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Home My WebLink About97-02003 ~ s", "-I { I ~ ' ~ ~ .0 ~ ~ \I ~ I {"( i '::::' 't .., ~ :f. "3 .:\.L c.> tJ (:!} \-L , "...".... "......~" '. \ ) / 40'''/ ..~ / ( , r ... ~ - . . :> '- <:J I I tv) i ~) ~ . ~ CLAIRE F. BECKWITH, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VS. No. q1- dC03 C~I0\~ ALL AMERICAN AUTO/TRUCK PLAZA, INC., t/d/b/a ALL AMERICAN TRUCK STOP GROUP, a/k/a ALL AMERICAN PLAZAS, INC., Defendant CIVIL AC'l'ION - LAW JURY TRIAL DEMANDED NOTICE TO DEFEND AND CLAIM RIGHT~ YOU HAVE BEEN SUED IN COURT. If you \'Iish to defend against the claims set forth in the following pagcs, you must take action within twenty (20) days after this Complaint rind Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your de[enscH or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice [or any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY COURT ADM] III {;'J'RA'l'OR Cumberland County Courtho'.lse 1 Courthouse Square Carlisle, PA 17013 (717) 240-6200 I -4"" I i obert B. Mac ntyte ttorn~y for Plaintiff 6000 Lin(]] estO\1n Road P.O. no:., 6656 Harrisbultj, PA 17112 Attorney's 1.0. #: 36817 CLAIRE F. BECKWITH, Plaintiff VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 91- .7Hl_J t!,'v, I Te"'tt4 ALL AMERICAN AUTO/TRUCK PLAZA, INC., t/d/b/a ALL AMERICAN TRUCK STOP GROUP, a/k/a ALL AMERICAN PLAZAS, INC., Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff is Claire F. Beck\~ith, an adult individual who resides at 3 Valley street, Lewistown, Mifflin County, Pennsylvania. 2. Defendant is the All-Americiln Auto/Truck Plaza, Inc., t/d/b/a All American Truck stop Group, a/k/a All American Plazas, Inc., a corporation who maintains il corporate office at 1161 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania. 3. The events hereinafter referred to occurred on or about August 13, 1995, at the Defendant's All-American Plaza Restaurant located off of Interstate Route 60, near Milton, Pennsylvania. 4. At approximately noon on August 13, 1995, plaintiff stopped in defendant's restaurant for lunch. She ordered the salad and soup bar. 5. After approximately three spoonfuls of split pea soup, plaintiff advised defendant's employee, a waitress named Kellee, that she believed the soup was spoj led, The waitress immediately removed the soup from the bar. 6. Later that evening, plaintiff began to suffer severe stomach cramps. Throughout the night, plai nti f f was awake wi th diarrhea, cramps and extreme discomfort. 7. The following morning, August 14, 1995, plaintiff noticed that she was bleeding from the area of her rectum. She contacted her personal physician, Dr. Kimberly Kolonich, who instructed her to immediately report to the office. B. Upon examination, Dr. Kolonich contacted Lewistown Hospital and made arrangements for plaintiff's admission. 9. On August 14, 1995, plaintiff ~Ias admitted to Lewistown Hospital with an initial diagnosis of rectal bleeding. 10. On August 15, 1995, a surgical procedure known as a flexible sigmoidoscopy and biopsy was performed at the hospital. 11. Plaintiff's complaints subsided and she was discharged on August 16, 1995, ~Iith medications. 12. The discharge diagnosis of plaintiff was infectious enteritis. COUNT ONE - NEGLIGENCE 13. Paragraphs one (1) through twelve (12) are incorporated herein by reference as if set forth in their entirety. 14. Defendant, by and through its agents, servants and/or employees, caused the aforementioned injuries and/or I' I damages, through its negligence, carelessness, recklessness and/or unlawful activities, by having: a. failed to use fresh, current or healthy ingredients in the preparation of the food bacteria, mold or other growths or buffet; b. failed to properly inspect the condition, freshness and wholesomeness of ingredients offered or commingled for consumption in the food buffet; c. failed to properly inspect for disease, imperfections, the ingredients offered or commingled for consumption in the food buffet; d. failed to properly prep;we and maintain the food being offered for sale and consumption; e. failed to properly superv ise and train its employees on the preparation, handling and storage of food products; f. failed to have the food presentation area properly maintained and free of airborne disease or bacteria; g. failed to provide healthy, safe and palatable food for consumption by patrons; and h. failed to conduct OI~ provide routine food inspections which ~IClU 1<.1 detect spoiled, damaged or out-of-date food stuffs and/or preparations. 15. Solely as a consequence of Ddendant I s negligence and actions, Plaintiff has suffered from the following injuries and damages which are and/or may be permanent in nature: a. infectious enteritis; b. diarrhea; c. rectal bleeding; d. cramps; and e. abdominal pain. 16. As a result of her injuries, Plaintiff was required to submit to a medical procedure known as a rle>:ible sigmoidoscopy and biopsy. 17. As a result of her injuries, Plaintiff has suffered and will continue to suffer great mental anguish, inconvenience, pain and suffering. 18. As a result of her injuries, Plaintiff has been compelled to incur and will continue to be compelled to expend monies for medical expenses, supplies, treatment and the like. WHEREFORE, Plaintiff demands judgment in her favor and against Defendant in an amount in excess of T\1enty Thousand Dollars . i I ! ",' i . I f II I, . ($20,000.00) and in excess of the amount requiring compulsory arbitration, together with interest and cosls of suit. COUNT TWO - BREACH OF IMPLIED WARRANTY OF MERCHANTABILIT~ 19. Paragraphs one (1) through eighteen (18) are incorporated herein by reference as if set forth in their entirety. 20. Defendant, in offering food items for sale to the general public, implicitly warranted that the food items would be fit for human consumption or for other ordInary purposes. 21. Defendant breached his implied warranty by serving, or causing to be served to Plaintiff, soup which was spoiled or otherwise contaminated. WHEREFORE, Plaintiff demands judgment in her favor and against Defendant in an amount in excess of 'I'\~enty Thousand Dollars ($20,000.00) and in excess of the amount requiring compulsory arbitration, together with interest and costs of suit. Respectfully 6000 ['inglestown Road P.O. Bo:, 6656 Harrishurg, PA 17112 (717) (,52-9485 LIl. Ii 36817 . VEI\U1C1I1'lON J' ' /" "/ I, j,_, ;.;:--. '. //~". 