HomeMy WebLinkAbout97-06064
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VICTORIA A. HUGEL and
CHRISTOPHER HUGEL.
PlaintitTs
IN TIlE COIJRT OF COMMON PLEAS
CUMBERLAND COUNTY.
PENNSYL VANIA
v.
CIVIL ACTION. LA W
DORIS M. HENRY.
NO. 1997-6064
Defendant
JURY TRIAL DEMANDED
TO: PROTHONOTARY
ENTRY OF APPEARANCE
Please enter the appearance of Hartman & Miller. P.C. on behalf of Defendant, Doris M.
Henry, in regard to the above-captioned action.
Respectfully submitted.
HARTMAN & MILLER. P.C.
By:, ~
Ja M. Hartman. Esquire
Supreme Ct. 1.0. #21902
126-128 Walnut Street
Harrisburg. P A 17101
(717) 232-3046
Attorneys for Defendant. Doris M. Henry
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VICTORIA A. BUGEL and
CHRISTOPHER BUGEL.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
CIVIL ACTION. LAW
v.
NO. 1997-6064
DORIS M. HENRY,
Defendant
JURY TRIAL DEMANDED
ORDER
AND NOW, this _ day of
, 1998, upon consideration of the Motion in
Limine of Defendant, Doris M. Henry, it is hereby ORDERED that said Motion is GRANTED.
Plaintiffs are precluded from making any mention, directly or indirectly, in any manner whatsoever,
during, opening statements, examination of witnesses, objections. closing arguments. or otherwise, of
the fact that Plaintiff, Victoria A. Bugel, allegedly became pregnant subsequent to the automobile
accident in question and suffered a miscarriage, or that she should not pregnant at this time because
has injuries would cause her difficulties.
J.
VICTORIA A. BUGEL and
CHRISTOPHER BUGEL,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNS YL VANIA
Plaintiffs
CIVIL ACTION - LAW
v.
NO. 1997,6064
DORIS M. HENRY,
Defendant
JURY TRIAL DEMANDED
MQIjON IN UMINE OF DEFENDANT. DORIS M. HENRY
Defendant, Doris M. Henry, by and through her attorneys. Hartman & Miller. P.C.,
respectfully requests that this Honorable Court make the following evidentiary determinations in
l.i.miJll: to the effect that Plaintiffs, their counsel, representatives, and witnesses, be instructed to
refrain from making any mention, directly or indirectly, in any manner whatsoever, during opening
statements, examination of witnesses, objections, closing arguments, or otherwise, of the fact that
Plaintiff, Victoria A. Bugel, allegedly became pregnant subsequent to the automobile accident in
question and suffered a miscarriage, or that she should not get pregnant at this time because her
injuries would allegedly cause her ditliculties.
I. Plaintiffs' claim is based upon injuries allegedly suffered by Victoria A. Bugel as a
result ofan automobile collision with Defendant.
2. Specifically, Plaintiffs allege that Mrs. Bugel suffered "injuries to the bones, muscles.
tissues, and ligaments of her right foot, injuries to her knees, right ankle, and face, headaches, [and]
shock and injury to the nerves and nervous system," It is further alleged that Mrs. Bugel has been,
ard may continue to be in the future, unable to attend to her usual habits, customs, vocation. and
enjoyment of life; has been in the past, and may continue to be in the future. required to undergo
medical treatment and procedures; has been in the past, and may continue to be in the future, required
to spend great sums of money for medicaltrcatment and procedures as a result of her injuries; and has
been unable to engage in her occupation and. therefore, has in the past and may in the future. continue
to suffer a loss ofincome and/or loss ofeaming capacity. (Complaint, paragraphs 10-14.)
3. Mrs. Bugeltestified at her deposition, taken on January 30, 1998, that she was
pregnant in June of 1997, subs:quentto the automobile accident, but had a miscarriage. (Victoria
Bugei's deposition, p. 42-44.) The originallranscript of Victoria Bugel's deposition is being
submitted to the Court herewith.
4. Mrs. Bugel stated that she did not know that she was pregnant, and was taking an
"extreme amount" of over,the-counter pain medication at that time. She further testified. however,
that her doctors could not tell her whether she had the miscarriage because she was taking the pain
pills, or for some other reason. (Victoria Bugel's deposition, p. 42-44.)
5. Mrs. Bugel further testified that Dr. Mira has suggested that she wait to get pregnant
again, because her foot would cause her more pain, and she would have to stop taking her pain
medication. (Victoria Bugel's deposition, p. 42,44.)
6. Nowhere in the Complaint, however, do Plaintiffs Eet forth a claim related to the
alleged prior miscarriage, nor the recommendation that they not have children at this time.
7. Additionally, there is no evidence in Victoria Bugel's medical records that she became
pregnant sometime subsequent to the accident and had a miscarriage, or that she even discussed the
possibility of having children with her physicians, nor did Plaintiffs' expert. Dr. Mira. testify
regarding the issue of pregnancy at his videotape deposition taken for use at trial.
8. Plaintiffs' counsel, Lisa Mauer. Esquire. stated at the Pretrial Conference in this matter
that Plaintiffs' expert would not testify as to the issue of pregnancy, but that Plaintiff Victoria Bugel
2
would testify that she believes that she would have difficulties if she was to get pregnant at this time.
9. Any and all testimony regarding the assertion that Mrs. Bugel became pregnant and
had a miscarriage subsequent to the automobile accident. or that Mrs. Bugel should not get pregnant
at this time because she would have difficulties related to the injuries allegedly suffered as a result of
the automobile accident, should be excluded at trial because it is irrelevant. is not supported by
medical evidence, and is based upon hearsay. Furthennore. the probative value of such testimony is
substantially outweighed by its prejudicial effect.
WHEREFORE, Defendant, Doris M. Henry, respectfully requests that this Honorable Court
enter an Order precluding Plaintiffs, their counsel. representatives, and witnesses, from making any
mention. directly or indirectly, during opening statements. examination of witnesses. objections,
closing arguments, or otherwise, of the fact that Plaintiff, Victoria A. Bugel. allegedly became
pregnant subsequent to the accident in question and suffered a miscarriage. or that she should not get
pregnant at this time because her alleged injuries would allegedly cause her difficulties.
Respectfully submitted,
HARTMAN & M[LLER. p,c.
Dated:
1/I~lfg
By:
ftA~/ {Y~~
my~. Foerster. Es ire
Supreme Court 1.0. #77986
i26-128 Walnut Street
Harrisburg, PA [7[01
(717) 232-3046
Attomeys for Defendant. Doris M. Henry
3
VICTORIA A. BUGEL and
CHRISTOPHER BUGEL,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYL VANIA
Plaintiffs
v.
CIVIL ACTION - LAW
DORIS M. HENRY,
NO. 1997.6064
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Amy C. Foerster, Esquire, hereby certify that I am this day serving a copy of the
foregoing document upon the person(s) and in the manner indicated below, which service
satisfies the requirements oflhe Pennsylvania Rules of Civil Procedure, by band delivery, as
follows;
Lisa J. Mauer, Esquire
Graham & Mauer, P.C.
The Commons at Valley Forge
Suite 22, P. O. Box 987
Valley Forge, PA 19482
(Counsel 10 Plaintiffs)
Dated: W4l~
HARTMAN & MILLER. P.C.
By: J!;1/ tlrJt-
Am~~joerste~
Supreme Court 1.0. #77986
126-128 Walnut Street
Harrisburg, PA 17101
(717) 232-3046
Attorneys for DefenddJIt, Doris M. Henry
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GRAHAM & MAUER, P.c.
