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Home My WebLink About97-01309 1",(. ' ~ , MAYA McLOOTA and SAMUEL McLOOTA, 6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA , , plaintiffs V. JOHN p, CHRONISTER and f:Jdmf CHR6IlISTER, Defendants CIVIL ACTION - LAW NO, 97-1309 CIVIL TERM IN RE: PRETRIAL CONFERENCE At a pretrial conference held Wednesday, April 29th, 1998, before the Honorable Edward E. Guido, Judge, present for the plaintiffs was Richard M, Golomb, Esquire, and present for the Defendants was Richard M. Wix, Esquire. This is a jury trial which should take two days to complete, Defense counsel has indicated that he is attaohed for trial in Montgomery county during the week of May 18, and if that case does not settle, he will be forced to request a continuance of this matter. If that becomes necessary, we will grant that continuance but we will not entertain any other defense requests for continuances. [If this case is not tried during the May term, both parties are available for trial during the week of July 6th, 1998, Plaintiffs' counsel indicates that he is attached for trial during the week of June 29th, 1998. However, he expects to finish before the week of July 6th. At worst he might not be available the first day of trials, but he will certainly be available during the week of July 6J. ~ -" -- l:r; '" Co;: ;...": {.=: .- ~ 1j..:' ~;: ; . ..~ U. 1'- ... (y \ ' "" c. .. " " -- '.i II, " ..:. ; :.:.~ ; -. . - :j " n~ 15 <5' V 34 Hoffer MAYA MclOOTA & SAMUEL McLOOTA. h/w, PlainU ffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA V, JOHN p, CHRONISTER and LARRY CHRONISTER, Defendants CIVIL ACTION - LAW 97-1309 CIVIL TERM ill.. R E : P R ErR I A L c.oliEEREtKE A pretrial conference was held before the Honorable George E. Hoffer. Judge, on Wednesday, October 22. 1997, In this auto accident case. Richard M, Golomb. Esquire, represents the plaintiffs; and Richard H, Wix, Esquire. represents the defendant. It is a motor vehicle collision on the open highway in which the defendant struck the plaintiff from the rear. liobility is admitted. Although there were no broken bones, plaintiff is claiming soft tissue injury. damage to cervical disk. and nerve related damage, Plaintiff had been scheduled for an appointment on October 20th with defendant.s examining physician, Doctor Eagle. Doctor Eagle desired to take x-rays at that examination, but after plaintiff consulted with counsel. he refused to porticipate in x-rays. There are existing MRI tests and prior x-rays which the plaintiff has. and we direct her to make those available to ,- co fro " i;" i.: .- 1.1.!r ( " lJ --, ,. ,J (~ , ,-:::". . -~ (.~' C" . u : '. I . t ~ J ", '. I' r.... '-' <;' ,) -, >-: <::> I "- , , '. ~ t ~ . I (-: - ". \. t;: : (-" .- i I ~ . ; L, , ,. r- -.) 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' >, '-:<::,~ ;< ',} about August 25, 1995 at approximately 4:30 p.m" Defendant, John p, Chronsiter, was traveling on York Road in Carlisle, Cumberland County, Pennsylvania and was involved in a motor vehicle accident, After reasonable investigation the Defendants are without sufficient knowledge to form a belief as to the truth of the remaining averments of Paragraph 6, Therefore, the remaining averments of Paragraph 6 are specifically denied and strict proof thereof is demanded at the time of trial, 7, Paragraphs 1 through 6 of the Defendants' Answer with New Matter are incorporated herein by reference. 8. The averments of Paragraph 8 constitute a conclusion of law to which no response is required, To the extent that a response is deemed required, each and every averment of Paragraph 8 is specifically denied and strict proof thereof is demanded at the time of trial. 9. After reasonable investigation, Defendants are without sufficient knowledge to form a belief as to the truth of the averments of Paragraph 9. Therefore, each and every averment of Paragraph 9 is specifically denied and strict proof thereof Is demanded at the time of trial. 10. After reasonable investigation, Defendants are without sufficient knowledge to form a belief as to the truth of tho averments of Paragraph 10. Therefore, each and every averment of Paragraph 10 is specifically denied and strict proof thereof is demanded at the time of trial, WHEREFORE, Defendants, John P. Chronsiter and Larry Chronister, respectfully request Your Honorable Court to dismiss the Plaintiffs' Complaint with prejudice, 11, Paragraphs 1 through 10 of the Defendants' Answer with New Matter are incorporated herein by reference, 12, After reasonable investigation, Defendants are without sufficient knowledge to form a belief as to the truth of the averments of Paragraph 12. Therefore, each and every averment of Paragraph 12 is specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendants, John p, Chronister and Larry Chronsiter, respectfully request Your Honorable Court to dismiss the Plaintiffs' Complaint with prejudice. NEW MATTER 13. The Plaintiffs' claims for medical expenses and/or wage loss are barred, or should be reduced in accordance with S 1722 of the Pennsylvania Motor Vehicle Financial Responsibility Act, 14, The Plaintiffs' claims for non-pecuniary damages may be barred pursuant to the limited tort option of the Pennsylvania Motor Vehicle Finanicial Responsibility Act. 15, The Plaintiffs' claims against Defendant, Larry Chronister, are without basis in fact or law, and are brought in bad faith; the Plaintiff is therefore liable for attorneys' fees VERIFICATION I, John p, Chronister, am the Defendant in this action, and I verify that the facts contained in the foregoing Answer with New Matter are true and correct to the best of my knowledge, information and belief, The undersigned understands that his statements therein are made subject to the penalties of 18 Pa. C,S.A, section 4904 relating to unsworn falsification to authorities. /) dlc~C:-' John p, Chron1ster S/':;;;/17 Date / "-;-;:,,,-,"o>"'7:C-.{)._:,< . '.,.,..., '.ij~,'i,<'" >~?"':::'.::.~.:_>>:.:':>: . - ;:- .:''5:' . "'.:- .~(..-':;>~:'" >-;". -'_:;\:{t;i':T'.S: .,'..;,:" >;~; ~~;}:~.. ,~;~'/-c;':;.~.": ::.:'> :.' '~~ :~~ ..:~ "~'. .: "i: c.::...,...' ,:i;':.:;,__ :;<.~... , : ::: >.:':c. ,.: .:;-;;;-::.';,. _ '.':,: _', : J '. -.' .:':Oc'<. _ .... . " . ;:::. 'j . 'c .' '.. '.',': .:'-'.....",-:...,..:: -;.:.,;....;:,;.;.:.: .....'..' . ::"'-,"J.,- -', ,",' ',," ....;':..' ....' - ';,,',\';"::-' -' ,'.-'. ". .' ,t .., ~"..:. '" "'", . -,.,' '..". !,-," ...,' . , , ,: :' "1:-' c __.. ' .c , ';";;''':'.~:::':. . ". "::'. .. ' " , " , '. ',' , "'-. .;;~~' · ,;' ~:;,;;,',0~ ' '. -..... . \~'~~~~::c:;" ,;<~>:;>> "i" -,::;;;;~:>.., ";;; ?:;;t.i:..'';';L. :,',~::~; :~~:. 'd~~' .. '.:...., - . '''......0 '. ",' " .. ,. " . '", ., ,..:,>, 'c," , _,', .'" '.""" 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",: '~;,: ,:;~$,Y;'>,:~: ::~ \>~~~~j~lJf;':;;i~":;J,i;?il:<~~~:&::,~::. ,. ..",/,\,'c".' ?/-,:;:~f;-::.;:,,: :,>:: ';:; ".... .'~ll., " '.' ':,:.. '. ".' ;,,:~""(;:: '.... : ' ',-'-.:-;,'-....,A.~"..,:-';:;""-;;~,:'~;:"'S J..,'."';,"".."(i,....<~:,~\;.,\\,;\>."', :. :"'.' :', .';, '.' ..\.' ". ~,: _.. .,~., i:<,,;:'..::><. .',' 'J:; ':~ij:; .., i-.:, ,..:; .::~{:;.:,(' "::;';:?:~l';:~ I. ~',:: j:~::l:~;'i;'::~: ;\ii, .,"_ , .,' .,.' , . ..." ,:,";",: '::,:;'.""...,. d' >". '...,... '. '.... ; ", .....:" ..l "., ," "",', . ,', .', ".' ',' : ' . '.' .......... ' .. 'y.' '.., . ,C'.'. ' ,,'.',_,'.., '. ( _ ' .. ..,,,.,, " . :/:, ':/?::: ""L:;::~:T :', , . ";:' '::'. ~.''O' ' ' .. "'(:;"'. .', '~':;;"':,(;c: ~ ' , ''', . . _:..' .. ":::e,;:" .. ;';.: .. :': , . :'..' 1-IJ-I>""<5 0 ':51.1' rr;"o" P,2 HOUIlI. BY A,.,.OIHTMI...' OIllTHO'AEOIC ''''''Gl.n' HAND IUIIGI'" PtRR'l' A, EAGLE. M.D. '"' LC.l)U HeiGH" ROAD ':)JIIK. ,INNn,-vAHIA 17.01 " , T"'I'"O.., '41'."1 ,..7."2111 OCtober 20, 1997 Richard H. Wix. Esquin 4705 Duke Street Harrisb~rg/ PA 17l09-30~~ p~: ~la)'a K. McLoota v. Chronister D!<ar Attorney \_i)(: The above patient ~~s to be 5~~~ 3$ an inde~,dent ~~iC61 evaluation concerning her cervical spi.'1e. Tt.e v3t~l::~,: ~r,!?rlTl.:d my office st~ff after she ~'as placed in an ",xa'lllning roon tl~t h,,: o'l::cr-,ey fo:'oooe her to l'.ave C'ol..'"l'ent x-rays taken. Th" rationale for r!!/l'!?A' 0; C".:-:'cnt x-:,ays ~'as explai..'1o:d to the pati",nt. I tol<1 hl:Or that x-rays ",ere an int~ ~::~:" ,:.art of the exaT,i.nation, There may be fi.'ldings 0" x-ray ~hich "~}d be g~~dne t: c~'ent s:~:oms and therefore current x-rays W':!tE: :.nd::'cated. The piltler.t states tt.bt sh" .;r:::"rst(JCd the ::otionale for Cl.lrrent x-roys and sn(: ..'O.,~ be ..:ilhr-.g tC ur.:i':r-?~ ..-r/:',' exa'll:.r,ation. She r~estlld a consultot:..on ^ith h(:r attcrn~j ~~1 5~e d~~ s: ~: :~~ephone, She r~ports h~r attorney again !orba-j(: hl:= to h~.e Cl:n,,~.: x-~"i r. :/!r;e:'l B:1(l ~hen<fc:e the ir,.j~po:n:lt:nt rn.;,jical eva~u6tion \\'as not o;erfor:rt:d. ! ~~uld bE: willing t~ ~rfor.n ~ ~xerr.ination ~f this pati~nt under the standard conditions. Sincerely, Pl!nj' A. E.lIgle. M,D. PAt/lmp " t,!. :::-.\ ~,:;~:':'_: ,,-. --, "-":'1,.., \ "".1f r.." ". 'J # II ; :" II' "I Ii, j . < ~ l.l.,,' j";--:; 'I " . . \'rr' '~' 'J" i:;"""'",~:,,;,,",'~< "~"~', ';" ',';' :. "'i'."" ,c' ","C," '"<,c,, ':'c' '" .'," " ' ,,,,,'" " ~;:'.' - , '" >,;"".:~:' '::,:i"""'::~'0';' ,',5,,:~,':,,',,' '~.: ;, '::',,) <',,,:",,'~':'::""~:';:'>",.,>:.' .,,~>," ":, ,,"c, , , .' 'X "tc.' ,,'0,' ':';: '. 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CHRONISTER and LARRY CHRONISTER NO. 97.1309 CIVIL ORnER AND NOW. on Ihis day of . 1997. il is hereby ORDERED and DECREED Ihat the Defendants' MOlion to Compel A Physical Exam is GRANTED in Part and DENIED in Part. It is hereby ORDERED and DECREED as IllllolI's: I. Plaintil); Maya MeLoota. shall Submll to an independent medical eXllminalion at the offices of Dr. Perry A. Eagle at a time 10 be mutually established: 2. Plaintiff. through counsel. shull supply <III x-ray und MRIlilms 10 Dr. Eagle in advance of Ihe examination: and 3. Plainlill"need nol submit to uny addilional x-rays, BY TIIE COURT: J. B. Pa.R.C.P. 4010 Does Not Expressly Allow X-Rays as Part of the Physical Examination Pa.R.C.P. 4010 does not grant any party the right to compel x-rays or similar tests upon other parties. The statute only authorizes the Court to "order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control." Pa,R.C.P.4010(a). Nowhere in the explanatory notes or in Pennsylvania case law has any judicial authority interpreted this statute as including x-rays as part of the physical examination. The Defendants claim that as Pa.R.C.P. 4010(b) requires the independent examination doctor to provide a copy of all "tests" to the other party, that (I) "tests" includes x-rays, and (2) that the examining doctor is entitled to take "tests" under Pa.R.C.P. 40 I O(a). However, under the rules of statutory construction, the failure of the Pennsylvania Legislature to use the word "tests" in Pa.R.C.P. 4010(a) suggests that the purpose of the rule was to allow for examinations only. Had the Pennsylvania Legislature intended for "tests" to be part ofPa.R.C.P. 4010(a), the statute would have done so expressly. Moreover, no case law or explanatory note defines "tests" as including x-rays and no case law or explanatory note interprets the appearance of the word "tests" in Pa.R.C.P. 4010(b) as signifying the allowance of such "tests" under Pa.R.c.p. 401O(a). Therefore, the defendant's interpretation ofPa.R.C.P. 4010(a) is incorrect. The PlaintilTcontends that the use of the word "tests" in Pa.R.c.p. 4010(b) is to require the examining physician to provide the other party with the physician's interpretations of tests already performed. Such an interpretation explains why the word "tests" was not included in the language ofPa,R.C.P. 401O(a), and provides a reasonable interpretation ofPa.R.C.P. 401O(b). .' The Plaintiff has agreed throughout this litigation to present herself for an independent examination even though no good cause has becn shown as to why an additional examination is needed in the first place. Moreover, the Plaintiff has agreerlto supply Dr. Eagle with every prior x-ray and MRI performed on the plaintiff at the examination. It is this situation that was envisioned under Pa.R.C.P. 4010(b), requiring the plaintiff to provide the physician with prior studies, and then require the physician to provide the plaintiff with hislher interpretation of those studies in conjunction with hislher examination, To hold otherwise would directly conflict with the basic principles of statutory interpretation and common sense. C. The Defendants have Failed to Establish "Good Cause" for Additional X-rays. The trial court is authorized to order independent medical examination of plaintiff upon showing of good cause for such exam. Pa.R.C.P.4010. However, whether good cause exists is determination committed to the sound discretion of trial court, whose decision may not be reversed in absence of error oflaw or abuse of discretion. McGrauon 1', Burke, 449 Pa. Super. 597, 674 A.2d 1095 (1996), reargument denied, appeal denied, 685 A.2d 546. The requirement that the requesting party demonstrate "good cause" before the trial court may order independent medical examination of plaintiff is designed to protect parties against unwarranted invasion of their privacy and preclude use of such examination for improper purposes. Jd,; see also, Uhll'. c.H. Shoemaker & Son. Inc.. 432 Pa. Super, 230, 637 A.2d 1358 (1994). In an action for payment of benefits under the Pennsylvania Motor Vehicle Financial Responsibility Act, 75 Pa.C.S. 9 170 I et seq" an insurer does not establish the requisite "good cause" for a physical examination of insured under 9 1796 of the act or Pa,R.C.P. 401O(a) where there is no credible showing that the proof supplied in support of the claim is inadequate or that the proposed physical examination will substantially assist the evaluation of the claim. McDaniel v. Slale Farm Mill, Alllo, Ins, Co., 6 Pa. D. & C.4th 520 (1990), In the case at hand, the Defendant has failed to provide any "good cause" for additional x-rays. First, the Defendant is requesting only that the plaintiff subject herself to further x-rays. Additional x-rays constitute an unwarranted invasion of the plaintiffs privacy as other x-rays and diagnostic tests are available for the Defendants' doctor to review. More important, x-rays necessitate exposure to radiation, and where other such tests exist, the plaintiff should not be subjected to further radiation unless absolutely necessary. As stated, infra, the Plaintiffhas agreed throughout this litigation to present herself for an independent examination even though no good cause has been shown as to why an additional examination is needed in the first place. Moreover, the Plaintiff has agreed to supply Dr. Eagle with every prior x-ray and MRI perfonned on the plaintiff at the examination. Clearly, such necessity for additional tests does not exist. Second, no evidence exists that additional x-rays would substantially assist the evaluation of the claim. The Defendants' doctor, in his letter attached to Defendants' Motion, claims that these x-rays would provide infonnation concerning the plaintiffs current status, and then goes on to state numerous details the x-rays may show. At no point does Dr. Eagle state that any x-ray would substantially assist the evaluation of the claim, but that an x-ray may assist his evaluation. Dr. Eagle has yet to examine the plaintiff, yet the Defendants' Motion claims that Dr. Eagle can detennine the necessity of x-rays before even examining the patient. Without any evidence that the value of additional x-rays would conclusively outweigh the plaintiffs rights in not being exposed to further radiation, the Defendants' Motion must fail as no good cause is established. The plaintiff does not object to the examination, and has not objected throughout this litigation, but where the Defendant cannot offer good cause as to why additional The Plainliffhas agreed throughout lhis litigation to present herself for an independent examination even though no good cause has been shown as to why an additional examination is needed in the first place. Moreover, the Plaintiff has agreed to supply Dr. Eagle with every prior x-ray and MRI perfonned on the plaintiff at the examination. It is this situation that was envisioned under Pa.R.C.P. 4010(b), requiring the plaintiff to provide the physician with prior studies, and then require the physician to provide the plaintiff with hislher interpretation of those studies in conjunction with hislher examination. To hold otherwise would directly conflict with the basic principles of statutory interpretation and common sense. !:. The Defendants have Failed to Establish "Good Cause" for Additional X-rnys. The trial court is authorized to order independent medical examination of plaintiff upon showing of good cause for such exam. Pa.R.C.P.4010. However, whether good cause exists is detennination committed to the sound discretion of trial court, whose decision may not be reversed in absence of error of law or abuse of discretion. McGrallon v, Burke, 449 Pa. Super. 597,674 A.2d 1095 (1996), reargumenl denied, appeal denied, 685 A.2d 546. The requirement that the requesting party demonstrate "good cause" before the trial court may order independent medical examination of plaintiff is designed to protect parties against unwarranted invasion of their privacy and preclude use of such examination for improper purposes, Id.; see also, Uhl v. CN Shoemaker & Son, Inc, , 432 Pa, Super. 230, 637 A.2d 1358 (1994). In an aclion for payment of benefits under the Pennsylvania Motor Vehicle Financial Responsibility Act, 75 Pa.C.S. S 1701 et seq., an insurer does not establish the requisite "good cause" for a physical examination of insured under S 1796 of the act or Pa.R.C.P. 4010(a) where there is no credible showing that the proof supplied in support of the claim is inadequate or that the proposed physical examination will substantially assist the evaluation of the claim. McDaniel v. Stale Farm Mill, AlIIo, Ins, Co., 6 Pa. D. & C.4th 520 (1990). In the case at hand, the Defendant has failed to provide any "good cause" for additional x-rays. First, the Defendant is requesting only that the plaintiff subject herself to further x-rays. Additional x-rays constitute an unwarranted invasion of the plaintiff's privacy as other x-rays and diagnostic tests are available for the Defendants' doctor to review. More important, x-rays necessitate exposure to radiation, and where other such tests exist, the plaintiff should not be subjected to further radiation unless absolutely necessary. As stated, infra, the Plaintiff has agreed throughout this litigation to present herself for an independent examination even though no good cause has been shown as to why an additional examination is needed in the first place. Moreover, the Plaintiff has agreed to supply Dr. Eagle with every prior x-ray and MRI perfonned on the plaintiff at the examination. Clearly, such necessity for additional tests does not exist. Second, no evidence exists that additional x-rays would substantially assist the evaluation of the claim. The Defendants' doctor, in his letter attached to Defendants' Motion, claims that these x-rays would provide infonnation concerning the plaintiff's current status, and then goes on to state numerous details the x-rays may show. At no point does Dr. Eagle state that any x-ray would substantially assist the evaluation of the claim, but that an x-ray may assist his evaluation. Dr. Eagle has yet to examine the plaintiff, yet the Defendants' Motion claims that Dr. Eagle can detennine the necessity of x-rays before even examining the patient. Without any evidence that the value of additional x-rays would conclusively outweigh the plaintiff's rights in not being exposed to further radiation, the Defendants' Motion must fail as no good cause is established. The plaintiff does not object to the examination, and has not objected throughout this litigation, but where the Defendant cannot offer good cause as to why additional submit to a physical or mcntal cxamination by a physician or to produce for examination the person in his custody or legal control. The order may be made Of/ly Oil IIwt/ollfar gll/lIl CUIISt! slwlVlI and uponnolice to the person to be examined and to all parties and shall specify the time. place. manner. conditions and scope of the examination and the person or persons by whom it is to be made. Pa,R.C.P. 4010 (emphasis addcd), A. Grnntinll of Medical Examinations is Within the Discretion of the Court. Under Pa.R.C.I', 4010. this Court may order a party to submit to a physical examination; however. the examination is not a matter of right but may be refused or allowed with appropriate limitations or conditions in the discretion of the court to be exercised in light of the purpose of the rules relating to discovery, McCrackelll', Daklcm. 8 Bucks 89.14 Pa. D. & C.2d 694 (1958). Therefore. this Court need not grant the Defendants' Motion mercly because they claim the rules allow for Dr. Eagle to take his own x-rays. but should consider the circumstances surrounding the request. When the plaintifT appeared for the defense medical examination -- an examination that was consented to by the plaintifT -- the plaintifT was instructed by counsclthat x-rays would be requested by the Defendants' doctor. Dr, Eagle. but that Dr. Eagle was not entitled to them. Defendants claim in their brief that the plaintiff was "agreeable" to these x-rays; however. the plaintiff made clear to Dr. Eagle before the examination ever began that additional x-rays were prohibited. As a result. Dr. Eagle now claims any report he could provide would be incomplete. even though the examination never took place. In essence. Dr. Eagle claims x-rays are necessary of a person he has yet to examine, Moreover. as discussed. .I'lIp/'a. the privacy rights of the plaintifTin submitting herself to further radiation is also to be considered by this Court, The PlaintilT has agreed throughout this litigation to present hersell'lilr an independent examination even though no good cause has been shown as to why an additional exmnination is needed in the first placc. Moreover. the Plaintiff has agreed to supply Dr, Eagle with every prior x-ray and MRI perfomled on the plllintilT utthe examination. It is this situation that was envisioned under Pa,R.C.P. 4010(b). requiring the plaintiff to provide the physician with prior studies. and then require the physician to provide the plaintilTwith his/her interpretation of those studies in conjunction with his/her examinution, To hold otherwise would directly contlict with the basic principles of statutory interpretation and common sense. !:. The Defendants have Failed to Establish "Good Cause" for Additional X-rays. The trial court is authorized to order independent medical examination of plaintilT upon showing of good cause for such exam. Pa,R.C.P.4010, However. whether good cause exists is detennination committed to the sound discretion of trial court. whose decision may not be reversed in abscncc of error of law or abusc of discretion, MeGrallolll', Burke. 449 Pa. Supcr, 597.674 A.2d 1095 (1996). rearKUlllell1 dell/ed, appeal dell/ed. 685 A,2d 546, Thc requircmcnt that the requesting party demonstrate "good cause" before the trial court may ordcr indcpcndent medical examination of plaintilT is designed to protect parties against unwarranted invasion of thcir privacy and preclude use of such examination for improper purposes, Jd.: Jee alJo. UIr/ \', C'.11. Shoemaker & SOil. Ille,. 432 Pa. Super. 230.637 A,2d 1358 (1994), In an action for payment ofbenclits under the Pennsylvania Motor Vehicle Financial Responsibility Act. 75 Pa.C.S. * 1701 et seq.. an insurcr docs not establish the requisite "good eausc" fora physical examination of insured under * 1796 of the act or Pa,R.C.P. 4010(a) where there is no credible showing that the proof supplied in support of the claim is inadequate or that the proposed physical examinatiun will suhstuntiully ussist the evaluutiun ufthe claim. MeDal/ie/I', Slale Fa/'III Mill, A 1110, /1/.