1,{{_d . '" sl"l~n,enl5 made in the f orcgoi ng Document verify lhal the Drc lrue ~nd correcl lo lhe besl of my ".nowledge, inforn.alion and beli~f. I undersland that the statements therein arc made subject lo the penalties of 18 Pa.C.S. 9 4904 relating to unsworn falsification to authorities 3-.;J/P-Ci7 Date l' '~/j. - ! :.~~llVj T;0I.d'-ttraj{ ./ t c 10 - 1L Ii) C) -. f';; CI , . 0 ~ 10 .:: / -[ .. '!..f. 10 t. - it wr; .. ";Q ".'" ~ 0'. - . . ~-- ~ -, .'- I~~ I:(. ~ fL.', (l.. , . U O~:'-, r- . ,'f) ~;~. -- .z Q] n: ill) fi: I ~ ! 1--, ':.1- ;:c ') I'. r- U 0 0' ,.. o ~ 1lI III ;:: N ~ - K U~Ill;::~ <(jlO_ "" ~ III < , <( CD 0. U') ctS E ~ g ~ WZlD~Ol It: . en . n:: ~ 0 !'1 :;: ~ '~ >- 0( Q. a: lD l- oCr:: Z :1:_ - ,.. U ;;; <( z :E ~ .. oJ .. I- W n:: ~ z .' . 4. During her lunch, Ms. Beckwith took two or three spoonfuls of the pea soup and thought that it tasted funny. Upon reporting this to a restaurant employee, the pea soup was removed from the salad bar. 5. The evening after ingesting the pea soup, Mrs. Beckwith suffered abdominal cramps and rectal bleeding which she attributes to the ingestion of the pea soup. 6. Discovery has been taken in this case including the acquisition of records from the Plaintiff's healthcare providers. Nowhere in those records is a food poisoning diagnosis confirmed. 7. Although Plaintiff's counsel has been asked, in writing, on multiple occasions to produce any expert reports or evidence that he has causally linking the Plaintiff's ingestion of the pea soup to her bout of intestinal problems, he has not produced any expert report or evidence establishing the causal link. See, defense counsel letters attached hereto and marked Exhibit "A." 8. There is no obvious link between Mrs. Beckwith's ingestion of pea soup at the Defendant's Restaurant and her symptoms and, as a result, in order to sustain her burden of proof, she must produce competent expert testimony unequiovcally linking the ingestion of the soup to the symptoms. - 2 - , i , I , i i j " 9. The Plaintiff's failure to produce any evidence in support of her causation claim is fatal to her case and renders summary judgment in this matter appropriate. WHEREFORE, the Defendant respectfully requests that summary judgment be entered against the Plaintiff and that all claims be dismissed with prejudice. I ~". i Respectfully submitted, THOMA~'~OMAS & HAFER, LLP By: K~( }1/}Yl~ Kevin C. McNamara, Esquire 1.D.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 DATE: YI7 / t; t{ Attorneys for Defendant ( (717) 237.7131 I ~ I I i I "I November 24, 1997 Robert MacIntyre, Esquire 6000 Linglestown Road P.O. Box 6656 Harrisburg, PA 17112 RE: BECKWITH V. ALL AMERICAN Dear Bob: It was a pleasure meeting you and your client the other day at the deposition. I just wanted to write to reiterate my request that you provide me with some documentation in the form of a doctor's report or test results which confmn the presence of some type of bacteria or other agent which would tie your client's symptoms to her consumption of pea soup at the All American Restaurant. My review of the medical file showed no concrete findings of food poisoning and I believe that the screen that was performed for bacteria yielded negative results. I believe that you must produce some type of evidence or report medically linking the soup to the symptoms. If you would please get something to me confirming this link or alternatively, confirm for me that you will not be producing any such evidence, we will be able to move the case to resolution. Thank you very much. Very truly yours, THOMAS, THOMAS & HAFER By: Kevin C. McNamara KCM/gmc (' I' , f (717) 237.7132 January 2, 1998 Robert MacIntyre, Esquire 6000 Linglestown Road P.O. Box 6656 Harrisburg, PA 17112 RE: BECKWITH V. ALL AMERICAN Dear Bob: When we left this near the end of November, it was my understanding that you were going to provide me with a report or some type of evidence to support the causation aspect of your case. Thus far, I have not received any additional infonnation from you. Would you please advise as to your position on this point and whether you now have or will have additional medical support for your claim? If so, please provide me with that infonnation and, if not, please let me know about that so we can proceed accordingly. Thank you. Very truly yours, THOMAS, THOMAS & HAFER By: Kevin C. McNamara KCM/gmc " I ,LLP ~ .'ll ,I I '\ (717) 237.7132 January 16, 1998 Robert MacIntyre, Esquire 6000 Linglestown Road P.O. Box 6656 Harrisburg, PA 17112 RE: BECKWITH V. ALL AMERICAN Dear Bob: I have been pestering you for some time now to get me some documentation in support of your food poisoning claim in the above-referenced case. I have reviewed the records and can find no evidence that any type of bacteria which could be linked to two or three spoonfuls of pea soup was detected on any of the diagnostic tests. You mentioned to me at the time of Mrs. Beckwith's deposition that you or she had spoken to a physician who gave you an Gpinion that her condition was related to food poisoning, but you have not provided me with a report in support. The facts of this matter are not really in dispute. The issue is medical and you need something to back up your claim. If you would please provide me with a report within the next 30 days, we can move this case along. If you do not produce a report within that time period, I will be compelled to force the issue by filing a summary judgment motion. Very truly yours, THOMAS, THOMAS & HAFER By: Kevin C. McNamara KCM/gmc 0 <0 0 c .:n '1 ?: ~ ::.I "":-::J ,.. F ;';:!J ;:,-,_. .'J ". ;~:.'J .r,~;; -..... - (;:,', CO '~'~6 ,". i'~(t 0:.<. - - -J -'-3 "j" (j:, n :'<. :''':f-: df~ .r...c-: ~ ~ ~ .. ".0 :.:: CLAIRE F. BECKWITH, . IN THE COURT OF COMMON PLEAS OF . Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA . . V. . . . . ALL AMERICAN AUTO/TRUCK NO. 97-2003 CIVIL TERM PLAZA, INC., t/d/b/a ALL . . AMERICAN TRUCK STOP GROUP, CIVIL ACTION - LAW a/k/a ALL AMERICAN PLAZAS, INC. , Defendant . . IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER. P.J.. OLER. J.. GUIDO. J. ORDER NOW, this -'~~ day of JUNE, 1998, Defendant's Motion AND For Summary Judgment is GRANTED. Edward E. Guido, J. Robert MacIntyre, Esquire For the Plaintiff ) Cor'" ~,.l,,,- .:tsN Kevin C. McNamara, Esquire For the Defendants :sld I I I ,,[ NO. 97-2003 CIVIL TERM (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. It is the Defendant's position that the Plaintiff has failed to come forward with any evidence to prove that the food she ate was tainted or that her subsequent illness was caused by the food she consumed at Defendant's restaurant. For the reasons hereinafter set forth, we agree with the Defendant. In determining whether to grant a Motion for Summary Judgment, the trial Court must examine the record in the light most favorable to the non-moving party. Citv of York v. Schaefer Temporarv Serv.. Inc., 667 A.2d 495 (pa. Commw. Ct. 1995). Ertel v. Patriot News Co., 544 Pa. 93, 674 A.2d 1038 (1996). Summary judgment may only be granted in cases that are clear and free from doubt. Hoffman v. Brandvwine Hoso., 443 Pa.Super. 245, 661 A.2d 397 (1995). Viewing the instant record in the light most favorable to Plaintiff, she is able to prove the following: 1) As part of her lunch at Defendant's restaurant on August 13, 1995, Plaintiff ate three (3) spoonfuls of pea soup. 2) She complained to the waitress that the soup was spoiled. 3) The waitress removed the remainder of the soup from the buffet line. 4) Plaintiff consumed no more food that day. 5) That evening at midnight, Plaintiff awoke with stomach cramps and later developed diarrhea. 2 . NO. 97-2003 CIVIL TERM 6) She was hospitalized for several days. What is conspicuously absent from the record is any competent medical evidence which links her midnight maladies to her lunch at Defendant's establishment. The law in this Commonwealth is clear. When there is no obvious causal relationship between an injury and the incident giving rise to the cause of action, medical evidence is necessary to establish that causal connection. Smith v. German, 434 Pa. 47, 253 A.2d 107 (1969). In the instant case, Plaintiff has produced no medical testimony, records, or other evidence whatsoever which diagnoses her condition as being food related, let alone linking it to the food served by Defendant. For all we know, her symptoms could have been caused by any number of things, including the flu, or other natural ailments. While one possible cause may have been the pea soup, we cannot allow the jury to speculate on the issue of causation. Albert v. Alter, 252 Pa.Super. 203, 3Bl A.2d 459 (1977). Since the Plaintiff has failed to produce any competent medical evidence to show that she was made sick at Defendant's restaurant, we have no alternative but to grant Defendant's Motion For Summary Judgment. 3 NO. 97-2003 CIVIL TERM , I ~ I ORDER AND NOW, this IjI~ day of JUNE, 1998, Defendant's Motion For Summary Judgment is GRANTED. i I ~I I By the Court, /s/ Edward E. Guido Edward E. Guido, J. Robert MacIntyre, Esquire For the Plaintiff Kevin C. McNamara, Esquire For the Defendants :sld 4 THOMAS. THOMAS & HAFER BY: Kevin C. McNamara. bquire 10ENTIIICATIDN NO.: 72668 305 Norlh IID"I SUIII p,O, BOI 999 H.rrisbu'g, PA 171080999 11171 237.7132 [ I "" AtlorneVI for Defendant CLAIRE F. BECKWITH, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 97-2003 ALL AMERICAN AUTO\TRUCK PLAZA, INC., t/d/b/a ALL AMERICAN TRUCK STOP GROUP, a/k/a ALL AMERICAN PLAZAS, INC.. Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Claire F. Beckwith, Plaintiff; and Robert MacIntyre, Esquire, Attorney for Plaintiff: You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. THOMAS, THOMAS & HAFER By: /~.}7"JY/eM?~ ~~ C. McNamara, Esquire 1.D.II72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 DATE: ~/{ In Attorneys for Defendant 5. Admitted in part and denied in part. It is admitted that the Plaintiff advised All American waitress, Kellie Vest -Starr, that she believed that there was something wrong with the split pea soup and it is admitted that the soup was later removed from the salad bar. As to how much soup the Plaintiff consumed, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and proof thereof is demanded. 6-12. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and proof thereof is demanded. COUNT I Negligence 13. Defendant hereby incorporates its answers to Paragraphs 1 through 12 herein as if set forth at length. 14 (a) - (h) . It is denied that the Defendant, its agents, servants or employees were negligent, careless or reckless in any of the ways alleged. It is further denied that the Defendant or its agents, servants or employees engaged in any "unlawful activities" as alleged. 15. Denied. The Defendant denies that it was negligent. As to the injuries alleged, after reasonable investigar.ion, Defendant - 2 - is without knowledge or information sufficient to form a belief as to the truth of the allegations and proof thereof is demanded. 16-18. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and proof thereof is dem~nded. WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint be dismissed without cost to it. COUNT II Breach of Implied Warranty of Merchantability 19. Defendant hereby incorporates its answers to Paragraphs 1 through 18 herein as if set forth at length. 20. Denied. This allegation represents a conclusion of law to which no response is required. 21. Denied. This allegation represents a conclusion of law to which no response is required. By way of further answer, the Defendant denies that it breached any implied warranty to the Plaintiff. WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint be dismissed without cost to it. - 3 - NEW MATTER 22. All of Plaintiff's injuries and damages were or may have been caused by pre-existing conditions and not by Defendant's soup, as alleged in the Complaint. 23. Count II of Plaintiff's Complaint fails to allege a claim for breach of implied warranty of merchantability for which relief can be granted. 24. The Defendant's conduct was not a substantial factor in bringing about the alleged injuries. 25. Defendant served many other customers in its restaurant on the date alleged and received no other reports of illness from the Defendant's buffet or from the split pea soup. WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint be dismissed without cost to it. Respectfully submitted, THOMAS, THOMAS &: HAFER By: i. (. yy) V)a,.-v~u4..- Kevin C. McNamara, Esquire 1.0.