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Home My WebLink About97-04481 ~ I I ~ , " 'il , .3 I .. 1" , :3 , 'I c:S I I , , I . , I' ~ " " , , , '1 I I ,I I , ~ I' !i I I, I' I , " " . ..t , I" ... ,I ~ I" ,"'! \ , "; , 1'1 I , ,I 'I I I , I " ., I , "\ I' 'I ;1. I' I'! )1 , . ,,' ." 'Ii I" " , , .. , I , ,I ,I , I] , i ~ ) ,'I " , ' I " ,I " 'I , " " I " " , . \ I, I I J " " ..... ., . " ,q " .5 .. , , ~ " ,..' I , " I, I' I " I I, ", , 'I ;,1 , , " " I' .., " . .' I t' 0"\ " I cD ~lOJ'CFFlCF OF Tk 1'110:/(: :C'iIFlY 'l7 Attr. I a P!r ~i II CUI.:~ :,:;1. "." I :'l\}N'~1 " F '1' '01...1 .. I ~j"i.,\.)r'l.'/~,: ,'1.\ I , , I"'1D.-$-o '-- s~uo J.ts..so " Q I~ .JJ. p"-:il S'~+ '""'- Pel ,:1.-I-1y -4'l;).~ $'St'~Y. " " IUCHANAN INGI".OLL '''O'I''I~"AL Co"pO"AnON :to NOInH ,,11 IT"IIT ~ It" 'LOOA HA....II.U..O.'.. 11101 I, TlLlPHONI (1t?) 2:17-4100 ~----.....-. /- . \' , "'.1_ _...__ __.._ _ ." , , I OF lr~-m;,~OrMY 97 $tP 17 flIt 21 ~6 CUII!5f:r/INII) GOlINTY PtNNSYLVANIA I' I I .1 'I r/ i,', I I ';' " ," I," , ' '>II IUCMANANINQlftlOLL "'O'IIlIONAL CO'''OftAnON H NOInlf Ird IT"11T . It" 'LOOR , MAftftIIlUftO, 'A ''''0' I:' Ti'L.HlONI (1.112:1"""100 " " cr: . . PI fC"\('fnC: 1, . I I':' ,,',TlnY ~incr'0 Pi! 1.115 ,., (1...',\.' h~i\i,'t ,ll','/ J1Y hf~ , ' '1 " , , , 'II I. , , 'I 'f " il-" .1 , I . , , , 'I" " I , ojl " ' " " 1 , REYNOLDS 8. HAVAS 'I A P"o......o,...-~ CO"~"AT.ON ATTO"NIV8 AND COUN8IL.O"'S AT LAw 1 0 1 P,N. ST""T P.O. 80M 932 H...""'I..u"o. PINN.VLVAN'A 17100.0932 1.1 " TaL. PHON. (717) 238.3200 " .. COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DEBORAH HURLEY and I No. 97 " 4481 civil RENNETH HURLEY, her husband, I Plaintiffs I I v. I CIVIL ACTION - LAW I PATRICIA C. DOWSWELL, t Defendant t JURY TRIAL DEMANDED NOTICE TO PLEAD TOI Deborah Hurley and Renneth Hurley, Plaintiffs clo Jayson R. Wolfgang, Esquire, Counsel for Plaintiffs Buchanan Ingersoll 30 North Third street, Eighth Floor Harrisburg, Pennsylvania 17101 YOU ARE HEREBY NOTIFIED to plead to the enclosed ANSWER AND NEW MATTER OF DEFENDANT, PATRICIA C. DOWSWELL, within twenty (20) days from service hereof, or a default judgment may be entered against you. Respectfully submitted, REYNOLDS & HAVAS A Professional Corporation Date I /Dt~lt1l BYI n L. Banko, Jr. ey 1.0. #41727 101 pine Street Harrisburg, PA 17108-0932 (717) 236-3200 Counsel for Defendant, Patricia C. Dowswell 6(a) - (e). Denied. The allegations oontained in this paragraph state a legal oonolusion to which no response is necessary. By way of further answer, with respeot to any allegation that Plaintiffs sustained injury as a result of any conduot of Defendant, after reasonable investigation Defendant is without knowledge or information suf f icient to form a belief as to the truth of said averments and, therefore, they are denied. 7(a) - (c). Denied. The answer contained in paragraph 6 hereof is incorporated herein by reference as if set forth in its entirety. 8. Denied. After reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and, therefore, they are denied. WHEREFORE, Defendant, Patricia C. Dowswell, demands judgment in her favor and against Plaintiffs. Count I I 9. The answers contained in paragraphs 1 through 8 hereof are incorporated herein by reference as if set forth in their entirety. 10. Denied. The answer contained in paragraph 6 hereof is incorporated herein by reference as, if set forth in its entirety. - 2 - . II , , I r: " " Ii P .0 () ," (:; ~..JI II I'~ .1 00"(',1' , rTl ~,' ""1 "i'n ,... " L:: I ,.i.'" . ',V) ~~} . (''' " . , 1;:1 t'jC) .-;, " i ;,1} nT. " ) " N Sl'11 l' .. , ! J ""' r.J .' ..... , , , ' '\ I' " I " " , I " , , , REYNOLDS & HAVAS A .....Q,....ON..... COI'l,",O"'A""ON ArrO"NIV. AND COUNBILO.... AT LAW 101 PIN. STAUT P.O. Box 1132 H...""...u"o, PINN.y..."...NI.... 17108~O932 T.....PHON. 17171236,3200 1," 1.,',1 IIJ I V, i'I' ("'( .,11,\ (;:"; 'i! -,,'t" ""1 ^,' ',' I"; " '-,;1;\ ,'.. I ' ,~, '}"" j I I I I', ~ ", 11-,1'('( () 'i' " " ,',I .-li \ , " I, ,; I' >l ' , , I' I'" COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DEBORAH HURLEY and I RENNETH HURLEY, her husband, I Plaintiffs I I v. I I PATRICIA C. DOWSWELI" I Defendant I No. 97 - 4481 civil CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of Bubpoenas for documents and things pursuant to Rule 4009.22, Defendant, patricia C. Dowswell, certifies that (1) a Notice of Intent to serve subpoenas with copies of the subpoenas attached theret~ was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoenas are sought to be served; (2) a copy of the Notice of Intent, inclUding the proposed subpoenas, is attached to this certificate; (3) no objection to the subpoenas has been received; and (4) identical Notice of the subpoenas which will be served are to the subpoenas which are attached to the Intent to serve the subpoenas. REYNOLDS & HAVAS A ro ssional Corporation Date: ~ ~~f By: . Banko, Jr. I.D. #41727 101 pine Street Harrisburg, PA 17108-0932 (717) 236-3200 Counsel for Defendant, patricia C. Dowswell STEPHEN L. BANKO. JR.. ESQUIRE PA Attorney 1.0. No. 41721 REYNOLDS 6 HAVAS A p,.,ronlonel CorporOllon 101 Pine SI1... Po.. OIIIee Bo. e32 Hel/I'bure. P,nnoylvenle 17108-0932 17171 2311.3200 Anorney lor DoIendent PATRICIA C. DOW8WELL COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. DEBORAH HURLEY and I No. 97 - 4481 civil KENNETH HURLEY, her husband, I Plaintiffs : : v. : CIVIL ACTION - LAW : PATRICIA C. DOWSWELL, : Defendant : JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant Patricia C. Dowswell. intends to serve subpoenas identical to the ones that are attached to this notice. You have twenty (20) days from the date lis ed below in which to file of record and serve upon the unders d an objection to the sUbpoenas. If no objection is e subpoenas may be served. Date: nJ.,lt1 ~ N L. BANKO, JR. totney I.D. No. 41727 REYNOLDS & HAVAS A Professional Corporation 101 pine Street Post Office Box 932 HarriSburg, Pennsylvania 17108-0932 (717) 236-3200 Attorney for Defendant Patricia C. Dowswell COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DEBORAH HURLEY and t No. 97 - 4481 Civil l<ENNETH HURLEY, her husband, t Plaint.tffs t t v. t CIVIL ACTION - LAW : PATRICIA C. DOWSWELL, t Defendant t JURY TRIAL DEMANDED SUBPOENA TO PRODUCE OOCUMEHjS OR THINGS TOt RECORDS CUSTODIAN David Smith, D.C. 1315 North Mountain Road Harrisburg, Pennsylvania 17112 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things at the offices of Reynolds & Havas, A Professional Corporation, 101 Pine Street, Harrisburg, Pennsylvania 17101 t All documents, including without limitation a-il medical records, physical therapy records, chartsr results of diagnostic studiesr x-ray reports, billing records, ~nd any other related documents pertaining to Deborah A. Hurley (DOB 09/25/57) (Social Security No. 174-46-6225) You may deliver or mall leglble caples of the documents ur produce things requested by thlS subpoena, together wlth the :ertificate cf ccmpliance, co the part'l making this request at che address listed above. ~cu have the right to seek Ln advance the reasonable cost of preparlng the caples or produclng ~he things sought. if :Iou fall t,? produce tr.e documents ,n things req'ulred by :ilis SUbpoena 'o'iithin t'lient'! 120) days ,1 tte i: , ~t:, ser'lic'~, ':he COMMoNWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNT~ DEBORAH HURLEY and KENNETH HURLEY, her husband, Plaintiffs No. 97 - 4481 civil v. CIVIL ACTION - r~w PATRICIA C. DOWSWELL, Defendant JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS TOI RECORDS CUSTODIAN Internists of Central PA 108 Lowther street P.O. Box 107 Lemoyne, pennsylvania 17043 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things at the offices of Reynolds & Havas, A Profess~onal corporation, 101 pine street, Harrisburg, Pennsylvania 17101: All documents, including without limitation all medical records, physical thera~y records, charts, results of diagnostic studies, x-ray reports, billing records, and any other related documents pertaining to Deborah A. Hurley (DOB 09/25/57) (Social Security No. 17-4-46-6225) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you" to comply with it. COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DEBORAH HURLEY and KENNETH HURLEY, her husband, Plaintiffs No. 97 - 4481 civil v. CIVIL ACTION - LAW PATRICIA C. DOWSWELL, Defendant JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS TO: RECORDS CUSTODIAN Physicians of Rehabilitation Medicine, P.C. 175 Lancaster Boulevard P.O. Box 2028 Mechanicsburg, Pennsylvania 17055 Within twenty (20) days after service of this 'subpoena, you are ordered by the court to produce the following documents or things at the offices of Reynol.ds & Havas, A Professional Corporation, 101 Pine Street, HarriSburg, Pennsylvania 17101: All documents, including without limitation all medical records, physical therapy records, charts, results of diagnostic studies, x-ray reports, billing records, and any other related documents pertaining to Deborah A. Hurley (DOB 09/25/57) (Social Security No. 174-46-6225) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliancer to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DBBORAH HURLEY and KENNETH HURLEY, her husband, Plaintitts No. 97 - 4481 civil v. CIVIL ACTION - LAW PATRICIA C. DOWSWELL, Defendant JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS TO I RECORDS CUSTODIAN A.Z. Rittman Associates 4930 Ritter Road Mechanicsburg, Pennsylvania 17055 within twenty (20) days after service of this sUbpoena, you are ordered by the court to produce the following documents or things at the offices of Reynolds & Havas, A Professional Corporation, 101 Pine street, Harrisburg, Pennsylvania 17101: All documents, including without limitation all medical records, physical therapy records, charts, results of diagnostic studies, x-ray reports, billing records, and any other related documents pertaining to Deborah A. Hurley (DOB 09/25/57) (Social Security No. 174-46-6225) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with tne certificate of compliancer to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its servicPr the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of: COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLl::AS OF CUMBERLAND COl/NT'{ DB BORAH HURLEY and KENNETH HURLEY, her husband, Plaintiffs No. 97 - 4481 Civil v. CIVIL ACTION - LAW PATRICIA C. DOWSWELL, De fendant JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS TOr RECORDS CUSTODIAN Health South Rehabilitation Center 920 Century Drive Mechanicsburg, Pennsylvania 17055 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things at the offices of Reynolds & Havas, A Professional Corporation, 101 pine street, Harrisburg, Pennsylvania 17101: All documents, including without limitation all medical records, physical therapy records, charts, results of diagnostic studies, x-ray reports, billing records, and any other related documents pertaining to Deborah A. Hurley (DOB 09/25/57) (Social Security No. 174-46-6225) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of: COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DEBORAH HURLEY and I No. 97 - 4481 civil KENNETH HURLEY, her husband, I plaintiffs I I v. I CIVIL ACTION - LAW I PATRICIA C. OOWSWELL, I Defendant I JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THING~ TO: RECORDS CUSTODIAN Health South Rehabilitation Center Regional Work Performance and Hand Center 840 North Front Street Wormleysburg, Pennsylvania 17043 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things at the offices of Reynolds & Havas, A Professional corporation, 101 Pine street, Harrisburg, Pennsylvania 17101: All documents, including without limit~tion all medical records, physical therapy ~ecords, charts, results of diagnostic studies, x-ray reports, billing records, Bnd any other related documents pertaining to Deborah A. Hurley (DOB 09/25/57) (Social Security No. 17-4-46-6225) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to ccmply with it. COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COuNTY DIlBORAH HURLZY and KENNETH HURLEY, her husband, Plaintiffs : No. 97 - 4481 civil : : : v. CIVIL ACTION - LAW PATRICIA C. DOWSWELL, Defendant JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMF.NTS OR THINGS TOI RECORDS CUSTODIAN Donegal Mutual Insurance Rt 441, Box 302 Mareitta, Pennsylvania 17547 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things at the offices of Reynolds & Havas, A Professional Corporation, 101 pine street, Harrisburg, Pennsylvania 17101: All documents, including without limitation all medical records, physical therapy records, charts, results of diagnostic studies, x-ray reports, billing records, and ~ny other related documents pertaining to Deborah A. Hurley (DOB 09/25/57) (Social Security No. 174-46-6225) (Policy No. PAE 050 8944). - You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by' this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. WHEREFORE, for all the reasons uJJrcsscd her.:in. PlalnliO's Kenneth und Deboruh , Hurley move for an Ordcr prccluding ur\lumcnt. tcstimony or introduction into evidence of uny previous personnl inJul)' settlement involving the PlulntllT. BUCHANAN INGERSOLL PROFESSIONAL CORPORATION By: Jayson ,Wolfllnng, Esqui 1.0. 1162076 30 North Third SlrCl)t 8th Floor Hnrrlsburg,l'A 1710\ (7\7)237-4800 DATE;' . 'i " , : ' 2 DEFENDANT'S PROPOSED POINT FOR CHARGE NUMBER 7 The Court has already instructed you about what you may consider in determining whether the Plaintiff was contributorily negligent, and whether such negligence, if any, and the admitted negligence of Defendant, was a substantial factor in bringing about the Plaintiffs' harm. I f you find, in accordance with these instructions, that the Defendant's negligence was a substantial factor in bringing about the Plaintiffs' harmr you must then consider whether the Plaintiff was contributorily negligent. If you find that the Plaintiff was contributorily negligent and such contributory negligence was a substantial factor in bringing about her harm, then you must apply the Comparative Negligence Act, which provides in section 1: The fact that plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff where such negligence was not greater than the causal negligence of the defendant, or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff. Under this Act, if you find that the Defendant was causally negligent and you find that the Plaintiff was also causally negligent, it is your duty to apportion the relative degree of causal negligence between the Defendant and the Plaintiff. In apportioning the causal negligence you should use - 7 - your common sense and experience to arrive at a result that is fair and reasonable under the facts of this acoident as you have determined them from the evidence. If you find that the Plaintiff's causal negUgence was greater than the causal negligence of the Defendant, then the Plaintiff is barred from recovery and you need not consider what damages should be awarded. If you find that the Plaintiff's causal negligence was equal to or less than the causal negligence of the Defendant, then you must set forth the percentages of causal negligence attributable to the Plaintiff and the percentage of causal negligence attributable to the Defendant. The total of these percentages must be 100 percent. You will then determine the total amount of damages to which the Plaintiff would be entitled if she had not been contributorily negligent; in other words, in finding the amount of damages, you should not consider the degree, if any, of the Plaintiff's fault. After you return your verdict, the court will reduce the amount of damages you have found in proportion to the amount of causal negligence which you have attributed to the Plaintiff. To further clarify these instructions, the court will now distribute to each of you a verdict form containing specific questions. At the conclusion of your deliberations, one copy of this form should be signed by your foreperson and handed to the - 8 - court clerk, this will oonstitute your verdict. The verdict form reads as follows I SPECIAL INTERROGATORIES TO THE JURV 1. Was the negligence ot Defendant, Patricia Dowswell, which is admitted, a substantial factor in bringing about Plaintiffs' harm? '{es No If the answer to Question Number 1 is IINo" do not answer any further questions and return to the Courtroom, otherwise, proceed to Question Number 2. 2. Do you find that Plaintiff, Deborah Hurley, was oontributorily negligent? '{es No If your answer to Question Number 2 is "No" skip Question Numbers 3 and 4 and proceed to Question Number 5; otherwise proceed to Question Number 3. 3. Was the negligence of Plaintiff, Deoorah Hurley, a substantial factor in bringing about Plaintiffs' harm? '{es No If your answer to Question Number 3 is "No'.' skip Question Number 4 and proceed to Question Number 5; otherwise proceed to Question Number 4. - 9 - PEFENDANT'S PROPOSED POINT FOR CHARGE NUMBER 11 In civil cases such as this one, the Plaintiffs have the burden of proving those contentions which entitle them to relief. When a party has the burden of proof on a particular issuer his or her contention on that issue must be established by a fair preponderance of the evidence. The evidence establishes a contention by a fair preponderance of the evidence if you are persuaded that it is more probably accurate and true than not. To put it another way, think, if you will, of an ordinary balance scale, with a pan on each side. Onto one side of the scale, place all of the evidence favorable to the Plaintiffs; onto the other, place all of the evidence favorable to the Defendant. If, after considering the comparable weight of the evidence, you feel that the scales tip, ever so slightly or to the slight'i!st degree, in favor of the Plaintiffs, your verdict must be for the Plaintiffs. If the scales tip in favor of th'i! Defendant, or are equally balanced, your verdict must be for the Defendant. In this case, Plaintiff.s have the burden of proving that Defendant's negligence was a substantial factor in bringing about their alleged harm. If, after considering all the evidenc~, you feel persuaded that this proposition is probably more true than not true, your verdict on this particlJlar issue must be fore the Plaintiffs, otherwise your verdict should be for the Defendant. Similarly, the Defendant has the burden of proving that plaintiff, - 15 - Deborah Hurley, was here.lf contributorily negligent and that .uch negligence was a substantial factor in bringing about Plaintiffs' alleged harm. If, after considering all the evidence, you feel persuaded that these propoeitions are more probably true than not true, your verdict on this issue must be for the Defendant, otherwise, your verdict should be for the plaintiffs. Pa. SBJI (Civ) 5.50 , ,'I , ' " , , , I , , " ,I' . I " ,. " - 16 - V. t HUSBAND, I t t t I t t 34 IN THE COURT OF COMMON PLEAS OF CUMBER~ANO COUNTY, PENNSYLVANIA DEBORAH UNNETH HURLEY AND HURLEY, HER Plaintiffs PATRICIA C. DOWSWELL, Defendant NO. 97-4481 CIVIL TERM IN REI PRETRIAL CONFERENCE A pretrial conference was held Wednesday, June 17, 1998/ before the Honorable Edward E. Guido, Judge. Prese~t for the Plaintiffs was Jayson R. Wolfgang, Esquire, and present for the Defendant was Rolf E. Kroll, Esquire. This 1S a simple rear-end collision that should take a day and a half to try. The Defendant will provide Plaintiff with the independent medical examination report of Or. Boal by June 23, 19ge. The Defendant may present her testimony by deposition at trial. Provided, however, that Plaintiffs' counsel shall be given the opportunity to conduct a discovery deposition of Defendant prior to the commencement of her trial deposition. [The Court/s understanding being that this will be conducted immediately prior to the trial deposition). plaintiff has demanded $17,500.00. Defendant has offered $8,500.00. 'Y th~ 1 Edward E. Guido, J. " 'I' \1 , , \, , , " Ii' " , , " " /,., ,'f l;_;1 '"j.;--'- t')::"'I!' ;~~ 0 I," ; ,( , ,~ 1 i .. h_.. , , " - >- " r') .:-/ .:J'l .... " " " " , " , " I , "I '-:J e,;'.J r.