HomeMy WebLinkAbout97-04575
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HEP~OJ\D, SWARTZ &. MORGAN
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CERTIFICATE OF SERVICE
I hereby certHy that I have served a true and correct
copy of the foregoing document on all counsel of record by
placing the same in the United states Mail at Harris,y-rg,
~
Pennsylvania, first-class pos taqe prepaid, on the ~day of
February, 1998, addressed as followsr
Dennis R. Sheaffer, Esquire
HEPFORD, SWARTZ' MORGAN
Post Office Box B89
Harrisburg, Pennsylvania 17108-0889
Attorneys for Plaintiffs
Richard W. Wix, Esquire
WIX, WENGER , WEIDNER
4705 DUke Strep.t
Harrisburg, Pennsylvania 17109
Attorneys for Defendant, Shirley Michaels
REYNOLDS , HAVAS
A Professional Corporation
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Rosa B. I< p, Secret ry
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HEPfORD, SWARTZ & MORGAN
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THERESA ROSE CAVE and
DAVID L, CAVE, JR,t
Plaintiffs
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-4575 Civil 1997
CIVIL ACTION . [jAW
SHUn,EY A, MICHAELS,
CAROL and CLIFFORD RESSLER,
JR"
Defendants
JURY ,TRIAL DEMANDED
NOTICE TO DEFEND AND CLAIM RIGHTS
YOU HAV~ BEEN SUED IN COURT. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are served
by entering a written appearance personally or by attorney and
filing in writing with the Court your defenses or objections to the
claims set forth against you, You are warned that if you fail to
do so the case may proceed without you and a judgment may be
entered against you by the court without further notice for any
money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff, You may lose money or property or
other rights important to you,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP,
COURT ADMINISTRATOR
4th Floor, Cumberland County courthouse
Carlisle, PA 17013
(717) 240-6200
NOTICIA
Le han demar,dado a usted en la corte, Si usted quiere
defenderse de estas demand as expuestas en las paquinas siguientes,
usted tiene viente (20) dias de pla20 al partir de la fecha de la
demanda y la notificacion, Usted de be presentar una apariencia
escrita 0 en persona 0 por abogado y archivar en la corte enforma
escrita sus defensas 0 aus objeciones alas demandas en contra de
su persona, Sea avisado que si usted no ae defiende, la corte
tomara medidas y puede entrar una orden contra usted ain previo
aviso 0 notificacion y por cuaIquier queja 0 aIivio que es pedido
I J' II. l' /.' II.
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PlaintiffB had aome to a full, legal Btop in ob~ervanoe of the Btop
Bign at the intersection,
9, AB a direct and proximate result of this aocident,
Plaintiff Theresa Cave sustained numerous severe and permanent
injuries including. but not limited to. th" following J
(a) dizzillessl
(b) right ear injury,
(c) headaches,
(d) tenderness of the right paraspinal cervical
musculature,
(e) acute right cervical strain. and/or aggravation of
preexistin~ cervical strain,
(f) right serous otitis media,
(g) injury to right shoulder. and/or aggravation of
preexisting right shoulder problems,
(h) injury to right arm. and/or aggravation of
preexisting right arm problems,
(i) injury to left arm, and/or aggravation of
preexisting left arm problems;
(j) pain in left and right trapezius areas, and/or
aggravation or preexisting problem in left and right
trapezius;
(It) cervical spine injury, and/or aggravation of
preexisting cervical spine problem; and
3
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. (e) failing to keep n proper. lookout for the automobil.'iI
being operated by Defendant Clifford Rf,I~~ler whioh
wa~ approaching the intersect ion I
(f) ordrating her vehicle in violatJ.on of 75 l?a.C,S.A,
533~1 entitled Vehicle Approaching or Entering
Intersection, pertaining to the operation of motor
vehicles on the public highway, which constitutes
negligence as a matter of lawl
(g) operating her vehicle in violation of 75 l?a,C,S,A,
53322 entitled Vehicle Turning Left, pertaining to
the operation of motor vehicles on the public
highway, which constitutes negligence as a matter
of lawl
(h) operating her vehicle in violation of 75 l?a,C.S,A,
53361 entitled Driving at Safe Speed, pertaining to
the operation of motor vehicles on the public
highway, which constitutes negligence as a matter
of lawl
(i) operating her vehicle in violation of 75 Pa,C.S,A,
53362 entitled Maximum Speed Limits, pertaining to
the operation of motor vehicles on the public
,
highway, which constitutes negligence as a matter
of lawl
(j) operating her vehicle in violation of 75 l?a,C,S,A,
6
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(f) operating hia automobile in violation of 75
Po.C,B.A. 533:21 entitled Vehicle Approaching or
lilntering Intt-rsection, pertaining to thlil operation
of motol' vehicles or: the public highway, which
constitutes negligence as a matter of lawl
(g) operating his automobile in violation of 75
Po.C,S,A, ~3361 entitled Priving Vehicle at Safe
Speed, pertaining to the operation of motor vehicles
on the public highway, which constitutes negligence
as a matter of lawl
(h) operating his automobile in violation of 75
Pa.C.S.A. ~3362 entitled Maximum Speed Limits,
pertaining to the operation of motor vehicles on the
public highway, which constitutes negligence as a
matter of laWI
(i) operating his automobile in violation of 75
Pa.C.S.A.
!i3714
entitled
careless
Driving,
pertaining to the operation of motor vehicles on the
public highway, which constitutes negligence as a
matter of lawl
(j) operating his automobile without due regard for the
rights, safety, well being, and position of
Plaintiffs under the aforesaid circumstances;
(k) failing to use due care under the circumstances; and
(1) failing to stop within assured clear distance.
I
9
Relllller") were negligent by colliding with Co-Defendant, Shirley
Mic:haelll' ("Ms. Michaels") vehicle, which in turn collided with
Plaintiffs' vehicle. A copy of Plaintiffs' Complaint is attached
hereto, incorporated herein by reference and marked Exhibit "1\."
I. PRELIMINARY OBJECTION IN ~p A DEMURRER PURSUANT
TO PAt R.C.P. 1028111.1141.
3. The foregoing paragraphs are incorporated herein by
reference as though set forth fully at length.
4. Paragraphs 8, 22, 23, and 24 of Plaintiffs'
Complaint allege that Plaintiffs suffered injuries as the result
of Mr. Ressler's "negligence, carelessness and recklessness"
and/or that Mr. Ressler operated his vehicle in a "negligent,
cF,lreless and reckless manner."
5. If these allegations remain in Plaintiffs'
Complaint, the Complaint can easily be amended to include a claim
for punitive damages.
6. In order to state a claim for punitive damages, a
complaint must allege facts that indicate in what manner the
defendant knew or had reason to know that his conduct involved a
high degree of probability that substantial harm to the plaintiff
would result. VanIngen v. Wentz, 70 P&C2d 555 (Monroe 1975).
7. In addition, a plaintiff must allege sufficient
allegations alleging that a defendant exhibited outrageous
behavior and showed reckless indifference to others. See Takes
v. Metropolitan Edison Company, 440 Pa. Super. 101, 655 A.2d 138
- 2 -
(1995) 1 Rutting v. 84 Lumber c~npany, 410 Pa. Super. 459, 600
A.:Zd 545 (1991).
8, A person's conduct is "outrageous" when he acts
with a bad motive or with reckless indifference to otherll. See
Restatement (Second) ot ~'orts, !i90B (2) .
9. aased on the facts pled in this case, the alleged
misconduct of the Resslers does not rise to ~ level of
outrageousness and, therefore, cannot support a finding of
punitive damageD as a matter of law.
10. Plaintiffs' claim for punitive damages fails to
state a claim upon which relief may be granted.
WHEREFORE, Defendants, Carol and Clifford Ressler, Jr.,
respectfully request this Honorable Court strike the aforesaid
allegations of Plaintiffs' Complaint for failure to set forth a
claim for punitive damages.
II. PRELIMINARY OBJECTION IN THE NATURE OP A D~ER PURSU~
TO PA. R.C.P. 1028111.1 l~l.
11. The foregoing paragraphs are incorporated herein
by reference as though set forth fully at length.
12. In the caption of Plaintiffs' Complaint,
Plaintiffs identify Carol and Clifford Ressler, Jr., as
Defendants in this action.
13. Despite naming Mrs. Ressler as a Defendant in the
caption of the Complaint, there are no allegations which set
forth the baois of the claim of negligence against Mrs. Ressler.
3 .
14. Therefore, as a result, Plaintiffs' complaint
failll to state a claim upon which r.elief may be granted against
Defendant, Cat'ol Ressler.
15. Pursuant to Pn. R.C.P. 102B(a) (4), the Complaint,
or port ions thereof, may be dismissed for legal insufficiency.
WHEREFORE, Defendants, Carol and Clifford Ressler, Jr.,
respectfully request this Honorable Court dismiss the Complaint
in its entirety as to Defendant, Carol Ressler, or, in the
alternative, or.der a more specific pleading with regard to the
alleged negligent conduct of the Defendant, Carol Ressler.
III. PRBLIMINARY OB,TECTION IN THE N~TURE OP A MOTION TO STRIKB
PURSUANT TO PAt R.C.P. 1028111.1131 lLACK OP PACTUAL
SPECIPICITY PA. R.C.P. 10191411.
16. The foregoing paragraphs are incorporated herein
by reference as though set forth fully at length.
17. Pennsylvania Rule of Civil Procedure 1019(a)
mandates that, in a pleading, the material facts upon which a
cause of action is based shall be stated in a concise and summary
form.
lB. Certain paragraphs in Plaintiffs' Complaint
contain allegations of negligence against the Resslers which are
not factually specific.
19. In paragraph 9, Plaintiff, Theresa Cave, alleges
that she suffered injuries as a result of this accident and
. 4 -
sustained injuries "including, but not limited to, tne
followingl" ,
:zoo Additionally, in paragrapn 23, Plaintiffs contend
Mr. Ressler was negligent with the followingl
(j) operating his automobile without due
regard for the rights, safety, well being,
and position of Plaintiffs under the
aforesaid circumstances,
(It) failing to use due care under the
circumstancesr and
21. The foregoing averments, including the language
"but not limited to," constitute non-specific and inconsistent
general allegations of negligence that fail to set forth the
material facts upon whj.ch they are based in violation of
Pennsylvania Rule of Civil Procedure 1019(a).
22. If the allegations set out above are allowed to
remain, then Plaintiffs may have the opportunity to amend their
Complaint to introduce new theories of negligence or damageD
after the applicable statute of limitations has run, all to the
severe prejudice of the Resslero.
WHEREFORE, Defendants. Carol and Clifford Ressler, Jr.,
request this Honorable Court to enter an Order pursuant to Pa.
R. C. P. 1028 (a) (3) striking the language "but not limited to" in
paragraph 9 of Plaintiffs' Complaint, as well as subparagraphs
(j) and (k) of Paragraph 23 of Plaintiffs' Complaint for failure
to comply with the factual specificity requirement set forth in
- 5 -
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4. on August 26, 1995, at approximately 3 ~OO p,m.,
Plaintiffs were at p, complete stop facing southbound at a stop sign
at the intersection of Valley Street and First Street,.Summerdale,
East Pennsboro Township, cumberland County, Pennsylvania,
5. At the same time, Defendart Michaels recklessly and
carelessly proceeded to make a left turn from the eastbound lane
of Valley Street to go northbound on First Street.
6. At the same time,
carelessly approached the
Valley Street.
Defendants Resslers recklessly and
intersection traveling westbound on
7. Defendant Michaels operated her vehicle in a negligent,
careless and reckless manner, so as to cause the initial collision
with Defendants Resslers' automobile which ultimately caused
Defendant Michaels' automobile to collide violently with the
Plaintiffs' automobile, after the Plaintiffs had come to a full,
legal stop in observance of the stop sign at the intersection.