BY: LISA J. MAUER, ESQUIRE
Anomey 1.0. 65426
The Commons at Valley Forge
Suite 72, P.O. Box 987
VaHey Forge, Pennsylvania 19482
(610) 933-3333
Allomey for Plaintiffs
VICTORIA A. BUGEL and
CHRISTOPHER BUGEL, as husband and wife,
Plaintiffs
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Docket No: 97-6064
vs.
DORIS M. HENRY,
Defendant
JURY TRIAL DEMANDED
PLAINTIFFS' PROPOSED JURY INSTRUCTIONS
,.-~
Pennsylvania Suggested Standard Civil Jury Instructions
2.05 Deposition Testimony
3.50 Verdict Direct Directing Summary
5.50 Burden of Proof
6.00 Damages
6.01 Injuries to Adult Not Resulting in Death
6.010 Future Loss of Earnings and Lost Earning Capacity
6.01E Past Pain and Suffering
6.01F Future Pain and Suffering
6.011 Enjoyment of Life
6.01K Incidental Costs
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6.01 L Loss of Consortium
6.21 Damages. Life Expectancy 53.5 years
Respectfully submitted,
GRAHAM & MAUER. P.C.
By:
Dated: September 14, 1998
"..
...)
PRAECIPE FOR USTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please listth~ following case:
(X) for JURY trial at the nexttenn of civil coun
() for trial without a jury.
CAPTION OF CASE
(entire caption must be stated in full)
(check one)
VICTORIA A. BUGEL and
CHRISTOPHER BUGEL,
as husband and wife, Plaintiffs
(X) Civil Action - Law
( ) Appeal from Arbitration
vs.
( )
DORIS M. HENRY, Defendant
(other)
The trial list will be called on August 18, 1998.
Trials commence on September 14. 1998.
Pretrials will be held on August 26, 1998.
(Briefs are due S days before pretrials.)
(The party listing this case for trial shall provide
forthwith a copy of the praecipe to all counsel,
pursuant to local Rule 214.1.)
No: 97-6064 Civil Tenn, 1998
Indicate the allomey who will try case for the party who files this praecipe:
Lisa J. Mauer. The Commons at Vallev Forl!e. Suite 22. P.O. Box 987. Vallev Fori!e. PA 19482
Indicate trial counsel for other parties if known: Amv Foerster & Jack Hartman. Hartman. &
Miller. P.C.. One Kevstone Plaza. Suite 107. Front and Market Streets. Harrisbur~. PA 17101
This case is ready for trial.
r )
Date: July 16, 1998
.
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 1997-~6064 P
CO~~ONWEALTH OF PENNSYLVANIA,
COUNTY OF CU~BERLAND
BUGEL VICTORIA A ET AL
VS.
HENRY DORIS ~
R, Thomas Kline . Sheriff, who being duly .worn according
to law, says, that he made a diligent search and inquiry for the within
named defendant, to witl HENRY DORIS"
but was unable to locate
Her
in his bailiwick. He therefore
deputized the sheriff of YORK COUNTY
to serve the within CO~PLAINT
County, Pennsylvania.
On December
8th. 1997
. this office was in
receipt of
Pennsylvania,
the attached return from
YORK COUNTY
County,
Sheriff's Costs:
Docketing
Out of County
SurcharBe
YORK CO NTY
So answers:
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R. ' homaa' K11ne, Sher t
18.00
9.00
2.00
21. 24
S50.~4 CORCHIN GRAHA" ROSATO & MAUER
12/08/1997
Sworn and subscribed to before me
this I ~ day of ~<.,.. l L-
19 ')1 A. D.
~~L-. C. ~ $fi
J prothonotar')I
GRAHAM & MAUER, p.e.
AnolUllnl-4f.LAw
TIll: CONNON'''T \',ULlY fOIG.
sum U. P.O. 110.917
V.w.n 'oacr. PA 194IJ
RONALD Ill. G&AlIA..
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August 21, 1998
The Honorablo Kevin A. Hess
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
Re: BUllel v. Henry: Docket No. 97-6064
Dear Judge Hess:
I am in receipt of the Rule to Show Cause in the above referenced matter scheduling oral
argument for September 3, 1998. As of the date of this letter, Plaintiffs' Response to Motion of
Defendant. Doris M. Henrv. to Compel PlaintiffYictoria A. BUllel's Attendance at an Indeoendent
Medical Examination. with Travel and LodlliOl! EXDenses to be Paid bv Plaintiffs is being filed with
the Court.
I am a partner of a two lawyer finn and we are both attached for mediation of Reeve v.
Tuthill COrD" (No. 3:CY -97-1591) in the U.S. District Court for the Middle District of Pennsylvania
in Scranton on September 3, 1998. As a result, no one from my finn will be a'lailable on behalf of
the Plaintiff at the September 301 oral argument in Cumberland County.
Therefore. I respectfully request that either this discovery motion be decided solely on the
basis of the written motion and response thereto or that the Court reschedule oral argument on this
issue. In light of the fact that this case is on the September trial list and scheduled for a pretrial
conference on August 26, 1998. it might be a benefit to both parties if the motion was decided on
the papers.
Thank you for your assistance.
Sincerely,
~'~l( C iJ)cc:=0
( /,-~~f / !
-' LISA 1. M~UER
LJM:mlm
cc: Amy C. Foerster, Esquire
)L\
HARTMAN & MILLER, P.c. ATTORNEYS AT LAW
126 .12K WA'NVISI"'H. f1A"""'"'"".!'A 17101' Tf.lfI'HllNf(717) 232.)().I6' W.m.'SEXTFNSkJN 103
fAlSIMII f (717) 2J2-.15.18 . EMAJI H,M@pdOnhnl.'.cllm
IAtk M. f1A"'MAN
DAVID C MUlfll
MHJNIM S. SHO()I~
KfVIN E. OsUllKNE
DKtiW P. GANNON
AMY C. FOF.",,'Tf"
OUVf" C. OV'.,ANUEJlIII
T AlIA A. MUClfA
August 20. 1998
llANO DELIVERED
Richard J. Pierce. Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle. PA i7013
RE: Victoria A. BUllel and Christopher BUllet v. Doris M. Hen~
Cumberland County No. 1997-6064
Dear Mr. Pierce:
Enclosed for filing. please find the Pretrial Memorandum of Defendant. Doris M. Henry. in
the above-referenced action.
Thank you for your assistance with regard to this mailer. Please do not hesitate to contact
me if you have any questions.
Sincerely.
b/!1f~
ACF:nlb
Enclosures
ee: Lisa J. Mauer, Esquire (w/enelosure)
Susan Philson (#0101.7026-4270) (wI enclosure)
Big Spring School Di~trjct
45 Mount Rock Ro~d
Newville, PA 17241-9466
Fax, (717) 776-4428
Phone Ii (717) 776-2000
FACSIMILE COVER SHEET
This messaae is belns sent to-~/"L6~', (}k~
, (company name)
at facsilllil., .;:Jl;'o'&'</G'~_,
Please forward to
(nam. and title)
This cover is page 1 of~--poges being sent by I)" tJ"''l-L Cc..c.cl t lL
(name)
.-..--
BIG SPRING SOlOOL DISTRICT
If the facsimile message ~hich you received is not clear or you do not receive the
number of pages specified above, please call the sender at (717) 772-2000.
The information contained in this tr6nsmission is
privileged and confidential. It is intended for the use
of the individual or ent i ty name above. If the reader of
the message is not the intended addressee, the reader is
hereby notified that any consideration, dissemination, or
duplication of this communication is strictly prohibited.
