HomeMy WebLinkAbout97-04213
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KAREN and ROBERT J.
MIDDLETON, h/w,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
FREDA M. KEPPLEY,
Defendant
NO. 97-4213 CIVIL TERM
IN RE: PLAINTIFFS' MOTION FOR
POST-TRIAL RELIEF
BEFORE OLER. J.
AND NOW, this
ORDER OF COURT
z..catL day of July,
1998, after careful
consideration of Plaintiffs' Motion for Post-Trial Relief in the
Form of a Motion for a New Trial, and of the briefs submitted and
oral arguments presented on the matter, Plaintiffs' motion is
DENIED.
BY THE COURT,
Lisa J. Mauer, Esq.
Suite 22
The Commons at Valley Forge
P.O. Box 987-23
Valley Forge, PA 19482
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-II ..1 r
Todd B. Narvol, Esq.
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
Attorney for befendant
.,..,.. .
of said injuries, Plaintiff Karen Middleton was unable to keep her employment with Cumberland
County as a human services planner,
Plaintiff Karen Middleton is seeking compensation for past and future pain and suffering. as
well as lost wages and loss ofeaming capacity, By the time of trial, Plaintiff will have lost wages
totalling approximately $50,000.00. Plaintiffs vocational expert has calculated that Plaintiffs future
loss of wage earning capacity is between $203,000.00 and $262,000.00. Plaintiff Robert Middleton
is seeking compensation for his loss of eonsortium claim.
III. PrlDelpallssues of Liability aDd Dama!!es
P1aintiffhas requested Defendant Keppley stipulate to liability. Said request was denied and
Defendant Keppley has named Robert Middleton as an additional defendant. It is Plaintiffs position
that liability is not an issue in this case, Plaintiff Robert Middleton's vehicle had the right of way
at the intersection where the accident occurred and Defendant Keppely testified at her deposition that
the telephone pole was still blocking her view when she pulled away from the stop sign into the path
of the Middleton vehicle (Kepp1ey Deposition, Oct. IS, 1997. page 17),
IV. Lenllssues
It is expected that Defendant will stipulate to the admissibility of medical records prior to
trial.
V. W1t11t1l1es
Plaintiffs list of potential witnesses includes:
1. PlaintifJ'Karm Middleton
2. RobcI1 Middleton
3. Defendant Fnda Kcpplcy, It on CIOIt-CUIIIiIlation
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II. STATEMENT OF BASIC FACTS AS TO DAMAGES
Plaintiff Karen Middleton claims that she broke her thumb as a result of the accident and
suffered soft tissue injury in her neck and shoulder. She claims that she broke her thumb when she
instinctively threw up her right hand, and struck it on the dashboard.
Robert Middleton was not injured in the collision, but claims loss-of<onsortium damages.
Freda Keppley was not injured in the accident. Neither car suffered severe damage.
Karen Middleton claims a significant amount of lost wages as well as lost future earning
capacity.
III STATEMENT AS TO THE PRINCIPAL ISSUE OF LIABILITY AND DAMAGES
A. Liability
There is a question of comparative negligence. Defendant Keppley has joined Robert
Middleton as an Additional Defendant.
B. Damages
There are several questions as to Pliintiff's (Karen Middleton's) injuries. There may be
II question as to caUs.1tion of Pliintiff's claimed Injuries. There are questions reprdi"l the extent of
her Injuries relating to the IlcddellL There IlIso is II question as to what role preexisting injuries pYy In
Pliintilt"s current condition.
There is ill dispule as to what lost wqes /lAd loss of future Nmina OIpIlCity lie
iIItributIlbIe to the a((~ d. There IlIso is an iuue as to the Vi1I1ue of the lost wqes Ilnd lost future
NrTIinI arpIlCiIy.
2
IV SUMMARY OF LEGAL ISSUES
A. Plaintiff's medical bills are neither admissible nor recoverable. Plaintiff's medical bills
were fully covered by her first party insurance benefits and by a non ERISA - related healthcare plan.
Plaintiff may not recover these medical bills under 7S Pa.S 1722, and may not introduce these bills into
evidence. Carlson v. Bubash. 432 Pa.5uper 514,639 A,2d 458 (1994).
B. It is anticipated that Plaintiff will call a police officer to testify as an expert in the field
of human factors. The police officer is not qualified to provide such testimony.
V. IDENTITY OF WITNESSES TO BE CALLED
Defendant Freda M. Keppley intends to call some or all of the following witnesses:
1. Freda M. Keppley;
2. Karen Middleton;
3. Robert Middleton;
4. William Graham, M.D. (regarding the hand injury) (by video);
5. Perry A, Eaale, M.D.lfor the neck and shoulder complaints) (by video);
6. Ronald Sholtis. vocational expert
The parties "- informally stipulated to the authenticity of ill medical records. To the extent tIti1t it is
neces5i1IY to call any IeCOIds custodiilns of PI.Ilntiff's medical providers. Defendi1nI Keppler merves
the riaht 10 do so. Defendant ICeppIey Aha IU~lm the ri8ht to call1/lIY witnesses listed by any ocher
parties in their pretNI men'\uo..d.&,
3
VI. LIST OF EXHIBITS
1. Plaintiff's medical records;
2. Photographs and repair estimates of the cars involved in the accident;
3. Photographs of the accident scene;
4. Transcripts of the witnesses depositions;
5. Plaintiff Karen Middleton's employment records;
6. Curricula Vitae of Dr. Perry Eagle;
7. Curricula Vitae of Dr. Graham;
B. Curricula Vitae of Ronald Sholtis; and
9. Plaintiff's In\enogatoly answers.
Defendant Keppley reserves the right to introduce any exhibits listed by any other parties in their pre-
trial memoranda.
VII CURRENT STATUS OF SETTlEMENT NECOnAnONS
Plaintiff has demanded $300,000,00. Defendant Keppley has rejected this offer. Beyond this,
Def'endant Keppley is not in a position to make a counter offer.
As discussed with Judse Hoffer at the Pretrial Conference, the parties hitve made eYeIy effort to
brinl this matter to trial quickly. The matter \ViS just flied in Auaust or September of 1997. Plaintiff
IhIed the tale fat trial in MMth ell998. When Defendant KeppIey filed an objection to the listillJ,
the parties apeed 10 move the case to the IlI!ld court term, provided Defendant KeppIey would have
enoush lime to pthet her expert I1!pOrb. PImlUr -.1Cll.d the i4~.lt medi<.iaI examination with
Dr. bate on April 16, 1998. The ippOil4l....lt had been IdleduIed fat. month 61I'I1er, but had to be
4
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KAREN and ROBERT MIDDLETON, .
.
Plaintiffs .
.
.
.
v. .
.
.
.
FREDA M. KEPPLEY, .
.
Defendant .
.
.
.
v. .
.
.
.
#15 OLER
IN THE COURT OF COMMON PLEAS OF
CIVIL ACTION - LAW
ROBERT MIDDLETON, :
Additional Defendant: 97-4213 CIVIL TERM
PRE-TRIAL CONFERENCE
A pre-trial conference was held in the
above-captioned matter in the chambers of Judge Oler on
Wednesday, April 29, 1998. Present on behalf of the Plaintiffs
was Lisa J. Mauer, Esquire. Present on behalf of Defendant was
Todd B. Narvol, Esquire. Present on behalf of the Additional
Defendant was George B. Faller, Jr., Esquire.
Thi. i. a negligence action for personal
injuries to Plaintiff, Karen Middleton, who was a passenger in a
car driven by her husband, Plaintiff, Robert Middleton, which
collided with a car driven by Defendant. The accident occurred
at the intersection of Trindle Road and Middlesex Road in
Middle.ex Town.hip, cumberland county, on Deceaber 13, 1995.
Defendant's vehicle had a stop sign. plaintiff, Robert
Middleton SUe. for lo.s of consortium, and has been joined a. an
Additional Defendant.
This viII be . jury trial in Which, purauant to
an agreement of counsel, Plaintiffs will have four peremptory
challenges, Defendant will have three peremptory challenges, and
Additional Defendant will have one peremptory challenge, for a
total of eight. The estimated duration of trial is two and a
half days.
Counsel have indicated that, because of the
scheduling of a last-minute deposition, trial in this matter
should commence no earlier than Wednesday, May 20th, 1998.
Counsel have also indicated that the Court Administrator had
told them that this would not be a problem.
To the extent that any videotape depositions or
other depositions are to be shown or read to the jury and
contain objections to be ruled upon by the Court, copies of said
depositions shall be furnished to the Court, with the areas of
objection highlighted and with brief memoranda in support of
counsels' positions on those objections, not later than Monday,
May 18, 1998; provided, that in the ca.e of a deposition to be
taken of Dr. Perry Eagle, the transcript of this deposition and
memoranda shall be due not later than the morning of trial.
Counsel have advised the Court that they do not expect the
latter to contain many, if any, objections.
With re.pect to .ettlement negotiations,
plaintiff. have demanded $300,000.00 and Defendant. bave not
re.ponded with an offer to this demand.
"""' 3.30 Negligence Per Se . Violation of Statute
An Act of Assembly oflhis Commonwealth, in effect at the time this accident occurred,
provided in part:
Except when directed to proceed by a police officer, every driver of a
vehicle approaching a stop sign shall stop at the point nearest the
intersecting roadway where the driver has a view of approaching traffic on
the intersecting roadway before entering. After having stopped, the driver
shall yield the right-of.way to any vehicle in the intersection or
approaching on another roadway so closely as to constitute a hazard
during the time when the driver is moving across or within the intersection
or junction of roadways..
This Act dictates the duty of care required of someone in the same tituation as the defendant If
you rmd that there wu a violation oflhis Act, you must find the defendant negligent as a matter
law.
That duly to Itop is coupled with a duly to look in both directions before entering the intersecting
street.2
Even where the driver with the Itop tign has fully complied with her duties before entering the
inlcrlection, Idditional duties apply. The driver may proceed only with"utmost caution. "J
The driver on the through Itrcct has the right to rely on the driver with the Itop tign to obey the
law by 1tOppma. ·
Therefore, not only i. it [her] duly to Itop and look in both directions before enterina an
inlcrlection, but it is aIao [her] duty as [Ibe] moves forward and enten the intenection to
continue to look and to keep [her] car UIlder such control that [Ibe] can Itop at any moment and
avoid. coUision.'
· 75 PLC.S.A f 3323(b)
2 Henry v. T~ 224 PL Super. 372, 307 A.2d 446 (1973)
J Rowlel v. E_.iJr 350 PL 64. 31 A.2d 15.5 (1944)
· ~ \I. MIIiL 313 PL 413, 119 A.2d 53 (1956)
-
....,) I ~213Pa.Super.463,249A.2d771(1961)ciliDal&h-\l.
SlibcIJbI& 341 Pa. 260.. 19 A.2d 91 (1941)
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IN THE CXXJRr or ~ PLEAS or
ClJIBERLAND CXXNl'Y, PENNSYLVANIA
NO. 97-4213
CIVIL AcrICl+-LAW
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CORCHIN, GRAHAM, ROSATO' HAUBR, P.C.
BYI Lisa J. Mauer, Bsq.
Attorney I.D. #65426
suite Seven Valley Forge Commons
P.O. Box 987-23
valley Forge, PA 19482
Phone I 610-933-3333
Attorney for Plaintiff
KAREN AND ROBERT J. MIDDLETON, h/w
2222 Douglas Drive
CARLISLE, PA 17013
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
.
.
.
.
NO. '17- 'J.)/J &~..;.(T,.-
CIVIL ACTION - LAW
v.