\', ('0" 6 I'u, D, & CAth S:!O (I'NO). In the case at hand. the Defcndant has fitiled tu provide any "good cuuse" lilr udditionul x-rays, First. the Delcndunt is requesting unly thut the pluintiffsuhject herself to further x-rays. Additional x-rays constitute ununwurranted invusion ufthe pluintill's privacy as other x-rays and diagnostic tests arc available Illr the Delcndunts' doctor to review. More important. x-rays necessitate exposure to radiation. and where other such tests exist. the plaintilT should not be subjected to further radiation unless absulutely necessary, As stated. il/}ra. the Plaintiff has agrced throughout this Iitigution to present hersell'liJr un independent examination even though no good cause has heen shown as to why an additiunal examinution is needed in the first place. Moreover. the Pluintiffhas ,Igreed to supply Dr, Eagle with every prior x-ray and MRI perfonned on the plaintiff at the examination. Cleurly. such necessity lilr udditiunal tests docs not exist. Second. no evidence exists that additional x-rays would suhstantially assist the evaluation of the claim. The Delcndants' doctor. in his letter attached to Defendants' Motion. claims that these x-rays would provide infomlation concerning the plaintitrs current status. and then goes on to state numerous details the x-rays /l/a)' show, At no point docs Dr, Eagle state that any x-ray would substantially assist the evaluation of the claim. hut that an x-ray /l/a)' assist his evaluation. Dr. Eagle has yet to examine the plaintiff. yet the Defcndants' Motion claims that Dr, Eagle can detemline the necessity of x-rays before even exumining the patient. Without any evidence that the value of additionul x-rays would conclusively outweigh the plaintin-s rights in not hcing exposed to further mdiatiun. the Delendants' Motion must filii as no good cause is estublished, The pluintilr does not ubjectto the exumination. and has not objected throughout this litigution. hut where the Delendunt cUllnot oller good cuuse as tu why additional @CT 2 9 1997. IUCHAJlO H. ,",'IX THOMAS L. 'X'ENGtA. DEAN A. ,",'EIONER. STEVEN C. WILD~ THEkUA L. $~DE "'IX. DAVID A..CETZ ST(PHEN J. DZUFlANIN GIRARD E. RICKARDS STEVEN 1\. '.X'llllAMS KEVIN S.ILANTON WIX. WENGER Ii) WEIDNER A PROFESSIONAL CORPOMTION ^TTORNEY5 ^T !J\W 4705 DUKE STREET HARRISBURC. PENNSYLVANIA 1710D- 3099 11171 652'8455 TELECOPIEkl7J71 652-6200 p, O. !lOX 645 508 NOkTH UCOND $fREET HAkRISIIURC, 'A. 17108.0845 17171 234'4182 TfLECOPIER. 1711\ 234'4224 PLEAU R.EPlY TO N. SECOND STRUT OFfiCE I 1 'A~'O ...~....r." ..."....C"U.l.l'T. IA" October 28, 1997 VIA FACSIMILE The Honorable George E. Hoffer Judge, Court of Common Pleas Cumberland county Courthouse 1 Courthouse Square carlisle, PA 17013-3387 Re: McLoota v. Chronister Dear Judge Hoffer: In accordance with the discussion at the Pre-Trial Conference, I am enClosing a copy of Defendants' Motion relating to the taking of x-rays by Dr. Eagle, together with our supporting Memorandum. I have this date faxed a copy of the Motion and Memorandum to Mr. Golomb. Very truly yours, Richard H. Wix ~Ch cc: Richard M. ichard J. Golomb, Esquire (via facsimile) Pierce, Court Administrator MAYA McLOOTA & SAMUEL McLOOTA, husband and wife, Plaintiffs : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-1309 CIVIL v. JOHN P. CHRONISTER and LARRY CHRONISTER, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION ONDER RULE 4010 plaintiff counsel at the Pre-Trial Conference indicated that he did not object to an independent medical examination by Dr. Eagle, rather his only objection was to permitting Dr. Eagle to perform X-rays. This Memorandum will therefore be limited to the issue of X-rays. Rule 4010 provides in part: (b)(l) If requested by the party against whom an order is made under this rule or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings, includinq the results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that he is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report the court shall exclude his testimony if offered at the trial. (Emphasis supplied). MAYA McLOOTA & SAMUEL McLOOTA, husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-1309 CIVIL v. JOHN P. CHRONISTER and LARRY CHRONISTER, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED DEPENDANTS' MEHORANDUH IN SUPPORT OF MOTION UNDER RULE 4010 Plaintiff counsel at the Pre-Trial Conference indicated that he did not object to an independent medical examination by Dr. Eagle, rather his only objection was to permitting Dr. Eagle to perform X-rays. This Memorandum will therefore be limited to the issue of X-rays. Rule 4010 provides in part: (b)(l) If requested by the party against whom an order is made under this rule or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings, includinq the results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that he is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report the court shall exclude his testimony if offered at the trial. (Emphasis supplied) . .\"C\c".:.:/,,: 'CO: '.~: ..........,... .'..< .. '~CT' ~'. .'. ";:;:( .': ';, .' .... 'r "', ......., . , . (~. . ~'~1'li;, ";""' . ii.,:~i~~ cz:~,;;:, ,c;,. 3ti':~;:;:i . on^""'[' '; ,;.',,;:. .~. ;.;:i:;:'>" .;: . '::"':..,..: ,.;~.}",<"c' ,",....;,"";.'.. ,", ", "," "i','",'" .,.. ',,:-":', :,. '.','" ;';. :::,,::, . 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",,;.,\,:t' ;- :}Pc:!', ";,:,, , .:;:1;\;'~r' , ,,' ,..... '>.:".,; " .' ":"'/., ' '; : i . '",,' ':;.::. ".:c:.. ;[i"::"" P;'" . ,,;':;";':~',"~;';,:"':; '\":~;'D:::~ " '. . ':, ' c.:', }.]::?:::.,..~ ;:;", ~.: ::' :",', :,:',: ':;.: ',' ;",:"',;: ',>',..' " .' ,', :"" ,.i ',," ':' "'',',> ' i ,:", N..:,.",' ,",: ". '.'" " :\,,:;"':: ,.,; , . ,.',' ,1," r, '., ..',.., ;i"~"'>:<::' <":,':;,:,?;'~>':" " ,,:'~::>:::<... ';',:;/',:y.;:'." , .; ';.., ;:, '. ,', ',' :". -" ,"""",' "': :,:'"'...;;,, ",,::"; ,::",':"~', ',.: ;'; "':: ',;1~; ~ " ' ' r.'';'.,:;~. >;,'.' 'C; ',:"":";' "c ',' ".,~ ,. ' ~ :e,,"~ IU',,:"<: ,t ' , ", " :.',:.' ,'.: .,. ,".' "'>, :;" ,.";""" "'. ;':',.' ,'''' , ,', ' "", ' .. , . '''''';.''', ' .' .,,;" , ,,' ,~:::.""..".".",.." ,. .,:, '",::;.,. . "'i' "..." ;~, ,,,,':';~:'~';:'~:':f,c::.~:h ~t:, ~ L',~;;~; ~ .' ....; . .'. < ,~ <>:'2: ',,;,:{i':'~li~i~ . " . " - .. -" - " ./ "" I>:. ,". , ",." ;,,' " r.:' ;::,.:;;;~;. :/ -:. '.: .~'~ ~ "t :;,. ;...'<) :':'" ',', , "I , .. , ,I,' . ".:,...>-;.', .' ",>';':,',' ':;~',;, :' e.' I:: ,'t. "~" '. '. ...' ',' ,,' i'" ,:,', '; "', . ".i,,';;:,'f;5";;~~':;!:"" ,;- r; .~.:,." ;'" ',' I . : , ' ,,', ,',' ,'~i'~}:)::",:~r"" ";1" .:,'.":. ' . l .".. .,'>:"', ~:,' ~.,:, I, ". .. . ,.".;"'> .: ::. . " ".:' .,.:,.:,::>.;,.:);...:...1, ..;' t,.:,;"/.:,.. ,',"' :"..<,',' .,:,.,', " ' ,,, ,::, ,,:' h "',,c::,,;'r' '~", '/~ '< :",,'; , "",;' ....:. ": ,,' , .' " " , ' . ',.,' "",: '(":, ",",', :("''','.' "::; , ": ":,, " , ",,' ,'. ',' " ',' ',' '. ','"..."" " ''': ,', ,', ' '.: ,.' '.: "',"'>', ,"', " ' ". " ,", " ' , ." " ' ' , .:::. , ,,' ,',' ':".:' .. ,r"';;;;::'i~::';/'}';:"" .... ..:. " ,:,;\,':, " . '. :.. . ,:/%".~:,~.!j;~, <) '...' ," ';.; :iL:.;, '; :,:,/, " ' '.. ':, " ,;. ,:';' "',> ,:' '. :',:r:::":':~'':;:<:>~. '" .: ,,: '. . :',.'" ,. ' ' ","',,",': ,",t ... ," '., ':':.' ' ,: ',:":',:':., ..,.:::"" ':,">'''' ,,' :::'; . ' . '," ..;.."":',:(: , . ,,' ' ,"',,;. ,..' ," , ,',' ,',". ,,':,;' ".' .;" '::', ".':,: , " ", >:.' : '. ." :: ' ""'" ,c' ",;,,::,,'.,,',", ,.'~ ',". .':;,' ......,. :',";' ',,";" L: '.. ",:'\"":}' '(, '}. ..." '~I:,~','" ,,'," ,~\: ;''''',',,''''> '," ',"": ,",:, ': ':: :"', '~' . ":::"~: ,,~~~:;;~ ",.."" ';,,;,' ,'P' ::i'\:";"";" ", ,;,,; .,,',,:.,, ,:'.;.,,:>.,"..r~:, " ".: ':.:'>i:;:1:;",.;u.""';;': "~~,~ ,~~:'.,; ,,~'j, ",0",' ;":;';:,,,i,:':;":;:z::;;"" "'.. '. :~.',;. ... , ,"', ',' ~'~:.f?':"~;,'''~~; ,;, :::::::..',; ',;:i:,i.. ,,;<, ""'~:,' """.'::;;:'; ". ~::::{::,:> i(, c: ;':';:.;;'.,.>;.:::',';;jf ,. ,i/,,;,','~''';:,:'>: i ,,""/"'i;.. " t';' ,::: '. 'i.", ,./,.,;,':".:": ':.:' ',; :,e:',': ';'" ,'" . ;::.:r,':;': ,'.:',::;;:;,.,.:::..',:. .' ;~l~k,.N cC "i. ,c " .' . '". cA> :::~~c::;>" '" .',:" ~: "',, V:;:/:,:"'. " ,'''.' ,," " ..", ",", : .J' ":"",,.). ';':,;':, "," " ,,,,,',,' ",,",." ;"',:' ,., :;;('.: :":;.~.'.~;:/,,, ;;, .;: '0" , ~' ,,~C'>r U! ,y;~ . ;:7 ..' ,;/,c;::.:/::.,-;' -1';-< , ':'''' .,:,:" :~~~,~~,?;~( I,. . ,~ ,. '~l _ ~_ ",-',. .' , ' ," ,;, " . ""C,;,"';'.:;, " .c', ' .'r.:,.'" . ,:",,) (,i V IJt; r ~~ H i99r, . It is clear from the explanatory notes to Rule 4010 that its reference to "tests" included X-rays. Thus, explanatory note number (3) reads: (3) Subdivision (b) (1) gives the party against whom the order is issued the right to require the examining physician to give him a report of the results of all tests made and his diagnoses and conclusions, including like reports of all earlier examinations of the same condition to which the examining physician may have had access. This would include the results of X- rays, cardiograms or other tests. If such a report is requested and received, the recipient must reciprocate, on request, and deliver a copy of all prior or later examinations made by his physician. Sanctions are provided for refusal. This follows Fed.R.civ.p. 35(b) (1). In Mvers v. Travelers Insurance ComDanv, 353 pa.523, our Pennsylvania Supreme Court in commenting on the examination of a Plaintiff stated: It would also seem, therefore, that as a general rule a plaintiff should not be subjected to hospitalization for the purpose of examination and study by defendant's physician. On the other hand there would be no unlawful invasion of plaintiff's rights if competent physicians at a reasonable time and place physically examined him, aided by such mechanical devices as stethoscope, electrocardiograph, X-ray, etc. Such matters are within the discretion of the court. See also, Fetterolf v. Levick, 80 D. & C 520 (1952), wherein the court stated: However, defendants are entitled to make their own X-ray examination of plaintiff under Pa.R.C.P. 4010 (see Mvers v. Travelers Insurance ComDanv, 353 Pa. 523, 528 (1946), and if he - 2 - refuses to submit he may be denied the right to introduce any evidence of his injuries: Pa.R.C.P. 4019(c) (2), which may be the only sanction for such refusal. The rationale and necessity for the X-rays is set forth in Dr. Eagle's report of October 23, 1997, and counsel for Defendant respectfully requests that Your Honorable Court order the Plaintiff to submit to X-rays of her cervical spine. Respectfully submitted, WIX, WENGER & WEIDNER ByQ~-/~jl ~ Richard H. Wix, I.D. #07274 Attorneys for Defendants 4705 Duke street Harrisburg, PA 17109-3099 (717) 652-8455 - 3 - ':.. I ...... III: :' , KAYA MCLOOTA & SAMUEL I I1cLOOTA, husband and wi e, PIa inti ft'il IN TilE COlm,. Of COMMON I'LI::AS CUMBERLAND COUNTY, 1'1;NNSYLVAN 1 ^ v. NO. 97 -1:1 09 Crv] T. . , ; I I I I I I I , I I I , JOHN P. CHRONISTER and LARRY CHRONTSTER. Defendants CIVIL AC'l'lON - LAw JURY THI AT. DEI1AND~:fJ ~. P ~-R AND NOW, thil; dilY of comJe I ' Phy~;i~',,1 1997. upun considoration of Defend nt~' Motion to Rxamination Pursuant t.o Pd. RUle 4010, it is hnr"by ':'rClerr:d lhdt Plaintiff Maya Mc:J,oota ha 11 submit tu dn independent, mC1dicu I oxamination at the ofti en of Dr. Perry A. I::aryle ilt " lime to hn astabli~hed, ilnd furthe that Plaintill ~hdll per~j! the t~kinq of cervical x-ray:; by Or. ed'll'e .,t th" t.lllll' ot hj,~ ''',,,minati-:>n. UY TilE COURT: .7. '-":1 '--' "'-1-;" Ill: i, HOU..1 """HfrHT I I plRHY A. t:ACLE. M,O. OHrMO~ACDlt IILl*., It, "'''''''D 'UJ<<..LNf I" LCADI;R 1ol1,:1(;HTI IIIOAD 'fONM, flL"''''5'''lv4NIA 17402 'lll"MOH.'.'.011 r... '41')3~.z October 23, 1997 ich~rd H. Nix, Esquire 705 Duke Street arrisburg, PA I,J09-3099 I Re: Mayn McLn<.ltd 'J. Cltronl:'H'r e~r Attorney Wix: ou are in receipt Dl ndependent medial ~v nquiry is one concer tudics to review elt my lei t,t:r of Oct(ll:'er :!O. 1997 ';:<pld,nu,g ..hy lunt j(.lrl Wuf: n(Jt pf:r'formt:d. '.:.'01.: furt.ne! 'ng the rdtiondlc for having ~urrent x-ray e time of independent medical ~vaJueltion. turrent x-rays ore .m 'ntricdl p.Ht of !JIlY ex.1mlncltir,n inclucJinq ,n independent med iCcl eVdluation. They prov ide IH.l vrmiltlr;ll ~oncerning the CU10ffm ,;tat II" of the body part. IIlvobecl, for lIxamplo the cervlcdl eglon. The info",,"tion I'rO\'HJ.-" In,,:; ~I\".' insite as to the cau!, of tltt.' pat l..nt 's pdin. ror ~;.,,)mpl':. rjaladies whiCh Cdn be i"'gno!ied un x-relY includede4l'nero111\'c di~,r, ~iscclse. old frilcturcs. C:dlcilJm de"P05l Is. bOll" C~Sl'" ~ubluxc)tlons. conge-Olt 1 conlllrlli(.\s .:11d probJl:rns ~ec('"dJry I il llr/lumi:l. The J"format i n gar "",red by x r.:J)' i a nl,d .-":.1l1..:.bl" b'l tfoutine physlGaJ eX'1lTli .;1\ lOrl. Th~ fl!"ldln~,p; on ;"lTOY ;;lCJY '.~:"~j.lp"rr. tihe pdtient:'~; com[)ldin ~i. Trj~Y rr:dY b~ inC'onf;i~tenl #O~th :L,': tient'u complaint.fi 0 th~y HId}' pr(!vide trle I!.llOlQgy (i( l~cH..S~ ";'1 e pat.ient's complaIn s. Furthen"':r.:, .<-roys may "JlJ:.;tr"lt~ ogresS10l1 of 'symptom tnr '?xdmplc. tZi!uma ",,'hich h.:~~ rr.:v....."l=-.i}y en inCurred. I I mclY be or bny fur p eosc do 1I0t he51 tdtC i p4F./t<JY I I i I her hl'lp 01' (:lill.,llcat 'Oil 1n IIII~; mat Il'r. to ciill or write. ~__. ..----.;::> 2;~:r) (~"r'y A. E,,~l.? :1.n. I". I .: '.'1~4 (II: 3:: f .liT r. \ KAYA MeI.aaTA & foAMUEI. MeLaO'I'A, husband and wife, Plairt if t,; v. JOHN P. cllRONIS1'ER "nd LARRY CHHONfSTP.R, De[cndant.~; JURY TilT ^L llEMANDFf' , DEfENDANTS' MEMORANDUM IN SUPPORT Of MaTJq~_pNDER ROLE 40!Q IN T~lE CClUR'I' OF COMMON PI.Ic;AS CllM ERLAND COllN'I'Y, ;'r::t1N~,{LV^N I A NO. 7-1309 CIVTT. ACTION - LAW PlaIntiff cuun~el at. the Pre-Trial Cunferenc~ indicated that he did not object too .\n ,ind",pendtnt medical eX"''''ln...lit," by Dr. Eilgle. rather hi,; only Objection tiW to permitt."<l Dr, P.ilqle to pertorm X-rays. Thif; MI~morilndum w+ll therp-ron' b" limit"d to the i~uue of X-rdY~. RUle 4010 provldus in piltt: (b) (1) If requuoted by the party aqainut wh~m iln ordl:r is maclc lJnder thi... rule lor tho 1)I~rson examined. thl! p"rty cau,dn<j the ex...mindtioll ," PI;' made shall II.,} iVl~r to him cI copy or ... detai l"d written report of t.he examining physician suttinq out his timJin<):;, incl\ll!i,ng the re';t'lt~"9..Lill1_ tp.st.sJJ1~~e. diilqllo~es amI conclusiont-, to<)etr.nr' wi th like report:; ot all l'ar Ii er l!xdmin"t i 011' of the Silme condition" After dnli"''-'ry thp. Pdrti. causing thn cXclmlniltion ~'hal1 b.~ elltitled UrlC'~l requeRt Lo receive [rom the pqrly ilqain~L wh~~ the ord(,r i:; mild~ a llr.e r.~put1t of ilny examinatioll. pl"eviou~ly or tJJI:lr,-,,\tter !1IMlL-, "t the Hrlm~ c;ondit.\ofl, unl~~;~;, 11'1 tht.:! r;('~a.! or t\ report. of exami""t.jon of " pl;'l'15on 1I0t. <\ pal't,'. t,ho pat'ty ,;hnwr.; th.,t hl1 is un,..},l" to obt,lin ~':. The court t'ln mot lon m~y make '*' nnicr ilqi" 11>: t ,j party l"equ tr lnr} de I i vcry of d !report 011 "uch tel'mi. ..." <Ire jll"!'., ,1nd it <I phy,~iciiJlI r,\il:; "I rl'[lI:;c:; to lII"kr! " repol't. the court !,;hall exc tude hiH tM;timony if olfl~rr!d lit. the tr.i,1!. (Lmpn''';L:; supplied) . I. :l ,,," ..(' Ill: " It is clear tram the explan~tory notes to Rulo 4010 that tll reference to "test::;" included X-rays. Thus, ('xplm\t\tory noCI) ullber (3) reads: (3) subdivision (b) (1) given the party ~~ainat whom the order i" issued the right to rcquh'c the examining physician to givo him a report or the results of ~ll test::; mosde and his d i .1gnClt1e:; "nd conclusions, inCluding liko reports of dll earlier examinations of the same condition tu which the examinill'J physiciall mdY hilVl.l IIdtJ access. This would include tho resultn 01 x- rays, cardioqr~ms or other tests. If such II report is requentl.ltJ and rncl.lived, tho recipient must reciprocdte, on n'lJuest, and deliver a ',:opy of all prior or Idter examinations made by his phy,;ician. Sant:tions ,)rc provid~d for. ret us" 1. 'I'hi::; follows FwLR.civ.P. J~(b) (1), In Mvers Y', ,TrilV(deJ;'.;;_,J.nfiuranGe.~.9.moilnv, 'j~'j Pa.52'J, our +nnl;ylvaniil Supreml' Court in cornmenti I\g on the eXdm.lnat i on or II taintiff stated: Jt would also seem, therefore, thilt ilS a cJellE~rill . rule a pldint i f t' ::;lIould not be 5ub'jectcd to hospitillization for the purposfl ot examinatIon il.nd study by dete ld"nt's physici"n. On thl.! nt"hcr hand there would e 1\0 unlawful invasion of plaintitf'u right if competent physicians HI, a reasonable time d d place physicHlly CXil.mincd him, aidl.ld by suc mechanIcal tJl.lvices as ~tethoscopc, clec rocardiograph, X-ray, etc. Such matters arc ithin the discretion of the court. \ "larcin See aIllo, Bllj:,~r9-L..Y,.. Le.y,ick, 00 D. Eo C 520 (1,)5~), the court .tated: However, defendant::; are entitled to make theIr own X-ray examlnilt I on or p \ a i nt. it [ uncle,' P,LR.C.P. 01(110 (see Myr.-,rS..Y-,-_JJ:"vclcrs TrJlillL"'pc,~ CO}1lQilnv, 'J~) Pil. 52'J, 520 (19010), and i r he - 2 - HOUR. IY AIt..OINTMENT OltTHOltAEDIC .URGEltY HAND .URGERY PERRY A. EAGLE, M.D. \It LEADE" HEIGHT. ROAD YORK, ItENN.VLVANIA 1740Z TIUI"HOHI7.1..... 'AI741.USZ October 23, 1997 Richard H. Wix, Esquire 4705 Duke Street Harrisburg, PA 17109-3099 Re: Maya McLoota v. Chronister Dear Attorney Wix: You are in receipt of my letter of October 20, 1997 explaining why independent medial evaluation was not performed. Your further inquiry is one concerning the rationale for having current x-ray studies to review at the time of independent medical evaluation. Current x-rays are an intrical part of any examination including an independent medical evaluation. They provide information concerning the current status of the body part involved, for example the cervical region. The information provided may give in site as to the cause of the patient's pain. For example, maladies which can be diagnosed on x-ray include degenerative disc disease, old fractures, calcium deposits, bone cysts, subluxations. congenital anomalies and problems secondary to trauma. The information garnered by x-ray is not available by routine physical examination. The findings on x-ray may support the patient's complaints. They may be inconsistent with the patient's complaints or they may provide the etiology or cause of the patient's complaints. Furthermore, x-rays may illustrate progression of symptoms for example, trauma which has previously been incurred. If I may be of any further help or clarification in this matter, please do not hesitate to call or write. PAE/tgy MAYA McLOOTA & SAMUEL HcLOOTA, husband and wife, plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-1309 CIVIL v. JOHN P. CHRONISTER and LARRY CHRONISTER, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION UNDER RULE 4010 Plaintiff counsel at the Pre-Trial Conference indicated that he did not object to an independent medical examination by Dr. Eagle, rather his only objection was to permitting Dr. Eagle to perform X-rays. This Memorandum will therefore be limited to the issue of X-rays. Rule 4010 provides in part: (b) (1) If requested by the party against whom an order is made under this rule or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings, includinq the results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that he is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report the court shall exclude his testimony if offered at the trial. (Emphasis supplied) . --- 1 2 3 4 5 6 7 8 9 10 11 12 , , . , 13 14 15 16 17 18 19 20 21 22 23 24 25 IOl - t 1. TH~~~ ~-l~ IN THE COURT OF COMMON PLEAS CUM8ERLAND COUNTY, PENNSYLVANIA MAYA McLOOTA AND SAMUEL SAMUEL McLOOTA, HjW, PLAINTIFFS VS NO. 97-1309 CIVIL JOHN P. CHRONISTER AND LARRY CHRONISTER, DEFENDANTS VIDEO DEPOSITION OF: MARK P. LUTNESS, M.D. TAKEN BY: PLAINTIFFS BEFORE: DONNA L. CROSSAN, RPR NOTARY PUBLIC TORR PIZZILLO, LEGAL VIDEO SPECIALIST DATE: MAY 13, 1998, 10:59 A.M. PLACE: 175 LANCASTER BOULEVARD LANCASTER, PENNSYLVANIA APPEARANCES: VILLARI, GOLOMB & HONIK BY: RICHARD M. GOLOMB, ESQUIRE FOR - PLAINTIFFS WIX, WENGER & WEIDNER BY: RICHARD H. WIX, ESQUIRE FOR - DEFENDANTS GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 i\..AIrJi\ff\,') ~rtl"\~ <X-- OA(Y)A~ I.. .p~ PA-ll.~ ~O 5~"1'\:/\.1r-J!'-' 'l.. f'~/\.~ ~A,rJ PrtJ() ~\X'~I,J\". ~ '" l()S{" U~1 TOMu-\r-l(,.. lQ 'U:.\'lU-). ~ ~.., G<~~ ~ ~ ~ ~$ l~ ~ Ar\uJ~ ~.$t. S. l.o.s~~ c..o~~,:n~ ob. ~('i\ ~tr\. ~~'oIT 1~~"'1, f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR PLAINTIFF Mark Lutness, M.D. By Mr. Golomb By Mr. Wix (None. ) TABLE OF CONTENTS WITNESS DIRECT 3,9 EXHIBITS CROSS 7,36 2 REDIRECT 48 GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ) 1 2 3 4 5 6 7 8 9 10 11 12 . ) 13 14 15 16 17 18 19 20 21 22 23 24 25 STIPULATION It is hereby stipulated and agreed by and between counsel for the respective parties that reading, signing, sealing, certification and filing are hereby waived; and all objections except as to the form of the question are reserved to the time of trial. MARK P. LUTNESS, M.D., called as a witness, being sworn, testified as follows: DIRECT EXAMINATION (ON QUALIFICATIONS) BY MR. GOLOMB: Q Good morning, Doctor. A Good morning. Q Can you just explain for the folks of the jury where we are this morning? A We're in the Office of Physicians of Rehabilitation Medicine. That's our office in Mechanicsburg. We rent space in the rehab hospital here. I work with Dr. Mike Lupinacci and Dr. Do and Dr. Rolle. We're a group of physiatrists, rehabilitation specialists. Part of our practice is to take care of patients in the hospital; joint replacements, multiple sclerosis, spinal cord injury, GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 3 r \ I ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 stroke, brain injury, brain tumors, that sort of thing, people who need to gain strength and function and get back home. Part of our practice is to work with people in the office setting. usually it's either a musculoskeletal problem or a neurologic problem. Pain post-injury would be one type of musculoskeletal problem. Q Can you explain to the jury what a physiatrist is? A Physical medicine and rehabilitation is a specialty that deals with two main aspects. One of them is hospital treatment for people who have had some serious accident or illness, amputation, and the other things I mentioned, and the other is dealing with painful conditions or with conditions that limit mobility or function. A physiatrist is a specialist in this area. The Board of Physical Medicine and Rehabilitation was set up in 1948, and I'm board certified in this specialty. In fact, I'm going to serve as an oral examiner in a couple of days for candidates who wish to be certified. Q When did you become board certified? A That would 1987. Q And what does it mean to become board GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 -~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 certified and how do you become board certified? A You finish a program of specialty training involving several years, looking at the various aspects of treatment and diagnosis in our specialty, passing a written examination, spending at least a year in practice after that, then passing an oral examination, and once that's done, maintaining skills and education. Q Okay. Why don't you just take a few minutes and beginning with your medical school background, explain to the folks of the jury exactly what you've been doing with your professional life. A Medical school at the University of North Dakota, residency at Rochester, Minnesota at the Mayo Clinic. After that, I looked at different jobs and worked at Geisinger Medical Center, which is in Danville, Pennsylvania, in the Department of Physical Medicine and Rehabilitation. It's a job that included contact with most aspects of what we would see in our specialty in the intensive care unit following trauma and then in the acute hospital into the rehab unit and working with children and adults. After about seven years there, I wanted to work with a program using multi-media computer programs to treat victims of brain jury and help them GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ') 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 in their recovery, so I took some time off and tried to get that set up. We were hoping to devise a program that would be used across the nation, but that -- the team didn't get it together. We didn't manage to get that to be the nationally used program for multi-media treatment of brain injury treatments. And then I had to look at other ways of getting back into the specialty or moving on to computer work, and I want to work with people. So I worked with Dr. Lupinacci in this office as a temporary locum tenens physician for a few months and they needed more work, and I liked the position, so I joined the group and I've been with the group for about five years. Q And are you affiliated with any hospitals at this point? A We admit or I admit to the rehab hospital, HealthSouth Rehab Hospital in Mechanicsburg and to the subacute rehab hospital, which is called Renova. I have consulting privileges at the local hospitals; Carlisle, Holy Spirit, Osteopathic, Harrisburg. Q We discussed a little bit about your board certification. Obviously you're licensed here in the Commonwealth of Pennsylvania? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 Yes, I am. And when did you become licensed in A Q Pennsylvania? A Q licensed to? A No. I was licensed in Minnesota, but I've let that lapse because I'm not practicing there. Q And are you a member of any societies, professional societies in the field? A Well, the Medical Society and the Pennsylvania Medical Society, AMA, and the Academy of Physical Medicine and Rehabilitation. MR. GOLOMB: At this time I'd like to offer Dr. Lutness as an expert in the area of physiatry. Any questions on qualifications? MR. WIX: Just a few. CROSS-EXAMINATION (ON QUALIFICATIONS) BY MR. WIX: That would be in '86. And are there other states that you're Q Doctor, you'd indicated that there was some time off between when you left Geisinger and when you started your present position. A Yes. Q When did you leave Geisinger? A I think that was '93. That would be GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 '~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 about May of '93, I believe. I think that's specifically on my CV, probably. Q And how much time off did you have when you were working on this other project? A A few months, about five months. Q And then you started your present position when, in the end of '93? A Yes. I think in November, then I began working here as a locum tenens physician because the workload was too much for the practice to handle. And then by May of '94, we agreed that there was enough work and that I would join the group. So then from May of '94, that was actually my hire date. Q In your practice, would I be correct that you do not perform surgery? A That is correct. Q And if an individual has a spinal problem, would they be referred to either an orthopedic surgeon or a neurosurgeon if surgery was indicated? A Yes. If surgery were needed, it would be one of those two specialties, or if you're considering whether or not surgery may be needed for an evaluation. MR. WIX: That's all I have. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 DIRECT EXAMINATION (CONT'D.) BY MR. GOLOMB: o Doctor, at this point, I'd like to direct your attention to your care of Maya McLoota. When did you first meet Mrs. McLoota? A December 27th, 1995. o And did you at that point take a history from Mrs. McLoota? A Yes, I did. o All right. First of all, who was it that referred you there -- or referred her to you, I'm sorry? A Dr. Donald Kovax. o Where is that? A In the Yellow Breaches Family Practice Center in Boiling Springs. o And what is your understanding as to who Dr. Kovax is? A Family practitioner. o Did you take a history from Mrs. McLoota? A Yes. o And what was the history? A Well, she -- first, I reviewed the records from Dr. Kovax because he did send some GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ---... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 records along as well. She had been evaluated at Alexander Springs Rehabilitation in September of 1995, September 19th, and he noted multiple cervical strains, anterior and posterior, neck and shoulder girdle, and joint inflammation of the cervical spine, secondary to a rapid extension injury. He noted about a 50 to 75 percent limitation of range of motion and muscle spasm, and he had her on a program of physical therapy. She also noted on her medical history form allergies, C-sections, appendectomy, tonsillectomy, hay fever, allergy to cats and listed the medicines that she was currently taking. We have a pain diagram in our office and on this diagram she indicated constant pain in the left trapezius muscle, the middle trapezius area, and in the right cervical paraspinal muscles and middle trapezius and in the right scapular region and supraclavicular region. Then in describing the history to me she stated that she was in good health until August 26th of 1995. She reported she was driving. She was stopped behind two other cars. A car approached from behind and hit her vehicle from behind with the speed stated about 45 miles an hour. She stated that she saw the driver coming in the mirror. She braced GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 /....... \ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 herself. Her head was looking up and to the right into the mirror at the time of the impact. She mentioned there was damage to the car, about $2,800 worth, and the other car was totaled. She said at first she couldn't get out of the car because her legs were shaking. She had her daughter and a friend of her daughter sleeping in back seat, worried about them, but fortunately, they were not injured. She doesn't remember the time of impact -- or she stated she didn't remember the time of impact. She remembered that the top of her head was tingling after that. The next day she was unable to move her neck. She went to the Carlisle Hospital, X-rays were taken, they were negative for fractures. She saw Dr. Kovax, her family physician, she received medications. She stated that for about three days she wasn't able to think, she didn't feel well. She reported shaking and crying. She was referred to physical therapy. They worked on Q I'm sorry, I didn't mean to interrupt, but is that the physical therapy that you discussed a little bit earlier at Alexander Spring Rehab? A I think that is a different time. I'll have to check on that, but the Alexander Springs said the initial evaluation form from Christopher Fisher GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 was 9/19/95, and she saw Dr. Kovax shortly after the accident. Q How long had she been under active care before she was finally referred to you? A About four months. Q And was she sti 11 undergoing physical therapy at the time that she saw you? A I'll have to check my notes. Since late August, massage therapy. As far as I can see, by that time, she was done with the latest bout of physical therapy and was not actively receiving physical therapy. Q Was she also undergoing massage therapy? A Yes, she was continuing with massage therapy at intervals. Q And what's the purpose of massage therapy? A Several things. One is comfort, massage, helps with pain relief. Another is increased blood flow to muscles. Very often there are tight areas in a muscle sometimes called trigger points, and the massage therapy can sometimes loosen up a tight bundle of muscle fibers or release muscles that are somewhat adherent. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 Q And what were her chief complaints when she came in to see you? A She noted several things. First of all, she noted constant aching pain, some of the mid-sacral region, some down the arms, mostly the outside of the arms. She noted that the ulnar fingers on right would sometimes -- the little and the ring finger on the right would sometimes get numb. She was unable to perform normal activities; for instance, day-to-day housework. She reported she was no longer able to work in her job, which is in the restaurant business. I think she was a waitress. She was no longer able to drive and pick up her son from activities. Basically, she'd curtailed many of her activities. She also noted that she had difficulty sleeping. She would be stiff at night. She noted that she would toss and turn and that her -- she would find that her muscles were very tense on awakening. Q Let me ask you a couple of questions about some of the things that you mentioned just so we can clarify a couple of things. You mentioned the fact that there was some mid-sacral pain at times. What do you mean by mid-sacral? A Low back pain that's perceived GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 .-~, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 basically here. Low back pain that's perceived basically in the small of the back, in the middle of the sacrum. Q And when you say that the pain will sometimes radiate down the arms and the outside of the arms, what do you mean by that? A Well, she noted neck pain, but beyond the neck pain, she also had pain that was perceiv~d down the arms. It was not a constant pain in the arms. Sometimes it would be minimally present in the shoulders and sometimes it would be perceived further down the arms. Q And what's the significance of that radiating pain down the arms? A In terms of what causes it, it might be caused by nerve root irritation or it might be caused by muscle irritation. In terms of the radiation, the fact that it's not constant but it comes and goes, it would suggest just fluctuations in the intensity of the problem. Q And when you say that the right ulnar fingers get numb at times, you told us what the right ulnar fingers are. What is the significance of the numbness? A If someone feels a numbness or a GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ~. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 tingling or a reduced sensation, it suggests that there is some reduction in the sensory fibers, the fibers of sensation from these nerves. Either the nerve root coming from the neck is affected or the nerve itself going anywhere down the length of the arm may be affected. Q And did you perform a physical exam? A Yes, I did. Q Can you tell us about that, please? A I noted that she was well-developed, well-nourished, in mild distress. Her stance was symmetrical when faced from the front. When faced from the side, her head was forward and her shoulders are down. I noted that her breasts are heavy because that will have some impact on the traction on the shoulders. Her movement qualities were slightly restrained. Her gait was normal. She was able to work on her toes. She was able to walk heel-to-toe, tandem walk. When she walked on her heels, she noted increased back pain. Her muscle tone was within normal limits. Her reflexes were normal and they were symmetrical from side to side. Her coordination was preserved. Her strength was preserved, except I felt there was just noticeable weakness of the triceps GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 '') 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . 16 and the right hip flexor. And it seemed that there was pain inhibiting right paraspinal muscle group. Sensation to light touch was preserved. When I tested with a pin, there was a slight hypesthesia or reduced sensation to sharp touch on the right side of her body about the T-4 level, including the region of the shoulder blade and then including the region of the middle trapezius muscle and the upper trapezius muscle. The range of motion of her neck was decreased in flexion. She was not able to bend her neck forward more than a few degrees. Rotation at the neck was limited to about 45 degrees in either direction. Normally, you would like to see someone being able to turn their head about 90 degrees to either side, so she was about 50 percent reduced in rotation. There's a test of balance called the Romberg test which involves holding the arms out in front. When she held her harms in that position, she noted more aching of the neck muscles. The bundle of nerves from the neck traveling to the arm travels under the collar bone, under the clavicle, and that's called Erb's Point, and I took my thumb and basically rolled that nerve bundle on either side. On the left GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 side it was mildly tender and on the right side it was exquisitely tender, very tender. She also had a mild tenderness to the trochanteric bursa on the right side of the hip. When I tried for a compression over the junction of the ribs and the sternum at about these levels, that was very painful. Upper cervical paraspinal muscles were tender and, in addition, the paraspinals at about T-4 or in the middle of the shoulder blades, the costochondral junctions were tender where the ribs connect. Q When you say that there was this notable weakness of the triceps and the right hip flexor, what do you mean by that and what, if any, significance is there to that finding? A She didn't have the power and authority with those muscles when compared to the other side and with the other muscles, which means that she was not recruiting that muscle as well. It didn't quite have the power. There's a muscle grading system, and in the muscle grading system, if it's -- if the muscle is able to fight gravity but not any resistance, then it would be about 3. With a very mild increase such as this or just noticeable loss of strength, it would indicate GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ~" 1 2 3 4 5 6 7 8 9 10 11 12 \ 13 , 14 15 16 17 18 19 20 21 :2 23 24 25 that this muscle is not being recruited as well. Whether this may be in response to pain, whether she's not recruiting that muscle as well because it hurts and she's not doing it or fear of pain or whether the muscle fibers are injured or whether the nerve fibers are somewhat injured is impossible to say. Q When you say that there is hypesthesia on the right side, what does that mean and what, if any, significance is there to that finding? A It means that the sensitivity to touch was reduced. Oftentimes there can be nerve damage that is mild. The arrangement of fibers in a nerve is such that the sensory nerves are on the outside of a nerve bundle and the motor nerves are on the inside of a nerve bundle, so if someone has preserved strength in a group of muscles that are fed by a particular nerve and preserved touch to light sensation, but some reduction in touch to sharp sensation, that's the most sensitive clinical indicator that there may be mild nerve damage. That would be the fibers on the very outside of the nerve. Q And based on the review of the records that you had from Dr. Kovax and the history given to you from Mrs. McLoota, along with your physical exam on that date, did you have some preliminary GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 18 J I I, il '--. \ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 impressions? A Yes, I did. My impressions were firstly she had, on the basis of the accident, a whiplash syndrome or an acceleration/deceleration injury, and she had mentioned her head was turned somewhat to the right looking in the mirror, so there was a little rotation at the time of impact. Secondly, I felt she had a reactive myofascial pain syndrome, basically the right trunk. Thirdly, there was some pain at the dorsal spinous process of the fourth thoracic vertebrae more so than the others. I felt there was probably some ligamentous damage at that level to account for that. She had a mild right trochanteric bursitis. She had a costochondritis, which is an inflammation of the ribs as they attach ~~ the sternum; worse on the right. I felt that she may have a right upper trunk brachial plexopathy or cervical radiculopathy at about a C4-5 level. In other words, at the time of impact, if there was motion of the neck, maybe there was some stretching of the nerve roots that come out from the upper trunk of the brachial plexus going down to the arm, not enough to make the muscles weaker but maybe to account for the loss of sensation or the reduction in sensation to GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 IB 19 20 21 22 23 24 25 20 sharp touch. And finally, I felt that she had signs of a secondary depression. It seemed to me that she expected to get better, she hadn't gotten better, and she seemed to show signs of depression related to that. Q Let me ask you a few questions about your impressions. Reactive myofascial pain syndrome, what is that? A If there is pain and spasm either from nerve injury or muscle injury, the muscles themselves because they're in spasm will be pulling on the attachment sites and will also have some reduction in blood flow to the muscle because the tight fibers are squeezing off blood vessels. This can sort of develop a self-sustaining painful condition. People can be injured and have some acute injury that effectively resolves in a few weeks, but the pain of the involved muscles continues and myofascial pain from attachment sites, from muscles that have been damaged and continue in spasm is essentially a self-maintaining or a self-sustaining painful condition of the muscles. Q You mentioned ligamentous damage at T-4 dorsal. First of all, can you tell us where T-4 dorsal spinous process is? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 r'""", 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes, I'll move carefully, but right between the shoulder blades, right about here. Q Okay. A And the second, third and fourth, basically third and fourth thoracic vertebrae are the spinous processes that muscles attach to that control the shoulder blade. So very often if there's any sort of injury that involves bending or involves the arms, either an auto accident or people who work at a desk and constantly hold their arms up, it can show up at that level because most of the stresses from shoulder girdle maintenance and support are concentrated in that area. I felt she may have had some rapid injury at that area, and she may have had a rip of the ligament. Q When you say costochondritis, what does that mean? A The chondritis refers to the cartilage and costo to the ribs, so it's the inflammation at the areas where the ribs connect with the cartilage that leads to the breast bone. Q And when you say in your differential diagnosis of a possible right upper trunk brachial plexopathy or cervical radiculopathy, first of all, we're talking about the neck. Right? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 21 I I , , , i 22 1 A Correct. 2 Q C4-5? 3 A Correct. 4 Q What is brachial plexopathy and what is 5 cervical radiculopathy? 6 A Well, the nerve roots exit at each 7 level from the spine, and I felt that either the C4 or 8 the C5 nerve root may be affected, irritated. If that 9 irritation occurs where the nerve root exits from the 10 spinal column, then it's a radiculopathy. The old 11 word for a nerve root is radical, so it's an inflamed 12 nerve root. If the nerve roots combine to form a 13 plexus or a bundle, and if the traction is on the 14 bundle and if a couple of nerve roots are involved or 15 if the damage is maybe a little further down along the 16 track of the nerve, then it would be a brachial 17 plexopathy. 18 Q What were the clinical findings based 19 on your physical exam that led you to believe that it 20 may be one or the other, the brachial plexopathy or 21 the cervical radiculopathy? 22 A Basically, two things. One was the 23 extensive pain, continued pain and spasm. If she has 24 a myofascial pain syndrome because muscles are tight 25 and in spasm and constantly pulling and reinjuring, GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 that can sustain itself because of muscle damage, but if there's an underlying irritation to a nerve root, then that's a painful condition that will cause spasm and will contribute to that. The second thing was the changes in sensation, the very slight reduction in sensation in zones of the skin that are handled by these nerve roots. Q And as of that visit, December of 1995, what was the plan? A Well, first I talked with her about this kind of injury, trying to give a cognitive overlay, a sense of what to expect, trying to make the point that the injuries can be very troublesome and painful, but fortunately, they don't usually represent something that's going to be life threatening or going to develop to paralysis or severely a worsening conditioning. Then I mentioned to her that it sounded from the way she talked to me that her program had been basically geared towards getting more active, trying work through this or exercise her muscles, and I felt that that may be aggravating the situation. And I talked about recurrence, small fnjuries, just sustaining pain and spasm. So I talked about maybe going to a management philosophy that involved reducing stress and letting the tissues heal more GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 make with regard to any type of therapy that she should either continue or undergo? A I suggested that she start a physical program, a physical therapy program that was more geared towards range of motion and comfort, and she also would need to have stretching for her tight muscles and she would need postural realignment, she would need to learn to relax the muscles. It may involve just education from the therapist, or it may involve biofeedback using a superficial EMG machine. I suggested aquatic therapy, which may help with relaxation of the muscles, as well as some comfort. I suggested she consider a trial of some medications, either zoloft or Serzone. They are useful for chronic pain and for depression, and I felt if she had a painful condition and a reactive depression, that would be useful for both of those considerations. Q Did you recommend any kind of tests or imaging studies? A Since it had been four months since this injury and she hadn't had a complete and quick resolution, I told her it would be useful and I felt very important to see if there's evidence of a herniated disc, and I suggested an MRI of the cervical GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 .--..., \ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 spine. Q And when was the next time that you saw Mrs. McLoota? A The next office visit was January 11th, 1996. Q And had, in fact, Mrs. McLoota gone for the MRI at that point? A Yes. Q And can you explain for the folks of injury exactly what an MRI is anc how it's performed? A An MRI stands for magnetic resonance imaging. It's a study to get a picture of the body. It's not an X-ray, sending X-rays through tissue, but it's a matter of putting a person inside a magnetic field and then bombarding the body with radio waves which change the alignment of the protons, using a computer to find out how the protons are changing the their alignment and with this data, generating a picture. The advantage of the MRI is that it is able to visualize soft tissues that are then an X-ray. X-ray will show the bones. Won't show much in terms of the spinal cord or the nerve roots or the muscles. The MRI will show images of the muscles, of the spinal cord and of the nerve roots. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 .~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 Q Does the MRI actually generate a film? A Yes, a film is produced. Q And did you review the film? A Yes, I did. Q And what were -- did it also come with a narrative report from a radiologist? A Yes, it did. Q And what was the findings of the MRI? A Well, I noted that the MRI of the thoracic spine of January 10th, 1996 was negative. Normally, I wouldn't order an MRI of the thoracic spine because usually if there is problems, they will occur in the cervical spine, but because she had such specific pain at that T-4 level, I felt that would be worth investigating. The MRI of the cervical spine taken on the same day showed prominent bulging disc material at C3-4, C5-6 and C6-7 with no evidence of severe herniation or of canal stenosis. Q When you say prominent bulging, what does that mean? A The cervical disc is a soft structure that's interposed between the vertebral bodies. There will always be -- well, there may be some slight increased bulging of the disc, because it's a soft structure between two hard structures, that will occur GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 c.--. \ 1 2 3 4 5 6 7 8 9 10 11 12 1 13 14 15 16 17 18 19 20 21 22 23 24 25 ( to some degree but it should be fairly mild, just a couple of millimeters. If there is more of a bulge, four or five millimeters or more, then there's a question of whether that represents a herniation, some fibers of the disc that are ripped and as a result, the material of the disc protrudes, or whether that disc just bulges more but none of the fibers on the outside are ripped, whether it's just more compliant. She had bulging discs at these levels to that extent. Q And do those the findings in the MRI, that being the bulging at C3-4, 5-6 and 6-7, does that clinically correlate to the findings, specifically the weakness in the arm, the radiation in arm, the numbness in the hand? A Yes. Those are the levels that are involved. Those are the levels that I was asking about clinically. Q And what were her complaints as of January of 1996 in terms of her physical complaints? A She mentioned that her symptoms were essentially unchanged. She mentioned that she had tried Serzone, the medication that I had suggested, but she had a headache taking it for the first three days. She continued the two weeks of the trial but felt it wasn't helpful, and there were some side GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 28 ..........\ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 effects, shivering, muscle tightness, and it seemed to interfere with her sleep, so she didn't derive benefit from the drug. She noted that her neck was still stiff, she noted that the right arm and shoulder still caused problems. Massage was still being received and was still helpful. She hadn't begun the physical therapy program because she wanted to see the MRIs first. She indicated the problems were giving her anguish. She said, They were driving me up the wall with aggravation, and that she wanted to get back to who I am, which I inferred meant that her self-image was I am healthy and competent and now I am not, so this was giving her some distress. Q Was she still out of work at that point? A I believe she was. Q And in your opinion, as of January of 1996, was she able to return to work? A I don't think she would have been able to tolerate it. Q Now, according to my records, the next time you saw Mrs. McLoota was in February, February 22nd of 1996. A Uh-huh. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 Q I note in the records, specifically in the first page about two-thirds of the way down of the first paragraph, you expressed a concern there about losing strength in the right arm? A Uh-huh. Q What's that all about and what's the significance of that? A Well, if the arm is weaker, that would suggest that the nerve roots are being affected so severely that they aren't carrying messages to the muscles, and so the muscles are weakening as a result. And the concern there would be worsening nerve root damage. You can also have effective weakness if someone is in pain and not using the muscles because it hurts and is splinting the muscles, then people will very often perceive the arm as weak. The problem is not that the muscle fibers can't generate mechanical pull, but that the patient is unable to kick in those fibers because they are splinting or protecting because of pain. Q And as of February of 1996, what was your impression? A I felt that she was having continued problems with pain. She had noted that she was more able to localize the pain by now. She was using the GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 biofeedback that we had talked about and that was helping her identify the areas that were giving her the most trouble. I felt that soft tissue damage was likely a cause of pain. I had considered the possibility of a rib fracture at the level of those right third and fourth ribs. Q Why was that? A Because that was a specific area that was giving her trouble with ongoing pain, and it's unusual for that particular area to be so well localized and to continue to cause that much trouble. Q And did you make any recommendations with regard to the right rib pain as to what she should do in order to make a definitive diagnosis? A I felt it would be worthwhile to take an X-ray and see if there is evidence of a rib fracture and, in addition, sometimes an X-ray won't show any changes, but a bone scan will show evidence of a fracture because there's more activity due to the healing of the fracture, collects more of the radioactive dye, so I ordered these two tests. The reason was if she has an unrecognized rib fracture that hurts and continues to work on it or work with it, that it may be an ongoing source of pain, and it would be better treated by rest. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ~\ 1 2 3 4 5 6 7 8 9 10 11 12 ) 13 14 15 16 17 18 19 20 21 22 23 24 25 32 And what were the relates of the test? They didn't show evidence of a Q A fracture. Q And as of February 22nd, 1996, what was Mrs. McLoota's work status? A She was not working and I felt she would be unable to return to work. Q Now, as I understand it, again from the records, you then again saw her May -- I'm sorry, March 21st, 1996, April 18th, 1996, May 16th, 1996, August 15th, 1996, November 15th, 1996? A Yes. Q Without going through each and every visit, Doctor, can you just generally, you know, tell us what was going on with Maya McLoota, how she was doing, what treatment she was undergoing and what your findings were during that period of time? A In general, first off, she didn't have resolution of her symptoms. She was still hurting and having problems tolerating any activity. She continued to show tight postures. She is very splinting and moving tightly. I felt that she had splinting and protective postures that were sustaining a myofascial pain syndrome. In other words, by holding herself so stiffly, she was putting so much GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 stress on the muscles and on the attachment sites of the muscles, that eventually there was a minor injury which caused more pain and kept it going. I felt that she had a continued problem with what seemed to me to be a reactive depression. I felt that this was an unexpected change in her physical abilities and her abilities to do what she wanted to do, and this was causing her a lot of emotional turmoil. I felt that she was maintaining some activity with her massage and her techniques, but she wasn't quite getting through the myofascial pain syndrome to where she was able to relax and regain normal comfort and activity tolerance. Q And specifically, in your report in April of 1996, under your impression, it indicates that she has evidence of herniations at three cervical levels and ongoing irritation which accounts for the pain and dysfunction. First of all, can you explain to us what that means? A Well, those areas on the MRI of the cervical spine with the disc bulging are protruding discs and, as I say, you could refer to that as a disc bulge or a small herniation, depending on what's causing that to protrude. If fibers are ripped on the GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 33 '~\ 1 2 3 4 5 6 7 8 9 10 11 12 ) 13 14 15 16 17 18 19 20 21 22 23 24 25 34 outside of the disc and soft tissue or soft parts of the disc are pushing it out and it's a herniated disc, if the fibers are intact but it's just bulging out, then it's not a herniated disc. So I don't know if they're herniated or not without looking at the fibers, but my feeling was they looked -- or because she had this pain following the accident, she had an accident that would account for this sort of flexion, and they were visible on the MRI of the neck, I suspected that they were herniated discs. Q And as of the last time that you saw her in November of 1996, how was she doing? A I felt she was doing a little better. Oh, the other question you had question asked me was the implications of the irritation. Q Right. Correct. A She had continued problems, the pain and the sensory changes, which I suspected were irritation of these nerve levels. By November, it seemed to me she was coming to grips with the fact that she had some impairments that she didn't have before, so I thought she was beginning to make some emotional adjustments to this change in her body image. She still had anxiety, she still noted weight loss and difficulty with sleep and signs of stress, GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 .) 1 2 3 4 5 6 7 8 9 10 11 12 ) 13 14 15 16 17 18 19 20 21 22 23 24 25 35 but it sounded like she was making some gains in understanding and accepting it. In terms of her physical exam, she was still tight. Her gait was symmetrical, she still held her neck and her back very stiffly. She still had restriction in her cervical spine. She had a little more motion in rotation. She wasn't quite as tender at the muscles of the neck and shoulder on the right, so I felt there was some improvement. Although, she had continued myofascial pain syndrome problems. Q And Doctor, now that it's, you know, as of the time of this evaluation, 15 or 16 months after the accident, do you have an opinion based upon a reasonable degree of medical certainty as to whether or not that's a permanent condition or not? A It's quite likely a permanent condition. She has, in my opinion, a painful condition. Her main complaint is pain. And the problem that accounts for the pain, in my opinion, is a myofascial pain syndrome. And this has been present since the accident and had never resolved completely in the time that I had seen her. With that record, it's not likely that that will resolve easily. She's tried the usual things that will help with that, relaxation exercises, biofeedback, postural GEIGER & LORIA REPORTING SERVICE - 1-BOO-222-4577 n 1 2 3 4 5 6 7 8 9 10 11 12 ) 13 ) 14 15 16 17 18 19 20 21 22 23 24 25 36 adjustments and they haven't eliminated the problem. So it's quite likely that will be an ongoing problem. Q Doctor, in your opinion, is she a person who's motivated to get better? A I think she's motivated to get better. Q And as of the last visit in November of 1996, did you discuss with her her work status? A We talked about that. At that time she was looking a little better, and I did not include that in my dictated note, so I don't have anything on on my dictated record. As I recall, we talked about her slowly getting better, and I was hoping that within a few months she'd be able to tolerate the activity necessary to get back to work. Q Okay. And Doctor, based on your review of the records, the various studies that were done, the history taken from the patient, your own extensive notes and physical examinations, do you have an opinion based upon a reasonable degree of medical certainty as to the cause of Mrs. McLoota's injuries? A The motor vehicle accident. MR. GOLOMB: Thank you, Doctor. I have no further questions. CROSS-EXAMINATION BY MR. WIX: GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ~ 1 2 3 4 5 6 7 8 9 10 11 12 '. 13 14 15 16 17 18 19 20 21 22 23 24 25 37 Q Doctor, as I understand it, you first saw this plaintiff on December 27th of '95. Is that correct? A Yes. Q And with regard to the history, and I'm referring to Page 2 of your reports, did she indicate to you that in the past that she had suffered from migraine headaches? A Yes, she said that she had. Q And they had preceded the accident. Is that correct? A Yes. Q And then you were discussing her complaints and problemr. a little bit later there and you indicate she describes not so much a pain as a constant ache. A Yes. Q And that's what she told you, was more like a constant ache that she had? A Right. I will routinely ask people if they can characterize the pain and describe it; sharp, ache, dull, throbbing, whatever. Q And at that time, as I understand it, based on the information you had at that point in time, you had made some preliminary diagnoses or GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ,"'") 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 impressions? A Yes. Q And in connection with your preliminary diagnoses, the plan was to get some additional studies to help either confirm or rule out some of the conditional diagnoses. Is that correct? A Right. Also to see if there's any limits on the amount of physical activity I should be demanding of the patient. Q Okay. And then as I understand it, at that time, that is your initial visit, your recommendations, aside from getting the imaging studies, were that she should have some physical therapy with some gentle stretching. Is that correct? That's one of the things? A Correct. Q And you also recommended that she try aquatic therapy. A Yes. Q Now, with regard to those two recommecdations, did she, in fact, try the aquatic therapy? A I can't remember. I'll have to go to the records. Okay, she waited until a chance to review the findings of the MRI before going on with GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 -) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 39 the therapy, and I didn't have any problem with being cautious there. So on my note of 2/22/96, I'm checking about the aquatics. I can't find comments about the aquatic therapy so far in my notes, so I'm not sure about that. Q So you have nothing in your notes at least to indicate that she ever had that? A Not that I can see so far. I'll keep on looking. Q All right. Does your facility here have a physical therapy department? A Yes. The hospital therapists reserve their time for hospitalized patients, but about a mile and half down the road, there's a gym that has outpatient physical therapy. Q Is that where you referred her to? A I don't refer specifically to a gym. I just recommend the therapy that's to be done and then it's up to the patient to decide where to go. I can check and see where she went from the reports, I hope. MR. GOLOMB: Just for expediency, you mentioned in your very first report as to where she was going for therapy. A Oh, good. Oh, was that the Alexander Springs. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 '/"",,\ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 MR. GOLOMB: Right. A Yes, thank you. Thank you very much. Yes, that was more convenient. It was closer to where the patient lives. BY MR. WIX: Q Well, that's where she had been doing for treatment prior to her seeing you, is that correct, since you mentioned it in your first report? A okay, that's where she had been. That's right, she had been, and that was Alexander Springs. Well, so far, I'm not sure which therapy gym she went to. Now, Melanie, Dockman Associates in Carlisle, okay. No, that's the massage therapists. I'm not sure which therapy gym she went to. Q And did she -- do you know if she had any aquatic therapy that you had recommended? A Well, I didn't comment on it, so I can't say, because I do not remember. Q Well, do you know, if, in fact, she followed up with further physical therapy and, if so, where did she have that at? A Well, I didn't comment on where she had it, but on the February 22nd, 1996 visit, I noted that she was getting her biofeedback and that as a result of this, she was beginning to localize the pain GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 /........ \ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 pattern, so obviously she was getting her therapy and she was getting the biofeedback. Q But biofeedback, there's a difference between that and physical therapy? A That's true. Q Now, you said that she was getting biofeedback. Does your notes indicate that she was getting physical therapy as opposed to biofeedback? A My note does not indicate that so far. I can't see that in my notes. Q All right. Then as I understand it, after her December, initial meeting with you, she did, in fact, have the MRI studies. A Uh-huh. Q Okay. And your next visit, then, with her was on January 11 of '96. A Yes. Q And that's when you discussed with her tha~ she had these protruding discs. A Yes. Q And there's a difference between a protruding disc and a herniated disc. Is that correct, Doctor? A Well, as I said, if it's a big herniation, then it's clearly a herniation. If it's GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .- 42 protruding at a certain point, whether or not that's a herniation or a protrusion would depend upon whether the fibers on the outside of the disc are intact or not. Q And you refer to them, I think, in your report, as bulging discs. Is that correct? A I think at one point I said bulging and one point herniated. To my eyes, that was on the border line, where I couldn't tell from looking at that whether the fibers are intact or not. Q So let me just clarify that. What you're saying is that looking at the MRIs, you could not tell whether the outside fibers were intact or not. So therefore, you cannot say whether it is just a bulging disc versus a herniated disc? A That's correct. Q And with regard to bulging discs, isn't it true that there have been a number of studies that have been performed by radiologists who do these MRI's -- A Uh-huh. Q -- on people who've had no complaints? A Uh-huh. Q And by the way, radiologists are the ones that do the MRIS, generally. Is that correct? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ~ 1 2 3 4 5 6 7 8 9 10 11 12 .. J 13 14 15 16 17 18 19 20 21 22 23 24 25 A Correct. Q And isn't it true that in these studies where they've taken people off the street who are what we call asymptomatic or no symptoms, a large percentage of those people will have, in fact, bulging discs when an MRI is performed? A True. In fact, when I spoke with her on January, as we talked about the films, I even I noted that I had spoken with her, that some people have disc protrusiona to this extent without pain and some have pain without disc protrusions, so that the MRI is no definitive proof that the symptoms emanate from these areas. On the other hand, it's not proof that they don't, but I told her that it's not definite proof that they do. Q And in fact, some of the studies that refer to, some people have even shown up with true herniated discs and yet they weren't having pain. Isn't that correct? A Right. Q So -- and as you've indicated, you did tell her the mere fact she had bulging discs doesn't necessarily mean that that's causing her a pain problem? A Right. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 43 J I' t " 0 1 2 3 4 5 6 7 8 9 10 11 12 ) 13 14 15 16 17 18 19 20 21 22 23 24 25 44 Q And the MRI would not tell the physician when the bulging occurred, would it? A That is correct. Q In other words, just looking at the MRI films, which I assume were taken sometime in January of '96, looking at the film, you couldn't tell whether the bulge had been there for two weeks or two years? A That is correct. Q All right. And one of the things that you felt that she had was some depression. Is that correct? A Yes. Q And in your notes of February 22nd, 1996, which I guess was your third visit, was that, in fact, your third visit? A Yes. Q At that point in time, you described her, and I'm quoting from your records, "The patient is a very controlling Type A individual who is experiencing significant psychological stress and anxiety over the protracted course and ambiguities in diagnosis and treatment." What did you mean when you described her as a controlling Type A individual who is experiencing significant psychological stress? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ') 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 A Well, the idea of Type A and Type B now is that the Type A individual wants things controlled, wants to have things done, wants to move fast, driven, succeeding, hard-driving type. Type B is more passive, laid back, less directive, more willing to sort of go with the flow, and we all have variations on this continuum. For people that have a strong desire to succeed and to have things done and under control, anyone who is faced with the body betraying them with a condition that they didn't expect and pain that's not going away, that's much more distressing than if someone is passive, devil-may-care, you know, I'll take whatever comes, but we see that a lot with response to injury. Q At that time, did you consider referring her to a psychologist to aid her? A Well, we talked about that a bit too. She felt that she could manage and use the techniques, and I felt that she was working on it, so Q Did you ever refer her for any psychological therapy or help? A I don't believe so. Again, if one reason would be she still has pain, she's using techniques, but if she were not functioning in the GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 n 1 2 3 4 5 6 7 8 9 10 11 12 ) 13 14 15 16 17 18 19 20 21 22 23 24 25 46 family situation or if there were major psychological problems, that sort of thing, that would be a stronger indicator. From our discussions, it didn't seem to me that she was having that kind of intense psychological disruption. Q In the course of your regular work, you do find from time to time that people will need psychological referrals. Is that correct? A That's correct. Q And part of the -- some of the people on the staff here at your facility are psychologists who help people deal with chronic pain and things of that nature? A Correct. Q But your impression was that her functioning at least within the family and so forth was not bad enough to cause you to refer her to any psychologists here on your staff? A That's correct. I think psychological involvement is helpful in almost anybody that's dealing with chronic pain, but people have varying levels of willingness to accept that or comfort with it. Q You had mentioned the bone scan and the X-rays of the ribs were both negative. Is that GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ~ . 1 2 3 4 5 6 7 8 9 10 11 12 . J 13 14 15 16 17 18 19 20 21 22 23 24 25 47 correct? A That's correct. Q And she'd also had some nerve conduction studies. A Yes. Q And one of the things we were checking from or with those was whether she had this cervical radiculopathy, and those studies showed no evidence of a right cervical radiculopathy. Is that correct? A That's correct. Q In fact, all of those studies were normal except one which had showed some ulnar nerve compression on her left side. Is that correct? A That's correct. Q And that was thought to be just an incidental finding. A That's correct. Q And by that, not felt to be related to the her problems or her complaints? A Right, it, it -- correct. That's something that you'd be more inclined to get, I'm sitting on my desk and the ulnar nerve is being compressed by the act of sitting. That's the most common reason for that. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 48 Q Okay. Now, in terms of your next several visits, which were basically through in 1996, what treatment, if any, were you rendering to her, or were you basically just following her to check how her progress was going along? A Well, I was trying medications to see if they may help, and there was some improvement with a couple, Doxepin, for instance, helps some with reducing some of the intensity of the pain but, on the other hand, it also was very sedating, which can be a problem with it. So they didn't turn out to be medicines that were tolerated for -- Well, no, by May, we had talked about continuing the Doxepin for a while, so one thing was medications to try to reduce the amount of pain, and we also looked at the possibility of other medicines, such as narcotics but try to avoid those. In terms of active treatment in the way of injections or more physical therapy or something of that sort, I didn't feel that ordering the same thing for another go-round would be very helpful. Q And Doctor, you had mentioned that during the period of time that you were treating her, you did not feel that she should do a waitressing type of job, and I gathered one of the reasons was because GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ........, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 49 a waitressing job can be a rather strenuous type of employment and would involve some lifting and overhead movements. Is that correct? A Yes. It shouldn't stress the areas of the body that were already giving her the most trouble. Q You're not saying that there was no type of work that she could have done during 1996 as opposed to the waitress job? A It's difficult to say what work tolerance people could have. It's difficult to find work that's tolerable when someone has neck and shoulder problems because more clerical work involves leaning forward and using those muscles which tends to aggravate them, but, you know, conceivably something that didn't put too much stress on this area could be done. Q And as I understand it, you last saw her in November of '96. Is that correct? A That's correct. MR. WIX: That's all I have. REDIRECT EXAMINATION BY MR. GOLOMB: Q Doctor, Mr. wix had asked you about this study that was done that shows people GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 .