> t;: q ., ; f/-rJ f,,-j ,I',l-rl" ,f" . /..l) H.. .l:,'J ,--~ ( ') ~fn .' ;!t II b.) 1.088 of F:njl)YIII~nlof l.If~~ Thc l'lulntil'l' is cntitlcd tll hc Hllrly uml udcLluutcly compcnsutcd tor pust, prcscnt und I'uturc Illss Ill' hcr uhllity tllcnjllY uny 01' thc plcusurcs Ill' Iit~., us u rcsult or hcr Injurlcs. (l'a.S.S.J.J. (l'lv) 6.(11), c.) F:mbUrrlU8m~nl und lIumlllllllllnl Thc l'lulntil'l' is cntitlcd tll hc Iltirly und udcLJuatcly compcnsutcd lilr such l:mhnrrussml:nt und humiliation as you hcliew shc has endured and will continul: to l:ndurl: in thl: futurl: as a rcsult of her injuries. Wa,S.S.J.J. (Clv) 6.0IG). d.) Lost Wllges: 1 , The Plaintiff is entitled to be compensated lor the amounl of carnings that she has lost up to the time of the trial as a result of her Injuries. This amount is the dillerencl: bl:twcen what she probably could have earned but for the harm and uny less sum which she actually earned in any employment. (Pa.S.S.J.!. (Civ) 6.0IC). e.) Loss ofCllnsorllum: When a married person is tortiously injured. that person's spouse may recover dumages in his or her own right l(lr loss of consortium, Summary of Pa. Jurisprudence 2d. * 9:59. In Pl:nnsylvania. loss of consortium has hccn delined as "a right growing out of the marriage which the husband and wife have respectiwly to the society. companionship and affection of each in their lIle together," Bums v, Pepsi-Cola Me//'tIfloli/elll l/ol/lil/~ Co.. 353 Pu,Super. 571. SIC A.2d 810. 812 (Pu, Super. 1(86) (quoting [.eo \', !JOl/lllelll. 40 Wash, Co, 105. 108-09 (Pa. 19(0)). Any II 1 2 3 I 4 , I 5 , I I 6 ., B 9 10 11 12 13 14 15 16 17 IB 19 20 21 22 23 24 25 ,~ _.~~~~l~_.~._ ' ..~...._..._ I . Q Good alfternoon, Doctor. n. Good artornoon. o Before w~ begin, was there somothing about the address you wnntod to correct? n. Yes. Just to correct it for the record, it's 100, lOB, Lowther, not 100B. VIDEO OPERATOR: Sorry. BY MR. WOLf'GANG~ o I wanted you to be comfortable with the address, that's all. n. I am. I just don't know how technicality. Q Would you -- we're here at your medical offices today for the purpose of giving a videotaped deposition in this case. Would you briefly describe for the benefit of the jury where you obtained your college and medical educational training, please. A. I got my bachelor of science degree at CCNY in New York City, and I spent I got my M.D. degree at Hershey Medical Center, Penn State, and trained at Harrisburg Hospital where I received a -- I did a residency in internal medicine, and am board certified in internal medicine as of 1977, board certified in geriatrics as of 1994. Q What does board certification mean? HUllS {. ~HIICAS RU'OIf/'IN" SI:RVICf "flrr;~'JII~ 717.21".('61) '(.,,4 717.H4!I-MIH PA. '.HOO.2.lJ.Y.11i 11 2 3 Q 4 5 6 7 A. B 9 10 11 12 13 ,14 0 15 16 17 A. IB Q 19 20 A. 21 22 23 0 24 25 A. ()1 uck - . ,_.........I.L-...... I I certniul alln1untll, wo, in IIn adult paLlent, we do in dotaili. I don't. wllnt to conflHIU internal madicine with the discipline of ;1 I'ultllly practice, but is what you do similar to what il family practice is to a family but only for adults? It's in a way, yus, but we take it one step further because we do tend t.o speciali ze in adults. And we get more training in subspecialties such as rheumatology, cardiology, gastroenterology, and we get more training in those fields. As a family doctor would spend more time in pediatrics, obstetrics, we would spend more time and just focus on the care of the adult patient. Okay. Fair enough. Dr. Gluck, you 're famil iar, are you not, with a patient of yours by the name of Deborah Hurley? Yes, I am. Okay. And do you know roughly approximately how long Ms. Hurley has, Mrs. Hurley has been a patient of yours? Since 19 -- I can give you the exact date, 19B5. October of '85 she came to the practice. She's been my patient since October of '87. Did you come to this practice sometime between '85 and , B7? I initiated the practice in 1979. fI/.lt/S "hi'" l/eAS U/J'(IUflNC; ,~Ulvrn; "llm~"u~ 7/7.]1/1 11M I )'lIr. 7'i.H"~.MIH 1''' HIIHJ.1.J.1-'U27 1 0 2 1\. 3 4 !i 0 6 7 B A. 9 10 11 12 13 14 15 Q 16 17 1B A. 19 Q 20 21 A. 22 Q 23 A. 24 Q 25 Gluck - Direct .,-.., .... Okay. i Uut aho ~ocamu your pationt in '071' Yes. Sho just was soon onco in 19B5 by one of my partnors, and I had than tokon over hor care in 19B7 and havo soon hor sinco. Okay. And for what typos of things woro you involved in Mrs. Hurley's care from 1987 until approximatelY June of 19967 Well, she had one chronic problem, she had a seizure disorder, where she had some what they cal1 syncopal episodes, she passed out. And we had her on medication for this and I monitored this medication. And I was also her family doctor, 50 sore throats, colds, anything that, you knoW, she was having problems with, I took care of. Okay. Up until June 25th of 1996, are you aware of any complaints or condition in Mrs. Hurley relating to her back, particularly her low back? No. Okay. Are you aware of her involvement in a motor vehicle accident on June 25th, 1996? Yes. And was she seen at your office on or about that date? She was seen on June 25th by my associate, Dr. Packman. Okay. And are the records of Dr. Packman included in Mrs. Hurley's chart that you have in front of you? I lUllS {r Md.UCAS IUI'( )I,nN(; Sn~VIC[ 1I."rhllUr,1l717.2Ifd"111 Yll'~ 7/7..'H'i.MIH 1'1\ 1.IW(J-211.Q117 11 12 13 14 15 16 20 21 22 23 24 I 1\. 2 3 4 5 6 7 B 9 10 Q A. 17 IB 19 Q A. Q 25 Th i II i:l; Dr. Pocklnon' II note ilClil in. I Tho hOilt!, neck ilnd shouldl.'!r pains woro gone. The hendacho was gone. Sho stilI had pilin in the lower bock. And he felt tlho hnd II moderately severo sprain of tho J.s spine, wh ich ill the lumbosacral spino, or tho lowor bilCk. l\nd he Hilla recorded thore was no radicu10pathy, which meant; ho fnl t thore was no nervc damage, thero WIIS no -- to his examination. He also felt a bruise over the left hip, because he pushed on it and it was tender, and he thought it was bruised. And what course of treatment was decided upon at that point, if any? The muscle relaxer was changed to something a little more potent callcd Flexeril. She was also started on an anti-lnflammatory drug called Naprosyn, and given a pain pil1, Darvocet. She was continued with moist heat and advised bed rest and not to work, with a return visit scheduled within a week. So as of July 2nd, 1996, then, is it fair to say that she had not yet returned to work from the June 25th accident? As far as I can record. Okay. And then was Mrs. Hurley also seen then approximately six days later on July Bth, 1996? /'II.llIS" Md.lIC,IS 1l/:/'OIlTlNG swvla II,mid'IItN 7'7.},ttdJh21 '(1I'~ ;'I7.J1.j,'i.()411l 1'1'\ J.o'lIHJ.2.JJ.'H17 1 fl. 2 0 3 A. 4 5 6 7 8 9 Q 10 A. 11 Q 12 A. 13 Q 14 A. 15 16 0 17 16 19 20 A. 21 Q 22 A. 23 Q 24 25 A. - Direct I sho W<1li Boen Il'lllin by Ur. l'il<:kl1l1ln on JuLy the 6th. What Willi hor condition at t:hat timo? Sho wall foolIng better at that point, and she atat:es that hor back and neck pain were botter, that: aha went back to work. She sti II had some pain, tenderness in the low back in tho thoracic area. And she was released to return to work at that time. Okay. Was she stilI on the medications at that point? Yes, she was. The same medications that you listed earlier? Tha t' s correct:. And then was Hrs. Hurley -- PIus, she was on her medication for her seizure disorder, Tegretol. Let me ask you about that, since you brought it up. Does her seizure disorder and/or the medication that she's on for it, do they have anything to do with Mrs. Hurley's back pain -- No. -- or her complaints? They're totally unrelated. Okay. Was Mrs. Hurley seen again at your office on August 1st, 1996? Yes. At that time she was actually seen for a medical HUllS f,. MdllCAS UrI'O/fnN<, SfUVICI: "'lrrl,""",~ 7'7-HIt-Of,l.J Y'I'~ 7/7.H.j,'i-MI8 fI," '-HOO-11J.Q.l27 1 . 2 0 3 A. 4 Q 5 6 A. 7 B 9 10 11 12 13 14 15 16 17 Q 18 19 A. 20 Q 21 22 A. 23 24 25 Gluck - Direct . compleqa phYHical. Okay. And did you, in fact, perform that physical? Yes, I did. Okay. What was her physical condition on August 1st of 1996'/ Well, she continued to have low back pain and a constant ache ln her low back. As r wrote in the note, she continues to have low back pain, a constant ache in the low back, paraiumbar, which is alongside both sides of her back. There was no pain in her legs. And there was no neurological signs. So we didn't think 'there was any nerve involvement. At that point, because she was still having problems with her back and even on the medication, r suggested chiropractic therapy, and I sent her to Dr. David Smith. Do you know if Mrs. Hurley, in fact, went to see the chiropractor, Dr. Smith? I believe she did. Okay. And do you know whether chiropractic treatment afforded Mrs. Hurley any relief at a11? I saw the patient again a month later on September the 4th, and she was seeing Dr. Smith and she felt she was making some improvement. I did feel less spasm at that point, but the patient still complained that as the day nUllS {, Md.lICAS IU;PORrlN(; SfNVlCf "Ilrr;.;/ttlr:~ 717.}I/,.(III2.I }-Ilrk 717.H.f,'j-641H 1'1\ 1./l'fIo.HI.lJl17 1 2 3 4 5 6 7 B 9 Q 10 11 12 A. 13 14 15 16 17 18 19 20 21 22 23 24 25 Gluck - Dircct 13' ' . __...._~ .. .". n I went on, the pain bccame morc -- you know, she did still eXPerience pain, usually better in the morning, but as she sat for soveral hours the pain startod and became worse throughout tho day. She stopped medications at that time and just remained on a pain pill as needod. And she was followed, she was continuing to follow with the chiropractor. NoW, you mentioncd spasm, that you felt spasm on that particular occasion. Would you describe for the benefit of the jury what spasm means? Muscle spasm is like a muscle tightens up. It's a knot in the muscle. And it could come and go. It depends on activity, it depends on the injury, it depends on -- it could even depend on the weather. And people with what I call a flexion-extension injury, where the back is whip lashed back and forth, where it is felt that the muscles undergo some tearing or searing, and the ligaments in there as well, oftentimes tend to go into spasm at various times. Sometimes it's induced by exercise. Sometimes it's induced by prolonged sitting. Sometimes even stress could cause susceptible muscles to spasm. And in her case, I believe she was made more susceptible because of the accident. And in this mIll'" MdIlC,\' II/I'Il/n/NG ,[/lVler IIlmhllllr,'l717.lIhllh1J YM~ 717./Wi-M'" pt\ '-}loo.2.1.1.9.l27 1 2 3 Q 4 5 6 A. 7 B 9 10 Q 11 12 A. 13 14 15 16 17 18 Q 19 A. 20 21 22 23 24 25 ,..-...... " I . particular notc!, 1 bellnvn thu, when Ghe Gnt for any period bE time, her back did '10 into morl;) s'pasm. And you' mentioned flexlon-eXl.nnnion injuries. That's the type of injury that YOll b,!llevc that Mrs. Hurley sustained in the June 25th, '96, accident? Yes. According to Dr. Packman's note, he thought there was a whiplash injury. And flexion-extension just means a jolt backwards find forward, so you get a searing or tearing of the muscle groups. Do you then see Mrs. Hur ley on August -- or I'm sorry -- October 15, 1996? Yes. At that point she was having more pain, and she says the chiropractic therapy was not really helping her as much as it did before. I felt another -- she was having upper back and lower back pains, and I sent her to a physiatrist, Dr. Lupinacci, for evaluation at that time. What does a physiatrist do? A physiatrist is a rehabilitation doctor, and he specializes in all kinds of bone, muscle, injuries, strokes, just rehabilitative medicine. People who have accidents, he orders the appropriate physical therapy. People who have had orthopedic procedures, he gpts them back to health. So he, a physiatrist would deal with any kind of /'II./IIS" Ald.l/CAS N'I'Cl/lnNc; Sl.'IlVIC/: lI.mj~'llIr,\( 7,7.1Jh.0fl2.1 'Y1".I.. 7'7.Jl4~"14'X fl.", '.HOO.2.lJ.9.J27 1 2 3 0 4 5 A. 6 0 7 B fl.. 9 10 11 12 Q 13 A. 14 Q 15 16 A. 17 Q 18 19 A. 20 Q 21 22 A. 23 0 24 25 . I musc1etback injury and/or oporations and/or illnesBo~ pertaining to those groups. Was it your beliof at that point in time that physiatry could be of sarno bener i t to Mrs. l{llrley? Yes, I thought it might. Okay. And do you know if she, in fact, went to see want to check the note. Yeah, she did. She saw Dr. Lupinacci on November -- I got the letter on, r just want to make sure this is all -- Do you have Dr. I,upinacci' s report of NovembElr 4, 19967 Yes, that's what I'm looking at, November 4th, 1996. And it indicates that he saw her on what date? In the first sentence it indicates. October 25th, 1996. Okay. And did you receive Dr. Lupinacci I s report at or around the time it was written? Yes, I did. And that was included in Mrs. Hurley' 5 medical records hero at your office? That's correct. And is that a report that you would have reviewed and relied upon in your ongoing treatment and care of Mrs. Hurley? fII.1l1S e< Mc/,lICAS Ilfl'OIUING smvrcr ".lrrh"",,~ 7J7.2.J6.(J62J '(lirA 7,7.HoI,'1-tI4,H "" '-tIlW.2.l.J.9.127 --"- <'---.---.-. .... .'. - ........ .", . -,.~--_. --..-.--.--...-- 1 2 3 4 Q 5 6 A. 7 0 B A. 9 10 11 Q 12 A. 13 Q 14 15 16 A. 17 IB Q 19 20 21 22 A. 23 Q 24 25 . radicutopathy. So ho did find some evidunce of nerve involvement involving one of the nerves going into the arm. And that would have been a nerve coming out of the cervical spine? Neck, that's correct. Okay. He also found a lot of what they call myofascial pain, which is muscular pain in the regions of the neck and shoulder, the low back and flanks. Qkay. That was his findings. Now, Dr. Gluck, in your opinion at that time were Dr. Lupinacci's findings consistent with your findings of Mrs. Hurley's condition? Yes, they were. I myself did not find the C4 sensory radiculopathy, he had. Okay. You mentioned that he described her whiplash injury as an acceleration-deceleration injury to, I think you said to the neck. Did that also include her lower back? Yes, it did. Okay. And then are you aware of whether Mrs. Hurley was seen at a subsequent time by Dr. Lupinacci or someone at his office? HUllS {, M.'WCAS R/:/'ORTING SERVICE "Itrrl~'",rx 717-2.16.(162.1 Yor" 7J7.H4.Hi41H PA. '-Hf)O-,U.1.9.JJ:7 1 2 A. 3 0 4 A. 5 6 7 B 9 10 11 12 13 Q 14 15 16 A. 17 Q 16 A. 19 20 Q 21 A. 22 23 24 25 Gl\Jck - Di rcel 21 " ::.' .1"....... . 1'/th, ~996'1 Yos, I,did. And what wss hor condition nt that time? At that time sho underwent her course of physical therapy, she was released. She stated her upper back was bet tor. And she still had some spasm in the low back, and she had intermittent -- she still had intormittent 10w back pain. still did n~t have signs of radicular damage or nerve damage, what I said. The upper back pain was improving. The lower back pain was slowly improving. And but she was certainly not symptom free at that time. And did your treatment and care of Mrs. Hurley in connection with these injuries continue beyond December of 1996? Yes, it did. When was the next time you saw her? The next time I saw her was -- I'm going backwards. February 14th, 1997. Okay. And what was her condition at that time? She was doing somewhat better. She states the upper back was better. She stated as the day went on that her back got tired, which really meant that she had pain in the back at the end of the day, especially when she sat through hor job. IIUlIS /" MdU(t\S '~n'(}R"'N(; sn~vlcr. ",'rrj~I,"r.'( 717-2.16.(lh11 rllr~ 7J7.H"',-MJH 1'..1 '.H(1O-2,).1-'U27 1 A. 2 0 3 4 1\. 5 6 7 B 0 9 10 A. 11 12 Q 13 14 A. 15 Q 16 A. 17 18 19 20 21 22 23 24 25 Gluck - lJi roel 23 , r bc1ie~8 it waB, might have bean done by dr. Lupinacci. Okay. And what, if any, benofit would Mrs. Hur1cy dcrive from that type of an evaluation? Wcll, they would (!valuatc lwr, If II diffcrent chair would hclp, if difforont carpcts would help, just diffcrent positions, body mochanics, things like that, would help her feu1 better. Okay. Now, If we could, then, move all to April of 1997. Did you examine hcr at that time? Yes, I did. No, r didn't. Dr. Britton did. Sorry about that. I'm sorry. And were Dr. Britton's findings included in Mrs. Hurley's chart here? Yes, they are. And what was her condition at that time? She states that she felt okay in the morning, again, but by mid day she gets an ache across the lower back. And again, as we just discussed, she got a proper chair. They built up her desk platform. They got her desk headsets. But every day she's pretty mlJch complained of a back pain. She then started on Motrin, which was an anti-inflammatory agent like Advil but at four times the strength. And she has, she was on pain pills such as Darvocet but it made her sleepy, 50 she didn't want to 1'11.111."; I' MdJHA"i III ,.O/UI.'Vf; ,'>i'N\'ICI 1I."mllll'," 7I7-]IIl (I"n t",~ 7,'HH-MIH ",1 /HIHI lIPH17 Gluck - 1 I . take' ~t during the day. I I I ,! 2 MR. WOLFGANG: Could we go off camera, please, just 3 for a second. 6 VIDEO OPERATOR: We're going off the video record. The time of day is 5:1B. (DiscuEsion held off the record.) 4 5 7 VIDEO OPERATOR: We're back on the video record. 8 The time of day is 5:19. 9 BY MR. WOLFGANG: o Dr. Gluck, I believe that the office visit involving 10 11 12 Dr. Britton occurred on April 29th, 19977 A. Tha t 's correct. 13 Q Okay. If you could just stop for the moment and go 14 back. There was an April 15, 1997 office visit. Are 15 you aware of that? 16 A. Yes, I am. 17 Q Okay. And was that an office visit with you? 18 A. Yes, it was. 19 Q And what was the condition for which Mrs. Hurley was ! i I I i 20 seen on that particular occasion? 21 A. She more or less was under a lot of stress and her blood 22 23 pressure was elevated, and we basically focused on that. From my note, basically her dog was diagnosed as havinq 24 a tumor and she was really upset about that. And we ;,1, 25 were concerned, because she was on a diet program and' fII,/lIS" M<I,lICAS /l/:r>clRl'ING SfRV/CI: ",m;~""~ 7t7-1.Iti-l1h7..J '(","" 7''l-H.J.')-h4IH II,~ ,.NOO.].l.!.",I,!;' 1 A. 2 3 Q 4 5 A. 6 Q 7 B 9 10 11 12 A. 13 0 14 15 A. 16 Q 17 A. 18 Q 19 A. 20 21 22 23 24 25 . Shu'WaSI getting too sleepy on tho LJarvOcElt 'and f(llt s!w can us~ it at homo but sho had trouble working on it. Okay. And is U1trnm a medication that is also designed to be a muscle relaxant? No. It's just strictly a pain medication. Just pain, okay, r'm sorry. Now, as we were going through this chronology and now we're into April of 1997, are these, the condition that she had with regard to her back pain, is that a condition that in your opinion was related to the June 25th, 1996 motor vehicle accident? Oh, absolutely. Okay. Did Mrs. Hurley continue to receive treatment and care from your office after April of '97? Yes, she did. When was the next time she was seen? June 11th, '97. Okay. And what was her condition at that time? At that time she was still having a lot of back problems. She stated that when she woke up it wasn't too bad, but once again, in the middle of the afternoon she felt it was like a toothache in the mid portion of her back. It gets worse as the day goes on. And then when she goes home, she rested and laid down, and she said it did help somewhat. And basically, according to 111./11., /, M....lIC,o\" 11/:I'ORrlN<; SUlV/O "'''W'IU'.~ 717.]III./IhH )Nl 7J7.H4'!-MIH 1'1'\ '-HI}o-H)-III]] 1 :1 3 4 Q 5 6 A. 7 0 9 10 11 12 13 14 15 16 17 0 IB 19 20 A. 21 Q 22 23 24 A. 25 Gluck - Direct 27 her, it, occurred on a daily basis, as conslstcnt with her prior history, and she had to limit her activities due to pain. Okay. What, if any, assessment was made at that time with regard to Mrs. Hurley's future prognosis? At that point I was really getting concernod because of the length of time and the nature of the injury and Dr. Lupinacci's note. And I was concerned that she was entering a chronic phase because she was really not getting much better. She had good days and bad days, but she really wasn't progressively improving. And I thought this was going becoming a chronic condition. And I did tell her that when she did have bad days, that she may have to take it Qn a day-to-day basis and she may have to take some ,time off from work and limit her activities, and she understood this. Okay. Now, as of June 11th, 1997, does your note reflect approximately how much weight Mrs. Hurley had lost by that time? Yes. We have a -- her weight was 178 on June 1997. If I could direct your attention to your office note under the medical evaluation, paragraph 1, does it record there what her weight loss was? She lost a total of 30 to 35 pounds at that point in time. II/./IIS r. MdllCM IlIl'OIH1Nc; ,~I.IlVln """'-""".11 7I7.