HomeMy WebLinkAbout97-04577
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~. The tollowing tactors are important in determining
whether a particular conduct was a substantial tactor in
bringing about the harm in question I (1) the number ot other
tactorB which combined to producing the harm and the extent at
the effect they have in producing itl (2) whether the conduct
has created a force or series of forces which are in
continuous and active operation up to the time of the injury,
or has created a situation harmless unless acted upon by other
forces for which the actor is not responsible, and (3) lapse
of time.
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16~ contributory negligence/ like the negligence of a
Defendant, must be a "but for" cause of the accident before it can
affeot a ~laintiff'B right to recovery. ~erman v. Horst, 255 ~a.
super. 232, 386 A.2d 594 (1978),
ACCEPTJIlD
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'2A.. The Motor Vehicle Code, in part, provides a.
follows,
(a) The operator of a motor vehicle
shall n()t follow another vehicle more
closely than is reasonable and prudent,
having due regard to the speed of such
vehicle, and the traffic upon the
condition of the highway.
When a following vehicles runs into a vehicle ahead of
it, it is reasonable to conclude that the former was following
too close. An explanation by the following operator is called
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for/The mere allegation that brakes "failed" will not
exonerate an operator. Pascle v. simmons, 406 Pa, 476, 178
A.2d 549 (1992). Nor will a claim that the roadway was icy or
wet.
Kralik v. crumwell, 435 Pa, 613, 258 A.2d 259 (196~
ACCEPTED ~
REJECTED
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IV. STIPULATIONS
Plaintiff
V. if,ITNESSES TO BE CA[JIJED
A. Karen Hartin
B. Gary Martin
C. Plaintiff's expert - treating physician
D. Plaintiff I s omployer
VI. EXHIBITS
A. Plaintiff's medical records.
B. Photo of Defendant's vehicle, if any.
VII. STATEMENT OF ANY OBJECTI~q OR EVIDENTIARY PROBLEMS
TO BE RESOLVED PRIOR TO TRIAL
Plaintiff is hopeful that Plaintiff and defense counsel can
agree to a stipulation on the wage losses and medical expenses that
Plaintiff has incurred to date. Plaintiff was working as a
visiting Nurse at the time of this accident and has received
Workers' compensation Benefits in excess of $50,000.00, said amount
which is due from plaintiff to the compensation carrier from any
settlement or verdict she may receive.
Plaintiff specifically reserves the right for any other
objections or evidentiary problems that may arise prior to trial.
VIII. SPECIAL REOUESTS
Counsel for Plaintiff filed a Motion requesting this case be
stricken from the trial term due to a recent re-injury of a back
and neck injury she suffered as a result of an automobile accident
on 8/23/99.
IX. SETTLEMENT OFFER
No settlement has been tendered by the Defendants to date.
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v.
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I NO. 97-4577 CIVIL
I
1 CIVIL ACTION - LAW
1
1 JURY TRIAL DEMANDED
1
KAREN S. MARTIN and
GARY A. MARTIN,
Plaintiffs
ANGELIA STEINER and
DONALD E. STEINER,
Defendants
DBPBND~Q! MEMORANDUM FOR PRB-TRIAL CONFERBNCE
I. BRIEF SUMMARY OF CASE
This is an alJtomobile accident which occurred at approximatBly
4100 o'clock p.m. on Trindle Road on September 1, 1995. Defendant
was following the Plaintiff's vehicle when the Plaintiff made a
sudden stop and Defendant was unable to stop before making contact
with the rear of Plaintiff's vehicle, causing minor damages to the
bumper. Following the accident, Plaintiff advised the Defendant
she was not injured and the police were not called to the scene and
there weren't ar.y ambulances. After exchanging information, the
parties left the scene of the accident. Plaintiff now claims to
have sustained injuries to her neck and back.
II. STATEMENT OF ISSUES
A. Negligence of Defendant.
B. Negligence of Plaintiff
C. Whether negligence of Defendant (if any) was the legal
cause of Plaintiff's claimed injuries.
D. contributory negligence of Plaintiff.
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A"mIlNF'YS & C,'lllINSRORS AT LAW
H4;4i Sir 'J1llJma~ ('IlIJr1, SUil": I J ^
lIilrri.\hurg. PA 1711I9
(717) l40..\II~)
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KARIN 8. HARTIN an4 I IN THI COURT or COKMON PLIA8
GMY A. HARTIN, I CUKBIRLMfP (lOUNTY, Pltflf8YLVMlIA
Plaintiffl I
I NO. n - 4577 CIVIL
v. I
I
MlGILIA 8TIINIR and I CIVIL ACTION - LAW
DONALP I. STIXNIR, I
Defendants I
NO T I C B
YOU HAVB BIEN SUED IN COURT. If you wish to defend
aqainst the olaim. ..t fortll in the followinq paqs., you mU8t take
aotion within twenty (20) day. after this complaint and Notioe are
8erved, by enterinq a written appearanoe porsonally or by attorney
and filinq in writinq with the Court your defense. or objeotion. to
the olaims .et forth aqain.t you. You are warned that if you fail
to do 80 the oa.e may prooeed without you and a notioe for any
money olaimed in the Complaint or for any other claim or relief
reque.ted by the Plaintiff. You may lo.e money or property or
other riqht. iMportant to you.