8. Defendant Clifford Ressler operated his vehicle in a
negligent, careless and reckless manner, so as to cause his vehicle
to collide with Defendant Michaels' automobile which in turn
collided violently with the Plaintiffs' automobile, after the
2
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Plaintiffs had come to a full, legal stop in observance of the stop
sign at the intersection.
~
9. As a direct and proximate result of this accident,
Plaintiff Theresa Cave sustained numerou/J seVeX'e and permanent
injuries including, but, not limited to, the followingf
(a) dizziness;
(b) right ear injury,
(c) headaches,
(d) tenderness of the right paraspinal cervical
musculature,
(e) acute right cervical strain, and/or aggravation of
preexisting cervical strain;
(f) right serou/J otitis media,
(g) injury to right shoulder, and/or aggravation of
preexisting right shoulder problems,
(h) injury to right arm, and/or aggravation of
preexisting right arm problems,
(i) injury to left arm, and/or aggravation of
preexisting left arm problems,
(j) pain' in left and right trapezius areas, and/or
aggravation or preexisting problem in left and right
trapezius;
Ik) cervical spine injury, and/or aggravation of
preexisting cervical spine problem I and
3
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(e) failing to keep a proper lookout for thll al,ltomobile
being operated by Defendant Clifford Resaler which
was approaching the intersection I ·
(f) operating her Vllhicle in violation of 75 Pa.C,S.A.
633;!l entitled VehJ.cle Approaching or EnterJ,llg
Intersection, pertaining to the operation of motor
vehicles on the public highway, which constitutes
negligence as a matter of laWI
(g) operating her vehicle in violation of 75 Pa.C.S.A.
S33:Z2 entitled Vehicle Turning Left, pertaining to
the operation of motor vehicles on the public
highway, which constitutes negligence as a matter
of law,
(h) operating her vehicle in violation of 75 Pa.C.S.A.
~3361 entitled Driving at Safe Speed, pertaining to
the operation of motor vehicles on the public
highway, which constitutes negligence as a matter
of law,
(i) operating her vehicle in violation of 75 Pa.C.S.A.
!i3362 entitled Maximum Speed Limits, pertaining to
the operation of motor vehicles on the public
highway, which constitutes negligence as a matter
of lawl
(j) operating her vehicle in violation of 75 Pa.C.S.I\.
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~ount It
Plaintif( There.. Cave V. Defendant Olifford aaa.lar
.
:Z1. The allegations contained in Paragraph~ 1 through :ZO are
incorporated herein by reference a~ though set forth at length.
2:Z. Defendant Clifford Ressler was negligent, careless and
reckless in causing the aforesaid accident, all of which lead to
the severe injuries of Plaintiffs as set forth above.
23. The negligence,
carelessness and recklessness of
Defendant Clifford Ressler consisted of the followingl
(a) operating his automobile at a high and excessive
rate of speed under the circumstances,
(b) failing to maintain his automobile under proper and
adequate control at the time,
(c) failing to take evasive action to avoid the
collision,
(d) failing to keep a proper lookout for tte automobile
being operated by Plaintiff David Cave which was
legally stopped in observance of,the stop sign;
(e) failing to keep a proper lookout for the automobile
being operated by Defendant Michaels which was
proceeding to turn left' from Valley Street onto
First Streett
8
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(f) operating his automobile in violation of 75
Pa.C.S.A, 533:21 entitled Vehicle Approaching or
Entering Intersection, pertaining to the operation
of motor vehicles on the public highway, which
oonstitutes negligence as a matter of ~dWI
(9) operating his automobile in violation of 75
Pa.C.S.A. !i3361 entitled Driving Vehicle at Safe
Speed, pertaining to the operation nf motor vehicles
on the public highway, which constitutes negligence
as a matter of lawl
(h) operating his automobile in violation of 75
Pa.C.S.A. !i3362 entitled Maximum SpF.!ed Limits,
pertaining to the operation of motor vehicles on the
public highway, which constitutes negligence as a
matter of lawr
(i) operating his automobile in violation of 75
Pa.C.S.A. !i3714 entitled Careless Driving,
pertaining to the operation of motor vehicles on the
public highway, which constitutes negligence as a
matter of law,
(j) operating his automobile without due regard for the
right;s, safety, well being, and position of
Plaintiffs under the aforesaid circumstances,
lk) failing to USE: due care under the circumstances, and
(1) failing to stop within assured clear distance.
9
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PRAECIPE FOR LI6TING CA6E fOR ARGUMENT
(....t be typewritten and subnitted in mil'l i""tel
TO THB PROTHONOTARY OF CUMBERLAND COUNTY:
Please llit the within Illstter for the next /U'9U1lBnt court.
~~-------------------------------- ._------------------------------------------~--------
( Plaintiff)
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CAPTION OF CA6E
(entire caption ITIJlIt be stated in full)
TIIERESA ROSI!: CAVI!: AND
DAVID L. CAVI!:, JR.,
l'/,AIN't'IFFS
VB.
SIIIRLI!:Y 1\. MICIIAELS,
CLIFFORD RESSLER, JR., AND
CAROL RESSLER,
DEFENDANTS.
(Oefeh:lant)
No.
97
Civil 4575
19
1. state matter to be argued (Le., plaintiff's llIJtion for new trial, defendant's
dsrurrer to Ca11>laint, etc.):
PRELIMINARY OBJEC'l'WNS OF DEFI!:NDANTS, CAROl. AND CI.IFFORD
RESSLER, JR., TO PI~INTIFFS' COMPLAINT
2. Identify counsel who ....ill argue coJSe:
(a) for plaintiff: I)I!:NNIS R. SIII!:AFFI!:R, ESQUIRE
J\ddress: P.O. BOX 889, IIARRISBURG, 1'A 17108-0889
(b) for defendant: I.AUHAI.m.: B. BAKEH, ESQUIRE
J\ddress: P.O. BOX 932, IIARIHSBUHG, PA 17108-0932
RICIIARD W. WIX, I-:6QUIRI!:
4705 DUKE S'l'REB'l', IIAHRISBURG, PA 17109
3. I will notify all parties in writing ....ithin t100 days that this ClIIIe has
been listed for argunent.
4. t\r9IJ1Ient Court Dilte: MAY 27, 1998
Dated: 4/28/98
~~"
('Allm. AND CLIFFORD RESSI.ER, JR.
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6. Admitted in part and denied in part. Admitted that on or
about August :Z6, 1995 Defendant Michaels proceeded to make a left
turn from the eastbound lane of Valley street to go northbound on
First stree,t in summerdale, Pennsylvania. It is specifically
denied that the time was approximately 3tOO p.m. To the contrary,
the Defendant believes and therefore avers that the time was
approximately 5~10 p.m. By way of further answer, the remaining
averments of Paragraph 5 are conclusions of law to which no
response is required. To the extent that a response is deemed
required, each and every remaining averment of Paragraph 5 is
specifically denied and strict proof thereof is demanded at the
time of trial.
6. Admitted.
7. Admitted in part and denied in part. I\dmitted that a
collision occurred between a vehicle operated by Defendant Michaels
and a second motor vehicle. The remaining averments of Paragraph
7 constitute a conclusion of law to which no response is required.
To the extent that a response is deemed required, the remaining
averments of paragraph 7 are specifically denied and strict proof
thereof is demanded at the time of trial.
8. The averments of Paragraph 8 constitute a conclusion of
law to which no response is required. To the extent that a
response is deemed required, each and every averment of Paragraph
2
8 is specificallY denied and strict proof thereof is demanded at
the time of trial.
9. After reasonable investiqation, Defendant is without
sUffioient knowledge to form a belief as to the truth of the
averments of Paragr~ph 9. Therefore, eaoh and every averment of
Paragraph 9 is specifically denied and striot pr Jf thereof is
demanded at the time of trial.
10. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of paragraph 10. Therefore, each and every averment of
Paragraph 10 is specifically denied and strict proof thereof is
demanded at the time of trial.
11. I\fter reasonable investigation, Defendant is without
sufficient knr.lwledge to form a belief as to the truth of the
averments of Paragraph 11. Therefore, each and every averment of
Paragraph 11 is specifically denied and strict proof thereof is
demanded at the time of trial.
12. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 12. Therefore, each and every averment of
paragraph 12 is specifically denied and strict proof thereof is
demanded at the time of trial.
13. After reasonable investigation, Defendant is without
3
sufficient knowledge to form a belief as to the truth of the
averments of P.ar.agraph 13. Therefore, each and every averment of
Paragraph 13 is specifically denied and strict proof thereof is
demanded at tho time of trial.
14. After reasonable investigation, Defendant is without
suef icient knowledge to form a belief as to the truth of the
averments of Paragraph 14. Therefore, each al1d every averment of
Paragraph 14 is specifiGally denied and strict proof thereof is
demanded at the time of trial.
15. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 15. Therefore, each and every averment of
Paragraph 15 is specifically denied and strict proof thereof is
demanded at the time of trial.
16. Paragraphs 1 through 15 of the Defendant Michaels' Answer
with New Matter to plaintiffs' complaint are incorporated herein by
reference.
17. The averments of Paragraph 17 constitute a conclusion of
law to which no response is required. To the extent that a
response is deemed required, each and every averment of paragraph
17 is specifically denied and strict proof thereof is demanded at
the time of trial.
18. The averments of paragraph 18 constitute a conclusion of
4
law to which no response is required. To the extent that a
response is deemed required, each and every averment of Paragraph
~8 is specifically denied and strict proof thereof is demanded at
the time of trial.
19. The averments of Paragraph 19 constitute a conolusion of
law to which no response is required. To the extent that a
response is deemed required, each and every averment of Paragraph
19 is specifically denied and strict proof thereof is demanded at
the time of trial.
20. The averments of paragraph 20 constitute a conclusion of
law to which no response is required. To the extent that a
response is deemed required, each and every averment of paragraph
20 is specifically denied and strict proof thereof is demanded at
the time of trial.
WHEREFORE, Defendant, shirley A. Michaels, respectfully
requests Your Honorable Court to dismiss the Plaintiffs' Complaint
with prejudice.
21.-25. The averments of ~aragraphs 21 through 25 are
addressed at a Defendant other than answering Defendant.
Therefore, no response is required.
WHEREFORE, Defendant, shirley 1\. Michaels, respectfully
requests Your Honorable Court to dismiss the plaintiffs' Complaint
with prejudice.
5
~15. PaX'agraphs 1 through :Z5 pf Defendant Michaels' AnsWer
With New Matter to Plaintiffs' Complaint are incorporated herein by
reference.
~7. Af.ter reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 27. Therefore, each and every averment of
Paragraph 27 is specifically denied and strict proof thereof is
demanded at the time of trial.
WHEREFORE, Defendant, Shirley A. Michaels, respeotfully
requests Your Honorable Court to dismiss the Plaintiffs' Complaint
with prejudice.
28.-29. Paragraphs 28 and 29 are addressed to a Defendant
other than the answering Defendant. Therefore, no response is
required.
WHEREFORE, Defendant, Shirley A. Miohaels, respectfully
requests Your Honorable Court to dismiss the Plaintiffs' Complaint
with prejudioe.
NIlW MATTIlR
30. The Plaintiff's olaims are for medioal expenses and/or
wage loss and are barred, or should be reduced in aocordanoe with
S 1722 of the Pennsylvania Motor Vehicle Financial Responsibility
Aot.
31. The Plaintiff's claims for non-pecuniary damages may be
6
barred by the 1imited tort option of the Pennsylvania Motor Vehiole
Finanoial Responsibility Act.
3:Z. The injuries and damages referred to in the Plaintiff'.
complaint were caused by an accident that oocurred in september of
1994 and were not caused by the accident referred to in the
Plaintiff/S complaint.
WHEREFORE, Defendant, Shi.rley A. Michaels, respectfully
requests your Honorable Court to dismiss the Plaintiff's Complaint
with prejudice.
HEW MATTER PURSUANT TO PA R.C.P 2252141
ShirleY A. Michaels v. Cliffor4 Ressler. Jr.
33. Paragraphs 1 through 32 of Defendant Michaels' I\nswer
With New Matter are incorporated herein by reference.