:
FREDA M. KEPPLEY
366 S. MIDDLESEX ROAD
CARLISLE, PA 17013
.
.
.
.
.
.
.
.
JURY TRIAL DEMANDED
COMPLAINT
COUNT I - NEGLIGENCE
KAREN MIDDLETON v. FREDA KEPPLEY
1. Plaintiffs Karen Middleton and Robert J. Middleton,
husband and wife, are adult individuals who reside at 2222 Douglas
Drive, Carlisle, CUmberland County, Pennsylvania.
2. Defendant Freda M. Keppley is an adult individual who
resides at 366 S. Middlesex Road, carlisle, CUmberland County,
Pennsylvania.
3. On or about December 13, 1996, at or about 11:50 a.m.,
Plaintiff Karen Middleton was a passenger in a 1991 Honda Accord
station wagon driven by Plaintiff Robert J. Middleton who was
travelinq east on Trindle Road in Middlesex Township, CUmberland
County, Pennsylvania.
4. At said time, Defendant Freda Reppley was the operator of
a 1985 Buick Park Avenue at the intersection of South Middl.s.x
Road and Trindle Road, Middles.x Township, CUllberland county,
Pennsylvania. Defendant Freda Keppley pulled her vehicle out from
the stop sign and proceeded across Trindle Road into the path of
Plaintiff Robert J. Middleton's vehicle, thereby causing a
collision of the two vehicles.
5. Defendant Freda Keppley was negligent and careless in the
operation of said motor vehicle for the following reasons which
include:
a. proceeding through an intersection when
it was unsafe to do so;
b. failure to yield the right of way to an approaching
vehicle;
c. disregarding the rights, safety and position of
other vehicles on the road, including Plaintiffs
Karen and Robert Middleton; and/or,
d. failure to stop in time to avoid a collision with
the motor vehicle operated by Plaintiff Robert
Middleton.
6. As a direct and proximate result of Defendant Freda
Keppley's negligence and carelessness, and not due to any act or
failure to act on the part of Plaintiffs Karen and Robert
Middleton, said Plaintiff Karen Middleton suffered great pain,
traumatic anxiety, depression, and other injuries, some or all of
which may be permanent, including: limited range of motion and
pain in the right thumb due to a fracture of the proximal phalanx,
requirinq operative intervention, a riqht elbow contusion, severe
pain and discomfort associated with a tear of the left trapezius,
impinqement syndrome of her shoulder and cervical neck injury.
7. As a direct and proximate result of Defendant Freda
Keppley's negligence and carelessness, Plaintiff Karen Middleton
has been, and may continue to be in the future, unable to attend to
her usual habits, customs, vocation and enjoyment of life.
8. As a direct and proximate result of Defendant Freda
Keppley's negligence and carelessness, Plaintiff Karen Middleton
has been in the past, and may continue to be in the future,
required to undergo medical treatments and procedures.
9. As a direct and proximate result of Defendant Freda
Keppley's negligence and carelessness, Plaintiff Karen Middleton
has been in the past, and may continue to be in the future,
required to spend great sums of money for medical treatments and
procedures as a result of her injuries.
10. As a direct and proximate result of Defendant Freda
Keppley's negligence and carelessness, Plaintiff Karen Middleton
has been unable to engage in her occupation and therefore has in
the past and may in the future continue to suffer a loss of income
and/or loss of earning capacity,
11. Plaintiff Karen Middleton is entitled to recover damages
under the full tort option provided by the Motor Vehicle Financial
Responsibility Law, Title 75 Pa.C.S.A. 51705 et, seq.
WBBRBrORB, Plaintiff Karen Middleton hereby demands judgment
in her favor and against Defendant Freda Keppley in an amount which
does exceed the jurisdictional amount requiring arbitration
referral, plus costs and interest.
CORCHIH, GRAHAM, ROSATO , KAUBR, P.C.
BYI Lisa J. Kauer, Bsq.
Attorne1 I.D. 165426
Suite Seven Valley Forge Commons
P.O. Box 987-23
valley Forge, PA 19482
Phone I 610-933-3333
Attorney for Plaintiff
KAREN AND ROBERT J. MIDDLETON, h/w . COURT OF COMMON PLEAS
.
2222 Douglas Drive . CUMBERLAND COUNTY
.
CARLISLE, PA 17013 .
.
.
.
v. . NO.
.
.
.
FREDA M. KEPPLEY . CIVIL ACTION - LAW
.
366 S. MIDDLESEX ROAD .
.
CARLISLE, PA 17013 . JURY TRIAL DEMANDED
.
~~TIFICATE OF SERVICE
And Now, un the 31st day of July 1997, I, Lisa J. Mauer,
Esquire, a member of the Law Firm of Corchin, Graham, Rosato &
Mauer, P.C., attorneys for Plaintiffs, hereby certify that I
forwarded a copy of the Complaint by United States Mail, postage
prepaid, addressed to the following parties or attorneys of record.
Mrs. Freda M. Keppley
366 S. Middlesex Road
Carlisle, PA 17013
COROBIH, GR..\BM, ROSA'1'O , IlAUD, P.C.
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and Trindle Road, Middlesex Township, Cumberland County,
Pennsylvania.
The remainder of the allegations contained in
Paragraph 4 are denied pursuant to Pa.R.Civ.P. 1029(e).
5 (a-d). Denied pursuant to Pa.R.Civ.P. 1029(e).
6-10. Denied pursuant to Pa.R.Civ.P. 1029(e).
11. Denied. It is believed and therefore averred that
Plaintiff Karen Middleton is not entitled to recover damages under
the Full Tort Option. By way of further answer, Defendant believes
and therefore avers that Plaintiff Karen Middleton selected the
Limited Tort Option.
1mBRBPORB, Defendant Freda M. Keppley demands judgment in her
favor, together with all applicable Court costs.
COUNT II--LOSS OF CONSORTIUM
Robert Middleton v. preda X.oolev
12. Defendant incorporates by reference as though fully
stated herein the averments and denials contained in Paragraphs 1
through 11 of this Answer and New Matter.
13, Denied pursuant to Pa.R.Civ.P. 1029(e).
~, Defendant Freda M. Keppley demands judgment in her
favor. together with all applicable Court coata.
HDf anD
14. Defendant incorporates by reference as though fully
incorporated herein the averments and denials contained 1n
Paragrapl\8 1 through 13 of this Aoawer and New Matter.
15. Plaintiffs' injuries and damages, if any, were not
caused by any acts, omissions, or breaches of duty by Defendant,
but were caused in whole or in part or were contributed to by the
negligence, fault, or want of care of Plaintiffs or other third
parties.
16. Plaintiffs' causes of action are barred in whole or
in part by the Pennsylvania Comparative Negligence Statute, 42
Pa.C.S. 57102, or by the Doctrine of Comparative Negligence.
17. Any damages that Plaintiffs may be entitled to
recover in this action, which are specifically denied, are limited
to those damages which are recoverable under the provisions of the
Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.
51701, et seq.
18. Plaintiff Karen Middleton may have selected the
limited tort option under her relevant automobile insurance policy
and therefore may be precluded from recovering for pain and
suffering and other non-economic damages for any personal injuries,
which are specifically denied in this case, which injuries do not
fit within the category of .serious injury. as defined in 75
Pa,C.S. 51702.
19. The accident in this ease was not a substantial
cause of Plaintiffs' injuries. if any,
CERTIPICATE OP SERVICE
I, April L. Brown, a secretary, of the law firm of THOMAS, THOMAS, &
HAFER, do certify that I served the foregoing document on the foregoing
persons by First Class, United States Mail, postage prepaid at
Harrisburg, Pennsylvania, addressed as follows:
Lisa J. Mauer, Esquire
Corchin, Graham, Rosato & Mauer, P.C.
Suite Seven Valley Forge Commons
POB 987-23
Valley Forge, PA 19482
TBOIWI, TBOIWI " HAI'D
Date: q)~\(n
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Apr L. Brown
CORCHIN, GRAHAM, ROSATO & MAUER, P.C.
BY: LISA J. MAUER, ESQUIRE
Attorney I.D. 65426
The Commons at Valley Forge
Suite Seven, P.O. Box 987
Valley Forge, Pennsylvania 19482
(610) 933-3333
KAREN AND ROBERT J. MIDDLETON
h/w
Attorney for Plaintiffs
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
vs.
FREDA M. KEPPLEY
No. 97-4213 civil Term
JURY TRIAL DEMANDED
PLAINTIPPS' RBSPONSB TO DBPENDANT'S NEW MATTER
14. No response required.
15. Denied. Answering plaintiff is advised by counsel and
therefore avers that the allegations contained in paragraph 15 of
Defendant's New Matter are automatically deemed denied as
conclusions of law to which no responsive pleading is required.
strict proof thereof is demanded at trial, if material. It is
specifically denied that Plaintiffs' injuries and damages were not
caused by any acts, omissions, or breaches of duty by Defendant,
but were caused in whole or in part or were contributed to by the
negligence, fault, or want of care of Plaintiffs or other third
parties. To the contrary, Plaintiffs' injuries and damages are the
direct and proximate result of Defendant Freda Keppley's negligence
and carelessness, and not due to any act or failure to act on the
part of Plaintiffs Karen and Robert Middleton.
16. Denied.
Answering plaintiff is advised by counsel and
therefore avers that the allegations contained in paragraph 16 of
Defendant's New Matter are automatically de..ed denied .s
conclusions of law to which no responsive pleading is required.
.I
strict proof thereof is demanded at trial, if material. It is
specifically denied that Plaintiff's causes of action are barred in
whole or in part by the Pennsylvania Comparative Negligence statute
or by the Doctrine of Comparative Negligence. To the contrary,
Plaintiffs' injuries and damages are the direct and proximate
result of Defendant Freda Keppley's negligence and carelessness,
and not due to any act or failure to act on the part of Plaintiffs
Karen and Robert Middleton.
17. Denied. Answering plaintiff is advised by counsel and
therefore avers that the allegations contained in paragraph 17 of
Defendant's New Matter are automatically deemed denied as
conclusions of law to which no responsive pleading is required.
Strict proof thereof is demanded at trial, if material. It is
specifically denied that any damages that Plaintiffs may be
entitled to recover in this action are limited to those damages
which are recoverable under the provisions of 75 Pa.C.S.S1701, et
seq. To the contrary, Plaintiffs are entitled to be compensated
for, among other things, their pain and suffering, loss of
enjoyment of life's pleasures, and other non-economic damages they
may have suffered.
18. Denied. Answering plaintiff is advised by counsel and
therefore avere that the allegations contained in paragraph 18 of
Defendant'. New Matter are automatically deemed denied as
conclusions of law to which no responsive pleading is required.
Strict proof thereof i. demanded at trial, if material. It is
specifically denied that Plaintiff'. injuries do not fit within the
category of -.eriou. injury- .s defined in 75 Pa.C.S. 51702 and
,
that she may be precluded from recovering for pain and suffering
and other non-economic damages for her personal injuries. To the
contrary, Plaintiff's serious and permanent injuries clearly fall
into the category of "serious injury" as defined in 75 Pa.C.S.
51702.
19. Denied. Answering plaintiff is advised by counsel and
therefore avers that the allegations contained in paragraph 19 of
Defendant's New Matter are automatically deemed denied as
conclusions of law to which no responsive pleading is required.
Strict proof thereof is demanded at trial, if material. It is
specifically denied that the accident in this case was not a
substantial cause of Plaintiffs' injuries. To the contrary, this
accident, which was caused by the negligence and carelessness of
Defendant Freda Keppley, was the direct and proximate cause of
Plaintiff's injuries and damages.
