee. Further
examination revealed a contusion on the dorsum of his right third
knuckle and an abrasion over the right knee. Dr. Rodgers replaced
the cervical collar Mr. Howard was wearing with a Philadelphia
cervical collar. Additionally, Mr. Howard was placed on a full
liquid diet and kept on IV fluids overnight. Neurological and
neurovascular checks were performed overnight because of his head
injury. He was not permitted from bed without the assistance of a
nurse throughout the night. The next day Mr. Howard progressed to
ambulation training and physical therapy. Mr. Howard was directed
to continue full-time wear of the Philadelphia cervical collar.
On day two of his hospital stay, Mr. Howard's condition was
imprOVing, however, he experienced some emesis (vomiting). J.craig
Jurgensen, M.D., a neurologist, was asked to consult because of the
concussion. Dr. Jurgensen reported that Mr. Howard comprehended
well, but had transient memory lapse. Additionally, he reported
that Mr. Howard continued to experience dizziness, head pain, and
nausea with vomiting. Finally, IV fluids were continued to support
fluid maintenance and clinical observation was ordered. Attached
4
as Exhibit G are Dr. Jurgensen's consultation notes. Also
attached as Exhibit B are the Carlisle Hospital examination,
radiological and discharge records.
Mr. Howard was discharged from the hospital on February 28,
1996 and was instructed to continue wearing the Philadelphia
cervical collari to limit his activitYi and to call immediately if
there was any numbness, tingling or weakness in his arms or legs or
loss of bowel or bladder control.
Mr. Howard saw Dr. Rodgers the following Monday, March 4, 1996
for a fOllow-up examination and x-rays. Dr. Rodgers told Mr.
Howard to continue wearing the philadelphia collar and to keep his
activities limited. Dr. Rodgers then saw Mr. Howard six more
times. By June 24, 1996 Mr. Howard had returned to many of his
normal activities but with residual achiness on the right side of
his neck. Mr. Howard also continued to have intermittent residual
numbness in the right side of his thigh. At the present time, Mr.
Howard experiences daily limitations and discomfort. Attached as
Exhibit 7 is Dr. Rodgers' July 11, 1996, orthopedic report.
B. Work Loss
Attached as Exhibit J is Cynthia L. Herrod's May 28, 1996,
letter from Office Max, Inc. evidencing that Mr. Howard took a
leave of absence from February 26, 1996, until May 13, 1996. At
the time of the accident, Mr. Howard was salaried at $43,291.46 per
year at a rate of $20.81 per hour.
5
II. GENERAL DAMAGES
Before the accident Mr. Howard was an active, hard working
man. In addition to his job as store manager at Office Max, Mr.
Howard has a Sunday paper route. After the accident he was unable
to deliver the 344 papers he normally delivered every Sunday. He
was forced to ask his wife and two sons to arise at 4:00 am and
deliver the papers for him.
Mr. Howard's injuries forced him to limit his activities
around the house as well. Mr. Howard has completed several home
improvement projects such as building a deck onto the back of his
house and pool and remodeling bathrooms, just to name a few.
Attached as Exhibit K are photographs of the work Mr. Howard has
completed around his home prior to the accident.
Aside from the home improvements, there are several other
activities that he could not do as a result of his injuries. Mrs.
Howard helped her husband in and out of bed and even had to bathe
him. Obviously a man with Mr. Howard's work ethic was very
frustrated, having to sit around the house feeling useless and
helpless.
Presently, Mr. Howard is plagued with right leg pain which
causes him to lose sleep at night. He has been taking pain killers
to help subside the pain. He experiences daily limitations and is
not able to do the typical things he used to do with his children
and wife. In this regard, Mr. Howard has prepared two short
letters describing his limitations. Attached as EXhibits Land H
are Mr. Howard's March 5, 1996, and May 4, 1996, correspondence.
6
LAW OFFICES OF
HARRINGTON, KAUFFMAN & SHILLING
tOO Pine Street, Suile 300, Harrisburg. fA 17101
11M), lIARlUNaroN. JR.
HOW AIlJ) 0, KAUFFMAN
C, WI1l.IAId SIUUJNO
TELEPHONE: (717) 71~700
FACSIMILE: (717) 236-9080
DircdDial: (717)720-1042
January 10, 1997
David L. Lutz, Esquire
ANGINO & ROVNER, P,C,
4503 N, Front St,
Harrisburg, P A 1711 0
Re: Howard v. Fleck
Our File: 96-11-196
Dear Dave:
Now that the depositions of all parties concerned of have been taken, I think we are in a
position to either settle this case or move forward to trial,
In reviewing the testimony of Mr, Howard, it is obvious that this case is solely a question
of pain and suffering, Should the case go to trial, neither Mr, Howard's lost wages nor his
medical expenses have met the required thresholds to be entered into trial, Mrs, Howard's loss of
consortium claim is going no where,
While Mr, Howard suffered a fracture of C2, even his own treating physician has
indicated that it has healed and that he sees no further treatment being needed by Mr, Howard,
Mr. Howard has, for all practical purposes, fully recovered from any injuries he may have received
in the automobile accident with the Defendant.