34. The allegations contained in Paragraph 23 of the
Plaintiffs' complaint are incorporated herein by reference without
admission or adoption.
35. In the event that it is determined that Defendant,
Shirley A. Michaels is liable for the injuries of the plaintiff,
then in that event, Defendant, Shirley 1\. Michaels, demands
oontribution and/or indemnity from the Defendant, clifford Ressler,
Jr.
7
and M~. Re..ler we~e neqliqent in the operation of their
respeotive vehiolell, thereby oausinq injury and damaqe to
Plaintiffs. A oopy ot Plllintiffs' complaint is attaohed he~eto,
incorporated herein by reference and labeled Exhibit "A".
2. On or about June 9, 1998, Ms. Michaels tiled her
Answer with New Matter to the complaint.
3. As pllrt of her Answer with New Matter, Ms.
Michaels incorporated New Matter pursuant to Par R.C.P. No.
2252(d). ~ a copy of Ms. Michaels' Answer with New Matter
attached hereto, incorporated herein by reference and labeled as
Exhibit "B".
I. Preliminary objeotion tor the Failure ot a Pleadinq to
Oonform to Law and/Qr Leqlll Insufficiency ot a P1eadinq
lDemurrerl pursullnt to PIl. R.C.P. No. 1028111.1121 and/or 141.
4. The foregoing averments are incorporated herein by
reference as though set forth fully herein at l~ngth.
5. In Paragraph 35 of the 2252(d) New Matter, Ms.
Michaels alleges the following:
In the event that it is determined that
Defendant, Shirley A. Michaels is liable for
the injuries of the Plaintiff, then in that
event, Defendant, Shirley A. Michaels, demand
contribution and/or indemnity from the
Defendant. Clifford Ressler. Jr.
6. The Uniform Contribution Among Tortfeasor Act, 42
Pa. Cons. Stat. 58321 .e.t~. (the "Uniform Tortfeasors Act")
preserves a common law right of indemnity only in very limited
circumstances.
- 2 -
7. A party may only seek indemnity where it had no
aotual involvement in the events causing the injury, and where
liability is imposed because cf its relationshi~ with the party
from whom indemnity is sought.
8. Thus, indemnity is unavailable where the liability
incurred by the party soeking indemnity is based upon her own
violation ot a duty to the plaintiff.
9. Here, Plaintiffs' Complaint 1l11eges that Ms.
Michaels breached her duty to the Plaintiffs by way of the
alleged negligent operation of her vehicle. Thus, the liability
to which Ms. Michaels is subject in this lawsuit is direct and
primary liability to Plaintiffs based upon Ms. Michaels' own duty
to the Plaintiffs.
10. Accordingly, it Plaintiffs prevail on their claim,
Ms. Michaels will not be required, by operation of law, to answer
for the conduct of Mr. Ressler.
11. Accordingly, Ms. Michaels' claim for indemnity
contained in her New Matter pursuant to Pat R.C.P. No. 2252(d) is
improper under Pennsylvania law and, therefore, must be stricken.
WHEREFORE, Defendant, Clifford Ressler, Jr.,
respectfully requests this Honorable Court to grant its
Preliminary Objections to Co-Defendant, Shirley Michaels' claims
'- 3 -
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THERSSA ROSS CAVE and
DAVIP L. CAVS, JR.,
Plaintiffs
IN THS COURT OF COMMON I?LSAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97.4575 Civil 1997
"
v.
CIVIL ACTION . LAW
SHIRLEY A. MICHAELS,
CAROL and CLIFFORD RSSSLER,
JR.,
Defendants
JURY TRIAL DEMANDED
NOTICE TO DEFEND AND CLAIM RIGHTS
YOU HAVE BEEN SUED IN COURT. If you wish to defend against
the claims set forth in the following pages, you must take acticn
within twenty (20) days after this Complaint and Notice are served
by entering a written appearam:e personally or by attorney and
filing in writing with the Court your defenses or objections to the
claims set forth against you. You are warned that if you fail to
do so the case may proceed without you and a judgment may be
entered against you by the court without further notice for any
money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may looe money or property or
other rights important to you.
YOU SHOULD TAKE THIS rAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT I\FFORD ONE, GO TO OR TELEPHONE THE
OFFICE SE'r FORTH BELOW TO FIND OU'l' WHERE YOU CAN GET LEGAL HELP.
COURT ADMINISTRATOR
4th Floor, Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
NOTICIA
Le han demandado a usted en la corte. Si usted quiere
defenderse de estas demandas expuestas en las paquinas siguientes,
usted tiene viente (20) dias de plazo al partir de la fecha de la
demenda y la notificacion. Uated debe presentar una apariencia
escrita 0 en persona 0 por abogado y archivar en la corte enforma
escrita sus defensas 0 sua objecionea alas demandas en contra de
su persona. Sea avisado que 5 i usted no se def iende, la corte
tomara medidas y pup-de entrar una orden contra uste~ sin previa
aviso 0 notificacion y par cualquler que18 0 olivia que as pedido
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4. On August :Z6, 1995, at approximately 3 100 p. m. ,
Plaintiffs were at a complete stop facing southbound at a stop sign
at the intersection of Valley Street and First Street,'Summerdale,
East Pennsboro Township, cumberland Ccunty, Pennsylvania,
5. At the same time, Defendant Michaels recklessly and
carelessly proceeded to make a left turn from the eastbound lane
of Valley Street to go northbound on First Street.
6. At the same time,
carelessly approached the
Valley Street.
Defendants Resslers recklessly and
interaect ion t ravlilling westbound on
7. Defendant Michaels operated her vehicle in a negligent,
careless and reckless manner, so as to cause the initial collieion
with Defendants Resslers' automobile which ultimately caused
Defendant Michaels' automobile to collide violently with the
Plaintiffs' automobile, after the Plaintiffs had come to a full,
legal stop in observance of the stop sign at the intersection.
8. Defendant Clifford Reusler operated his vehicle in a
negligent, careless and reckless manner. so as to cause his vehicle
to collide with Defendant Michaels' ,;lutomobile which in turn.
(:ollided violently with the Plaintiffs' automobile, after the
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Plaintiffs had come to a full, legal stop in oPllervahce of th~ stop
sign at the intersection,
~
9. As a direct and proximate result of this accident,
Plaintiff Theresa Cave sustained numerous severe and permanent
inju:des including, but not limited to, the following J
(a) dizziness;
(b) right ear injury,
(c) headaches, "
(d) tenderness of the right paraspinal cervical
musculature,
(e) acute right cervical strain, and/or aggravation of
preexisting cervical strainr
If) right serous otitis media,
(g) injury to right shoulder, and/or aggravation of
preexisting right shoulder problems;
(h) injury to right arm, and/or aggravation of
preexisting right arm problems;
(i) . injury to left arm, and/or aggravation of
preexisting left arm problemsr
(j) pain in left and right trapezius areas, and/or
aggravation or preexisting problem in left and right
trapezius,
(k) cervical spine injury, and/or aggravation of
prp.existing cervical spine problem, and
3
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(11 emotional upset and anxiety.
10. As a direct and proximate cause of th& collision,
Plaintiff Theresa Cave has suffered, and will suffer in the future,
,
great physiaal and emotional pain, agony, and inconvenience.
11. As a direct and proximate result of the collision,
Plaintiff Theresa Cave has incurred, and in the future will incur.
expenses for medical treatment and physical therapy in an amount
in excess of sums otherwise recoverable.
12. I\s a direct and proximate result of, the collision,
Plaintiff Theresa Cave has and may continue to suffer severe loss
of earnings and impairment of earning capacity, which income loss
may exceed sums otherwise recoverab!,e,
13. As a direct and proximate result of the collision,
Plaintiffs' automobile was severely damaged to Plaintiffs detriment
and financial loss.
14. As a direct and proximate result of the collision,
Plaintiff Theresa Cave has or may hereinafter incur other financial
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expenses or losses which she may not otherwise be entitled to
recovRr.
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15. Plaintiffs have made It selection of full tort option
coverage for their auto insurance policy purchased from Erie
Insurance Group which was in effect at the time of th~s accident.
Count I
Plaintiff There.a Cave v. Defendant Michael.
16. The allegations contained in Paragraphs 1 through 15 are
incorporated herein by reference as though set forth at length.
17. Defendant Michaels was negligent, careless and reck1ess
in causing the aforesaid accident, all of which caused the severe
injuries of Plaintiff Theresa Cave as set forth above.
18. The negligence, carelessness and recklessness of
Defendant Michaels consisted of the followingt
(a) operating her automobile at a high
and excessive rate of speed under the circumstances;
(b) failing to maintain her vehicle under proper and
adequate control at the time;
(c) failing to take evasive action to avoid the
collision!
(d) failing to keep a proper lookout for the automobile
being operated by Plaiut iff David Cave which was
legally stopped in observance of thp. stop sign;
5
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(e) failing to keep a proper lookout for the automobile
being operated by Defendant Clifford Ressler which
was approaohing the intersection, ~
(f) operating her vehicle in violation of 75 Pa.C.S.A.
53321 entitled Vehicle Approaching or Entering
Intersection, pertaining to the operation of motor
vehicles on the public highway, which constitutes
negligence as a matter of law,
(g) dperating her vehicle in violation of 75 Pa.C.S.I\.
S33:Z2 entitled Vehicle Turning Left, pertaining to
the operation of motor vehicles on the !;lublic
highway, which constitutes negligence as a matter
of law,
(h) operating her vehicle in violation of 75 Pa.C.S.A.
!i3361 entitled Driving at Safe Speed, ~ertaining to
'the operation of motor vehicles on the public
,
highway, which constitutes negligence as a matter
of law;
(i) operating her vehicle in violation of 75 Pa.C.S.A.
!i3362 entitled Maximum Speed Limits. pertaining to
the operation of motor vehicles on the public
,highway, which constitutes negligence as a matter
9f law;
[j) operating her vehicle in violation of 75 Pa.C.S,I\.
.j
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<f) operating his automobile in violation of 75
Pa.C.S.A. 53321 entitled Vehicle Approaching 01"
Entering Intersection, pertaining to tne operation
of motor vehicles on the public highway, which
constitutes negligence as i\ matter of la~"
(g) operating his automobile in violation of 75
Pa.C.S.A. !i3361 entitled Driving Vehicle at Safe
Speed, pertaining to the operation of motor vehicles
on the public highway, which constitutes negligence
as a matter of law,
(h) operating his automobile in violation of 75
Pa.C.S.A. !i3362 entitled Maximum Speed Limits,
pertaining to the operat ion of motor vehicles on the
public highway, which constitutes negligence as a
matter of law,
(i) operating his automobile in violation of 75
Pa.C.S.A. !i3714 entitled Careless Driving,
pertaining to the operation of motor vehicles on the
public highway, which constitutes negligence as a
matter of law,
(j) operating his automobile without due regard for the
rights, safety, well being, and position of
Jiltaintiffs under the aforesaid circumstances;
(k\ failing to use due care under the circumstances; and
(1) failing to stop within assured clear distance.
9
,
THERESA ROSE CAVE and
DAVID L. CAVE,
Plaintiffs
XN,THE COURT OF COMMON PLEAS OF
CUMBERLAND COUN'r'{, PENNSYLVANIA
v.
NO. 97-4575 CIVIL
CIVIL ACTION - LAW
SHIRLEY A. MICHAELS,
CAROL and CLIFFORD RESSLER,
JR.,
Defendants
JURY TRIAL DEMJ.NDED
NOTICE TO pLEAD
TOI Dennis R. Sheaffer, Esquire
HEPFORD, SWARTZ & MORGAN
111 North Front Street
P. O. Box 889
Harrisburg, FA 17108-0889
Lauralee B. Baker, Esquire
REYNOLDS & HAVAS
101 Pine Street
P. O. Box 932
Harrisburg, FA 17108-0932
YOU ARE HEREBY NOTIFIED to plead to the enclosed New Matter
within twenty (20) days from service hereof or a default judgment
will be entered against you.
