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THOMAS, THOMAS & HAFER, LLP
BY: Jamee J, Oodd-o, Eaqulre
IdenllftceUon No. 44878
305 North Fronl Slreel
P,O, Box eee
Herrtabul'l/, PA 17108
17171237.7100
Attornay for Defendenla:
OrthQpadlc SUI'I/ery of C.~lela, L TO, end
Oenlel Hely. M,O.
IN THE COURT OF COMMON PLEAS or CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
JOHN MOTTER and JEAN MQTTER,
Plaintiffs,
No. 97-4991
IN CIVIL ACTION
v.
ORTHOPEDIC SURGERY OF
CARLISLE, LTD. and DANIEL
HELY, M.D.,
Df~ fendan ts.
JURY TRIAL DEMANDED BY
,JURY OF TWELVE PERSONS
ANSWIlR and NEW MATT1llR 01' DEI'ENDANTS, ORTHOPEDIC SURGBRY
01' CARLISLE, LTD. and DANIEL HELY, M. D., TO PLAINTIFFS'
AMENDED COMPLAINT
COMES NOW the Det.>ndant, Urthopedic Surgery of Carlisle,
Ltd. and Daniel Hely, M.D., by and through its counsel, James J.
Dodd-o, Esquire, of Thomas, Thomas & Hafer, LLP, and for its
Answer and New Matter to Plaintiffs I Amended Complaint, sets
forth as follows:
1. Admitted upon information and belief.
2. Admitted upon information and belief.
3. Admit ted.
4. Admitted.
5. Admit ted Plaintiffs bring the claim. . It is denied
that the claim has any me ri t .
COUN'.t' I
MlDICIL MALPRACTICE
John Mottex v. Danial Raly, M.D.
6. The responses set forth in Paragr.aphs 1 through 5,
above, are incorporated herein by reference thereto.
7. Admitted that a procedure was performed on Plaintiff,
including a carpal tunnel release on the left hand.
a. Denied. It is sped f ically denied that the sutures
were removed without adequately checking the wound.
9. Denied. It is denied that the adequate way to examine
the wound is as set forth in Paragraph 9 of Plaintiffs'
Complaint. By way of further response, Defendant denies the
characterization of examination as set forth by Plaintiffs in
J?aragraph 9 of their Complaint. By way of still further
response, Defendant properly examined the wound to determine
same had sufficiently healed for normal usage following such a
procedure.
10. Denied.
Defendant denies the characterization of the
examination and the scope and extent of same as set forth in
J?aragraph 10 of J?laintiffs' Amended Complaint.
11. Denied. After reasonable investigation the Answering
Defendant is without such knowledge or information because the
means of proof are within the exclusive control of an adverse
2
party or hostile person.
the time of trial.
12. Denied. Afte~' reasonable investigation, the Answering
Defendant is without sufficient knowledge or information to form
a belief as to the truth of these averments, and strict proof
thereof is demanded at time of trial. By way of further
response, it is possible that there would have been a small
amount of blood and same would not be an abnormal finding.
13. Denied. After reasonable investigation the Answering
Dpfendant is without such knowledge or information because the
means of proof are within the exclusive control of an adverse
Strict proof thoreof is demanded at
party or hostile person.
the time of trial.
14. Denied. After reasonableinvestiga tion .the Answering
Defendant is without such knowledge or information because the
means of proof are within the exclusive control of an adverse
party or hostile person. Strict proof thereof is demanded at
the time of trial.
Strict proof thereof is demanded at
15.
21, 1995.
Defendant.
16. It is believed that a diagnosis of reflex sympathetic
dystrophy was made and it 19 further believed that i'laintiff-
Admitted that Plaintiff was seen by Dr. Hely on August
The chi;lracterization of said visit is denied by
3
husband was advised to seek care at Carlisle Hospital Pain
Clinic.
17. Denied. After reasonable investigation, the Answering
Defendant is without sufficient knowledge or information to form
a belief as to the truth of these averments, and strict proof
thereof is demanded at time of trial.
18. Denied, After reasonable investigation, the Answering
Defendant is without sufficient knowledge or information to form
a belief as to the truth of these averments, and strict proof
thereof is demanded at time of trial,
19. Denied. After reasonable investigation / the Answering
Defendant is without sufficient knowledge or information to form
a belief as to the truth of these averments, and strict proof
thereof is demanded at time of trial.
20. Denied, After reasonable investigation the Answering
Defendant is without such knowledge or information because the
means of proof are within the exclusive control of an adverse
party or hostile person, Strict proof thereof is demanded at the
time of trial.
21. Denied. After reasonable investigation the Answering
Defendant is without such knowledge or information because the
means of proof are within the exclusive control of an adverse
party or hostile person. Strict proof thereof is demanded at the
time of trial.