YOU SHOULD TAKB THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THB OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LOCAL
HILP.
LAWYER REFERRAL SERVICE
COURT ADMINISTRATOR
4TH FLOOR, CUMBERLAND COUNTY COURTHOUSE
CARLISLE, PA 17013
I'
County, Pennsylvania.
5. The inoidentQ herein after related took plaoe on or about
September 1/ 1995, and thereafter.
6. On or about September 1, 1995 at apprOXimately 2129 pm/
Plaintiff Raren S. Martin waQ operating a 1990 Ford Probe vehiole
in a Westerly dir~ction on Trindle Road/ Cumberland County, in the
5000 block of Trindle Road near Best Friends Dayoare.
7. On or about September 1, 1995 at approximately 2129 pm,
Defendant, Angelia Steiner was operating It Ford Esoort in a
westerly direction on Trindle Road in or about the same area as the
Plaintiff, Raren S. Martin was travelling.
8. At the aforesaid time and placet the Plaintiff, Raren S.
Martin was acting in the scope of her employment as a Visiting
nurse for Health Reach Home Care and Hospice and was travelling
between Visiting nurse assignments.
9. At all times related herein, and at the aforesaid time
and place, Plaintiff Karen S. Martin was lawfully operating her
automObile, and was in control of her automobile in the westbound
lane of Trindle Road, and used due care and caution in the
operation and driving of said vehicle.
10. At said plaoe and time as the Plaintiff, Karen S. Martin
was travelling west on Trindle Road, the Defendant Angelia steiner
was also travelling in a western direotion on Trindle Road,
immediately behind the vehicle of Plaintiff Karen s. Martin, and
sUddenly withou~ warning orashed violently in to the rear of the
vehiole operated by Plaintiff Karen s. Martin.
11. At suid plaoe and timet The Defendant Angelia Steiner
carelessly and without warning drove her vehicle in to the rear of
the Plaintiff Raren S. Martin's vehicle.
12. Immediately prior to the time of impact, Plaintiff, Raren
S. Martin brought her vehicle to a completed Qtop with the traffio
in front of her, and thereafter the Defendant Angelia steiner
suddenly craQhed in to the rear of her vehicle causing a violent
cOllision between the Plaintiff's vehicle and Defendant's vehicle.
13. The violent COllision that occurred at said place and
time was due solely to the negligence, carelessness, recklessness,
and willful and wanton misconduct of the Defendant, Angelia
steiner.
14. As a direct and proximate result of said collision,
Plaintiff, Raren S. Martin was violently jostled and thrown about,
inside her vehicle, whereby Qhe sUQtained serious physical
injurieQ, some permanent in nature, including but not limited tOI
a. alar ligament straini
b. disc protuQion at C-4 and C-5i
c. thoraQic Qtrain with left arm pain and weakness;
d. acute cervioal strain and sprain;
e. musole QpaQms;
f. oarpal tunnel;
q. frequent reourring headaohes;
h. pain and SUffering;
i. kyphosiQ at C3-4 level;
k. intermittent parestheshas of her left . upper
extremity;
I. intermittent left arm numbneQQ;
m. anterior chest pain with movement of neok;
n. ohronic musculQligamentous Qtrain of cervical
spine;
o. multi-level cervical Qensory radiculopathy on left;
p. reactive myofascial pain syndrome occassionally
inclUding lower back;
q. damage to interspinos ligaments at lower cervical,
upper thorasic levels;
r. irritation of greater occipital nerve;
s. mild trochantic bursitis;
t. humiliation and embarrassment;
u. loss of life's pleasures;
v. various other ills and injuries;
and claim is made therefore.
15. As a result of th~ aforesaid injuries / Plaintiff,' Raron
S. Martin has undergone and in the future will undergo, great
mental and physical pain and suffer ing, and has been, is currently,
and in the future will be hindered in pursuit of her daily
activities, and claim is made therefore.
16. As a direct result of the injuries suffered in the
accident, Plaintiff Karen s. Martin suffered numerous injuries
immediately following the acci~ent, seriously impacting upon her
ability to conduct her daily activities and enjoy life's pleasures/
and claim is made therefore.
17. As a direct result of the injuries suffered in the
accident, PLaintiff Karen S. Martin was unable to continue to work
as a visiting nurse for extended periods of time post accident and
suffered substantial loss of earnings, and claim is made therefore.
18. As a direct result of the injuries suffered in the
accident, Plaintiff Karen S. Martin is currently unable to work
eight (8) hours a day as a visiting nurse and she continues to
suffer loss of earnings of approxiately ten (10) hours a week and
claim is made therefore.
19. As a direct result of the injuries suffered in the
accident / Plaintiff Karen S. Martin may not be able to perform
certain jobs in the future, resulting in loss of future earnings
and a claim is made therefore.