If the addressee has received this communication in
error, please return this transmission to us at the above
address by mail. We will reimburse you for the postage.
The Big Spring School Oistriet is an equal opportunity education institution and
will not discriminate on the basis of race, color, national origin, sex, age, and
handicap in its activities, programs, or employment practices as required by Title
VI, Title IX, and Section 504.
NEWVIllE, PENNSYLVANIA 17241-9466
PllmiE (717) 776-2000
< TRANSACTION REPORT )
U':J -15-1 ::bo' f!_t.. I/'J: ,:.J
[ RECEIVE ]
NO.
818S
DATE Tltt:
9-IS 09:22
DESTI'lATION STATION
7177764428
PO. CU'ATION tlOC.E
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VICTORIA A. BUGEL and
CHRISTOPHER BUGEL,
IN nlE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Plainti ITs
v.
NO, 1997-6064
DORIS M. HENRY,
Defendant
JURY TRIAL DEMANDED
RUI.E TO SHOW CAUSE
TO:
Victoria A. Bugel and Christopher Bugel, PlaintilTs
c/o Lisa J. Mauer, Esquire
Graham & Mauer, P.C.
The Commons at Valley F'lrge, Suite 22
P.O. Box 987
Valley Forge, PA 19482
'II-
is hereby issued upon Plaintiffs, Victoria A. Bugcl and Christopher Bugel, to show what cause, if any,
they have to list the above-captioned case for the trial tern1 commencing on September 14. 1998, in
light of the outstanding discovery dispule.
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This Rule is returnable 8R
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Copies 10:
J.
Lisa 1. Mauer, [squire
Graham & Mauer. p,c.
lbe Commons al Valley Forge. Suite 22
P.O. nox 987
Valley Forge. PA 19482
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Amy C. Foersler, Esquire
Hartman & Miller. P.C,
126- I 28 Walnut Streel
Harrisburg. PA 17101
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6. The tiling of this l'raecipe was premature, as there is an outstanding discovery dispute
between the purties for which Defendant is seeking Court intervention to resolve.
7. Plaintiff Victoria A. Bugel alleges in her Complaint that as a result of the injuries
suffered in the motor vehicle accident, she has been unable to attend to her usual habits, customs,
vocation and enjoyment of life; has been in the past, and may continue 10 be in the future, required to
undergo medical treatments and procedures; has been in the past, and may continue to be in the
fUlure. required to spend great sums of money for medical treatments and procedures as a result of her
injuries; has been unable to engage in her occupation; and has in the past. and may in the future.
continue to suffer a loss of income and/or loss of earning capacity.
8. In her Answers to Defendant's Interrogatories, Plaintifi Victoria A. Bugel stated that
the fractured foot which she suffered in the accident has caused her to be disabled and unable to
resume many activities of daily living from the date of the accidcnt to the present. Plaintiff detailed
many alleged examples of how her fractured foot has affected her home and family responsibilities
and recreational activities. Plaintiff further stated that there is a possibility that she would have to
undergo surgery on her right foot in April or May of 1998.
9. In her deposition taken on January 30. 1998, Plaintiff Victoria A. Bugel discussed in
detail the ways in which her allegedly injured foot has affected her life.
10. Plaintiff Victoria A. Bugel has been treating with Allan J. Mira. M.D.. in Carlisle.
Pennsylvania, for her fractured foot since November 18. 1996.
II. Plaintiff Victoria A. Bugel's most recent office visit with Dr. Mira occurred on
January 29, 1998.
12. In his office notes for the January 29. 1998, examination. Dr. Mira noled that Plaintiff
2
continued to have pain. Dr. Mira recommended that "at this point in time it's going to last longer,
although I can't predict exactly how long. It could be that she permanently will have symptoms or it
may be gone in a couple years," Dr. Mira specifically noted that he had told PlaintiITthat he would
not recommend surgery at that time.
13. In a lelterto Plaintiffs' counsel dated April 3. 1998. undersigned counsel for
Defendant requested that Plaintiffs' counsel advise as to when Victoria A. Bugel would be available
to present herself for an independent medical examination (hereinafter "I.M.E."). A true and correct
copy of the above,referenced letter is attached h~reto as Exhibit "A", and is incorporated herein by
reference.
14. In a letter 10 undersigned counsel dated April 21, 1998, Plaintiffs' counsel indicated
that Victoria A. Bugel. who currently resides in Georgia, would be available for an I.M.E. in
Pennsylvania. assuming that Defendant would pay for her transportation to and from Pennsylvania.
A true and correct copy of the above-referenced lelter is attached hereto as Exhibit "B", and is
incorporated herein by reference.
15. On May I, 1998, undersigned counsellor Defendant and Plaintiffs' counsel had a
telephone conversation discussing which party would be responsible for paying ff)r the transportlltion
and lodging of Plaintiff Victoria A. Bugel should she present for an \.M.E. in Pennsylvania.
16. In lelters to Plaintiffs' counsel dated May 28. 1998. and June 25. 1998, undersigned
counsel for Defendant requested that Plaintiffs' ;ounsel advise as 10 whether or not Victoria A. Bugel
would voluntarily present for an I.M.E. in Pennsylvania. with the understanding following the May 1.
I <)<)8. telephone conversation that "voluntarily present" includes paying for her own transportation to
and from the I.M.E. True and correct copiesofthe above-referenced lelters arc attached hereto as
3
Exhibit "C"'. and are incorpomled herein by reference.
17. In a leller to undersigned counsel dated June 29, 1998. Plaintiffs' counsel indicated
that Vicloria A. Bugel would appear for an I.M.E. in Pennsylvania provided that the costs of
transportation and lodging are paid by Oefendanl. Plaintiffs' counsel further staled that regardless of
undersigned counsel's intent to seek an I.M.E.. she would be listing this mailer for the September trial
term. A true and correct copy of the above,reference leller is allached hereto as Exhibit "0". and is
incorporated herein by reference.
18. In a leller to Plaintiffs' counsel dated July 10. 1998, undersigned counsel for
Defendant indicated that Defendant would be pursuing a Motion to Compel Victoria A. Bugel's
allendance at an I.M.E. in Pennsylvania, with Plaintiffs to pay the costs of travel and lodging.
Undersigned counsel further requested that Plaintiffs' counsel not list this case for the September trial
term, because there is an outstanding discovery dispute. A true and correct copy of the above-
referenced teller is allached hereto as Exhibit "E", and is incorporated herein by reference.
19. Despite the above-reference request, on July 20, 1998, undersigned counsel for
Defendant received Plaintiffs' Praecipe for Listing Case for Trial in September of 1998.
20. Pursuant to Pa. R.C.P. 4010 (a), an Order compelling an individual to submit to an
Independent Medical Examination may be made only on motion for good ceuse shown and upon
notice to the person to be examined and to all parties and shall specii)' the time. place, manner,
condItions and scope of the examination and the person or persons by whom it is to be made.
21. A party must. therefore. identify the physician who will conduct the I.M.E. before
seeking the appropriate Order.
22. On July 22. 1998. undersigned counsel received confirmation from a physician willing
4
10 conduct an I.M.E. of PlaintilI Undersigned counsel had been in Ihe process of identifying such a
physician throughout the time period during which she had been having discussions with Plaintiffs'
counsel regarding the I.M.E.
23. Defendant now intends to seek an Order compelling Plaintiffs' attendance at an I.M.E.
24. Cumberland County Local Rule No. 213-2 provides as follows:
At the call of the trial list. counsel for all parties shall indicate that discovery
has been completed. that all pretrial actions have been taken. and that the case
is ready for trial in all respects. Any case not ready for trial in all respects
shall, at the option of the Court, be placed at the foot of the list or stricken from
it.