22. Denied, AfteI' reasonable investigation the Answering
Defendant is without such knowledge or infoI'mation because the
4
means of proof are within the exclusive control of an adverse
party or hostile person. Strict proof thereof is demanded at the
time of trial.
23. Denied. After reasonable investigation the Answering
Defendant is without such knowledge or information because the
means of proof are within the exclusive control of an adverse
party or hostile persen. Strict proof thereof is demanded at the
time of trial.
24. Denied. After reasonable investigation the Answering
Defendant is without such knowledge or information because the
means of proof are within the exclusive contt'ol of an adverse
party or hostile person. Strict proof thereof is demanded at the
time of trial. The claim set forth in Paragraph 24 of
Plaintiffs' Amended Complaint is further denied as speculative.
25. The characterization of the deposition testimony from
Dr. William Graham is denied. Said deposition has been
transcribed as a written document which speaks for itself. By
way of further response, the statement of Dr. William Graham, to
the extent same was made, does not constitutE! a finding of
negligence on the part of Dr. Hely.
WHEREFORE, the Answering Defendants demand judgment in
their favor.
COUNT II
RZSPONDZAT SUPIRIOR
John and Jean MOtter v. Orthoped1o SurGery of C.~11.1e, Ltd.
s
26. The responses set forth in Paragraphs 1 through 25,
above, are incorporated herein by reference thereto.
27. The allegations set forth in this paragraph of
Plaintiffs' Complaint constitute conclusions of law to which no
responsive pleading is rp.quired pursuant to the, Pennsylvania
Rules of civil Procedure. To the extent that portions of this
paragraph could be construed as factual allegations, said
allegations are specifically denied, and strict proof thereof is
hereby demanded at the time of trial.
28. Denied as a legal conclusion to which no responsive
pleading is required.
29. The allegations set forth in this paragraph of
Plaintiffs' Complaint constitute conclusions of law to which no
responsive pleading is required pursuant to the Pennsylvania
Rules of Civil Procedure, To the extent that portions of this
paragraph could be construed as factual allegations, said
allegations are specifically denied, and strict proof thereof is
hereby demanded at the time of trial.
WHEREFORE, the Answering Defendants demand judgment in
their favor.
COUNT II I
LOSS or CONSORTIUM
Jean Motter v. Daniel Rely, M.D.
30. The responses set forth in Paragraphs 1 through 29,
above, are incorporated herein by reference thereto.
(,
party or hostiie person.
the time of trial.
41. Denied. It is denied that any damage or loss by
Plaintiff is the result of the surg~ry of March 20, 1996. As to
the claim of ~amage set forth, after reasonable investigation
the Answering Defendant is without such knowledge or information
because the means of proof are within the exclusive control of
an adver$e party or hostile person. Strict proof thereof is
demanded at the time of trial.
Strict proof thereof is demanded. at
42. Denied. After reasonable investigation the Answering
Defendant is without such knowledge or information because the
means of proof are wi thin the exclusive control of an adverse
party or hostile person. Strict proof thereof is demanded at
the time of trial.
43. Denied. After reasonat;>le investigation the Answ"ring
Defendant is without such knowledge or inf0rmation because the
means of proof are within the exclusive control of an adverse
party or hostile person. Strict proof thereof is demanded at
the time of trial.
44. Denied. After reasonabllll investigation the Answering
Defendant is without such knowledge or information because the
means of proof are within the exclusive. control of Cln Cldverse
party or hostile person. Strict proof thereof is demanded at
the time of trial.
8
45. Denied.
Aftar reasonable investigation the Answering
Defendant is without such knowledge or information because the
means of proof are within the exclusive control of an adverse
party or hostile pe'rson.
Strict proof thereof is .demanded at
the time of trial.
46. Denied.
After reasonable investigation the Answering
Defendant is without such kn<lwledge or information because the
means of proof are within the exclusive control of an adverse
party or hostile person.
Strict proof thereof is demanded at
the time of trial.
47. Stricken per Cour,t Order dated June 30, 1998.
48. Stricken per Court Order dated June 30, 1998.
49. Stricken per Court Order dated June 30, 1998.
WHEREFORE, the Answering Defendants demand judgment in
their favor.
tmf IATfta
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50. The Answering Defendants incorporate herein b~ reference
Paragraphs 1 through 49 of their Answer to the Plaintiffs' Amended
Complaint as if more fully set forth herein at length.
51. The Answering Defendants believe and therefore aver that
the Pennsylvania Comparative Negligence Act may be applicable to
this action and therefore incorporate said Act as if moxe fully
set foxth herein at length.