20. The collision and all of the injuries and damages herein
related are the direct and/or prox.imate result of the careless,
wanton and reckless manner in which the Defendant, Angelia steiner
operated her vehiole as folloWSl
a. failing to properly observe traffic flow in front of
her;
b. tailing to keep and maintain proper and adequate
, oontrol over her vehicle;
c. failing to properly observe traffio, and acting
without due regard for the position of the plaintiff, Karen S.
Martin's vehicle;
d. tailing to properly bring her vehicle to a stop
without striking the vehicle in front of her;
f. failing to apply her brakes in suffioient time to
avoid the collision with plaintiff's vehicle;
g. failing to maintain a safe distance betweel' her
vehicle and the vehicle in front of her;
h. in failing to keep alert and maintain a proper
lookout for traffic stopping in front of her vehicle;
1. in drivinCJ at a speed excessive under the
circumstances;
j. in failing to have her vehicle under such control as
to be able to stop within the assured clear distance ahead;
k. in failing to change the direction of ther vehicle
in order to avoid striking the Plaintiff's vehicle;
1. in otherwise operating her vehicle in a manner
endangering persons and property and with careless disregard for
the rights or safety of others in violation of the Motor Vehicle
Code of the Commonwealth of Pennsylvania, which conduct constitutes
negligence, gross negligence and/or wilful and wanton misconduct.
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AOUKT I
KARIM I. MARTIH v. AHGILI. ITIIKIR
21. Paragraphs 1 through 20 are incorporated by reference as
it. Bet forth in full here below.
22. The accident on september 1, 1995 was the direct and
proximate result of the carelessnese/ recklessness and negligence
of the Defendant Angelia steiner in the manner in which she failed
to exercise due care and control of the automobile she was
operating as set forth fully in paragraph 20 here above.
23. The negligence of the Defendant Angelia steiner,
individually, was the direct and proximate result of the injuries
suffered by the plaintiff, Karen S. Martin.
24. The accident of September 1, 1995 and the resulting
injuries suffered by Plaintiff Karen S. Martin would not have
occurred but for the negiigence of Defendant Angelia steiner. The
negligence of Defendant Angelia steiner was a substantial factor
in causing the injuries to the Plaintiff.
WHEREFORE, Plaintiff demands judgment against the Defendant
Angelia steiner, individually in an amount in excess of Twenty
Thousand Dollars ($20,000.00) axclusive of interest and costs and
in excess of any jurisdictional amount requiring compulsory
arbitration.
of tho Defendant Donald steiner by hia negligont entrustment of the
use of his vehiole lJy Defendant Angelia steiner when he know or
should have known the oareless/ reokless, and negligent manner in
which Angela steiner operates automobiles.
31. The neg ligence of the Defendant Dona Id E. steiner and
Defendant Angelia steiner was the direct and proximate result of
the injuries suffered by the Plaintiff.
32. The accident of September 1, 1995 and the injuries
plaintiff Karen s. Martin suffered as a result thereof, would not
have occurred but for the negligence of Defendantll Donald E.
steiner and Angelia steiner.
33. The negligence of Defendant Donald E. steiner was a
substantial factor in causing the injuries to the Plaintiff, Raren
S. Martin.
WHEREFORE, Plaintiff Karen S. Martin demands judgment against
the Defendant Donald E. steiner in an amount in excess of Twenty
Thousand Dollars ($20,000.00) exclusive of interest and costs and
in excess of. any jurisdictional amount requiring compulsory
arbi tration.
COUNT III
GARY A. HARTIN V. ANGBLIA STEINER AND DONALD B. STBINIR
34. Paragraphs 1 through 33 are incorporated by reference as
if set forth in full herebelow.
34. plaintiff, Gary A. Martin, is the husband of Plaintiff,
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AITllRNI'YS A lllUNSI"JlRS AT tAW
H4S Sir Thom., CUUII. Suile II A
B.ni,hurK. PA 1711~)
(717.~4l).~ IIMI
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tailQ~ tu maintain proper and adequate oontrol of her vehicle and
craehed violently in to the rear of the Plaintiff's vehicle;
c. Denied. It is specifically denied that Plaintiff
failed to warn or signal when she brought her vehiole to B stop.
It.: is further denied that Plaintiff brought her vehicle to a sudden
and une~pected stop in the middle of the roadway. It is further
denied that Plaintiff at any time before or during the collision
created or otherwise caused a hazardous situation for other
motorists lawfully on the roadway. To the contrary, PI~intiff wae
exerciQing due care and caution and brought her vehicle to a stop
in accordance with the traffic flow and traffio pattern in front of
her vehiCle,
d. Denied. It is specifically denied that Plaintiff
suddenly and unexpectedly and for no legitimate reaeon brought her
vehicle to a sudden stop in the middle of the roadway. To the
contrary, Plaintiff was operating her vehicle in a eafe manner and
brought her vehicle to a stop after the traffic in front of her
stopped for a school bus that was discharging children,
e. Denied. It is specifically denied that Plaintiff
failed to keep alert or failed to meintain a proper lookout for
other traffic on the roadway. To the contrary, at all times
related herein Plaintiff was keeping B proper lookout and reeponded
according by stopping ae the traffic in front of her stopped, as
2
required by law, for a .ohool bu. that had 'top~.d to diBcharge
c:hildrenl
f. Oenied. It io specifioally denied that Plaintiff
was otherwise operating h~r vohicla in a manner endangering peraons
and property or with careleso dieregard for the rights or safety of
othera in violation of tho Motor Vehicle Code of the Commonwealth
of Pennllylvanla, or otherwioe acted in such a mannllr as to
constitute negligence, grOGS negligence, and/or wilful and wanton
misconduct.