WHEREFORE, Plaintiffs Karen and Robert Middleton hereby demand
judgment in their favor and against Defendant Freda Keppley in an
amount which exceeds the jurisdictional amount requiring
arbitration referral, plus costs and interest.
coaCHI., UIUIJUC, a08A'l'O 'HAUD, P.C.
By:
0', J ,I '~
I.V....\.. . J lwi I, -
ILis. J. ii, ue~,f Esquire
Attorney'I.D. 65426
The Commons at Valley Forge
Suite Seven, P.O. Box 987-23
Valley Forge, Pennsylvania 19482
(610) 933-3333
Attorney for Plaintiff{s)
-
VBRII'ICATIOIf
I, Lisa M. Mauer, Esquire, hereby state that I am the attorney
for the Plaintiff in this Action and verify that the statements
made in the foregoing document are true and correct to the best of
my knowledge, information and belief.
I understand that the statements therein are made subject to
the penalties of 18 Pa. C.S. Section 4904 relating to unsworn
falsification to authorities.
I am authorized to take this
verification in this absence of my client.
I'
\-:)-t( J ~fr~iii.:U
., J.ISA J. iffUER ESQUIRE
Date:
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TBOICA8 I TBOICA8 . IlAl'IR
by. Todd B. Harvol
I.D. Ho. 42136
305 H. Front .tr.at
P.O. Box ",
Barri.burg, PA 17101-0'"
(7171 237.7133
KAREN AND ROBERT J.
MIDDLETON, h/w,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY I PENNSYLVANIA
No. 97-4213 Civil Term
v.
Civil Action - Law
FREDA M. KEPPLEY,
Defendant
JURY TRIAL DEMANDED
AMBNDBD NEW MATTBR :IN THB NATURB or A CROSSCLADI
JOINING PLAINTIPr ROBBRT MIDDLETON AS AN ADDITIONAL DBPBHDANT
Defendant Freda Keppley asserts this New Matter pursuant to
Pa.R.Civ.P. 2252(d), and joins Plaintiff Robert Middleton as an
Additional Defendant in the action on the following basis:
1. Additional Defendant Robert Middleton was at all times
pertinent hereto the operator of the 1991 Honda Accord station
wagon that collided with Defendant Freda M. Keppley's automobile.
on December 13. 1995, near the intersection of South Middlesex Road
and Trindle Road. Middlesex Township. CUmberland County.
Pennsylvania.
2. If it is determined that Plaintiffs suffered injuries and
damages as alleged in their Complaint. which allegations Defendant
Freda Xeppley denies, the injuries and damages were caused solely
by or were contributed to in part by Additional Defendant Robert
Middleton'. negligence or carele..na.. inl
A. Failing to avoid the collision with Defendant Freda
Keppley's automobile;
B. Driving at a speed that was too fast for conditions;
c. Failing to remain alert; and/or
D. Failing to bring his vehicle to a stop before striking
Defendant Keppley's automobile.
3. If it is determined that Plaintiffs are entitled to
recover any or all of the damages set forth in the Complaint I which
is specifically denied, then Additional Defendant Robert J.
Middleton is solely responsible to Plaintiffs and is alone liable.
jointly liable or liable over to Defendant Freda Keppley for
contribution. indemnification or both.
~PORB. Defendant Freda Keppley respectfully requests that
if it is determined that Plaintiffs are entitled to recovery. that
judgment be entered solely against Additional Defendant Robert
Middleton. In the alternative. if it is determined that Plaintiffs
are entitled to recovery against Defendant Freda Keppley. which is
specifically denied. then Defendant Freda Keppley respectfully
requests that judgment be entered against Additional Defendant
Robert Middleton and/or persons other than Defendant Freda Keppley
.
TBOICU. TBOICA8 . IlAl'IR
bya Todd B, Harvel
I.D. Ho. 42136
305 H. rront Street
P.O. Box ,,,
Barri.burg. PA 17101-0'"
(7171 237-7133
Attorney. for Def.ndant rr.da N. l.ppley
KAREN AND ROBERT J. MIDDLETON.
h/w.
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY.
PENNSYLVANIA
v.
No. 97-4213 Civil Term
FREDA M. KEPPLEY.
Defendant
Civil Action - Law
JURY TRIAL DEMANDED
PETITION OP DBPIIHDAHT _IOU M. UPPLBY POR LOVE TO AMBHD
NEW MATTBR TO JO:IN PLAINTIPP ROBOT J. MIDDLBTOH
AS AN ADDITIONAL DBPBHDANT UHDBR Pa.R.Clv.P. 2252(d)
AND HOW. Defendant Freda M. Keppley. by and through her
attorneys, Thomas. Thomas , Hafer. moves this Court Pursuant to
Pa.R.Civ.P. 1033 for Leave to .\mend its New Matter to Join
Plaintiff Robert J. Middleton as an Additional Defendant under
Pa.R.Civ.P. 2252(d) and, in support thereof, avers the followingl
1. On or about August 5. 1997. Plaintiff filed aga1lU1t
Defendant Keppley a Complaint alleging personal injury, which
allegedly occurred .. a result of a December 13. 1995 traffic
accident at the intersection of Trindle and SOuth Middlesex Roada.
Middlesex TownshiP. CUmberland COUnty. Pennaylvania. A copy of
Plaintiff's Complaint i. attached a. Exhibit "A."
2. The Sheriff ..rved th. CclIplaint on DefeMant Keppley Oft
August U. lU'.
3. Counsel for Defendant Keppley received the file on or
about August 26, 1997.
4. On September 8, 1997, Defendant Keppley timely filed her
Answer & New Matter to Plaintiffs' Complaint. A copy of the Answer
and New Matter is attached hereto as Exhibit "B."
5. In New Matter, Defendant Keppley alleged that Plaintiffs'
injuries and damages, if any, were not caused by Defendant
Keppley's negligence, but were caused in whole or in part or were
contributed to by the negligence of the Plaintiffs themselves.
6. The accident occurred at a dangerous intersection.
Plaintiffs were travelling on Trindle Road (with Plaintiff Robert
Middleton driving), and Defendant Keppley was travelling on South
Middlesex Road. Defendant Keppley was attempting to cross Trindle
Road at an intersection where there are numerous visual
obstructions.
7. Rather than join Additional Defendants without
investigation, defense counsel asked an investigator to examine the
intersection for the purpose of determining whether any Additional
Defendants should be joined.
B. That investigation has now been conducted I and the
defense has decided that it does not wish to join any non-party
persons as Additional Defendants (such as the Department of
Tranaportation), but rather feels that Plaintiff Robert Middleton
now should be joined aa an Additional Defendant for failing to
avoi.d the accident.
IxNbIt A
CORCHIN, GRAHAM, ROSATO , HAUER, P.C.
By: Lisa J. Kauer, Esq.
Attorney I.D. #65426
suite Seven Valley Forge Commons
P.O. Box 987-23
Valley Forqe, PA 19482
Phone: 610-933-3333
Attorney for Plaintiff
KAREN AND ROBERT J. MIDDLETON, h/w
2222 Douglas Drive
CARLISLE, PA 17013 :
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
:
v. .
.
.
NO.
:
FREDA H. KEPPLEY
366 S. MIDDLESEX ROAD
CARLISLE, PA 17013
:
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
COMPLAINT
COUNT I - NEGLIGENCE
KAREN MIDDLETON v. FREDA KEPPLEY
1. Plaintiffs Karen Middleton and Robert J. Middleton,
husband and wife, are adult individuals who reside at 2222 Douglas
Drive, Carlisle, cumberland County, Pennsylvania.
2. Defendant Freda H. Keppley is an adult individual who
1/
resides at 366 S. Middlesex Road, carlisle, cumberland County,
o
3. On or about December 13, 199~ at or about 11:50 a.m.,
Plaintiff Karen Middleton was a passenger in a 1991 Honda Accord f\
station wagon driven by Plaintiff Robert J. Middleton who was
,-
Pennsylvania'.
, '
,
traveling east on Trindle Road in Middlesex Township, CUmberland
County, Pennsylvania.
4. At said tiae, Defendant Freda Keppley wa. the operator of
a 1985 Buick Park Avenue at the inter.ection of South Middle.ex
Road and Trindle Road, Middle.ex Town.hip, CUII!lerland crl~l\vED
lUG 25 '991
HBG CLAIMS
f>
1\
Pennsylvania. Defendant Freda Keppley pulled her vehicle out from
the stop sign and proceeded across Trindle Road into the path of
Plaintiff Robert J. Middleton's vehicle, thereby causing a
collision of the two vehicles. i )-,
5. Defendant Freda Keppley was negligent and careless in the
operation of said motor vehicle for the following reasons which
include:
a. proceeding through an intersection when
it was unsafe to do so;
'1 (lJ Q) b.
\')
failure to yield the right of way to an approaching
vehicle;
c.
disregarding the rights, safety and position of
other vehicles on the road, including Plaintiffs
Karen and Robert Middleton; and/or,
d. failure to stop in time to avoid a collision with
the motor vehicle operated by Plaintiff Robert
Middleton.
6. As a direct and proximate result of Defendant Freda
Keppley's negligence and carelessness, and not due to any act or
,;'\
.:. ~ failure to act on the part of Plaintiffs Raren and Robert
" :'
Middleton I said Plaintiff Raren Middleton suffered great pain,
trauaatic anxiety, depression, and other injuries, so.e or all of
which aay be permanent, including: limited ranqe of motion and
pain in the right thumb due to a fracture of the proximal phalanx,
requirinq operative intervention, a right elbow contusion, severe
pain and discoafort associated with a tear of the left trapezius,
iapinqe..nt syndroae of her shoulder and cervical neck inj~EJVED
AUG 2 5 1997
"leG CLAIMS
7. As a direct and proximate result of Defendant Freda
Keppley's negligence and carelessness, Plaintiff Karen Middleton
has been, and may continue to be in the future, unable to attend to
her usual habits, customs, vocation and enjoyment of life.
8. As a direct and proximate result of Defendant Freda
Keppley's negligence and carelessness, Plaintiff Karen Middleton
has been in the past, and may continue to be in the future,
required to undergo medical treatments and procedures.
9. As a direct and proximate result of Defendant Freda
Keppley's negligence and carelessness, Plaintiff Karen Middleton
has been in the past, and may continue to be in the future,
required to spend great sums of money for medical treatments and
procedures as a result of her injuries.
10. As a direct and proximate result of Defendant Freda
Keppley's negligence and carelessness, plaintiff Karen Middleton
has been unable to engage in her occupation and therefore has in
the past and may in the future continue to suffer a loss of income
.
,\ '.
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andlor loss of earning capacity.
11. Plaintiff Karen Middleton is entitled to recover damages
under the full tort option provided by the Motor Vehicle Financial
, ,
) Responsibility Law, Title 75 Pa.C.S.A. 51705 et. seq.
WBIRErORE, Plaintiff Karen Middleton hereby demands judqment
in her favor and against Defendant Freda Keppley in an amount which
does exceed the jurisdictional amount requiring arbitration
referral, plus costs and interest.
RICI!UVED
AUG 2 5 1997
HBG CLAIMS
_3G.~~'_+'-.'_
VERIFICATION
I, Karen Middleton, Plaintiff in the above referenced matter,
verify that the facts set forth in the foregoing Complaint are true
and correct to the best of my knowledge, information and belief.
I understand that false statements herein are made subject to the
penalties of 18 Pa.C.S. 34904 relating to unsworn falsification to
authorities.
...