} Ih'''f~H )olrl 717-.Ij.I'J-fl"UI "," I.HIH).211.~117 1 . 0 7. 3 4 A. 5 Q 6 A. 7 Q B 9 A. 10 Q 11 A. 12 Q 13 A. 14 Q 15 A. 16 0 17 A. IB Q 19 A. 20 21 22 23 24 25 Cluck - I.lirc>ct Okay. . And again, was t.hut the rC>l3ult of tho combination , . of tho diot progtam and exercise regimen that she was on? That's correct. Okay. And the pills. She was on the pills, too. Yes. When was the next time ~rs. Hurley was seen at your office? June 11th. I think we just covered June 11. September 11. Okay. I'm backward. That's okay. Dyslexia. symptom 11th of '97? Yes. What was Mrs. Hurley's condition in September of '97? She appeared to be unchanged at that time. She still continued to have back pain. She felt well in other regards. She's not having, you know, her seizure disorder was under good control, her weight was under good control. But she continued to have back pain, again episodic, again, you know, pretty much on a chronic basis. She, in the morning she felt good but as nUlls lfMd.lICt\.'i UU'fmnN(; SfRVICf /fllr,i~'mr,'l 717.21/i-III,2.1 )',1,11 7J;'.,'1.J'j.fI.I'H 1'1\ '..'!fXl.HJ.tJ.J27 I. ;.! 3 4 I' ~ 6 ., B 9 10 11 12 13 () 14 15 16 17 IB 19 A. 20 21 22 23 24 25 b'Iri\(',II;ly III Iii" lIill1l(! typo of tll.lual.ion, a~d she felt uXildly Ilk" IIIiIt did buloru Illio wall in that second ncddolll: 011 ,Jiln1lllry Ilth ill what she t.old me. lihlt twld lhll;lr:.llly tlh'l nUll had the chronic low bock polIn which '11)1. Wor.IlO /11I tho day went on, better in tho IIlIitnlll", wortI<' ,Ill the day went on toward the a llut nlmn. llh..! t:Il:oPP<l<1 tho muscle relaxer and stopped the ~:lovll Iltld Hhl) W,lll 11hIo to sleep again. And she was ntlll on I.ho onU-inflamml.ltory, the Motrin or the IbuproCon, Mid Ilhl~ still was having spasm at that point in limo. Now, t.hu chr.onlc: back pain that you just testified that eho continuud to have, did you have an opinion at that point whothur. thut chronic low back pain was a result of the Hecond accident in January of '9B, or was it the chronic low hack pain that resulted from the first accidont in June of '967 My opinion at that point was it was from the first accident, because in her own words she says, now I feel exactly as I did before the first -- the second accident occurred, my symptom complex was pretty much the same. Ill1r day, ,her routine was the same, her pain pattern was t.ho tlame. So r basically felt that she was back to where she tn/us to' i\fd.lIt'/\.'i IU:t'O/UING SfHVICf "'lm~"..'.I( 717-111,.0/111 "'Mil 717.SH-MJH 1'/\ '-IW(J.2J.J.9J17 -.--..--- ---.- ...-- -- I 2 0 3 4 5 6 A. 7 0 B A. 9 10 11 12 13 14 15 16 17 18 19 Q 20 21 A. 22 0 23 A. 24 25 Diroct. . ..--_..J..-..4___.._. ,." ~.. ., ___~_.__..._..- activi~iofl. Okay. Aro you also awaro of Dr. Boal's opinion that this chronic condition of which or from which Mrs. Hurley suffors, is something that will not be permanent, that is, that at some point it will resolve? r am aware that he had stated that. Do you agree or disagree with that? 1 have to disagree at this point. Basically, r know her for 11 years and she's never had any problems with any kind of back or neck injuries, never had any pain, never complained of anything. And basically, I feel her pain pattern has stabilized to the point of being chronic and unchanging over the past year and a half. And based on that, it is my opinion at this point that I don't feel she's going to improve much. And as Dr. Lupinacci even told her back in '96, that after an accident like this, that he didn't expect her to improve a hundred percent, that various modalities will help her but not cure her. r understand. Now, did you again see Mrs. Hurley August 19th of 199B, which would have been a few weeks ago? Yes, I did. Okay. And what was her condition on that occasion? At that point she was having some back pain in the morning, and that was a little bit unusual for her. But she said that she did do her exercises, whenever she rt/./lIS" M..r,IIC,I.~ tlU'WlHN(; Sf/lVICf "r",i~ll//r:; 717.1.I/..(Jh11 'rflr" 7rJ.lWi.641H fl."" J.,oUH).2.1.1-".127 Gluck - Dlrect ...43, _,., ....-..-. ~. --.,.---... .."- 1 2 3 4 5 6 A. 7 0 8 A. 9 10 11 12 13 14 15 16 17 IB 19 20 21 22 23 24 25 '~1L-t the jur~ hOB not hUDrd at this point yet o~ Dr. B041 in connection with the difference between sUbjective and objective findings, and Dr. Boal testified that spasm would be categorized as an objective finding. Would you agree with that? That I S correct. Okay. And how would yeu define sn objective finding? Objective finding is something you can see or feel or measure. And spasm is unlike another type of measurement, like let's say a sugar, where there's a number, it's either a hundred or 150, where a spasm could, you know, basically it's the examiner detects spasm. You know, baLically it's an examination; he feels a hard muscle, you don't feel a hard muscle. You know, it's something that you feel through experience. And that's pretty much the objective and SUbjective. It's important in, since you asked that, to relate, too, that in Mrs. Hurley's case, the subjective history is very important, because this is a woman, as I said, I've known since 19B? who never ever complained of anything, a woman who has really tried to get back to work, a woman who continues to try and, you know, I really feel that she has done everything in her power to try to alleviate this problem. Unfortunately, it continues to plague her, and I think she has limitations nUlls" MdllCAS f!l.I'OR'fINC SERVICE IIlmj,~"fjr.1l7'7-l.Jo.fJ62J )'.,,~ 7l7.H4.'HWIH PA f.llOO.2.1J.9J21 --..---...-..-. .-._._~.. .~---- .._~ 1 Q 2 3 4 5 A. 6 0 7 A. B 9 0 10 11 A. 12 0 I 13 A. 14 0 15 A. 16 Q 17 A. 18 Q 19 A. 20 Q 21 A. 22 Q 23 24 25 A. "..Gluck .,. CraBB ...,.. , -;---......---.....-.......------ ~..~... _._....~.....-... ...;,..,,. ,;. Okay. ~i11 you agree with mc, Dr. Gluck; ~hat in the opjectivl.! portion of that note, it saysl VS, vital signs, are stable, chest is clear,' hellrt shows a regular rate, her abdomen is soft. Correct7 That's correct. Is there any mention of muscle spasm in that note? Tho -- he did not, I don't sec -- just subjective. I don't see where he commented on that. And in fact, there's no note that she sustained at that time any seatbelt marks that were observable? There's no note of that, that's correct. No cuts? No cuts. No bruises? Not according to the note. No scrapes? Not according to the note. No black-and-blue marks? No. No swelling? Not according to the note. All right. And what the doctor did that day was he sent her for x-rays, and she had x-rays done at Seidle Memorial; is that right? Do you have them? I don't know whether they were done nUlls I. Md,l/CAS Im'OU'I'IN(; S/:UVICI: It.''n~I'jjr,~ 7J7.].J6-0b2.1 '(",k 7J7./I"~-6-f'8 "A ,.800.1.1.J.9.J27 -------..--.--- .-.. ....... ,,--- I 2 0 3 A. 4 Q 5 A. 6 Q 7 B A. 9 Q 10 A. 11 Q 12 13 14 15 A. 16 Q 17 A. IB Q 19 A. 20 Q 21 22 23 A. 24 Q 25 A. Gluck -, Crolw. _v~..u.~,_.......__ or --, r don't. know if they'rQ in your chart or,not. I I J.l ch~ck. r only have one copv. r didn't make a copy. July 3rd, 1996, at SeidlQ Memorial Hospital. Well, r don't have those. What I have is June 25. r'm sorry, yeah. There were two x-rays, I'm sorry. June 26 she had a cervical spine. Cervical. Right. Okay. Now, let's get the terminology straight so we've been using terms interchangeably and I just want to make sure the jury's straight on this. The cervical spine is the neck? Correct. The mid back or upper back, that's the thoracic spine? Correct. And then the lower back ia the lumbar spine? That's correct. All right. Now, I would like you to look at the x-ray report from June 26, 1996, and that's a cervical spine study, correct? That's correct. And that was ordered by a physician in your group? That's correct. H1./lIS" M.-LlICAS REI'CJImNG SERVlcr IIlm'tf/""ll 7r7-2.Jti'Ofi2.l 'Yor" 717.H"_~.641S "A I.HIJfI~2.J.J.9.l17 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Q 2 3 1\ 5 A. Q 6 7 A. B Q 9 A. Q A. Q A. . .._____.~...u......... .-~--- " '-;-::-:,. I And we:1~ talk about that in a 11tt1e bit. Th~ next day she went for x-rays of the pelvis, tho 10ft hi,p, and the low back, the lUmbosacralspihe? Correct. And the x-ray of the -- Dr. Durisck, he's a board- certified radiologist? I believe. You know, under oath, I give you 99 percent. Okay. That's close enough. But in any event, it was Dr. Durisek, who a radiologist who specializes in radiology? That's correct, yes. Found that there was a normal pelvis and a normal left hip? That's correct. And she had, when he looked at the low back, she had minimal disc degenerative changes at L4-L5?, Tha t' s correct. Q And otherwise it was a normal spine? A. That's correct. Q And again, these are arthritic changes that would,have pre-existed the accident? A. Well, disc degeneration is not e~actly an arthritic -- it's kind of a -- the discs are spongy tissue that sits in bet\~een the bones, and as one ages they get narrowe'r and degenerate a little bit. So you can't say it's an r/l./lIs" Md lIeAS flf./'ORTING srRvlcr IIrlrn51111'X 717.].1',-1)1,21 '(dr~ 717.H4.'j.64,H "A I.HOO-2J.J-9,J17 1 2 3 4 0 5 6 A. 7 Q B 9 10 A. 11 Q 12 13 A. 14 Q 15 16 A. 17 Q IB 19 A. 20 Q 21 A. 22 Q 23 24 25 ---~: arthritic cunditLun, but it's a condition that behaves, that --,well, not behaves, but it is a condition that's involved with thu aging process, as arthritis is. All right. And that L4-L5, is that basically ~t the belt line or a iittio abovo? Yes. And when you talk about the disc, what happens over time, am I right, that you lose some of the water or hydration of t.he disc, the bones get closer together? That's correct. And when that happens, sometimes people end up with a pinched nerve? That's correct. And thon they have the pain down in their hip and into their leg? That's correct. Okay. But whatever condition she had on July 3, 1996 in her low back was there before the accident? X-ray findings. Right. Correct. All right. I'm not going to go through all the notes. I will let you glance at them or read them, whatever you want to do, but I want to -- I've looked and we know that you said on direct examination that muscle spasm is /'II.llIS /, Me/,II'A' rIU'OIl'flNC; SI:IIVItT "',m,dlllr,\( 717.}.1(I-/Jh21 )lIr" 717-114.')-6-IIH Pt\ l.tlO/J.211-Q.l17 1 2 3 4 A. 5 0 6 7 B A. 9 Q 10 A. 11 12 Q 13 14 A. 15 Q 16 17 A. IB Q 19 20 21 A. 22 Q 23 A. 24 Q 25 'Gluck - Cross 54.. . '~~l:.~_'':.;:: i somethipg that you can Bae or not see i depeljding I on tho day, depending on the activity, dependin9 on the stressor that the person has. Is that right? That's correct. Okay. And I looked through your notes of July 8th, '96, August 1, '96, September 4, '96, and October 15, '96, and I didn't see anything mentioned about muscle spasm. Go through those again? Yeah. July B, '96? Dr. Packman saw her at that point. He did not mention anything. Go ahead. And in fact, what he said on July B, '96, was the pain in her back and neck have pretty much gone away. Correct. And at that point all she was complaining about was thoracic or mid-back or upper-back pain? That's correct. Okay. And then the next one we talked about was August 1, '96, and that was your already pre-scheduled complete physical exam? That's correct. And did you note in your note, there any muscle spasm? I didn't note it, no. Jkay. September 4, '96, it says: Exam shows her muscles to be softer. Did you have -- nUlls {r MdUCAS UfPOlfrlN(; SfI(VICf. 1/'lm~llllrJt 'lJ7-2.1t1.lhI1l }I"i. 717.1i.j'j.MIH 1''\ '.lion-l.ll.oJJ17 1 Q 2 A. 3 0 4 [) A. 6 0 ., A. B Q 9 A. 10 Q 11 A. 12 Q 13 14 15 16 17 A. 18 Q 19 A. 20 21 22 23 24 0 25 A. "~':"~""'-"". ...-...-..--. OkilY. I .fond hur upper buck at that point wnlli much . ! ~)l! t t'H 'I Urn-hum. I And again, you werG saying that she dldn't ~avc any of thcBD radicular or -- Nerve. -- norvo, pinchod nerves? Exactly. She was neurologically intact, in other words? E:xactly. So we can marry all these terms together. Yes. It was interesting, we wore on that note and you were telling us how the patient always does everything she's told and tries to get better. I saw that right about that time, January 13, '97 and January 20, '97, she was a no-show for two lab tests or something. Where were we? January 13, '97 and January 20, '97. She was -- but that could be for any reasons, you know. I mean, she always got her Tegretol levels done. I mean, it certainly could have been -- let's see if I can find out the reason for you. Things come up. ,I mean, as I said, she's always where are we? January 13 and January 20, '97. She was a no-show for her lab test, but again, I don't millS" Md.IICtlS IlU'OIlHNC; S[/lVla "j"r".dmr,~ 7'7-1.11i-flh21 Yllr" '1I7.Hf,,>-M'H 1'1\ '-HOO.21J.9.117 ----~.....-.. .'. 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "Gluck - CrOSB 57 .'.:.-.:'_~"_~,:"':~__ ..~~i.::, ':..~;;.;,-:. I hCl~ ., rCilc;on. Q At. this part icular time I would just like to, talk about Dr. Lupinacci just for a second. Now, after his physical examination he had five aBSe5Slnantll? A. By tho way, she did have her lab test in February of '97. Q All right. A. So she just delayed it a couple weeks, I'm sorry to inte rrupt, Q That's all right. Dr. Lupinacci's report of, is it October 25, '96? A. Yup. Q Is that right? Is that the right -- A. Yup. Q Okay. And he had basically five assessments in, I don't. know if they're in any particular order or not. But in any event, the first one was a cervical, that's the neck, acceleration-deceleration injury, That's whiplash? A. (Witness nodded head affirmatively.) Q With multiple impacts S'lstained in late June of '96? A. Urn-hum. Q And then number 2 was: Facet joint arthritis, multiple levels, particularly mid to lower cervical spine, and HUllS 1< Md,UCAS Iln>O/l'r/NG S[IlV/C1: "lIrri~l,u~ 717-2Jti.lIti2.1 Yflrli 117.H4.'i.h4UI I'A '.HOO.2.U.9.i'17 1 2 A. 3 0 4 5 6 A. 7 Q 8 9 A. 10 Q 11 12 13 14 15 16 A. 17 Q IB 19 20 21 A. 22 Q 23 A. 24 Q 25 A. . __ _....;__~,_.Ja..;;._-.....___....-;...;. .........;.;. _. H__+ .,......., '. .u_, _.._ ... _"-" I lowerllumbar roqion. hn the x-ray" . That' fl what we saw That's correct. Okay. ' And then at one of the levels that she had degenorative arthritis, C4, he also found a C4 sensory radicu10pathy, mild? Right. That's correct. And thon reactive myofascial pain in the regions of the right neck and shoulder and in the low back and flanks. That's another name for spasm. All right. And I'm not going to hit number 5 because everyone will see that I'm obese as well so we'll leave tha t alone. But in any event, just so we're clear on this, what you were treating her'mostly as a result of the '96 accident was her low back? Yes, that's correct. And had there been anything In anybody's opinion that the C4 was a real problem, there are additional tests that could be done to see the extent of, effect of or pi~ching of the nerve! is that right? That's correct. EMG, nerve conduction studies? That's correct. And they've never been ordered by anybody? No. She didn't really complain much of that, of that 1/lItIs /. Md,lICAS 1If/'OII'l'lNc; SIRVIlT ",,,/'i~hu,.!< ;"721';"1',11 YII'~ 7,7.,lf.U.ti4JIl "A /-110/1.1.1.1.'1.117 1 2 3 0 4 5 6 A. 7 ' Q fl A. 9 Q, 10 A. 11 12 P Q 14 A. 15 16 Q 17 A. 18 Q 19 20 21 22 A. 23 Q 24 2S A. Gluck - Cross - 60- -._- . ..:....:..:::_'-~' _.. p~ C/HIUre WOB up. I And baoically that viflit w<js mor.e concentr.ated on those things. All right. nnd then she came back in June and ~hen again in Septomber of '97. Was there anything objoctive, including spasm, noted in that office visit? Well, she did come back -- In June. Well, she even came back in April of '97. The oecond time, yeah, we will talk about that. okay. And that was more for the motoL' vehicle, you know, and , she saw Dr. Britton who again went, as you can -- went through the note. Right. And who prescribed the pain pill and prescribed that. And then where are we now? September 11, '97. Now about last year. I did not men~ion spasm. I just related her symptoms. All right. Then you saw her one more time in November, we've been through that note. And the next time you saw her or she was seen by the group was after the 1998 accident, correct? That's correct. Now, by ffiY count she's been seen six times since the January 1998 accident. I didn't count but I'll take your word for it. 1lf.I11S h \1d-UtA"; UfI'ORflN(; .'if:RVICf 1I"rrI\lwr.~ i/7-1II,-()I,1.I )',,,k 7,].H.,S.64J8 1'1\ '-IWO.2.JJ.'JJ17 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 1\ A. 5 o 6 7 B 9 10 A. 11 Q 12 A. Q A. Q A. o A. Gluck - Redirect 63' , ....-,.. j i ... I I :word spasm was not. UBod in oach and; every one ot:.,your ~ I office notoa{ nut for example, if I could direct your -.. ~.._....~ attention ju~t vory quickly to the July 8 -- What year? '96, I'm sorry. And that was one of the occasions I think on which noto the comment that there was no spasm was made. Just under the objective findings there there's a sentence: Strength is intact and the spasm paraspinally is pretty much gone on that occasion. Urn-hum. Would what suggest to you that there was parElspinal spasm prior to that date? That's what it -- that's what I infer from that. Okay. Because he said it's gone, so it had to be there to be gone. And then that was January 8, '96. So prior to that date, she would have only been seen -- I'm sorry, July B, '96. Prior to that date she would only have been seen on July 2nd, and then the date of the first accident, .Tune 25th? That':3 correct. So at least on one of those two occasions would you infer from that that there was spasm present? From the note dictated July 8th I would infer from that, /lUllS tt MdJJCAS IU:I'OUTlNC; SfRVICl: ""md"ff,1{ 717.].Iti.O',2.l tor.l. iJ7.H",'j.MI,'/ 1',1 '.,'/IW-ll1- :.127 1 2 0 3 A. 4 5 Q 6 7 A. B 0 9 10 11 12 13 14 A. 15 0 16 A. 17 18 19 Q 20 A. 21 Q 22 23 24 25 A. Ulyck - Redirect 64 .J:~ yea. Okay. And then two Plus, Bhe wns given n muscle relaxer, 50' someone mUBt have thought she had spasm. So spasm, would spasm be an indication to prescribe muscles relaxer? Yeah. A muscle relaxer is treatment for muscle spasm. Okay. And then in December of '96, specifically December 17th of '96, you made an office note: Exam still shows some paraspinal spasm. Again, would you infer from that that prior to December of '96 when you made that office note, t.hat she had an ongoing spasm condition? Urn-hum. And-- Is that a yes? Yes, that's correct. And as I stated before, you know, it's a subjective finding and it can come and go and it depends -- Objective, you mean? Objective finding, yeah. And then your point with Mr. Banko was moving through April of '97, you brought him back to the April 29, 1997 office note where you again said that she does have a bit of muscle spa5ffi. What date are we? 1'II.lIIS f. Md.IICAS IUCl'O,rrlN(; SERVice I/..,ri.~'jurx 717.2.1II"fJi,H YM~ 7'7,H<I.~.64IH Pit '-1I00-.1.I.1-9'}27 1 Q 2 A. 3 0 4 5 A. 6 0 7 B A. 9 0 10 11 12 13 A. 14 Q 15 16 17 A. 18 Q 19 20 A. 21 22 23 24 25 .J'.. I ,on', t)'o~llry. ^!)~i l ~9 97 .' . r.,' . Dr. llr i,t ton. Okay. Is thore not a noto there thaE ~~~s she does havn a bit of muscle spasm? That's correct, And the next office note, June '97, marked spasm, do you soe that? Correct. And then November of '97, in fact, late November of '97, a month and a few days before that second aCGident, you state when you did her physical: Definitely paraspinal spasm along the low back. That's correct. Was there any doubt in your mind that leading up to the second accident that Mrs. Hurley had a chronic low back spasm condition? There was no doubt in ~y mind. Okay. And overall, Dr. Gluck, would you describe Mrs. Hurley as a compliant patient? Yes. That's the emphasis, you know, when you go through this is, Mrs. Hurley who I've known since 1987, has never had any undue complaints, has always been a reliable historian, has always been reliable in taking her medications, has always done everything I've asked her to do as far as testing goes. nUlls" Md.lICAS IlU'OR1'/N'; S[flVICE "'lm~l",rx 7J7.1.16.()61.l YII,Il 717.IH.'i-64'~ 1'1'\ '.HOO-2.lJ.9.127 1 A. 2 3 0 4 A. 