37. Denied. It io specifically denied that Pla1ntiff'o
claims are barred, and/or ahould be reduced in accordance with the
Pennsyl vania Motor Vehicle Financial ReQPonsibility Act. Said
averment is a conclusion of law to which no response is requirad.
38. Denied. It is specifically denied that Plaintiff' e
claims for medical expenses and/or wage loss are barred, and/or
should bs reduced in accordance with Section 1122 of the
Penneyl vania Motor Vehicle Financial Responsibility Act. Said
averment is a conclusion of law to which no response is required.
39. Denied. It iQ specifically denied that Plaintiff Karen
s. Martin immediately following the accident told Defendant AngeUa
Steiner that llhe wall not injured in the accident. To the contrary,
after impact, the Plaintiff Karen S. Martin told the Defendant
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remaining' averments of paragraph 4 are specif ioally denied and
striat proof thereof is demanded at the time of t~ial.
5. Admitted.
6. After reasonable investigation / Defendant is without
sufficient knowledge to form a belief as to tho truth of the
averments of Paragraph 6. Therefore, each and every averment of
Paragraph 6 is specifically denied and atrict proof thereof is
demanded at the time of trial.
7. Admitted.
8. After reasonable investigation / Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph B. Therefore, each and every averment of
Paragraph B is specifically denied and strict proof thereof is
demanded at the time of trial.
9. The averments of Paragraph 9 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
9 is specifically denied and strict proof thereof is demanded at
the time of trial.
10. Admitted in part and denied in part. Admitted that at
the same time and placet Defendant, Angelia Steiner, was traveling
in a western direction on Trindle Road and was involved in a
collision wherein her vehicle impacted the rear of another vehicle.
2
After reasonable investigation, Defendant is without sUffioient
knowledge tel form a belief as to the truth of the remaining
averments of Paragraph 10. Therefore, the remaining avorments of
Paragraph 10 are specie icaUy denied and strict proof thereof is
demanded at the time of trial.
11. Admitted in part and denied in part. Admitted that at
said time and place, Defendant, Angelia steiner was operating a
vehicle that impacted the rear of another vehicle. The remaining
averments of Paragraph 11 are specifically denied and strict proof
thereof is demanded at the time of trial.
12. Admitted in part and denied in part. Admitted that the
vehicle involved in the collision with Defendant, ^ngelia Steiner,
came to a sudden and unexpected stop, which sudden and unexpected
stop caused the collision referred to in the Plaintiffs' Complaint.
The remaining averments of Paragraph 12 are specifically denied and
strict proof thereof is demanded at the time of trial. To the
contrary, Defendant believes and therefore avers that the
Plaintiffs' vehicle was initially stopped at a red light on Trindle
Road, then began to move through the intersection and suddenly and
without warnJ.ng, stopped for no apparent reason. ^ collision then
ensued between the Defendants' vehicle and another vehicle.
13. The averments of Paragraph 13 constitute a conclusion of
law to which no response is required. To the extent that a
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response is deemed required, eaoh and every averment of Paragraph
13 is speoifically denied and striot proof thereof is demanded at
the time of trial.
14. After reasonable investigation, Defendant iB without
sufficient knowledge to torm 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 form a belief as to the truth of the
averments of Paragraph 15. Therefore, each and every avermont of
Paragraph 15 is specifically denied and strict proof thereof is
demanded at the time of trial.
16. After reasonable investigation, Defendant is without
suff icient knowledge to form a belief liS to the truth of the
averments of Paragraph 16. Therefore, each and every averment of
Paragraph 16 is specifically denied and strict proof thereof is
demanded at the time of trial.
17. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 17. Therefore, each and every averment of
Paragraph 17 is specifically d6.,ied and strict proof thereof is
demanded at the time of trial.
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18. After reasonable investigation, Defendant is without
suffioient knowledge to form a belief as to the truth of the
averments of Paragraph 18. Therefore, each and every averment of
Paragraph 18 is specifically denied and strict proof thereof is
demanded at the time of trial.
19. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 19. Therefore, 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 rGsponse is required. To the extent that I;l
response is deemed required, each and every averment of Paragraph
20 is speoifically denied and strict proof thereof is demanded at
the time of trial.
21. Paragraphs 1 through 20 of the Defendants' Answer with
New Matter are incorporated h~rein by reference.
22. The averments of Paragraph 22 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
22 is specifically denied and strict proof thereof is demanded at
the time of trial.