~J,M( ;7JI/di{pl'/~
KAREN MIDDLETON
Dated: tf<t/-'T,:1. /191...,
J
RICIIVID
AUG 2!1i 1997
HBG CLAIMS
VERIFICATION
I I Robert J. Middleton, Plaintiff in the above referenced
matter, verify that the facts set forth in the foregoing Complaint
are true and correct to the best of my knowledge, information and
belief. I understand that false statements herein are made subject
to the penalties of 18 Pa.C.S. ~4904 relating to unsworn
falsification to authorities.
9,~ 9-. m~.:uA-./~
-ROBERT J. !<<DDLETON
Dated: t&1"J ~J /'?'1(,
ftlCIIVlD
lI.II6 25 1997
.-.t:13 CLAIMS
~.
moMAS. moMAS " IIAFEIl
by: Todd B. Nonol
I.D. No. 42136
305 N. Froal Street
P.O. lIDs '"
Harrisblll'J. PA 17101-0999
(717) 237-7133
KAREN AND ROBERT J, MIDDLETON.
hlw.
Plaintiffs
v.
FREDA M. KEPPLEY.
Defendant
To: Karen and Robert 1. Middleton
c/o Lisa J. Mauer, Esquire
Corchin. Graham. RosaIo &. Mauer. P.C.
Suite Seven Valley Forse Commons
POB 987-23
Valley Forge. PA 19482
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY.
PENNSYLVANIA
No, 97-4213 Civil Tenn
Civil Action. Law
JURY TRIAL DEMANDED
NOTICE TO PI.1U.n
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Y 011 are hereby notified to plead to !be enclosed New Maner witbin twenty (20) days of service
hereof or !be relief requested lIIIY be entered apinst you.
Dale: '/1/11
moMAS, m~ '" ~
By: ~~~
Todd B. Narvol
1.0. No. 42136
)OS North Froat Street
P.O. Boa 999
Harrisburt. PA 17108
,-
and Trindle Road, Middlesex Township. Cumberland County,
Pennsylvania.
The remainder of the allegations contained in
Paragraph 4 are denied pursuant to Pa.R.Civ.P. 1029(e).
5 (a-d). Denied pursuant to Pa.R.Civ.P. 1029(e).
6-10. Denied pursuant to Pa.R.Civ.P. 1029(e).
11. Denied. It is believed and therefore averred that
Plaintiff Karen Middleton is not entitled to recover damages under
the Full Tort Option. By way of further answer, Defendant believes
and therefore avers that Plaintiff Karen Middleton selected the
Limited Tort Option.
WHEREFORE, Defendant Freda M. Keppley demands judgment in her
favor, together with all applicable Court costs.
COUNT It--LOSS OP CONSORTIUM
Robert Middleton v. preda Xeoolev
12. Defendant incorporates by reference as though fully
stated herein the averments and denials contained in Paragraphs 1
through 11 of this Answer and New Matter.
13. Denied pursuant to pa.R.Civ.P. 1029(e).
MHZlIPOas, Defendant Freda M. Keppley demands judgment in her
favor, together with all applicable Court costs.
KIM MATTD
14. Defendant incorporates by reference.. though fully
incorporated herein the averments and denial, contained in
Paragraphs 1 through 1) of this Answer and New Matter.
15. Plaintiffs' injuries and damages, if any, were not
caused by any acts, omissions, or breaches of duty by Defendant.
but were caused in whole or in part or were contributed to by the
negligence, fault. or want of care of Plaintiffs or other third
parties.
16. Plaintiffs' causes of action are barred in whole or
in part by the Pennsylvania Comparative Negligence Statute, 42
Pa.C.S. 57102, or by the Doctrine of Comparative Negligence.
17. Any damages that Plaintiffs may be entitled to
recover in this action, which are specifically denied, are limited
to those damages which are recoverable under the provisions of the
Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.
51701. et seq.
18. Plaintiff Karen Middleton may have selected the
limited tort option under her relevant automobile insurance policy
and therefore may be precluded from recovering for pain and
suffering and other non-economic damages for any personal injuries,
which are specifically denied in this case, which injuries do not
fit within the category of .serious injury. as defined in 75
Pa.C.S. 5170:1.
19. The accident in this case was not. a subst.antial
cause of Plaint.iffs' injurie., if any.
visual obstructions.
7. Denied. Answering Plaintiff, after reasonable
investigation, presently lacks sufficient knowledge and/or
information to admit or deny the allegations contained in paragraph
7 of the Defendant's Petition and strict proof thereof is demanded
at trial, if material.
8, Denied. Answering Plaintiff, after reasonable
investigation, presently lacks sufficient knowledge and/or
information to admit or deny the allegations contained in paragraph
8 of the Defendant's Petition and strict proof thereof is demanded
at trial, if material.
9. Denied. It is specifically denied that Defendant's Motion
poses no undue prejudice to Plaintiff, Robert Middleton and that
the existing New Matter alerts him that Defendant Keppley's defense
includes the contention that Robert Middleton was causally
negligent in this accident. To the contrary, Plaintiff Robert
Middleton was in no way causally negligent in this accident since
it was Defendant Keppley who committed a stop sign violation which
caused the accident.
WHEREFORE, plaintiffs, Robert and Karen Middleton respectfully
request this Honorable Court deny Defendant's Petition to AIIand har
Naw Natter to Join Plaintiff, Robert Middleton aa an Additional
Defendant,
COIlCIlt., ..,llDJIl. aoeA'I'O' DUD, ..C.
.
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KAREN and ROBERT J. MIDDLETON,
h/w,
Plaintiffs
v.
FREDA M. KEPPLEY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
NO. 97-4213
CIVIL TERM
JURY TRIAL DEMANDED
v.
ROBERT J. MIDDLETON,
Additional Defendant
AND NOW, this
ORDBR
day of
, 1998, upon
consideration of Plaintiffs' Motion to Strike this matter from the
trial list, and any response thereto, it is hereby Ordered that
said Motion is granted and that the above-captioned case shall be
stricken from the March 16, 1998 trial list.
BY THE COURT:
J.
KAREN and ROBERT J. MIDDLETON,
h/w,
Plaintiffs
v.
FREDA M. KEPPLEY,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
NO. 97-4213
CIVIL TERM
JURY TRIAL DEMANDED
v.
ROBERT J. MIDDLETON,
Additional Defendant
MOTION TO STRIU CASE PROM TRIAL LIST
AND NOW, Defendant Freda M. Keppley, by and through her
attorneys, Thomas, Thomas & Hafer, files this Motion to Strike the
case from the trial list, and in support thereof avers the
following I
1. On January 20, 1998, Plaintiffs listed this matter for
trial during the March 16, 1998 term.
2. In the Praecipe, Plaintiffs' counsel certified that the
case is ready for trial.
3. The case is not ready for trial.
4. The pleadings in this case have been closed for less than
two I\IOnths.
5. The following is a list of the pleadings and when each
was filedl
(a) Plaintiffs' Complaint - 8/5/97:
(bl Defendant's An_wer and New Matter - 9/8/97:
(e) Plaintiff'_ Reply to Defendant'. New Matter - 9/30/971
(d) Defendant' _ Amended New Matter joining Plaintiff, Robert
Middleton as an Additional Defendant . 11/24/971
(e)
6.
and the
(a)
(b)
(c)
(d)
(e)
(f)
(g)
7.
Additional Defendant's Reply to Keppley's New Matter.
12/18/97.
The parties began discovery before the pleadings closed,
following took place on the following dates:
Plaintiff served Interrogatory Answers on or about
October 17, 1997;
Defendant served discovery responses on or about October
29, 1997;
Defendant took Plaintiffls deposition on October 21,
1997;
Defendant requested Plaintiff's medical records from
numerous sources on November 10, 1997.
Plaintiff, Karen Middleton submitted to an independent
medical examination on December 3, 1997;
Plaintiffs took the deposition of a police officer on
December 11, 1997;
Defendant produced numerous medical records on January
27, 1998.
On or about January 12, 1998, Plaintiff served her final
expert reports, including a report from an orthopedic surgeon, and
a report from a vocational expert.
8. Defendant needs additional discovery, including the
following:
(a) Production of Plaintiff Karen Middleton's previous x-rays
and submission by Plaintiff Karen Middleton to a new x.
ray of her hand, to be evaluated by Dr. William Graham,
who performed the independent medical examination on
December 3, 1997. (Defendant has twice requested that
Plaintiff comply with these requests, and that it appears
that Defendant must file a Motion to Compel, which will
be filed contemporaneously with this Motionl;
(b) Defendant requires a vocational evaluation, (which
logically cannot be completed until Dr. Graham completes
his evaluation, which itself cannot be completed until
Plaintiff submits her prior x-rays and submits to new x-
rays) .
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6. Defendant had Plaintiff Karen Middleton undergo an
independent medical examination by Dr. William Graham on December
3, 1997.
7. Subsequently, Dr. Graham indicated that he wished to see
Plaintiff's prior x-rays and wished to have her undergo another x-
ray of her hand to address the issue of future impairment and
treatment. (Dr. Graham provided Plaintiff with a prescription for
the new x-ray) .
8. Defendant also wishes to use this information as part of
a vocational evaluation, to rebut Plaintiff's expert reports.
9. To date, Defendant has been unable to obtain Plaintiff's
prior x-ray films from Plaintiff's treating physician -- who has
stated that Plaintiff took her x-rays from his office and
Plaintiff has refused to undergo another x-ray study.
10. Defendant has good cause for requesting that Plaintiff
comply with the requests of Dr. Graham.
11. As the Court can see from Dr. Graham's preliminary
report, which is attached hereto as Exhibit "AW I Dr. Graham
believes that his additional inquiry will cast light on the future
status of Plaintiff's disability, or lack thereof, and also the
possibility of future corrective treatment.
12. Defendant's vocational expert, Ronald P. Sholtis, H.Ed.,
is reviewing Plaintiff's employment records, her deposition
transcript, and Plaintiff's expert reports, but has indicated that
he "'iabes to have a full report trotll Dr. Graham before he (Sholtis)
issu.s hi. report.
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Production of Documents stated at paragraph #6 that "videotaped
,
surveillance can be viewed at the Law Offices of Thomas, Thomas
and Hafer or in the alternative a copy can be obtained at
Plaintiff's expense." (See Exhibit B attached hereto.)
4. On November 3, 1997 Plaintiff sent a letter to defense
counsel requesting that said surveillance tape be produced at
Plaintiff's expense. (See Exhibit C attached hereto.)
5. To date, no surveillance tape has been produced.
6. On December 3, 1997 Plaintiff was examined by the
defense medical expert I Dr. William Graham.
7. To date, Dr. Graham's report has not been produced.
8. On October 14, 1997, Plaintiffs' Supplemental Request
for Production of Documents was served upon defendant. (See
Exhibit D attached hereto.)
9. Said document requested "all reports, documents,
photographs and/or videos prepared by the investigator hired by
Defendant as indicated in paragraph 7 of Defendant's Petition for
Leave to Amend New Matter." (See Exhibit E attached hereto.)
10. On Jan. 15, 1998 Defendant served Defendant's Response
to Plaintiffs' Supplemental Request for Production of Documents
upon plaintiff. (See Exhibit F attached hereto.)
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To Defendant:
You are hereby notified to
plead to the enclosed
Request to Produce within
thirty days from the service
hsreof or a default jUdqment
may be entered against you.
Attorney for Plaintiff
CORCHIN, GRAHAM, ROSATO & MAUER, P.C.