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 DATE: $1'(/17 Attorneys for Defendant VERIFICATION I, DAUNE N. EVANS , state that I am an authorized representative of All American Plazas, Inc., that I make this Verification on behalf of Defendant All American Plazas, Inc. and that I am familiar with the facts set forth in the foregoing ANSWER WITH NEW MATTER PLAINTIFF'S COMPLAINT. I have read the foregoing document and hereby affirm that it is true and correct to the best of my personal knowledge, information and belief. This Verification is made pursuant to 18 Pa.C.S. ~ 4904 relating to unsworn falsification to authorities. ALL AMERICAN PLAZAS, INC. By: ~~~. ~ DATE: MAY 12, 1997 (") .0 (") r-: -.I .n -:-.{" - . .,j ;..'~ .~l-n Ll}~ .-<: . j.7. , .' 'J'? \i_.- Ul . Il- l 1.:::_- '\0 .'c.' "j "r., ..... .',:r '..' '0 . , ~'/ ..In :"""i". ... :n ;:J ::'1 ('0 j~ ..... " .0 ~ f~ t.D :T: .J -or.r) :po ?i:!1 1"1'11:\ ~o ' ,- ~.....,.. ''''9 ""'( I:P " 0~~: -;':'.0 ~".. ~.....: ." .,--0 .,-..:!J '" .-', - -)~') - -;" "'- 610 '.;CI ~ ;;{.: ~ "' ?V ::;l -'~ N 0< . THOMAS, THOMAS &, HAFER 'effrey B. Rettig, E.qulre 1.0.' 19616 305 North Front Street P.O. Box 999 Ha"l.burg, PA 17108-0999 (717) 255-7639 Allorney for Defendant All American Piau., Inc. CLAIRE F. BECKWITH, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW v. NO. 97.2003 ALL AMERICAN AUTOfTRUCK PLAZA, INC., tJd!bIa ALL AMERICAN TRUCK STOP GROUP, alkla ALL AMERICAN PLAZAS, INC., Dt!fendant ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance for Defendant, All American Plazas, Inc., only, in the above-captioned case. THOMAS, THOMAS & HAFER 17101 Dated: I) /'iti'7 ! t". .. CERTIFICATE OF SERVICE I. Carol A. Landis, a paralegal for Ihe law firm Thomas, Thomas & Hafer, hereby slate Ihat a Irue and correct copy of the foregoing Enlry of Appearance was served upon all counsel of record by first class United States mail, poslage prepaid, addressed as follows, on the date set forth below: Bv First Class U,S. Mail: Robert B. Macintyre, Esquire 6000 Lingleslown Rd. P.O. Box 6656 Harrisburg, PA 17112 THOMAS, THOMAS & HAFER ; . "7" ' (,<--.t<-t'{/.../(~l'lI cL ~ Carol A. Landis Dated: S /, /7 ') -Hi ,!. .\':". ::1': "!;i;';,ill'!,!'I',\i ill~lr:' I!i !I ,,' .., ,.;i_ ,',\tl! .' , " : :, ! ! ~ ; , " ~ , 1\ ~ II 1'1 :I'.~: ',,' r i' i; 1\ ! ,,-I '/' !\J.~J:_j~L!~I.L,A r j _...:~,W~J~l!.'~j:~_~~L!~: 1\ _JSlLt~~JJLJ~_.Jl~I[0.":_---, :i"; l :: ! ';h('l 1 t i ':-'I t (i r pu t, j' li!H\1l;11\1111 Il n t j.. r ,:,:J ,I.., y ~ ':,,1'; l,j. '.:' : I ~ '! '':':': I, :J':':; ,') r (1 J rl.~~ "Iil! 1,]',(, .;)y::. i.h,:; W 1 t h:. il i;l';, ,', p~ r '11 '.I ..; ~-_- .~' r 'J ~:'r,l ~ l P ~'f I __~_~~:.:B:~JuC_/j E__./I t IT ,I ..J~~_I-,;..T _.'_~. '.h-.. f"';!'J__:_:.~,r\ ,j .; ':'[j,:i:,rl'_ ;l' _~__~~I,.~ ;i'I;.1:-,:'.:, (11 1 -o.~. . : ii ':' /~l ~_;J____._______ tiu ,);-,' ] t _J.jl.:..'._..iL~\~~t;~l_~iJ~l!.::":",,,l U..:~,______ ",":',I,I"U: 1 ;\ ".'1: , I li-1t: l,~hl .\ Ii I ~ , 111 r I t. .,. , ':'1)(1.:', I '/::i; I' ;:1, !!i,.'f_'\ll ~,~ . '1 '. 1 . r I ,./1.i/.,_ ,_,. /\nll J ~_h,.Cql ),',' :,:1','" ii';, !; ,'Jj/d.I,f" , t I !l ~:. 'd,d ':1 t ! '-"'':~~. ,> j t h.: , , .....r\ l I ~ 1 , r , . ';,; '.F'I. h.:: r '.11 t_rl 1t~~______. ill_, JI ._ h'::.' :;:1: tIt",. :1;-':, 1. ~j a :,~,___. t,; j '.' . ~I fl ',';: n',; t. L" '_~ (. :. . ,;'.1',;, 'Il- : 1 i ~ '.- 11;_1:: I:.' 1 r" ~-;.: I .: 1 ('f' i\ i 11 ,,~ 'j 'o' : r, ':1.11' ,::11 J l-'-;.~ --_?~-~~~_. r I., ~ : :. _ . - :1', [ 1 r .t 1:." --.-------~ ~ !: ': . -;:/,,; :. " ;-;1\ ~ , , i II . +' f) {11i.d, L.}.t,1.?lU:~"-:;;:':r;::-dh' '\-', ir! I, J. ,J;)",\(( ~J 'II \---hu- (.. )J1M:~,":,1 UP7 .... .24 CLAIRE F. BECKWITH, Plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ALL AMERICAN AUTO\TRUCK PLAZA,: INC., t/d/b/a ALL AMERICAN TRUCK STOP GROUP, a/k/a ALL AMERICAN PLAZAS, INC., Defendants . . . . NO. 97-2003 CIVIL TERM . . . . IN RE: ARGUMENT COURT BEFORE HOFFER. P.J.. OLER. J.. GUIDO. J. ORDER OF COURT AND NOW, this 11~ day of APRIL, 1998, after argument, and by agreement of the parties, Plaintiff is given thirty (30) days to supplement the record. The Court will then be in a position to rule upon Defendant's Motion For Summary Judgment. Edward E. Guido, J. Robert MacIntyre, Esquire For the Plaintiff _ ~f1\'~ <-fIn /9 r. ..J.f Kevin C. McNamara, Esquire For the Defendant :sld \'~ JMAR 181998 THOMAS, THOMAS & HAFER, LLP 81: Kevin C. McNemara. ESQuira 10ENT~ICATlON NO, 72668 305 NlUlh Fronl SltHI P,O, 801 899 H.rrilbwg. PA I7IOa0999 I71n 237,1132 Attorneys for Delendant CLAIRE F. BECKWITH, Plaint if f IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 97-2003 ALL AMERICAN AUTO\TRUCK PLAZA, INC., t/d/b/a ALL AMERICAN TRUCK STOP GROUP, a/k/a ALL AMERICAN PLAZAS, INC., Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I. PROCEDURAL HISTORY AND STATEMENT OF FACTS: This is a personal injury suit arising out of an incident which allegedly occurred on August 13, 1995. On that date, the Plaintiff was a patron at the Milton All American Restaurant. She came to the restaurant on August 13, 1995, at about 11:45 a.m. with her brother and granddaughter. (Beckwith 14) She ordered from the buffet and proceeded to serve herself. (Beckwith 14 -15) One of the items that Mrs. Beckwith chose from the buffet was a cup of split pea soup. When Mrs. Beckwith got the pea soup, it was too hot to eat and she allowed it to cool while she finished her other selections. (Beckwith 15) After the soup cooled, Mrs. , > .~ I r I i p. Beckwith tasted the soup and said it was "awful," but she thought that this was due to a combination of the soup with the other food she was eating. (Beckwith 15) She then took a second spoonful and perhaps a third when she suspected that the soup was spoiled. Mrs. Beckwith then called the waitress and told her that the soup was spoiled and the waitress removed the soup from the buffet and thanked Mrs. Beckwith for advising them of the problem. (Beckwith 18) At the time, Mrs. Beckwith did not put much emphasis on the pea soup. She did not think it was a big deal. She did not feel ill at all before she left the restaurant. (Beckwith 19) That evening at midnight, Mrs. Beckwith awoke with stomach cramps and later she developed diarrhea. The diarrhea continued all night and Mrs. Beckwith awoke the next morning, went to work and noticed after going to the bathroom that there was blood in the toilet. She then called her doctor and went to the Lewistown Hospital for treatment. (Beckwith 24, 25) When she was at the Emergency Room, the subject of the pea soup was raised with her physician and at that point, the doctor said that he did not think that pea soup was the culprit. (Beckwith 26) According to Mrs. Beckwith, during her stay in the hospital, she