23. The averments of Paragraph 23 constitute a conclusion of
5
law to which no response is required. To the extent that a
response is deemed requi~ed, eaoh and ~very avorment of Paragraph
23 is specifically denied and strict proof thereof is demanded at
the time of trial.
24. The averments of Paragraph 24 constitute a conolusion'of
law to which 110 response is required. To the extent that a
response is deemed required, each and every averment of Paragraph
24 is specifically denied and strict proof thereof is demanded at
the time of trial.
WHEREFORE, Defendants, Angelia steiner and Donald E. steiner,
respectfully request Your Honorable Court to dismiss the
Plaintiffs' Complaint with prejudice.
25. Paragraphs 1 through 24 of the Defendants' Answer With
New Matter are incorporated herein by reference.
26.
27. The avorments of Paragraph 27 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
27 is specifically denied and strict proof thereof is demanded at
the time of trial.
28. The averments of Paragraph 28 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
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28 is speoifioally denied and striot proof thereof is demanded at
the time of trial.
29. The averments of Paragraph 29 oonstitute a oonclusion of
law to whioh no response is required. To the extent that a
response is deemed required, each and every averment of Paragraph
29 is specifically denied and strict proof thereof is demanded at
the time of trial.
30. The averments of Par.agraph 30 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
30 is speoifically denied and strict proof thereof is demanded at
the time of trial.
31. The averments of Paragraph 31 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
31 is specifically denied and strict proof thereof is demanded at
the time of trial.
32. The averments of Paragraph 32 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
32 is specifically denied and strict proof thereof is demanded at
the time of trial.
33. The avorments of Paragraph 33 constitute a conclusion of
.,
law to whioh no response is required.
To the exhnt that a
response is deemed required, each and every averment of Paraqraph
33 is speoifically denied and strict proof thereof is demanded at
the time of trial.
WHEREFORE/ Defendants, Anqelia steiner and Donald E. steinert
respeotfully request Your Honorable court to dismiss the
Plaintiffs' Complaint with prejudice.
34. Paragraphs 1 through 33 of the Defendants' Answer With
New Matter are incorporated herein by reference.
34. After reasonable investigation, Defendant is without
suffioient knowledge to form a belief as to the truth of the
averments of Paragraph 34.
Therefore, each and every averment of
Paragraph 34 is specifically denied and strict proof thereof is
demanded at the time of trial.
35. After reasonable investigation, Defendant is without
sufficient knowledge to form a belief as to the truth of the
averments of Paragraph 35.
Therefore, each and every averment of
Paragraph 35 is specifically denied and strict proof thereof is
demanded at the time of trial.
WHEREFORE, Defendants, Angelia steiner and Donald E. steinert
respectfully request Your Honorable Court to dismiss the
Plaintiff's Complaint with prejudice.
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HIIl~TTIR
36. The oollision referred to in the Plaintiff~' complaint
was oau~ed by the negligenoe, oarelesBne~s, and/or reoklessnes~ of
Plaintiff, Raren s. Martin, in that shel
a) failed to operate her motor vehicle with due regard to
other vehicles lawfully on the roadway;
b) failed to keep and maintain proper and adequate control
over her vehicle;
0) failed to warn or signal of her sudden and unexpected
stop in the middle of the roadway, thereby creating a
hazardous situation for other motorists lawfully on the
roadway;
d) suddenly and unexpectly and for no legitimate reason,
brough her vehicle to a sudden stop in the middle of a
roadway;
e) failed to keep alert and maintain a proper lookout for
other traffic on the roadway; and
f) otherwise operating her vehicle in a manner endangering
persons and property and with careless disregard for the
rights or safety of otherD in violation of the Motor
Vehicle Code of the Commonwealth of Pennsylvania, which
oonduct constitutes negligence, gross negligence and/or
wilful and wanton misconduot.
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IN THE COURT OF COMMON PLEAS OF
CUMBERLANO COUNTY, PENNSYLVAN!~
NO. 97-4577 CIVIL
CIVIL ACTION - L~W
JURY TRIAL DEMANDED
KAREN s. MARTIN and
O~RY ~ MARTIN,
Plaintiffs
ANOELIA STEINER and
DONALD E. STEINER,
DefendantR
MEM9RANDUM IN SUPPORT OF PLAINTIPP
KAREN S. MARTIN'S REOUEST TO HAVE
A REGISTERED NURSE OF HER SELECTION
ATTEND DEPENDANT'S-INDEPENDENT
MEDICAL EXAMINATION OF PLAINTIFF
I. FACTUAL AND PROCEDURAL HISTORY
This civil Action involves an automobile accident wherein the
undisputed facts are that the Plaintiff, Karen S. Martin, was
injured in an automobile accident on September 1., 1995 when she was
redr ended by the Defendant, Angelia Steiner. On or about April
29, 1998, Plaintiff, Karen S. Martin first received notice of the
intention of Defendant to schedule an independent medical
examination of her when defense counsel, Richard H. Wix, EsquJ,re
forwarded correspondence dated April 28, 1998 to Plaintiff's
counsel advising her that an independent medical examination of
Karen Martin had been scheduled with Dr. Eagle on May 14, 1998 and
further advising her that if this appointment was canceled,
Plaintiff would owe Dr. Eagle $130.00. A true and correct copy of
said correspondence is attached hereto, made part of and
incorporated by reference as Plaintiff'a Exhibit 1. On or about
April 30, 1998, counsel for Plaintiff canceled the independent
medical examination scheduled without Plaintiff's prior knowledge
or permission. On or about May 1, 1998, counsel for Plaintiff
notified counsel for Defendant that she would agree to an
independent medical examination to be conducted of Plaintiff, but
the Plaintiff requested a registered nurse of her own Belection
attend any independent medical examination for the pilrposes of
factually observing the entire examination.