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - Further . t ..... ~n thiH r.ilSl?, 1 ~ of her psin. 1 rhe trauma be~ng I feel the trauma certpinly was the cause. tho June 25th, '96 accident?, Correct. This patient had no back pain, no neck pain at all prior to this accident. MR. WOL F'GANG ~ Than k you. VIDEO OPERATOR~ This video deposition of Mir.hael Gluck, M.D., is now concluded. The time of day is 6: 14 p.m. (Whereupon, the deposition was concluded.) " . . . . . , , i'lL/liS /" MrUfCAS RE:PORTfNG SCRVICE: Ilf"r;~'IU','l7r7.2.1h-fll,1.l yc,,1t 717-H4.'i-MIH I'A J.HI)f'-2,J.l.~.127 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DEBORAH HURLEY and KENNETH HURLEY I I V. I File No. 97 - 4481 civil I PATRICIA C. DOWSWELL I S-ll-lLF. 0 E N A TO: SQt. Michael Hope. camp Hill BorouQh Police Department 2199 Walnut Street Camp Hill. Pennsylvania 17011 1. You are ordered by the court to come to the Cumberland county Courthouse at One Courthouse Sauare. carlisle, Cumberland County, Pennsylvania, on Monday, July 6. 1998 o'clock, --A-.M., to testify on behalf of at 9:00 Defendant, Patricia C. Dowswell in the above case, and to remain until excused. 2. And bring with you the following: the oriQinal non-reportable Police Accident Report. No. 96-155. dated 06/25/96. relatinQ to an incident involvinQ Patricia Dowswell and Deborah Hurley (a c09Y of which is attached). If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5 of the Pennsylvania Rules of civil Procedure, including but not limited to costs, attorney fees and imprisonment. ISSUED BY A PARTY/COUNSEL IN COMPLIANCE WITH Pa.R.C.P. No. 234.2(a). NAME: ste~hen L. Banko. Jr. ADDRESS: ReynoldS & Havas 101 pine Street HarrisburQ, PA 17108-0932_ TELEPHONE: (717\ 236-3200 SUPREME COURT 10# 41727 DATE: ~ ;2 'fJ' neal of the Court ivision OFFICIAL NOTE: This form of subpoena shall b used whenever a issuable, including hearings in connection with depositions and before arbitratora, masters, commissioners, etc. in compliance with Pa.R.C.P. No. 234.1. If a subpoena for production of documents, records or things is desired, complete paragraph 2. 10 - /)~ l'I1.'U'Y N PAA~Il) PA TITLI CR OuT 0' Sf"-" V'N OWN." OWN o\O~F\IS!I M 1N011Dl1""'" NUM". 2 3 QRIVER j) N"" rA1,<'/CIA ,,' ACORUI S Cln'. 'STATE .. ZtP COO. UXF COM~ J \lINN CAARI(~ CNlAIIA "'DOll US CITY: Sf",.! .. liP COOl! U nUl 07Jo Th-"t!il Oc.)~') O\jJI O'/'1U t P HILL pOLIce DEPARTN. 2201 MARKET STRl!I!T, CAMP HILL, PA 17011 (717) 737.1570 CON PlAINT !IJlltJ/..VIIJ !IMTI{.J 11'iV1liI11Q.4.T1NC) O"ICI" U. r/.... /.l' .AU"! UNIT2 " O>U'I """0 /'I P. Tin. OR OUT 0' ITA" "N OWN'.k< AOURU' , , &lIltCOOf YIAA --- COMPANY I../J NUMBlIIl HUM"" S.I/. CITY. IT",.I I liP COOl! 7 QIIWR CAARIIR QIIWR NO "" CAARlfF4 NO. 0' A)(l." AOQRIU Al<U!' crr.... STAll! .. ZIP COOl , us , DESCRIPTION OF DAMAGED PROPERTY ILLUMINATION 1 ' DAWN OR DUSK 2 ' DAYLIGHT 3 ' OARK (ST LIGHTS ON) 4 - DARK (NO SI LIGHTS) WITNESS NAME '/VI rNESS NAME NARRATIVE ,I" .I I _ Vn'f NO" INJURED TAXEN TO tJ'tJ 10 VIl'JLATION1 1 WEATHER OWNER LJ~lY '~I(JO 'A nn.JOA OVT 01' Ir,An VlN O'MO'. ADM." alJ;coot \'IAA --- COMPANY NI)UBlA HUWBfA OAlVl" N"" """'... cm: IIT,lTl & l]'COOI 'IX OATI 01' ."",, COM'" ORM" VlN CWlI eMAIER CARRtlR ADOAIII Crrv.STATl .. ZI' COOl U ANON,REPORTAILE .. U REPORTABLE AfIPAO'WID IV IWXlINO S- UNIT 3 RfGIISllA P!..ATI ..... . DfMl" SOl o ' NO ADVERSE COND, 1 .. RAINING 2, SLEET. HAil, ETC. 3 ' SNOWING 4, FOG, SMOKE, ETC 5 ' RAINING ANO FOGGY ( TRAFFIC CONTROL D~, ~ ~ 0, NO CONTROL~\~ 11 ' RR~:q!llj!NO 1 'FLASHI~T~ J\~F9L ~c SIGNAL; IV\'F~ MAN 2 ' TRAFFI IGN~ 7 ' FLAS 3 ' STOP SI It. . SIGN 4 ' YIELD SI N 8 - OTHER srllll'~ AIItAJ O ROAD SURFACE , -DRY 2,WET 3 ' MUDDY 4 ' SNOW OR ICE ADDRESS AODRESS . ..-" .--- \11P.\. - _____ ,- - ....-- V.I. ( All) _ 2. fk", 13tH-,ll AF'TI:A ,/'" 1V1/1 VF~A"IL), BY l S!CTlON NUMP!A CITATION R!PO:~L.:UMBER (USE BACK OF THIS PAGE FOR NOTES OR DIAGRAM) 7,1tfll'tc J/v_wf(. QVWR NO,C)fII """S T U/"; Gr/ . 34, DEBORAH HURLEY AND KENNETH : IN THE COURT OF COMMON PLEAS OF HURLEY, HUSBAND AND WIFE : CUMBERLAND COUNTY, PENNSYLVANIA V PATRICIA C. DOWSWELL NO. 97-4481 CIVIL TERM ORDER OF COURT AND NOW, July 7, 1998, upon relation of the Court Administrator that this case cannot be reached this trial term due to the number of cases on the trial list, IT IS HEREBY ORDERED AND DIRECTED that this case be continued until the September 1998 trial term, The Prothonotary Is directed to rellst this case for the September 1998 trial tem), Counsel are notified that they need not attend the Call of the List and no additional Pretrial Conference will be scheduled unless requested by either party, This case will be given preference and placed at the head of the list. By the Court. For the Plaintiff Jayson R. Wolfgang, Esq, For the Defendant Stephen L. Banko, Esq, ~'''"\.'''\l('\ ..',,'\", , 7- '1. 'I ~ Court Administrator :bb ~ b,) Lon or Jo:nJoymclIl or Llrct The Plulntifl' is entitled tu be Ihltly und adequately cOlllpensut~d lor past, present and future loss of her ability to enjoy allY uflhe pleasures oJ'llfe, as a result of her Injuries. (I'a,S,SJ,1. (eiv) 6.0 II), e.) Embllrrllsslllcnl and lIumilhlllollt The Plalntifl' is entitled 10 be Ihirly und udequately cOlllpensated for such embarrassment and humiliation as you believe she has endured and will continue to cndure In the fulure as a result of her injuries, (Pa,S,S.J.1. (Civ) 6,010), d.) Losl WlIges: The Plaintiff is entitled to be compensUled for the anlOunt of earnings Ihat she has lost up to Ihe time of the trial as a result of her injuries, This amount is the dinerenee between what she probably could have earned but for the harm and any less sum which she aclually earned in any employment. (Pa,S,SJ.I, (Civ) 6.01C). e.) Los80rConsorlium: When a married person is tortiously injured. that person's spouse may recover damages in his or her own right for loss of consortiulll. Summary of Po. Jurisprudence 2d. ~ 9:59, In Pennsylvania, loss of consortium has been defined as "a right growing out of the marriage which the husband and wifc have respectively to the society. companionship and affection of each in tbcir lile together." 811ms v. Pepsi-Co/a Metropolital/ /lo/llil/X Co" 353 Pa.Super, 571. 510 A.2d 810.812 (Po. Super. 1986) (quoting !.eo 1'. /lO/lmal/. 40 Wash. Co. 105. IOR-09 (Pa. 1960)). Any, II ! "", " , I ;'1 ., , , ' I' 'I ',I, , " , , , , 1 " .1 ", ,I I, !. I. , , , , . , . " ,. ,J., ., I ~' " , " ., " '1 :,) . , ',Il '" , .:. ) I-rl '-;) . ~ ... ,!-, ... .-.. ,,-.., DEFENDANT'S PROPOSED POINT FOR CHARGE NUMBER ~ The Court has already instructed you about what you may consider in determining whether the Plaintiff was contributorily negligent, and whether such negligence, if any, and the admitted negligence of Defendant, was a substantial factor in bringing about the Plaintiffs' harm. If you find, in accordance with these instructions, that the Defendant's negligence was a substantial factor in bringing about the Plaintiffs I harm, you must then consider whether the Plaintiff was contributorily negligent. If you find that the Plaintiff was contributorily negligent and such contributory negligence was a substantial factor in bringing about her harm, then you must apply the Comparative Negligence Act, which provides in section 1: The fact that plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff where such negligence was not greater than the causal negligence of the defendant, or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff. Under thts Act, if you find that the Defendant was causally negligent and you find that the Plaintiff was also causally negligent, it is your duty to apportion the relative degree of causal negligence between the Defendant and the Plaintiff. In apportioning the causal negligence you should use - 7 - '~'. ,,-.., your ~ommon sense and experience to arrive at a result that is fair and reasonable under the facts of this accident as you have determined them from the evidence. If you find that the Plaintiff's causal negligence was greater than the causal negligence of the Defendant, then the Plaintiff is barred from recovery and you need not consider what damages should be awarded. If you find that the Plaintiff's causal negligence was equal to or less than the causal negligence of the Defendant, then you must set forth the percentages of causal negligence attributable to the Plaintiff and the percentage of causal negligence attributable. to the Defendant. The total of these percentages must be 100 percent. You will then determine the total amount of damages to which the Plaintiff would be entitled if she had not been contributorily negligent; in other words, in finding the amount of damages, you should not consider the degree, if any, of the Plaintiff's fault. After you return your verdict, the court will reduce the amount of damages you have found in proportion to the amount of causal negligence which you have attributed to the Plaintiff. To further clarify these instructions, the court will now distribute to each of you a verdict form containing specific questions. At the conclusion of your deliberations, one copy of this form should be signed by your foreperson and handed to tt)e - 8 - /"- DEFENDANT'S PROPOSED POINT FOR CHARGE NlmBER 11 In civil cases such as this one, the Plaintiffs have the burden of proving those contentions which entitle them to relief. When a party has the burden of proof on a particular issue, his or her contention on that issue must be established by a fair preponderance of the evidence. The evidence establishes a oontention by a fair preponderance of the evidence if you are persuaded that it is more probably accurate and true than not. To put it another way, think, if you will, of an ordinary balance scale, with a pan on each side. Onto one side of the scale, place all of the evidenoe favorable to the Plaintiffs; onto the other, place all of the evidence favorable to the Defendant. If, after considering the comparable weight of the evidence, you feel that the scales tip, ever so slightly or to the slightest degree, in favor of the plaintiffs, your verdict must be for the Plaintiffs. If the scales tip in favor of the Defendant, or are equally balanced, your verdict must be for the Defendant. In this case, Plaintiffs have the burden of proving that Defendant's negligence was a substantial factor in bringing about their alleged harm. If, after considering all the evidence, you feel persuaded that this proposition is probably more true than not true, your verdict on this particular issue must be fore the Plaintiffs, otherwise your verdict should be for the Defendant. Similarly, the Defendant has the burden of proving that Plaintiff, - 15 - :j ~ -l ::! ~ ~ ~ ~ ~ 8 , L,~ . ~ I z ;i b 0 ~ 0 ~~l~ ~ <. ~ r fl' iBL J: . N q }> ~ d ~ Q) en b ~ III ~ c.l N , , I I (") t:) 0 C' .\' 'n .... r ~~ " ...1 l)I:: ~ " .1,']] "J .,r? r I :".J G\ ~I ul 'il C..;;.-; '. -,~'j~) :'"" J.:n " . "j" , )(~ ; ( ..- .' -- '(.11 :t.;'.J ~. '-' .. 5J ;;.;J ~" ~, .'1 l::l '... I, IMlIill IHI'NIN.lIIl, 1M. I<HIN IIA\'AH IIII1'''AYJ.III. .'uHIWIiIiJ . m:JlIIKN L. lAAIlU, JM.' I<H.!' I\. U<H.I. .AIMY A. UONT".u. UUMAI.W. .. ......]1 1II11''')).H I. TII<1Il1': REYNOLDS & IIA V AS A ,.......~)HAL ('1,.,.,....lll/l'l AmlllNHYH ANII CUlJNHI':UIIlH AT l.Aw 101 PINK STlII<t:T PtllfJ' 01'11<'1': Ilo~ 931 HAIIIIIIllIIMIl, Pt:l<NHYLYANIAI7108-0931 September 24, 1998 ...- 111"_ ,.. '7171_ ......... J~.. ~b.,'" via UPS Overniqht Curtis R. Long, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013-3387 ReI Hurley v. Dowsve1l Docket No. 97-4481 Our File No. 3785-1 Dear Mr. Long: Enclosed for filing please find Motion for Post-trial Relief of Defendant, Patricia C. Dowswell. In accordance with the certificate of service, a copy is being served upon counsel for Plaintiff, the Honorable George E. HOffer, P.J., the court reporter and the Court Administrator. Should you have any questions regarding this matter please feel free to contact me. VJr . trrlY yours, / // ~) S ep e~U" Banko, Jr. SLB,Jr. :sdg Enclosure cc w/enc: The Honorable George E. Hoffer, P.J. Jayson R. Wolfgang, Esqui.re Richard J. Pierce, Court Administrator Susan Stoner, Court Reporter P.S. to service list: Please disregard any other copy of a post-trial motion you may receive in this matter. An earlier draft of the motion which did not include a request for a r.emittitur was mistakenly mailed. The enclosed motion requests, in the alternative, a remittitur and is a true and correct copy of the document filed in the Prothonotary's office on September 24,1998. , I S. L.,h~ ,J,.. I , i \' 6Ctrtlftfrd _ II ('l"U TrWl ..\.1\...... b, the N.UIMI BMrd fI TrL.ll AdnflW)' A '....MYI"....'. NuprffM' ('""I AttudJI..1 Alent1 , , , , I' , , \ \,'. ~. } .... , ~ :;. , , .f ' , , ~ r ' , b ~ \ ~ <.>> ~ f' C) t .. ~ < D 11\' ~ ~ " ~ ,.. ::b ..... r. ~ ~ , I ., " , " , , , , , I , , , , , ., I. " ,i (') '.n <':) " ';))1 'n, .n ...j I I,~.;; ; "" " \.'J '~l /' 'I I r~ .- .' r,) ''''j " , 1_. ~, I.';, ~ j.i " , ) " '\~~ \ " I "~ (, ::.; ','F () 1::' ~'; ~ i-;. ):. 1',' U , .:;1 .. ,,' ~:l m ~i ..... .... , , , ;',1 " II "'I , , , I. , , '" INDEX TO WITNESS DIReCT CROSS 4 45 I' ~3 """I FOR THE PLAINTIFFS Deborah Hurley Kenneth L. Hurley FOR THE DEFENDANT Sgt. Michael L. Hope Deborah Hurley, on cross , I, I' .. , , , 2 I"" 75' 80 85 " , , , " .''"'" ,,.,.,..,, 1 2 3 4 5 (A jury was impaneled and sworn.) 6 (Mr. Wolfgang opened on behalf of' the 1140 p.m. Monday, September 14, 1998 Courtroom No.3 7 Plaintiffs.) 8 (Mr. Banko opened on behalf of the 9 Defendant. ) 10 (Plaintiffs' Exhibit Nos. 1 and 2 were marked 11 for identification.) 12 13 Hurley. 14 DEBORAH HURLEY MR. WOLFGANG; Your Honor, I'll call Deborah 15 having been duly sworn, testified as followsl 16 DIRECT EXAMINATION 17 BY MR. WOLFGANG; 18 Q Mrs. Hurley, bp.fore we begin asking you some 19 questions, since this is a case about personal injuries and 20 one of the things we'll get into is some of the medications 21 that you've taken, would you please just state what, if any, 22 medications you've taken today? 23 A The only medications I've taken today are 800 24 milligrams of ibuprofen and 200 milligrams of Tegretol. 25 Q Is the ibuprofen for your back pain? 4 .-. '~ 1. 2 3 4 5 6 7 e 9 10 ability to testify today in any way? 11 A No, not at all. 12 0 I'm sure the members of the jury feel like 13 they already know you, at least to a limited extent, because 14 of the things we've been through already, but would you tell 15 them where you live, please. 16 A I live at 1349 West Trindle Road, Carlisle. 17 0 Is that on the Trindle Road between Carlisle 18 and Mechanicsburg? 19 20 21 22 23 24 25 right? A 'tes. 0 Is that a prescription? A 'tes. 0 It's not over-the-counter sttength? A No, it's prescription. 0 The Tesretol, is that for the seizure diRorder that you've been medicated for? A Yes, it is. 0 Would eith~r of those medications impede your A Yes, almost exactly halfway between. 0 How long have you lived there? A We've lived there for sixteen years. 0 We, meaning who? A My husband and my two sons and I. 0 Is your husband, Kenneth, seated here to my 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 . 20 21 22 23 24 25 ....... ,,-.., A 'Yes, he is. a Mrs, H~rley, are you employed outside of the home? A Yes, I am. a What do you do? A I'm the administrative assistant for the vice-president of Oovernment and Trade Relations at Rite Aid Corporat ion. a Would you just briefly describe, you know, sort 'of. on an average day, for the benefit of the jury, what you have to do at your job at Rite Aid? A My department is the liaison between the various Boards of Pharmacy, the DEA, the PDA, in some cases the FBI when there's problems within the Rite Aid stores. We're in thirty-two states and in the District of Columbia. a Is' there a particular person at Rite Aid under whom you work or somebody that you work for? A Yes. I work directly for Jim Krahulic. a Is he a vice-president of Rite Aid? A The vice-president of Government and Trade Relations. Q Now, your position is that of an administrative assistant. What does an administrative assistant do at Rite Aid on a daily basis? A Well, certainly, I do the minor day-to-day 6 ...., ,-, 1 o A What grade are they in? Dan is a senior this year at Cumberland 2 3 Valley High School, and Ben is an eighth grader at Eagle 4 View Middle School. 5 Q Now, prior'to June 25th, 1996/ Mrs. Hurley, 6 could you describe for the jury the types of things that the 7 Hurley family would dOl for example, socially, 8 recreationally, on vacation, that sort of thing? 9 A Sure. We took at least one vacation to the 10 beach a year. We spend an awful lot of time in Baltimore or 11 Philadelphia at either baseball or football gameSt at least 12 we did. We enjoy boating quite a bitt either down at the 13 beach or up at Lake Reystown. I thought we were very 14 active. 15 Q Does your husband have a boat with his 16 father? 17 A Yes, he does. 18 o That/s like a motor boat, a boat with a motor 19 on it as opposed to a sailboat? 20 A Yes. Q That/s about all ~ knt::w about boating, so'I won't go any further. Using that boat at Reystown or wherever else you took it, is that something you did as 'a family before June 25th of 1996? 2l. 22 23 24 , , , , 25 A Yes, we did. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ o You mentioned going to Baltimore and Philadelphia to sporting events. What kind of sporting events did you go to? A We went to quita a few Orioles games. We've gone to Ravens games. We go to Phillies games. We go to a few Eagles games, not too many, but we did. o That was prior to June 25th of 1996? A Yes. o How did you come by tickets to those events? A One of the perks, if that's a better wor~ to use, for working for the vice-president of Government and Trade Relations is our chairman of the Board, Martin Grass, has a box down at the Orioles stadium. And if you've done a particularly good job that week, you may have been rewarded with two or four tickets right behind the catcher. Q Is that how you came by those tickets personally? A Yes. o What about the phillies and Eagles games, did you buy those yourself, or did you come by them through your. work? A No. I came by them through my work for favors, if you will, for field people. o Approximately how many of those types of sporting events would you say you and your family went to in 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .~ ,-.. A In the 3200 block of Trindle Road in Camp Hill. o Is that the intersection right there near the Camp Hill Mall? A The big intersection, yea. o Where Trindle Road sort of ends and goes onto that .. crosses that four-lane roadway? A Yes. o What time, at that point in time, were you required to report for work in the morning? A Oh, I don't start until 8100 in the morning. Q Why were you on your way to work at 7120 when the accident happened? A I always go in early. I'm always ready for the day. I don't walk in the door at 8100. o Now, in some of the testimony that was taken by way of deposition in this case previously, which the jury will hear a little later, the Defendant, Mrs. Dowswell, testified that she believed the accident occurred about 7:00 a.m. Would you agree or disagree with that? A Absolutely not. o Is there any doubt in your mind as to what time the accident happened? A No, there's no doubt. o Is that the way you drove to work every day? 12 ;~',." 1 A Yes. 2 Q At the time that the accident occurred, was 3 your car moving or stationary? 4 A I was stationary. 5 Q What were the weather conditions like on June 6 25th, 1996, at 7~20 a.m.? 7 8 9 10 11 12 A I think so. 13 Q How many cars, if you recall -- you don't 14 have to be precise -- but approximately how many cars were 15 ahead of you in this line of traffIc as you were stopped at 16 that intersection? 17 A As I approached the intersection, I can 18 remember that there was one car, a very old truck and 19 myself. . 20 Q Were you aware at that time whether there was 21 any traffic stopped in the line behind you? 22 A No. No, I wasn't. 23 Q You weren't aware, you don't recall, or there 24 wasn't any traffic? 25 A I wasn/t aware that there was any traffic A It was clear and dry and sunny. Q What about the traffic conditio~s? A It was heavy that morning. Q Is that what you might describe as rush hour through that area of Camp Hill? 14 "", ".....