9
52. The Plaintiffsr claims and any and all recovery thereon
may be barred and/or limited by the applicable Statutes of
Limitation.
53. The Plaintiff may have been contributorily negligent.
'54. The Plalntiff may have ~ssumed the risk.
55. The Plaintiffs' Amended Complaint fails to state a cause
of action upon which relief can be' granted.
56. The Answering Defendants deny any and all allegations of
negligence and malpractice.
5? In the event it is judicially determined that said
Answering Defendants were negligent in any respect as alleged in
the Plaintiffs' Complaint, all allegations being specifically
denied, said negligence was superseded by the intervening
negligent acts of other persons, parties and/or organizations
other than the Answering Defendants, and over whom the Answering
Defendants had no contr.ol, right of control or right of
responsibility and,
liable.
58. The injuries or damages allegedly sustained by the
Plaintiff were not proximately caused by the Answering Defendants.
59. Any alleged negligence of the Answering Defendants, if
any, the same being specifically denied, was not a substantial
factor in causing the harm complained of by the Pla~ntiff.
therefore, Answering Defendants are not
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2. On January 22, 1999, this Honorable Court, by Judge
Kevin A. Hess, issued an Order, ruling Plaintiffs to show cause
why the relief requested in the Defendants' Motion to Compel
should not be granted. A true and correct copy of said Order is
attached hereto as Exhibit "A".
3. The Order/Rule was returnable 20 days from the date of
service.
4. On January 27, 1999, Plainti ffs' counsel was granted
permission to withdraw as counsel in this case. A true and
correct copy of the Order entered by the Court is attached
hereto as Exhibit "6".
5. On January 28, 1999, said executed Order/Rule was
served via First Class Mail upon Plaintiffs at; their home, 138
Gothier Lane Grantville, PA 17028. A true and correct copy of
the service letter is attached hereto as Exhibit "C".
6. Plaintiffs have failed to file full and complete
responses to the discovery requests.
7. More than twenty (20) days have passed from the date
of service of the Order/Rule upon Plaintiffs, and Plaintiffs
have filed no response to the Order/Rule.
WHEREFORE, Defendants, Orthopedic Surgery of Carlisle, Ltd.
and Daniel Hely, M.D., respectfully request this Honorable Court
make absolute the Order/Rule to Show Cause issued on January 22,
2
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2. . On April 1, 1998, counsel for Defendants forwarded to
counsel for Plaintiffs Interrogatories directed to Plaintiffs.
A copy of the transmittal letter forwarding the Interrogatodes
is attached heret6 as Exhibit "B".
3. On October 13, 1998, counsel for Defendants forwarded
correspondence to Plaint iffs' counsel requesting responsell to
the outstanding discovery. A copy of said letter is attached
hereto as Exhibit "C".
4. Plaintiffs provided incomplete and unverified Anllwers
to Interrogatories in October, 1998.
5. To date, Plaintiffs have failed to fully answer the
discovery reque~ts forwarded to them.
6. Pennsylvania Rule of Civil Procedure' 4005 permits
Interrogatories to be forwarded by any party to any other party.
7. Pennsylvania Rule of Civil Procedure 4006 (a) (2)
requires a party upon whom Interrogatories have been served to
file an answer or objection within thirty (30) days.
8. Pennsylvania Rule of Civil Procedure 4009 permits any
party to forward to any other party a Request for Production of
Documents.
9. Pennsylvania Rule of Civil Procedure 4009 (b) (2)
requires a party upon whom Request for Production of Documents
have been serv~d to file a response or objection within 30 days.
2
10. Plaintiffs' failure to
discovery .is a violation of the
Procedure.
11. Plaintiffs'. failure to file any objection to any of
the discovery requests waiveG the right of the Plaintiffs to
obj ect to the discovery requests.
12. Pennsylvania Rule of Civil Procedure 4009(a) (1) (i)
file responses to the
pennsyl vania Rules of
above
Civil
permits the Court, on motion, to make an appropriate Order,
where a party fails to serve answers to written Interrogatorie:s
under Rule 4005.
13. Pennsylvania Rule of Civil Procedure 4009(a) (1) (vii)
states that a Court may, on motion, make an appropriate Order if
a pa1:'ty, in response to Request for Production made under Rule
4009, fails to respond.
14. Defendants are severely prejudiced in defending this
action in light of Plailltiffs' failure to appropriately respond.
15. Presently, Plaintiffs' co'unsel has filed a Petition to
Withdraw as counsel, alleging in part that Plaintiffs have
failed to provide the information requested by Defendants,
despite repeated requests.