It is also obvious from the depositions that liability will not be contested by the Defendant.
Thus, the case boils down to a question of damages and what is his injury really worth, especially
in Cumberland County.
Based upon all of the foregoing, I am authorized to offer your clients the sum of $10,000
as full and complete settlement of this case, Please review the settlement offer with your clients
and let me know if they are agreeable, If they are not agreeable, then I suggest that we list this
case for trial in Cumberland County,
bhJJ/f 6
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WILLIAM L. HOWARD and
BERNADETTE S. HOWARD,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
vs.
f/ I tL~/~_
MICHELLE L. FLECK,
Defendants
NO. 7c... J'j f~
JURY TRIAL DEMANDED
NOTICE TO DEFEND
You have been sued in court. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are served,
by entering a written appearance personally or by attorney and
filing in writing with the Court your defenses or objections to the
claims set forth against you. You are warned that if you fail to
do so the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any
money claimed in the complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Cumberland County Courthouse, 4th Floor
Carlisle, PA 17013
(717) 240-6200
9BB24/MTG
vs.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. q(, 5 S ')If ~ il /.," ,'-
WILLIAM L. HOWARD and
BERNADETTE S. HOWARD,
Plaintiffs
MICHELLE L. FLECK,
Defendants
JURY TRIAL DEMANDED
COMPLAINT
1. Plaintiffs William and Bernadette Howard are husband
and wife, adult individuals who reside in CarliSle, Cumberland
County, pennsylvania.
2. Defendant Michelle L. Fleck is an adult individual
and citizen of the Commonwealth of Pennsylvania who resides at 888
Emily Drive, Mechanicsburg, Cumberland County, Pennsylvania.
3. The facts and occurrences hereinafter related took
place on or about February 26, 1996, at approximately 5:45 a.m. on
State Route 11 (HarriSburg Pike), Cumberland county, pennsylvania.
4. At that time and place, Mr. Howard was operating a
1990 Dodge Caravan, travelling north on State Route 11.
5. At the same time, the Defendant was operating a 1990
Ford Escort, travelling south on state Route 11.
6. The Defendant lost control of her vehicle, crossed
over the concrete median located between the north and south bound
lanes of Route 11, and collided into Mr. Howard's Dodge Caravan.
7. The foregoing accident and all of the injuries and
damages set forth hereinafter sustained by Plaintiffs William and
Bernadette Howard are the direct and proximate result of the
1
negligent, careless, wanton and reckless manner in which Defendant
Fleck operated her motor vehicle as follows:
a.
failure to stay within her lane of travel;
b.
failure to travel at a safe speed;
failure to drive her vehicle on the right side
c.
of the road;
d.
vehicle; and
failure to maintain proper control over her
e. driving her vehicle upon the highway in a
manner endangering persons and property and in a reckless
manner with careless disregard to the rights and safety of
others and in violation of the Motor Vehicle Code of the
Commonwealth of Pennsylvania.
CLAIM I
william Howard v. Michelle Fleck
8. paragraphs 1 through 7 of the complaint are
incorporated herein by reference.
9. Mr. Howard sustained painful and severe injuries
which include but are not limited to a fracture of the second
cervical vertebrae, a large hematoma over the right forehead,
memory loss, significant anterior cranial contusion, a contusion on
the dorsum of his right third knuckle, abrasion over his right
knee, chronic neck pain, and residual numbness in the right side of
his thigh.
10. By reason of the aforesaid injuries sustained by Mr.
Howard, he was forced to incur liability for medical treatment,
medication, hospitalization and similar miscellaneous expenses in
an effort to restore himself to health, and claim is made therefor.
2
11. Because of the nature of his injuries, Mr. Howard
has been advised and, therefore, avers that he may be forced to
incur similar expenses in the future, and claim is made therefor.
12. As a result of the aforementioned injuries, Mr.
Howard has undergone and in the future will undergo great physical
and mental suffering, great inconvenience in carrying out his daily
activities, loss of life's pleasures and enjoyment, and claim is
made therefor.
13. As a result of the aforesaid injuries, Mr. Howard
has been and in the future may be subject to humiliation and
embarrassment, and claim is made therefor.
14. As a result of the aforementioned injuries, Mr.
Howard has sustained work loss, loss of opportunity and a permanent
diminution of his earning power and capacity, and claim is made
therefor.
15. Mr. Howard continues to be plagued by persistent
pain and limitation and, therefore, avers that his injuries may be
of a permanent nature, causing residual problems for the remainder
of his lifetime, and claim is made therefor.
CLAn! II
Bernadette Howard v. Michelle Fleck
16. Paragraphs 1 through 15 of the Complaint are
incorporated herein by reference.
17. As a result of the aforementioned injuries sustained
by her husband, William Howard, Plaintiff Bernadette Howard has
3
VERIFICATION
We, William and Bernadette Howard, Plaintiffs, have read the
foregoing COMPLAINT and do hereby swear or affirm that the facts
set forth in the foregoing are true and correct to the best of our
knowledge, information and belief.