~ 1 behind me. 2 0 Was there a red light at that intersection 3 that caused you to stop? 4 A Yes. 5 0 Do you remember how many cycles, if more than 6 one, you had to sit through at that intersection, if you 7 recall? 8 A The light was turning red as we approached 9 the intersection, and the car, the truck and I stopped. 10 0 Do you recall that light then turning green? 11 A Yes. 12 0 What happened when the light turned green? 13 A The light turned green. The left lane, the 14 left turn lane that would have gone down 15 North, that lane 15 was moving. Our lane was not. 16 Q When you ~ay our lane was not, was the truck 17 in front of you moving? 18 A No. 19 0 Was the car in front of the truck, as best as 20 you could tell, moving? 21 A No. 22 0 Was your car moving at all?' 23 A, No, not at all. 24 0 What happened next? 25 A The next thing I knew, I got plowed from the 15 ~..., ,.'~"" 1 back end, and I had my foot still on the brake. I looked up 2 in my rearview mirror, and I saw the Dofendant in her car 3 behind me. And I came to the rapid realization that not 4 only was I rear-ended, but I was still moving. 5 0 Then what happened? 6 A Then she pushed me several feet forward into 7 the back end of the truck, which caused me to go back the 8 other way. 9 0 Did the front of your car actually impact the 10 ~ear of that truck? 11 A Yes, it did. 12 0 At any time during these events did you take 13 'your foot off the brake? 14 A No. 15 Q You've described a course of events where 16 you're sitting there, she rear-ends your car, you look in 17 the mirror, you see her, and then you realize you're still 18 moving forward, at which time you hit the rear of the truck 19 in front of you, which is like four or five different things 20 that you've described. Could you just sort of put that in a 21 time-frame context for the jury? How long did it take for 22 all of those things to happen? 23 A That happened in five, ten seconds. It 24 happened very quickly. 25 Q What happened after the front of your car hit 16 " ,""'I ,... 1 physically? 2 A I was excited. I was shaken up. When I 3 stood up, I hurt. 4 Q Where? 5 A My neck was tight. my upper back he~e in the 6. shoulder area hurt, and my lower back really hurt, 7 Q Prior to that moment when you were rear-ended 8 by Mrs. Dowswell, had you ever had any of those aches or 9 pains? 10 A No, never. 11 Q Did you talk to Mrs. Dowswell at all right 12 after the accident happened? 13 A Right after the accident happened, she was 14 standing outside of her car hysterically crying, because 15 tha.t man evidently pulled her out of her car. 16 Q Did you see that happen, or did you believe 17 that to be the case? 18 A I believed that to have been the case. 19 Q Now, there's been some talk about a Sergeant 20 Hope, who I think at that time was an Officer Hope, from the 21 Camp Hill Borough Police. Do you recall him being on the 22 scene at any time? 23 A He was in the car that was behind Ms. 24 Dowswell. When -- I believe when the officer noticed this 25 huge man pull her out of the car, that's when he got out of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ his car, and he was in uniform. Q Was he in a marked car, if you recall, or was it an unmarked car? Was it his personal car? Do you have any recollection of that? A It wasn't a police car, like a standard police car. I don't know if it was an unmarked police car or his own. Q Now, this gentleman who had the truck that you were pushed into, did he then leave the accident scene? Was he allowed to go? A From what I can recall, he and the officer walked up to his truck, asked him to pull it forward to see if he had any damage. He didn't. The officer then asked him to get in his truck and go. Q Were you and Mrs. Dowswell -- did you remain at the scene? A Yes. Q Did you have any further conversations with Mrs. Dowswell? A Very little, if anything. She was hysterically crying. Q Did she ever ask you if you were hurt? A She kept saying, did you hit your head, did you hit your head. No, I did not hit my head. I told her I was hurt, that my back hurt, that my neck hurt. That's all 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 """'I ,..... I remember. Q Did you tell her anything else that you can recall ? A Not that I can recall. Q Was there damage to the rear of your car where Mrs. Dowswell's car hit the rear of your car? A Yes. Q What was the nature of that damage? A There was -- the bumper was pushed in. There was a broken light. I didn't crawl underneath it. I don't know what Q Was that a 1993 Chevy Lumina? A Yes. Q Was there damage to the front of your car, where the front of your car hit the truck? A There was a lot of damage to the front of my car. Q Such as what? A Well, both headlights were punched in. The hood was buckled up. The grill was pushed in. There was plastic pieces allover the highway. Most of it was -- if you know what a bra for the front of the car is, most of my broken pieces were laying inside the bra on the front of the car. Pieces of it fell out, but most of it was laying inside the bra. 20 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '-, r-, 1 2 3 4 o Did you say anything to the officer? Without testifying what the officer said to you, did you say anything to the officer at all about seeking medical attention for your pain? A Yes. o What did you tell him? A I told him that I was a mile and a half from work, that that's where I was going. I did not want to go to the emergency room and end up sitting there all morning, that as soon as I got to work, I was calling my family doctor, and I did that. o Who is your family doctor? A Dr. Michael Gluck. o Where does he practice? A He has an office on Lowther Street in 5 Lemoyne. o Did you go to work and telephone Dr. Gluck's office to try to get an appointment that day? A As soon as I got to work, I called my husband to let him know what happened to me. I called the answering service for Dr. Gluck's office. They weren't in yet. They, took my information and said that someone would call me right back, to wait there, and I did. o Were you able to get an appointment that A Yes. They saw - - they had Dr. . Packman, I 21 ,I ,,' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 . 21 22 23 24 25 _,of....., ,-.. of the accident? A Yes, the imprint of the seat belt. I had a black and blue mark that ran from my shoulder, between my breasts, the whole way down. o As a result of your injuries stemming from this accident, were you required to miss any work? A I missed approximately a week of work at the beginning. And from that point on, I may have gone to work for the morning and couldn't make it any more and went home. I might come back the next day, maybe at lunchtime, and try for the afternoon. I worked as best I could. o Were those days that you missed from work uncompensated? A No. I was compensated. I had to use either vacation or comp time. o So, you missed out on using other days that you would have been paid for in order to take the time off? A Yes, I did. o Do you recall at that time, Mrs. Hurley, approximately what your weekly wage was or your weekly salary? A Approximately $612.00 a week. o Did you miss any other time off from work besides the week or so that you testified about? A I missed sporadically, quite a few days, , ! 23 ~ ~ 1 whether it was just the mornings or the afternoOns, or even 2 if I laste~ till 2100 and went home for the rest of the day. 3 4 had you missed any time off from work, let's say, in the 5 previouS five years? Q prior to this accident on June 25th, 1996, 6 7 A No, I had not. Within the week or two or three weeks after Q 8 the accident, what was your physical condition? Q I was in good physical health. Did you have back pain still? No. Before the accident? 9 10 A 11 A 12 Q No, after. I'm sorry. After the accident. I had major pain in 13 14 my __ the tightness that I had in my neck went away after a 15 few days. The pain that I had in my upper right shoulder 16 and my lower right back actually was quite severe. The pain 17 that I had specifically in my lower right back, it was like A 18 a fist-sized lump. It took quite a few days for it to go I \ I , 19 away. Q Did the pain in your mid or upper back 20 21 ultimately go away, as well, or no? 22 23 away with a series of exercise, but the lower back pain is 24 what I still suffer from now. A The pain in my upper back ultimately went 25 Q So, I take it from that that the lower baCK ,.,.. 24 " " , , '.i A Q planned? A Q A Q A ,","" ~ 25 ~ ~ 1 rental of that vacation unit was? :2 ^ Like 8:20 or 30 or 40 dollars, something like 3 that. 4 MR. WOLFGANG I May I approach thlll witness, 5. Your Honor. 6 BY MR. WOLFGANG I 7 Q Mrs. Hurley, I'm going to sho~ you what I've 8 marked for. identification purposes as Plaintiffs' Exhibit 9 No.2 and ask you to take a look at that. Do you recognize 10 that as the rental agreement for that vacation trip? 11 A Yes, it is. 12 Q Does that document refresh your recollection 13 as to how mllch the rental was for that particular vacation? 14 A Eight hundred and sixty dollars. 15 Q Now, the fact that you could not participate 16 in activities on this particular family vacation, did that 17 at all affect your husband or your sons' ability to partake 18 in the same activities? 19 A They didn't go boating. They didn' t go to 20 the pool. They basically stayed inside with me for a week, 21 and I appreciated that. 22 Q Was the reason that you went on the vacation 23 because you couldn't get a refund? 24 A Couldn't get a refund. They wouldn't apply 25 it to next year. I was stuck. 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ".'''.''1 ,.., Q Now, after that, did you continue to seek medical treatment for your back injury f~om Dr. Gluck and Internists of Central Pa.? A Yes, I did. Q Incidentally, Dr. Gluck has been yOU! family doctor since when? A Oh, at least ten or eleven years. A long time. Q What types of things over that course of time had you seen Dr. Gluck for? A Colds. He was treating me for my seizure disorder. Really, that's about it. Q Let's talk about your seizure disorder jut for a minute. Could you describe for the jury exactly what the problem was? A Back in I believe it was 1990, I was sitting at my desk talking to someone, much like I'm talking to you, and in midsentence I put my head down. Q How many times did that happen? A That's happened twice. Q When did it happen the second time? A The second time it happened while I was in the hospital while they were trying to figure out what was wrong with me. Q Were you examined by a neurologist or a 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ...... ,....~ 1'. They tried a dif ferent type of muscle relaxant called Skelaxin, I believe. It'a prliltty new. It's not supposed to knock you out. I've tried that. 0 Why did you need something different than what you've already taken? A Because I couldn't take the muscle relaxant during the day and function at work. 0 Was that the Darvocet or the - - A No, the Darvocet was for tremendous pain I had in my back. 0 So, that was the painkiller? A Yes. Q Which was the medication that knocked you out at work if you took it during the day, if you recall? A It's a name about that long. It's a muscle relaxant. o Did you go to see Dr. Gluck or someone in his practice, let's say, like in July and August of 1996 for your injuries? A Yeah, I was at Dr. Gluck's office quite frequently. Q How often did you go see him? A After the initial accident, I was there not even a week later. I was there before I went on my, quote, vacation, and I was there when I came back. I was there 29 ""I ~ 1 2 3 4 any better. o Did D~. Gluck also refer you to a physiatrist by the name of Dr. Lupinacci for evaluation? A Yea. o What wa~ your underatanding of what Dr. Lupinacci was going to try to do for you? A That waa at the Mechanicsburg Rehab Hospital? o Yes. A Yes. He prescribed a series of exercises and some hot treatments that they did to me actually right there in physical therapy, and they also -- he had an occupational therapist, I think it; was called, actually come into my office to look at what I do and where I do it. o There's a big emphasis these days on ergonomics. Was that what they called a work-site ergonomic evaluation? A Urn-hum. o Did they give you things that you were able to do in your daily work, in your job responsibilities, with your posture or with your seating or standing that helped you deal with the pain on a day-to-day basis? A Yes, they suggested a few things. My work was real good about getting a special orthopedic chair with a special lumbar support. They got me a headset unit, because I'm on the phone so much, so that I'm not going like !5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 ,""" 1"""'1 1 this all day and I can get up and move around. If I feel my 2 back tightening up, I can just get up and continue talking 3 to you, but get up and do my back stretches, and I feel 4 better. 5 6 7 8 Q A 9 Q A Do you have to do that on a daily basis? I do back stretches a couple of times a day. And that's true even to this day? Yes, it is. Once you were trained by the physical Q 10 therapist at Mechanicsburg Rehab, did you start doing that II in the fall of '96 and then continue to do it throughout? 12 A Yes. I'm still doing the stretching 13 exercises that they had recommended. 14 Did those exercises give you any improvement Q 15 at all as far as your back pain? prescribed -- or maybe you said the first time you saw Dr. Packman the day of the accident -- when you were prescribed the ibuprofen? Was it at the outset, or were you prescribed I 1 I , 16 17 lot. 18 19 20 21 Not a lot. I continued to do them, but not a A Q Do you recall approximately when you were 22 that at some later time, if you recall? I thought it was the day I saw Dr. Packman, 23 A 24 the day of the accident. 25 Did you continue to do these exercises Q 32 ~ ~ 1 throughout 1997 then? ::l 3 Yes. A Q What was your condition through the course of I 4 1997? Did you improve? Did you stay the same? Did it get 5 worse? 6 A I wouldn't say it got any worse, but it never 7 really got any better. 8 Q Did you continue to have the knot that you 9 described in the low back? 10 A Yes. 11 Q I In 1997, were you recommended to seek any 12 different type of treatment or modality for your back pain? 13 A I believe in August of '97, Dr. Gluck 14 suggested that I go to the Keystone Spine Center, that 15 perhaps there would be different types of exercises that the 16 Mechanicsburg Rehab Hospital hadn't thought of. 17 Q Did you go to the Keystone Spine Center? A Yes, I did. Q Where is that located? A That's located in Camp Hill, but I don't remember the name of - - it's near Cedar Cliff High School. 18 19 20 21 22 Q The exercises that you were taught at 23 Keystone Spine Center, were they, in fact, a little bit 24 different than the exercises that you had been doing? 25 A They were totally diff.erent. 33 , ....." ~ 1 Q In whac way? 2 A The type of exercises the Mechanicsburg Rehab 3 Hospital had me do were more like stretching like this, 4 stretching to the side, stretching over your head, not 5 actually holding your low back and stretching back as far as 6 you could possibly tolerate, which was one of the exercises 7 that they gave me to do at Keystone Spine Center. And it 8 really hurts the first couple of times you do it, but after 9 that, it starts to loosen up. They also have me doing -- 10 it's sort of like a pushup. 11 Q You don't have to demonstrate. You Cdn just 12 describe it. 13 A It's sort of like a version of a pushup, 14 except that you keep your stomach down to the mat or the 15 ground, and you push up from there, and you try to keep your 16 low back down as much as you can. On days that I'm 17 particularly bothered, I have Ken take a towel and actually, 18 for resistance, hold it down and across my low back, and 19 then I push up against that. 20 Q Does that help facilitate the exercise? 21 A Yes, it does. You can' t do it at work, but 22 yes, it does. 23 Q You said on particularly bad days. Is your 24 back pain is it something that's affected by like the 25 weather, level of activity, things like that? 34 ,."" ,-. 1 A On rainy days, my back pain is pretty bad. 2' It may depend on what I'm doing. It could be any number of 3 reasons that my back is really bothering me more so one day 4 than another. Sitting way too long bothers me. 5 o Up until the time you went to the Keystone 6 Spine Center in the fall of 1997, up until that point, did 7 you oontinue to do the exercises that had been recommended 8 to you at the Mechanicaburg Rehab? 9 A Yes. 10 o A Where did you do exercises? 11 I do the exercises at home. I do the 12 exercises at work. I was doing stretching exercises in the 13 hall just now. My back is bothering me from sitting way too 14 long. 15 o Mrs. Hurley, that sort of brings us up to the 16 . end of 1997'or late 1997. Approximately how often or how 17 frequently were y~u seen by Dr. Gluck through that period of , 18 time? . 19 20 A I see Dr. Gluck every eight weeks. But at that time, were you seeing him every o 21 eight weeks or so? A Approximately. 0 Late 1997? A Approximately. 0 If, I told you that his office notes indicate, 22 23 24 25 35 ~ ,.... 1 what happened to you on January 8th, 1998, to the accident 2 we are here to talk about, the June 25th, 1996, accident? 3 A The June 1996 accident, I was hit hard, 4 squar~ in the back. The January 1998 accident, because we 5 were on a curve like that, when the person hit me from 6 behind, they hit me right square, almost, on the right-hand 7 light on the back. 8 Q Sort of at the corner of your car? 9 A Right, because we were on a curve. He 10 couldn't have hit me straight like that. He hit me at 11 the-- 12 Q In terms qf the damage to your vehicle, how 13 did that compare? 14 A A couple of hundred dollars for the second 15 accident. 16 Q Was the damage generally more minor or less 17 severe than the damage to your car that resulted from the 18 firs~ accident? 19 A It was minor compared to the first accident. 20 Q Now, as a result of that accident on January 21 8th, 1998, did you feel that you were injured in that 22 accident? 23 A My low back really hurt again. My middle 24 .back, which never hurt me before, hurt. My upper back was 25 tight. 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 , .~" IIII~ o Did you seek medical treatment for those injuries? A Yes. r saw Dr. Gluck/s office that day. o Did you actually see Dr. Gluck or someone else at his office? A r saw a Dr. Zimmerman who was there that day. 0 lihat, if anything / was done for your injuries relating to the second accident? A He told me to use moist heat. He told me to continue to use my ibuprofen and to call the offioe in a day or two if r needed something else. 0 Did you also go back to the Keystone Spine Center to do some exercises there or some work there? A After about a week. o Those injuries that you described that happened i~ the January 8th, /98/ accident, approximately how long did those injuries last after the accident? A About six weeks. o After that point in time, what was your physical condition? A r feel I was right back to where r was the day before the accident. o What condition was that? A That r had pain in my lower back. Q Was that pain in your lower back related to 39 ~ ~ 1 the June 26th, 1996, accident? 2 A 'ies. 'ies, it wall. 3 Q Through the end of the winter of 1998 ~nd 4 through the spring, did you continue to do the back 6 exercises that you were taught to do? 6 A 'ies. 7 Q Where do you do those exercises? 8 A I do those exercises at home. However, it 9 was recommended to me that I may want to go to the "'i" and 10 do some different type of exercises, walking, some of the 11 machinery, on my own. 12 Q Now, did you join the "'i"? 13 A 'ies. 14 Q Is that the West Shore "'i"? 15 A The West Shore ,I'i". 16 Q When did you join the West Shore "'i"? 17 A I believe our membership officially started 18 in'April, although we had started the previous month. 19 Q Approximately how many times a week do you go 20 to the "'i"? 21 A Three to four times a week. 22 Q What types of exercises do you do at the "y"? 