25. Due to the above-stated discovery dispute. the within action is not "ready for trial in all
respects".
26. Plaintiff Victoria A. Bugel should not be allowed to avoid subjecting herself to an
I.M.E. by listing this matter for trial prematurely.
WHEREFORE, Defendant. Doris M. Henry, respectfully requests that this Honorable Court
grant her Motion in Opposition to Plaintiffs' Praecipe for Listing Case for Trial, and strike this matter
from the September 1998 Trial List.
Respectfully submitted.
Dated:
-1/r7iIf{cr
By:
Am C. Foerster, Esquire
Supreme Court J.D. #77986
126-128 Walnut Street
Harrisburg. PAl 710 I
(717) 232-3046
Attorney for Defendant, Doris M. Henry
5
HARTMAN & MILLb~, r.c. ATTORNEYS AT LAW
I~b . 12.S W,\I.NL"T SrREET, h.\RIHSlJL'KC, Pt\ 171lH . Tu F1'f10Ni: (717) 2.J2.]04n " W,UfcKS nlfNSlnN 10J
I:ALSIMII E (71;') 232.3538. E:.IAfl H.~t~p,hmllncl'\,"
J AC~ M. HARTMAN
DAVlU C. MIl.LER
MELJNDA S. SHLXJP
KEVIN E. OsBORNE
DREW P. GANNON
AMY C. FOERSTER
OUVER C. OvERLANDER III
TARA A. ML'CHA
" ''''C:.,;>,(,!\ ny
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April 3, 1998
Lisa J. Mauer. Esquire
Graham & Mauer, P.C.
The Commons at Valley Forge. Suite 22
P. O. Box 987
Valley Forge. PA 19.\82
Re: Victoria A. Bugel and Christopher Bugel \'. Doris 1\1. Henry
Cumberland Count}' No. 1997-6064
Dear Lisa:
This letter is in response to your lelephone conversation with Jack Hartman. Esquire. on
March 20. 1998, in which YOll made a demand on behalf of your clients. Victoria and
Christopher Bugel. ofS 130.000.00 to settle the above,referenced matter. II is my understanding
lhatlhis demand is based, at least in part. on Mrs. Hugel's mosl recent medical records. which
you contcnd reflecI a "pemanent injury". The most recent medical records in our possession are
from Mrs. Bugel's 1/2')/98 office visit with Dr Mira. In his recommendations, Dr. Mira
recorded "I told her that at this point in time iI's going to last longer, although I can'l predict
exactly how long. It could be thaI she permanently will have symploms or it may be gone in a
couple years." Dr. Mira is clearly unable to predict the course of l\.lrs. Bugel's alleged symploms
allhis lime. and is unable 10 say when and ifher symptoms will completely resolve. Dr. Mira's
uncertainty. however, does not constitule a diagnosis of a "pemlanent injury".
Prior to our representation in Ihis lawsuit, you made a demand 10 Susan Philson, by letter
daled March 19, 1997. for S42.500.00 to settle this matter, By letter dated April 29, 1997,
however, you withdrew this offer, because Mrs. Bugel allegedly had a "relapse", and may need
surgery. It is clear that Dr. Mira dnes not recommend surgery al this time, and I see no evidence
in the medical records substantiating the original demand of $.\2.500.00. or Ihe increase to
$ 130,000.00. In any event, 1 have been instructed by Erie 10 rejecI your offer of settlement for
5 I JO.OOO.OO, and have been authorized to make a counteroffer of $ 12.000.00 for Ihe settlement
of both Mr. and Mrs. Bugel's claims.
Please diseuss this counteroffer with your clients and respond by April 30. 1998.
Additionally. should your c1ienls choose to rejeetlhis offer. please advise me as to when Mrs.
L"" J. Mallcr. EsqUlrc
-2.
Apnl 3. 1998
Bugcl will be available to present herself for an independent medical examination in
Pennsylvania. [n the meantime, please do not hesitate to contact me if you have any questions or
wish to discuss this mailer further.
Very truly yours,
f!:1.!:.~
ACF/drw
cc: Susan Philson
(Eric Claim 110101-7026-4270)
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AUI&i ........... Of '4- ""'In W
April 21, 1998
Amy Foeraler, Esquire
Har\lJ\an, & Miller, p,e.
One Keystone Plaza, Suite 107
Front and Market Streets
Harrisburg, PA 17101
Re: Vlelorla Buul v. HeDrY
Dear Amy:
( have spoken 10 my client. Vicloria Bugel, regarding your requesl for a defense medical
exanunation in Pennsylvania. She will be available for that exammation any day between now and
May 29. However, she dots need some advance notice in order 10 make child care aTTa.ll.gem~"ts.
I assume that Erie Insurance IS paying for Mrs. Buge!'s transportation to and from rennsylvllnia.
Mr,;. Bugel would prefer to have me presenl during the examination but I am on the
Cumberland County trial list for the week of May 18. Therefore. 1 would appreciate it if you would
ask your doctor for sevenl possible dates and let me know as soon as poSSible. 1 Will speak 10 Mrs.
Bugel and get hack to you right away.
Sincerely,
,I
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,/J<.k4- i I /(~ II~' ./
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LISA J. MAIlfI::.R
HARTMAN & M1LLB., e.c. An(lRNEYS AT LAW
12h. 12ti W AL'Ol.'T SrREE1. H,\fUUSUUKI;, Pr\ 1711H . Tn Hill \~F (717) 1.l~.3tql1 . WHrnR'i EX HN'ill)N 103
FACSIMILE (717) 232.3538 . Eto.tAu. ~t.Miilp.'"nlmC' (om .
J^CK M. H^RThI"'''
D^VlO C. ~~LLf.R
MEllND^ S. SHOlJr
KEVIN E. 0580RNE
DREW P. CANNDN
AMY C. FOERSTER
OUVER C. OV1;RUNDElIIII
T^""A. ML'CHA
COpy
May 28, 1998
Lisa J. Mauer, Esquire
Graham & Mauer, P.C.
The Commons at Valley Forge, Suite 22
P. O. Box 987
Valley Forge. PA 190182
Re: Victoria A. Bugel nnd Christopher Bugel \'. Doris M. Henry
Cumberland County No. 1997-6064
Dear Lisa:
In follow-up to our telephone conversation on May I, 1998, please advise within ten (10)
days as to whethe,' Mrs. Bugel will voluntarily present herself for an J.M.E. in Pennsylvania, or
whether 1 will have to pursue a Motion to Compel her attendance. We will, of course, be willing
to work with her in the scheduling of the I.M.E.. so that she can make the appropriate child care
arrangements, etc.
Thank you for your anticipated cooperation with regard to this mailer. Please do not
hesitate to contact me if you have any questions.
~
Amy C. Foerster
ACF/drw
cc: Susan Philson
(Erie Claim 110101-7026-4270)
HARTMAN & MILLER, P.c. AnORNE'r'S AT LAW
I:!h' 12~ \VAl ~CT SrMU:r. H.'~RlSUl:R~;, PA 17lIJ1 . TnEPtlONE (717) 2J:!.30-Ih. WHrnRSf\f[:-,slllS IU)
F,.CSI.\.IIl.f. (717) 2J2.JS3li. EMAll H.M~p.1Unllnt!,cum
'.\CK M HARTMAN
DAVllJ C. ~Ol.lER
MWNlJ"S.SIl"",'
KEVIN E. ();IIORNE
DREW P. GANNON
AMY C. FOEIlSTEM
OI.lVEM C. OVEMLoINDER III
T AMA A. Ml<:t1A
June 25, 1998
COpy
Lisa J. Mauer. Esquire
Graham & Mauer. P.c.