WHEP.EFORE, Defendants, Orthopedic Surgery of Carlisle, Ltd.
and Daniel &lely, M.D., respectfully request this Honorable Court
enter an Order compelling Plaintiffs to respon/ses to t.he Request
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III. ARQ~NT and AUTHoaITI..,
The PennBylvdnl,) l~ul(lll of Civil Procedure permit a party to
forward to any other party d MuqUBst for Production of Documents,
In addition, t,n'~ P'!r1tJI3ylvMl1" Hules of Civil Procedure, at
4009(b) (2) requlro .\ party upon wh()m a Request for Production has
been served to ft It! .1 r'HtponBO or objection within thirty (30)
days. PlaintLff hllll r,llLed to file such a response in this
matter.,
Pennsylvania RuLa at civil Procedure 4005 permits
Interrogatories to be forwftrdod by any party to any other party,
In addition, the PonnllyLvIHlt,\ Rules of Civil Procedure, at Rule
4006(a) (2), requlree t/l/It d party upon whom Interrogatories have
been served to file oIrl dnswer or objection within thirty (30)
days. In the tnl1tant mlltter, Plaintiff has failed to rllspond to
the Interrogatories.
Pursuan~ to Pennsylvania Rule of Civil Procedure
4009(a) (1) (1), II Court may, on motion, make an appropriate Order
where II party has failed to answer written Interrogatories.
Pursuant to Pennsylvania Rule of Civil Procedure 4009(<1) (1) (vii),
,} Court may on motion make an appropriate Order where another
party hile faUed to respond to. a Request for Production of
Document!'!.
3
Plaintiff John Motter suffered additional tralJma to the hand
resulting in the surgical would reopening. Mr. Motter was taken
to Carlisle Hospital for repair of the surgical wound.
Subsequent to the above, plaintiff John Motter allegedly
began noticing pain in the area of the surgical "xcis ion. Said
pain progressed and Plaintiff John Motter was allegedly diagnosed
with reflex sympathetic dystrophy.
This. required Plaintiff to
undergo an operatMn to have the sympathetic nerves on the left
}
side severed to relieve the symptoms of RSD.
On October 9, 1997, counsel for Defendants forwarded pto
Plaintiffs' counsel a Request for Production of Documents. On
April 1, 1998, counsel for Defendants forwarded Interrogatories
directed to Plaintiffs.
Late Octobflr, 1998, PlaintHfs furnished
incomplete, unverified Answers to Interrogatories.
To, date,
plaintiffs have failed to furnish full and complete responses to
the Interrogatories and, therefore, Defendants have filed a Motion
to Compel. 1 This Brief is offered in support of said Motion.
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Xl: . QUJlSTXON PJUlSJlNTJlD.
1. WHETH&:R DEfENDANTS ARE ENTITLED TO FULL AND COMPLIETE
RESPONSES TO INTERROGATORIES AND REQUEST FOR
PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFFS?
prosentL'I' PLdintiEfs' Gr)un~~81 has fillfjd a I?~Jt.ition to
GI.)unseL, al18qin'-J in polr!: r:h~1~. Pl,lintiffS h.)'l~ fdil~d tG
inf'Jrmati'Jn r":q\j8:3t..~rl ~)~I [)f~f,awJ,lnt:J, ,k>:3pit.e f42pArlted rl)l.Iup.~t5.
Withdraw as
provide the
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7. On January 27, 1999, Plaintiffs' counsel was granted
permission to withdraw as counsel in this case. A true and
oorrect copy of , the Order entered by the Court is attached hereto
as Exhibit "B".
8. In light of Plaintiffs' failure to respond to the Rule
issued January 22, 1999 and their continued failure to provide
full and complete discovery responses, Defendants filed a Petition
to Make Rule Absolute and entered an Order on March 12, 1999
direction Plaintiffs to file full and complete responses within
thirty (30) days from the date of Service of the Order. A copy of
said Order is attached hereto as Exhibit "C".
9. By correspondence dated March 15, 1999, counsel for
Defendant forwarded to PlaintHfs the Court's Order of March 12,
1999. A copy of the transmittal letter to Plaintiffs is attached
hereto as Exhibi t "0".
10; More than thirty (30) days has elapsed since the service
of the Order upon Plaintiffs.
11. Plaintiffs have faped to forward full and complete
discovery responses to Defendants' counsel.
12. Pursuant to the Order of Court 0 f March 12, 1999.
Plaintiffs' failure to provide full and complete discovery
responses to Defendants would result in "further sanctions as the
Court deems appropriate."
3
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III. ARG~ and AUTHORITIZS.
Pennsylvania Ruie of Civil Procedure 4019 (a) (1) (i) permitl:l a
Court on Motion to make an appropriate Order where a party has
failed to serve sufficient discovery answers. , In addition, Pa.