BY: LISA 3. MAUER I ESQUIRE
Attorney 1.0. 65426
The Commons at Valley Forge
Suite Seven, P.O. Box 987
Valley Forge, Pennsylvania 19482
(610) 933-3333
Attorney for Plaintiffs
KAREN AND ROBERT 3. MIDDLETON
h/w
: COURT OF COMMON PLEAS
: CUMBERLAND COUNTY
vs.
.
.
FREDA M. KEPPLEY
: No. 97-4213 Civil Term
JURY TRIAL DEMANDED
PLAINTIFFS' REOUEST FOR PRODUCTION OF DOCUMENTS ADDRESSED TO
DEFENDANT. FREDA M. KEPPLEY
Pursuant to Pa.R.C.p. 4009, please produce (or inspection and
copying at the offices of CORCHIN, GRAHAM, ROSATO , MAUER, 1220
Valley Forge Rd., Suite 7, Valley Forge, PA 19482:
1. All photographs and/or diagrams of the area involved in
this accident or occurrence, the locale or surrounding area of the
site of this accident or occurrence, or any other matter or things
involved in this accident or occurrence.
2. All property damage estimates rendered for any object
belonging to the d.efendant which was involved in this accid4lnt or
occurrence.
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3. All interoffice memoranda between representative of
defendant's insurance carrier or memoranda of defendant's
insurance carrier's file concerning the injuries sustained by the
plaintiff.
4. All interoffice memoranda between representative of
defendant's insurance carrier or memoranda to defendant's
insurance carrier's file concerning the manner in which the
accident occurred.
5. A copy of any written accident report concerning this
accident or occurrence signed by or prepared by defendant for
defendant's insurance carrier or defendant's employer.
6. All photographs and/or motion pictures of any and all
surveillance of plaintiff performed by anyone acting on behalf of
defendants, defendant's insurer and/or defendant's attorney.
7. All photographs taken of defendant's motor vehicle which
depict any damage to said vehicle which was sustained as a result
of this accident.
8. Any and all reports, writings, memoranda, reprographic
cards and other writinqs, lists or compilations of plaintiff and
others with similar names as indexed by the Metropolitan Index
Bureau, Central Index Bureau of any other Index Bureau in
Possession of the defendants or defendant's insurance carrier.
9. Any and all copies of reports, correspondence, memoranda
and writinqs rendered by any expert witness employed or consulted
by defendant or anyone actinq on defendant'. behalf concerninq
this ca.e.
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CORCHIN, GRAHAM, ROSATO & MAUER, P.C.
BY: LISA J. MAUER, ESQUIRE
Attorney I.D. 65426
The Commons at Valley Forge
Suite Seven, P.O. Box 987
Valley Forge, Pennsylvania 19482
(610) 933-3333
KAREN AND ROBERT J. MIDDLETON
h/w
Attorney for Plaintiffs
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
vs.
.
.
No. 97-4213 Civil Term
JURY TRIAL DEMANDED
FREDA M. KEPPLEY
.
.
PLAINTIFFS' SUPPLEMENTAL REOUEST FOR PRODUCTION OF
DOCUMENTS ADDRESSED TO DEFENDANT. FREDA M. KEPPLEY
Pursuant to Rule 4009 of the Pennsylvania Rules of civil
Procedure, the plaintiffs, Karen and Robert Middleton in this
action, requests that the defendant, Freda M. Keppley, produce
and permit the requesting plaintiffs or a representative to
inspect and copy the following:
(This Request is continuing to the extent required by Rule
4007.4 of the Pennsylvania Rules of civil Procedure and,
accordingly, any document or things obtained subsequent to the
filing of your Response, which pursuant to said Rules, would
require you to supplement your reply, is to be supplied by
Supple.ental Response.)
Any and all docuaents (including vritings, drawings, graphs,
charts, photographs, phono-records, and other colllpllations of
data frea Which inforaation can be obtained, translated, if
nece.sary, by the respondent through detection devices into
reasonable usable fora) of:
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TBOKAS, TBOKAS . BUB.
by. Toelel I. S&I'"ol
I.D. So. 42136
305 S. ProDt .treet
P.O. Box '"
Barri.burg, PA 17101-0'"
(7171 237-7133
Attorney. for DefeDelant Preela N. ..pp1ey
KAREN AND ROBERT J. MIDDLETON,
h/w,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
No. 97-4213 Civil Term
Civil Action - Law
v.
FREDA M. KEPPLEY,
Defendant
JURY TRIAL DEMANDED
PETITION or DBPBHDANT "1m... N. DPPLBY POR LnVll TO AMmm
NBW MATTBR TO JOIN PLAIH'l'IPP ROBOT J. MIDDLrroH
AS AM ADDITiO~ D.PBHD~ UNDER Pa.R.Civ.P. 2252(d)
AND NON, Defendant Freda M. Keppley, by and through her
attorneys, Thomas, Thomas & Hafer, moves this Court Pursuant to
Pa.R.Civ.P. 1033 for Leave to Amend its New Matter to Join
Plaintiff Robert J. Middleton as an Additional Defendant under
Pa.R.Civ.P. 2252(dl and, in support thereof, avers the following:
1. On or about August 5, 1997, Plaintiff filed against
Defendant lCeppley a Complaint alleging personal injury, which
allegedly occurred as a result of a December 13. 1995 traffic
accident at the intersection of Trindle and South Middlesex Roads,
Middle.ex Township, CUmberland County, Pennsylvania. A copy of
Plaintiff'. Complaint ie attached as Exhibit -A.-
2. The Sheriff s.rved the O:lIlIplalnt on Defendant Keppley on
August 19. 1"'.
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3. Counsel for Defendant Keppley received the file on or
about August 26, 1997.
4. On September 8, 1997, Defendant Keppley timely filed her
Answer & New Matter to Plaintiffs' Complaint. A copy of the Answer
and New Matter is attached hereto as Exhibit "B."
5. In New Matter, Defendant Keppley alleged that Plaintiffs'
injuries and damages, if any, were not caused by Defendant
Keppley's negligence, but were caused in whole or in part or were
contributed to by the negligence of the Plaintiffs themselves.
6. The accident occurred at a dangerous intersection.
Plaintiffs were travelling on Trindle Road (with Plaintiff Robert
Middleton driving), and Defendant Keppley was travelling on South
Middlesex Road. Defendant Keppley was attempting to cross Trindle
Road at an intersection where there are numerous visual
obstructions.
7. Rather. than join Additional Defendants without
investigation, defense counsel asked an investigator to examine the
intersection for the purpose of determining whether any Additional
Defendants should be joined.
8. That investigation has now been conducted, and the
defense has decided that it does not wish to join any non-party
persons as Additional Defendants (such as the Depart1llent of
Transportation), but rather feel. that Plaintiff Robert Middleton
now should be joined as an Additional Defendant for failing to
avoid the accident.
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VBRIPICATION
Subject to the penalties of 18 Pa. C.S.A. 54904 relating to
unsworn falsification to author~ties, I hereby certify that the
facts set forth in the foregoing document are true and correct to
the best of my knowledge, information and belief; and that I am
authorized to execute this verification on behalf of Defendant.
~~~
TODD B. NARVOL
Dated: ~
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KAREN and ROBERT J. MIDDLETON,
h/w,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
NO. 97-4213
Plaintiffs
v.
CIVIL TERM
FREDA M. KEPPLEY,
Defendant
JURY TRIAL DEMANDED
v.
ROBERT J. MIDDLETON,
Additional Defendant
DBPENDANT'S RESPONSB TO PLAINTIFFS'
MOTION TO COMPBL DISCOVERY
AND NOW, Defendant Freda M. Keppley, by her attorneys, Thomas,
Thomas & Hafer, files this response to Plaintiffs' Motion to Compel
Discovery and in support thereof avers the following:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5.
Denied.
Defendant served upon Plaintiff all medical
records obtained and a copy of the videotape on January 27, 1998.
6. Admitted.
7. Admitted in part and denied in part. Dr. Graham has not
yet produced a final report, because he has requested that
Plaintiff submit her x-rays, undergo another x-ray. and under go a
functional capacity evaluation. However, in the interest of moving
this matter forward, Defendant is with this Answer producing a copy
of Dr. Graham'. preliminary report in which Dr. Graham requested
that Plaintiff provide the x-rays, undergo a new x-ray, and undergo
a functional capacity evaluation.
.
8. Denied. Plaintiff served her Supplemental Request on
November 17, 1997.
9. Admitted.
10. Admitted.
11. Admitted.
12. Denied.
Defendant served a copy of her entire
investigative file on Plaintiff with her discovery responses, which
were served by first class mail on October 29, 1997.
13. Admitted. By way of further answer, Defendant avers that
she sent letters to numerous healthcare providers on November 10,
1997, and in said letters, Defendant requested copies of
Plaintiff's medical records.
14. Denied.
By letter dated January 27, 1998, Defendant
served copies of Plaintiff's medical records and her insurance
carrier's first party file upon Plaintiff. Defendant is in the
process of sending copies of the employment records to Plaintiff's
counsel contemporaneously with the filing of this response.
WHEREFORE, Defendant respectfully request your Honorable Court
to deny Plaintiffs' Motion to Compel.
Respectfully submitted,
THOMAS, THOMAS & HAFER, LLP
~~$
By:
Todd B. Narvol, Esquire
305 North Front Street
Post Office Box 999
Harrisburg, PA 17108-0999
(717) 237-7133
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CORCHIN, GRAHAM,' ROSATO & MAUER, P.C.
BY: LISA J. MAUER, ESQUIRE
Attorney I.D. 65426
The Commons at Valley Forge
Suite Seven, P.O. Box 987
Valley Forge, Pennsylvania 19482
(610) 933-3333
Attorney for Plaintiffs
KAREN AND ROBERT J. MIDDLETON
h/w
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
vs.
FREDA M. KEPPLEY
No. 97-4213 Civil Term
JURY TRIAL DEMANDED
PRABCIPB POR ENTRY OP APPBARANCB
TO THE PROTHONOTARY I
Please enter my appearance for Plaintiffs in the above-
captioned matter pursuant to local Rules.
CORCHIN, GIlAHAM. ROSATO" KltJBR, P.C.
By:
..
Ronald M. Gr ham, Esquire
Attorney .D. 64483
The COllIllO s at Valley Forge
Suite Seven, P.O. Box 987-23
Valley Forge, Pennsylvania 19482
(610) 933-3333
Attorney for Pla1ntiff(s)
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Q: You Indicated that she has got a two-third reduction in
mobility of her one loint in her thumb, that that didn't renect the
entire thumb. Then there was another percentage with regard
to her right hand. Could you put that into an overall perspective
for us, please?
A: Yes. If one uses the AMA Guidelines of Permanent Impairment
In this situation in calculating the impairment of the thumb based
on a decreased mobility of the joints, the limitation is 45 percent of the
thumb, which again, using the same guidelines, translates into 18
percent loss as far as the - or 18 percent impairment ofthe hand.
The reason that one has these quote 'significant" unquote apparent
changes in joint motion and not as dramatic an impact on the whole
hand is that the thumb functions largely as a post And even a completely
stiff thumb, which Mrs. Middleton does not have, can be a very
functional thumb in hand usage.
Q: What does 18 percent impairment translate int07 She's not
disabled from working as a result of that, is she?
A;. No, she is not. She is not disabled from the use of that hand
as a consequence of that 18 percent.
(N.T. Graham Trial Deposition, p. 26. Ii 5 to p. 27, Ii 2).