talked to a doctor who said that he thought she was right, that there was bacteria from the pea soup which was causing her problem. (Beckwith 27-28) - 2 - A few days later, Mrs. Beckwith left the hospital symptom-free. (Beckwith 29) Since suit was instituted, there have been no medical reports or medical evidence produced to confirm a diagnosis of food poisoning. The records from the Lewistown Hospital do not confirm Mrs. Beckwith's alleged conversations with her physician and, even though expert information has been specifically requested through discovery and informally requested through correspondence, no expert reports have been produced causally linking Mrs. Beckwith's ingestion of two or three spoonfuls of pea soup to the symptoms that she experienced thereafter. II. STATEMENT OF ISSUE PRESENTED: WHETHER SUMMARY JUDGMENT IS APPROPRIATE HERE DUE TO THE PLAINTIFF'S FAILURE TO PRODUCE EVIDENCE CAUSALLY LINKING MRS. BECKWITH'S SYMPTOMS TO HER INGESTION OF PEA SOUP AT THE MILTON ALL AMERICAN RESTAURANT? (Suggested answer: Yes.) III. ARGUMENT: Where there is no clear connection between an incident and subsequent injury and/or disability, it is the Plaintiff's burden to produce expert testimony to establish the causal connection - 3 - between the incident and the injury. Albert v. Alter, 381 A.2d 459, 470 (Pa.Super. 1977). When expert testimony is proffered to establish causation, the expert must testify with reasonable certainty that in his professional opinion, the result in question did come from the cause alleged. Kravinskv v. Glover, 396 A.2d 1349, 1355 (Pa.Super. 1979). In this case, the central question comes down to whether or not the Plaintiff can create a question of fact as to the causal relationship between her ingestion of two or three spoonfuls of pea soup and the symptoms that she experienced later. Since there is no clear cause and effect relationship between the pea soup and the subsequent symptoms, expert testimony is necessary to at least raise a triable issue of fact. When, after completion of the discovery relevant to a Motion for Summary Judgment, including the production of expert reports, a party who bears the burden of proof at trial has failed to produce evidence of facts essential to the cause of action, a Motion for Summary Judgment is proper. Pa. R. C. P. 1035.2. The non- moving party in a summary judgment setting is not permitted to rest upon the mere allegations or denials in the pleadings and must respond to a properly prepared Motion by identifying issues of fact arising from the evidence of record, Pa.R.C.P. 1035.3. - 4 - In this case, Mrs. Beckwith has had ample opportunity to identify a competent trial expert and to produce a report on the only issue which is in dispute - did Mrs. Beckwith's ingestion of two or three spoonfuls of pea soup cause her symptoms? Although she does state in her deposition that she was told by a physician that he thought she was right about the pea soup, these statements are not competent evidence since the statements of the doctor are hearsay offered for the truth of the matter asserted. Mrs. Beckwith would not be permitted to rely upon this as evidence at trial and it is her burden to produce some evidence to create a triable issue of fact that there is a causal link between the pea soup and her subsequent symptoms. She has not done this and, accordingly, summary judgment is appropriate. IV: CONCLUSION: For the reasons stated above, Defendant All American Plazas, Inc. respectfully requests that summary judgment be entered in its favor and against the Plaintiff. Respectfully submitted, DATE: 3}"7 /'1c?' THOMAS. THOMAS &: HAFER. LLP By: Lc >7:7'y?0t--'"~e;:" Kevin C. McNamara, Esquire 1.D.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (71n 237-7132 Attorneys for Defendant t~ CLAIRE F. BECKWITH, PLAINTIFF IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 97-2003 V ALL AMERICAN AUTO/TRUCK PLAZA,: INC., T/D/B/A ALL AMERICAN TRUCK STOP GROUP, A/K/A ALL AMERICAN PLAZAS, INC., DEFENDANTS DEPOSITION OF: CLAIRE F. BECKWITH TAKEN BY: DEFENDANTS BEFORE: KAREN C. Ar.BRIGHT, RPR NOTARY PUBLIC DATE: NOVEMBER 19, 1997, 11:00 A.M. PLACE: THOMAS, THOMAS & HAFER 305 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA APPEARANCES: ROBERT B. MACINTYRE, ESQUIRE FOR - PLAINTIFF THOMAS, THOMAS & HAFER BY: KEVIN C. MCNAMARA, ESQUIRE FOR - DEFENDANTS Hushes, fllbriglri, 'Foltz tr JVatde :Reporting &rlia, 8nc. 115 PINE STREET' HARRISBURG. PA 171Dl Harnsburg 717.232.5644 Fax 717.232.9637 Lane,sler 717.393-5101 Multi-pagcThC CLAIRE F. BECKWITH NOVEMBER 19, 1997 Page 2 Page 4 I I'm going 10 ask you a question that is SO confusing that 2 you just ='t figure out what it is that I'm trying to 3 get at. If that docs occur, pl= ask me to clarify the 4 qucstiDn. ['II be happy 10 do that as well. Okay? 5 A No problem. 6 Q Some people ~ prone to answer questions with 7 gestW'Cs and uh.buhs and bub.uhs, As you know. we bave a 8 coun reporter righl hac who is Inking down everything 9 that we say, and 10 the best of your ability [ ask that 10 you answer my questions audibly as opposed 10 with a nod 11 of the hc:ul or an uh.huh or hub.uh. I'll try to remind 12 you if that docs begin to happen. 13 The last instruction is that ~ me finish my 14 question before you answer it. It's very difficull for 15 the coun reporter to lake us both down spc:1king at one 16 lime, so please allow me 10 finish the question before you 17 respond, cven if you know what it is before I finish. 18 Okay? 19 A Yes. I will. 20 Q Slart out with some C3S)' questions, Your full 21 name? 22 A Is Claire Fr.m= Beckwith. 23 Q Your home address? 24 A Is 627 South Main Street, I..cwislown. 25 Pennsylvania, 17044. 1 WITNESSES 2 NAME EXAMINATION 3 CLAIRE F. BECKWITH 4 BY: MR, MCNAMARA 3 5 BY: MR.MAClNTYRE - 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Pagc 3 I STIPUL\TION 2 It is hereby stipulated by and between counsel 3 for the respective parties that rc:uling. signing. scaling. 4 certification and liling arc hereby waived; and that all 5 objections except as to the fonn of the question ~ 6 reserved to the time of trial. 7 8 ClAIRE F. BECKwml. called as a wilness, being 9 duly sworn. lcstificd as follows: 10 E.'(AMINATION 11 BY MR. MOIAMARA: 12 Q Good morning, Mrs. Beckwith. My n:unt:'s Kevin 13 McNamara. and I represenl All American Plaza in a lawsuit 14 that you brcught, How arc you doing loday'? 