R.C.P. 4019(a) (1) (viii) permits the Court to enter an a~propriate
Order where a party fails to obey an Order of Court respecting
discovery. Pennsylvania Ru1f;! of Civil Procedure 4019(c) (3)
permits a Court, when ac;ting under 4019(a), to enter an Judgment
of Non Pros or default against the disobedient party.
Last, pursuant to Pa, R.C.P. (019(g), a Court on a Motion for
Sanctions may require a party or deponent whose conduct
necessitated both the Motion to Compel and a Motion for Sanctions
"to pay the moving party the reascnable expenses, including
attorney's fees, incurred in obtaining the Order for Compliance
and the Order for Sanctions...".
In the instant matter, both a Motion for Judgment of Non
Pros/Dismissal and a Motion for Attorney's Fees is warranted.
Plaintiffs have failed to file full and complete discovery
responses despite this Court's Order of March 12, 1999. As a
result of the above, Defendants have been severely prejudiced and
are unable to properly prepare a rlefense to the assertionl:l being
made. Plaintiffs' failure to prosecute the matter warrants the
matter's dismissal. Plaintiffs' disregard of this Court's Order,
requiring Defendants to come to the Court for relief from
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4. Count IV requests improper damages not recognized in
Pennsylvania and fails to conform to law and/or rule of Court.
WHEREFORE, Defendants, Orthopedic Surgery of Carlisle, Ltd.
and Daniel Hely, M.D., respectfully request this Honorable Cdurt
strike Count IV, Paragraphs 36 through 38 of Plaintiffs' Amended
Complaint.
MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES.
5. Plaintiffs' Amended Complaint fails to state a claim
which would entitle Plaintiffs to recover punitive damages as a
matter of law.
6. In the ad damnum clause following Paragraph 49 of
Plaintiffs' Amended Complaint, the Plaintiffs request punitive
damages in this matter.
7. Exemplary or puni t i ve damages, 1. e ., damages which do not
compensate the patient for loss, but which penalize the Defendant,
may be awarded only in cases involving intentional or outrageous
conduct.
E\. In this action, Plaintiffs set forth no basis for the
imposition of punitive damages.
9. Plaintiffs' Amended Complaint fails to set forth any
basis for t:he imposition of punitive damages against Dr. Hely or
Orthopedic Surgery of Carlisle, Ltd.
10. Plaintiffs' Amended Complaint sets forth allegations
regarding the alleged early removal of sutures and an alleged
inadequate examination of the wound prior to removal of sutures.
2
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:J. P". [I.'ly r" I Jt.d ~", "xo",mlll" Llf" V)""l1d nd""l""I."ly by I'rHIJ'll.llll
'HI t.ht:l ..;.d,J.:\(!(~llL hand llnll Wt'jut ;-It'.-~,"J t.,1) bH (j,bl,.! to U~~'q',' If Lht:'
wound hnd ,nIJfrlr~lnCJ~,ty hH"lJI;'lllln'-)lJl~h t.I:J l,it.~I~" 1,'l'.l:;I}i! uflf.l'(tr IltJl"mttl
Utj.;q,~'J in' j ur' 1,1) t't-"ml)\.-l llli thH :1I1t..lU"U13,
to. Dr, HOlly':; ..;u,mlll"I.I"1l "r thn wnlllld .J'JI.'lL priot' t,o hl.m
t'omi.wing the [-llIllIl''':1 wall I.., lightly ht'lI~h LhH :lIlLllrHd ,11'1')" wi t.h
hi:;1 hAt'l--:I hilnd, no 1",-.,;)'1 1Il'H~i:-\IJI"I-:' ',o/;t:-j PX~;H,t,~~d l-lll Lhf-' wotln,,), 1';,-) :JI~~f!
If it. would J""m"in shllt. linde!' n"l.'m,'tl 11'"0"1'1'1.
tt. Whil,.~ [k. [I"ly WQ" t',_'m(wj,ng t.h.:, BlltUI'en;, ,)"hn notknd a
small amount. ;.,1' bl""d f"nminl:l 1'1'001 th,') w,.,IJr\d 'H111 n,.,tlfl.ed Dr. Hell'
(l f ~'j[lml..t"
12.. Dr', Hull' cumm.mt.,'d I,.) ,)"hn t.blll." IILI'.l", hit. ',,1' blood (,,"mlntl
to t.h'-1 ~Hlrf,:H~I:l whll",;, nlltut'f-:-!:l 'fleee bf~ing romovn,;l W;:t:3 normal,
13. At. ab",", 11:0n [',M "n Uw IlllY I;hat John'bad't.hr" ,mt.ut'''''
rdmQv'od, tho Hllr'l!I \,(':,1 wnllflr! l'I.~I;)pnnf:lll wh 1.1 n ')I.."Jhn lV,:lfi cloni ng ;.1 car'
door "
lA. At, thot. t.ime John wa,; ,'unhe<1 ".',0 Ciu'J.j,'lle flOflpttal in order
to hav~ th~] SUt'g \, I,'a 1 wnllj'ld t'f',p,"ll rl:;od.