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BY~
Respectfully submitted,
WI~, WENGER & WEIDNER
~O ~j-,( J~,<_
R~C\;;~-<"H. Wix, Es;u1re T
ID# 07274
4705 Duke Street
Harrisburg, PI\ 17109
(717) 652-8455
'IS. Admitted in part and denied in part. Admitted that on or
about August 26, 1995 Oefendant Michaels proceeded to make a left
turn from the eastbound lane of Valley street to go northbound on
First street in summerdale, Pennsylvania. It is specifioally
denied that the time was approximately 3100 p.m. To the contrary,
the Defendant believes and therefore avers that the time was
approximately 5110 p.m. By way of further answer, the remaining
averments of Paragraph 5 are conclusions of law to which no
response is required. To the extent that a relOponCie is deemed
required, each and every remaining averment of Paragraph 5 is
specifically denied and strict proof thereof is demanded at the
time of trial.
6. Admitted.
7. I\dmitted in part and denied in part. I\dmitted that a
collision occurred between a vehic~e operated by Defendant Michaels
and a second metor vehicle. The remaining averments of Paragraph
7 constitute a conclusion of law to which no response is required.
To the extent that a response is deemed required, the remaining
averments of Paragraph 7 are specifically denied and strict proof
thereof is demanded at the time of trial.
8. The averments of paragraph 8 constitute a conclusion of
law to which no response is required. To tho extent that a
response is deemed required, oach and every averment of Paragraph
2
B is specificallY denied and strict proot thereot is demanded at
the time of trial.
9. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 9. Therefore, each and every averment of
Paragraph 9 is specificaHy denied and strict proof thereof is
demanded at the time of trial.
10. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 10. Therefore, each and every averment of
Paragraph 10 is specifically denied and strict proof thereof is
demanded at the time of trial.
11. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 11. Therefore, each and every averment of
Paragraph 11 is specifically denied and strict proof thereof is
demanded at the time of trial.
12. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of paragraph 12. Therefore, each and every averment of
Paragraph 12 is specifically denied and strict proof thereof is
demanded at the time of trial.
13. After reasonable investigation, Defendant is without
3
sufficient: knowled'iJe to form a belief as to the truth of the
averments of Paragraph 13. Therefore, each and every averment of
Paragraph 13 is specifically denied and strict proof thereof is
demanded at the time of trial.
14. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 14. Therefore, each and every averment of
Paragraph 14 is specifically denied and strict proof thereof is
demanded at the time of trial.
15. After reasonable investigation, Defendant is without
sufficient knowledge to for.m a belief as to the truth of the
averments of Paragraph 15. Therefore, each and every averment of
Paragraph 15 is specifically denied and strict proof th~reof is
demanded at the time of trial.
16. Paragraphs 1 through 15 of the Defendant Michaels' Answer
with New Matter to Plaintiffs' Complaint are incorporated herein by
reference.
17. The averments of Paragraph 17 constitute a conclusion of
law to which no response is required. To the extent that a
response is deemed required, each and every averment of Paragraph
17 is specifically denied and strict proof thereof is demanded at
the time of trial.
18. The averments of Paragraph 18 constitute a conclusion of
4
law to which no l:'espon158 is required. To the extent that a
responlle is doemed required, each and every averment ot Paragraph
18 is specifically denied and strict proof thereot is demanded at
the time ot trial.
19. The averments of Paragraph 19 constitute a conclusion ot
law to which no response is required. To the extent that a
response is deemed required, each and every averment of Paragraph
19 is specifically denied and strict proof thereof is demanded at
the time of trial.
20. The averments of Paragraph 20 constitute a conclusion of
law to which no response is required. To the extent that a
response is deomed required, each and every averment of Paragraph
20 is specifically denied and strict proof thereof is demanded at
the time of trial.
WHEREFORE, Defendant, Shirley A. MiChaels, respectfully
requests Your Honorable Court to dismiss the Plaintiffs' complaint
with prejudice.
21.-25. The
addressed
at
a
averments of Paragraphs 21 through 25 are
Defendant other than answering Defendant.
Therefore, no response is required.
WHEREFORE, Defendant, Shirley A. Michaels, respectfully
requests Your Honorable Court. to dismiss the Plaintiffs' Complaint
with prejudice.
5
,
26. Paragraphs 1 through :Z~ ot Defendant Michaels' Answer
With New Matter to Plaintiffs' complaint are incorporated herein by
reference.
27. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 27.
Therefore, each and every averment of
Paragraph 27 is specifically denied and strict proof thereof is
demanded at the time of trial.
WHEREFORE, Defendant, shirley A. Michaels, respectfully
requests Your Honorable Court to dismiss the plaintiffs' complaint
with prejudice.
28.-29.
Paragraphs 28 and 29 are addressed to a Defendant
other than the answering Defondant. Therefore, no response is
required.
WHEREFORE, Defendant, Shirley A. Michaels, respectfully
requests Your Honorable Court to dismiss the Plaintiffs' Complaint
with prejudice.
NEW MATTER
30. The Plaintiff's claims are for medical expenses and/or
wage loss and are barred, or should be reduced in accordance with
S 1722 of the Pennsylvania Motor Vehicle Financial Responsibility
Act.
31. The Plaintiff's claims for non-pecuniary damages may be
6
barred by the limited tort option of the Pennsylvania Motor Vehicle
Finanoial Rasponsibility Act.
32. The injuries and damages referred to in the Plaintiff's
Complaint were caused by an accident that occurred in September of
1994 and were not caused by the accident referred to in the
Plaintiff's Complaint.
WHEREFORE, Defendant, shirley A. Micha~ls, respectfully
requests your Honorable Court to dismiss the Plaintiff's Complaint
with prejudice.
NEW HATTER PURSUANT TO fA R.C.P 22521dl
shirlev A. Michaels v. Clifford Ressler. Jr.
33. Paragraphs 1 through 32 of Defendant Michaels' I\nswer
With New Matter are incorporated herein by reference.
34. The allegations contained in paragraph 23 of the
Plaintiffs' Complaint are incorporated herein by reference without
admission or adoption.
35. In the event that it is determined that Defendant,
Shirley A. Michaels is liable for the injuries of the Plaintiff,
then in that event, Defendant, Shirley A. Michaels, demands
contribution and/or indemnity from the Defendant, Clifford Ressler,
Jr.
7
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JUL 0 6 1998 t/J
THERESA ROSE CAVE and
DAVID L. CAVE, JR"
Plaintiffs,
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNA.
:CIVIL ACTION -- LAW
v.
: NO, 97.4575 CIVIL TERM
SHIRLEY A. MICHAELS,
CLIFFORD RESSLER, JR. and
CAROL RESSLER,
Defendants.
.
.
: JURY TRIAL DEMANDED
ORDER
. q./h U-.v. .
AND NOW comes thIS _ day of ~ 1998, upon consIderation of
the Stipulation of Counsel to resolve PreliminBl)' Objections. it is hereby ordered and
decreed ,that the Stipulation of Counsel is hereby approved.
BYTH~~~:~-:J
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Filo No.
97-4575 Civil
TH~:RESI\ ROSE CAVE' and
DAVID L. CAVE,
v.
SHIRLEY 1\. MICHAELS,
CAROL and CLIFFORD RESSLER, JR.,
Defendants
SUBPOENA TO PRa:xx::E [)Q(U>tWTS OR TH I NG!i
FOR 0' SCX)YERY PURSUANT TO R!.ll.E 4009. U
TOI Personnel Pennsylvania Blua Shield, 1800 Centar Straet,
Camp Hill, PI\ l7011 (Nlmt of Person or Entity)
Within twenty (20) days after service of this subpoena, you aro ordered by tho court to
produca tho following doa.rnents or thingsl Your cO[!!Elata parsonnel file relatin~
relating to Theresa Rose Cave including but not limited to any Worke~ Comp
--rtl~ll~l' ':r:r-l1!cra~~mm-'1ll'\Y Otner aoc(liiiei'ics 1n your pOBSeSSlon
~t nq to Theresa Rose Cava.
at )iix, h'enqer & NeidneL..._470S Duke St;.reet, _Harrisburg, PI\ 17109 _____
(Addres;)
YO\J 1MI' deliver or nuil legible copies of the doGunents or produce things request.ec1 h)
this subpoena, together with the certificate of compliance, to the party making thif
request at the address listed abcve. You have the right to seek in advance the reasonabl~
cost of preparing tha copies or producing the things sought.
If you fail to produce the docunents or th;ngs required by this subpoena within twenty
(20) days after its serv:ce, the party 5t>rving this subpoena nul' saek a court .')/"der
arrpelling you to corply with it.
nlls SUBPOENA WAS ISSUED AT THE REQJEST OF THF. Fct.LONING PERSON,
NAl"EI Girard E. Rickards, Esquire
AOORE~~fx47ij5n85Re&s~f~gQer
Harri~~. FA 1Z1~____
TELEPIi:II/Er_1717\ 6~2-R455
SUPREM; OOJRT 'D It ~ A A 6 7
ATTORNEY FORI Defendant Michaels
DATE:
July 21, 1998
Sea I of the Court
BY THE a::;IJRTr
C/utiA {J e.~_" _,
Prothonotary/CUlirll, Civil Dlv Is ion
_ n Lt.... (). 7ttd!f~
~ Deputy
(Eft. 1/97)
o:>>ON';I'l:-;ATJI~L~~.I'~J'lNSY}~M.).J.~
roJ~l'"i Oli' CUMJIDlI/INQ
___I
'rIlERESA ROSE CAVE 'and-
DAVID L.CI\VE,
FilQ No.
97-4575 civil
plaintiffs
v.
SHIRLEY 1\. MICHAELS,
CAROL and CLIFFORD RESSLER, JR.,
Defendants
SUBPOENA TO PROCOO! OOCl...t"Eyrs OR TH I NGS
FOR 0' SCX)yERY PURSUANT TO RULE 4009.22
TOt Good Hope Family Physicians, 1830 Good-Hgpe Road. En01a. PA 17025
(NlrTlO of Person or Ent it 1')
Within twenty (20) days after service of this subpoena, you aro ordered by the court to
produce the following doo..ments or things I All medi"a1 rec!,rds, notes"
~Eespondonc~ and o~~or docum~nts relating to Theresa Rose Cave.
at ~ix, Wenqer & Neidne!J...~70S Duke St;.reet, Harrisburg, PA 17109
(Addres; )
You may deliver or null legible copies of the docunents or produce things request.ecl h)
this subpoena, together with the certificate of compliance. to the party making this
reque~t at the address listed above. You have the right to seek in edvance the reasonabl.
cost of preparing the copies or producins the things sought.
If you fail to produce the docunents or th;ngs required by this subpoena within twenty
(20) days after its serv:ce, the party st>rving ~his subpoena may seek a court ~der
compelling you to comply with it.
7HIS SUBPOENA WAS ISSUED AT 7HE REOJEST OF iliE FOLLONING PERSONl
~I Girard E. Rickards, Esq~iro
AODRE~~fx47~5n85Re&S~f~2Qer
~larri~QurSJ~~~2____
TELEPfiONE: I 7 1 7 I 65 2 - R 4 5 5
SUPRB'E COJRT ID II ~AA~7
ATTORNEY FOR: Defendant Michaels
DATE:
July 21, 1998
Seal of the COurt
BY THE ~j,
G..-uu R. /~A, 1->...' ...
prothonot~y/c1ei-I(, civil Division
_(I. _ C;, /11./~,:'"
~ Deputy
(Eft. 1/97)
a belief as to the truth of the averments of the corresponding
paragraph of Plaintiffs' Complaint, therefore, said averments are
denied.
3. Admitted.
4. Denied. I\fter reasonable investigation, Answering
Defendant is without knowledge or information sufficient to form
a belief as to the truth of the avermencs of the corresponding
paragraph of Plaintiffs' Complaint, therefore, said averments are
denied.