15 A I'm juslfine. thank you. 16 Q Havc you ever had your deposition taken before? 17 A Yes, 18 Q Then some of the instructions that ('m aboullo 19 give you may be familiar 10 you. We're here today 10 ask 20 you questions to find out what you know and what you think 21 about the incident lhat happcnetl on August 13th. 1995, 22 It's my job 10 ask you questions that you can hear and 23 that you can understand. If you don't hc'ar a question 24 that I ask, please ask me 10 repeat it, 10 speak up. and 25 ['II be happy 10 do Ibat. It is likely that at some poinl HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5 I 01 Page 5 1 Q Is it Miss or Mrs. Beckwith? 2 A It's Miss. 3 Q What is your birthday? 4 A March the 10th, 1940. 5 Q Are you employed right now? 6 A No, I'm DOL 7 Q When was the last time th:It were employed? 8 A I did some consulting work in August, September 9 and October. 10 Q OfI997? II A That's CDlTCCl. 12 Q Are you retired? 13 A No. No, I'm noL 14 Q When was the last time that you had rulltime 15 employment? 16 A April of 1997. 17 Q What was it that.. what was your occupation at 18 that time? 19 A I was Health C:ue Administrator. 20 Q Where at? 21 A At Roxbury in Shippensburg, Pennsylvania. 22 Q What is Roxbury? 23 A Roxbury is an inpatient drug and alcohol 24 detoxificalion aRd rehabilitation center. 25 Q Do you have.. I believe I saw this in Page 2 - Page 5 .- \-: .. , !) I " , t.:--' " Page 10 I your stomach or intcstinnllnlCt? 2 AND, J Q No shooting. stabbings. beatings. fnlldowns. 4 mything of that nature? 5 A None, 6 Q Are you allergic to my types of medications? 7 A I had m allergy 10 tetanus )'ClI3 ago, but 8 they've changed the drug md that's no longer thc case, 9 Q Arc you nllcrgic to my type of food that you 10 know of'l 11 A None. 12 Q You're not nllcrgic to Str.lwbaries or IJ shellfish or mything of that nature? H A No, 15 Q Prior to August 13th. 1995. how would you 16 charocterize your genc:ml health? 17 A Excellent. 18 Q Never had m illness? 19 A I've never missed a day's work for illness in 20 the 14 years that I WllS at Roxbury. 21 Q Let me ask you some questions about Millon All 22 American Restaurant. That's where this incident occUlTed? 23 A That's correct. 24 Q Did you ever eat there before -- 25 A Yes, Page II I Q I know you know what I'm going to ask you, but 2 please let me finish. Have you ever eaten at the Milton 3 All Amcrican Restaurant before? 4 A Yes. 5 Q That's befDre August 13th, 1995? 6 A That's correct. 7 Q How often did you eat there. again, before this 8 happencd? 9 A Probably two or three times a month. 10 Q Over what period of timc? 11 A I'm going to say April until August of '95. 12 Q April of 1995, is that the frrsltimc you had 13 cvcr been to the Milton Restaur.mt? 14 A There may havc been one other situation, you 15 know. I don't remember it specifically, but I wDuld say 16 that maybe one time prior to April of '95. 17 Q Just out of curiosity, what was it that led you 18 to start going there for dining? 19 A I was traveling to my sister's cottage almDst 20 evcry weekend. 21 Q And it was on the way? 22 A Yes. 23 Q Prior to August 13th, 1995, how would you 24 characterize the service at the Milton All American 25 Restaurant? HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 Multi-Page"" CLAIRE F. BECKWITH NOVEMBER 19,1997 Page 12 I A Do you want to rq>c:1l that question? Bo:cause I 2 don't know if you mean - did you say August or April? 3 Q AuglC>1, I know the first time you went in 4 there was April of '95, maybe once before tha!, But what 5 I'd like to know is, from April until this happened. how 6 would you ch=tai21: the service that you received at 7 that restaurant? 8 A No problem. There WllS no problem with the 9 service, 10 Q How about - did you have more to say? 11 A Yes, 12 Q Go ahead then. 13 A We were particularly fond of the bakery md the 14 buffet bar. I mean, service WllS like a non-issue, It's 15 not much service, but the food was good. 16 Q You served yourn:1f'1 17 A Yes. t 8 Q Did you always order that buffet bar? 19 A Probably more ol'ten than no~ but not 20 necessarily often - noI ~ily nlways. 21 Q In the times thai yoo had ordered from the 22 buffet bar before, did you have any impression about the 23 c1e:mliness of the 3I'Cl wbce the food was kept? 24 A It was respcaoble and c1e:m or we wouldn't 25 havc gone back. Page 13 I Q How about the food, was the food good? 2 A The food was good. 3 Q Is that why you kept coming bock? 4 A Yes. 5 Q Can you think of any - before August 13th. 6 1995. can you think of IlIIY particular visit or episode 7 where you thought thai the food was bad or perhaps that S the restaurant was noI as c1= as you thought it should 9 hove been? JO A No, I can't say thai I have. II Q Did you eve- t::ll pea soup at this restaurant 12 before the day this happened? IJ A No. H Q Do you like pea soup? 15 A Yes. I do, 16 Q How long have yoo been eating pea soup? 17 A Probably about SO years. 1 S Q Are there different kinds of pea soup? That 19 may be a very difficult question for you to answer. Hove 20 you had different kinds of pea soup over the years? 21 A No. I've had split pea soup and ham. 22 Q Those are the basic ingredients, split peas and 23 ham? 24 A Yes. 2S Q Now, the day this bappened, I'm going to ask Page 10 7 Pnge 13 1 I won't go on to tlult. 2 Q After the second or third spoonful tJut you had 3 that you said you came to the conclusion Ihal perhaps 4 there was some spoilage here -- 5 A That's correct. 6 Q" what did you do I1CJlt? 7 A As the wnitrcss went by, or whatever. I lold 8 her that the soup was spoiled. nnd she went nnd removed it 9 from the salad bar nnd thanked me for lelting them know. 10 Q Did either of the other two people tJut wcre 11 with you, did dthcr of those two people have pea soup? 12 A No. 13 Q What exaclly did the wnitrcss say to you. if 14 you recall? 15 A Jh, she said thank you, nnd she wenl ovcr nnd 16 took it off of the bar. 17 Q Did shc say nnything more to you? 18 A No. Well, I think she came back when she gave 19 us our check nnd said, well. gee, I'm SOll)', nnd thanks a 20 lo~ you know, those kind of amenities which were 21 appropriate. 22 Q Did you hear nnybody else in the rcslllurant say 23 that they didn't like the soup or thought that it tasted 24 bad? 25 A No, I did not. Page 19 1 Q After you returned the pea soup, did you get 2 more to eat? 3 A I would think nD~ but I don't knDW. Quite 4 honestly, I didn't put that much emphasis on the spoiled 5 pea SDUP at that particular time. It wasn't a big deal. 6 I mean, that's exactly where I was at. 7 Q Did you have dessert that you recall? 