The Commons at Vallq Forge. Suite 22
P. O. Box 987
Valley Forge. PA 19-182
Re: Victoria A. Bugel aOlI Christopher Bugel \'. Doris 1\1. Henl")'
Cumherl:md Count)' ilio. \997-606-1
Dear Lisa:
I am writing in follow-up to my letter to you dated May 28. 1998. regarding the
scheduling of an I.M.E. in this matter. Please advise 'ne within ten (10) days as to whether or not
Mrs. Bugcl will voluntarily present herself for an I.M.E. in Pennsylvania. If I do not hear from
you within that time. I will pursue a ~lotiolllO Compel Plaintiff to suhmitlo a physical
examination pursuant to Pa. R.C.P. -1010.
V~;;T(;eiir
Amy Y Foerster
ACF/jas
cc: Susan Philson
(Eric Claim 11010\-7026,4270)
Amy Foerster, Esquire
June 29, 1998
Page 2 of2
Regardless of your decision about Mrs. Bugel's I.M.E.. I intend to certifY this case for the
September trial term and I will forward my expert report prior to certification.
Sincerely,
,
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VICTORIA A. BUGEL and
CHRISTOPHER BUGEL,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
CIVIL ACTION - LA W
v.
NO. 1997-6064
DORIS M. HENRY,
Defendant
JURY TRIAL DEMANDED
MOTION OF DEFENDANT. DORIS M. HENRY. TO COMPEl. PLAINTIFF
VICTORIA A. BUGEL'S ATTENDANCE AT AN INDEPENDENT MEDICAL
EXAMINATION. WITH TRAVEL AND tODGING EXPENSES TO BE PAID BY
PLAINTIFFS
AND NOW, comes the Defendant. Doris M. Henry, by and through her attorneys, Hartman &
Miller. P.C., and submits the within Motion to Compel Plaintiff Victoria A. Bugel's Attendance at an
Independent Medical Examination (hereinafter "I.M.E."), with travel and lodging expenses to be paid
by Plaintiffs, and in support thereof avers as follows:
I. 1\1 response to Defendant's Motion in Opposition to Plaintiffs' Praecipe listing this
case for trial, filed on or about July 29. 1998, the Honorable Kevin A. Hess has issued a Rule upon
Plaintiffs in the above-captioned matter, which is returnable August 26, 1998, to show cause as to
why this mailer should be listed for the September 1998 trial term.
2. Plaintiffs, Victoria A. Bugel and Christopher Bugel, initiated the above-captioned
personal injury action by the filing of a Complaint on or about October 31. 1997. (The only physical
injuries claimed in the within action are those alleged to have been suffered by Victoria A. Bugel.
Any reference to "Plaintiff' in the within Motion. therefore, shall mean Plaintiff Victoria A. Bugel.)
3. On September 29, 1996, Plaintiff was a passenger in a vehicle which collided with a
vehicle being driven by Defendant
,
4. Defendant has stipulated to liability in this matter, but has in no way stipulated to any
damages alleged to have been suffered by Plainti ff.
5. Plaintiff alleges that as a result of this accident, she suffered "injuries to the bones,
muscles. tissues and ligaments of her right foot, injuries to her knees. right ankle and face. headaches,
shock and injury to the nerves and nervous system." (Complaint,,1 0.) A true and correct copy of
Plaintiffs' Complaint is attaehed hereto as Exhibit "I", and is incorporated herein by reference.
6. Plaintiff further alleges that as a result of these injuries, she "has been, and may
continue to be in the future, unable to attend to her usual habits, customs, vocation and enjoyment of
life."; "has been in the past, and may continue to be in the future, required to undergo medical
treatments and procedures"; "has been in the past, and may continue to be in the future, required to
spend great sums of money for medical treatments and procedures as a result of her injuries"; and
"has been unable to engage in her occupation and therefore, has in the past and may in the future
continue to suffer a loss of income and/or loss ofeaming capacity." (Complaint,' 11-14.)
7. At her deposition, taken on January 30, 1998, Plaintiff testified that she apparently hit
her knee on the automobile's dashboard during the accident, causing bruising and swelling. She
testified that it took about two months for this injury to resolve, but that she still has "flare-ups".
(Plaintiffs Deposition, p. 19.) True and correct copies of the pages from Plaintiffs deposition
transcript which are referred to in this Motion are attached hereto as Exhibit "2", and are incorporated
hcrein by rcference.
8. Plaintiff further testified that as a result of the fractures to her right foot which she
2
"
or exercise as much as shc would like to. I told her that I still would not
recommend surgcry with debridement or fusion as it may not make her
any better and it could make her worse. I suggest that she should give it
at least another year, but if it is intolerable and she is forced to do
something, we might consider surgical debridcment with fusion. I
would like to see her in follow-up in 9 to 15 months when she can
arrange it back up here.
A true and correct copy of this office note is attached hercto as Exhibit "3", and is incorporated herein
by reference.
15. Plaintiffs' counsel has provided undersigned counsel with an expert report authored by
Dr. Mira, dated July 6,1998, which was rendered without Dr. Mira examining Plaintiff again
subsequent to January 29, 1998.
16. In his report, Dr. Mira opines as follows:
Since the patient's condition has not respond cd at this point in
time, more than 16 months after the original injury, she has a permanent
condition as described as above which will deteriorate very slowly with
time. This impairment is disabling to her in that she cannot optimally
perform the duties of her household chores and the things she would
like to do recreationally and for physical conditioning. In addition, she
had been a waitress in the past and I cannot see her performing such a
job for any substantial number of hours as a result of this injury.
A true and correct copy of Dr. Mira's report is attached hereto as Exhibit "4", and is incorporated
herein by reference.
17. Pennsylvania Rule of Civil Procedure No. 4010, regarding physical examinations of
parties, provides as follows:
When the mental or physieal condition. . . of a party. . . is in
controversy, the Court in which the action is pending may order the
party to submit to a physical or mental examination by a physician. . ..
4
!
The order may bc made only on Motion for good cause shown and upon
notice to the person to be examined and to all parties and shall specify
the time, place, manner, condition and scope of the examination and the
person or persons by whom it is to be made.
IS. Plaintiffs physical condition is clearly "in controversy" in this lawsuit.
19. An l.M.E. is necessary for Defendant to further evaluate and defend against Plaintiffs
claims of injury.
20. Additionally, there is an inconsistency between Dr. Mira's office notes and report, and
Defendant is entitled to have Plaintiff undergo and I.M,E. in an attempt to clarify this inconsisteney.
2\. Defendant now seeks an Order compelling Plaintiff to undergo an l.M.E. to be
conducted by Robert P. Lonergan, M.D., at 207 House Avenue, Suite 105, Camp Hill, Pennsylvania
17011, with travel and lodging expenses to be paid by Plaintiffs. The I.M.E. is currently scheduled
for October 2S, 1998, at 3:00 p.m.
22. The scope of the examination will include examination of Plaintiffs right foot and
knee, and, if deemed necessary by the examining physician, the taking of x-rays and other diagnostic
studies.
23. The only individuals to be present at the l.M.E. are Plaintiff, Dr. Lonergan, and any
necessary members of Dr. Lonergan's office staff.