5. Admitted.
6. Admitted in part and denied in pare. It is admitted
that on or about August 26, 1995, while traveling westbound, Mr.
Ressler approached the intersection of Valley Street and First
Street in Summerdale, Pennsylvania. It is specifically denied
that Answering Defendant approached the intersection in a
reckless and/or careless manner. To the contrary, the averments
of Paragraph 6 are conclusions of law, which are deemed to be
denied by operation of law and accordingly, no response is
required. To the extent that a response is deemed required, the
corresponding averments of Paragraph 6 are specifically denied
and strict proof thereof is demanded at the time of trial.
7. Admitted in part and denied in part. It is admitted
that Defendant Michaels' vehicle collided with that driven by Mr.
Ressler. As to the remainder of the alle9ations contained in the
corresponding paragraph of Plaintiffs' Complaint, Answering
Defendant is without knowledge or information sufficient to form
- 2 -
a belief as to the truth of the averments of the corresponding
paragraph of ~laintiffs' Complaint, therefore, said averments are
denied.
8. Denied. It is specifically denied that Mr. Ressler
operated his vehicle in a negligent, careless and/or reckless
manner. To the contrary, at all times relevant hereto, Mr.
Ressler operated his vehicle in a manner expected of a
reasonable, prudent driver. By way of further answer, the
corresponding averments of Paragraph 8 constitute a conclusion of
law, which is deemed to be denied by operation of law and
accordingly, no response is required.
9-15. Denied. The corresponding averments of Plaintiffs'
Complaint set forth a conclusion of law, which is deemed to be
denied by operation of law and accordingly, no response is
required. By way of further answer, Answering Defendant is
without knowledge or information sufficient to form a belief as
to the truth of the averments of the corresponding paragraph of
Plaintiffs' Complaint, therefore, said averments are denied.
COUNT I
PLAINTIPP. THERESA CAVE v. DEPENDANT MICHAELS
16. The foregoing par:agraphs are incorporated herein by
reference as those set forth fully at length.
17-20. The corresponding paragraphs of Plaintiffs'
Complaint are not directed toward Answering Defendant, and
accordingly, no response is required.
WHEREFORE, Defendant, Clifford Ressler, Jr., demands
judgment in his favor and against Plaintiffs.
- 3 -
COUNT I I
21A11fnJ'F~_ THIUSA CAVI V I DIFIHDAHT CLurOIlD..RlSS%II1l
21. 'I'he flJt'81)olll!/ piH.dlJl'llphH dIll 111l~I)JV(ll'ut<ld lwrein by
reference as thofHl /lot (onh fully 011- 11I1I1)lh.
22. Denied. 'I'h<l cot'l'Otlp11llllill', .!lVunlllJllta of Plaintiffs'
Complaint constitute rJo,wlUH!OIlH of ldw, which are deemed to be
denied by operation or. li\W Hill! IIcconl1llg1y, no response is
requ ired.
23. Denied. 'I'he corrGapollll1nq averments of Plaintiffs'
ComplaInt constitute cOllllluaiolls of law, which are deemed to be
denied by operat Ion of lllw and accorcHngly, no response is
required. It ill further sp'3cif.ically denied that Mr. Ressler was
neg1igGnt with the followingr
(a) operating his autonmbl1e at a high and excessive rate
of speed under. the circumstancesr
(b) failing t.o maintain his automobile under proper and
adequate control at tho timor
(c) failing to take evaaive action to avoid the collision,
(d) failing to keep a proper lookout for the automobile
being operated by l'l,llntift DavId Cave which was
legally stopped in observance of the stop sign,
(e) failing to keep a proper lookout for the automobile
being operated by Defendant Michaels which was
proceeding to turn left from Valley Street onto First
Street r
(f) operating his automobile in violation of 75 Pa. C.S.A.
83321 entitled Vehicle Approaching or Entering
. 4 -
:rntarsection, pertaining to the operation of motor
vehicles on the publiG highway, which constitutes
negligence as a matter of law;
(g) operating his automobile in violation of 75 Pa. C.S.A.
53361 entitled Driving Vehicle at Safe Speed,
pertaining to the operation of motor vehicles on the
public highway, which constitutes negligence as a
matter of law;
(h) operating his automobile in violation in 75 Pa. C.S.A.
53362 entitled Maximum Speed Limits, pertaining to the
operation of motor vehicles on the public highway,
which constitutes negligence as a matter of law;
(i) operating his automobile in violation of 75 Pa. C.S.A.
53714 entitled Careless Driving, pertaining to the
operation of motor vehicles on the public highway,
which constitutes negligence as a matter of law;
(j) operating his automobile without due regard for the
rights, safety, well being, and position of Plaintiffs
under the aforesaid circumstances;
(k) stricken by way of stipulation of counsel; and
(1) failing to stop within assured clear distance.
24. The corresponding averments of Plaintiffs' Complaint
constitute conclusions of law, which are deemed to be denied by
operation of law, and accordingly, no response is required. To
the extent that a response is deemed required, each and every
"
- 5 -
averment of para!Jt'tlph 2<1 ill lIplJl:lf ical.1y denied and strict proof
thereof is demandell at thl! t illll! of trial.
25. The corrospoll,lin!j IIV'irm,mts of Plaintiffs' Complaint
constitute conduaiQnll of 1"w, which are deemed to be denied by
operation of. la\ll, tind accordingly, no response is required. To
the extent that il l'IHlpnllfJc 11'1 d'Jemed required, each and every
averment of Pal'a~It'tIf.)h ;!~j ill lIpeci f ically denied and strict proof
thereof is d',manded lit tho time of trial.
WHEI~El'OIH':, lllltondant, CUfford Ressler, Jr" demands
judgment in his favor and against Plaintiffs.
COUNT I II
PLAIHnU._,DAY.1JL CAYB v. DIIPIENDANT MICIlAIlLS
26, The fox'egoing paragraphs are incorporated herein by
reference as those sat forth fully at length.
27. 'rhe allegations contained in this paragraph are not
directed toward Answering Defendant, and accordingly, no response
is required.
WHEREFORE, Defendant, Clifford Ressler, Jr., demands
judgment in his favor and against Plaintiffs.
COUN'l' IV
PLAIHTIPP~YID CAVE v. DEPIENDANT CLIPPORD RESSLBR
28. The foregoing paragraphs are incorporated herein by
reference as those set forth fully at length.
29. The corresponding averments of Plaintiffs' Complaint
constitute a conclusion of law, which is deemed to be denied by
6 -
operation of law, and accordingly, no response is required. To
the extent a response is deemed necessary, the corresponding
averments are specifically denied and strict proof thereof is
demanded at the time of trial.
WHEREFORE, Defendant, Clifford Ressler, Jr., demands
judgment in his favor and against Plaintiffs.
NEW MATTBR
30. The foregoing paragraphs are incorporated herein by
reference as if set forth fully at length.
31. Plaintiffs' Complaint fails to state any claim upon
which relief can be granted as against Answering Defendant.
32. To the extent currently applicable, or to the extent
that it can later become applicable, Answering Defendant pleads
the statute of limitations to preserve thi.s affirmative defense
for the record.
33. To the extent that discovery or the evidence at trial
may establish that Plaintiff.s were negligent and that such
negligence caused or contributed to cause the injuries and
damages of which Plaintiffs' complain, Answering Defendant
expressly reserves the right to assert the affirmative defense of
contributory/comparative negligence and/or assumption of risk.
34. To the extent that Plaintiffs sustained any injury or
damage as alleged in Plaintiffs' Complaint, which is specifically
denied, Answering Defendant avers that any such injury or damage
- 7 .
was the result of the acts or omissions of third parties for
which I\nswering Defendant is in no way liable.
35. The injuries and damages as alleged in Plaintiffs'
Complaint were caused by an accident other than the one at issue
and accordingly, I\nswering Defendant is not responsible for any
such injuries.
36. Plaintif fs' <:laims for medical expenses and/or wage
loss are barred, or should be reduced in accordance with the
Pennsylvania Motor Vehicle Financial Responsibility Act.
37. Plaintiffs I claims for non-pecuniary damages may be
barred by the limited tort option of the Pennsylvania Motor
Vehicle Financial Responsibility Act.
WHEREFORE, Defendant, Clifford Ressler, Jr., demands
judgment in his favor and against Plaintiffs.
NEW MATTBR PURSUANT TO PA. R.C.P. NO. 22521dl
Clifford Res$ler, Jr. v. Shirley A. Michaels
38. The foregoing paragraphs are incorporated herein by
reference as those set forth fully at length.
39. The allegations contained in Paragraph 18 of
Plaintiffs' Complaint are incorporated herein by reference as
though set forth fully at length.
40. In the event that it is determined that Defendant,
Clifford Ressler is liable for the injuries allegedly sustained
by Plaintiffs, then, in that event, Defendant, Clifford. Ressler
demands contribution from Defendant, Shirley Michaels.
- 8 -
CERTIFICATE
P~EM!QUISITl! TO SE~VICE 01' ^ SUBPOENA
PU~6UANT TO RU~E 4009.22
IN THE MATTE~ 0'1
THERESA ~. CAVE AND DAVID ~. CAVE,J~
.VS.
SHIRLEY A, MICHAELS. CLIFFORD ~ESSLE~,J~
COURT 0' COMMON PLEAS
TERM, 0000
CASE NOl 97.4575 CIVIL TERM
As a prerequisite to servic~ of a subpoena for documents and things pursuant
to Rule 4009,22
MCS on behalf of LAURALEE S, BAKER, ESQUIRE
defendant cartlfies that
(1) A notice of intant to serve the subpoena with a copy of the subpoena
attached thereto was mailed or delivered to each party at least
twenty days prior to the date on which the subpoena is sought to be
Be rved.
(2) A copy of the notice of intent, including the proposed subpoena, is
attached to the certificate.
(3) No objection to the subpoena has been received, and
(4) The subpoena which will be served is identical to the subpoena which
is attached to the notice of intent to serve the subpoena.
DATE I 9/14/98
LAURALEE S. BAKER. ESQUIRE
Attorney for DEFENDANT
,
DEll-059429 67832 -La 6
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3. At the Umeot the agClident reterred to in your.
,
complaint, .tate whether you or vour 'pous. Were the titled owner
ot any motor vehicle.
ANSWER I
4. It you answered "yes" to Interroc;Jatory No.3, tot each
vehicle state I
a)
b)
c)
d)
each vehicle,
e)
The titled owner ot the vehicle,
The year, make and model ot the vehicle,
The V.I.N. number ot each vehicle;
The motor vehicle insurance policy applicable to
Whether any of the vehicles were n2t insured at the,
time of the accident referred to in your Complaint.
ANSWER I
- 2 -
SHIRLEY A. MICHAELS,
CLIFFORD RESSLER, JR. and
C,\ROL RESSLER,
Defendants
I I~ THE COURT OF CDMMO~ PLEAS OF
I CUMBERLAND COUNTY, PE~NSYLVANIA
I
I NO. 97.4575 CIVIL TERM
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I CIVIL ACTIO~ - LAW
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I JURY TRIAL DEMANDED
THERESI\ ROSe cAve and
DAVID L. CAVE, JR.,
Plaintiffs
v.
FIRST REOUEST FOR PRODUCTION OF POCUH~
TOI Theresa Rose Cave and
DENNIS R. SHAFFER, ESQUIRE, I\ttorney for plaintiffs
I\ND NOW, this 25th day of February, 199B, pursuant to
pennsylvania Rules of civil procedure 4009, as amended, come(s) the
Defendant by his counsel, WIX, WENGER & WEIDNER, and request(s)
said parties to produce for inspection, examination and copying, at
the law office of counsel for the requesting party, not later than
thirty (30) days after service of this Request, the following
documents:
1. 1\11 statements, fligned statements, transcripts of recorded
statements, interviews or affidavits of any person or witness
relating to, referring to, or describing any of the events
surrounding the alleged accident in question as referred to in
Plaintiffs' complaint, inclUding those relating to the happening of
the accident or to Plaintiff's. injuries or losses.