8 A I don't think they have much of a dessert on 9 that salad bar. 10 Q V ou said you liked the bakery -- II A Well, the bakery is separate from the salad 12 bar. I probably bought-- no, I don't even think we 13 bought cookies that day, no, 14 Q How about to drink. what did you have to drink 15 in there, if you Itcall? 16 A Probably coffee and water. 17 Q And then I take it since you didn't attach much 18 emphasis at the time tD the pea soup. you got your bill. 19 paid it, and left? 20 AVes. 21 Q Did you feel ill befDre you left the 22 restaurant? 23 A Not at all. 24 Q When was the first time that you started 10 25 feel symptoms? HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 Multi-Page'''' CLAIRE F. BECKWITH NOVEMBER 19, 1997 Page 20 Page 18 A Probably at midnight that night. 2 Q Do you know what time it was approximately that 3 you Icft the restaurant'1 4 A I'm gDing 10 estimate 12:15,12:20. 5 Q Did you go to the cottage after you left? 6 ^ That's com:cl. 7 Q Did you have dinner at the cottage? 8 A No. 9 Q Did you have dinner anywhere? 10 A No. 11 Q HDW is it that you recall not having dinner 12 that evening? 13 A I only usually eat one big meal a day. 14 Q Did you have breakfast that morning? 15 A Probably no~ probably juice and coffee. 16 Q Did you have anything at all to eat after you 17 left the Milton All American Restaurant and before you 18 started to feel your symptoms? 19 A Honestly, I don't know. I know that we didn't 20 stop and cat. My brother eats one meal a day, I cat one 21 meal a day. I might have had a Pepsi, but I don't know. 22 Q Vou didn't have any shellfish or anything like 23 that? 24 A 25 Q I I I No, nothing like thaI. Where were you when you first felt symptoms? Page 21 1 A I was asleep and got awake with stomach cramps. 2 Q Were you at the cottage? 3 A No. I was at my home. 4 Q Was the COltlgC just a day trip? 5 A Ves, just nn a.flemoon trip, 6 Q Vou don't recall if you ate nnything like 7 perhaps a bowl of ice = or !.Orne snack before you went 8 10 bed? 9 A I would say no. 10 Q When you rlCSl started to havc the symploms, 11 what were they? 12 ^ Slomach cr.unps, 13 Q Stomach cramps in the llI'C:l of your stomach or 14 lower? 15 A Stomach cramps. I don.I.... 16 Q A generalized pain in your abdomen? 17 AVes. 18 Q Any other symptoms? 19 A No. I did through the night develop dinrrhea. 20 I don't remember if it WllS at tJut moment. I remember I 21 went to the bathroom, I only had a nightllght 0lI. I 22 remember I was so weak nnd sick from the pain I laid on 23 the floor for a while, I don't know if the diarrhea 24 slllr1cd right at 12. I know I was up many times throush 25 the night. CLAIRE F. BECKWITH NOVEMBER 19, 1997 Page 28 I Q At SOIllC poinl whilc you were in lhe hospital. 2 is it your recollection thai somebody gave you a diagnosis 3 thai it was food poisoning? 4 A Ya, The doctor that did the test, he must 5 havc done a culture or somclbing and came back and 5'lid, 6 you know, I think you're right .- there's a bacteria, I 7 lbink you're right with your pe:l soup. there was a 8 bacteria. 9 Q Do you rcmcmbc:r which doctor that was? 10 A I think his nwne was Smoke, or something like 11 that. 12 Q After you len the hospital. what sort of a 13 treatment progmm were you on? 14 A lien with an antibiolic and instructed 10 see 15 my" 10 sa: Dr. Kolonich, and I think that they may have 16 made the rcconuncndation for the follow test, or it may 17 have bc:cn Dr, Kolonich. I'm not sure which one, 18 Q What follow up test? 19 A They recommended that I have follow up testS 20 after a certaio period of time to make sure that thcre was 21 no physical problem. 22 Q What, any continuing problem? 23 A Any continuing problem or anything beyond what 24 the diagnosis was. 25 Q Arter you were discharged from thc hospital, Multi-Page'" Page 26 1 Q Did you drive younclf there? 2 A I drovc myself 10 the doctor's office .. ycs. I 3 did. 4 Q And what did they do for you at lbe ER1 5 A They admitted me. 6 Q Did you tell them about the pe:l soup at Ihat 7 point'/ 8 A I don't think so, No, I think the nrst 9 person I told about the pc:l soup was a specialist they 10 callcd in, nod I don't rcmcmbc:r his name. 11 Q How long were you in the hospital? 12 A I went in Monday. I think Wcdnesdayor IJ Thursday I was dischat1!cd I wcnt in Monday morning. I 14 think Wednesday artcmoon I was discharged. 15 Q While you were in the hospital .. we havc thc 16 records" just basically what did they do for you? 17 A They put me on .. I couldn't cal, As a malter 18 of fact. I think I could have water. And they were 19 waiting for the bleeding 10 stop nod then they were going 20 to run some tests, And I think that the bleeding was SO 21 severe" this is probably a matter of record .. that Ihe 22 doctor lbought that it was not food poisoning. I think 23 that's the nrst kind of discussion that I had abDut it 24 possibly being the pc:l soup. And he said. no, hc didn't 25 think it was that because it was much too severe, pagc 27 1 Q After that what .. 2 A And so he was going to run some tests after the 3 bleeding stopped. 4 Q When did the bleeding stop? 5 A It didn't stop until they diagnosed it as some 6 fonn of bacteria, or something like lbat, which was the 7 following day. They r.lII the tests noyway. which rt:llly 8 kind of concerned me because Ilbougltt they 5'lid thcy were 9 going 10 wait unlil it stopped, and it hadn't stopped. 10 then they began 10 do the test, so I thought maybe it was 11 more serious than .. then after he identined it was a 12 bacteria. he prescribed an antibiotic. nod lben it IJ stopped, 14 Q Do you have a recollcction of how long the 15 bleeding actually lasted unlil it did stop? Did it stop 16 before you left the hospital? 17 A It stopped before I left the hospital. I think 18 it stopped like Tuesday night. 19 Q 1I0w about the crampincss. wh<.'D did that stop? 20 A I think that the cramps stopped" I'm 21 guessing, I really don't remember, I think Munday, 22 though, 23 Q Were you bleeding only with bowel movements 24 or.. 25 ^ Yes, HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 Page 29 I did you have any continuing problems at all of this 2 nature? 3 ^ No, 4 Q When would you say lbat you were symplom free? 5 ^ I would say that I was essentially symptom free 6 when lIen the hospital. 