A trUe and correct
copy of said correspondence from Plaintiff's counsel to Defendant's
counsel dated May 1, 1998 is attached hereto and made part of an
incorporated by reference as Plaintiff's Exhibit 2. On or about
May 22, 1998, Defendant filed a Motio~ to Compel medical
Examination of Plaintiff and specifically requested that no nurse
selected by Plaintiff be able to attend said examination. A Rule
to show Cause was issued by the Court on May 20, 1998 and was
subsequently f,lervf,ld upon Plaintiff.
Plaintiff has answered the
Rule to Show Cause again requesting that a nurse of Plaintiff's
selection be able to attend any independent medical examination
conducted by Defendant.
II. QUESTIONS PRESENTED
A. Wculd the attendance by a registered nurse of Plaintiff's
selection impede or otherwise interfere with Defendant's
independent medical examination of Plaintiff?
Proposed answer in the negative.
II I . ARG11H.IUiI
A. The attendance by a registered nurse selected by
Plaintiff of the independent medical examination of
Plaintiff by Vefendant'~ expert physici~1 will not impede
or otherwise interfere with Baid examination.
Pennsylvania Rul.e of Civil. Procedure 4010 Rets forth the
parameters for physical and mental examinat iona of persons in a
civil action. Subsection a specifically provides that "when the
mental and physical condition
. of a party
is in
controversy, the Court in which the action is pending my order the
party to submit to a physical or mental examination by a physician
" Pa. R.C. P. 4010.
In the instant action, the Defendant,
,
Angelia Steiner by and through her counsel, Richard H. Wix,
Esquire, have filed a Motion with the Court to direct Plaintiff to
appear for an independent medical examination by a physician
selected by the Defendant and/or her counsel. Plaintiff, Karen S.
Martin, by and through her counsel, do no objet to Defendant
obtaining an independent medical examinat ion of Plaintif f, but
simply request that Plaintiff be able to take a registered nurse of
her own selection to factually observe the independent medical
examination to be conducted by Defendant.
Plaintiff is further
willing to stipulate that said registered nurse shall in no way
interfere with, disrupt or otherwise obstruct the proposed
independent medical examination of the Plaintiff.
plaintiff believes that simply receiving a copy of any
subsequent written report that Defendant's expert prepares will not
provide her with sufficient information to prepare for the
discovery and eventual cross examination of defense's expert
witness. The "independent medical examination", is routinely the
only portion of a civil action where a party is sent completely
unrepresented" into the den" of the opposing party. In the instant
action, ~laintiff simply requests this Court permit he~ to take a
registered nurse of her own selection to factually observe the
actual physical examination of the plaintiff by Defendant's expert.
At the time o~ trial, the critical issue in this case will most
likely center on which expert testimony the trier of fact accepts
or rejects. The method, duration and extent of the independent
medical examination sought by Defendant may be pivotal to the
outcome in this case and cannot be completely ascertained from a
written report prepared by Defendant's expert.
Permitting a nurse of a part;y's own selection to attend an
independent medical examination is not without precedent in
Pennsylvania.
The Court of Common Pleas of Dauphin County
Pennsylvania has already granted discovery requests for a plaintiff
to have a registered nurse of his or her own selection attend an
independent medical examination requested and scheduled by
Defendants. By Order dated April 4, 1995, the Honorable Jeannine
Turgeon issued a Discovery Order which directed in part that~
A registered nurse selected by
Plaintiff may accompany the
plaintiff to the (independent)
medical exam. The register~d nurse
will not interfere with Dr. Eagle's
ability to conduct the exam. The
registered nurse is not going to
render opinions in the matter. It
is further understood that the
registered nurse is present to
observe and may testify as a fact
witness.
See attached ~oll v. Kreider. et al Order of April, 4, 1995,
Court of Common Pleas of Dauphin County Pennsylvania, Civil Action
No. 1995 S 1994.
In the instant action, Plaintiff believes Defendant's
objection to have a nurse of Plaintiff's seleotion attend this
independent medical examinat ion is wit hout met'i t. First, the
proposed expert, Dr. Perry Eagle, claims that the presenc~ of a
nurse would be disruptive during the course of the examination
because the nurse may answer qlJestions for the Plaintiff or
otherwise interfere with his examination. Judge Turgeon's Order in
the Carroll v. Kreider case clearly eliminated this possibility by
specifically directing the nurse to serve in the fashion of an
observer only. Dr. Eagle next contends that he would agree to have
Plaintiff's treating physician attend the examination, or in the
alternative, a nurse without ties to either attorney selected from
a nurse pool attend the examination. Either of these two options
are not appropriate. The cost of having Plaintiff's treating
physician attend her independent medical examination is too
prohibitive to have this be a viable option even if her physician
was able or willing to so attend. The second alternative suggested
by Dr. Eagle that a neutral nurse selected randomly from a nurse
pool be utilized is not sufficient for the purpose Plaintiff has
requested a nurse of her selection attend this exami.nation.