2. 1\11 expert opinions, expert reports, expert summaries or
other writings of experts in your custody or control or in the
Exhibit "e"
cUstody or control of your attorney, insurer, or anyone else actinq
on your behalf, which relate to any aspect of the subj ect matter of
this liti9ation.
3. All reports, opinions, records, correspondence of all
physicians, osteopaths, chiropractors, or other practitioners of
the healing arts who have treated, examined or consulted with you
at any time.
4. All hospital records relating to you, both before and
after the date of the accident, up to the present time.
5. All bills, invoices or statements of charges from all
physicians, osteopaths, chiropr~ctors, hospitals, medical
associates, or other medical practitioners, relating to treatment,
examination or consultation of you, associated with injuries or
conditions allegedly sustained in the accident in question which is
the subject matter of this litigation.
6. 1\11 written records or writings of whatsoever kind in your
care, custody or control or in the care, custody or care of your
(Plaintiff's) employer, evidencing or dealing with lost wages, lost
income or reduced earning capacity allegedly sustained by you as a
result of the accident in question which is the subject matter of
this litigation.
7. All photographs, plans, drawings, sketches or diagrams in
your possession, custody or control, or in the possession, custody
or control of your attorney, your insurer, or anyone else acting on
your behalt, dealing with any aspect of this litigation, including
but not limited to the vehicles, instrumentalities, or accident
site, involved in the accident in question which iB the subject ot
this litigation, including injuries sustained by you. Such
documents shall include any documents made or prepared up through
the present time, with the exclusion of the me~tal impressions ot
you attorney or his conclushms, opinions, memoranda, notes or
summaries, legal research or legal theories, and those documents
prepared in Ilnticipation ot ], i tigation by your representative which
would disclose the representative's mental impressions, conclusions
or opinions respecting the value or merit ot a claim or defense.
8. All documents prepared by you, or by any insurer,
representative, agent or anyone else acting on your behalt, except
your attorney, during or as part of an investigation ot the
accident in question which is the subject matter of this
litigation, including injuries sustained by you. Such documents
shall include any documents made or prepared up through the present
time, with the exclusion ot the mental impressions ot your attorney
or his conclusions, opinions, memoranda, notes or summaries, legal
research or legal theories, and those documents p~epared in
anticipation ot litigation by your representative which would
disclose the representative's mental impressions, conclusions or
opinions respecting the value or merit of a claim or defense.
9. copies of your Federal Income Tax Returns for the five (5)
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aocident to No. 4382 S 1996 in the court ot Common Pleas, Dauphin
county.
6. The Detend~nt, shirley Miohaels, has alleged, and
continues to allege that Plaintiff did not sustain any set'ious
injury in the August 26, 1995 accident.
7. Defendant, shirley Michaels, has alleged, and continues
to allege, that any injuries Plaintiff sustained were c3used by a
separate accident in which Defendant was not involved. (New
Matter, Paragraph 32).
B. Defendant Michaels withheld fiUng this Motion until a
defense medical evaluation was performed by a Dr. steinman on the
plaintiff for the Dauphin county case involving the 1994 accident.
9. Dr. steinman, a physiatrist, produced a report in
conjunction with his medical evaluation. A copy of the report is
attached hereto and incorporated by reference as Exhibit "A."
10. Dr. steinman's report relates some of the Plaintiff's
injuries and subsequent surgery to the accident of August 26, 1995.
11. Pa. R.C.P. 4010 provides that when the physical condition
of a party is in controversy, the court may order that party to
submit to a physical examination.
12. The physical condition of Plaintiff, Theresa Rose cave,
is in controversy in this action as evidenced by the Pleadings,
Answers to Interrogatories, and Depositions.
2
13. The Plaintiff's physical condition is material to her
olaim and in order to evaluate her condition and injuries in regard
to this particular accident, a defense medioal examination is
needed.
14. 1\ defense medical examination is needed in order to
apportion what injuries, if any, resulted from this accident and
what injuries are purely the r~su1t of other accidents or causes.
15. Because the medical examination from the Dauphin County
case did not addre~s these issues (see Exhibit "A"), Defendant,
Shirley Michaels, aveL'S that a defense medical examination be
performed in this case by a physician of Defendant's Choosing.
16. The Plaintiff has refused to submit to a medical
examination by a physician of Defendant's Choosing as evidenced by
the letter from Plaintiffs' counsel attached hereto as Exhibit "B"
and incorporated herein by reference.
17. Defense counsel would normally select a physician from
the orthopedic Institute of pennsylvania, however, they are the
Plaintiff'S treating physicians.
18. Defense counsel has selected Perry A. Eagle, M.D. to do
the defense medical evaluation of the Plaintiff.
19. Where a party moves for a court-ordered physical or
mental examination under Pa. R.C.P. 4010, that party, as a general
rule, has the right to sa1ect the physician who will perform the
J
examination. Richwine v. smith, 40 D.&C.3d 95, 9'1 (Cumberland C.P.
1985) .
20. simply because Dr. Eagle was a defendant in a case in
which Plaintiffs' counsel was opposing counsel, should not be
grounds to exclude Dr. Eagle from this case. To do this would
allow law firms to systematically exclude the best doctors from
testifying in matters against them simply by rep~esenting a client
in a suit against those doctors.
" 21. Perry A. Eagle, M.D. is a physician licensed under the
laws of the Commonwealth of Pennsylvania and is a board-oertified
orthopedic surgeon with offices at 191 Leader Heights Road, York,
Pennsylvania.
22. Defendant believes, and therefore avers, that a defense
medical evaluation performed by a physician of Defendant's choosing
is necessary in order to defend Plaintiff's claims that she
sustained numerous severe and permanent injuries, including but not
limited to, income loss, loss of earning capacity, pain and
suffering, etc., and to assess the nature and any extent of
injuries sustained as a result of the accident referred to in
Plaintiffs' Complaint.
23. If Defendant is not permitted to have the Plaintiff
examined, the Defendant will be severely prejudiced in the defe~se
of these claims.
4
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NEU1\O~(]ENCE
ASSO( ATES
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Mny 19, 1999
I.M.E.
Thonll1s E. Brenner, Esq.
P.O. Dox 1268
HllITlsburg PA 17108-1268
RE: Theresa R. Cnvc
1MB
DATE SEEN: 5-19-99
ACCT: 99694
Dell1' Mr. Brenner:
Thank you for referring Mrs. Cnve for an Independent Medical EVl1luation.
I appreciate the record copies whIch you sent, along with deposition transcripts,
and reviewed them prior to the visit.
Mrs. Cave was here on time, neatly and appropriately dressed, a pleasant and
cooperative lady.
I explained to Mrs. Cave that I had previously re\;ewed the transcript of each
of her depositions, and a great deal of medical records going back to 1986.
I showed her the file.
I .....ent through the deposition transcripts in some detail, mentioning some of the
questions she .....as asked and what her answers were, and how the lav,')'ers were
trying to separate what symptoms she had from the 1994 accident, and which
might be due 10 the 1995 incident,
I then started going over the record copies as a result of the 9-16-94 motor
vehicle accident.
I went through the other records rapidly, in all overview, up through the
Incident which occurred in August of 1995. her visits to various physicians. and
the surgery on her neck which was done on 11-18-96, and the problems which
persisted Ilnd may have dewloped since then,
I. Rq . E. '
I
Exhibit "1\"
Thercsa It COI'C
5-19.99
2 Mrs. Cavc wus ncotly und opproprfolcly dresscd, a straluht forward, qulct, non-histrionIc and
cooperative lady. Shc sold Ihollnlllolly, In 1994, shc hod blluleral poslcrlor shouldcr Illrdlc pains,
4 und shc 51111 hurls \'Cry much more on Ihe lefl.
As for us shc Is conccrncd (and this WU5 supported by her ph)'slculthcroplst, I was told), she did
6 nol el'Cr hul'c 0 Iruly "erol.en shoul-fer".
Ph)'slcallhcrapy helped rcgaln 0 lilllc morc Icn shouldcr mo\'Cment, but It rcully ncvcr did hclp the
8 shoulder pain.
10 \\~lcn Dr. DeMulh oJJered 10 do l11anipulntlon under oneslheslo, she decltned.
Shc thcn sow another orlhopedlc ~urgcon, Dr, J. L1l1on, who InJecled the left shoulder twice, but
12 11;lhout on)' ocncfit1o her.
Each lime Ihe Injections were folllJwcd by her fcellng qulle sick, wilh Increased headaches,
14 nausea, impaircd equilibrium, and she cl'en hnd to lake time olfwork.
16 Chiropractor Leidy, had olrcody suggcsled a cmical MR scon long before the 1995 MV A.
Dr. Sangillo dlsagrced howel'er, and nel'cr ordered II.
18 (This lady said she had ocgun to see Dr, Leidy pcrhaps 2 mOlllhs before Ihe Augusl 1995 MY A.
This was tinally disconllnued occause his treatments were not making progress,)
20
In Seplemocr 1994, the predominanlly lefl poslerlor shoulder girdle pain, with some on the right
22 along the trapezius ridgc out to bUlnot quilc reaching the shoulder point, perslsled.
There was pain dOlln the left Mn, lypically 10 the elbow.
24 After Septemocr 1994, and prior to AUgllSt 1995, she bcgon to have lingling sensations in bilateral
fingertips.
26 She would "slack" her tinger:;, top them on 0 desk top for eXMlple, ond gel some relief.
Occasionally she lost some sleep occause Oflhis tingling, and il bolhered her in addition when
28 sittingquielly.
At work it did nol. The lingling was equal on each side.
30
She still has those ~ame orea Md t)pe of pains.
32
There is con~tnnt aching pain in the neck and the left ~houlder, never absent. If the pain is
34 aggravaled by activity, II may wake her at night.
Elevating the left ormlo rcach somelhing causes shooting pains down to the elbow. She
36 demonstrated that pain developed al about 70 degrees of flexion.
Raising the arm over head is accompanied by snaps and olhcr noises. She still has occasional
38 shooting pain and increases in the aching pain that spread into the neck and down between the
shoulder blades, and even more inlo the left scapulor (poslerior shoulder girdle) section.
40
2
Thercsa R, Cal'e
5-19-99
2 Once, whcn pUlling on a drcss omhclld, tihe started lIbruplly with numbness and tingling ovcr Ihe
len shouldcr blade, and II has nCl'Cr gonc III1'IIY.
4
6
Onlhe rlllht, thcre ore no achinll or shoalIng ann puin,
Thercsa Cove sold thai aner the ccrl'lcalsurgcry, thc llngling In her fingers was relieved. It
8 slurted to return a Iillle bit, laic In 1998. It hasn't ocen 0 "big dcal" so for, but she Is concemed as
to how bod It sllU could get.
10
12
Pain Inhibits left shoulder mobililY, but slle con apparcl1lly put it through nomlal range.
Neck mobility Is fairl)' good, bllt rolatlng 10 the left Is a problcm with e~1ra pain. There Is lI.
14 conslllnt aching pain In lhe neck. She gels cramps, spasms? in the back of her neck. Often the
hcad feels 100 heavy for the neck 10 support.
16 With neck movement she hcars some snapping noIses.
18 Occipital headaches fced ofrthe nC(k, in thallhe worse the neck pain, the worse the headache.
II becomes hord 10 conccnlrate and think. Occasionally she has/ost time becau:lC of headaches.
20 l3asically she tries to grin und ocar it. There urc no s)'stemlc fcaturcs such as nausea, sweating,
pre.fainllng, auditory or visual aocrrations.
22 SheJusl hurts in the bock of the head.
24 Shc does get about lhrec migraine headaches lI. )'car 1I;lh prodromes, lIJ1d the:lC lITe fronto-parleta~
and diffcrenl.
26
In neither arm or hnnd is thcrc ony unllSua! Icmpcraturc, c%r chonge or swelling.
28 Cough, snceze or laugh activily or ocaring down at stool do not per se cause pain.
Whcn she sneezcs however 0 suddcn ncck Jerking with lhe snee7..e may cause pain.