t5, On or !lbo;,"t. AutluClL :01, i8~15 John w('\,; "xpt1rlfJne In" pili n In
t.he "l'ea qf the :,"Il'gl".d in>:l:}'ion and down Int.,) hle, hand and
thumb and went. t,o ';"H Dt., O"ly "b<lllt 1'.1'11,., L'aln.
16. On S.Jpt..,'mbet' 21, 1985 nt, ,T,)hn Rodfl"'t." "f, I.h.e Ot't,hoJ?edic
Surf&fJry of GfH"ll:jl~), Ltd, dlLlgnt;.l:'\i~) ,J..-,hn wJI',h RofloK :)yrnpnt,hnt,l.l_~
Dy::\trol?hy and "end" ,J,~hn I:." Dr. f<'J"'''I;,;J", ,,1' 1.1", C,U' 1 1:0;1" H.):;pl tnl
Poln CUnlf'.
17, On Oc tob,:.r 20. H105 Dr. cTohn n(ldl5"t.~,! hud '.:on f':t'''HeJ wi. U,
I)r . Tne! [~unenf>k.) and .j"hn' :'1 hand t.h",t'ap i ,;1, who ,,11 r'; ,,,)f J I'm",rJ L ha t.
bf.l:wd on t.he 1,0"1,::; t.hFlt. t.l'ilryy rn,1I '.m .Juhn Hnt.Ler Lhlll. ,h,' did in
fnet. hav.:, RuflAx ':YnljJilt.hlJl.i,' Dy,;t.t")l,hi',
tA. As' ,"). 1'f1>111l.t, nf t,he H,dl,.;, ';YIlII!,'t I:.h" i, i r', r,y:,.!.t'''l,hy, .r..,hrl hM!
p','l'milnt9nt,ly lost. :~/:] "f hl:1 ~;t,t'''ntilt.h Itl hi::; t.,n. a/"m
1:1. On t,>)" "h(\II~, M.11:'i'h' :'0. lDfH~ Lh" n"I'J,,':< ::;yml"'lLhul'.ln ,
Dy:"t-r.'ophy(RCD) l"I!<llllt'I"(I' ,r,,'j'tHl t/l LIrllJr;H'g,,) ,:.Jin 1:.>jjll.!t'i-\L,j"Hl which b,l! h;ld
~.rll~ i\f-'t'VC' Lhr\t t!l:'IVHt:'ll;, L~I~' lIJI:',{1''''(I'I,(' '-I" l"-in:-",~.':\ In hln If'!'t. :It'n,
.\rld 'ail.h.'! :JI!:~V~~l'~~iJ in '.It'dl:,I' l"", t'I" 1 j'''i'I' 11; m 1'1'" d"l I.h~l :'1jffllLd;.'.lllk_ (, I'
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THOMAS, THOMAS a HAFER, LLP
BY: Jam. J, Dodd-o, Eaqulre
ldentlneatlon No. 44171
301 North Front S.....t
P.O, Box ...
HarTIaburg, PA 17101
(717)237-7100
Attomey lor Der.ndanla:
Orthopedic Surgery of Carllale, L TD, and
Daniel Hely, M.D.
IN THE COURT OF COMMON ~LEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
JOHN MOTTER and JEAN MOTTER,
Plaintiffs
No, 97-4991
IN CIVIL ACTION
v.
ORTHOPEDIC SURGERY OF
CARLISLE, LTD, and DANIEL
HELY, M,D"
JURY TRIAL DEMANDED BY
JURY OF TWELVE PERSONS
Defendants
NOTION or ORTHOPZIlIC SUIlGZRY or CARLISLZ, LTC.
AND DANIZL HZLY, M.D, FOR SUMMARY JUDGMBN'l'
AND NOW, come the Defendants, Orthopedic Surgery of Carlisle,
Ltd, and Daniel Hely, M.D" by and through their attorneys, James
J, Dodd-o, Esquire, and Thomas, Thomas" Hafer, LLP, and move this
Court to grant summary judgment on their behalf as follows:
1. This lawsuit was instituted via Writ of Summons filed
with the Court of Common Pleas of Cumberland County on September
16, 1997,
2, Defendants forwarded to Plaintiffs discovery requests in
the form of Requests for Production of Documents and
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4. The references to failure to "check" the wound, without
more, is in violat ion of Pennsylvania Rule of Ci vi! p,,-ocedure
1019(a) and should be stricken.