7 Q Did you miss some t1me at work after you Icrt 8 the hospital? 9 A I believe that I missed the next two days, I 10 had not caten for Ihn:e dl>ys 3Ild had an appointment with 11 the doctor. lbosc kind of things. 12 Q Did they put you on some kind of a limited diet 13 onc"l: the symptoms subsided. or were you able to go back 14 right away to a nonnal diet? 15 A I think thai before I left tl.c hospital they 16 might have given me some Jell'o. or something like that, 17 3Ild I believe that there was no instruction as far as 18 resuming a regular diet. 19 Q So they didn't restrict your diet when you left 20 the hospital? 21 A Not oncc I left the hospital. Not to my 22 recollection. 23 Q Can you tell mc what the total number of days 24 were that you missed from work as a result of this? 25 A Arc you talking about the follow up tests. and Page 26 ~ Page 29 , I f ,"-:/, .... ~ .- \ Multi-Page"" CLAIRE F. BECKWITH NOVEMBER 19, 1997 Page 34 coUNTY 0' C\1MBu.t.AND I I .. 2 COMMONWEALrn OF PENNSYLVANIA: 3 I, Karen C. Albright, a Notary Public, 4 authori7l:d to administer oaths within and for the 5 Commonwealth of Pennsylvania, do hereby certify that the 6 foregoing is the testimony of CWRE DECKwrrn. 7 [ further certify that before the l:lking of 8 said deposition. thc witnt:SS was duly sworn; that the 9 questions and answers were taken down stenographiC3l1y by 10 the said Reporter.Notary Public, and a/lcrwllrds reduced to II typeWriting under the direction of said Reporter, 12 1 furlhcr certify that said deposition was 13 taken at the time and place specified in the C3ption sheet 14 hereby. 1 further certify that 1 am not a relative or 15 employtC or attorney or counsel to any of the parties. or 16 a relativc or employtC of such attorney or counsel, or 17 finllllcially interested directly or indirectly in this 18 action. 19 1 further certify that said deposition constitutes 20 a true retord of the testimony given by the said witness. 21 IN W1TIIESS WHEREOF.l have hereunto set my hand 22 this 27th day of November. 1997. 23 JC..\IU.."f Co ALBJJGKT. An 24 Notary Public 25 Page 35 1 2 3 4 5 6 7 8 9 10 I 1 ~ ' HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 Page 34 ~ Page 35 CERTIFICATE OF SERVICE I: I ~I I ~ , I , I, KEVIN C. MCNAMARA, ESQUIRE, hereby certify that I have served a true and correct copy of the foregoing document on the following person by placing prepaid, on the /7~ay of same in the United States mail, /J1tIref , 1998: postage Robert MacIntyre, Esquire P.O. Box 6656 Harrisburg, PA 17112 THOMAS, THOMAS &: HAFER, LLP By: t!... C. /??7'?~ Kevin C. McNamara, Esquire I , I i I I I ! I , I ,; I I CLAIRE F. BECKWITH, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVllNIA VB. No. 97-2003 ALL AMERICAN AUTO/TRUCK PLAZA, INC., t/d/b/a ALL AMERICAN TRUCK STOP GROUP, a/k/a ALL AMERICAN PLAZAS, INC., CIVIL ACTION - LAW Defendant TO THE HONORABLE, THE JUDGES OF SAID COURT: PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FACTS At or about noon on August 13, 1995, Plaintiff and members of her family stopped at Defendant's restaurant of Interstate 80, near Milton, Pennsylvania, for lunch. Plaintiff ordered the soup and salad bar. After approximately three spoonfuls of split pea soup, Plaintiff advised Defendant's employee that she believed the soup to be spoiled. The product was then removed from the soup bar. No other member of Plaintiff's family had selected the soup. Further, Plaintiff consumed no further food that evening. Later that night, Plaintiff began to suffer severe stomach cramps. Throughout the evening, Plaintiff was awake with diarrhea, cramps and extreme discomfort. The following morning, Plaintiff discovered that during the evening she had experienced rectal bleeding. She contacted her family physician who instructed her to immediately report to the office for examination. Upon examination, plaintiff was then admitted to the Lewistown Hospital for further examination and testing. On August 15, 1995, Plaintiff was subjected to an invasive procedure known as a flexible sigmoidoscoPY. A tissue biopsy was performed. Her complaints subsequently subsided and she was discharged with on August 16, 1995, with medications. The discharge diagnosis was that of infectious enteritis. ISSUE PRESENTED SHOULD A SUMMARY JUDGMENT BE GRANTED IN THE INSTANT CASE DUE TO A FAILURE OF PLAINTIFF TO ESTABLISH EVIDENCE TYING HER ILLNESS TO THE FOOD PRESENTED BY DEFENDANT? (suggested response is negative.) ARGUMENT In support of the Motion of Summary Judgment, Defendant places great reliance upon the pennsylvania Superior Court's holding in Albert v. Alter, 381 A.2d. 459 (1977), wherein the Court reiterated that unequivocal medical testimony in necessary to establish a causal connection when there is no obvious or causal relationship between the accident and the injury. (Emphasis added.) Clearly, the Albert holding remains the law of this Commonwealth, however, the factual situation of Albert must be considered in determining the "obviousness" of any relationship. In Albert, the plaintiff complained some months later of back pain. The delay of time dulled the causal connection. In our case, Plaintiff did not consume any foods after her meal at Defendant's restaurant and, within a normal and reasonable amount of time, developed the appropriate indications of food poisoning. Upon examination the following morning, Plaintiff detected rectal bleeding. In turn she was immediately hospitalized, examined and treated. Her final discharge diagnosis was of infectious enteritis, a gastric infection. Expert testimony is not required when the injury is so immediately and directly, or naturally and probably, the result of the accident that the connection between them does not depend solely on the testimony of expert witness. Ibid. at 470. Here the question of what caused the infectious enteritis would be one answered by jury, after hearing all the testimony. Clearly, the jury should be entitled to hear the nature of Plaintiff's injuries and Plaintiff's history of the events which led to her hospitalization. The cause of the injuries is not dependent solely upon expert witnesses, but rather upon the testimony of Plaintiff. She did not suffer from any symptoms or discomfort prior to consuming the allegedly tainted food, nor has she suffered any relapse or reoccurrence of the injury in the nearly three years since the encounter. Without question, the