We understand that this
Verification is made subject to the penalties of 18 Pa.C.S.A.
Section 4904, relating to unsworn falsification to authorities.
WITNESS:
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rnadette Howard
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Michelle L. Fleck
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6, It is admitted that a collision occurred between the Defendant's vehicle and the
vehicle being driven by the Plaintiff, William L, Howard, The remaining averments constitute a
conclusion of law to which no answer is required under the applicable Rules of Civil Procedure,
7, Denied,
CLAIM I
William Howard v. Michelle Fleck
8, The answers in Paragraphs 1 through 7 above are incorporated herein by reference
as if fully set forth at length,
9, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of the averments of
Paragraph 9 of the Complaint, and accordingly, said averments are denied, Strict proofthereofis
demanded at the time of trial,
10, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a helief as to the truth or accuracy of the averments of
Paragraph 10 of the Complaint, and accordingly, said averments are denied, Strict proof thereof
is demanded at the time of trial,
11, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of the averments of
Paragraph 11 of the Complaint, and accordingly, said averments are denied, Strict proof thereof
is demanded at the time of trial,
12, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of the averments of
Paragraph 12 of the Com;lwnt, and accordingly, laid avcrments arc dcnied, Strict proofthcreof
is del!Wlded at the time of trial,
13, After reasonablc invcstigation, Answcring Ocfcndant is without sufficicnt
knowledgc or information to form a belicf as to the truth or accuracy of thc averments of
Paragraph 13 ofthc Complaint, and accordingly, said avcrments arc denied, Strict prooflhereof
is demanded at the time of trial,
14, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of the averments of
Paragraph J 4 of the Complaint, and accordingly, said averments are denied, Strict proof thereof
is demanded at the time of trial,
15, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of the averments of
Paragraph 15 of the Complaint, and accordingly, said averments are denied, Strict proof thereof
is demanded at the time of trial,
CLAIM II
Bernadette Howard v. Michellc Fleck
16, The answers of Paragraphs 1 through 15 above are incorporated herein by
reference as if fully set forth at length,
17, After reasonable investigation, Answering Defendant is without sufficient
knowledge or information to form a belief as to the truth or accuracy of the averments of
Paragraph 17 of the Complaint, and accordingly, said averments are denied, Strict proof thereof
is demanded at the time of trial,
WHEREFORE, the Defendant demands judgment in her favor and againat the Plaintiffs
with cost,
NEW MATTER
18, The Plaintiff, William L. Howard, assumed the risk of his activities and of injuries
as a result thereof.
19. If the Plaintiffs suffered injuries and damages as set forth in the Complaint, said
injuries and damages were not proximately caused by a negligent act or admission on behalf of the
Answering Defendant.
20, If the Plaintiffs suffered injuries and damages as set forth in the Complaint, said
injuries and damages may have been caused by the negligent acts or admissions of other
individuals or entities, which constitute the proximate or superseding cause of said injuries and
damages,
21, Some or all of the claims of Plaintiffs are not properly recoverable items of damage
under the Pennsylvania Motor Vehicle Financial Responsibility Law,
22, The claims of the Plaintiffs are barred or reducible under the comparative
negligence statute by reason of the causal negligence ofthe Plaintiff William Howard, consisting
of the following:
(a) In failing to observe an obvious and apparent danger;
(b) In operating his motor vehicle recklessly and in careless disregard for his
own rights and safeties;
(c) In failing to bring his vehicle to a stop within the assured clear distance
ahead,
VERIFICATION
Defendant, Michclle L, AecIc, verifies that the facti set forth in the foregoing Answer and
New Matter are true and correct to the best of her knowledge, information and belief and
UIIdcrstanda that statements made herein are subject to the penalties of 18 Pa, C,S,A, Section
4904 relating to Unsworn Falsification to Authorities,
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CERTIFICATE OF SERVICE
I, Mary T. Geraets, an employee of the law firm of Angino &
Rovner, P,C., do hereby certify that I am this day serving a true
and correct copy of PLAINTIFFS' REPLY TO THE DEFENDANT'S NEW MATTER
on all counsel of record via postage prepaid first class United
States mail addressed as follows:
C. William Shilling, Esquire
HARRINGTON, KAUFFMAN & SHILLING
100 pine Street, Suite 300
Harrisburg, PA 17101
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WILLIAM L. HOWARD and
BERNADETTE S. HOWARD,
Plaintiff"
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
vs.
NO. 96-5554 Civil
MICHELLE L. FLECK,
Defendants
JURY TRIAL DEMANDED
PRAECIPE
To the Prothonotary of Cumberland County:
Please mark the above-captioned action settled, satisfied, and
discontinued,
ANGINO & ROVNER, P,C,
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Date: r{. .\
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I.D. #35956
4503 N. Front Street
Harrisburg, PA 17110
(717) 238-6'191
Counsel for Plaintiffs
cc C. William Shilling, Esquire
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