24. The correspondence discussed below and attached hereto indicates that Plaintiffis
willing to undergo an I.M.E., provided that either (1) Defendant's insurance company pays for
Plaintiffs travel and lodging expenses, or (2) Defendant chooses a physician closer to Plaintiffs
home to conduct the I.M.E. In a telephone conversation on July 30, 1998, Plaintiffs' counsel
5
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. ..rG " -~
Clll1timled that Plaintiff is willing to undergo an l.M.E., provided one oflhe above conditions is not
met.
25. By leller to Plaintiffs' counscl dated April 3, 1998, undcrsigned counsel for Defendanl
reljuestcd that Plainliffundergo an l.M.E. A true and correcl copy oflhis letter is attached hereto as
Exhibit "5", and is incorporated hcrein by reference.
26. In a letter to undcrsigned counsel dated April 21. 1998, Plaintiffs' counsel indicated
that Plaintiff would he available for an l.M.E. prior to May 29, 1998, assuming that Defendant's
insurance company is willing to pay transportation between Georgia and Pennsylvania. A true and
correct copy of the above-referenced letter is allached hereto as Exhibit "6" and is incorporated herein
by reference.
27. In a letter to Plaintiffs' counsel dated April 28, 1998, undersigned counsel made
reference to a telephone conversation between counsel on April 23, 1998, during which they
discussed which party should be required to pay for Plaintiffs traveling cxpenses. A true and correct
copy of the above-referenced lettcr is all ached hereto as Exhibit "7", and is incorporated herein by
reference.
28. On May I, 1998, undersigncd counsel for Defcndant had an additional telephone
conversation with Plaintiffs' counsel regarding which party should be responsible lor payment of
Plaintiffs travel and lodging expenses. During this conversation, Plaintiffs' counsel indicated that
she would contact undersigned counsel again after discussing the issue with her clients.
29. By letters to Plaintiffs' counsel dated May 28, 1998, and June 25, 1998, undersigned
6
'"
counsel stated that if Plaintiffs' counscl did not infoml hcr whether or not PlaintiffwGuld voluntarily
prcsent for the l.M,E. in Pennsylvania, with the implicd understanding that "voluntarily" includes
paying for her own travel and lodging expcnscs, Defendant would pursue a Motion to Compel
Plaintiffs Attendance at such an l.M,E, Truc and correct copies of the ubovc-refcrenccd Ictters are
hcrcto as Exhibit "8", and are incorporated herein by refercnce.
30. By leller to undcrsigned counsel dated June 29, 1998, Plaintiffs counsel stated that
Plaintiff would attend thc l.M.E. in Pennsylvania only if Defcndant's insurance company pays for
her transportation and hotel expenses. In attempted support of her position, Plaintiffs' counsel noted
that Plaintiffs had already incurred the expense of driving to Pennsylvania for their dcpositions, for
which Defendant's insurance company allegedly should have paid half of the travel expenses. A true
and correct copy of the above-referenced leller is allached hereto as Exhibit "9", and is incorporated
herein by reference.
31. To the contrary, Plaintiffs' depositions, hcld on January 30, 1998, were scheduled by
Plaintiffs' counsel to coincide with Victoria Bugel's January 29, 1998, appointment with Dr. Mira.
Plaintiffs did not, therefore, have to make a spccialtrip to Pennsylvania for their depositions. S.I:ll
Dccembcr 22, 1997, letter from Plaintiffs' counsel to undcrsigned counsel, a true and eorrect copy of
whieh is allached hereto as Exhibit "10", and is incorporatcd herein by reference,
32. In his January 29, 1998 office note, Dr. Miru indicated that he wants to sec Plaintiff
again in 9 to 15 months, which would be between October 29, 1998, and April 29, 1999. In a letter to
Plaintiffs' counsel dated July 10, 1998, undersigned counsel offered to schedule Plaintiffs l.M.E. to
7
coincide with her trip to Pennsylvania for her ncxt appointment with Dr. Mira. A true and corrcct
copy of the above-referenced letter is allached hereto as Exhibit "II", and is incorporated herein by
reference,
33. It is apparently Plaintiffs position that because Defendant has stipulated to liability in
this maller, Defendant's insurance company should be responsible for paying Plaintiffs travel and
lodging expenses. ~ Exhibit "9".
34. Defendant has in no way stipulated to the existence of the injuries alleged by Plaintiff
as a result of this motor vehicle accident, and, in fact, the existence of these injuries and their effect
on Plaintiffs life form the basis for Plaintiffs outstanding claim.
35. The necessity of the I.M.E. docs not relate to the liability aspcct of this case, but to
damages only.
36. Plaintiff initiated this lawsuit in Cumberland County, Pennsylvania, and chose to
continue pursuing her claim once she moved to Georgia. Plaintiff should not now be allowed to
avoid subjecting herself to an l.M.E. in Cumberland County, Pennsylvania, by refusing to travel to
the I.M.E. ifher expenses are not paid by Defendant.
37. The case cited by Plaintiffs' counsel in support of her position, Berll v Presbyterian-
University Hospital, 128 P.L.!. 9 (1978), is inapplicable to thc case at bar. (~Exhibit "9".) In
Jkn:, the defendant- doctor moved to lIlinois subsequent to his treatment of the plaintiffin
Pittsburgh, The plaintiff later filed a Motion seeking an Ordcr compelling the doctor to appear in
Pittsburgh at his expense for a deposition. Because the deposition would require the doctor, a
8
defendant. to be away from his work for at least one entire day, the Court found that fairness required
that the plaintiff pay for his travcl expenscs.
38. In the case at bar, it is the Plaintiff .-the party who initiated the lawsuit and is sceking
damages -- who moved away from the forum state, not the Defendant as in Ikri. Plaintiff, of course,
had the option of discontinuing her case when she moved, and because she elected to continue
pursuing it, she should not bc heard to complain when required to return to the forum state, in fact
forum county, for an l.M.E. By analogy, Plaintiffs certainly will not expect to have their travel
cxpenses paid for by Dcfendant's insurance company when they retum to Pennsylvania for the trial of
this matter.
39. With regard to the second prong of Plaintiffs ultimatum, that Defendant should be
rcquired to choose a physician nearer to Plaintiffs home, Plaintiffs counsel has offered no support
for the contention that a defcndant is rcquircd to choose a physician to conduct an l.M.E. based upon
thc plaintiffs location when the plaintiff has moved to another state subsequent to initiating the
lawsuit. Defendant certainly should not be required to choose an l.M.E. physician by essentially
picking an orthopedic surgeon out of a Georgia phonc book, knowing anything regarding that
physician's skills, practice, and possible prior relationship and/or knowledge of Plaintiff. Plaintiff
hcrself chose her treating physician and expert witness, whom she travels to Pennsylvania to see, not
by selecting him blindly from a phone book a thousand miles away, but bascd upon the
recommendation ofa neighbor. (Exhibit "2", p. 31-32,)
40. In her letter to undersigned counsel dated April 21, 1998, Plaintiffs' counsel indicatcd
9
that she intends to attend Plaintiffs l.M.E. (Exhibit "6".)
41. Plaintiffs' counsel may not attend the l.M.E. unless she is able to demonstrate that her
presence is warranted. S<< Bewley v. Crouse, 4 D. & C. 4th 535, 537 (C.P. Lancaster 1989).
42. In her leller to undersigned counsel dated June 29, 1998, Plaintiffs' counsel indicated
that regardless of undersigned counsel's plans concerning the outstanding l.M.E. issue, it was her
intention to certify this case tor the September trialterrn. (Exhibit "9".)