WHEREFORE, Defendant, Daniel Hely, M.D., respectfully requests
this Honorable Court strike Paragraph 8 of Plaintiffs' Complaint
or, in the alternative, order Plaintiffs to file a more specific
Complaint,
PRELIMINARY OBJECTIONS IN THE FORM OF A MOTION TO STRIKE OR, IN THE
ALTERNATIVE, MOTION FOR MORE SPECIFIC PLEADING AS TO COUNT II OF
PLAINTIFFS' COMPLAINT.
S. Paragraph 27 of Plaintiffs' Complaint states "Dr, Hely
acted without due care while removing the sutures from John
Motter's left arm and hand."
6. Paragraph 27 of Plaintiffs' Complaint fails to apprise
Defendant Orthopedic Surgery of Carlisle, Ltd. of the specific
allegations of negligence against Dr. Hely.
7. Paragraph 27 of Plaintiffs' Complaint fails to apprise
Defendant Orthopedic Surgery of Carlisle. Ltd. of the specific
allegations of negligence against it.
8. Paragraph 27 of Plaintiff's Complaint is in violation of
Pennsylvania Rule of Civil Procedure 1019(a) which requires that
the material facts upon which a cause of action is based be stated
in a concise and summary form,
9. Defendant Orthopedic Surger.y of Carlisle, Ltd" is unable
to respond to the insufficiently specific allegations contained in
Paragraph 27 of Plaintiffs' Complaint and is, therefore, unable to
properly prepare a defense to this claim.
WHEREFORE, Defendant, Orthopedic Surgery of Carlisle, Ltd"
requests that this Honorable Court strike paragrnph 27 of
2
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Hand. ( Notu Dute u'3od roJ'orr to thu dilto I istoJ on Dr, HolY'lJ
Medical recorda)
6. On or about July 17,199~, during tho morning Dr, Daniel Hely
removed the Butures used to closo the surgical wound without
adequately chocking the wound to dRtermine if it hud aufficiently
healed.
9, While Dr. lIely wac removing the su turoe, John noticed a
amall amount of blood coming from the wound and notified Dr. Hely
of same.
10, Dr. Hely communtRd to John that R little hit of blood coming
t.o tho aUl'face whi Ie Dlltures wel't) beinll removed was normal,
11, At about 11:00 r,M, on the day that John had the suturos
removed, tho surgical wound reopenRd while John was closing a car
door,
12, At that time John wae rushed to Car 11 sle HOflpi tal in order
to have the surgical wound repaired.
13. On or about August 21, 1995 John was exporiencinll pain in
the area of the surgical incision and down into his hand and
thumb and went to flee Dr. Hely about thi E3 pain.
14, On September 21, 1995 Dr. John Rodgers of the Orthopedic
Surgery of Carlisle, Ltd. diagnosis John with Reflex Sympathetic
Dystrophy and sends John to Dr. Kosenflke of the Carlisle Hospital
Pain Clinic,
15, On October 20, 1995 Dr, John Rodgers had conferred with
Dr,Ted Kosoncke and John's hand therapist who all confirmed that
based on the tests that they ran on John Motter that he did in
fact have Reflex Sympathetic Dystrophy,
16, As a result of the Reflex Sympathetiu Dystrophy, John has
permanently lost 2/3 of his strength in his ieft arm.
17, On or about March 20, 1996 the Reflex Sympathetic
Dystrophy(RSD) required John to undergo an operation which he had
the nerve that governs the autonomic responses in his left arm
and side severed in order to relieve him from the symptoms of
RSD.
18, As a result of this surgery, John does not sweat on his left
arm or the left side of his torso,
19, As a rvsult of thin nurHory, John can not feol hot or cold
with his left hand.
20. An a renu it, (J f t.hc,,,' ';ymp t.om". .John can not onJoy tho
IJutdOl)r~J I t)r work ,jUt"k.HH':1 wi t}lIlut', thf~ cr)n~1t,nnt t.hro."lt of
suffering a heat stroko.
21, As a result of tho pain suffered from the RSD and the current
lack of ability to perform as he did prior to his carpal tunnel
surgery John has suffered mental breakdowns, including relapsing
into illegal drugs,
22, As a result of the quantity of drugs John was taking to
combat RSD both legal and illegal it is probable that John will
suffer kidney failure ao he grows older,
23, On or about January 23, 1997 Dr. William Graham of Hershey
Medical Center statod in B Deposition that beyond a med1cal
certainty that, ,John Motter's RSD was as R result of the trauma
that John Motter's Left Arm suffered as a result of the surglcal
wound reopening on July 17, 1995,
Wherefore Dr. Daniel lIoly should be held liable for the
Injuries and Buffering John Motter experienced as a result of
Reflex Sympathetic Dystrophy.