30
Her hnnds were weak ocfore nnd uOer the surgcry.
32 They seem to be back now to ordinary strength. Thc Icft hond had becn wcaker Ihnn the right.
34 Occasionally she has some problems with tine hond activitics.
Shc docs not drop objecls.
36
At onc point, on thc tirsl occl1.<;ion since the operation, shc worked 0 hand operoled lawJ1mower
38 inslead ofa riding mower. As a malleI' offact this was last week. She was only going to do a
small flat scction, and in 15 minutes there werc shooting pains, but not the sharp type, which
40 sprcad from thc 'eft hand up through the forearm into the ncck.
]
Thcma It Cuve
5 -) ').1)9
2 In hcr daily ucllvltics, for cXllmpl~ holdlnll a hulr dl)W, clluselnumllllcn In the lei! ICIII'"ll1r luell
ulld 1'II11111cross Ihe shuulder girdle.
4 Gelllllg obJec15 olrthe upper clolhinll roek 111 her clo~el,lf~he /leeLII 10 ~eel' either hlllld "I' Ibr II
l\hile,ls pllinful,
6 COll1binll her hair Is IIIr1ghl.
8 She Is qulle positive lllllt her neck/shoulder glrdlc urca 1',11/15 hlll'e /101 ocenlllodlllc,lut1111 by this
surgery.
10
FollowlnK Is a rel'lew of 'he record coplelwhlch I bludled,
12
First. WIIS Ihe Iran5crlnt of Ihls ""lv's deno~II"H1 which \\'111 hehl on Oclllhrr HIlt. 1998~
14 This I'ertlll/led to the 9/94 occldc/ll.
16 Pnge 9, prior 10 Ihllt MV A, she e/lJo)'cd bowlI/ll!, I'ollc)bnll, lIerllbicl IInd sIght sedlll!.
(TodIlY, she laid me thllt \he ulso uscdlo plllY soObull,)
18 She liked to tllke day trips, belonged to II heulth club, IInd ,1I,llIerubks.
20 She storIed to work for PA Blue Shield In 1975, btoppedlnl979,und uner 5 )'Cllrl Wll5 bllck 111
1985, nnd hos continued in thlll cop"clty since.
22 She wos In the finllnclaVaccoun15 receil'lIble Deportment since mid 1993.
She wos 0 "Financial Correspondent" (pllge 13).
24
Pllge 22+". there were quesllons about hcadllches.
26 She didn't hUl'e one on this day, they did nol COIl1C el'er)'dIlY, probubly 2 10 3 limes It week, They
were present before the IIccldenl, butll10re frequenl since.
28 Prior 10 the IIccldenl headaches were usually across the forehclld, but since, they ClIll1ell'OIl\ her
neck into the back of her head. She took Advillls needed.
30 Page 24, Ihere were some commenls about a 1987 minor Incident whcn bhe Will slruck from
behInd In 0 parking lot. She hlld some nches for 1\ couple of weeks.
32 Page 27, she did hal'e PT In August ond September of 1992, for her low bllek.
Pogc 30, there wns some low bock pllln liner pulling wceds, which IlIsled 4 to 6 weeks.
34 She wos treated with Rltlllin for ADD, IInd wn.~ stilltllking (he medlcullon,
36 Pagc 32." shc apparently hod 0 sprain of her lef\ wrist In early 199,1,
Pagc 40+, on the day of the occident, she went to see her nll11ily ph)'slcluns ocelluse of neck and
38 back pain nnd left 1l10re Ihlln right shoulder IIchinl~.
40 Page 46+, the second MV A occurrcd on 11-26.95. Shllwcnl to Ihll Doctor more Ibr her rlghl
neek and shoulder. Thll kft shoulder pull, Icltworbe liner Ihllt lIechlen..
.,
Thercsa R, CUl'e
5.19.99
2 Online 17 she ogrecd that hcr ncck IUld Ihe left side oChcr back were InJured again In 1995.
Page 48, she was refcrred to Dr. LUlness because of 1'0 In In her neck, shoulders, hcr bock and the
4 left ann. "II was all acro~s lhc top of m)' shoulders, !en unn, down the middle of my bock".
She said It wus on both sides oCher ncck.
6 Page 50, some mcdical provider(s) did tell hcr thatlhe C5.6 disc herniation (lfNP) wos due to Ihe
cor accldenl. All ofthcmlold hcr that.
8 Dr. Lutncss told her lhal, but she \\1I.'5n't sure ifhe rclated it to one or both oCher MV A's.
She tirst sow Dr. Leidy for ncck, kft shoulder and bock (when she mcntions back she meons
10 uppcr bock between the shoulder blades).
After the second accident she wenl for the right Pl\rt oChcr neck and shouldcr.
12 Page 51, when the Doctors talkcd aboUI the IINP, thcy wcre not relating It to 0 combination of
both accldcnts.
14 Page 51... since the cervical surgery in NOl'emocr 1996, she was still sore across lhe top oCher
shoulder and into the ncck, down her back into the left shoulder, und underneath the left shoulder
16 blade. \Vas it OCIl,:r lhan bcfore surgery? Yes. She could rcsume some activities required at work
since the SUTllf'/Y. IlolI'cl'er she was not ablc 10 do repctitil'e movcment of her head or lift over
18 20 pounds. ICher head is tlexed for a long til11e this bothcrs her ncck.
She could do her Job wilh dilliculty.
20
Page 53, at home cooking ruld lawldr)' was sharcd by various frunily memocrs.
22 She did laundry. She did not carry laundry baskcls to the taUJ1dry machinc, but did take things
frOl11lhe washer to lhe dl)'er, and hung some of lhe wash onlhe line after hcr husbond t)'PicaUy
24 took the basket out ruld helped hcr with thc hrulging.
Sometimes she and also others took thc wash olflhe line. She did drive the tractor lawn mower.
26 Therc were 2 acres. She hclp~d out "whencl'er".
She hadn't been gardening over the lasl 3 years, ruld no bowling or 1'01leybaU ond no significant
28 acrobics ol'er thc last 2 years.
She did doggy paddle in her 0111\ pool, a Httlc. She ond her husbond maintained the poo~ ond did
30 part of the required periodic clenning. She did not TUn thc I'acuwn cleaner at home, sometimes
did grocery shopping, and did travel outside of central PA, having just returned from Florida in on
32 automobile.
Page 58, in thc Spring of 1995, by automobile she did go 10 Florida for 12 days, There were some
34 day trips.
36 Thc sceond deposition took plnee on 3-29-99, and [ rel'lewed Ihat transcript.
38 Pagc 8+... shc was asked whal parts ofhcr body were injured in thc 8-95 accident. Her neck
morc on the right side, [IJ1d lhe right arm was sorc.
40 Thcn iltral'clcd more Into lhc middle of her bock betwecn thc shouldcr blades.
Shc had no morc Iroublc with lhe righl ann attributablc to Ihat MV A.
5
Therc~a It Cal'e
!i.19.~!l
2 ller whole r1ghl linn did IIche frol1llhe accidcnt, lrol\llhe ncck owr the hhulIlllcr, n/llllhnllllslcll
for 11I0nths.
4 Prior 10 Ihe neck surgcry, II WIISI1'1 so milch lhllllhc rlghlllrm \\'us surc, hllllhnllhc IIngcIllp5
wld her hands would go numb IIlmllbtto Ihe thumb, They both Iwnl nlllllb, hilI I he: duhl hlln<l
6 wenlnumb 10 lhe thul1Ib,
At the lime oflhe deposition bile ballllllill hcr ncck problcm 11'115 1111 II WilY lIe!U!I, nll<l eI'Cnlhollgh
8 Ihe rluhl side lias morc, Ihc left bide was bllllwry sorc.
The paIn II'OS spread dOll'nllllo lhe!eft shollldcr blndc. "II 11111 II 1111 Ie 1I'l/SC IIl1cr 1111: second
10 accident."
She esplalned that in the 1994 MV A she hUl1 hcr lell shuuhkr IInd her IIhule neck nnd It
12 gradually sellkd down into lhe kll shoulder und 11Im, un,lthc !ell si,lc or lwr ncck <lolI'nlnlo Ihe
middle of her back.
14
Page 15." the surgcry took lhe numbness UII'IIY frulIllxllh llilll,ls.
16 "I slill am in 0 lot of pain," This included (hc sldcs of her IIl'ck duw,1 hn slllllll,!ers II'hh Ihe!ell
usually being worse.
18 The headache II'cnt fromlhe shouldcrs UJlIO thc bllek uf hcr hellll, ulld It 11'115 1I!lIul/)'II'Urse on the
Jeft side.
20 Her neek pain was prcsent cI'Cryday.
Page 17+". OCllI'CCn 9-94 ond 8-95 she lI'as nul gelllnu bellcr. "Il,) )'llU hlll'e IIlnlllmessln cllhcr
22 of)'our hands since the surgcry'/" No.
Pagc 28". shc took Advil for hcr pain. Occasionally she neeole,liltwl) ur thrcc limes II duy.
24 Page 3 I, the Impact which occurred III 9.94, II'US 1110r\: severe IIHlnlhe illlPIlc(U!IIl.95,
She wenl grocery shopping, cOllld lift light things, bUI oller surBery she di,I,,'1 go lit all.
26 Little by little she has ocen doing more. She clln't carry l110re IIHln 111"1 hllllS 1I111111l1e.
It hurts 10 sil on thc traclor and mow thc grass, IIhcn she hilS hllllllk hllck. S'I she trlcs lu do
28 only straight sections. She can't vacuul1l or dolloors, shc didn't scrub IlIbs llr showers becausc
being on hcr hands and knees or using the hands to suppllrl her, <:llIl1i,:d II lilt ofpuln up Into thc
30 neck nnd the head nnd the mid back IIlld shoulder.
She was 110t allowed 10 lift O\W 25 pounds bUI dllUblS she coulLl e\'C1I do Ihlll,
32 She 1051 saw her surgeollllbout 18 months hclilre.
34 Page 33... shc could drivc for 110 more thllll 2 hours becnuse hcr lIeck 1111<1 shoulder top would
hurt.
36 Prolonged silling bothered her. She does hetter 1\i1h support when sllllng.
Whenlhcy went to Floridlllll Sellkl11hcr 199M, Mr. ('live <lrove l11os1 of the WilY.
38
Page 35." she e.ll1 do l110st of her Job bUI Cllllllot <10 Ihe IilHllg.
40 (When I look the hblOlY <llre':lly Irol11 her, she sul<ltlllll she couldn'tlill cartolls of records which
arll piled lip in Jllyers so thllllhe Inp WII.~ Illillle 1I1~1\'C eYlllcvel. Also lor ljUllllly control shc
Ii
Thcr~sa It CUle
5.19.99
2 1993...
4 9.20, consultallonlclIcr from rheun\:ltologistlt O. Sanford, who fcll that shc dId hnl'c perlphernl
neuropathy and curly merulgia pareslh~tka oflhe right thigh.
6 Shc complaincd of dcallncss from her lingcrs slncc the Wlntcr of 1991. Therc was some
numbness!sllOhcss ofnnlntermlllcllt nature.
S As for as I COIl teUit was during that)'cor lhutlhe ADD clime Inlo consldcrullon,
lOAn 8.19 leller from Dr. Sl.Ingillo lIlentioned the numbness In her hOllds during the post )'eor,
starting to woke her up n few times ulnlghl, lIith dccreoscd feeling in aU 1 0 tingers, right more
12 Ihanleft, apporently not In Ihc hOllds per sc. Fingers chOllged colors. Mrs. Cove wos referred to
Dr. Sonford, OIld also to neurologist C. S. YOJlofsky, who concluded thul she hod mcralgla
14 poresthetlca.
16 1994...
18 On 9-16, [ sow the first nole in the chart when she I'isited B fiuniJy physlclon aftcr thc motor
I'ehiclc occident eorHer thai day. She wos seen recurrently, with the principal complaints of neck
10 ond Icft shoulder and some ann S)11lplOmS, os shc discussed in her transcripts. Further fOllUly
practitioner (F. P.) notcs for eXOJl1ple on 12.23 stoic that there was no numbncss or weakness of
22 her orms.