43. In her leller to Plaintiffs' counsel dated July 10, 1998, undersigned counsel stated that
certifying this matter for the September trial term would be inappropriate in light of the outstanding
discovery dispute. (Exhibit "1 I".)
44. On July 20, 1998, undersigned counsel received Plaintiffs' Praecipe listing this case
for the September trialterrn.
45. On or about July 29, 1998, undersigned counsel filed with this Court a Motion in
Opposition to Plaintiffs' Praecipe listing this case for tria\.
46. On August 4, 1998, the Honorable Kevin A. Hess issued a Rule upon Plaintiffs, which
is returnable August 26, 1998, to show cause as to why this mailer should be listed for the September
1998 trial term.
WHEREFORE, Defendant, Doris M. Henry, respectfully requests that this Honorable Court
grant her Motion Compelling Plaintiff Victoria A. Bugelto allend an independent medical
examination conducted by Robert P. Lonergan, M.D., outside of the presence of Plaintiffs counsel,
on October 28, 1998, at 3:00 p.m., or, in the alternative, at a time convenient to both Plaintiff and the
10
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,--,'
:. CORCHI~, GRAdAK, ROSATO , KAUER, P.C.
BY: LXSA J. KAUER, ESQUIRB
Attorney 1.0. 65426
The Commons at Valley Forge
suite Seven, P,O. BOX 987
Valley Forge, Pennsylvania 19482
(610) 933-3333
VICTORIA A. BUGEL and CHRISTOPHER
BUGEL, as husband and wife
1124 Pheasant Drive North
Carlisle, PA 17013
Attorney for plaintiffs
COURT or COMMON PLEAS
: CUMBERLAND COUNTY
.
:
:
vs,
DORIS H. HENRY
"1516-continen~al Rd.
'lork, PA 17404
: JURY TRIAL. DEMANDED
.
.
IOTICE TO DEFZND
You have 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 jud~ent 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 TAlU!l THIS PAPER TO YOUR LAWYER AT ONCE. II' yoU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR'TELEPHONE THB OFFICE
SET fORTH BELOW TO PIND OOT WftERE YOU CAN GBT LEGAL HEL~.
Court Administrator
_ CUMBERLAND COUNTY COuRTHOUSE
4th floor, One courthouse square
carlisle, PA 17013
(717) 240-&0100
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'-'
C I Y I L ~ C T I 0 H
COUNT I. - .ZOLIOZ.CS
VICTORIA BUOBL V'I DO~I. H. KEWBY
1, Plaintitts, Victoria Dugel And Chriatopher Bugel, are
adult individuals residing at 11~4 Phea.ant Drive North, Carlisle,
CUmberland County, Pennsylvania.
2, At all times relevant hsreto, Christopher Bugel was the
driver and Victoria Bugel was a pAssenger ot the'1996 Ford Contour
..' .. .
motor vehicle involved in the hereinatt.r mentioned accident,
3, Defendant Doris Henry, here1natter Henry, is an adult
individual residing at 1516 Continental Rc1., York, Pennsylvania and
at all time. relevant hereto was the driver o~ the 1995 Ford motor
vehicle involved in the hereinaftlr mentioned accident.
4, Baltlmore Pike, SROOJ4, is a public thoroughfare in the
lIIunicipality
ot
Dickinson
Township,
cumberland
County,
Pennsylvania, running 9lnerally. in a northerly and southerly
direction.
municipality
ot
Dickinson
Township,
Cumberland
county,
5. Pine School Road is' a public thoroughfare in the
Pennsylvania, running generally in a easterly and westerly
direction.
6. On or about Sunday, Septsmber 29, 1996, at or about 5:26
p,m, Plaintiff Christopher Bugel was driving said motor vehicle
along Baltimore Piks in a northerly direction.
7, At the atorementioned c1ate and time, Defendant Henry was
operating said motor vehicle along Pine School Road in a easterly
direction.
5
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.......;
8. As the plaintiff, Christopher Bugel was proceeding
northbound, Defendant Henry disregarded a stop sign, causing her
motor vehicle to collide with Plaintiffs' vehicle.
9. Defendant, Henry was negliqent and careless in the
opelation of said motor vehicle for the following reasons which
include:
(a) In operating the vehicle at a high, dangerous and
excessive speed under the circumstances;
(br In failing to have the vehicle under proper control;
Cc) Ir. continuing to operate the vehicle in a direction
towards the plaintiffs' vehicle when its operator saw or in the
exercise of reasonable diligence should have seen that further
operation in that direction would result in a collision;
(d) In that thp. driver was inattentive and failed to
maintain a lookout of the road and the other motor vehicles on the
road;
(e) In failing to operate the brakes in such a manner so
that the vehicle could be stopped in time to avoid the collision;
Cf) In failing to observe the care and caution required
under the circumstances;
(g) In violating the various statutes pertaining to the
operation of motor vehicles on public thoroughfares under the
circumstances including 75 P.S.A. 3323 (b);
ChI In failing to remain stopped at the stop sign
located at the aforesaid intersection until it was safe to proceed;
(i) negligence per se.
~
\.....I
,.....)
10. As a direct and proximate result of Defendant Henry's
negligence and carelessness, and not due to any act or failure to
act on the part of Plaintiffs, Christopher and Victoria Bugel, said
Plaintiff Victoria Bugel suffered grsat pain, traumatic anxiety,
and other injuries, some or all of which may be permanent,
includinq: injuries to the bones, muscles, tissues and ligaments
of her right foot, injuries to her knees, right ankle and face,
headachss, shock and injury to the nerves and nerVous system.
11, As a direct and proximate result of Defendant Henry's
neg11gence .Hld cllrlll..sn.ss, Plaintiff Victoria Bugel has been, and
may continua to be in the future, unable to attend to her usual
habit., customs, vocation and enjoyment of life.
12, As. direct and proximate result of Defendant Henry'S
negligence and carelessness I Plaintiff victoria Bugel has been in
the past, and may continue to be in the future, required to undergo
medical treatments and procedures.
13, As I. direct and proximate result of Defendant Henry's
negligence and carelessness, Plaintiff Victoria Bugel has been in
the past, and may continue to be in the future, required to spend
great sums of money for medical treatm~nts. and pr~cedures ~s a
result of har injuries.
14. As a direct and proximate result of Defendant Henry'S
neqliqence and carelessness. Plaintiff Victoria Bugel has been
~nable to engage in her occupation and therefore has in the past
and may in the future continue to suffer a loss of income and/or
loss of earning capacity.
15. plaintiff, Victoria Bugel is entitled to recover damages
1.
ERIE HBG BR.\NCH
v
u
under the full tort option provided by the Motor Vehicle Financial
Responsibility Law, Title 75 Pa.C.B.A. 51705 et. seq.
WHEREFORE, Plaintiff, Victoria Bugel, demands judgment in her
favor an~ against Defendant Henry in a sum of money in excess of
the arbitration limits for Cumberland County.
COUNT II. Loas or CONSORTIUM
CHRISTOPHER BUGEL v. DORIS N, HSNRY
16. The averments of the First Count of this Complaint are
incorp~rated herein and made a part hereof as if the same were set
forth fully at length.
17. Plaintiff, Christopher Bugel, states that at all times
mentioned he is the spouse of the plaintiff, Victoria Bugel,
residing together at the same address.
18. Due to the negligence of Defendant Henry, Plaintiff
Christopher Bugel, has been deprived and may in the future be
deprived of the companionship, support, services and consortium of
his wife.
WHEREFORE, the Plaintiff Christopher Bugel demands judgment in
his favor and against Defendant Henry in an amount of money in
~xcess of the arbitration limits of Cumberland County.