Plaintiff specifically wishes to select a registered nurse of
Plaintiff's choosing to factually observe the complete physical
examination of plaintiff uy Defendant's expert. Plaintiff
specifically proposes said nurse function in an observation
capacity only. Any concerns the Defendant's raised in her Motion
and in the attached correspondence of Dr. Eagle can be alleviated
alRTIPICATI OP SIRVICI
I, Joanne H. Clough, Esquire hereby certify that on the ,5~
day of June, 1998, I Ilerved a true and correct copy of ,the
foregoing Memorandum in support Of Plaintiff's Request To Have A
Registered Nurse of Her Selection Attend Defendant's Independent
Medical Examination of Plaintiff on the Defendant by placing in
first class mail, postage prepaid, a copy to Defendant at the
address set forth here belowl
Richard H. Wix, Esquire
4705 Duke Street
Harrisburg, PA 17109-3099
Submitted,
Esquire
t, Suite llA
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY/ PENNSYLVANIA
NO. 97-4577 CIVIL
CIVIL ACTION - LAW
RAREN S. MAWrIN and
GARY A. MARTIN,
plaintifts
ANGELIA STEINER and
DONALD E. STEINER,
Defendants
JURY TRIAL DEMANDED
DI.INDAHT'8 MOTION TO COMPIL
MBDICAL IXAMINATION O. TKI PLAINTI.r
l. This action arises out of a motor vehicle acoident that
allegedly resulted in personal injuries to tho plaintiff, Karen
S. Martin.
2. The Plaintiff, Karen s. Martin, is a registered nurse.
3. The Plaintiff alleges that she is unable to work full
time in her capacity as a registered nurse for the pinnacle
Health System.
4. The Defendant desires to have an independent medical
examination and would like to schedule the examination of the
Plaintiff by Perry A. F.agle, M.D./ an orthopaedic surgeon.
5. Plaintiff's counsel, Joanne H. Clough, Esquire, has
indicated that she does not object to an independent medical
examination, but will not agree to an independent medical
examination by Dr. Eagle or any other physician unless her client
is allowed to have a registered nurse accompany her to the
examination.
6. It is not Dr. Eagle's polioy to alloW non-physicians to
be in attendance at medical examinations for the reasonS set
forth in his letter, attached hereto, marked Exhibit "A" and
incorporated herein by referenced.
WHEREFORE, Defendant Angelia steiner respectful.lY requests
your Honorable court to order plaintiff, Karen S. Martin to
submit to an independent medical examination by Perry A. Eagle/
M.D., without the presence of any non-physicians.
Respectfully submitted,
BYI
WIX, WENGER & WEIDNER
'!6.;.Ivv'1,~ 'lL4~
Richard H. W x
1.0.#07274
4705 Duke street
Harrisburg, PA 17109
(717) 652-8455
Attorneys for Defendant
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A"OINTMINT
O"THO'AII>IC IU"OI"V
HAND IUIlIGIIlIV
I'IEAAY ". E"GI.IE. M.D.
'" ~IADI" HllOHn "OAI>
TO"~. 'INN.T~VANIA IUOI
1,"'I'tolON& '7' I.....
,.. UI'Jnl
May 11, 1998
Richard H. Wix, Esquire
4705 Duke street
Harrisburg, PA 17109-3099
ReI Karen Martin
Dear Attorney WixI
I have received your recent inquiry concerning the insistence of
Attorney Joanne Clough in having a nurse, of her choice, attend
the independent medical evaluation for the above patient.
I have an objection to that arrangement. It is my policy not
to allow attorneys or their representatives to be present during
the conducting of an independent medical evaluation. The
presence of such individuals would serve no constructive purpose
and would create an aura of intimidation, either consciously or
subconsciously, to both the examiner and the patient. In
addition, attorneys and their representatives, in the past, have
been on occasion a disruptive influence during the conducting of
the evaluation.
Occasionally there has been a court order to allow a nurse to be
present during the conducting of independent medical evaluations.
The nurse on one occasion was provided by the attorney. I have
unpleasant memories of a nurse answering questions and coaching
the patient. It is my opinion that an evaluation performed under
such circumstances would not be independent.
I would be willing to have a nurse present during th~ conducting
of the examination if so ordered by the court. I would, however,
suggest that a nurse without ties to either attorney be present
and be selected from II nurse pool.
Exhibit "A"
~;;..~:-~ ..":":=.--.~
Richard H. Wix, Esquire
paga 2
Ret Karen Martin
In this way, I feel that the chances of a nurse being a disruptive
influence would be minimal.