~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50 asymptomatic, people walking around with bulging discs. Rather than talking about the population that we're not talking about, let's talk about Mrs. McLoota. A Uh-huh. Q First of all, does Mrs. McLoota have any history before August of 1995 of any problem with her neck? A None that I elicited, no. Q Ever go to a doctor for any reason because of her neck prior to August of 1995? A Not from my interview with her. Q Can you explain for the folks of the jury what it means when somebody's got degenerative joint disease? A Arthritis is a disease of the cartilage, and we think of arthritis as showing changes in the bone. If you have degenerative joint disease, that basically means bony changes that we would call arthritis. Osteoarthritis would be the old term. A lot of people have degenerative joint disease in the neck. If you look at the bones of the neck, you'll see irregularities. In her case, she didn't have those sort of irregularities. Q And like people walking around with GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ---- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 << 51 asymptomatic bulges, are there a lot of people walking around with asymptomatic degenerative joint disease or degenerative changes at some level? A Well, yes, there can be degenerative changes and people are not having much trouble with them, yeah. Q And you've looked at the films, the X-rays as well as the MRI films of Maya McLoota. Is that correct? A That's correct. Q And is there any evidence of degenerative joint disease? A ~Not that I S~I 0 we there's two things with regards discs. to whether or before the as we've benefi t of no way you her that since I didn't can say see which arthritis, because the first damaged a damage after that. are that, and since she these symp to this, I told her based on t histcry it seemed to me that that would suggest hat GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 --..., I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 52 this was a change that occurred at the time. That's suppositio , but that would be my opinion. The other thing I'd like to -- or the other like to make with regard to the iscs her pain problem, in is as estimation, is a myofascial pain discs are for syndrome, may be irritati the nerve roots a little ongoing source myofascial pain syndrome herniated disc. \ \ / caV we , \ '. MR. WIX: more can have a any sort of a go off the camera for a moment. \ \ THE VIDEO OPERA~R: We're now going off camera. The time is 12:10. \ (The following tes~mony was off camera.) \ \ MR. WIX: I would mov~ to strike just that portion.- of the doctor's last ans\er where he was \ talking about the disc and he gave a sJ position as based on reasonable MR. GOLOMB: okay, back THE VIDEO OPERATOR: We are camera. The time is 12:11. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 -, \ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53 BY MR. GOLOMB: Q Doctor, when you say supposition, are you saying it's a supposition because there . prior film, when we talk about the causati n as to the diSC'~hether it's a bulged herniation whatever you call it. A I'm saying that it . to me that t~s was a process tha time of the acd1dent, stresses a accident to acco~for the " And bai\ed on , that she'd never~a occurred at the time of the Q history that there was problem before, based on the other films reviewed showing no degenerative joint within a reasonable A an't say that. say that the discs could occurred they bulge. I that strong a statement. Q Okay. Frankly, from of , does it matter for you? No. It doesn't have an impact reason for her pain, ongoing pain syndrome. ... ....... Q And you've already expressed your opinion with regard to the pain, that you have an opinion within a reasonable degree of medical GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 -- , 1 2 3 4 5 6 7 8 9 10 11 12 ) 13 14 15 16 17 18 19 20 21 22 23 24 25 certainty. Is that correct? A That's correct. Q And what's the cause of that? A The motor vehicle accident led to soft tissue damage and a sustained myofascial pain syndrome thereafter. Q Now, you had mentioned, Mr. Wix was asking you some questions about whether or not you had referred Mrs. McLoota for any kind of psychological evaluation, and one of the things I want to pick up on is what you mentioned was, and I wrote it down, was that different people have varying levels of comfort of seeking that kind of evaluation. What did you mean? A Well, generally, it's been my experience that people that are independent, used to being in control, used to running their own destiny, task oriented, driven to success, focus on those concrete aspects of their life and don't place much credence on feelings and searching your -- searching your feelings and looking at the implications. So that patient population is the group that is most resistant to the idea of seeing a psychologist. I don't need a psychologist, I'm fine sort of thing. Q What was your understanding as to the GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 54 ~ 1 2 3 4 5 6 7 8 9 10 11 12 C ) 13 14 15 16 17 18 19 20 21 22 23 24 25 . 55 activity level that Mrs. McLoota maintained before the accident in August of 1995? A From her description, it sounded to me like she was busy. She spent a great deal of time with activity, doing this and that. She was a doer. Q And how, if at all, was her activity level affected by this accident? A Well, it was significantly reduced. MR. GOLOMB: Thank you, Doctor, that's all I have. MR. WIX: I have no other questions. This deposition is now concluded. The time is 12:14. MR. WIX: For the record, I would renew my objection to that portion before that the Doctor said he couldn't say with medical certainty. (The deposition concluded at 12:14 p.m.) GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 56 STATE OF PENNSYLVANIA ss. COUNTY OF YORK I, Donna L. Crossan, a Reporter Notary-Public, authorized to administer oaths within the Commonwealth of Pennsylvania and take depositions in the trial of causes, do hereby certify that the foregoing is the testimony of MARK P. LUTNESS, M.D. I further certify that before that taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by said reporter Donna Crossan, a Reporter Notary-Public approved and agreed to, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify that the proceedings and evidence contained fully and accurately in the notes by me on the within deposition, and that this copy is a correct transcript of the same to the best of my ability. In testimony whereof, I have hereunto subscribed my hand this 18th day of ~lay, 1998. / . .). /' \ .C? .' /. (. ,--..i*'(/"U Donna L. CrosBan, RPR My commission expires: July 13, 2000 GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 3 1 VIDEOGRAPHER: My name is Douglas MacIntyre. I 2 represent Video Images, 3004 Black Oak Drive, Red Lion, 3 Pennsylvania. Today's date is May 13th, 1998. The time of 4 day is 1:13 p.m. This deposition is being videotaped at 191 5 Leader Heights Road, York, Pennsylvania. 6 The caption in this case is Maya McLoota and 7 Samuel McLoota, husband and wife, versus John P. Chronister. 8 The name of the witness is Perry A. Eagle, M.D. This 9 deposition is being videotaped on behalf of the Defendant. 10 Counsel will now please introduce themselves. 11 MR. WIX: My name is Dick Wix and I represent 12 John Chronister. 13 MR. GOLOMB: And my name is Richard Golomb and I 14 represent Maya McLoota. 15 VIDEOGRAPHER: The reporter will now please 16 identify herself and swear in the witness. 17 COURT REPORTER: My name is Christine Haag. 18 19 PERRY A. EAGLE, M.D., called as a witness, being 20 duly sworn, testified as follows: 21 DIRECT EXAMINATION 22 BY MR. WIX: 23 Q Will you state your full name for the record 24 please, Doctor? 25 A Perry A. Eagle, M.D. 4 1 Q And, Dr. Eagle, what is your office address? 2 A 191 Leader Heights Road, York, Pennsylvania. 3 Q will you tell the ladies and gentlemen of the jury 4 your educational background leading to your becoming a 5 physician? 6 A I attended undergraduate school at the University 7 of Maryland and then attended the University of Maryland 8 School of Medicine, graduating with an M.D. degree in 1967. 9 I than had one year of internship at York Hospital followed 10 by one year of general surgery residency also with the York 11 Hospital. I then had one year in fellowship of surgery of 12 the hand at the Grace Hospital in Detroit, Michigan. I then 13 had my orthopedic residency training program at the Alleghany 14 General Hospital in Pittsburgh, completing that program in 15 1972. 16 Q And since 1972 where have you practiced your 17 specialty of orthopedic surgery? 18 A In York. 19 Q Dr. Eagle, will you briefly explain to the jury 20 what is encompassed in the practice of orthopedics? 21 A Orthopedics is a surgical subdiscipline which 22 deals with the diagnosis and treatment. And by treatment I 23 mean with and without surgery of problems with bones, joints, 24 their related structures and problems with the spine. 25 Q And in the course of the years that you have been 5 1 practicing have you regularly treated individuals who have 2 sustained injuries as the result of trauma and particularly 3 automobile accidents? 4 A Yes. 5 Q In the course of your practice have you had 6 particular experience in injuries to the neck and performing 7 neck surgery? 8 A Yes, I have. 9 Q And could you tell us a little bit about your 10 experience with regard to treating neck injuries? 11 A Well, most neck injuries do not need surgery, and 12 of course I treat those, just as many of my colleagues do. 13 Not all orthopedic surgeons are trained to perform surgery of 14 the neck obviously when surgery is needed. I was trained to 15 do neck surgery during my residency training program, and 16 when I went into private practice here I was the only 17 orthopedic surgeon who was trained to perform neck surgery. 18 Neck surgery at that time and for the most part 19 now is still done in conjunction with the neurosurgeon. And 20 because of my unique position in being the only orthopedic 21 surgeon trained to do neck surgery received a great number of 22 referrals from physicians in York County and even outside the 23 county. And as a result during that time and time 24 subsequent, when others were trained to do orthopedic neck 25 surgery, came to this community. I have performed over 2,000 1 neck surgeries. 2 Q Doctor, are you Board-certified? 3 A Yes, I am. 4 Q And by what Board are you certified? 5 A The American Board of Orthopedic Surgery. 6 Q And just briefly can you explain what's involved 7 in Board certification? 8 A Each specialty has an American Board, an 9 organization that oversees to the educational requirements of 10 those physicians who wish to practice a particular 11 specialty. And as I mentioned before I am concerned with the 12 American Board of Orthopedic Surgery. In order to receive 13 the certification of that Board the physician must complete a 14 residency training program in orthopedic surgery that has 15 been reviewed and approved by the Board. Then the physician 16 must be in the private practice of orthopedic surgery for a 17 specified period of time, and then the physician takes both 18 oral and written examinations administered by the Board. And 19 upon successful completion of all of these parameters the 20 physician is Board-certified. 21 Q Doctor, do you have staff privileges at any 22 hospitals or other institutions? 23 Yes. A 24 Q And could you tell us what they are? 25 I hold a staff appointment at the York Hospital; A 6 , " 1 2 3 4 5 6 7 8 9 10 11 ) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 at the Apple Hill Surgical Center; at Health South, which is the Rehabilitation Hospital of York; and an appointment as an assistant clinical professor of orthopedic surgery at the Pennsylvania State College of Medicine at Hershey. MR. WIX: We would offer Dr. Eagle as an expert on orthopedics. Any questions on qualifications? CROSS-EXAMINATION ON QUALIFICATIONS BY MR. GOLOMB: Q Just so the jury is clear, Doctor, you saw Maya McLoota on December 29th, 1997; is that right? A That is correct. Q And that was over two years after her accident of August of 1995? A Correct. Q And you saw her at the request of Mr. Wix? A That is correct. Q You weren't -- so it wasn't that Mrs. McLoota contacted you because she wanted you to treat her? A That is correct. I am not her treating physician. Q And on December 29th, 1997, that was the one and only time you saw Mrs. McLoota? A I saw her briefly I believe one other time, but that was the only time that I examined her. MR. GOLOMB: Okay. Thank you, Doctor. I have no further questions. No objection 8 1 DIRECT EXAMINATION 2 BY MR. WIX: 3 Q Dr. Eagle, as counsel pointed out you examined the 4 plaintiff in this case at my request; is that correct? 5 A Yes. 6 Q And will you explain to the jury when you're 7 requested to examine someone that is not regularly your 8 patient what's involved in that type of an evaluation 9 examination? 10 A That evaluation is usually referred to as an 11 independent medical evaluation. In other words, one 12 evaluates that patient to render opinions and not to render 13 treatment. Usually there is a body of medical records which 14 is provided for review. Then after briefly reviewing those 15 records I take a history from the patient. 16 I ask the patient questions in order to find out 17 what's happened and bring me up-to-date on treatment, 18 symptoms, etc. And I ask personally ask the patient 19 questions in a goal-directed fashion, and those responses are 20 recorded by my secretary for purposes of the record. Then I 21 perform a physical examination of the part or parts of the 22 body that are to be examined, and then I review any tests 23 that are available such as X rays and MRIs or CT scans or EMG 24 and nerve conduction studies or things of that nature which 25 shed some more information on the subject. And then I make 9 1 some diagnoses and make some opinions. 2 Q Now in this case your examination was on December 3 29 of 1997; is that correct? 4 A Yes. 5 Q And what was the history that the Plaintiff gave 6 to you on that occasion? 7 A It was reported that the patient's history dated 8 back to August 25th of 1995. At that time the patient was 9 the restrained driver of a vehicle which was at a complete 10 stop when it was struck from behind. Upon impact the patient 11 was looking into her rearview mirror. She braced herself 12 with her hands on the steering wheel and her feet on the 13 brakes. 14 Following the accident the patient had minimal 15 complaints. She went home and began taking Advil. The 16 following morning the patient awakened with some neck 17 stiffness. She was taken to Carlisle Hospital for evaluation 18 of neck pain and headaches, X rays were taken, she was 19 prescribed muscle relaxants and pain medication. 20 She was seen in follow-up by her family doctor 21 several days after the accident and had complaints at that 22 time of neck pain and headaches. Treatment consisted of 23 medications and physical therapy which included massage, 24 ultrasound and heat. She received therapy two to three times 25 per week for five months. 1 2 3 4 5 6 7 8 9 10 11 12 J 13 14 15 16 17 18 19 20 21 22 23 24 25 10 At the same time the patient was visiting a massage therapist two times a week from September of 1995 until June of 1996. The patient began wearing wrist splints to prevent her from clasping her fists while sleeping. In January of '96 she reported she began treating with a second physician. Her treatment consisted of medications and therapy. She last saw her specialist in the summer of 1997 and currently sees her family doctor. She was last evaluated four to five months ago, that is prior to my seeing her in December of 1997. The patient also reported that she did some nonmainstream treatment as well. In general she complains of posterior neck pain on a daily basis. That is pain in the back of the neck. Her pain is related to activities such as hugging, neck hyperextension -- that means looking all the way up that way -- car riding and sitting on bleachers. She states that raising her arms is painful. She obtains relief with ice and heat applications to her neck. She complains of headaches in the posterior or back region of her head. She has headaches on the average of three times a week. She takes Advil for relief of her headaches and neck pain. She takes eight to ten tablets of Advil daily for relief. She continues to have pain between her shoulder blades. She complains of weakness in her 11 1 hands. She denied any pain or any numbness in her arms. 2 At the time of the accident the patient reported 3 that she was a waitress working on a part-time basis. She 4 did not work as a waitress following her accident. In March 5 of 1997 she began employment as a clinical coordinator which 6 required office type of work. This was on a full-time 7 basis. Before August of 1995 she denied having any problems 8 or injuries to her neck area or previous headaches. 9 Q Did that essentially complete the history that 10 Plaintiff gave to you? 11 A Yes, it did. 12 Q Following that did you perform a physical 13 examination of her? 14 A Yes, I did. 15 Q And will you explain to the ladies and gentlemen 16 of the jury what you did and what the significance was of any 17 findings or absence of findings as the case may be? 18 A At the outset I asked the patient to tell me if 19 any portions of the physical examination which she did or I 20 did caused any discomfort, and she acknowledged these 21 instructions. She would turn or rotate her head and neck 70 22 degrees to the left. The last portion of rotation was done 23 in an incremental fashion. 24 In other words, this is about 70 degrees, which is 25 a little bit on the low side of normal. The last bit of that 12 1 was done like this -- sort of in click clicks i.n an 2 incremental fashion. This is a very unusual type of motion. 3 Most people just turn this way. There is no really anatomic 4 or physiologic basis why one should rachct in that fashion. 5 She was able to rotate 75 degrees to the right. 6 That is the opposite side. Again, the last portion of 7 rotation was done in a click-click-click fashion. Again, 8 there is no real reason for this. If a person can't turn 9 fully, then he or she can't turn fully. There is no reason 10 to go in increments. 11 She would then after rotating to the right when I 12 asked her to turn to the left, she rotated to 75 degrees, 13 which is a little more than she did the first time. 14 Seventy-five degrees is within the range of normal. She 15 would flex or bend the neck like this to 25 degrees. 16 When asked to extend the neck from the neutral 17 position she refused to do it stating it would cause too much 18 pain. The neutral position is just the way I'm looking at 19 you. Flexion is bending and extension is straightening. A 20 very unusual finding of refusing to straighten or look 21 upward. Even patients with a ruptJred disk will look 22 upward. 23 There was no visible or palpable muscle spasm with 24 the range of neck motion, that is with turning or looking 25 down or trying to look up. These are muscles in your neck. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 13 And if for example you have an injury to your neck, sometimes you get some protective muscle spasms that you can see or feel. None was present. When I asked to gently, passively hyperextend her neck -- in other words not ask her to put her neck back, but say I'm gently going to use my hand, use my muscles, use my power to put your head back that way she asked me not to because it would hurt too much. Again, this is just what happened. That is a very very unusual finding. She complained of tenderness to light to medium palpation in multiple areas. Palpation means touching pressure. This is palpation. And light touch is just like touching the skin in a moderate or little more pressure over the area. She complained of tenderness when this was done in the distal cervical spine. That means the back of the neck and the proximal thoracic spine. That means a light touch sort of in between the shoulder blades. " 18 She complained of severe pain with gentle pinching 19 of the skin only around the spinous processes of the thoracic 20 and cervical spine -- in other words, in the back of the 21 neck, in the middle where you can't see. I just did this to 22 the skin and she complained of severe pain. This is a very 23 unusual response. Just gentle pinching of the skin does not 24 put any pressure on the muscles under the skin and obviously 25 on the bony structures and the nerve underneath the skin 14 1 toward the spine. A very very unusual response. 2 There were no palpable bands or cords present. A 3 palpable band of muscle or palpable cord of muscle can be 4 present in certain disease processes such as myofascitis. 5 It's something that we look for to rule out another cause of 6 a patient's complaint. It was a pertinent negative. 7 There was no tenderness over the scapulae the 8 scapulae or the shoulder blade -- the bones in the back of 9 your shoulders. There was no tenderness to pressure over 10 these areas. Again, a negative finding. She complained of 11 tenderness in the posterior aspect of each trapezius. The 12 trapezius is the muscle on the top of your shoulder, the 13 front part and then the back part. And she complained of 14 some tenderness to pressure on the back part of the 15 trapezius. 16 The deep tendon reflexes in the upper extremities 17 were symmetrical. You've all had your reflexes checked where 18 the health care provider takes a little hammer -- usually a 19 litter rubber hammer -- and strikes a tendon and something 20 happens. Your knee jerks or your ankle jerks depending upon 21 the area that's hit. What happens is physiologically the 22 tendon is stretched by the little hammer. That sends a 23 message through nerves back to the spine, which sends a 24 message back through nerves to the muscle that that tendon 25 works, telling it to contract. It is an involuntary action. 15 1 In other words, you have no control over it. 2 That's why it is called a reflex. And it just simply means 3 that the tendons, the muscles, the nerves going from them to 4 the spine and from the spine back to them are working well. 5 And the deep tendon reflexes in the upper extremities were 6 normal, indicating there was no sign of a pinched nerve, no 7 sign of an inflamed nerve. 8 Similarly, the muscles in the upper extremities 9 were checked. The muscles are worked by nerves coming out of 10 different levels of the spine, and you check the muscle 11 strength to see if the nerves that work these muscles are 12 working well. For example, a pinched nerve or an inflamed 13 nerve may not conduct its own electricity down the course of 14 the nerve to fire off the muscle and result in some muscle 15 weakness that you can see. 16 We test multiple muscles. We test the deltoid 17 muscle, we test the biceps muscle, the triceps muscle, the 18 wrist dorsiflexor muscles, the hand intrinsic muscles that 19 allow fine and intricate movements of the fingers. These 20 muscles are worked by nerves coming out of different levels 21 of the spine. 