6. Admitted that the Court instructed the jury consistent with Pennsylvania
Suggested Standard Jury Instruction 8.020 (eN.). The Court read the instruction verbatim as
stated in the Standard Suggested Jury Instructions. That instruction clearly and property states
the threshold for aerious Impairment in limited tort option cases. such as the present case.
7. Admitted that Plaintiffs objected to the jury instruction. However, Plaintiffs did not
at any time ntqUeSt partial aurnmaty judgment or s directed verdict on the issue of serious
Impairment. Consequently, PIaintitfs waived the issue.
8. AdmIlted that PtaIntiIf Karen Middleton sought to rKOver past and fUture wage
ton .. . resutl of the accldenl However, Defendant presented compalllng evidence to
demOnatr.. that PIaiI&' dIimI were without merit.
2
9. Admitted that Plaintiffs' vocational expert testified to substantial past and future
wage loss figures, It Is true also that Defendant presented a vocational expert who testified that
in his opinion, to a reasonable degree of professional certainty, Plaintiff had no past or future
wage loss as a result of the accident.
10. Admitted that the Court gave the past and future loss of eamings and earning
capacity instruction to the jury.
11. Denied as stated. The verdict form is a written document which speaks for itself.
12. Admitted that the jury awarded $7,000.00 to Karen Middleton and zero dollars to
Robert Middleton.
13. Denied that the $7,000,00 jury award was grossly inadequate to compensate the
Plaintiffs. The jury reasonably could have disregarded Plaintiffs' vocational expert's testimony
and, instead, relied upon Defendant's vocational expert's testimony, especially in light of the fact
that: (a) Plaintiff retLmed to WOI1t four days after the accident and her first thumb surgery; (b)
Plaintiff continued to work at her old job fof approximately 10 months foI1owing the accident; and
(c:) Ptaintiff told her doctor (Dr. Luppinac:c:i) that she was quitting her job with the County
because of fatigue, emotional problems and musculoskeletal problems, aU of which Defendant
was able to establish pre-exilted and were unretated to the automobile accident. In light of the
fad that there was IIdequate evidence upon which the jury c:ouId find no lost wages, and the fad
that the law I"duded rec:oNy of medic:al expenses, S verdict of 57.000.00 reasonably c:ouId
have c:cmpensated Plaintiff fof her pain n suIfer'~ related to the broken thumb n two
1\1 geries.
14. 0InlId that the jI.ry'slWWd of $7,00000 was iruodeql.... to c:ompenute Plaintiff
for her IlOl'l-eClOnOI\ dImagea. BINd an Or. GrIIIIm'. teItiI.1OIly tNt Ptaintitf was a Iymptom
maonifler and thIt Ihe ... not ~r~"'" from the UllS of her hand .. a COlllquence of her
3
thumb Injury, as well as the evidence establishing that Plaintiff had unrelated emotional and
medlcel problems, and Plaintiff's own written statement to the Director of the Claremont Nursing
Home that she was able to perform a wide variety of work duties and household duties, a jury
reasonably could have found that $7,000.00 was adequate to compensate Karen Middleton for
her non-economic damages.
15. Denied that the jury's award was inadequate to compensate Robert Middleton for
his loss of consortium claim. Although he testified that he made a number trips to take Plaintiff
to the doctor, he did not present any evidence regarding economic loss as a result of those
trips, and the jury reasonably could have found that a number of these trips were not reasonably
or unnecessarily related to the accident. Based on Plaintiffs own written statement to the
Claremont Nursing Home Director that she was able to pelform a wide variety of household
tasks, the jury reasonably could have concluded that the money paid for housekeeping services
was not reasonably and necessarily related to the auto accident. Moreover, Mr. Middleton
agreed that despite the accident, he and his wife are as close as ever.
16. Denied. There is no evidence that the jury was confused by the serious
impainnent Instruction given by the Court. The Instruction clearly stated the law of Pennsylvania
relating to serious impainnent, Moreover, if Plaintiffs felt that the jury's verdict was somehow
problematic, they were obligated under Pemsylvania law to ask the Court to have the jury
clarify any such problem, IlJfsD the Court discharged the jury. Since the jury has been
discharged, Plaintiffs are precluded from seeking . new trial on the basis of conMion on the
part of the jury.
17. DeniId as . legal conclusion, By way of further answer. Defendant reitelates
that at no time did PIalntiff ask for a directed verdict on the iUus of serious lmpainnenl In any
event, thet'e was s reasonable basil for the Court to Inatruct the jury as to the issue of seriOuS
..
impairment. There was adequate evidence from which a jury could conclude that Plaintiff's
impairment was not serious, including (a) Dr. Graham's previously mentioned testimony; (b)
Plaintiff's previous statements and testimony regarding hanclwriting, typing, driving, and
household chores; and (c) the fact that Plaintiff continued working in her job for ten months
before quitting as a result of physical and psychological problems unrelated to the accident.
Moreover, it should be noted that Plaintiffs' reliance on the Dodson case is
misplaced. Dodson involved a motion for summary judgment that was filed on behalf of the
defendant, prior to trial. Here, neither party moved for summary judgment prior to trial. Rather,
the case proceeded to trial, at which time Plaintiffs did not make any motions for directed verdict
or partial judgment on the issue of serious injury. In any event, for the reasons stated above,
there was a disputed fact as to whether the impairment related to the thumb was 'serious
impairment' under the law. There is no question that the Court in this case could reach such a
conclusion without abusing its discretion, especially in light of the recent Superior Court Opinion
in Kellv v. Ziolko. _ Pa. Super. -' 705 A2d 868 (1997).
18. In that case, in which President Judge Emeritus Cirillo authored the Opinion. the
Superior Court upheld the trial court's decision to grant summary judgment in favor of the
defendant on the serious impairment issue. There was evidence that the plaintiff had I
fractured elbow Ind a herniated disc. and that he was unable to participate In recreational
actlvIties such IS bowling, playing l'oftballlnd Utting weights. all IS a result of the ac:cldent. In
~, the Superior Court upheld the trial judge's exercise of discretion In granting summary
judgment against the plaintiff. SIQ/y, in I!l!I case, based upon the evic:lenc:e prevlousIy
discutsect, thlt COlIt acted within its discretion In concluding that there was a question of fad
as to the luue of HIious impeirment. Consequently, the Co\It's jury instNc:tlon on 'IerIout
implllrment' was not an abuH of dilaltion.
5
CERTIFICATE OF SERVICE
I do hereby certify that on this day I served a true and correct copy of the
foregoing DEFENDANrS ANSWER TO PLAINTIFFS' MOTION FOR POST-TRIAL RELIEF by
first class mail, postage pre-paid. addressed to the following:
Lisa J. Mauer. Esquire
Graham & Mauer, P. C.
The Commons at Valley Forge
Suite 22, P. O. Box 987
Valley Forge. PA 19482
THOMAS, THOMAS & HAFER. UP
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Todd B. NarvoI. EsquIre ---.
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6. At the Defendant's request the Court gave the Auto Negligence: Serious Impainnent
Instruction, Pa, SSJI (Civ) 6.020, to the jury.
7. Plaintiffs, through their counsel, objected (0 the Serious Impainnent Inslruction and
provided the Court with a timely Memorandum in Support of Detennina(ion by (he Court
of the Issue of Limited Tort Threshold, which requested (hat the Court decide the limited
tort issue as a matter oflaw. (See Exhibit #1 attached hereto.)
8. Plaintiff Karen Middleton also sought to recover past and future wage loss as a result of
this accident.
9. At trial, Plaintiffs' vocational expert testified Chat Plaintiff Karen Middlecon's past wage
loss to the time of trial was $5I,056.g2 and her future wage loss was between
$177,938.21 and $236,897.90.
10. A( Plaintiffs' request the Court gave the Past and Future Loss of Earnings and Earning
ClplCity Instructions, Pa. SSJI (Civ) 6.01C and 6.010, (0 the jury.
II. The verdict fonn provided to the jury required the jury to ''state the (otal amount of
damages, if any, you find Plaintiff Karen Middleton sustained IS a result of the accident."
(See Exhibit #2 attached hereto.)
12. The jury mumcd a verdict in favor of the Plaintiff Karen Middleton in the amount of
$7,000.00 and for Robert Middleton in the amount of $0.
13. The $7,000 jury award is arosaly inadequate to compensate PlaintifTkarm Middleton for
bet S5I,056.82 past wqctoss or the $177,93&.21 future wage Ioaa.
I". The jury', award of$7,OOO was inadequate to compensate PlaintifTKaren Middleton for
bet pain and aufTerina. incon\'cl\iaKe. Iou of the plasures of life associaltd with a
sipificant permanent impairment oCher domiMnt ri&hl hand. wbid! impainnellt was
placed at 50% by Plaintirrs treating physician and expert medical witness and at 18% by
Defendanl's medical expert.
IS. The jury's award was inadequate 10 compensate Plaintiff Robert Middleton for his loss of
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consortium claim in chat his lestimony indicaled chat he made at least 75 molor trips to
deliver his wife to various medical providers for diagnosis and treatment, in addition to
paying S50 per week for professional household services to replace chose services
formerly performed by Plaintiff Karen Middleton.
16. The jury was confused by che Serious Impairment Instruction given by che Court at che
close of evidence in this matter.
17. Plaintiffs, chrough cheir counsel, made a timely objection CO che Serious Impairment
Instruction given CO che jury and said timely objection is a matter of record.
18. It is Plaintirr. position that che jury was confused by che Serious Impairment Instruction
and cherefon: awarded an inadequate verdict.
19. It is Plainlirrs position. in the alternative, that the jury disregarded the overwhelming
preponderance of credible evidence and awarded Plaintiffs Karen and Robert Middleton
an inadequate award.
20. Plaintiff reserves che right CO file additional grounds supporting this motion aftc:r receipt.
review and analysis of requested ponions of the trial transcript.
WHEREFORE. Plaintiffs Karen and Robert Middleton Iespeo.tfully request that this
Court grant Plaintiffs a new trial.
RespectIuIIy submitted.
By. GraharQ a Mauer. P.C,
Vb" )
.' j)"~, . ?{/Jlit/_
USA J. M~ ER'
.
\....,
GRAHAM & MAUER, P.C.
BY: LISA J. MAUER, ESQUIRE
RONALD M. GRAHAM, ESQUIRE
The Commons at Valley Forge
Suite 22, P.O. Box 987
Valley Forge, Pennsylvania 19482
(610) 933-3333
Attorneys for Plaintiffs
KAREN AND ROBERT J. MIDDLETON
hlw
COURT OF COMMON PLEAS
vs.
CUMBERLAND COUNTY
FREDA M. KEPPLEY
No. 97-4213 Civil Term
JURY TRIAL DEMANDED
MEMORANDUM IN SUPPORT OF DETERMINATION
BY THE COURT OF THE ISSUE OF LIMITED TORT THRESHOLD
Bac:kJrouad
'-'
Plaintiff Karen Middleton was injured in a motor vehicle accident in December of 1995.
She sustained a complicated fracture to the right thumb treated by two surgeries, leaving her with
a permanent SO% impairment of her dominant right hand, according to the testimony ofher
treating physician. In addition, Mrs. Middleton hu suffered ongoing pain and limitation of
motion in her neck and shoulder, which bas c:onlinued for more than two years. Theac injuries
have caUJed Mrs. Middleton to be unemployed Cor 19 ofthc 30 months immediately foUowiDa
the motor vchidc ecci~
In addition. Mrs. Middleton hu suffered limitation in her ability to operate a computer,
-
type, "'" ftwm hand writina and othcrwiIe attcncI to her pcnonal care nccda and ~1d chora
durift& that same Jenathy period. PlaintiI1l' medical apat bas testified that tbac impainnellta
II't likely perlIlIftCftt in aatun and nl'-' by the IIIbject motor vchidc ICddalt. The dctae
medical apcn. while he diIqnea with the dqree oflimitaticln. otherwiae ftDdI himIelfin
"
'-
agreement with Plaintiffs treating physician and medical expert as to pennanency of the
impainnent of Plaintiffs dominant hand.