23 A When I get there, I walk for about a mile on 24 the track. I ride the Lifecycle eight to ten miles. I use 25 the machines that -- I was told the more I strengthen my 40 ;"" ~ 1 legs, the mo~e I'm going to st~engthen my lower back, so I 2 use the type of machinery where you lift weights actually 3 with your legs. I don't kn~w the exact name of it. 4 0 Has all of that helped your back pain at all? 5 A I believe it helps, yes. 6 Q Do you still have back pain? 7 A Yes, I do. 8 0 Is that back pain present on a daily basis? 9 A Yes, it is. 10 0 Now, I don't want to limit your answer in 11 time, but since the JUlle 25th, 1996, accident, what kinds of 12 things can't you do or can't you do without pain that you 13 could do befo~e the June 25th, '96, accident? 14 A Previous to the accident, I could garden all 15 day if I wanted to without any problems. I can't do that 16 anymore. Previous to the accident in June of '96, we could 17 go to ballgames, and I could sit the whole game. I'd maybe 18 get up to go to the bathroom once, but that's about it. Now 19 I can last ,abuut an inning and a half to two before I have 20 to get up and just walk away. 21 0 Have you turned down any tickets to any 22 sporting events because of your back pain? 23 A Yeah. In '96, I turned down quite a few, 24 because he didn't want to go without me. 25 0 He being your husband? 41 ,,""'I ~ 1 A Right. 2 0 Is there anything else at home or at work 3 that you oan't do or that you can't do without pain that you 4 used to be able to do? 5 A There's nothing that I can't do. There are 6 many things that I do and continue to do. And, yes, I do 7 still have pain. I'm not going to stop living just because 8 of this. I'm not going to do it. We still go to sporting 9 events. We tried boating again over Labor Day. That lasted 10 for a little while. And I try pretty hard. It's hard not 11 to bump the boat, and I know that. He tries not to. 12 0 Those are things that, when you do them now, 13 do they cause you pain? 14 A Yes, they do. 15 0 Have you taken any trips with y6ur family 16 this year, Mrs. Hurley? 17 A 'I'he first trip, if you will, that we t09k was 18 back in May, around Memorial Day, to Cincinnati. 19 0 How did you travel to Cincinnati? 20 A That's a nine-hour drive. We did it in about 21 eleven. 22 Q Why was that? 23 A Because I needed to stop every little bit and, , 24 get out and walk around. 25 0, Is that because of your back pain? 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "",",,, f"""'I A Yes, it was. I can only sit for so long. o Did you take any other trips with your family this year? A Yes. We went to Williamsburg in July. His family has one of those time shares down in Williamsburg. Yes, we did go to Williamsburg for a week in July; and then I went to Lewes, Delaware, at the end of August for a week. o Did your back pain prevent you from doing any of the activities that you would have ordinarily have done on those family trips? A Well, as a for instance, in Williamsburg, yes, we did go to the water park. No, I didn't do most of the rides, because I can't. They bump you around or throw you around way too much in those big tubes that you go down in those rafts. They have a big warning before you even get on, don't get on if you have a back problem, so I don't. I just sit on the bench, and I wait for them. There at the amusement park down there, again, my family will get on the roller-coaster-type rides. I don't get on, because, again, they warn you if you have a back problem not to do it. o Are those things that you would have ordinarily have done before this injury? A Absolutely, absolutely. o The back pain that you suffered as of, let's say, late February of 1998, which was the same condition you 43 ......1, ,-' 1 Kenl the pain that you have to live with day in and day out, 2 has it affected your relationship with him? 3 A Yes, it has. 4 0 In what way? 5 A Well, again, I'm crabbier now these days than 6 I used to be. Again, it's not intentional, and I try not to 7 do that. He really likes to boat, and that's something that 8 we just don't do very much anymore. We've gone boating 9 twice this summer. We used to go every weekend or every 10 other. We don't anymore. 11 0 We'll hear more from your husband when I call 12 him to testify, as well. Has it affected the intimate 13 relationship that you have with your husband in any way? 14 A Yes, it has. 15 0 Is that relationship diminished as a result 16 of these injuries? 17 A Yes, it is. 18 ~R. WOLFGANG: Mrs. Hurley, that's all I have 19 right now. Thanks. 20 THE COt]RT: Let's take a short recess. We're 21 not going, obviously, to 5:00, but we can finish a few 22 things up here. Let's be in recess. 23 (A recess was taken.) 24 CROSS-EXAMINATION 25 BY MR. BANKO: 45 r', ,,I, .~ ~ 1 0 Mrs. Hurley, we've met before, you and I, at 2 your deposition, correct? 3 A Yes, sir. 4 0 That was earlier this year, I think in JUne 5 or May of 1998, does that sound right? 6 A It was Mayor June. 7 0 It was May 28th. 8 A Okay. 9 Q Now, this time-share thing that you talked 10 about in Williamsburg, is that something that someone in the 11 family owns? 12 13 14 15 16 17 18 19 20 A I don't recall. 21 Q In any event, you went to Williamsburg, to 22 your father-in-law's time share, in July of 1997, correct? 23 A Yes. 24 0 When you went back to work after the 1996 25 accident, did you ever go back and have to sit or lay on a A His father does. Kens' father does. 0 Do you know how long he's had that'l A He purchased that in 1997. 0 You went there in 1997, didn't you? A Yes. Q So, when you told your lawyer that the first trip you took waR ' 98, you had forgotten about that trip in '97, is that right? 46 r.:..~.-_.....-- ~'-'''''n'''' /'_".. .-....;..'.- .,.~ 1'-'\ 1 heating pad while you were at work? 2 A They bought me a special heating pad that 3 strapped to the back of my chair, and, yes, I did use a 4 heating pad at work. 5 0 How long did you use that? 6 A Off and on for a couple of months. 7 0 The vacation we heard about in July of 1996, 8 before you went on that vacation you had already retur.ned to 9 work for about a week, is that right? 10 A I was off for five days. I came back, 11 perhaps worked a morning, couldn't last the day. It was off 12 and on like that for a period of maybe two, three weeks. I 13 wasn't off continuously other than those five days. 14 Q Would you recognize your boss' signature if I 15 showed it to you? 16 A Sure. 17 MR . BANKO : I would like to mark this as 18 Defendant's Exhibit No.1. 19 (Defendant's Exhibit No.1 was marked for 20 identification.) 21 BY MR. BANKO: 22 Q Ma'am, I have handed you what we have had 23 marked as Defendant's Exhibit No.1. I'll tell you that it 24 appears to be a wage-loss verification form. Would you 25 agree with that? 47 """I "..., 1 A No. 2 0 It looks, from my calculations, that the 4th 3 of July woulp have been a Thursday, is that -- 4 A Okay, without referencing a calendar. 5 0 So, then, Friday would have been the 6th, 6 Saturday the I'm sorry, Friday the 5th, Saturday the 6th, 7 Sunday the 7th, and then Monday would have been the 8th, if 8 we're right about that? 9 A If we're right about that. 10 0 Okay. Then when he signed that on the :lOth, 11 that would have been Wednesday. Did he note that you were 12 absent for any period of time on the 8th, 9th or lOth of 13 July? 14 A I'm sorry? 15 0 On that form, did he note that you were 16 absent for any period of time on the 8th/9th or 10th, 17 Monday, Tuesday and Wednesday, of July of 1996? 18 A No. 19. 0 Then it was that weekend that you went to 20 Lewes, Delaware for the week that you told us about before? 21 A I would have to reference those exact dates, 22 but ... 23 0 We know you were in another rear-end accident 24 a year and a half later, on January 8th, 1998, correct? 25 A ,Yes, sir. 49 ;'\10<, ,...~ 1 Q And you missed about a week of wo~k from that 2 aocident, a~ well, oorrect? 1 A Approximately. 4 0 off and on? 5 A Off and on. 6 0 And that accident resulted in vehiole damage 7 to the rear of your car, specifically the bumper and the Blights? 9 A Yeah, the rear right. Yes. 10 Q As a result of that second accident, you 11 reinjured your upper back, your middle back and your low 12 back? 13 A My upper back was tight, not exactly the same 14 pain. I had pain in the middle back that was never there 15 before, and the pain in my low back was more intense than it .16 had been. 17 0 The low back symptoms were more intense than 18 they had been before? 19 A Than they were the day before the accident, 20 yes. 21 Q Now, with respect to the accident on the 25th 22 of June 1996, as I recall your testimony on direct .23 examination, you were approaching the light. You were on 24 Trindle Road going eastbound, approaching the intersection 25 of 32nd Street? so 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ""'"' ,-. A YllS. o Can you tell me what you mean by several? More or less than five feet? A A little less than five feet. 0 Three feet, four feet? A Three or four feet. 0 You're stopped three or four feet behind the vehicle in front of you with your foot on the brake, is that right? A 0 your car? A 0 A 0 A 0 Yes, sir. Any mechanical problems with the brakes on No, none. Any mechanical problems with the tires? No. Your car is stopped on dry highway surface? Yes. Then my client hits you so hard that she drove your car into the car in front of you, is that right? A Yes, she did. o Okay. And, in fact, in reading your complaint, it appears that she actually struck your vehicle twice? A Yes. There were two impacts. MR. BANKO: Well, I want to make sure we get 52 ,~ ,..... 1 this right, because I want to make sure we know what 2 happened. I would like to mark this as Defendant's Exhibit :; No.2. 4 (Defendant's Exhibit No.2 was marked for 5 identification.) 6 BY MR. BANKO I 7 0 I have handed you what has been marked as 8 Defendant's Exhibit 2, and I represen~ to you that it's a 9 copy of the complaint that you filed against my client which 10 was served upon her. Would you turn to the very last page. 11 Iii! that a verification? 12 A Yes. 13 0 Is that your signature on the page? 14 A Yes, sir. 15 0 Would you read that statement to the jury, 16 please. 17 A I, Deborah Hurley, have read the foregoing 18 complaint in civil action and verify that the statements 19 therein are true to the best of my knowledge, information 20 and belief. This statement is made subject to the penalties 21 of 18 Pa, C.S. Subsection 4904 regarding unsworn 22 falsification to authorities. 23 0 Now, turn to Paragraph 6. Did you look at 24 that complaint and read over it before you signed that 25 verification? 53 ~ ,,.-.. 1 A Yes. 2 0 Okay. Paragraph 6, is that the one -- Read 3 Paragraph 6 to the jurors. 4 A As a direct and proximate result of the 5 aforesaid negligence and carelessness of the Defendant, 6 Plaintiff, Deborah Hurley, sustained the following serious 7 and severe injuries, some or all of which may be permanent 8 in nature. 9 0 Is that Paragraph 6? 10 A Paragraph 6. Isn't that what you said? 11 0 I said that, but I must have been mistaken. 12 Oh, I am. I'm sorry. It's Paragraph 4. 13 A We'll try it again. Defendant, Patricia C. 14 Dowswell, was driving a 1992 Nissan Sentra car owned by her. 15 Defendant drove her vehicle in such a careless and negligent 16 manner as to cause it to strike the rear of the vehicle 17 driven by Plaintiff, Deborah Hurley, twice. The first 18 collision threw Plaintiff forward; and instead of stopping 19 and braking, Defendant continued to push the Hurley car 20 forward several feet into a pickup truck immediately in 21. front of the Hurley car, causing Plaintiff, Deborah Hurley, 22 to be thrown backward. 23 Q All right. And as a result of this violent 24 collision that you described, the rear of your vehicle 25 sustained what damage? 54 I'""" t..... 1 A The rear of my vehicle sustained damage to 2 the bumper, and I believe to the lights, as well. 3 0 Was your vehicle taken for an estimate of the 4 damages and photographs? 5 A Yes, an estimate was taken. 6 (Defendant's Exhibit Nos. 3 and 4 were marked 7 for identification.) 8 BY MR. BANKO~ 9 0 As I understand it, my client's vehicle 10 struck the rear of you~s so violently twice as to push it 11 three or four feet on dry pavement into the vehicle in front 12 of you, is that right? 13 A Yes, that's absolutely right. 14 Q Then as a result of that, you sustained 15 damage to your rear bumper and the taillights? 16 A In the back. 17 0 Let me hand you what's been marked as 18 Defendant's Exhibit No.3. Well, let me ask you this 19 question first. Did your vehicle have any damage to it 20 prior to the motor vehicle accident on June 25, 1996? 21 A Not to my knowledge. 22. 0 I've handed you what's been marked as 23 Defendant's ~xhibit No.3. Can you identify those 24 photographs? 25 A That's my car. 55 A Yes and no. 0 Why do you say no? A Because there was damage underneath this piece here on the back that they didn't Bee - - that you couldn't see like this till you popped it off. 1 0 6/2"/96? A 0 estimate? ^ Q .~ ,,,u..l . , 2 3 4 5 10 11 12 13 14 15 The date of the photogra~hs, apparently, were Yes. And this was when it Was taken in for an o Well, I'm surprised by that, because 1. 16 th~ught you told us that YOIJ never looked ,mder therl!l, 110 17 you didn't know what was underneath there. 18 A Well, I know that now from the garage. No, 19 sir, I didn't crawl under there. 20 I see. And what you don't know is whether or o 21 not that damage existed before the motor vehicle acc1dent 22 either? 23 24 A I'm certain not. '; I, 25 vehicle looked when the photographs were taken after the o Well, in any eVent, that' III the way your 56 ~ ~ 1 aocident and before any repairs were made, isn't that righc? 2 A That's true. 3 0 Let mE! hand you what's been marked as 4 Defendant's Exhibit No.4. Can you identify those two 5 photographs? 6 A That would be the front of my car. 7 0 Again, those photographs, were they taken 8 after the June 25, 1996, accident? 9 A Yes. 10 Q And they fairly and accurately represent the 11 extent of the damage that was sustained by your vehicle as 12 it struck the pickup truck in front of you? 13 A Yes and no. 14 0 Why no? 15 A Because you do have a picture of the front of 16 my car where the bra is. But, obviously, as I indicated 17 before, most of the broken was underneath the bra here, plus 18 the hood was buckled up. Other than to show that the hood 19 is up, if. someone had taken a picture of the hood being 20 down, you would have seen where the hood was pushed back and 21 buckled. 22 Q Would it be fair to say, then, that the 23 damages depicted in the two photographs on Defendant's 24 Exhibit No.4 -- that the real damage ili! more severe than 25 depicted on those photographs? 57 )......,. f""\ 1 A Yes, sir. 2 0 So, those photographs just don't do justice 3 to the extent of damage done to the front of your car where 4 it impacted the truck in front of you, in that right? 5 A Yes, that's true. 6 MR. BANKO: Your Honor, I'd like to take a 7 couple of minutes to publish these photographs to tho jury. 8 THE COURTt All right. Jus~ walk them by 9 yourself real fast. I'm not going to stop the examination. 10 Meanwhile, do you have allother question for her while you're 11 doing this? 12 MR. BANKOt I have to check'my notes, Judge. 13 Maybe not. 14 <Brief pause.) 15 BY MR. BANKOt 16 0 It is your tentimony that you told the police 17 officer at the scene that you were injured? 18 A Yes, sir. 19 Q But you didn't feel it was necessary to waste 20 your time in the emergency room, is that right? 21 MR. WOLFGANGt Objection, Your Honor. 22 THE WITNESSl I didn't ~ay waste my time. 23 BY MR. BANKOt 24 0 Well, why didn't you go to the emergency 25 room, ma'am, if you were injured at the scene of the 58 """" ,.... 1. aooident? 2 A The emergency ~oom physicians don't know me 3 from Adam. I didn't hit my head. I wasn't bleeding. I 4 wanted to see my family doctor. SOWell, apparently, your family doctor had 6 never seen you with these types of injuries before. Why not 7 the emergency room? 8 A As I'm sure everyone else would feel more 9 comfortable with their family doctor. 10 , 0 So, you didn't feel it necessary to ask the 11 police officer to summon an ambulance, go to the emergency. 12 room and get checked out with x-rays right then? 13 A I didn't want an ambulance to go to the 14 emergency room, no. 15 MR. BANKO~ That's all I have. 16 THE COURT: Anything else? 17 MR. WOLFGANG~ No redirect, Your Honor. 18 THE COURT: You may step down, ma'am. 19 THE WITNESS: Thank you. 20 THE COURT: Who is your next witness? 21 MR. WOLFGANG: ~enneth Hurley, Your Honor. 22 THE COURT: How long is he? 23 MR. WOLFGANG: Probably a half hour or so. I 24 don't know' if you want to start h 1m. 25 THE COURT: Okay. Let's recess for the 59 !~ """ 1 THE COURT 1 When was this taken? 2 MR. WOLFGANG 1 The videotape deposition, Your 3 Honor,was taken on September 3rd, 1998. 4 THE COURT I Where? 5 MR. WOLFGANG I At the offices of Internists 6 of Central Pennsylvania at 1087 Lowther Street, Lemoyne, 7 Pennsylvania. 8 THE COURT I Ladies and gentlemen, you heard 9 that, and it's been transcribed. Frankly, I encourage 10 counsel to take these depositions at the doctor's office, 11 because, obviously, it saves time for. everybody involved. 12 This is perfectly acceptable to prdsent evidence this way. 13 It's under oath and subject to cross-examination right there 14 at the office. Merely by the way it's presented, it's 15 entitled to no lesser or no greater weight than if you heard 16 it here in the open courtroom. Just consider it a witness 17 here on the witness stand. So, without further ado, we're 18 ready to roll, sir. 19 (The videotaped deposition of Michael L. 20 Gluck, M.D., was viewed by the jury.) 21 THE COURT: Are you finished with that, 22 Counsel? 23 MR. WOLFGANG I Yes, Your Honor. 24 THE COURT: All right. Since we started at 25 9100 a.m., it's time for a recess, ladies and gentlemen. 62 ~., ~ 1 We'll take that recess right now. 2 (A recess was taken.) 3 MR. BANKO I Excuse me, Your Honor.. I'm going 4 to read the part of my client, Patricia Dowswell. Seated 5 with me at counsel table is my as~ociate, Miohele Thorp, 6 just so the jury knows who she is. 7 MR. WOLFGANG I My next witness, Your Honor, 8 is Kenneth Hurley. 9 KENNETH L. HURLEY 10 having been duly sworn, testified as follows: 11 DIRECT EXAMINATION 12 BY MR. WOLFGANG: 13 0 State your complete name. 14 A My name is Kenneth L. Hurley. 15 Q Mr. Hurley, are you the husband of Deborah 16 Hurley? 17 A I am. 18 0 Did you hear her testify that you have been 19 married for nineteen years? 20 A Nineteen, yes. 21 Q Do you have any reason to disagree with that? 22 A No. 23 0 Mr. Hurley, what do you do for a living? 24 A I'm a pattern maker down at Frog & Switch. 25 Q What do you do as a pattern maker there? 63 ""'" 1""1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0 Was that on the mo~ning of June 26th, 1996 ? A Yes, it was. 0 Mr. Hurley, did you at any time take it up'on yourself to take a look at the 1993 Lumina that she was driving when she was involved in this accident? A Yes, I did. 0 When did you look at that vehiole? A I believe it was that evening. 0 Where was the vehicle at the time you looked at it? A At our house. MR. WOLFGANGt May I approach the witness, Your Honor. BY MR. WOLFGANGt Q Mr. Hurley, I'd like to show you what previously has been marked as Defendant's Exhibit No.3, which are three photographs of the rear of what your wife testified is your '93 Chevy Lumina. Do you recognize those photographs? A Yes, I do. o I'd just like to ask you, since Mr. Banko asked your wife about it and published those pict~res tq the jury, do those photographs of the rear of the car. fairly and adequately reflect the total extent of the damage of the car? 65 1 2 it. 3 ~ ~ A No, it doesn't. It does a total injustice to o Well, why don't you tell the jury., Mr. 4 Hurley, if you could, why these pictures do not reflect the 5 damage to the car? 6 A Where you can see this black rubber band goes 7 around there, i.t' s like a plastic coating that goes over the 8 bumper. What had happened was the impact itself had took 9 the bumper and pushed it like a "V." With the plastic , 10 coatin~ being th~re, all that did was stayed in place. It 11 sprung in and sprung back out. Actually, whenever I saw the 12 car, I didn't notice anything until I looked underneath the 13 car and saw that it was pushed in. 14 o Did you, in fact, look underneath the oar to 15 see the bumper being pushed in? 16 17 A Yes, I did. Have you ever seen a photograph depicting the o 19 18 pushed-in extent or nature of the bumper? A 20 o 21 reflected in D-3? 