COUNT II
RESPONDEAT SUPERIOR
(John and Jean Motter V, Orthopedic Sursery of Carlisle, Ltd.)
24, Paragraphs 1-23 are incorporated by reference,
25, Dr, Daniel Hely is employed by Orthopedic Surgery of
Carlisle, Ltd,
26, While actlng under the scope of employmcnt of Orthopedic
Sursery of Carlisle, Ltd, Dr. Hely removed the outures from John
Motter's left hand,
27. Dr. Hely acted without due care while removing the sutures
from John Motter's left arm and hand,
Wherefore Orthopedic Surgery of Carlislc Ltd. ahould be
found liable for all of the InJuries and suffering John Motter
and Jean Motter Buffered HS a result of John sufferins Reflex
Sympathetic Dystrophy.
COUNT III
LOSS O~ CONSORTIUM
(JEAN MOTTER v. DR, DANIEL HELY)
28. Paragraphs 1-27 arc incorporated by reference.
29, Jean Motter was t.he wife of John Motter at the t.ime of t.he
carpal tunnel surgery, and tho subsequont re-openins of the
5ursical wound,
30. Jean Motter Is sUll thE) wife of .I,.hn Mottur,
31, As a result of John's RBC, John was unable to proform his
husbandly duties tuward Juan or tuward thoir household.
32, As a result of this inability, Joan Motter underwont undue
stress and financial hardship which reeked havoc upon her
marriage to John Motter.
33. As a result of thosa hnrtiships and John'o RSC pain, the
intimacies of her marriage to John dinintournted,
Wherefore Jean Motter iH entitled to compenoation for her
loss of consortium
COUNT IV
LOSS OF CONSORTIUM
(John Motter V, Dr. Daniel Hely)
34. Paragraphs 1-33 are incorporatod by reference
35, As a result of not being able to preform his husbandly
duties toward the household due to his pain suffered as a result
of RSD, John was subject to ridicule and torment,
36~ This ridicule,torment and feelings of worthlessness that
accompanied John's pain caused by RSD forced John to push away
his wife from him due to his feelings of unworth1nesB,
Wherefore John Motter is entitled to compensation for his
loss of consortium.
DAMAGES
37, Paragraphs 1-36 are incorporated by reference.
36. John Motter is currently 35 years old,
39, As a Result of the surgery of March 20, 1996, John is unable
to work full time in any capacity due to the loss of strength in
his left hand, the inability to sweat through this left hand and
side, and his left hand's propensity to ~well up to 2-3 times its
size when it is used rogular1y.
40, John currently has lost sleep due to the RSD related pain in
his left hand keeping him awake,
41, John will continuo to suffer poln 8S n rosult of RSD for the
rest of his li!e.
42. John will suffer future medical expenses due to the types of
medicines he has taken in order to cumbat the pain suffered as a
rmllll t of FISC,
43. John wi 11 suffer fu turo phnrmaceut leal oxpensen in order to
control the symptoms of RSD,
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97.4991 CIVIL TeRM
and the Cart isle Hospital should be held liable for Plaintiffs' injuries, Plaintiffs also
Included counts for loss of consortium by Mr. and Mrs. Motter and a request for
punitive damages. Defendants flied preliminary objections. The preliminary
objections consisted of a motion to strike Count IV of Plaintiffs' Amended
Complaint, which seeks damages for loss of consortium by Mr. Motter, and a
motion to strike the claim for punitive damages.
Discussion
'A loss of consortium claim arises from the marriage relationship and Is
grounded on the loss of a spouse's services after injury,' Tlburzio-Kellv v.
Montgomery, 452 Pa, Super. 158, 188, 681 A.2d 757, 772 (1996). In
Pennsylvania, the right to enter claims for loss of consortium has been limited to
spouses, NQII v, Citv of Philadelphia. 153 Pa. Cmwlth, 57, 58,620 A.2d 613,614
(1993). It is well settled that a claim for loss of consortium is derivative of the
injured spouse's claim. Citv of Philadelphia v, Buck, 138 Pa, Cmwlth, 250, 256,
587 A.2d 875, 879 (1991).
In the case at bar, Mr. Motter has asserted a claim for loss of consortium
agains1 Dr. Hely. Clearly, this is impermissible because Mr. Motter is the victim of
the alleged injury. Only Mrs. Motter may make a claim for loss of consortium.
Therefore, Defendants, Motion to Strike Count IV of Plaintiffs' Amended Complaint
2
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