22 Well, how do you test the muscle. For example, 23 the biceps muscle, the muscle that does that, you tell the 24 patient to please hold the elbow in that position and don't 25 let me push it down, and therefore the muscle contracts that << 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 way. And you can feel and see, put your hand over the muscle and gauge the contractible state of that muscle, and you try and straighten it out. And obviously if this is a good muscle and if it doesn't go that may mean some muscle weakness. There was no apparent deltoid biceps, triceps wrist dorsi.flexor or hand intrinsic muscle weakness. However, with testing of the right deltoid -- that's done: Hold your arm out, don't let me push down, and the deltoid muscle keeps your arm out to that position. With testing of the right deltoid I needed to encourage the patient in order to have her cooperate because her right arm would collapse during testing. The patient volunteered that this was due to pain. In other words, collapse would mean don't let me push down and it would just collapse, not struggle like that but kind of collapse. A very unusual finding that is not indicative of muscle weakness. The patient again volunteered that this was due to pain. The distal sensation was intact. There was no numbness. Nerves that are injured can cause numbness to be present in the parts of the body to which they go. Her power grip was measured. Power grip is squeezing. There is a little spring-loaded scale that we use called the dynamometer to measure grip. The grip on her dominant right hand 1 2 3 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 25 17 averaged 60, 50 and 50 pounds compared to 50, 40 and 40 pounds on the left. An average of approximately 10 pounds different, which is normal. Your dominant hand is stronger than your nondominant hand most of the time. And that essentially concluded the examination. Q Doctor, in addition to the physical examination did you also have X raYs of her cervical spine taken? A Yes, I did. Q Okay. And are those X rays here available today? A Yes, they are. Q All right. Perhaps at this point why don't we go off camera a moment and -- A That would be best. VIDEOGRAPHER: Going off video at 1:35. (Recess.) VIDEOGRAPHER: Back on video at 1:36 BY MR. WIX: Q All right. Doctor, could you explain for us what the X rays show and perhaps point that out to us? A X rays are taken in multiple directions. There is a front view, AP, that means anterior posterior. For example, if the camera were the X ray machine and the film were in the back of my head and then we take a lateral view, which is a side-view, that this is the film and this is the 18 1 X ray machine, we get a side profile. And there are what we 2 call oblique views which are halfway in between of the 3 frontal view and lateral view. 4 And this gives us different pictures to look at, 5 and different parts of the spine show up better on certain 6 X rays. This is the AP view. This is the front. You can 7 see the head here, and the vertebrae have their own 8 configuration. You can see the spaces between the vertebrae 9 where the disks live, and you can see that everything is 10 relatively well-aligned on that view. 11 With the head slightly turned, say about 40 12 degrees, we get a completely different picture. And here's 13 the head. You can see the teeth and the collar bone. And 14 this is a side profile if you will, and you see it looks 15 completely different. You can see the building blocks, the 16 bones separated by these clear areas where the disks live. 17 And then you see these holes here, and these holes 18 are holes. The bone normally surrounds the spine. It gives 19 protection to the spine. The nerves that come out of the 20 spine have to gain access to the outside world, in this case 21 to your shoulder and your arms. So nature makes little holes 22 little holes that are called foramina -- for the nerves 23 to come out to exit the protection of the bony protection of 24 the spine and go and form the major nerves. 25 And you can see that the bones look nice, the . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 foramina. The holes are all very similar. There is no bone spurs sticking into the hole, etc. There is no fracture. And then the next views look different. Again, because these are the straight lateral views. And this is the side profile __ the side-view. And you don't see those holes anymore because you'd have to look this way to see them. And again you see the building blocks, the bones separated by the clear area, the disks, and the bones in the back of the spine, which you can get an idea that there is bones surrounding the soft spine. And here is the back of the head, the jaw over here, and the collar bones would be down here. So you see a lateral view. And this is what we call the extension view with having the patient look up towards the ceiling a little bit. And you can see that there is a little curve back here as I am curving my head in a very similar fashion. And this is a flexion view and in other words looking down. And you can see that the patient's head is looking down. And you can see that instead of being curved this way, arched up, it's curved this way looking down. Again, the bones and the disks. And these are normal views. There is nothing out of place. We take these to make sure nothing is out of place, that the ligaments, etc. are doing their job. So the significance of this is that the bones are normal, and the significance of this is that there is excursion. There is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 excursion. There is a difference back here and curved here. So there are essentially normal films. Q Those films, Doctor, do you take those or do you have a technician in your office that would take the films? A No. My technician takes the films and I'm the one who interprets them. Q And so the technician would ask her to extend her neck or flex her neck as the case would be? A That is correct. Q All right. Doctor, I think that's all we have here. A Give me a second. Let me just turn this down. Q In addition to taking your own films did you review the reports of any other testing that was performed upon the Plaintiff? A Yes. Q And could you tell the jury what those various tests showed? A A bone scan of February 26th, 1996, was reported as normal. What's a bone scan mean. What does it do. A bone is a living tissue. It has a circulation. Blood goes into bone, blood flows out of bone just like any other tissue or any other organ. A bone scan from in the following fashion: A radioactive isotope is injected into the vein. This isotope -. , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 concentrates in bone, it goes to bone. And then you use a Geiger counter sort of thing to check how concentrated this isotope is in all of the bones. And usually it is as you would expect nice and even. If there is a problem with the bone, such as a bone tumor in many certain types of fractures, that problem may alter the blood supply, either an excessive amount of blood supply or blood vessels growing into the area or an area devoid of blood supply. And you can get an idea of the dynamics of bone with the blood supply demonstrated by a bone scan. So the details aren't important because in this case the bone scan was normal, didn't show anything wrong with the bone. An MRI was performed. What's an MRI. An MRI or magnetic resonance imaging test is done by magnetizing the body. A huge strong magnet magnetizes the body. And actually the living cells in the body can be very minimally, but -- excuse me -- but are magnetizable. The degrees of magnetization of the cells are fed into a computer which draws a picture of the tissues on the inside of the body, and we aim this at certain areas. And in this case it was aimed at the neck. And the picture that is drawn by the computer is basically a snapshot of what's happening inside of the body. It's an anatomic picture giving you configurations 21 22 1 -- a three-dimensional overview so to speak -- that is done 2 only in two dimensions on film but can give you an idea of 3 the anatomic configuration, the physical configuration of 4 each part measured. And in this case it shows up the bones, 5 it shows up the disks, it shows up the spinal cord, it shows 6 the spinal nerves, and more importantly it shows the 7 relationship of those structures one to another. 8 Is a piece of bone, is a piece of disk ruptured or 9 broken and pushing onto the spine or pushing onto a nerve. 10 The MRI in this case showed no evidence of disk herniation 11 that is a ruptured disk -- no evidence of stenosis -- that 12 means a narrowed canal -- and showed some prominent bulging 13 of the disks at multiple level: C3-4 -- excuse me -- C4-5, 14 C5-6 and C6-7. 15 Well, what does a bulging disk mean. The disk has 16 a physical configuration. Just like the tire has a physical 17 configuration. Just like my cheek has a physical 18 configuration. A tire if you look head-on is not flat. It 19 has a bulge -- a profile. Just as my cheeks have a profile. 20 And some people's cheeks are more profiled or more bulging. 21 Some tires are more bulging. 22 A bulging disk is an anatomic finding and is not a 23 pathologic finding. In other words. take someone who has 24 never had an accident, never had a complaint, young and 25 healthy, and do an MRI and find bulging disks because that is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 the anatomic way that the configuration shows up on an MRI. So the MRI basically was normal. The finding of bulging disks that's a normal finding. An MRI of the thoracic spine, dated January 10th of '96, was also reviewed, and that report was negative. An X ray report of the cervical spine, August 26, 1995, was reported as negative. An EMG, a nerve conduction study, of March 6th, 1996 -- what's an EMG. A nerve conduction study -- I've mentioned before -- nerves and muscles work through small amounts of electricity. And basically what an EMG, a nerve conduction study, does is measure that electricity to see if the muscle or the nerve is getting its full charge of electricity because if it isn't it may mean there is a pinched nerve or an irritated nerve interfering with the flow of electricity. That study showed no evidence of a right cervical radiculopathy or carpal tunnel syndrome. That means that the nerves were working fine. It showed some compromise of the left ulnar nerve at the elbow meaning that there may have been some irritation of the ulnar nerve here which courses around the bones and the elbow. Q Dr. Eagle, after reviewing these reports, taking a history and doing your physical examination did you arrive at any opinions as it relates to this Plaintiff? A Yes, I did. 24 1 Q And could you tell the jury what your opinions 2 are? 3 A It was my opinion that the patient may have 4 sustained a cervical sprain, that is some stretched ligaments 5 in the neck secondary to the accident of August 25th, 1995 -- 6 excuse me -- there was no evidence of a herniated disk or a 7 radiculopathy. That means a pinched or inflamed nerve by 8 clinical examination, in other words, what I did to her by an 9 MRI -- the fancy study that we talked about -- or electrical 10 studies. 11 The patient had some atypical findings on physical 12 examination such as refusing to actively extend the cervical 13 spine or allowing the passive extension by the examiner, in 14 other words, would not allow me to do that as I mentioned 15 before. Even patients with herniated disks, which this 16 patient does not have, even patients with such serious 17 problems with herniated disks will allow this type of 18 testing. 19 As I mentioned before, the findings of the bulging 20 disks and the MRI are found in normal individuals and are not 21 pathological. They are just anatomic descriptions. The 22 patient's complaints were on a subjective basis. What does 23 that mean. That means a subjective finding is something that 24 a patient tells you: I have pain or I don't feel well -- 25 something that requires their interpretation. 25 1 The patient did not have any confirmatory 2 objective findings, which means the patient did not have any 3 findings that I as a physician in examining her, checking her 4 reflexes, feeling around, checking the muscle strength, etc., 5 no findings that I could find that would substantiate her 6 subjective complaints. She did not have any findings that I 7 could find objective findings which would dictate any 8 restrictions or limitations. I felt that she needed no 9 further treatment. 10 Q Doctor, you had also noted in your report that you 11 felt some of her treatment was excessive and not reasonable 12 or necessary. And to what type of treatment were you 13 referring to there? 14 A Basically, the physical treatments, physical 15 therapy I thought that was done to some excess. 16 Q Okay. 17 A That is not to say that it was all unreasonable or 18 unnecessary. 19 Q And perhaps we ought to talk about that for a 20 moment. And before we get to that, you had indicated in your 21 opinion she may have sustained a cervical sprain. Will you 22 tell us what a cervical sprain is and why did you use the 23 term that she may have sustained that? 24 A A cervical sprain simply means some stretched 25 ligaments around the neck. Stretched ligaments sometimes we 26 1 incorporate stretched muscles. Most of us have experienced 2 some neck pain or some tightness after we have lifted some 3 things or worked in the garden. And obviously perhaps more 4 of us have had the same experience with the low back. 5 Lifting something, twisting and falling we've all had similar 6 experiences. 7 A sprain or a stretched muscle recovers usually. 8 And it's nature that makes this recovery possible. We do 9 things to try and help you get along. Nothing that we do 10 cures it. Nature is the cure -- the power. We use things 11 like medications to take away any inflammation to make you 12 feel better. 13 We use pain medication to help you get through a 14 bad time. We use muscle relaxants to try and relax some of 15 the muscles that may be in spasms. We use cold on it, we use 16 heat on it, we use massage. We use things like that for a 17 brief period of time to try and help out, but these things 18 have not been shown to be in themselves curative. Things 19 like physical modalities, heat, ultrasound, massage we use 20 those for several weeks to try and break the pattern of pain 21 to make you feel better too. 22 But again it really has not been shown that any of 23 these things cure anything. It is very common to have 24 physical therapy including those modalities prescribed for 25 such conditions as a strain or a sprain. I in my own 27 1 practice and on my own patients prescribe the same 2 modalities. But we give it a few weeks, two weeks, three 3 weeks, four weeks, five weeks, sometimes six weeks, but not 4 on for months and months and months. It really serves no 5 good purpose. 6 Q Doctor, there's been some testimony from the 7 Plaintiff's physician. He diagnosed her as having a 8 myofascial syndrome. Are you familiar with that condition? 9 A Yes. 10 Q During your examination did you find any evidence 11 that she had any myofascial problem? 12 A To preface that what does myofascial pain mean. 13 Myo means means muscle and fascia means the envelope that our 14 muscles are in -- the coverings of the muscles. So 15 myofascial pain simply means pain in the muscles and pain in 16 the tissues surrounding the muscles. It can be taken in lots 17 of different ways. A patient who complains of pain some 18 people will say, oh, yes, you have pain. That means that the 19 muscles and the fascia around your muscles hurt, so it's 20 myofascial pain syndrome. 21 In this case the patient complained of pain. You 22 could say her pain was coming from her muscles. She had some 23 unusual findings of pain to light palpation allover. Yes, 24 there may be a degree of muscle pain, but there is nothing 25 that you can really hang your hat on from an objective 28 1 standpoint. 2 Q Now, Doctor, in terms of when you saw her she was 3 working full-time; is that correct? 4 A Yes, she was. 5 Q And you saw no necessity for any restrictions or 6 limitations on her activities? 7 A That is correct. 8 Q Doctor, I have asked you for a number of opinions 9 today. Have all of your opinions been rendered based upon 10 reasonable medical certainty? 11 A Yes, they have. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WIX: You may cross-examine. CROSS-EXAMINATION BY MR. GOLOMB: Q Doctor, I just have a few questions here I want to ask to clarify a few things. In your report when you talk about the findings of the MRI you note that findings of a bulging disk at the cervical spine can be found in normal individuals; is that correct? A Yes. Q All right. But maybe I just misunderstood what you said. Are you saying that in any individual where there's a finding, a positive MRI of the finding of a bulging disk, that that's anatomical and not pathological in a hundred percent of the time? 29 1 A You've asked three or four questions at the same 2 time. Number one, a bulging disk is not pathological, and a 3 bulging disk on an MRI is not a positive MRI. That's like 4 saying I took an X ray of your knee and you have a kneecap. 5 Okay. That is not a positive X ray. Everybody's disks has a 6 profile, some more than others. A bulging disk if it does, 7 if it is not a ruptured disk and if it does not press upon 8 the vital structures is a say normal finding and can be found 9 in normal individuals. 10 Q That's what I want to follow up on then. So a 11 bulging disk at a certain level of bulge so to speak can 12 cause a pathological finding? 13 A If it indeed encroaches upon structures, and then 14 it is not classified as a bulging disk. It is classified as 15 a herniated or ruptured disk. 16 Q That is in your opinion? 17 A No. It is not in my opinion. That's the way 18 things are for those of us who deal with this on a daily 19 basis. 20 Q Well, then it's either a normal bulging disk or 21 it's a herniated disk in your opinion? 22 A It's obviously a herniated disk that -- or a disk 23 that is pushing on a vital structure is not normal. Okay. 24 You will find in many reports and I do not recall if it is 25 stated in this report -- most of the astute radiologists when 1 2 3 4 5 6 7 8 9 10 11 ) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 they see something like that will say that clinical correlation is advised. In other words, you have to put that together with your physical findings. For example, you can at times see a disk which looks like it may be herniated, pressing on a nerve, the right nerve, going to say your arm if you will. But the patient's complaints are on the left side. And so how can that be. How can you rectify that. And the answer is you can't because the MRI for example may not be accurate in that instance. By the same token, a bulging disk is an anatomic finding. It is a structural finding. It is a physical description of the way the disk is built if you will. And a bulging disk in itself without evidence of herniation or without evidence of nerve root impingement- -- pinching on a nerve -- without evidence of pinching on the spinal cord is not clinically and the key word is -- significant. Q And you mentioned the fact that it's important to clinically correlate the findings of the MRI; is that correct? A Certainly. Q Now just so I'm clear and some folks of the jury are clear. You read the report of the MRI. You didn't review the actual film; is that correct? A That's correct. 1 2 3 4 5 6 7 8 9 10 11 ) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 Q And you didn't review the actual bone scan? A That is correct. Q And in fact I guess the only films that you reviewed were the films that were done here in your office? A That is correct. Q You didn't review the films from the emergency room? A That is correct. Q So in making that transition from a normal bulging disk and I'll try to use your terms because it is a little new to me because I have heard a lot of different doctors talk about it in different terms than you, so that I understand the semantics -- and in getting from that normal bulge that people walking may have without any kind of clinical finding to herniation, in addition to reviewing the films you want to know what the symptoms are of the patient; is that correct? A That is correct. Q Let's talk about some of those clinical correlations that a patient may have. Muscle. And we're talking about the cervical area, so we're talking about the neck, correct? A Correct. Q And so the nerve roots that are involved here are the nerve roots which would affect the upper extremities or , , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 the arm, correct? A As opposed to the lower extremities. That's correct. Q That would be if there was some sort of lumbar disk involved then it would go down to your legs, correct? A Correct for the most part. Q Right. So for in terms of looking at the clinical correlation between the findings of the MRI films and making a diagnosis, looking for maybe muscle weakness in one of the arms? A Well, you look for everything. You look for a sensory pattern, you look for muscle weakness, you look for muscle atrophy. Q Okay. Is muscle weakness a symptom of pathological disk? A It can be certainly. Q And can radiating or shooting pain down an arm be a symptom of pathological disk? A It can be. Sure. Q And can tingling in the arm be a symptom of a pathological disk? A Certainly. Q Numbness in the hands be a symptom of a pathological disk? A Certainly. 1 2 3 4 5 6 7 8 9 10 11 ) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 Q Can I assume based on your direct testimony that and I say that because you were reading from your report, correct A Yes. Q -- that you doesn't necessarily -- you don't have a personal recollection of Mrs. McLoota? A I'm going to say that I don't. I sort of remember her, but I am going to say in all fairness that I don't, that I could not draw a picture of her. o Okay. Now you know I noticed that in going through the report that really Mr. Wix asked you -- virtually you read the report verbatim until you got to the last paragraph -- the second to the last paragraph -- and that was you know among other things you found that Mrs. McLoota to be very cooperative, didn't you? A Yes, she was. She was cooperative during the conducting of the examination. MR. GOLOMB: Thank you, Doctor. That's all of the questions that I have. THE WITNESS: You're welcome. MR. WIX: I have no other questions. VIDEOGRAPHER: This videotape deposition is now concluded. Time of day is 2:03 p.m. 1 COUNTY OF CUMBERLAND 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SS .., COMMONWEALTH OF PENNSYLVANIA I, Christine F. Haag, a Notary Public, authorized to administer oaths within and for the Commonwealth of Pennsylvania, do hereby certify that the foregoing is the testimony of Perry A. Eagle, M.D. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said Reporter-Notary ?ublic, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify that the said deposition was taken at the time and place specified in the caption sheet hereof. I further certify that I am not a relative or employee or attorney or counsel to any of the parties, or a relative or employee of such attorney or counsel, or financially interested directly or indirectly in this action. I further certify that the said deposition constitutes a true record of the testimony given by the said witness. IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of May, 1998. IIl1 SEAl. CIIIISl1N[ F. HMG, NOTAR't'1'lIU: CMlISl[ 1lORO.. CUMBERlAND CO.. Pl MY cor.tMlSSlO~ DPlR(S Sl:PI, 17 2001 34 ,,...., " ( Multi-Page'" '96 - C4-5 PERRY A. EAGLE, M.D. 75111 12:5 12:12 antcnor III 17:22 lbestlll 17:14 -'- API11 17:22 IH:6 bettcrPI IS:5 26:12 '96111 1ll:5 23:4 -8- apparent III 16:6 26:21 8111 2:4 APPEARANCES III between ISI 10:24 -I- 1:16 13:17 IH:2 IH:S -9- Applclll 7:1 32:H 10111 17:3 applications II I 10:19 biceps 1'1 15:17 15:23 lOth III 23:4 97-1309111 1:3 16:6 13111 1:12 appointment 111 6:25 bit 141 5:9 11:25 7:2 13thlll 3:3 -A- approvcd III 11:25 19:14 6:15 I5thlll 34:23 ablclll 12:5 arched III 19:19 Black III 3:2 191 PI 1:13 3:4 abscnce III 11:17 area 171 II:S 13:14 blade III 14:S 4:2 access III IS:20 14:21 19:H 21:S bladcs PI 10:25 13:17 1967111 4:S accidcnt 171 7:12 21:9 31:21 bleachers III 10:17 1972111 4:15 4:16 9:14 9:21 11:2 8I'Cas 141 13:11 14:10 blocks 111 IS:15 19:7 1995161 7:13 9:S 11:4 22:24 24:5 IS:16 21:21 blood 171 20:21 20:22 10:2 11:7 23:6 accidents III 5:3 ann 171 16:9 16:10 21:7 21:S 21:8 24:5 accurate (II 30:10 16:13 30:6 32:1 21:9 21:10 19961'1 10:3 20:19 acknowIcdgedll1 32:17 32:20 Board III 6:4 6:5 23:7 11:20 arms 141 1O:IS 11:1 6:7 6:8 6:12 1997161 7:10 7:20 action PI 1:3 14:25 IS:21 32:10 6:13 6:15 6:18 9:3 10:S 10:11 34:18 arrive 111 23:23 Board-certified 111 6:2 11:5 actively (II 24:12 aspect III 14:11 6:20 19981'1 1:12 3:3 activities 111 10:15 assistant III 7:3 body III 8:13 8:22 34:23 28:6 16:22 21:16 21:16 1:13111 1:12 3:4 actual 111 30:24 31:1 assumelllH:I 21:17 21:21 21:24 1:35111 17:15 addition 1'1 17:7 astute (II 29:25 bone 1191 18:13 18:18 1:36111 17:17 20:13 31:15 atrophy III 32:13 19:1 20:19 20:20 address 1114:1 attendcd 111 4:6 20:21 20:22 20:22 administcrJlI 34:5 4:7 20:24 21:1 21:1 -2- 21:5 21:6 21:10 administered 111 6:18 attorney 111 34:16 21:10 21:13 21:14 2,000111 5:25 Advill'l 9:15 10:22 34:17 22:8 31:1 25(11 12:15 10:24 atypical 111 24:11 boncs Inl 4:23 14:8 25th 111 9:8 24:5 advised (II 30:2 Augustlsl7:13 9:8 18:16 18:25 19:7 26111 23:6 affect III 31:25 11:7 23:6 24:5 19:8 19:10 19:11 26th 111 20:19 aftcrwards (II 34:11 authorized II) 34:4 19:20 19:24 21:3 28111 automobilc I'I 5:3 22:4 23:21 2:6 again (91 12:6 12:7 29111 9:3 13:8 14:10 16:19 available 11) 8:23 bony 111 13:25 18:23 29th 111 7:10 7:20 19:3 19:7 19:20 17:10 bracedlll 9:11 2:03111 33:23 26:22 average 111 10:21 brakcs 111 9:13 ago III 10:10 17:3 break III 26:20 -3- aim 111 21:21 avcragcd III 17:1 brief (IJ 26:17 aimed 111 21:22 awakcncdll) 9:16 bricflYI41 4:19 6:6 3111 2:4 Allcghany II) 4:13 away 111 26:11 7:22 8:14 3004(11 3:2 allow [3J 15:19 24:14 bring III 8:17 24:17 -B- broken 111 22:9 -4- allowing III 24:13 background III 4:4 building 11) 18:15 401]1 (7:1 17:1 along (II 26:9 bad (II 26:14 19:7 18:11 aIterll1 21:7 bandlll 14:3 built III 30:13 American III 6:5 bands III 14:2 bulge 1]1 22:19 29:11 -5- 6:8 6:12 bascd (11 28:9 33:1 31:14 501'1 17:1 17:1 among III 33:14 basis 161 10:14 11:3 bulging (191 22:12 17:1 amount 1'121:7 11:7 12:4 24:22 22:15 22:20 22:21 22:22 22:25 23:3 amounts 111 23:10 29:19 24:19 28:18 28:23 -6- anatomic 171 12:3 bccominglll 4:4 29:2 29:3 29:6 60111 17:1 21:25 22:3 22:22 bcgan 141 9:15 10:3 29:11 29:14 29:20 6thlll 23:7 23:1 24:21 30:11 10:5 11:5 30:11 30:13 31:9 anatomical 111 28:24 behalflll 3:9 -7- anklclIl 14:20 behind III 9: 10 -C- 7{11 answer III 30:9 bend III 12:15 C3-4(11 22:13 2:5 answcrs 111 34:10 bending 111 12:19 C4-5111 70111 11:21 11:24 22:13 ) HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5 I 01 Index Page I Multi-Page'" I C5-6 - done \ PERRY A. EAGLE, M.D.: CS-6[11 22:14 collapse [41 16:13 coordinator [II II:S deltoid [51 IS: 16 16:6 J C6-7[11 22:14 16:IS 16:16 16:16 COrd(ll 14:3 22:S 16:8 16:9 16:11 camera [21 17:13 17:23 collar [21 18:13 19:11 30:16 DEMANDED [II I:S canal(ll 22:12 colleagues (II S:12 cords (II 14:2 demenstrated [II 21:10 caption (2) 3:6 34:14 College (II 7:4 cerrect [251 7:11 denied (21 11:1 11:7 ear(11 10:17 coming [lll S:9 IS:20 7:14 7:16 7:19 depending (II 14:20 14:18 27:22 8:4 9:3 20:9 deposition [71 1:8 care [II 28:3 28:7 28:19 Carlisle [II 9:17 common [21 1:1 30:20 30:24 30:2S 3:4 3:9 33:22 26:23 34:9 34:13 34:19 carpal (IJ 23:17 Commonwealth [21 34:3 31:2 31:S 31:8 description [II C8SC[1I1 3:6 8:4 31:17 31:18 31:22 30:12 34:S 31:23 32:1 32:3 descriptions [II 24:21 9:2 11:17 18:20 community (II S:2S 32:S 32:6 33:3 details [II 21:12 20:8 21:13 21:22 22:4 22:10 27:21 compared (II 17:1 correlate [II 30:19 Detroit [II 4:12 eaused[11 11:20 complained (11 13:10 correlation [21 30:2 deveid(11 21:9 ceiling[l) 19:14 13:14 13:18 13:22 32:8 diagnosed [II 27:7 14:10 14:13 27:21 correlations [II 31:20 cells (2) 2):17 21:19 diagnoses (II 9:1 Ccnter[l) 7:1 complains (4) 10:13 ceunsel(41 3:10 diagnosis [21 10:20 1O:2S 27:17 8:3 34:16 34:17 4:22 certain [51 14:4 18:S complaint (21 14:6 ceunter[l) 21:2 32:9 21:6 21:21 29:11 22:24 Dick [I) 3:11 certainly [41 30:21 complaints (5) 9:IS county (41 1:1 S:22 dictate (II 2S:7 S:23 34:1 32:16 32:22 32:2S 9:21 24:22 2S:6 difference (II 20:1 certainty [I) 28:10 30:7 course [41 4:2S S:S different (III S:12 IS:13 IS:IO certifieatien (21 6:7 complete [ll 6:13 courses (1)23:20 IS:20 17:3 18:4 6:13 9:9 11:9 18:S 18:12 18:1S certified [11 6:4 completely [21 18:12 COURT (21 1:1 19:3 27:17 31:11 certify (5) 34:6 34:8 18:1S 3:17 31:12 34:13 34:(S 34:19 completing (II 4:14 coverings [11 27:14 dimcnsiens (11 22:2 cervical [121 13:IS completion (II 6:19 CROSS [I) 2:2 direct [41 2:2 3:21 13:20 17:8 23:6 compromise [II 23:18 CROSS-EXAMINATION 8:1 33:1 23:16 24:4 24:12 computer [21 21:20 (2) 7:7 direction [II 34:12 2S:21 2S:22 2S:24 28:13 directions 111 28:18 31:21 21:23 cross.cxamine [II 28:12 17:21 charge (I) 23:13 concentrated [II 21:2 CT[l1 8:23 directly (II 34:18 check (2) IS:1O 21:2 concentrates [II 21:1 CUMBERLAND [21 discomfert [I) 11:20 checked [11 14:17 concernCd('1 6:11 1:1 34:) disease [I) 14:4 IS:9 concluded [21 17:6 curative [I) 26:18 disk [lll 12:21 22:8 checking [11 2S:3 33:23 26:10 22:10 22:11 22:IS condition [I) CUTCPI 26:23 22:IS 22:22 24:6 2S:4 27:8 CUTCS [II 26:10 28:18 28:24 29:2 cheek[.) 22:17 conditions (11 26:2S curvc (II 19:IS 29:3 29:6 29:7 Cheeks[l) 22:19 22:20 conduct (II IS:13 curved III 19:19 19:19 29:11 29:14 29:1S Christine [41 1:10 conducting [I) 33:17 20:1 29:20 29:21 29:22 3:17 34:4 34:24 conduction [41 8:24 curving (II 19:16 29:22 30:S 30:11 Chronister (41 1:4 Z):7 23:9, 23:11 30:13 30:13 31:10 32:S 32:IS 32:18 1:4 3:7 3:12 configuration [11 18:8 -0- 32:21 32:24 circulation [II 20:21 22:3 22:3 22:16 disks (11) 18:9 18:16 CIVIL(11 1:3 22:17 22:18 23:1 daily (ll 10:14 10:24 19:8 19:20 22:S clarify [I) 28:16 configurations [II 21:2S 29:18 22:13 22:2S 23:3 clasping (II 10:4 confirmatory [II 2S:1 date [11 1:12 3:3 24:1S 24:17 24:20 classified [11 29:14 conjunction (II S:19 dated [11 9:7 23:4 29:S 29:14 consisted (11 9:2:< days ['1 9:21 distal (21 13:IS 16:20 clear [51 7:9 18:16 10:6 deal ('1 29:18 doctor(1113:24 6:2 19:8 30:22 30:23 constitutes [11 34:20 dcals[ll 4:22 6:21 7:9 7:24 click (II 12:1 contacted [11 7:18 Dcccmbcr[41 7:10 9:20 10:9 17:7 click-elick-click [I) continues [II 10:24 7:20 9:2 10:11 17:19 20:3 20:10 2S:1O 27:6 28:2 12:7 contract (II I4:2S dcep (21 14:16 IS:S 28:8 28:IS 33:18 clicks [11 12:1 contractible [11 16:2 Defendant [I) 3:9 doctors (1131:11 clinical [71 7:3 contracts III IS:2S DEFENDANTS [l) docsn't[2116:4 33:S 11:S 24:8 30:1 eontrol(11lS:1 I:S 1:9 1:21 dominant (21 16:2S 31:IS 31:19 32:7 cooperate III 16:12 degree [11 4:8 27:24 17:4 clinically (1) 30:16 cooperative (21 33:IS degrees (8111 :22 11:24 done [101 S:19 11:22 30:19 33:16 12:S 12:12 12:14 12:1 12:7 13:14 cold (II 26:IS 12:IS 18:12 21:19 16:8 21:1S 22:1 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 Index Page 2 Multi-Pagel'" dorsinexor - herniated PERRY A. EAGLE, M.D. ~-.... 25:15 31:4 311:lh film 1'1 17:23 17:25 general 1'1 4: 10 4:14 dorsiflexor(21 15:18 examination 11'1 3:21 22:2 311:24 1lI:13 Ih:7 8:1 8:9 8:21 films 1101 20:2 211:3 gentle 121 13:18 13:23 Deuglas II I 3:1 9:2 11:13 11:19 211:4 20:5 20:13 gentlemen 121 4:3 17:h 17:7 23:23 31:3 31:4 31:6 11:15 downlul 12:25 15:13 24:8 24:12 27: III 31:16 32:8 gently 131 13:4 13:6 15:25 16:9 16:15 33:17 financially III 34:17 19:12 19:17 19:18 given III 34:20 19:20 20:12 32:5 examinations III 6:18 finding 1161 12:211 giving II I 21 :25 32:17 34:10 examine III 8:7 13:9 14:10 16:17 examined 1'1 7:23 22:22 22:23 23:2 goal-directed III 8:19 Dr('1 4:1 4:19 23:3 24:23 28:23 goes 131 20:21 21:1 7:5 8:3 23:22 8:3 8:22 examiner II I 24:13 28:23 29:8 29:12 Golomb 191 1:17 draw III 33:9 30:1 I 30:12 31:15 1:18 2:5 3:13 drawn III 21:23 examining III 25:3 findings 1151 11:17 3:13 7:8 7:24 draws III 21:20 example 161 13:1 11:17 24:11 24:19 28:14 33:18 Drive III 3:2 15:12 15:22 17:23 25:2 25:3 25:5 good 121 16:3 27:5 driver(11 9:9 30:4 311: III 25:6 25:7 27:23 Grace III 4:12 excess III 25:15 28:17 28:17 30:4 due 121 16:14 16:19 excessive 121 21:7 311:19 32:8 graduating II I 4:8 duly 131 3:20 34:9 25:11 fine 121 15:19 23:18 great (II 5:21 during 1'1 5:15 5:23 excursion 121 19:25 fingers III 15:19 grip 1'1 16:23 16:23 16:13 27: III 33:16 20:1 fire III 15:14 16:25 16:25 dynamics III 21:10 excuseI'I 21:18 22:13 first III 12:13 growing III 21:8 dynamometer II) 16:24 24:6 fists III lOA guess III 31:3 exitlll 18:23 five 1'1 9:25 10:10 -E- expect III 21:4 27:3 -H- Hagle 1111 1:8 2:3 experience 1'1 5:6 natlll 22:18 Hili 1:20 3:8 3:19 3:25 5:10 26:4 nex 121 12:15 20:8 hlW111 1:1 4:1 4:19 7:5 experienced II) 26:1 ncxion 121 12:19 19:17 Haag 1'1 1:10 3:17 8:3 23:22 34:7 experiences II I 26:6 34:4 34:24 educational 121 4:4 nOWll1 23:15 6:9 expertl'l 7:5 nOWSlI1 20:22 halfway III 18:2 eight III 10:23 explain 1'1 4: 19 6:6 folks (II 30:22 hammer 1'1 14:18 8:6 11:15 17:19 14:19 14:22 either 121 21:7 29:20 extend 1'1 12:16 20:7 follow III 29:1lI hand 191 4:12 13:6 elbow 1'1 15:24 23:19 24:12 follow-up III 9:20 15:18 16:1 16:7 23:21 extension 1'1 12:19 followed III 4:9 16:25 17:4 17:5 electrical III 24:9 19:13 24:13 following 1'1 9:14 34:22 elcctricity 1'1 15:13 extremities 1'1 14:16 9:16 11:4 11:12 hands 1'1 9:12 11:1 23:11 23:12 23:13 15:5 15:8 31:25 20:24 32:23 23:15 32:2 follows III 3:20 hangllJ 27:25 emergency III 31:6 foramina [21 18:22 happening III 21:24 HMGI'I 8:23 23:7 -F- 19:1 hatlll 27:25 23:8 23:11 FI'I 1:10 34:4 foregeinglll 34:6 head 1101 10:21 11:21 employee 121 34:15 34:24 fonnlll 18:24 13:7 17:24 18:7 34:17 fact 121 30:18 31:3 found ['1 24:20 28:18 18:11 18:13 19:11 employment III 11:5 29:8 33:14 19:16 19:18 encompassed III 4:20 fairncsslII 33:8 fourl'l 27:3 head-on III 22:18 falling III 26:5 10:10 cncouragc III 16:12 29:1 headaches [61 9:18 encroaches III 29:13 familiarlll 27:8 fracture III 19:2 9:22 10:20 10:21 envelope III 27:13 family 121 9:20 10:9 fractures III 21:6 10:23 11:8 ESQUIRE 121 1:18 fancy 1'1 24:9 front PI 14:13 17:22 health 131 7:1 14:18 1:20 fascia (21 27:13 27:19 18:6 healthy 11122:25 esscntially 1'1 11:9 fashion (71 8: 19 11:23 frontal III 18:3 heard III 31:11 17:5 20:2 12:2 12:4 12:7 full 121 3:23 23:13 heat 1'1 9:24 10:19 etC['1 8:18 19:2 19:16 20:24 full-time [21 11:6 26:16 26:19 19:23 25:4 February III 20:19 28:3 Heights 1'1 1:13 evaluated III 1lI:9 fed III 21:19 fully 121 12:9 12:9 3:5 4:2 evaluates II I 8:12 feeling III 25:4 help 1'1 26:9 26:13 cvaluation 1'1 8:8 feet [II 9:12 -G- 26:17 8:10 8:11 9:17 fellowship III 4:11 gainlll hereby III 34:6 Everybody's [II 29:5 felt 121 25:8 25:11 18:211 hereof II I 34:14 cvidcnce [II 22:10 few ['I 27:2 28:15 garden III 26:3 hereunte III 34:22 22:11 23:16 24:6 28:16 gaugC(11 16:2 herniated 17) 24:6 27: III 311:14 30:14 GCigcrll1 21:2 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 Index Pugc 3 Multi-Page'" I I hemiatien - MRI : PERRY A. EAGLE, M.D. I 24:1~ 24:17 29:1~ IDfonnatJOn III S:2~ lateral 141 17:24 IS:3 21:7 23:14 23:19 29:21 29:22 30:~ injected III 20:2~ 1~:4 19:12 24:3 2~:21 2~:23 herniation 1]1 22:10 injured 11116:21 LAW(II 1:3 26:1~ 27:24 2S:12 ,,- 30:14 31:1~ injuries III Lcadcrlll 1:13 3:~ 30:~ 30:10 31:14 ~:2 31:20 34:23 herseIfl'1 3:16 9:11 ~:6 ~:IO ~:II 4:2 Maya 141 3:6 Hershey II) 7:4 I1:S leading 1114:4 1:1 3:14 7:10 Hill II) 7:1 injury III 13:1 left III 11:22 12:12 McLootallOI 1:1 historyllIS:I~ 9:~ inside 1'1 21:21 21:24 17:2 23:19 30:7 1:1 3:6 3:7 9:7 11:9 23:23 instance II) 30:10 legs III 32:~ 3:14 7:10 7:17 hitlll 14:21 instead III 19:19 level 1'1 22:13 29:11 7:21 33:6 33:14 hold III 6:2~ 1~:24 institutions III 6:22 levels 1'1 I~:IO 1~:20 mean III 4:23 16:4 16:9 instructiens III 11:21 lifted II) 26:2 16:1~ 20:20 22:1~ hole II) 19:2 intact III Lifting III 26:~ 23:14 24:23 27:12 16:20 holcS(1) IS:17 18:17 interested (II ligaments 141 19:23 meaning III 23:19 34:18 18:18 18:21 18:22 interfering III 24:4 2~:2~ 2~:25 means 117110:16 13:11 19:1 19:~ 23:15 light 141 13:1~ 13:16 1~:2 bOmell) internsbiplll 4:9 13:10 13:12 17:22 22:12 23:17 9: IS 13:16 27:23 HONIKIII 1:17 interpretation III 24:25 limitations I') 24:7 24:23 2~:2 interprets III 2~:8 25:24 27:13 27:13 Hospital 111 4:9 20:6 28:6 27:13 27:15 27:18 4:11 4:12 4:14 intricate III 1~:19 Lionlll 3:2 measure 1'1 16:25 6:2~ 7:2 9:17 intrinsic "I 1~:18 litter III 14:19 23:12 bospita1sl11 6:22 16:7 liVCl'1 IS:9 18:16 measured 1'1 16:23 buge[l) 21:16 introduce III 3:10 living 1'1 20:21 21:17 22:4 hugging III 10:1~ involuntary [II 14:25 look 114) 12:20 12:21 medical(] I 8:11 bundredlll 28:2~ involved 141 6:6 12:25 14:5 18:4 8:13 28:10 hurt "I 13:8 27:19 8:8 31:24 32:5 18:25 19:3 19:6 medication 1'1 9:19 busband III 3:7 irritated (II 23:15 19:14 22:18 32:11 26:13 byperextend [II 13:4 irritation III 23:20 32:11 32:12 32:12 medicatiens PI 9:23 hyperextension[l] 10:16 isotope 1]1 20:25 20:25 looking 1'1 9:11 10:6 26:11 21:3 10:16 12:18 12:24 Medicine 1'1 4:8 itsc1flll 30:13 19:17 19:18 19:20 7:4 -I- 32:7 32:9 looks 1'1 medium III 13:10 ice II) 10:18 -J- IS:14 30:~ mentioned (ll 6:11 idea 1]1 19:9 21:9 lots III 27:16 23:9 24:14 24:19 22:2 January "I 10:5 10w"l 11:25 26:4 30:18 idcntify II) 3:16 23:4 lowcr II I 32:2 message 1'1 14:23 Images [II 3:2 jawlll 19:11 lumbar III 32:4 14:24 imaging [II 21:1~ jerks 1'1 14:20 14:20 Michigan II) 4:12 impact III 9:10 job III 19:23 -M- middle III 13:21 impingement III 30:15 Jobnpl 1:4 3:7 M(II minimal III 9:14 3:12 1:18 impertant 1'1 21:12 joints 1'1 M.DI1I 1:8 2:3 minimally [II 2):17 30:18 4:23 mirror II) 9:11 June III 3:8 3:19 3:25 importantly II) 22:6 10:3 4:8 34:7 misundcrstood II) 28:21 includcdll) 9:23 jury 1'1 I:~ 4:3 machine 1'1 17:23 modalitics 1]1 26:19 4:19 7:9 8:6 including II) 26:24 11:16 20:17 24:1 18:1 26:24 27:2 incorporate III 26:1 30:22 MacIntyre III 3:1 moderate!l) 13:13 incremental 1'1 11:23 magnet [II 21:16 moment 1'1 17:13 12:2 -K- magncticlll 21:15 25:20 increments III 12:10 keeps II) magnctizabIe [I) 21:18 months III 9:25 10:10 indeed II) 29:13 16:10 magnctization II) 27:4 27:4 27:4 kCYll1 30:17 21:19 morning II) indcpendcnt [I) 8:11 magnctizeslll 21:16 9:16 ~indl') 16:16 31:14 indicated III 25:20 magnctizingll) 21:15 most 111 5:11 5:IS knee 1'1 14:20 29:' 12:3 17:5 26:1 indicating II) 1~:6 kneecap III 29:4 major II I IS:24 29:25 32:6 indicativc III 16:17 makes I') 18:21 26:S motion 1'1 12:2 12:24 indirectly III 34:18 -L- Marcb 1'1 11:4 23:7 movcmentslll 1~:19 individual III 28:22 ladicsl'l Maryland 1'1 4:7 MRIIIII 21:14 21:14 individuals 141 5:1 4:3 11:15 4:7 21:14 22:10 22:25 24:20 28:19 29:9 LARRY II) 1:4 massagc 141 9:23 23:1 23:2 23:3 inflamed 1]1 last 111 10:8 10:9 10:2 26:16 26:19 24:9 24:20 28:17 "- 15:7 1~:12 24:7 11:22 11:2~ 12:6 may 11'1 1:12 3:3 28:23 29:3 29:3 inflammation III 26:11 33:12 33:13 11:17 15:13 16:4 30:9 30:19 30:23 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 Indcx Page 4 Multi-Page ,,,, MRls - pictures PERRY A. EAGLE, M.D. 32:8 23:13 23:14 23:15 opinion 1'1 24:3 passlvcly III 13:4 MRls(11 8:23 23:19 23:20 24:7 25:21 29:16 29:17 pathologic III 22:23 30:6 30:6 30:14 29:21 pathological I"I 24:21 Mrsl41 7:17 7:21 30:15 31:24 31:25 opinions 161 8:12 29:12 33:6 33:14 28:24 29:2 ncrvcs 113114:23 14:24 9: I 23:24 24:1 32:15 32:18 32:21 multiplc [41 13:11 15:3 15:9 15:11 28:8 28:9 32:24 15:16 17:21 22:13 15:20 16:21 18:19 opposcd (II 32:2 paticnt [291 8:8 musc1c [3ll 9:19 18:22 18:24 22:6 opposite [II 12:6 8:12 8:15 8:16 12:23 13:2 14:3 23:10 23:18 oral (II 8:18 9:8 9:10 14:3 14:12 14:24 ncurosurgcon [II 5:19 6:18 9:14 9:16 10:1 15:10 15:14 15:14 ncutral(21 12: 16 12:18 ordcr [31 6:12 8:16 10:3 10:11 11:2 15:17 15:17 15:17 16:12 11:18 15:24 16:12 15:22 15:23 15:23 ncvCr(21 22:24 22:24 organ III 20:23 16:13 16:19 19:14 15:25 16:1 16:2 nCW(11 31:11 organization [II 6:9 24:3 24:11 24:16 16:4 16:4 16:7 ncxt[ll 19:3 24:24 25:1 25:2 16:10 16:17 23:12 orthopedic 1111 4:13 25:4 26:7 26:14 nice [21 18:25 21:4 4:17 5:13 5:17 27:17 27:21 31:16 27:13 27:24 31:20 nondominantlll 17:5 5:20 5:24 6:5 31:20 32:9 32:12 32:13 Nonclll 13:3 6:12 6:14 ~:16 paticnt's ['I 9:7 32:14 nenmainstream(11 10:12 7:3 14:6 19:18 24:22 muscIcs [211 12:25 orthopedics [31 4:20 30:7 normal(l9l 11:25 13:6 13:24 15:3 12:14 15:6 17:4 4:21 7:6 paticnts [41 12:21 15:8 15:9 15:11 19:21 19:24 20:2 ought [II 25:19 24:15 24:16 27:1 15:16 15:18 15:18 20:20 21:13 23:2 outsct [II 11:18 pattcrn [21 26:20 32:12 15:20 23:10 26:1 23:3 24:20 28:18 outsidc (21 5:22 18:20 Pcnnsylvania (II 1:1 26:15 27:14 27:14 29:8 29:9 29:20 1:13 3:3 3:5 27:15 27:16 27:19 29:23 31:9 31:13 ovcrsces (II 6:9 4:2 7:4 34:3 27:19 27:22 normally [II 18:18 ovcrvicW[11 22:1 34:6 must [21 6:13 6:16 Notary [31 I: II 34:4 ewn[l) 15:13 18:7 peoplc [31 12:3 27:18 Myo(11 27:13 34:25 20:13 26:25 27:1 31:14 myofascia1(ll 27:8 note(11 28:17 peopIc's [I) 22:20 27: II 27: 12 27:15 noted [II 25:10 -P- per[11 9:25 27:20 myofascitis (II 14:4 nothing [41 19:21 P(21 1:4 3:7 percent (1128:25 19:22 26:9 27:24 P.CIII 1:20 perform [41 5:13 -N- noticed 11133:10 p.m[31 1:12 3:4 5:17 8:21 11:12 now[I' 3:10 3:15 33:23 performed [31 5:25 namcPI 2:2 3:1 5:19 9:2 28:2 pain [301 9:18 9:19 20:14 21:14 3:8 3:11 3:13 30:22 33:10 33:22 9:22 10:13 10:14 performing (II 5:6 3:17 3:23 nUmbcf[315:21 28:8 10:15 10:23 10:24 perhaps (41 17:12 narrowcd [II 22:12 29:2 11:1 12:18 13:18 17:20 25:19 26:3 nature [41 8:24 18:21 numbncss (41 11:1 13:22 16:14 16:20 period [21 6:17 26:17 26:8 26:10 16:21 16:21 32:23 24:24 26:2 26:13 Pcrry 161 26:20 27:12 27:15 1:8 2:3 nccessarily [II 33:5 27:15 27:15 27:17 3:8 3:19 3:25 nccessllI}' [II 25:12 -0- 27:18 27:20 27:21 34:7 nccessity [II 28:5 Oak[11 3:2 27:22 27:23 27:24 person [II 12:8 nCCk[371 5:6 5:7 oaths [II 32:17 persenal [II 33:6 5:10 5:11 5:14 34:5 painful(lllO:18 personally [II objcction [II 8:18 5:15 5:17 5:18 7:25 pa1pablc [41 12:23 pertincnt [11 14:6 5:21 5:24 6:1 objcctivc [31 25:2 14:2 14:3 14:3 9:16 9:18 9:22 25:7 27:25 palpation (41 13:11 physical [171 8:21 10:13 10:14 10:15 obliquc[It18:2 9:23 11:12 11:19 10:19 10:23 11:8 13:11 13:12 27:23 17:7 22:3 22:16 11:21 12:15 12:16 obtains (II 10:18 paragraph [21 33:13 22:16 22:17 23:23 12:24 12:25 13:1 obviously (ll 5:14 33:13 24:11 25:14 25:14 13:5 13:5 13:15 13:24 16:3 26:3 parameters [II 6:19 26:19 26:24 30:4 13:21 20:8 20:8 29:22 part 171 5:18 8:21 30:12 21:22 24:5 25:25 occasion (II 9:6 14:13 14:13 14:14 physician [91 4:5 26:2 31:22 off PI 15:14 17:13 22:4 32:6 6:13 6:15 6:17 nCCd[1I 5:11 17:15 part-time [II 11:3 6:20 7:19 10:6 25:3 27:7 nccdcd[315:14 16:11 offcf[11 7:5 particu1ar(21 5:6 physicians [21 25:8 office [41 4:1 11:6 6:10 5:22 ncgativc [41 14:6 20:4 31:4 particularly [II 6:10 5:2 physiologic [11 14:10 23:5 23:6 OnC[l1l 4:9 4:10 partics [II 34:16 12:4 ncrvc (231 8:24 13:25 4:11 7:20 7:22 parts [31 8:21 16:22 physiologically [II 14:21 15:6 15:7 15:12 8:11 12:4 20:5 18:5 picture(ll 18:12 21:20 15:13 15:14 22:9 22:7 29:2 32:9 paSSivC[l124:13 21:22 21:25 33:9 23:7 23:9 23:11 onto [21 22:9 22:9 pictures [II 18:4 ) HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 Index Page 5 Multi-Page'" piece - 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treating PERRY A EAGLE M D --~--\ sees II) 10:9 . . . . spasm III 12:23 studies 121 S:24 24:10 term II) 25:23 semantics 111 31:13 spasms 12) 13:2 26:15 studYISI 23:7 23:9 terms 14) 2S:2 31:10 sends 121 14:22 14:23 speak 121 22:1 29:11 23:12 23:16 24:9 31:12 32:7 , sensation 11) 16:20 specialist 11 ) Ill:S subdiscipline 111 4:21 testis) 15:16 15:16 sensory 11 I 32:12 specialty III 4:17 subject 11 ) S:25 )5:)7 15:22 21:15 separated 121 IS:16 6:S 6:11 subjective III 24:22 testified II) 3:20 19:5 specified 12) 6:17 24:23 25:6 testimony 14) 27:6 Septembcrll) 10:2 34:)4 subsequent III 5:24 33:) 34:7 34:20 serious 11124:)6 spinal 1') 22:5 22:6 substantiate II) 25:5 testing I') )6:K 16:11 serves II) 27:4 30:16 successful (I) 6:19 16:13 20:14 24:IK set III 34:22 spine 1211 4:24 13:15 such (II K:23 10:15 tests (2) 8:22 20:IK Seventy-five III 12:14 13:16 13:20 14:1 14:4 21:5 24:12 Thank (2) 7:24 33:18 14:23 15:4 15:4 several 121 9:21 26:20 15:10 )5:21 17:8 24:16 26:25 34:17 themselves 121 3:10 severe (21 13:18 13:22 18:5 IK:IK IK:)9 summer(l) 10:8 26:18 shed(l) 8:25 IK:20 IK:24 19:9 supply (41 21:7 21:8 therapist 11) 10:2 sheetll( 34:14 19:10 22:9 23:4 21:9 21:10 therapy ('19:23 9:24 shooting 11) 23:6 24:13 2K:1K surgeon (2) 5:17 10:7 25: (5 26:24 32:17 spinous (II 13:19 5:21 therefore 11) shoulder 1'1 10:25 splints II) 10:3 15:25 13:17 14:8 14:(2 surgeens II) 5:13 thoracic (11 13:16 IK:21 sprain (61 24:4 25:21 surgeries (I) 6:) 13:19 23:4 shoulders III 14:9 25:22 25:24 26:7 surgery III) 4:10 thought(1125:15 26:25 show (11 17:20 (8:5 spring- loaded 11) 4:11 4:17 4:23 three (4) 9:24 10:22 2):13 )6:24 5:7 5:11 5:13 27:2 29:1 showedl'120:IK spurs 11) 19:2 5:(4 5:15 5:17 three-dimensional II) 22:10 squeezing(11 5:18 5:2( 5:25 22:12 23:16 23:18 16:23 6:5 6:12 6:14 22:) shown 12) 26:IS 26:22 SS(II 34:2 6:16 7:3 through ('I 14:23 shews 16) 22:4 22:5 staff (21 6:21 6:25 surgical (21 4:21 14:24 23:10 26:13 22:5 22:5 22:6 standpoint III 2K:) 7:1 33:11 23:1 state", 3:23 7:4 surrounding (21 )9:10 tightness (II 26:2 side 161 11:25 12:6 16:2 27:16 times (4) 9:24 10:2 IS:I IS:14 19:4 stateS(11 Ill: 17 surrounds 11) )8:18 10:22 30:4 30:7 stating 11) 12:17 sustained (4) tingling(.( 32:20 side-view 121 5:2 17:25 steering III 9:12 24:4 25:21 25:23 tire 121 22:16 22:18 19:5 tires (II sign 121 15:6 stenographically II) swear II) 3:16 22:2) 15:7 34:10 swem 121 3:20 34:9 tissue 12) 20:21 20:22 significance 1') 11:16 stenosis (II 22:11 symmetrical III 14:17 tissues (2) 21:20 27:16 19:24 19:25 significant (I I 30:17 sticking 11) 19:2 symptem 141 32:14 today (2) 17:10 28:9 similafll) 19:1 stiffness (II 9:17 32:18 32:20 32:23 Today'sll) 3:3 19:16 still (II 5:19 symptems (2) K:IK together(11 30:3 26:5 Similarly 11) stop (I) 9:10 31:16 token (I) 30:11 15:K syndrome I'l simply 1'1 15:2 25:24 straight (I) 19:4 23:17 too (11 12:(7 I3:K 27:K 27:20 26:21 27:15 straighten 121 12:20 silting III 10:17 16:3 took!l) 29:4 six II) 27:3 straightening (II 12:19 -T- tOPllI 14:)2 skin 161 13:13 13:19 strain 11) 26:25 tablets (I) 10:23 touch (2) 13:12 13:16 13:22 13:23 13:24 strength 121 15:11 takes I') 6:17 10:22 touching (21 13:11 13:25 25:4 10:23 14:18 20:5 13:13 sleeping I") 10:4 stretched 161 14:22 taking (4) 9:15 20:13 towardll) 14:1 slightly 11) 18:11 24:4 25:24 25:25 23:22 34:S tewards(l) 19:14 small 111 23:10 26:1 26:7 technician 1') 20:4 trained!,) 5:)3 5:14 snapshot (I ) strikes (I) 14:(9 20:5 20:7 5:17 5:21 5:24 21:23 tccth III soft III 19:10 strong (I) 21:)6 18:)3 training (11 4:13 someone 121 S:7 stronger II) )7:4 telling III )4:25 5:15 6:14 22:23 struck III 9:10 tells 111 24:24 transition III 31:9 sometimes 11) 13:1 structural II I 30:12 ten (II 10:23 trapeziusI') 14:11 25:25 27:3 structure III 29:23 tenderness (6) 13:10 14:12 14:15 sort 1'1 12:1 13:17 structures ISI 4:24 13:14 14:7 14:9 trauma II) 5:2 21:2 32:4 33:7 13:25 22:7 29:K 14:11 14:14 treat 121 5:12 7:18 South 111 7:1 29:13 tendon I') 14:16 14:19 treated(11 5:1 struggle (I) 16:16 14:22 14:24 15:5 treating III spaces III IS:S tendons (II 5:10 15:3 7:19 10:5 HUGHES . ,ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 Index Page 7 . .' '-. "-.- Multi-Page'" , I I treatment - young I PERRY A. EAGLE, M.D.l tn::atmcnt(IO) 4:22 vertebrae PI 18:7 wordslll18:11 11:24 4:22 8:13 8:17 18:8 13:5 13:20 15:1 r 9:22 10:6 10:12 vessels (II 21:8 16:14 19:17 22:23 25:9 25:11 25:12 videellJ 3:2 17:15 24:8 24:14 30:3 I tn::atmcnts III 25:14 17:17 worked 1'1 15:9 15:211 TRIAL III 1:5 VIDEOGRAPHER(51 26:3 trieeps (21 15: 17 16:6 3:1 3:15 17:15 works(11 14:25 truelll 34:20 17:17 33:22 world III 18:20 try ('1 16:2 26:9 videotape(11 33:22 wrist 1]1 10:3 15:18 26:14 26:17 26:20 videetaped 121 3:4 16:7 31:10 3:9 written 1116:18 trying III 12:25 view 1'1 17:22 17:24 wrong III 21:13 tumOT(11 21:6 18:3 18:3 18:6 tunnel III 23:17 18:10 19:12 19:13 -x- 19:17 turn ('1 11:21 12:3 views 141 18:2 19:3 XIUI 8:23 9:18 12:8 12:9 12:12 19:4 19:21 17:8 17:10 17:20 211:12 VILLARI III 17:21 17:23 18:1 tumedlll 18:11 1:17 18:6 23:5 29:4 tuming(1112:24 virtually III 33:11 29:5 twisting III 26:5 visible II) 12:23 two 151 7:12 9:24 visiting III 10:1 -Y- 10:2 22:2 27:2 vital 121 29:8 29:23 yearl]1 4:9 4:10 type 151 8:8 11:6 volunteered (21 16:14 4:1 I 12:2 24:17 25:12 !5:!O years 121 4:25 7:12 types III 21:6 York 1'1 1:13 3:5 typewriting III 34:11 -w- 4:2 4:9 4:10 waitress 121 11:3 4:18 5:22 6:25 -U- 11:4 7:2 ulnar 121 23;19 :walking III 31:14 young III 22:24 23:20 ultrasound 121 9:24 ' ways III 27:17 26:19 weakness ('1 10:25 under 121 13:24 34;12 15:15 16:5 16:7 , 16:18 32:9 32:12 undergraduate (II 4:6 32:14 undemeathlll 13:25 wearing(11 Ill:3 understand (II 31:13 week 1]1 9:25 10:2 unique (II 5:20 10:22 University 121 4:6 weeks (7J 26:20 27:2 4:7 27:2 27:3 27:3 unnecessary (II 25:18 27:3 27:3 unreasonable III 25:17 WEIDNER III 1:20 unusuaI(7J 12:2 weIeolllCll1 33:20 12:20 13:9 13:23 well-aligned (II 18:10 14:1 16:17 27:23 WENGER III 1:20 up 1101 10:16 12:25 wheel III 9:12 18:5 19:14 19:19 WHEREOF III 34:22 22:4 22:5 22:5 23:1 29:10 wife(11 3:7 up-to-date (I) 8:17 wishlll 6:10 Uppef(41 14:16 15:5 within (21 (2:14 34;5 15:8 31:25 witheut 151 4:23 upward 12)12:21 12:22 30:14 30:14 30:(5 usually 15) 8:10 8:(3 31:14 14:18 21:3 26:7 witness 171 3:8 3:16 3:19 33:20 -V- 34:9 34:21 34:22 WITNESSESII( 2:1 VII( 1:3 WiXIIl( 1:20 1:211 various (1)20:17 2:4 3:11 3:1 I vehicle 1119:9 3:22 7:5 7:15 \..,...: vein (I) 20:25 8:2 17:18 28:12 33:11 33:21 verbatim III 33:12 WOrdll( 30:17 versus III 3:7 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 Index Page 8 4. On September IS, 1998, following a trial before the Honorable Edward Guido, ajury verdict in favor of plaintiff and against defendants was returned in the amount of$73,OOO.00. 5. The jury verdict was reduced by $5,000.00 by agreement of counsel to account for the $5,000.00 paid by plaintiff by her own insurance carrier for loss of wages under her first party benefits. 6. Delay damages are to be calculated upon the sum of$68,OOO.00, that amount being the total verdict for which defendant is liable. 7. Pursuant to Rule 238, adopted in its revised form by the Supreme Court on November 7, 1988, damages for delay are to be calculated from a date one (1) year after the original process was first served in the action up to the date of the verdict. 