Ouestlons Prescnted
I. Has PlaintitT sutTered a serious impainnent of body function, under 75 PaC.S.A.
section 1705?
Suggested Answer: Yes
2. Is the detenninalion as to whether PlaintitThas met the verbal threshold of the
existence of a serious impairment of body function one to be made by the Court as
opposed to the jury; where, as here, there remains no genuine issue of material
fact for the jury to decide?
Suggested Answer: Yes
'-' Abbreviated Al'JDlMIlt
The Pennsylvania Superior Court has determined that permitting the trial court to make
the threshold detennination of the existence of serious impainncnt of body function where there
is no dispute of fact aervc:a the legislative aoaJ set forth in 75 Pa.C.S.A. section 1705. J'lntI...." v.
EWx. 665 A.2d 1223, 1231 (1995). The Court went OD to state that in the context ofa motion
for summary judgment OD this iIsuc where, u here, there is no substlntial dispute of mataial fact
that PlaintitThu incIced met the thrabold. The Court should make the determination u a matter
of law. lit. It 1232.
'-
Mlf, upon review of the lP'disputcd record, the thrabold has not
beat met. the cue should be dismissed. If, OD the other band. the
nidmcc conclusively eatablished that the plaintitThas sutTered
"atriout impIinnem ofbody I'tmttion. .. then the jury may decide
..., th.... "UaIlIllly .... .-IiI...... (anpluWtlldded) lit.
"Ole Court went Oft to aplain this I'ItionaIe u IOl1owt:
'- V
KAREN AND ROBERT J. : IN THE COURT OF COMMON PLEAS OF
MIDDLETON, . CUMBERLAND COUNTY, PENNSYLVANIA
'- .
Plaintiffs .
.
.
.
v. . CIVIL ACTION - LAW
.
:
FREDA M. KEPPLEY, :
Defendant . NO. 97-4213 CIVIL TERM
.
VERDICT
[In this case, Defendant
concedes liability for
causing the accident. At
issue is what damages, if
any, were suffered as a
result of the accident.]
Ouestion 1:
State the total amount of damages, if any, you find Plaintiff
Karen Middleton sustained as a result of the accident.
'-
$
OUestion 2:
State the total amount of damages, if any, you find Plaintiff
Robert Middleton sustained for loss of consortium as a result of
the accident.
$
Dat.
Foreperson
'-
'-' V
KAREN AND ROBERT J. . IN THE COURT OF COMMON PLEAS OF
.
MIDDLETON, : CUMBERLAND COUNTY, PENNSYLVANIA
'-' Plaintiffs
:
v. . CIVIL ACTION - LAW
.
.
.
FREDA M. KEPPLEY, .
.
Defendant . NO. 97-4213 CIVIL TERM
.
VERDICT
[In this case, Defendant
concedes liability for
causing the accident. At
issue is what damages, if
any, were suffered as a
result of the accident.]
OUest ion 1:
State the total amount of damages, if any, you find Plaintiff
Karen Middleton sustained as a result of the accident.
'-
s
OUest ion 2;
State the total amount of damages, if any, you find Plaintiff
Robert Middleton sustained for loss of consortium as a result of
the accident.
$
Date
For.person
.......
II. StatemeDt ofthe Issues
A. DID THE COURT COMMIT REVERSIBLE ERROR WHEN IT ALLOWED
THE SERIOUS IMPAIRMENT INSTRUCTION TO GO TO THE IURY AND FAILED TO
FIND AS A MAlTER OF LA W THAT PLAINTIFF KAREN MIDDLETON HAD MET THE
"SERIOUS INJURY" THRESHOLD?
Suggested Answer: Yes
B. WAS THE IURY'S A WARD OF S7,OOO.00 FOR PLAINTIFF KAREN
MIDDLETON CONTRARY TO THE WEIGHT OF THE EVIDENCE?
Suggested Answer: Yes
C. WAS THE JURY'S AWARD OF SO FOR PLAINTIFF ROBERT
MIDDLETON'S LOSS OF CONSORTIUM CLAIM CONTRARY TO THE WEIGHT OF THE
EVIDENCE?
Suggested Answer: Yes
III. LeIlal Al'l!umeDt
A. The Court committed revenlble error wblch warrants the grantiag Dr a Dew
trial wbea It allowed the serious Impairment IDstnction to go to the Jury aDd railed to fiad
IS a matter or law that PlaiD tiff Karea Middleton had met the "serioaslaJary" tbresbold.
Court Determination
The law is well settled in Pennsylvania that the question of whether or not the Plaintiff
has met the serious injury threshold which then allows them to recover non-economic damages
must be decided by the Court as a matter of law and is not a question for the jury if there is no
remaining issue ofmatcrial fact after all of the evidence has been presenled. The Pennsylvania
Superior Court has determined that permitting the trial court to make the threshold determination
of the existence ofscrious impainnent of body function where there is no dispute offaet serves
the legislative goalie! forth in 7S Pa.c.s.A. o I 70S. Ondcnn v. ~Ivev 665 A.2d 1223 (1995).
The Court stated that where. IS here. there is no substantial di$pute or material faet that Plaintiff
has met the threshold, the COW1 should make the determination.. llnllter orla.... hi. at 1232,
2
-
...4'~ -.....- >
._~ __.~,-_._ "_____:;;.."A> 4_
percent use of her right (dominant) hand and that this condition is permanent. (N.T. Dr. Lippe
Trial Deposition, p. 23, lines 20-24). Dr. William Graham, Defendant's medical expert, testified
(hat Plaintifl's limilation is 45 percent of the thumb, which translates into 18 percent impairment
of the hand. (N.T. Dr. Graham Trial Deposition, p. 26, lines 14-16). Both experts agreed that
Plaintifl's limilation was permanent, although the Dodson Court agreed that an impairment need
not be permanent to be serious. hi. at 1234. Defendant was no( able to present any objective
medical testimony to eslablish that Plaintiff has not suffered serious impairment of a body
function.
lalurv CatRorles Wblcb Meet the Serlouslajurv Tbresbold
Defendant argues that because Dr. Graham. Defendant's medical expert, testified that
PlaintiffKarm Middleton is not disabled from the use of her right hand as a consequence of the
18 percent impairment of the hand she is unable (0 meet the "serious injury" threshold. There is
no requirement under Dodson. or any subsequent Pennsylvania case. which requires disability.
To the contrary, Dodson specifically enumerates nine categories which. if applicable to Plaintifl's
injury. allow a limited tort Plaintiff to recover non-economic losses resulting from her personal
injuries. hS. at 1231. Two of those categories include permaneat coaseque.tlalllmltadoll of
UIe of s body oral. or member and alpllkut IIm1tadoa of Ule of I body ruaedoa or
I)'1t,.. (emphasis added)
ludae Solomon.. interpretation wu that DodIon "simply requires the plaintiff to
demoastrate that her injuries have substantially interfered with her nonnaI activities for I
subItIntiaI period oftimeo" Brown v. Hardin. Fayette County. No. 1306 of 1996 (12/22/97).
Ulilll thia analysis. Plaintiff Karen Middleton hu clearly met the serious injury threshold,
4
length of time the impainnent lasts; and, finally, the lreatment required
to correct the impainnenl. Oravic citing Murrav v. McCann, 442 Pa.
Super. 30, 36, 658 A.2d 404, 407 (1995).
In the case ofPlainliffKaren Middleton, ic is Plaintiffs' conlention that had Ihe Court
considered each of these four factors, the serious impainnent instruction would not have gone to
the jury. Firsl, both Plaintiffs' and Defendants' doctors opined about the extent ofPlaintifl's right
hand impainnenl. Dr. Ronald Lippe, Plaintifl's treating physician and medical expert, testified
that she has about 50 percent use of her righl (dominant) hand. (N.T. Dr. Lippe Trial Deposition,
p. 23, lines 20-24). Dr. William Graham, Defendant's medical expert, testified thaI Plaintifl's
Iimilation is 45 percent of the thumb, which lranslates into 18 percent impainnent of the hand.
(N.T. Dr. Graham Trial Deposition, p. 26,Iines 14-16).
Second, both medical experts agreed that the injury impaired Plaintifl's right, dominant
hand. Third, both physicians also agreed that Plaintifl's right hand impainnent was pennanenl
(N.T. Dr. Lippe Trial Deposition, p. 23, lines 22-24) (N.T. Dr. Graham Trial Deposition, p. 26,
lines 11-16) Fourth, besides the two surgeries Plaintiff had previously undergone to correct the
fractured right hand, there are no additional medical treatments which will improve her
pennanent impainnenl. (N.T. Dr. Lippe Trial Deposilion, p. 23,lines 4-9) (N.T. Dr. Graham
Trial Deposition, pgs. II. line 2S - p. 12, lines 1-2).
As a result of the uncontradicted medical testimony substantiating the four factors
n....~lIly to ranove the threshold question from the jury, the Court should have found, as a
matter of law, that Plaintiff Karen Middleton did, in fact, suffer a serious impairment of a body
fimction.
6
A. No, she is not. She is not disabled from the use of that hand as a
consequence of that 1 B percent.
(Graham trial deposition, p. 26, line 5 to p. 27 line 2)
The trial testimony also established that Plaintiff Karen Middleton retumed to
work four days after the accident and her first thumb surgery; that Plaintiff Karen
Middleton continued to work at her old job for approximately 10 months following the
accident; and that Plaintiff Karen Middleton told her doctor, Dr. Luppinacci, that she was
quitting her job with the County because of fatigue, emotional problems and musculo-
skeletal problems, all of which Defendant was able to establish pre-existed and were
unrelated to the automobile accident.
These musculo-skeletal problems were documented in Plaintiff Karen
Middleton's family physician's records in the two-to-three-month period preceding the
automobile accident in this case. Moreover. these musculo-skeletal problems dated
back ten years to a report issued by an orthopedist, Dr. Mira. who offered the opinion
that Plaintiff Karen Middleton had polyarthritis in her joints. including her hands. This
testimony was bolstered further by the reports of Dr. Clawson, who was treating Ms.
Middleton about a year after the accident. for a long-term flare up of the polyarthritis in
Mrs. Middleton's hands and wrists. as well as other joints in her body. All this evidence
showed a pre-existing condition which the jury could have found caused Mrs.
Middleton's problems with the relevant portions of her body.
Beyond this, the same medical records documented a long-term emotional
problem, which was ftaring up before the accident and which seemed to come to a head
2
approximately eight moths after the accident. Moreover, Plaintiffs offered no medical
testimony that would establish a causal link between the apparently debilitating
emotional problems and the auto accident.
Although Mrs. Middleton testified that the thumb injury prevented her from
performing certain tasks, Defendant introduced a letter admittedly authored by Mrs.
Middleton, in which letter she stated that as of April of 1998 she was able to perform a
wide-variety of work and household duties.
Additionally, Defendant introduced the testimony of Ron Sholtis, a vocational
expert, who testified that the injuries related to the auto accident did not cause Mrs.
Middleton to lose any significant past or future wages.
Finally, Plaintiff Robert Middleton testified that he had been married to Mrs.