24 1995...
26 In Jonuary she saw Dr. DeMuth, but as wc already know shc then requeslcd another opinJon from
Dr. Lillon, who diagnosed a bursitis oflhe left shoulder frollltraumll, ond inJccled her Ihat monlh.
28 1.30, she saw her Doctor for a three day headachc and diulness \lith ony type of head mOl'ement.
30 1-31, aCT SCOJl oflhe hcad was nonnlll.
32 2.8, with persislcnt dizzincss it was decided 10 refcr her to Dr. N. Woldorf, on ololaryngologist.
He wasn't surc ofthc exact diagnosis ond felt she would Impro':? ol'er Ihc next fcw weeks to few
34 monlhs.
When seen two wecks lalcr, he suggesled no specific therapy and that she should wait it out until
36 Junc, and 10 sec him ifnccessary. She was examincd once again by Dr. Yanofsky in late
February, who fell thai she had 0 probable benign positional vertigo.
38 With hcr troublcs continuing to the end of Morch, shc requested 10 sce nnother specialist, and was
senllo Dr. B. 1 r. Cohn, in mid April. lIe tricd 10 be reassuring and thought shc probably had a
40 viral infection In the inncr car.
II
Thcrcsa R. Cal'c
5.19.99
2 Dil.1.lness persisted ulllillale Aprilllnd lhere WaS nausca and hcadoche,
On 4.21.95, her ph)'sldanmcntloncd 0 possible sensill\'lty reaction to a slcrold InJection donc for
4 0 painfulshould~r.
6 After a second [nJectlonln the left shoulder by Dr. Lilton, once agnin shc hod 0 nosty hendache,
occwne dll.7.Y and sick to hcr stomach Wilh some numbncss on the left focc wld cor.
8 Mcwlwhile, Dr, Litton hod suggested a possible operation for thc left shouldcr.
10 An acoustic neuroma wos considercd. MRI studics oflhe brain ond internal audilor)' canals werc
done and they were normal.
12
On May 10th, Dr. Cohn \ITote that il wns suggcstlvc, that she had some fluid rclentlon from thc
14 steroid InJections, which could odl'ersely oll"cctl1uid accumulation in the inner cor and then causc
the dizziness.
16
8.30, her family physician examulcd her following thc second MV A four da)'s before. Her
18 di7.1.iness was exacerbated. She had nn acutc righl neck strain with pain radiating into the right
shoulder girdle and some s)mptoms [n the right fingers.
20
11.29, shoulder girdle pains, n, ck and Irapezlus section pains, left shoulder ond orm pains were
22 present.
24 12-6, MR scan of the left shoulder which showed some tendon dcgcneration and/or uillammation
of the supra spinalus. There was no rotator cufflear.
26
12.13, examination by Dr. M. Lutness, a physiatrisl, on referrnl from Dr. SWlgillo. He diagnosed
28 difficulty v.ith the left bicipital tendon wld did not feci she had a cervical radlculopalhy.
30 1996...
32 She continued with significant complaints, wld on 5.7 on MR scan wos done which showed B
moderately advanced disc hcrniation (HNP) at C5.6 with some impingemcnt on the spinal canal
34 and Ihe neural foranUna.
36 Meanwhile she was having some difficulties with increased pain when doing her office Job.
38 l3ecause of continuing difficulties Dr. Sangillo referred hcr 10 ncurosurgeon Rogcr Ostdahl, who
examined her on Septcmber 6th.
')
Theresa R. Cave
5-19.99
2 I Ie suggcsled thaI a ~urgkal appronch \l'lIll IIn option, 1Il1d she WlIll going 10 consider lhllt. Shll
11'115 then admitted to the lIoly Spirlll lospltlll on Novemocr 181h, \l'llh lhe 5urllkal procedure
4 done lhot some day.
This WlIll on onlerlor ccrvlcal dlsceclomy III C5.6 with 0 fusion using bone from her Icft lUllerlor
6 iliac crest.
8 Unfortunately she hod to be re-admllled 10 lhe hospital on 12-2 \l'lth severe chesl pain of on acule
nature, and a maJor consideration was a possible pulmonary embolus, \l'hlch \l'as ruled out.
10 t1f)'ocordlal tnforcllon was also ruled out whllc some sludge was found in thc gaU bladdcr.
12 1997...
14 The content of these rcports supports her statemcnts to mc IIlld at her depositions.
16 On Septcmber 5lh, Dr. Ostdahlmenlloned that shc had ocen doing rather \l'ell over aU, but sel'eral
weeks before, the act"ity in her Job changed, and shc hod Incrcased pains.
18 This rcferred to repetitive llexing and eXlendlng ofhcr neck 10 read some I'cry fUle print, and then
look at other secllons.
20
In Novcmber she was bock to see Dr. Lutncss.
22 On 12-3, hc \WOle lhal her left 01'111 and shoulder were not as painful since the operation, whilc
there was st ill neck sorcness.
24 She complained of some numbness In the lell scapular area.
He said that this lady",.. tirsl noticed lhc left shoulder pain a few months ago, whcn she wos
26 trying on a dress. jusllil1ed overhead with both arms fully extended; there \l'OS such sharp pain
thai she thoughl some sort of insect had bitten her. She still gets such pain on occasion". He
28 discussed her work problel11s. On examination he reported some distinct hypesthesia to pinprick
overlying and along the left scapula. He said thai impairment for 0 pain sensalion was due 10
30 somc periphcral nerve damage.
She also had sOl11e generalized lll)'ofo.\cial pain.
32
1998...
34
Most ofthc records avallablc to me, from March 27th up through AuguSI 12th, were phone calls,
36 with an ofiicc visit. They pertained to allergies, some skin infection, rectal bleeding and
prescripllons for Ritalin, os well as for some physicallherapy ill January.
38
1 also reviewcd records from chiropractor G. J. Leidy, whif.h slarted on August 28th, 1995.
40 (Today, Mrs. Cave was positive that his treatments hod started prior to llle August aulomobile
accidcnt.) I Ie hod diagnosed 0 cervical sprain/strain, cervical subluxation and a cervical brachial
10
rh~rc~lIlt rlll'lI
5-19-99
2 D. rh~rll Was ~omll pmlslcnl problem whh dll1.lnc~s, probably II bcnllln poshlonlllverllgo,
(Accordlna III Dr. Cohn, lhls may have becn relulcd lolhc stcrold InJections Into Ihe Icll
.. shouldcr,)
6 All of the Ilbol'lI wcrc due lolhc 9-16-9.lmlllor \'Chidc accldcnt.
8 Allcr n sccond I'chkular Incident on 8..30-95, she 11IId problems.
10 E. Thc dll-l.lness was worsc.
F. An acule rlllhl sided neck slrnlnwhh right arm and hand fealures, WaS prescnt.
12 G. An MR SCllIl In Deccmocr 1095, showed no Icft ~houlder rotator cuO-leor, but some tcndon
dCllcncrallon/inllal11malion wos prcscnt.
14
16
H. An MRI Oflhc neck on 5-7-96 Jemonslrated a hcrniolcd nucleus pulposls (HNP) at CS-6.
r. Shills slatus pOSI anlerlor ccrvlclll Jlsccclomy III C5-6 whh 0 fusion procedurc, done on
18 11-19-96.
20 Mrs. COI'C lold me that after Scptember 1994, und prior 10 Augusl 1995, she began 10 have
tingling inthc fingcrtlps of each hand (pagc 2, Iinc 24).
22
On the other hand, on 9-20-93, Dr. Sanford made 0 notc ond slaled that she had complainls of
24 dcadncss of her fingers sincllthe Wlnlcr of 1991.
Allhc Ilmc of thai visit therc wos some numbness and stiffuess ofan Inlennltlcnt nature. (Page 8,
26 paragroph I.)
28 On 8. J 9-93, Dr. Sangillo slaled that there was numbness in the hands over the lost )'ear, which
wos slarting to wake her al night 0 few limes. There was dccrcased feeling In 01110 fingers, right
30 more thon left. (page 8, pora8raph 2.)
32 Mrs. Cove said thaI since the surgery the tinger parcsthesias were relievcd, butthcy startcd to
rclurn late In 1998. (Page 3, paragraph 3.)
34 She is concerned about how bod this might occome In the fUlurc.
36 This lady said thai numbness and tingling ovcrlying the Icft seapllla eonllllenceJ whcn pUlling on a
drcss overhead, and itncvcr weill away. (Pagc 3, poragrnph I.)
38 I folding II hair dryer would bring onthc numbness atlhe letl scapula. (Page 4, paragraph I.)
On 12-3-97, Dr. Lutncss slated thai her left shoulder pain, hypcsthesio and numbncss, developed
40 II fcw months prior to lhot datc, when shc was Irylng on a drcss. (Page 10, line 24-30.)
14
Thcrc~A It Cu\'u
5-19.1)9
2 Thus It Is evldcnllhlltthc IWCSlhcslils III 1111 oChcr dl~lts liS wcllns lhe tln"lIll~ Ilnd numbness
owrl)'ln~ Ihu Jcll mlpulallrc nol COllllcdcd wl\h elthur vehicular Incldcnt.
4
Mrs. CaVil SlIld lit h~r 8.8-98 dCI"J~l\lon (p"lJe '\, line .\0), thlltllflcr thu sccond motor vehicle
6 Incidcnt, Ihe Ictlshoulder 1'"ln WllS wor~e tlHln ocliJrc, but she ~IIW thu Doctor morc for her r1Uht
ncck IInd ~houlder.
8 She agreed thutthe ncck IInd the 1.:11 sldc ofhcr back were InJurcd once more In 1995.
She wcnt to see Dr, l.ulncss occuuse of pain In Ihe neck, the shoulders (plum I), her bock and left
10 linn. The pain lI'as 1111 IIcross thc top of her shouldcrs, the left ann, and down the middle of her
bock (meanlnl! octll'cen her shoulder bllldes), and Oil both sides of her neck. (Page S,IIJ1cS 2 and
12 3.)
14 Aller the sccond motor vehiclc IIccldenl, tlwlnJurlcs wcre to her ncck, more on thc rll!ht, with
soreness of the r1ghl ann.
16 Then thc polntro\'ekd to the Inlerscllpular arCII. (PlIgc 5, bollom,)
The wholc rlghl IIrm did IIchc IIlong whh lhe ncck down ol'er the shoulder, butthutl05led for
18 mOlllhs, and shc 110 longer had troubk otlhe time of her deposiliollln October 1998. (Page 6,
Jines 2-5.)
20
This lady said funher lhat shc was slillin r"ln, This Included the sides of her ncck down 10 her
22 shoulders, whh lhe left usually worsc lhan the rlglll. Headaches spread from the shouldcrs to the
bock of her head and were usually worse on thc Icft (page 6, Jines 16-19). Shc said that the
24 impact in the accident of 1994 was more sel'erc than in 1995. (Page 6, line 24.)
26 [ hove been osked to try to dlfterentlate the cffeels of the Indilidual accidents.
28 Flrsl, [ would offer \hat Mrs. Cal'e docs not hove marked residuals from chher accidenl, although
she is obviously a person II'ho Is stalus post cervical surgery.
30 What [ mean to soy herc, is that she has no signtJicont clinical or obJccllve rcslduals, although she
has complaints.
32
Mrs. Cal'e sold the Initial accidenl WllS more sCl'ere than the second.
34
She docs state howcver thaI hcr left shouldcr pain wos worse after the 1995 accident, and thatlhe
36 neck and lell side ofhcr bock were InJured then.
She had trouble with bolh shoulders, and both sides of her ncck.
38 Ahhough she had inJuries 10 hcr ncck more 011 the right, there WIIS left sided neck pain.
........................,...,......................"...".,......"...'...."........'............".............
40 [om completing this report on 7- 7.99.
15