8. The verdict entered in this case exceeded by more than 125% any and all offers of settlement extended by defendant prior to trial such that delay damages are to be calculated continuously for the period from one (I) year after service of the Complaint upon defendant to wit: from March 17, 1998 to September 15,1998. 9. At no time throughout the pendency of this litigation has plaintiff ever contributed to any dehiy in the scheduling of this matter for trial. 10. Rule 238 further provides that "damages for delay shall be calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus I %, not compounded". 11. The prime rate published in the first edition of the Wall StreetJournal for 1998, plus 1 %, is 9 Y. %. 3 . VERIFICAI1QN RICHARD GOLOMB, ESQUIRE, hereby verifies that he is attorney in fact for the within plaintiff, and is duly authorized to make this verification, and that those facts contained in the foregoing pleading which are within his own knowledge are true and correct, and those facts of which he is informed, he believes, and therefore avers are true and correct to the best of his knowledge, information and belief. I understand that these statements are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. ~&i..b RICHARD GOLOMB, ESQUIRE Attorney for Plaintiffs Dated: '\ .)~ ."1 Cd . VILLARI & GOLOMB, P.C. BY: Richard M. Golomb, Esquire l.D. No. 42845 BY: Nathan M. Murawsky, Esquire 1.0. No. 76661 121 S. BROAD STREET, SUITE 910 PHILADELPHIA, PA 19107 (215) 985-9177 ATfORNEYS FOR PLAINTIFF MAYA MCLOOTA & SAMUEL MCLOOT A, hlw COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. JOHN P. CHRONISTER and LARRY CHRONISTER NO. 97-1309 CIVIL NOTICE TO THE POST-TRIAL MOTION CLERK Attorney for Plaintiffs hereby certifies that the Notes of Testimony of the trial in the above captioned matter were not ordered with reference to the filing ofPlaintitl'sPetition for the Addition of Delay Damages Pursuant to Rule 238. VILLARI, GOLOMB & HONIK ~~ RICHARD M. GOLOMB, ESQUIRE Attorney for Plaintiffs Dated: q.)~ ~ lO 9 . . . EXHIBIT A . VILLARI & GOLOMB, P.C. BY: Richard M. Golomb, Esquire I.D. No. 42845 BY: Nathan M. Murawsky, Esquire I.D. No. 76661 121 S. BROAD STREET, SUITE 910 PHILADELPHIA, P A 19107 (215) 985-9177 . , MAYA MCLOOTA & SAMUEL MCLOOTA, Husband and Wife 52 Strayer Drive Carlisle, PA 17013 Plaintiffs vs. JOHN P. CHRONISTER 264 S. Hanover Street Carlisle, PA 17013 and LARRY CHRONISTER 1450 Gap Road Carlisle,PA 17013 Defendants MAJOR CASE HEARING ON ASSESSMENT OF DAMAGES IS REQUIRED ATTORNEYS FOR PLAINTIFF COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION MAJOR CASE ....<I... NO.: 17- /361 ~ n ...."l 0 C. -.I .,. ~:-: ..;'. :=J --:;or. : "'...... ~.::1 ~L. ... ." ',- ~;i' .. "-1 '. , (,.J .'. ';:.1 .< ..~A r::i: ..., --;:il .... .. " . ...... :: ! ',. ,'J \:..).ol " , :..~ ." ~'l ") -. =<: CIVIL ACTION COMPLAINT Motor Vehicle NonCE Vou ...... ....n _ In court. II ~ wllll t. d.f.nd '9Ain.. ~ ell""l ut farth in 1M 'ollowing pa.g". you .. .......'*"___lYlZOldoys___..... . and nodce III Mrwd. by en,,-rW)9 8 wricun Ippt.,.nce penon.Dy Of by Inorney _ Ind fiJlnQ In W'ritlng wfth "'e CDUn your de'tnMI or ObtKtJonI 10 the cLlIm. .., fonh against you. You IN warned INI " you flU 10 do 10 the C"'. rNY procMd vwlthovt you end I Judgment mlY be .ntarwd evelNt you by 1M court withoul tui1Mt notice tot any money claimed In Ihe complalnlOf tot' any other ."'Im .r nllol requollOd by the pIalntlfl. y.., ....., 10.. .......y .r propony or .thor rlghtllmpor1ant t. you. YOU SHOULD TAKE 11118 PAPER TO YOUR LAWVER AT ONCE. IF YOU DO NOT HAVE A LAWVER OR CAN. NOT AFFORD ONE. GOTOOR TElEPHONETHE OffiCE SET FORTH 8ElOW TO FIND DIIT WHERE YOU CAN GET lEGAL HELP. Court Administrator 4th Floor Cumberland County Courthouse Carlisle, PA 17013 1-717-24e.6200 . AVISO - La hen domoncllcl.. unod ........... 51 u"",, qulofl. do. 1__ do ..tal _ ._"ta. .n 10. plgln.. a1gulonllt. u.Nd _ .....n" IZOI dll' do plo.. II per1lr cia Ie tteM d, 11 dtmandl., Ie nodflcacl6ft. Hac. ,aI"'I.."gr una compartnda ncrtUI 0 en pt~ 0 con un abogado y .ntrlg., a La cone eft 'anNI ncrica IUI dtt~~ ~IU' oblKlonn a &aI demlnd.. en con'" de au penon.-;- "It. avfudo QUI III wt.ed no _ d4flend4. .. con. 10tMIf medkll, Y putde co=: II ~"'!Incs.a en conUllUy8 ,In prnlo I'YfIa 0 notlt AdIJilT\ll", La cone puecledecldlr . flYOf dtI demandanta y nquiere qu. ulled cump&a con tocIoI 101 proW_do...._. U,"d ,.-pordor dl..... 0 ... proplod_ u ..... clonch.. ImporUIn". """- UEVI ESTA DEMANDA A UN A5DGADD INMEDIATA. MENTE. 51 NO TIENE ABOGADO 0 51 NOTIENE ELDIN. ERO 5UFICIENTE DE PAGAR Till SERVtCO. VAVA EN PERSONA 0 u.&ME PeR TElEFONO A LA OFICINA CUVA DIRECCION SE ENCUENTRA ESCRrrA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR A51STENCIA LEGAL Court Administrator 4th Floor Cumberland County Courthouse Carlisle, P A 17013 1-71-240-6200 . Ata.MOfhCll'lOoucn..UlWtM..... fll~fU'1100 Exhibit B VILLARI & GOLOMB. P.C. BY: Richard M. Golomb, Esquirc J.D. No. 42845 BY: Nathan M. Murawsky. Esquirc J.D. No. 76661 121 S. BROAD STREET, SUITE 910 PHILADELPHIA, PA 19107 (215) 985-9177 A rrORNEYS FOR PLAINTIFF MA Y A MCLOOTA & SAMUEL MCLOOT A, h1w COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. JOHN P. CHRONISTER and LARRY CHRONISTER NO. 97-1309 CIVIL PETITION FOR THE ADfJ/TION OF RULE 238 DELA Y DAMAGE~ Plaintiffs, by their undcrsigned altorncys, hercby pctition this Honorable Court for the addition of Rule 238 delay damages, and an Ordcr molding the vcrdict so as to include such damages, upon the verdicl rccordcd Scptcmbcr 15, 1998. and in support thercof aver the following: I. This is a negligence action commcnccd by thc filing of a Complaint on March 13, 1997 arising from an accidcnt occurring on August 25, 1995. (Plaintiff's Complaint is attached hercto as Exhibit "A"). 2. Dcfendants Wcre scrvcd with the Complaint filcd in this mailer on March 17, 1998 (Proof of Scrvicc is attached herclo as Exhibit "13"). 3. Prior to trial, dcfcndant offcrcd thc sum of $15,000.00 to settlc. Said sum was rcjected by Plaintiff. 2 4. On Scptcmbcr 15.1998, following a trial bcforcthc lIonorablc Edward Guido. a jury vcrdict in favor of plaintiff and against dcfcndants was rcturncd in thc amount of $73,000.00. 5. Thc jury vcrdict was rcduccd by $5.000.00 by agrccmcnt of counscl to account for thc $5,000.00 paid by plaintiff by hcr own insurancc carricr for loss of wagcs undcr hcr first party benefits. 6. Delay damagcs arc to bc calculatcd upon thc sum of $68.000.00, that amount bcing the total verdict for which dcfcndant is liablc. 7. Pursuant to Rulc 238, adoptcd in its rcviscd form by thc SuprcmcCourt on November 7, 1988, damages for delay arc to bc calculated from a datc onc (I) ycar after the original process was first served in the action up to the datc ofthc vcrdicl. 8. The vcrdict entercd in this case cxcccded by morc than 125% any and all offers of settlement extendcd by dcfendant prior to trial such that delay damages are to be calculated continuously forthe period from one (1) ycar aftcr scrvicc of the Complaint upon dcfendant to wit: from March 17, 1998 to Scptembcr IS, 1998. 9. At no time throughout the pcndency of this litigation has plaintiff ever contributed to any delay in the scheduling of this matter for trial. 10. Rule 238 furthcrprovides that "damages for delay shall be calculated at the ratc equal to the prime rate as listcd in the first cdition of the Wall Strcct Journal publishcd for each calendar year for which the damagcs are awarded, plus 1 %, not compoundcd". II. Thc prime rate publishcd in thc first cdition of the Wall Street Journal for 1998, plus 1 %, is 9 y, %. 3 VERIFICATION RICHARD GOLOMB, ESQUIRE. hcrcby vcrilics that hc is attorney in fact for the within plaintiff, and is duly authorizcd to makc this vcrification, and that thosc facts containcd in the foregoing pleading which arc within his own knowlcdgc arc truc and corrcct, and those facts of which hc is informed, hc bclicvcs, and thercforc avcrs arc truc and corrcct to the best of his knowledge, information and bclicf. I understand that thcsc statcmcnts arc madc subjcct to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authoritics. ~~S RICHARD GOLOMB. ESQUIRE Attorney for Plaintiffs Dated: q. l<a .,,\~ VILLARI & GOLOMB. P.c. BY: Richard M. Golomb. Esquirc J.D. No. 42845 BY: Nathan M. Murawsky. Esquirc J.D. No. 76661 121 S. BROAD STREET. SUITE 910 PHILADELPHIA, PA 19107 (215) 985-9177 A'ITORNEYS FOR PLAINTIFF MAYA MCLOOTA & SAMUEL MCLOOT A. h1w COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. JOHN P. CHRONISTER and LARRY CHRONISTER NO. 97-13()l} CIVIL NOTICE TO THE POST-TRIAL MOTION CI.ERK Attorncy for Plaintiffs hcrcby ccrtifics thatthc Notcs of Tcstimony of the trilll in the lIhovc captioned matter werc not ordcrcd with rcfcrcncc tothc tiling of Pluinti Il's PClition lilr thc Addition of Delay Damagcs Pursuant to Rulc 238. VILLARI. GOLOMB & IIONII( ~~ RICIIARD M. GOI.<>MB. ES<.)IJlIW Attorney tilr PllIintills Datcd: q.)~ ~ lO l} EXHIBIT A VILLARI & GOLOMB, P.C. BY: Richard M. Golomb, Esquire I.D. No. 42845 BY: Nathan M. Murawsky, Esquire I.D. No. 76661 121 S. BROAD STREET, SUITE 910 PIULADELPHIA, PA 19107 (215) 985-9177 " MAYA MCLOOTA & SAMUEL MCLOOTA, Husband and Wife 52 Strayer Drive Carlisle, PA 17013 Plaintiffs vs. JOHN P. CHRONISTER 264 S. Hanover Street Carlisle, PA 17013 and LARRY CHRONISTER 1450 Gap Road Carlisle, PA 17013 Defendants MAJOR CASE HEARING ON ASSESSMENT OF DAMAGES IS REQUIRED ATTORNEYS FOR PLAINTIFF COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION MAJOR CASE NO.: 17- /361 ~ (", " " ,..., ::j .... ; : .. ! .., . ...... '-- J , ,') , ~ '~'.l ., ,I .. "..'1 . " -< . "",I ( , , ~ CIVIL ACTION COMPLAINT Motor Vehicle NonCE Vou ...... ....n _ In court. If ~ willi t. d.I.nd IgAin.. 1M ell"". UI forth In the lollowM\g p~'" you ""'"....___lYI20Idoys__~ ': .nd notlc, Irl ..FWd. by Intlrif)g . written Ippl"lncl _oa, .. by .n.......,..nd fiIInlI In writing wi'" ",. court your d,'1If\MS 01 o~. to 1M cLlim. Mt forth .gain.. you. You IN Wlm4ld that H you faU to do 10 the C-M rMY proceed wtChovt you end I Judome"t may be .nt....d ~m.' YOU by 1M c:ourt without tul1fMr notice lOt .ny _.., c:IoImod In ",. com......t .. Iot.ny .1100' .Iolm ., "1101 _.ud by "" ......~", Vou mrt 10.. moN,.. propony Ot.\hot r1ghto Importon. t. you. YOU SHOULD TAKE nus PA"" TO YOUII LAWYIII AT ONCE. IF YOU 00 NOT HAYI A LAWYIII all CAN. NOT AfFORO aNI. GO TOOIITlUPHGNITHI O"ICI SET FORTH SElOW TO FINO 01lT WHIIII YOU CAN GET UGAL HELP. Court Administrator 4th Floor Cumberland County Courthouse Carlisle, PA 17013 1-717-240-6200 AVila Lo .....d-.nclod........Io..... II.otodqulvo do. I_no do "... domoncIo' ........... .n I.. pigln.. olgulon.... ......"......."'.1201 dl., do plou II portlr do 10 IKIoo d.1o dornonda, 10 ...111_14<1. Hoc. III.. .....tot UN comtllt"lM6a ncrtu 0 1ft ,,'10M. COlt un .bug., .n'....... . II .one 1ft tomw Me"'" I'll cSetet\~~ ~IU' oblNlon.. . ... demlndll .... DOnUI . III pe.....-. .., .wI..... "WI .. ,..," no . ...,.... .. C0f11 tomar" _kIll Y...-do co:~' 10 do"1llnclo.n _U,IUylI.1n p""" wt.o. nout . Ademll... eOft'INK' deckSJr . 1_ .. _nda... Y _loll que ..tM -.... - ......10.....-_ do................. UIlId...-do ponlo. ~_ . ... ,..plod_ . ..... doncll.. ",-"n... pori ..... UIVIIITA DIMANDA A UN AlOOADO INMIDIATA. MINTI.II NDlllNI AIOGADG 0 IINOTIINI ELDIN. IftO IUPlCIINTI DI 'AGAII T~L IlftYICO. YAVA IN 'IIIIONA 0 lUMI POll nU'ONO A LA OFICINA CUVA DlftlCCIOH II INCUINTRA IICRrTA AIIAJO PAllA AYlftlGUAft OONOI II PUIOI CONSIGUIR AlllnNCIA ':IOAL Court Administrator 4th Floor Cumbcrltll1d County Courthouse Carlisle, PA 17013 1-71.240-6200 of the County of Cumberland, and other applicable law pertaining to the operation of motor vehicles; (g) failed to properly maintain the motor vehicle's mechanical systems; and (h) otherwise acted in a negligent, careless and reckless manner as may be discovered through the litigation of this matter. 9. As a result of the joint and several negligence, carelessness and recklessness of the defendants aforesaid, the plaintiff, Maya McLoota, sustained injuries including but not limited to cervical whiplash syndrome, reactive myofascial pain syndrome right trunk, T4 dorsal spinous process pain related to ligament damage, costochondritis bilaterally, and right trochanteric bursitis, and injury to the nerves and nervous system, causing plaintiff to endure pain and suffering and. to lose time from plaintiff's usual duties, activities and occupation, causing a loss of earnings and earning capacity and causing plaintiff to incur debts and obligations for medicine and medical treatment, all of which may be permanent. 10. Plaintiff, Maya McLoota, was the owner of one of the vehicles involved in the aforesaid accident, and that as a result said vehicle was damaged necessitating expenditures for its repair and plaintiff, Maya McLoota was deprived of its use. WHEREFORE, plaintiffs, Maya McLoota and Samuel McLoota, claim damages in excess of TWENTY FIVE THOUSAND DOLLARS ($25,000.00) from defendants, John P. Chronister and Larry Chronister, jointly and severally, plus interest and costs. COUNT II - LOSS OF CONSORTIUM SAMUEL MCLOOTA v. ALL DEFENDANTS 11. Plaintiffs, Samuel and Maya McLoota, incorporate paragraphs 1 through 10 as if the same were set forth more fully herein. 12. As a result of the negligence and carelessness aforesaid, plaintiff, Samuel McLoota, 3 . ..1UcS(JfllCf PIOOUCn.IfN~IM_'" rl'~t.lIl'OO Exhibit B ~ r-. ~ ..:J .,,",,: ",. N i~1~~ UJQ ff' J. ~: ~ :r: ~t 0_ "'"",:-':1 ;.. ;,}- " . Ot.:1 N ~, .,. l1.!i. .~j: --It, Q. CC. ~' IllU fC' u: ~?C1... c-: -, l1.. CO ::J 0 0" U I , _,J ~ !~ .~.u ~~ ..,.;.;:l . <: .... ... - ."..Vlp,. :a CO.. . .<:C.><:~ u U ::s ::;Ii ._~ O.&J ~ . In .~ ;..:.~ 0 a <:~!;j:::c '" ,- ~ <:> .>\ ~ ~ c:. ~ cD ~ .,; ." E. ] 0- '" .<= 'Q E ~ 5 ;; ~ - -: ao ao o M , ao o - r-- - 4. On September 15, 1998, following a trial before the Honorable Edward Guido, a jury verdict in favor of plaintiff and against defendants was returned in the amount of$73,OOO.00. . 5. The jury verdict was reduced by $5,000.00 by agreement of counsel to account for the $5,000.00 paid by plaintiff by her own insurance carrier for loss of wages under her first party benefits. 6. Delay damages are to be calculated upon the sum of $68,000.00, that amount being the total verdict for which defendant is liable. 7. Pursuant to Rule 238, adopted in its revised form by the Supreme Court on November 7,1988, damages for delay are to be calculated from a date one (1) year after the original process was first served in the action up to the date of the verdict. 8. The verdict entered in this case exceeded by more than 125% any and all offers of settlement extended by defendant prior to trial such that delay damages are to be calculated continuously for the period from one (I) year after service of the Complaint upon defendant to wit: from March 17, 1998 to September 15, 1998. 9. At no time throughout the pendency of this litigation has plaintiff ever contributed to any delay in the scheduling of this matter for trial. 10. Rule 238 further provides that "damages for delay shall be ca1culatedat the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus 1 %, not compounded". 11. The prime rate published in the first edition of the Wall Street Journal for 1998, plus I %, is 9 Y. %. 3 . VILLARI & GOLOMB, P.C. BY: Richard M. Golomb, Esquire !.D. No. 42845 BY: Nathan M. Murawsky, Esquire I.D. No. 76661 121 S. BROAD STREET, SUITE 910 PHILADELPHIA, PA 19107 (215) 985-9177 ATTORNEYS FOR PLAINTIFF MAYA MCLOOTA & SAMUEL MCLOOTA, hlw COURT OF COMMON PLEAS CUMBERLAND COUNTY vs. JOHN P. CHRONISTER and LARRY CHRONISTER NO. 97-1309 CIVIL MEMORANDUM IN SUPPORT OF PLAINTIFF'S PETITION FOR THE ADDITION OF RULE 238 DELAY DAMAGES Plailltiffseeks the application of delay damages to the jury verdict recorded in this case on September IS, 1998 pursuant to the terms of Pennsylvania Rule of Civil Procedure 238 which reads in relevant part as follows: "At the request of the Plaintiff in a civil action seeking monetary relief for bodily injury, damages for delay shall be added to the amount of compensatory damages awarded against each Defendant found to be liable to the Plaintiff in a jury verdict, and shall become part of the verdict. In actions commenced on or after August I, 1989, including the instant action, damages are to be awarded for a date one (1) year after the date original process was first served in the action up to the date of the verdict." Pa.R.C.P. 238 (a)(2)(II). While the Rule also specifies periods oftime which may be excluded, no such exclusions are at issue in the instant matter. . , VERIFICATION RICHARD GOLOMB, ESQUIRE, hereby verifies that he is attorney in fact for the within plaintiff, and is duly authorized to make this verification, and that those facts contained in the foregoing pleading which are within his own knowledge are true and correct, and those facts of which he is informed, he believes, and therefore avers are true and correct to the best of his knowledge, information and belief. - . I understand that these statements are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. ~ C:1Jb~ RICHARD GOLOMB, ESQUIRE Attorney for Plaintiffs Dated: '\. I~ .<\ca . EXHIBIT A VILLARI & GOLOMB, P.C. BY: Richard M. Golomb, Esquire I.D. No. 42845 BY: Nathan M. Murawsky, Esquire I.D. No. 76661 121 S. BROAD STREET, SUITE 910 PHILADELPHIA,PA 19107 (215) 985-9177 , , MAYA MCLOOTA & SAMUEL MCLOOTA, Husband and Wife 52 Strayer Drive Carlisle, PA 17013 Plaintiffs vs. JOHN P. CHRONISTER 264 S. Hanover Street Carlisle, PA 17013 and LARRY CHRONISTER 1450 Gap Road Carlisle, PA 17013 Defendants MAJOR CASE , HEARING ON ASSESSMENT OF DAMAGES IS REQUIRED ATTORNEYS FOR PLAINTIFF COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION MAJOR CASE , . - . NO.: 17- /361 ~ c:' ......, 0 C. -.I -n ',. :'a. ::.! -&:;''( ",.,. ~~L' '::1 .'- :-:"i~ ~:i . .'-1 "'::J '. . (,.~ .1r, .< [~~ ' . .~ --'1 .' ,-. , ~.; ), i;- ,.J . ")';' ~ , :--1 ~., -. ... , " -. =< CIVIL ACTION COMPLAINT Motor Vehicle NonCE Vou ...... ..... _ In court. II ~ 10111I t. d.,.nd 'V'lin.. If\. cllim. u. forth in the following pig". you ..........._wilhIn_lY 1201 drtI--- ": and node. .r. ..FWd. by anuric)g . written ,pp..,.nc. ~.u, Of' by _namey. and fiJing In writing wlltt 1M coul1 'rOUt de'""" Or Objection, to 111_ claim. Nt fonh loamlt you. You I,. Wlmtd IMt H you t.iI to do 10 th. C.... lMy procttd wld\ovt you and I ludGment INY be Inll...d egalnl. YOU by eM court without tunhlt nota IOf .ny mon.., dIlmod In "'" cunpWnt Of "".ny .the, claim" nllo' _.1Id by "'" pIolntllf. Vou moy loll ......, Of proPlflY "".lhof righlllmponant t. you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CAN. NOT AFFORD ONE. OOTOORTEl.EPHONE THE OFFICE SET FORTH BElOW TO FINO OUT WHERE YOU CAN GET LEGAL HEU'. Court Administrator 4th Floor Cumberland County Courthouse Carlisle, P A 17013 1-717-248-6200 ' AVISO - Lo..... dOfl\lftllod.. u1lld...IlCOtt1.lllumdquloJ'l! de. 1_111 de "'" dImIndu '_'11' In I.. pig..... oI;.....tn. u.lOd tlont vol.to 1201 dl., do pia.. "port!< do Ia ,..... do Ia domondo, Ia no..l1cIcldn. H... I.... .lIn'" UNI complltnda ncrtu 0 en ptrtone 0 con "" lbog..so y Intrwgll' . II COttt 1ft fonNl elCritll IUS dlflft&ll 0 au. obiKlon.. . .... demand,. eft COftUI de IU ptno.;.?"a.", Ivfudo QUIll II u.md no .. d4~. .. corte tomarf medicS.. Y p.Mde co~~ II dtt~ndI.n conullUY'lain p"'" _. notll Adwnb.1a c.... _. dlClcfIt . fWOf'deI dtmandlntl y nquit,. q\M Ulted cwnpla con todIllal """"""de ...._. U"od puodtponlo, dl...... 0 ... ""plocIodto u ._ cStnch.. Impononto. ,.,..- LLEV1! UTA DEMANDA A UN ABOOADO INMEOIATA. MENTE. 51 NO TIENE ABOGAOO 0 SINO TIENULDIN. ERO BUFICIENTE OE PAOAII TilL SERVICO. VAVA EN PERSONA 0 LUME POR TELEFONO A LA OFICINA CUVA DIRECCI6N SE ENCUENTRA ESCRITA ABAJO PAllA AVERIGUAR DONOE SE PUEDE CONSEGUIR ASISTENCIA ':EOAL. Court Administrator 4th Floor Cumberland County Courthouse Carlisle, PA 17013 1-71-240-6200 AllJNU)I'1C1 ,",ooUcn,II'I\Al1M,'A I1nIU.ll00 exhibit B 4. On September 15, 1998, following a trial before the Honorable Edward Guido, ajury verdict in favor of plaintiff and against defendants was returned in the amount of$73,OOO.00. 5. The jury verdict was rcduccd by $5,000.00 by agreement of counsel to account for the $5,000.00 paid by plaintiff by her own insurance carrier for loss of wages under her first party benefits. 6. Delay damages are to be calculated upon the sum of $68,000.00, that amount being the total verdict for which defendant is liable. 7. Pursuant to Rule 238, adopted in its revised form by the Supreme Court on November 7, 1988, damages for delay are to be calculated from a date one (I) year after the original process was first served in the action up to the date of the verdict. 8. The verdict entered in this case exceeded by more than 125% any and all offers of settlement extended by defendant prior to trial such that delay damages are to be calculated continuously for the period from one (I) year after service of the Complaint upon defendant to wit: from March 17, 1998 to September IS, 1998. 9. At no time throughout the pendency of this litigation has plaintiff ever contributed to any delay in the scheduling of this matter for trial. 10. Rule 238 further provides that "damages for dclay shall be calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus I %, not compounded". 'II. The prime rate published in the first edition of the Wall Street Journal for 1998, plus 1 %, is 9 Y. %. 3 . EXHIBIT A VILLARI & GOLOMB, P.C. BY: Richard M. Golomb, Esquire I.D. No. 42845 BY: Nathan M. Murawsky, Esquire I.D. No. 76661 121 S. BROAD STREET, SUITE 910 PHILADELPHIA, PA 19107 (215) 985-9177 , , MAYA MCLOOTA & SAMUEL MCLOOTA, Husband and Wife 52 Strayer Drive Carlisle,PA 17013 Plaintiffs vs. JOHNP.CHRONlSTER 264 S. Hanover Street Carlisle, PA 17013 and LARRY CHRONISTER 1450 Gap Road Carlisle, PA 17013 Defendants MAJOR CASE , HEARING ON ASSESSMENT OF DAMAGES IS REQUIRED ATTORNEYS FOR PLAINTIFF COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION MAJOR CASE . . , . NO.: 17- /361 ~ n ...."l 0 C. -.I -" ~..' ~.. ...... ::! .....c I ,~ r''!'L' . -.. ~~.;J ::-::.< ." "':) . I .<. .- :~; ~ (,.J ':iA t-." , . ..-'-... ..., --1 '0'; . .' :...; " . . :0 '" ,'.' ,''). ;, " .: :--i . ':..'1 -. ~) -. -< CIVIL ACTION COMPLAINT Motor Vehicle NonCE Vou have ..... _ In court. II ~ wllll t. d"'"nd .pin,. 1'tt4 c~;m. sa. forth in the 'ollowlng pagn. you . ""''''*"___lYlZOldoys___..... . and noric. .t. ..FWd. by InteriQo . \IlIrtrinen appearance P<<IOftla., Of by Inorney. and filing In writing with the coun 'rOUt d,'""'" Ot at/lectionl to the clam. ..t 'orth 1001nl' you. You .,. 'Wamed that H ~ 'aU to do 10 the CoO" mey _Old ",lIho'" you ..,d . JudV""'.1 mey Ito 'n',,,d ~Inat YOU by d\4 court without fuf1het nOla for any money claimed In the complaint Of fof' ,n" other claim .. nlk' roqueltee! by tho pIalnllH. You rnrt .... monoy Of PlOpony at .thet t1ghll ImpotUnl t. you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWVER AT ONCE. IF YOU DO NOT HAVE A LAWVER OR CAN. NOT AFFORD ONE.GOlOORTELEPHONETHEOFFlCE SET FORTH SElOW TO FIND OUT WIlERE YOU CAN GET LEOAL HEIJ'. Court Administrator 4th Floor Cumberland County Courthouse Carlisle, P A 17013 1-717-24e-6200 . AVISO - Le hand~..u"""onll-"'. Slu_qultJ'! de. ftnderw de ..1.11 Mmandal lapuel\ll In .... pAg~. oIgulontn. ullld _ vol.to (201 dll, de pll...lportlr do II ...he d... de",.ndo y" nodflcocidn. H... I.... ...nll' una compartnda ncrtu 0 en "tlOftl 0 con UI'lIlbog-'o Y Intrl'glt . ... corti en 'orrnI eKric. IU1 defen&ll 0 au. ob)ecionn . .... demand.. en contra.. IU pI~"~ ,vfudo Q~ " ~ no .. den.ncs.. II con. tomwt meclklu Y p.Mde ..~. Ia """!l'ndo In COfIU'OUYOlln prnlo 8YfIO 0 ftOtH . AdIll'Ml." cone DWde deckUr . fl'YOf dtI hmindlnte Y nq\IiI,. qIH "'lied cumpla con todol 11...,..10...... de.... dornoncIo. U"od p.Mdeponto. dl_ 0 _ pnlplododoo u ..... dorocll.1 Impo<un"" poro ...- \.LEVI ESTA DEMANDA A UN ASOOAOO INMEDIATA. MENTE. SI NO llENE A800ADO 0 51 NO llENE ELDIN. ERO SUFICIENTE DE PAOAR TAL SERVICO. VAVA EN PERSONA 0 WIoIE POR TELEFONO A LA OFICINA CUVA DIRECClclN BE ENCUENTRA ESCRrrA ASAJO PARA AYERIOUAR DONDE SE PUEDE CON5EOUIR A515TENCIA ':lOAL. Court Administrator 4th Floor Cumberland County Courthouse Carlisle, PA 17013 1-71-240-6200 ~n,J..\Ofll('rtQOIJ(l\ ItIa.Al(M.',I, an,.)tl1QlI exhibit B