Middleton for less than two years when the accident happened. Although he stated that
he had to make many trips to take her to the doctor, he did not offer any evidence of
economic damages in the nature of trip expenses. nor of lost income as a result of
making those trips. In fact, he testified that despite the accident, he and Mrs. Middleton
were as close as ever.
II. $TA~"'ENT OF THE tSSUES
A. WAS THERE A QUESTION OF FACT AS TO THE ISSUE OF "SERIOUS
INJURY" SUCH THAT THE COURT PROPERLY INSTRUCTED THE
JURY PURSUANT TO P..S.S.J.I. 6.02 D (CIv)?
S.U9G9TEP A~SWEI3: YE&
B. DID PLAINTIFFS WAIVE THEIR ARGUMENT WITH RESPECT TO THE
.SERJOUS INJURY" JURY INSTRUCTION BY FAILING TO ASK THE
3
~., .:;.....-. . ..-.--
... .~ _::0..--._
COURT TO HAVE THE JURY CLARIFY ITS VERDICT. BEFORE THE
COURT DISMISSED THE JURY?
SUGGESTED ANSWER: YES
C. WAS THE JURY'S AWARD OF $7,000.00 FOR KAREN MIDDLETON
SUPPORTED BY THE WEIGHT OF THE EVIDENCE?
SUGGESTED ANSWER: YES
D. WAS THE JURY'S AWARD OF $0.00 FOR PLAINTIFF ROBERT
MIDDLETON'S LOSS OF CONSORTIUM CLAIM SUPPORTED BY THE
WEIGHT OF THE EVIDENCE?
SUGGESTED ANSWER: YES
III. LEGAL ARGUMENT
A. THERE WAS A QUESTION OF FACT AS TO THE ISSUE OF "SERIOUS
INJURY" AND THEREFORE THE COURT PROPERLY INSTRUCTED
THE JURY CONSISTENT WITH Pa.S.S.J.I. 6.02 D (Civ) RELATING TO
AUTO NEGUGENCE: SERIOUS IMPAIRMENT.
In Dodson v. Elvev, 445 Pa,Super. 479, 494. 665 A.2d 1223, 1231 (1995), the
Superior Court en bane discussed what role a trial court should play in detennining
whether or not a Plaintiff has met the 'serious injury' threshold in "limited tort cases,'
under 75 Pa.C.S. S1705, The Superior Court held that a trial court may make a legal
detennination as to whether or not serious injury has been established. when there is no
substantial question of fact as to the level of impairment resulting from the injury.
However, the Superior Court made it clear that if there ~ a genuine issue of material
fact as to the issue of "serious injury,' then the issue must be submitted to the jury,
"In deciding whether a material issue of fact exISts for the jury, the judge should
not focus on the injury, but should focus on the nature and extent of Plaintiff's
4
impairment as a consequence ofthe injury." Id. at 494,665 A.2d at 1231. In Dodson,
there was evidence that the Plaintiff suffered a rotator cuff injury and a fractured elbow
in additicn to various strains. In Kellv v. Ziolko, _ Pa.Super. _, 705 A.2d 868
(1997), there was evidence that the Plaintiff suffered a herniated disc as a result of the
accident in question. In each case, the Court looked beyond the seriousness of the
iniurv, and focus on resulting level of imoairment. In each case, the Superior Court
upheld the trial judge's determination that the nature and ex1ent of the Plaintiff's
impairment, as a consequence of the injury, was not "serious."
In the Middleton case, the Court made a decision that there was a substantial
issue of fact as to the nature and ex1ent of the Plaintiffs impairment as a consequence
of the injury. In reaching such a determination, the Court focused on the evidence
presented during the trial. INhereas Mrs. Middleton had a broken thumb, which required
two surgic2l procedures, there was conflicting evidence as to the nature and ex1ent of
Mrs. Middleton's impairment related to the auto accident.
As stated above, in the factual background section of the brief, Dr. Graham
testified that despite some impairment to Mrs. Middleton's thumb, the damage to the
thumb did not have a "dramatic" impact on the whole hand because the "thumb
functions largely as a post.. Dr, Graham went onto say that 'even a completely stiff
thumb. which Mrs. Middleton does not have, can be a very functional thumb in hand
usage" He said also that she is not disabled from the use of her hand,
5
Beyond this, there was evidence that Mrs. Middleton had a pre-existing
polyarthritic problem with hc;!r hands, which was unrelated to the accident, and which
was giving her problems both before and after the accident.
Additionally, there was evidence that Mrs. Middleton continued working after the
accident and did not quit working until ten months after the accident, and that she did so
as a result of pre-existing physical and emotional problems that that were unrelated to
the accident.
A vocational expert testified that the impairment caused by the auto accident did
not preclude Mrs. Middleton from performing her old job duties and that she had no
appreciable loss of income, either past or future, as a result of the auto accident.
Although Mrs. Middleton testified as to impairment regarding household duties and
pleasurable activities, her April 1998 letter-to the Director of the Claremont Nursing
Home-represented that she was able to perform a wide variety of household tasks,
On the basis of all this evidence, the Court reasonably concluded that there was
a substantial issue of fact as to the nature and extent of Mrs. Middleton's impairment as
related to the automobile accident.
This case is similar to Oravic v, Sonaa, 29 D.&C. 4th 97 (Cumberland County
1996). In that case, Judge Hess denied cross-motions for summaty judgment on the
issue of 'serious injury.' There was evidence that the Plaintiff suffered a fractured knee
cap and accompanying arthritis, as a result of the accident. His knee had been
surgically repaired and was held together by a surgical screw,
6
'II'- _~,__. '."_
There also was evidence that the injury substantially interfered with the Plaintiffs
normal activities. On the other hand, there was testimony that he still did participate in
sporting events, although to a lesser degree.
On the basis of this record, Judge Hess concluded that there was a substantial
dispute as to whether or not the Plaintiff had suffered a serious impairment of bodily
function. Consequently, he denied both sides motions for summary judgment, and
ordered that the issue of .serious injury. was a jury question.
Since there was a substantial question in this case as to the nature and extent of
Mrs. Middleton's impairment, as related to the automobile accident, the Court properly
instructed the jury on the issue of serious impairment.
B. PLAINTIFFS WAIVED THEIR ARGUMENT AS TO THE "SERIOUS
IMPAIRMENr' JURY INSTRUCTION. BY FAIUNG TO REQUEST THAT
THE JURY TO CLARIFY ITS VERDICT BEFORE THE COURT
DISMISSED THE JURY.
As argued above, it was not error for the Court to instruct the jury consistent with
Pa.S,S.J.1. 6.02 0 (Civ) relating to serious impairment. Even assuming for the sake of
argument that it was error for the Court to give the jury instruction, which is strongly
denied. there would be no reversible error unless the Plaintiffs can show that the
instruction was not only erroneous, but also harmful to the Plaintiffs. See, Summit
Fasteners. Inc. v. Harlevsville National Bank and Trust Comoanv. Inc.. 410 Pa.Super.
56.62.599 A,2d 203. 206 (1991): Jistam v. Naooi, 378 Pa.Super. 583. 588. 549 A,2d
210.213 (1988)
7
It is not clear whether the jury did or did not find that Mrs. Middleton suffered
'serious injury' sufficient to permit the award of non-economic damages in this case.
Based on the amount of the verdict, it is quite likely that jury did find serious impairment.
However, since the jury was not asked to clarify that issue, we will never know what
they found. The only way that Plaintiffs could have shown that the Court's allegedly
erroneous instruction was harmful, was to ask the Court to have the jury clarify whether
or not it found the existence of 'serious impairment.' Plaintiffs did not ask the Court to
pose that question to the jury, after the verdict and prior to the jury's dismissal.
A plaintiff's failure to object to an ambiguous or flawed jury verdict prior to
dismissal of the jury will result of waiver of that claim on appeal. See, Hollidav v. Pace,
656 A.2d 136,440 Pa.Super. 490 (1995). Picca v. Kriner, 435 Pa.Super 297,645 A.2d
868 (1994). Plaintiffs' failure to ask for a specific Interrogatory-as to whether the jury
found the existence of serious injury or not, prior to the dismissal of the jury-has
prevented the Court from knowing whether or not the complained-of jury instruction had
any effect on the outcome of the case. Consequently. Plaintiffs have waived their
argument as to the propriety of the 'serious impairment' jury instruction.
C. THE JURY'S VERDICT OF $7,000.00 IN FAVOR OF PLAINTIFF KAREN
MIDDLETON WAS SUPPORTED BY THE WEIGHT OF THE EVIDENCE.
A new trial should not be granted because of a mere conflict in testimony, or
because the trial judge on the same facts would have arrived at a different conclusion.
Nudelman v, Gilbrmt. 436 Pa,Super, 44, 49-50, 647 A.2d 233, 236 (1994), A new trial
should be awarded when a jury's verdict is so contrary to the evidence as to shock
8
Generally, victims are entitled to be compensated for all of their losses caused by
negligence of another. However, not every injury results in compensable pain.
436 Pa.Super. at 51,647 A.2d at 237, Damages for loss of consortium have no market
value, and the amount awarded for loss of consortium is left to the sound judgment and
common sense of the jury. Id., 436 Pa.Super. at 56, 647 A.2d at 234. In Nudelman, the
jury awarded $0,00 to Mr. Nudelman, despite testimony that he had to do substantial
housework, which he had never before done, and that he had to drive his wife to
numerous doctor's appointments. He also testified that his wife could no longer engage
in recreational activities with him.
Mr. Middleton, in the present case, is similar to Mr. Nudelman in these respects.
Although Mr. Middleton is not retired, there was no evidence of any economic loss as a
result of driving his wife around and taking care of her. The testimony regarding fees to
housekeepers more appropriately would be reflected in the verdict in favor of Mrs. '
Middleton.
As to Mr, Middleton's loss of consortium claim, the jury could have found, on the
basis of the disputed evidence, that whatever loss of comfort Mr. Middleton suffered
was more appropriately related to the pre-existing polyarthritis condition or the long-term
emotional problems that Mrs. Middleton was experiencing both before and after the
automobile accident. In any event. Mr. Middleton testified that he was as close as ever
to Mrs. Middleton. despite everything that had happened, Consequently, the jury,
through the exercise of sound judgment and common sense, could have reached a
verdict in the amount of $0 00 for Robert Middleton's Iou of consortium claim. As
stated earlier, not all injuries are compensable through the awafd of money, Under the
11
GRAHAM & MAUER, P.C.
BY: LISA J. MAUER, ESQUIRE
Attorney J.D. 65426
RONALD M. GRAHAM, ESQUIRE
Attorney J.D 66483
The Commons at Valley Forge
Suite 22, P.O. Box 987
Valley Forge, Pennsylvania 19482
(610) 933-3333
Attorneys for Plaintiffs
KAREN AND ROBERT J. MIDDLETON
hlw
COURT OF COMMON PLEAS
vs.
CUMBERLAND COUNTY
FREDA M. KEPPLEY
No. 97-4213 Civil Tenn
JURY TRIAL DEMANDED
PLAINTIFFS' BILL OF COSTS
Plaintitrs Bill of Costs for attendance of witnesses and filing and service fees associated with
the tria1 of this matter before a jury on May 18 - 21. 1998 in the Cumberland County Court of
Common Pleas, is as follows:
Filing and Service fees
Deposition of Ronald Lippe, M.D.
Dr. Lippe Video Playback
Vocational Expert. John Risser. Testimony
Video Deposition of Dr. Uppe
S 68.60
1,000.00
250.00
750.00
175.00
52.243.60
ReapcctAdly llUbmitted.
~ ~
...l~
Date: AIIpIt 24. 1991