22 A No, I didn't. Was there any damage to any of the taillights 24 23 taillight was cracked. If I remember right, I believe the one MR. WOLFGANG: Just so the jury all sees w~~t . 25 Mr. Hurley was talking about, Your Honor, if I could just 66 '....., ,..-, 1 show the jury the pictures very quiokly. 2 THE COURTt All right. Walk them by. 3 BY MR. WOLFGANGt 4 0 Mr. Hurley, I would like to show you now 5 what's been marked as D-4, Defendant's Exhibit No.4. Do 6 you roecognize those photographs as photographs of the front 7 of the Hurley vehicle? 8 A Yes, I do. 9 0 Do those photographs, Mr. Hurley, based upon 10 your inspection of the car, fairly and adequately depict the 11 damage to the car? 12 A Somewhat. 13 0 To what extent do those pictures not reflect 14 the damage of the car? 15 A Well, you can see that the picture of the 16 hood itself was opened up and the front of it is curled up, 17 but nowhere does it show that in the back of the hood -- the 18 back of the hood itself was actually buckled. 19 0 Do you know whether or not t.he hood had to be 20 21 22 23 24 25 repaired as a result of the accident? A Yes, it did. Q Was it repaired or replaclild? A I believe it was replaced. 0 Had you ever seen a photograph of. the top.of the hood where this buckling occurred? 67 ~ ,...., 1 A No, I didn't. 2 0 Prior to the accident of June 25th, 1996, to 3 your knowledge, did your wife, Deborah, ever have any 4 complaints or pains in her low back? 5 A No, never. 6 Q Any other part of. her back? 7 A Never. 8 Q She described the types of family and 9 recreational activities that you folks engaged in prior to 10 the accident. Would you agree with her description that you 11 led a fairly active life leading up to that point in time? 12 A Yes, we used to. 13 Q What types of activitJ.es do you recall 14 engaging in? 15 A Well, basically, ever since I was a kid, 16 we've always enjoyed boating with my family, and that's 17 something that I've always maintained with mine. The flports 18 games, we went to a lot of baseball games, football games, 19 that type of thing. Both of our sons were very well 20 involved with little league baseball, and we were always on 21 the run with those, also. 22 '0 What, if any, effect did the June 25th, 1996, 23 accident hav~ on your family'S ability to engage in those 24 activities? 25 A Well, I don't go as often as I used to. In 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 3.7 18 19 "10 21 :22 23 24 25 ,~ ,-. fact, it's,very seldom that we go anymore. o Why is that? A She just can't take the trips or even the sitting. When we go to a ballgame -- I think we went to one or two this year -- usually the second inning she's up and she's in the back standing while me and the boys are sitting down watching the game. o To your knowledge and your observatioll, has your wj.fe's back pain been 'pretty constant ever since the June 25th, '96, accident? A Yes, pretty much so, especially in the evenings. Q Did that continue throughout 1996 and throughout 1997? A Yes, sir. o Was that true leading up to the date of the second accident that we've talked about, January 8th, 1998? A Yes. As far as I'm concerned, there was never no change. o Your wife testified about the knot in the small of her back. Have you ever personally felt that? A Almost constantly. I used to massage her llvery night. o What did it feel like? A Like someone laid their fist on the back of 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ! .~ ,-, her. That's about what it felt like. o Has that been true ever since the JUne ,25th, '96, accident? A Yes, sir. o Prior to the June 25th, 1996, accident, how would you describe your wife's tolerance for pain? A Well, since she's been working at Rite Aid, I couldn't even tell you when she's missed a day at work, even because of a cold or a flu. She's one of those people that -- I give her heck for it all the time. She's more dedicated to her job sometimes than she is at home. o Was she a complainer? A No, never. o Since the June 25th, 1996, accide~t, how has that affected your relationship with your wife? A You mean -- would you rephrase that for me, please. Do you mean as far as -- just in general? Q The day-to-day goings-on in the home, when you have to communicate with your spouse, you have to work out getting things taken care of for the boys or whatever. A I've noticed that she had a lower tolerance for, you know, the kids, the little bickering and that type of thing. Even with me, the little things would just set her off more frequently than before, you know, as far as the work around the house and stuff, you know. The boys and me, 70 -. r-. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we did all of the work outside pr~or to that, and here we were finding ourselves doing it on the inside, too, ~s much. o Beyond that, Mr. Hurley and I know this is not always an easy think to talk about in front of atrangers -- but, if you could, describe for the jury how, if at all, this injury to your wife/s back from the June '96 accident has affected your. personal intimate relationship with her? A Well, I just -- I feel awkward talking about this. I'm sure each and everyone of you would, too. As far as our relationship, our sexual relationship goes, I used to consider myself very lucky. Sex around the house was three, often more, times a week. Like! said, I considered myself very lucky. o Well, ever since the June 25th, '96, accident, has that situation changed at all for you? A Very drastically. o In what way? A Unfortunately, I would say that only once, maybe twice a month if I'm lucky. She has her good months, and she has her bad months; but I would say, in general, yes, maybe two times a month. Q To your observation, is that because of her back pain? A Absolutely. She -- even after we've had 71 I'~ t""") 1 intercourse, she'd be like a little baby and just roll to 2 the side. Sh~'d crawl up in a ball. 3 0 Would she complain of pain afterwards? 4 A Her back was bothering her. It bothered me 5 to -- you know, to even want to suggest to do anything. 6 Q Is that true to this day? 7 A Yes. Unfortunately, I understand it's 8 supposed to be like that. 9 0 Mr. Hurley, prior to the June 25th, 1996, 10 accident, did you and your wife ever have any problems with 11 your intimate relationship Uke that? 12 A Never. Never had a problem whatsoever. 13 MR. WOI,FGANG: Thank you, Mr. Hurley. 14 MR. BANKO: No questions, Your Honor. 15 THE COURT: You may step down, sir. Next 16 witness. 17 MR. WOLFGANG: Your Honor, I have no more 18 live witnesses to call. But by agreement of counsel we 19 worked out yesterday, I will read certain excerpts from the 20 deposition transcript of the Defendant, Patricia Dowswell. 21 THE COURT: This J.s in the form of you 22 questioning her at some point? 23 MR. WOLFGANG: Yes / Your Honor. We took a 24 discovery deposition of the Defendant on June 30, 1998. By 25 agreement, we did this over the telephone, because she was 72 ,~ ,.... 1 in North Carolina at the time. Mr. Banko and I were in his 2 office in Harrisburg. 3 THE COURT, So, you're calling the Defendant, 4 Patricia Dowswell, as of cross-examination? 5 MR. WOLFGANG, In essence, Your Honor, that's ~ correct, . 7 THE COURT I All right. You have your 8 associate there to play the Defendant. Ladies and 9 gentlemen, at an p,arlier time and place you just heard, the 10 Defendant was put under oath and asked certain questions. 11 The defense counsel is going to use a transcript of that 12 occasion now, since the Defendant is not actually here in 13 court. This is permissible, ladies and gentlemen. 14 For the stenographer, I would just like you 15 to refer to the document you are using and the pages and the 16 line numbers. With that, I think we can dispense with 17 transcribing that also, can't we? 18 MR. WOLFGANG: I would agree to that, Your 19 Honor. 20 THE COURT: Agreed? 21 MR. BANKO: Yes. 22 MR. WOLFGANG: Your Honor, this is testimony 23 taken from a discovery deposition of the Defendant on June 24 30, 1998, beginning at 3:06 p.m., and the Defendant was in 25 North Carolina. The deposition was taken over the 73 ,,,,",,, "... 1 telephone. The defense counsel, Mr. Banko, and I were at 2 his law office in Harrisburg, Pennsylvania. I'm beginning 3 on Page 6, Line 14 of that deposition transcript. 4 (Referred to portions of the testimony of 5 patricia C. Dowswell were read for the jury.) 6 MR. WOLFGANG: Page 8, Line 19. 7 (Referred to portions of the testimony of 8 Patricia C. Dowswell were read for the jury.) 9 MR. WOLFGANG: Page 10, Line 5, and conclude to the testimony at the end of Line 17. 11 (Referred to portions of the testimony of 12 patricia C. Dowswell were read for the jury.) 13 MR. WOLFGANG: Going, then, to Page 12, 14 beginning with Line 6. 15 (Referred to portions of the testimony of 16 patricia C. Dowswell were read for the jury.) 17 MR. WOLFGANG: That's all I have. Thank you. 18 Your Honor, at this time, we have marked Plaintiffs' Exhibit 19 2, which was the rental agreement, which I agreed with Mr. 20 Banko I would not move to admit into evidence. It need not 21 go out with the jury. Really, what I would like to do is 22 have Plaintiffs' Exhibits 3 and 4, which have now been 23 marked, admitted into evidence. Plaintiffs' Exhibit 3 is a 24 copy of the medical records of the Plaintiff, Deborah 25 Hurley, which, by agreement of counsel, we have agreed to 74 ""'" ,... 1 admit into evidence .. and, again, they would not go out 2 with the jury -- and Plaintiffs' Exhibit 4 is the videotape 3 testimony of Dr. Gluck, which has been marked, and I would 4 move for its admission, as well. 5 MR. BANKOt No objections, Your Honor. 6 THE COURT: You are not suggesting that goes 7 out with the jury, are you? 8 MR. WOLFGANG: No, Your Honor. 9 THE COURTt All right. Plaintiffs' Exhibits 10 3 and 4 are admitted but will not go out with you, ladies 11 and gentlemen. 12 (Plaintiffs' Exhibit Nos. 3 and 4 were 13 admitted.) 14 MR. WOLFGANG: Your Honor, at' this time, the 15 Plaintiff rests. 16 THE COURT: Counsel? 17 MR. BANKOt Your Honor, the defense would 18 call Sergeant Hope of the Camp Hill Police Department. 19 SGT. MICHAEL L. HOPE 20 having been duly sworn/ testified as followst 21 DIRECT EXAMINATION 22 BY MR. BANKO: 23 0 Tell the jury your full name and your current 24 business address. 25 A My name is Michael L. Hope: I'm a sergeant 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .~" ,-, A o here today? A I do. Q Would that help with your testimony about what you reported, what was told to you on that date? A Somewhat. Ye~. Do you have the original document with you MR. BANKO~ Let me mark this as Defendant's No.5. (Defendant's Exhibit No.5 was marked for identification. ) MR. BANKO~ May I approach, Your Honor. BY MR. BANKO: Q Let me hand you what has been marked as Defendant's Exhibit No.5. Can you identify that, sir? A Yes. T~is is a photocopy of the Camp Hill Police Department accident information exchange sheet that was completed on the date of this incident. Q Do you have the original here with you today? A Yes. o Is the photocopy substantially similar to the . original? A Well, substantially. It looks like the insurance information was filled in afterwards. o At the top of the report -- the form itself 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,-. ,..... allows the offioer to identify three units or three different vehicles, correct? A That's correct. o On this report, how many vehicles were idantified? A o Two. Vehicle No. 1 was the one driven by ~atrioia Dowswell ? A Yes. o The other one was the -- No. 2 was the vehicle being driven by Deborah Hurley? A That's right. 0 And nothing noted in Unit 3? A That's correct. 0 At the very top right-hand corner, there' Ii! two lines with two little blocks, so I think that gives you an option to make the accident a nonreportable accident or a reportable accident, is that correct? A That/s right. o Before making this determination, sir, would you have looked at the vehicles, spoken to the witnesses or any of the drivers involved? A Yes. o Would that decision have been made after that examination of those individuals in the vehicles? 78 ~ ,-.. 1 ;2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q What is the significance, if any, if it's a nonrep~rtable accident? A It's a separate form provided by the Department of Transportation, a reportable accident, that gets submitted to them. Q Why did you choose in this case a nonreportable accident? What does that mean to be nonreportable as opposed to reportable? A The statute says that a reportable accident is an accident that involves vehicles that are damaged to the extent that they cannot be driven away on their own and/or injuries to persons involved in the accident. Q As a result of the conversations you would have had with folks at the scene/ includiny witnesses and th~ drivers, did you complete a narrative? A Yes. Q What was the narrative that you completed on that date, sir? A I put down Unit No.1, which was the vehicle driven by Patricia Dowswell, struck Unit No.2, which was the vehicle driven by Deborah Hurley, from behind after the, traffic signal turned green ahead of both of the vehicles. Q Anything else noted on that form? A No. , , 79 1 :! 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 . I 18 I I 19 20 I 21 22 23 24 25 .h', ~ MR. BANKO I That's all I have. . cross-examine. CROSS-EXAMINATION BY MR. WOLFGANG, Q Sergeant Hope, do you recall having a telephone conversation with me early this past summer regarding this case? A Yes, I do. Q Do you recall telling me, when I asked you if you remembered anything about the accident, that you said you didn't remember anything about it? A That's correct. Q At that time, I don't think you even had the benefit of looking at your written-up accident report; you were just going by memory, is that true? A That's true. Q So, then, at some time afterwards, you were contacted by Mr. Banko's office and you were requested to be here today? A Yes, sir. Q Are you on duty right now? A I am. Q So, Mr. Banko's office is compensating, you for your time here today? , ., A The statutory witness fee. 80 ""'" ~ 1 0 That's it? 2 A That's all. 3 0 Sergeant, when you fill out this aooident, 4 report, the details that you put into the repo~t are 5 important because you might need to refer to it at some 6 later date, is that correct? 7 A Certainly. 8 0 so, when they ask for things like the date of 9 the accident, the location of the accident, the time of the 10 accident, those are all facts that you would be very careful 11 to record accurately so that if they needed to be referred 12 to at some later time you would make sure that it was as 13 accurate as it could be, is that correct? 14 A Yes. 15 0 On your report, Sergeant Hope, the time 16 written down is 7~30 in the morning, is that correct? 17 A That/s correct. 18 0 So that would be the time of the accident? 19 A That should have been the time of the 20 accident, yes. 21 Q To the best of your knowledge, at the time 22 you filled out this report, which I assume would have been 23 at or shortly after the accident occurred, is that right? 24 A Correct. 25 0 Do you recall whether you filled this out at 81 1 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 . 21 22 23 24 2S ,-', ,-, report? A That's the only thing I can remember. o Okay. Now, when Mr. Banko was questioning you, he asked you why this was a nonreportable accident. You said, because, according to the statute, to your understanding, unless the vehicles are damaged to the extent where one of them can/t be driven away and/or there's some personal injury, it's a nonreportable accident, is that correct? A That's true. o So, at some point, you must have talked to Mrs. Hurley and Ms. Dowswell and perhaps even the other gentleman, who you mayor may not recall, who was ahead of Mrs. Hurley, to ask them whether anyone was injured, is that correct? A I should have, yes. Q They all refused medical treatment, is that correct? A That's correct. o On that basis, you decided that this was a nonreportable accident and not sQmething that had to be' reported on the longer form that you would then send to PennDOT? ~ That's pretty accurate. o This accident happened at 7:30 in the 83 I",", 1""\ 1 so forth, as Dr. Gluck. 2 (The videotaped deposition of Richard J. 3 Boal, M.D., was viewed by the jury.) 4 MR. BANKO I Your Honor, the Defendant would 5 call Deborah Hurley as on cross-examination. 6 THE COURT; How long is this going to take? 7 MR. BANKO I r have two witnesses, and I 8 believe I can get them both in before lunch, before noon; I 9 think three or four minutes with the Plaintiff and about six 10 or seven minutes with reading my deposition. 11 THE COURT; Well, let's try it then. You are 12 still under oath, ma'am. 13 DEBORAH HURLEY 14 called as on cross-examination, 15 having been previously sworn/ testified as follows I 16 DIRECT EXAMINATION 17 .. BY MR. BANKO: 18 Q Yesterday, Mrs. Hurley, you told us that 19 these photographs, Defendant's 3 and 4, were taken in 20 conjunction with an estimate written for the damage of your 21 car, is that right? 22 A Yes. 23 Q Were repairs made to your motor vehicle? 24 A Yes, sir. 250 Now, yesterday we heard about trips that you 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .~..." r"", took and didn't take and the one you forgot about in 1997. Did you take any trips within two months or so of the accident, in August of 1996? A Just the vacation that we had prepaid for in January and February. o That was the one that was in July? A That would have been sometime in July. o When did you start treating with Dr. Smith, the chiropractor? A I would have to reference my -- I don't know. I'd have to look exactly. o Your attorney chis morning marked as Plaintiffs' Exhibit No. 3 a copy of your medical records. You were here when he did that? A Yes, sir. o I'm looking at Tab No.1, which appears to be the records of David D. Smich, D.C., and it appears that there's a report dated August 30, 1996. It looks like that's the first day you saw him. Does that sound about right? A Okay. o Do you want to see the report? A No. I don't have any reason to disbelieve you. o It would be pretty foolish to do, standing 86 ,''''"'' 1""\ 1 The next piece of business? 2 (Defendant's Exhibit No.8 was marked for 3 identification.) 4 MR. BANKO I Your Honor, finally, I would 5 call, by deposition transcript taken for use at trial, my 6 client, Patricia Dowswell. Again, it will be read by my 7 associate, Michele Thorp, Esquire. 8 THE COURT I How long is this? 9 MR. BANKO I It's going to take six or seven 10 minutes, Judge. It was a ten-minute deposition. 11 THE COURT I Can we forego transcribing it 12 again, Counsel? 13 MR. BANKO I Absolutely, Judge. It will be 14 marked as Defendant's Exhibit No.8 -- or it has been 15 previously marked. 16 THE COURT: Agreed? 17 MR. WOLFGANG I No objection, Your Honor. 18 Your Honor, the only thing -- the whole transcript is ten 19 minutes long. In the interest of completeness, I would just 20 ask that we do the ten minutes of testimony and then break 21 for lunch, if that's okay. 22 THE COURT: I'll have to run that part of it, 23 sir. Go ahead, Counsel. 24 (The deposition of Patricia C. Dowswell was 25 read for the jury.) 88 ~ "..... '1 THE COURT: All right. What do you have 2 left, Counselor? 3 MR. BANKO I Your Honor, I need to mark, for 4 the reoord, the deposition transcript of Dr. Boal as 5 Defendant's Exhibit No.6 and the tape itself as No.7. 6 (Defendant's Exhibit Nos. 6 and 7 were marked 7 for identification.) 8 MR. BANKO: At this time, I would move the 9 admission of Defendant's Exhibits 1 through 8. No.1 was 10 the, wage loss verification, No. 2 was Plaintiffs' complaint, 11 No. 3 were the front-end photographs of Plaintiffs' vehicle, 12 4 were the rear-end photographs, 5 was the nonreportable 13 police accident report, 6 is the transcript of Dr. Boal's 14 deposition, 7 is the videotape itself, and 8 is the 15 transcript of my client's testimony. 16 THE COURT: Any objection? 