I also wish to state it is my policy thct I have no objection to
the patient's treat.ing physician being present in the room during
the conducting of the independent medical evaluation.
If I may be of any further help or clarification in this matter,
please do not hesitate to call or write.
PAE/vlg
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7. The correspondence of Jerry A. Eagle, M.P. attached to
Pftfltndant's Motion for Independent Medical E~amination states that
Pr. Ji:agle opposes a nurse attending the proposed independent
medical examination of the Plaintiff for the following reasons I
s. "It is not my policy to allow attorneys or their
representative to be present during the conducting of the
independent medical examination."
b. "The presence of such individuals would serve no
constructive purpose and would create and aura of
intimidation, either consciously or subconsciously to
both the examiner and the patient."
8. Later in the letter, Dr. Eagle states, "I would be willing
to have a nurse present during the conducting of the examination if
so ordered by the Court."
9. The balance of the letter from Dr. Eagle further states
that attorneys and their representatives have been a disruptive
influence during the conducting of independent medical examinations
in the past by "a nurse answering questions and coaching the
patient."
10. Plaintiff, Karen S. Martin wishes to have a registered
nurse attend her independent medical examination for the
observation purposes only.
11. Defendant's proposed expert, Dr. Eagle, states that he
would agree to have Plaintiff's treating physician attend the
proposed indepennent medical examination.
12. Plaintlf f. Karen S. Martin wi 11 st ipulate that the
registered nurse sent to observe the independent medica!
examination shsll not coach the PlaintifF. or interrupt the exam in
any fashion, but simply physically observe the examination.
13. The presence of a registered nurse of Plaintiff's
selection to simply observe Defendant Angela Steiner's expertll
"independent medical examination" of Plaint if f will in no way
interfere with Dr. Eagle's examination of the Plaintiff.
14. It is standard medical procedure and a wise medical
practice to have a nurse present in an examination room at all
times when a physician is conducting a physical examination of a
patient.
15. Defendant's experts alternative suggestion that
Plaintiff's attending physician may attend the independent medical
examination is cost prohibitive to the Plaintiff..
16. Other local courts of Common Pleas in Pennsylvania have
permitted a registered nurse of the Plaintiff's selection to attend
independent medical examinations requested and scheduled by
Defendants. See ~rroll v. Kreider, et al Order of April 4, 1995
Court of Common Pleas, Dauphin county, Pennsylvania, Action No.
1995 S 1994 attached to the Memorandum in Support of Plaintiff's
Answer to Rule.
17. Defendant's expert, Dr. Perry Eagle, states In his
correspondence to defense counsel that he "would be wIlling to have
a nurse present during the conducting of the examination if so
ordered by the Court" but further states, "I suggest that a nurse
without ties to either attorney be present and be selected from a
nurlle pool."
18. Any observation of an independent medical examination
requested by the Defendant wi 11 not be impeded by the factual
physiaal observation of the independent medical examination by a
nurse of Plaintiff's selection.
19. Plaintiff would agree to have an independent medical
examination by a physician with no ties to either attorney and
selected from a physician pool without a registered nurse present.
20. The specific purpose of the independent medical
examination Defendant seeks of Plaintiff is to challenge the
medical examinations, diagnoses and conclusions of not only
Plaintiff's treating physician, but the medical examinations,
diagnoses and conclusions of the physicians that have conducted
independent examinations of the Plaintiff regarding her injuries as
part of the underlying Workers' Compensation claim Plaintiff has
regarding this accident.
21. Plaint iff is of the belief and therefore avers that
liability is not an issue in this civil action, and that the trier
of fact will have to determine the nature and extent of Plaintiff's
inj uries and damages by evaluat ing confli.cting testimony of
Plaintiff's treating physicians, independent medical examination
physicians of the Workers Compensation carrier and Defendant's
physician expert.
22. Plaintiff believes it is essential to the preparation of
her case for trial that any medical examination of Plaintiff by a
physician of Defendant's selection be factually observed by a
registered nurse of Plaintiff's selection.
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5. A party may serve upon any other party written
interr09atories, Pa.R.C.P. 400~(a) / and a r.eque.t for produotion
of doouments, Pa.R.C.P. 4009.1 and 4009.11(a) and (b) / to be
answered by the party served.
6. Under the Pennsylvania Rules of civil procedure, a party
served with written interrogatories and a request for produotion
of documents shall serve an answer to such interrogatories and
request within thirty (30) days of service. Pat R.C.P.
4006(a) (2) and 4009.12(a).
7. The court may/ upon motion, make an appropriate order
if a party fails to serve answers to written interrogatories,
Pa.R.C.P. 4019(a) (1) (i), or to respond to a request for
production of documents. See Pa.R.C.P. 4019(a) (1) (vii) .
WHIRIFORI, Defendant Angelia steiner respectfully requests
your Honorable Court to enter an order compelling plaintiff to
serve Plaintiff's Answers to Defendant's Interrogatories Directed
to Plaintiff, Sets I and II, and Plaintiff's Response to
Defendant's Request for Production of Documents upon Defendant's
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