17 MR. WOLFGANG: Your Honor, just with one 18 correction and one objection. Three and four, I think Mr. 19 Banko had those reversed. Three were the three pictures of 20 the rear end of the Hurley vehicle, and four were the two 21 pictures of the front. 22 MR. BANKO: That is correct. I misspoke. 23 MR. WOLFGANG: I have no objection with 24 regard to the transcript of Dr. Boal being marked. I think 25 we agreed that both transcripts would be made part of the 89 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .. , f--'~ 1 2 3 4 5 record in the case. However, attached to Dr. Boal's 6 deposition transcript as an exhibit is his report, which I , would object to being admitted into the record. I think his testimony goes in, but his report does not. THE COURTr Any other objections? MR. WOLFGANGr No, Your Honor. THE COURT: I'll let all of those exhibits go 7 8 9 in; but, obviously, Boal's report isn't going out with you, nor are the transcripts and so forth going out. (Defendant's Exhibit Nos. 1 through 8 were 10 11 admitted.) MR. BANKOr The only thing I would ask to go out with the jury, Judge, are the photographs, Exhibits 3 and 4. That's all. THE COURT: I think the photographs are proper to go out with you, ladies and gentlemen, but that's probably all. I'll have to look at the rest of this stuff. You'll probably only get the photographs. MR. BANKO: Your Honor, the defense rests. THE COURT: What do you have left, if anything, Counselor? MR. WOLFGANG: . Nothing, Your Honor. THE COURT: You are resting? MR. WOLFGANG: Yes, Your Honor. THE COURT: Perfect place for lunch, ladies 90 1 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ...... ,-, and gentlemen. I'll have a few matters to take up with counsel about soma procedural details, and I'm not going to detain you for that. The testimony is closed. We'll have the attorneys make their comments to you after lunch and suggest how this all adds up. Then I'll give you a very simple piece of law that you apply to the case. You figure out what the facts are and apply it to the law, and your decision will easily flow when you do that. Remember, don't discuss the case among yourselves over the lunch hour. You're going to have it in your hands early this aftex'noon for a decision. Anything else counsel would like me to say? MR. BANKOt No, Your Honor. MR. WOLFGANG I No, Your Honor. Thank you. THE COURT: The jury is going to be in recess until 1:30, ladies and gentlemen. At 1:30, I'll ask you to be back upstairs. (A luncheon recess taken.) (The following discussion occurred outside the presence of the jury t ) MR. WOLFGANG: Your Honor, I have one housekeeping request, without opposition from Mr. Banko. The d~posltion transcript of Dr. Gluck, the transcript itself, I don't believe I marked as an exhibit during my case. ! would ask permission to do that and have it 91 ~ ,.... 1 admitted as an exhibit. 2 THE COURT, We'll mark it. Obviously, it's 3 an exhibit. Let's move ahead here. 4 MR. WOLFGANG, Sure. 5 (Plaintiffs' Exhibit No. 5 was marked for 6 identification and admitted.) 7 THE COURT: Is there something else? 8 MR. WOLFGANG, I believe we should probably 9 go through the points for charge to make a record. 10 THE COURT, I already did in chambers, and I 11 marked them. 12 MR. WOLFGANG: Well, Your Honor, could we at 13 least put on the record that Plaintiffs' motion for directed 14 verdict is denied. 15 THE COURT: That's been denied. 16 MR. BANKO: Judge, 80 as not to waste the 17 Court's time after the charge is complete, in chambers I 18 requested that the Court give my proposed points for charge 19 2, 3, 4, 6, 7 and 12, all of which, in one way or another, 20 pertain to the defense of contributory negligence. Those 21 were refused in chambers. I just want to renew my request 22 that the Court read those points for charge. 23 THE COURT: All right. Well, that's refused. 24 MR. BANKO: Judge, also, there was some 25 discussion about whether. I wanted 19 and 20 of the 92 ,"'"\ r, 1 Defendant's proposed points. I'll withdraw those, as well. 2 That makes that simple. 3 THE COVRTI Which, 19 and 20? 4 MR. BANKO I Right. In any event, there was a 5 typo in No. 19. It should have been -- 6 THE COURT I Well, you're withdrawing it 7 anyway. 8 (The jury entered the courtroom.) 9 . THE COURT I Good afternoon, ladies and 10 gentlemen. Counsel has a chance to make an argument to you 11 at this time. We'll start with the defense. 12 (Mr. Banko closed to the jury on behalf of 13 the Defendant.) 14 (Mr. Wolfgang closed to the jury on behalf of 15 the Plaintiffs.) 16 THE COURT: Ladies and gentlemen, anybody 17 feel the need of a recess? I won't be too long. But if you 18 need a recess, I'll take one. .19 . (No response.) 20 THE COURT: In civil cases such as this one, 21 the Plaintiffs have the burden of proving these contentions 22 which entitle them to relief. When a party has the burden 23 of proof on a particular issue, their contention on the 24 issue must be established by a fair preponderance of the 25 evidence. The evidence establishes a contention by a fair 93 ,'~ ~ 1 preponderance of the evidence if you are persuaded that it 2 is more probably accurate and true than not. To put it , 3 another way, think, if you will, of the ordinary balance 4 scale with a panel on each side. On the particular question 5 presented to you, on one side of the scale place all of the 6 evidence favorable to the Plaintiff. On the other on that 7 question, place all of the evidence favorable to the 8 Defendant. If after considering the comparable weight of 9 the evidence you feel that the scales tip every sc, slightly 10 or to the slightest degree in favor of the Plaintiff, your 11 verdict on that particular question must be for Plaintiff. 12 If the scales tip in favor of the Defendant or are equally 13 balanced, your verdict must be for the Defendant on that 14 particular issue. 15 Don't attempt to read anything into the 16 manner of delivery of my remarks to you, ladies and 17 gentlemen, how I want you to find in this case. I have 18 absolutely no opinion at all. Obviously, since the medical 19 testimony was recorded, you actually saw me leave the 20 courtroom, so you folks know a lot more about this case than 21 I do, and the determination of what these facts are is 22 exclusively for you, the jury. You must accept the law as I 23 give it to you and apply the law to the facts as you find 24 them to be. But what those facts are are what you folks 25 decide they are. Consider counsel's arguments to you in 94 ."", ,,-, 1 making up your mind what the facts are. Cc~sider all of the 2 evidence, whether referred to by Court or counselor not, 3 and give eQch and every part of it such weight as you think 4 it is entitled to. 5 Where there's any conflict in the testimony 6 from one side to the other, it's your duty to reconcile the 7 conflict if you can. Where any conflict in the testimony 8 cannot be reconciled, it is your duty to determine what the 9 truth of the matter really is. You're the sole judges of 10 the credibility of each and every witness who has testified, 11 and that's very important if there's any conflict in the 12 testimony. 13 Credibility does not mean merely truthfulness 14 or the lack of it, although that'li! an important element. 15 Credibility also involves accuracy of recollection and 16 accuracy of observation. It is possible that a witness 17 intended or desired to tell the truth, and yet through 18 faulty memory or faulty observation is mistaken in his or 19 her testimony. In passing upon the credibility of the 20 witnesses, you have the right to consider their accuracy or 21 inaccuracy of memory and observation, their appearance on 22 the stand, their manner of testifying, their apparent candor 23 and fairness or the lack of it, their apparent intelligence 24 or the lack of it, the probabilities or improbabilities of 25 their stories and all of the surrounding circumstances, and 95 ,~ ~ 1 to determine which of the witnesses are more worthy of 2 credit and belief. 3 In reaching your ultimate conclusion, you 4 should be guided solely by the testimony presented to you 5 and the proper inferences to be drawn from that testimony 6 and my instructions on the law. Do not be influenced by 7 fear or favor nor by prejudice or sympathy. I say that you 8 cannot use speculation or conjecture in any matter not in 9 evidence; but in deciding what the facts are, ladies and 10 gentlemen, you may properly apply your own common sense and 11 draw upon your own everyday practical knowledge of life as 12 each one of you has experienced it. 13 In regards to the medical people that 14 testified, the general rules about any witness apply to the 15 doctors, but the difference is the doctor who has a special 16 education and so forth -- obviously, to get a license, he 17 does -- they're allowed to give opinions because of that 18 expertise, ladies and gentlemen. You're not bound by any 19 expert's opinion merely because he or she is an expert. 20 Consider the qualifications and reliability of the 21 particular expert and the reasons given for the opinion. 22 You may accept or reject the opinion, as in the case of 23 other witnesses. Give it the weight, if any, you think the 24 particular opinion deserves. In general, the opinion of an 25 expert has value only when you accept the facts upon which 96 -, ;~ 1 it is based. This is true whether these facts are assumed 2 hypothetically by the expert, come from his personal 3 knowledge, some other proper source, or from some 4 combination of all of these things. 5 Ouest ions may have been asked of the expert 6 where he was invited to assume that certain facts were true 7 and to give an opinion based on that assumption. We all 8 know these type of questions to be called hypothetical 9 questions. Were such questions put to the experts, 10 gentlemen? 11 12 13 14 15 16 17 18 19 20 21 MR. BANKO: Yes, Your Honor. There was one hypothetical question. THE COURT: All right. If you find that any material fact assumed in a particular hypothetical question has not been explained by the evidence -- or established by the evidence, I should say/ you should disregard the opinion of the expert given in response to that question. By material fact, I mean one which was important to the expert in forming his opinion. Similarly, if the expert made it clear that his opinion is based on the assumption that a particular fact did not exist, and from the evidence you find the fact did exist and it was material, then you would give no weight to that opinion. In resolving any conflict which may exist in the testimony of the doctors, you're entitled to weigh the opinion of one expert against that of " 22 23 24 25 97 -, r"~, 1 another. Consider the relative qualifioations and 2 reliability of the expert witnesses as well as their reasons 3 for each opinion and the facts and other matters upon which 4 the opinion is based. 5 When we drive a v~hicle and we hit somebody 6 from the rear who is parked at an intersection, obviously, 7 we are negligent, not having our car in control. The 8 Defendant admits that. The ~irst question on your slip is 9 past the question of negligence. The first question for you 10 on the slip is, do you find that Ms. Dowswell's negligence 11 was a substantial factor in bringing about the Plaintiffs' 12 harm? In order. for the Plaintiffs to recover in the case, 13 the Defendant's negligent conduct must have been a 14 substantial factor in bringing about the harm. This is what 15 the law recognizes as legal cause. A substantial factor is 16 a real, actual factor, although the result may be unusual or 17 unexpected, but it is not an imaginary or fanciful factor or 18 a factor having no connection or only an insignificant 19 connection with the harm. That's the first thing you folks 20 have to decide. It tells you if you've answered the 21 question yes, go on to Ouest ion 2, which is about damages. 22 If you answered the question no, don't go on to damages and 23 return to the courtroom. 24 I'm going to instruct you on the various 25 elements of damage to which Plaintiffs may be entitled. The 98 ~ ~ 1 fact that I tell you about damages does not indicate any 2 opinion on my part about this subject. I/m explaining this 3 to you because I'm required to explain all of these things 4 to you, ladies and gentlemen. If you find the Defendant to 5 be liRble to the Plaintiffs, then you must find an amount of 6 money damages which you believe will fairly and adequately 7 compensate the Plaintiffs for all of the physical and 8 financial injury they have sustained as a result of this 9 accident. The amount you award today must compensate 10 Plaintiffs completely the damage sustained in the past, as 11 well as any damage they might sustain in the future. 12 The damages recoverable by the Plaintiffs in 13 the case and the items that go to make each one of those 14 things up would be, for example, past pain and suffering, 15 future pain and suffering -- and I'll say a couple of more 16 words about that -- the loss of enjoyment of life, 17 embarrassment, humiliation, lost wages and loss of 18 consortium. We have one line for Mrs. Hl~rley and one line 19 for Mr. Hurley. 20 If you find any of these things, ladies and 21 gentlemen, in regard to Mrs. Hurley, you lump them 22 altogether in one figure, and there/s one line for that. 23 She would be entitled to be fairly and adequately 24 compensated for such physical pain, mental anguish, 25 discomfort, inconvenience and distress as you find she has 99 .~', ,'-~ 1 endured from the time of the accident until today. She 2 would be entitled to the same thing for pain and sUffering 3 as you find she would suffer in the future. She would be 4 entitled to be fairly and adequately compensated for past, 5 present and future loss of her ability to enjoy any of the 6 pleasures of life as a result of these injuries. She would 7 be fairly and adequately entitled to be compensated for any 8 embarrassment or humiliation as you believe she has endured 9 or will continue to endure in the future. She would be 10 entitled to be compensated for the amount of earnings she's 11 lost up to the time of trial as a result of her injuries. 12 This is the difference between what she probably could have 13 earned but for the harm and any less sum which she actually 14 earned in any employment. 15 I think counsel had a specific figure on 16 this, did you not? 17 MR. WOLFGANG: Yes, Your Honor, $612.00. 18 THE COURT: All right. I don't know if 19 that's an exhibit, but, anyway, that's the claim. Well, 20 that would all go on Mrs. Hurley'S line, if, in your 21 judgment, that's what to do in the case, ladies and 22 gentlemen. 23 Mr. Hurley'S claim is derivative, and it's 24 for something called loss of consortium. When a married 25 person is wrongfully injured, that person's spouse may 100 r"'~ ,..... 1 recover damages in their own right for loss of consortium. 2 That's defined as a right growing out of the marriage which 3 the husband and wife have respecting the society, 4 companionship and affection of each other in their life 5 together, i.e., whatever aid, assistance, comfort from 6 society one spouse would be expected to render and bestow 7 upon the other. 8 So, ladies and gentlemen, if you find that 9 the Defendant's conduct was a substantial factor in bringing ~o about harm to the Plaintiffs, your verdict must be in favor 11 of the Plaintiffs and against the Defendant. If you find 12 the Defendant's negligence was not a substantial factor in 13 bringing about the harm to the Plaintiffs, your verdict must 14 be for the Defendant. I f your verdict is in favor of the 15 Plaintiff, then determine what damage the Plaintiff has had 16' in the past and would have in the future and put that on the 17 slip. That's all the law you need to know, ladies and 18 gentlemen, to decide this case. 19 I suggest you pick one of yourselves as 20 foreman or forelady to preside over the deliberations, and 21 that person is going to put the items on the slip, date it 22 and sign it, and will be announcing the verdict on behalf of 23 all of you when you come back into the courtroom. All votes 24 are equal on the jury, obviously, ladies and gentlemen. 25 Should there be any question about my 101 1 . I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '~..._, ;"'"1 instructions to you, you would have to send a note to me through Mrs. Morgan, and then I'll have to reassemble everybody in the open courtroom to reexplain something to you. I hope that doesn't happen in this simple case, but I explained the mechanism t~ you. Unless counsel agree that I can answer yes or no and we both agree on it, I'll have to get you down here. I hate to bring you back down. I am not encouraging you to do that. I am encouraging you to use your collective recollection about the evidence and about the law, and I believe that you will easily be able to do that, ladies and gentlemen. I remind you that in a civil case in Pennsylvania, contrary to a criminal case, in a civil case, when ten of you folks have agreed upon an answer to a question, that's the answer of all twelve of you, and you can move on to the next item of business. I encourage you to pe unanimous in your verdict, ladies and gentlemen; but Pennsylvania law is that when ten of you have decided on an answer to a question, put something on the line and move on to the next one and decide it. I would like to ask counsel if I have made any mistakes of fact or errors of law here? MR. WOLFGANG: The Plaintiffs are satisfied, Your Honor. MR. BANKO: Your Honor, other than to renew 102 '-.. r\ 1 my previous request .. 2 THE COURTt Well, I've already ruled on 3 those. Aside from that, sir? 4 MR. BANKOt No, Your Honor. 5 THE COURTt You're are satisfied? 6 MR. BANKO: Yes, I am. 7 THE COURTt Okay. Ladies and gentlemen, I 8 now ask you to go with Mrs. Morgan and retire and 9 deliberate. I think it's only a question of sending the two 10 pictures up, but I/ ll. review all of the other evidence with 11 counsel. Court is in recess. 12 (The jury retired to deliberate at 2t55 p.m.) 13 and returned with a verdict at 4 t 30 p. m. ) 14 THE COURT: I/ll come down and take the 15 verdict with you. Madam Foreman, would the jury all please 16 rise. Madam Foreman, has the jury generally reached a 17 verdict in this case? 18 THE FOREPERSON: Yes, it has, Your Honor. 19 THE COURT: On ouest ion No.1, do you find 20 that Defendant Patricia Dowswell's negligence was a 21 substantial factor in bringing about Plaintiffs' harm? 22 THE FORE PERSON , Yes, we do, Your Honor. 23 THE COURT: Ladies and ger.tlemen of the jury, 24 so say ten or more of you that you've answered this question 25 yes? 103 '~, ,f- 1 (The jurors responded affirmatively.) 2 THE COURT I Madam Foreman, on Ouestion No.2, 3 state the amount of damages, if any, which you find the 4 Plaintiffs have suffered as a result of Defendant Dowswell's 5 negligence. "A," in regard to Mrs. Hurley, what is your 6 answer? 7 THE FORE PERSON : Ninety thousand dollars. 8 THE COURT I Ladies and gentlemen of the jury, 9 so say you answered Oueation "A" on behalf of Mrs. Hurley, 10 so aay ten or more of you, $90,000.00? 11 (The jurors responded affirmatively.) 12 THE COURT: On Ouestion "B," as tu Mr. 13 Hurley, have you made an award for loss of consortium? 14 THE FOREPERSON: Yes, we have. 15 THE COURT: What is that? 16 THE FOREPERSON: Ten thouaand dollars. 17 THE COURT I So say ten or more of you that 18 you award Mr. Hurley $10,000.00, ladies and gentlemen? 19 THE FOREJ?ERSON: Yes. 20 THE COURT: Let the verdicts be recorded. 21 You may be seated a second, folks. Your duties are finished 22 on this case. I release you from the obligations about 23 talking about it or not talking about it. That's up to you. 24 The attorneys may put questions to you, and your right is to 25 say you have nothing more to say or whatever you want to do. 104 r(- ." rt II}.;" i" Tr-: !,'.~ ~T.'nY ql1ll~'1 -iJ -, I' ;;: 117 CI...}'" .i',,, ;>( HI:\.;'ll,:,' , ""1'( ';'1 \,~ .-\ , \1 I , I' " I , ,I , , , , ", . .0.1 I' , , , . . , ,r! 'I I AEVNOL-QS & HAVAS 1.1 A Pl'lO"...QN"'t. CO,.,.O......"ON ATTO"NIV. "'NO COUNIIILOA& AT L....w 101 PIN. STRnT P,O. HOM 932 H..,,"I..U"O, PINN.VL.V.ANlA 17100.0932 , , , Tet..,.HON. C7' 712315.3200 j i H' f '-'- ,.....'_. .' / " . .