CORCHIJI, GRAJIAH~' ROSATO' JQUER, II.C.
By:
Lisa J. Mau~r. Esquire
Attorney I.D. 65426
The Commons at Valley Forge
suite Seven, P.O. Box 987-23
Valley Forge, Pennsylvania 19482
(610) 933-3333
Attorney for Plaintiffs
o
1
v
-..../
VIlRIPICATIOII
,
I, Christopher Bugel, hereby state that I am the Plaintiff in
this Action and verity that the statements made in the foregoing
docutllent are true and correct to the best of my knowledge,
intormation and belief. I understand that the statements ther.in
are made subject to the penalties ot 18 Pa, c.S. Section 4904
relating to unsworn falsification to authcrities.
... "....
Date: Id~/97
t C
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2
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B
A.
9
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Exam./Foerster - V. Bug~l
a few years. And then it was 210 Sharon Avenue,
Decatur, Alabama. 35601? 35601.
And then we moved to Carlisle. And that
was 1124 Pheasant Drive North, Carlisle, Pa.,
17013.
I noticed that you had listed that you lived in
Decatur from B of '94 to B of '96?
Right.
And in Carlisle from 11/96 to I think it was
10/977
Correct.
What happened to those three months, B to 11 of
'96?
I lived with my mother in North Carolina, in
Murphy, North Carolina. My baby and I did.
Chris came on up to Carlisle to start his new
job, and he was living in a hotel. So, with a
nine month old....
So you didn't live at -- Was it pheasant Drive?
Pheasant Drive North.
-- until 11 of '96?
Right.
I'd like to go through your education for a few
minutes, if I could.
Okay.
nUlls {... .\kllIC,\S U[l'OIUI,\"C SflH'lcr
IIMr,,/,"r..; ;"J;....:!lh.''''!1 llJrl :1:-,~"i.t,..J'S 1'.' ,.sn(J.lll.9Jl7
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EKam./Foerster - V. Buge1
19
the arm bruise or the face bruise?
A. No.
Q. And did either one cause any problems in the
next, whatever it took, two weeks to resolve, as
far as not being able to do something that you
would be able to do normally because of the
bruises?
A. No.
Q. I noted that you had a right knee injury?
A. Yes.
Q. Can you tell me what that was about?
A. That was apparently my knee hit the dashboard,
and so it caused
you can check the doctor's
records, he says exactly what it was -- caused
swelling in my knee.
It bruised my knee and
caused it to swell up as a result of the
accident.
Q. And how long did that take to resolve?
A, Basically, two months, but I still have flare-ups
with it some,
Q. And by "flare-ups," what do you mean?
A. There is still -- Some days, there's some
swelling in it and just pain in it.
Q. Have you received any treatment for your knee?
A. No.
IIUU., 1~\kLUc..: '-..; Utl'f HrUSt; SU~\'ICf
II.lrml...,,{ ;-17.~ 1h.II,,! I \ lirA. ;-":',"-Ij-h."-~ I" I-~'H'.! 11.4)!:"
1
2
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24 Q.
25 A.
Exam./Foerster - V. Bugel
31
because I had to go to North Carolina as a result
of my broken foot -- we were unable to find a
house or anything.
So he -- we rented a
townhouse,
Had your foot healed to the point where you could
care for yourself and the baby when you moved up
here?
No, not at all.
In fact, G.S. Electric let us
borrow one of their office chairs just so I could
roll around in the house some in it to be able to
like cook.
I would prop myself up on that chair
to be able to try to cook a little.
But, no, I
was unable to do any household duties when we
moved up in November.
So you and your baby moved up, because you were
ready to move up here and you wanted to move up
here?
I was missing my husband terribly, and she -- she
wanted her daddy. And I just -- I wanted us to
be together.
So then you were up here in Carlisle, treating
with Dr. Mira?
Yes.
How did you end up seeing Dr. Mira?
He was referred to me. Our neighbors had went
'''-Uh {. \ldU(.,-" 1{f1'ONTI\I; '}I.R\'ICF
1l,.rrI~"U'~ :-, :"-! I"-/lft! I 11"" ;-';".j"'i-,""'i It l , ,.'HI.!1J-'II!:"
1
2 Q.
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Exam./Foerster - v. Bugel
32
to -- Her husband had had a problem and used him.
And I see that he conflrmed your broken foot when
he looked at the x-rays?
Yes.
And I believe he took additional X-rays?
Yes, he did.
What kind of instructions did he give you at that
time, if you recall?
I'm trying to think, at that time,
It was still
basically a nonbearing -- He weaned me slowly off
of my crutches after he took the cast off,
I was
not allowed to run, very little walking could I
do.
He wanted me to gradually try to
It was
build up to be able to use my foot again.
When you got your cast removed, let's use that as
the second time period.
Okay.
Just give me again on a scale of zero to ten,
what kind of pain were you in at that point?
When I tried to put my foot down to walk I
don't know if it was because it had been in a
cast for so many months -- it was excrutiating.
It was like somebody, every time I tried to take
a step, someone had a knife and my foot would go
down on it and the knife would go up into my
1 II.'{b~. .\kl.lIl".b H/l'tlH (1\,; "iIU\"llT
1I.",,~llllr>: ~'~.~h,.jj..?l }",~ .,~.~'i..."'; 1'\ 1.~IIfJ.!ll.'n!.
Exam./Foerster - V. Bugel
52
1
doing -- albeit, I recognize, still with pain
2
you started doing the cooking and cleaning?
3
Yes, varying from day to day, you know.
Cook one
A.
4
day and then clean the next day.
And then, here
5
honey, have a Healthy Choice dinner for supper
6
tonight.
7
Q.
Fair enough.
You had mentioned earlier that you
8
had -- I'm not sure what you called it, but a
9
treadmill of sorts. Did you exercise regularly
10
before your injury?
11
A.
Yes, I was very active before my injury.
I done
12
aerobics.
I played basketball.
I played
13
softball.
I walked -- My girlfriend and I walked
14
for approximately an hour and a half after work
15
every day.
I walked my 30-minute lunch period
16
and I walked during my two ten-minute breaks.
17
Because I'm so short and the least amount
18
of weight, it shows on me, so I was, you know,
19
just newly married and I wanted to look nice for
20
my husband, you know. And so I can't exercise
21
like I could before. I can't perform the
22
activities; softball, basketball.
I done real
23
intense aerobics, you know.
I could keep up with
24
Denise Austin. And now I sit there and I watch
25
her and dream of.... You know, I still have my
fnlUS l. \ldUt....b Hlllounsc; SfU\'I([
H,'rrhl'lm, ';1:,.!I".ljt,!l l.I," :',;"'..;l'i-to-I,,, '" ,.~1I11.::11.~1:::"
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Exam./Foerster - v. Bugel
53
pants, hoping -- and it's hope now -- will I ever
get into them pants again.
And my shoes.
I always loved to dress and
wear heels, because it made me taller, so I felt
sexier, you know, in my heels and stuff. Now I
can't wear heels because they cause my foot to
hurt.
I could have on a heel for a short period
of time.
So I'm limited now to basically a
tennis shoe attire. And so.".
Q. Are you able to work out or exercise at all now;
softball, basketball, aerobics, walking?
A.
I walk a little bit. Then, you know, that
No.
causes my foot to hurt.
I've tried to walk
around the neighborhood with my daughter and chat
causes my foot to hurt. You know, she's at the
age she likes to run out and play, and so she
gets to do that when daddy is at home or
grandparents or somebody is visiting us, because
I can't, you know, run after her in the yard and
stuff like that.
I stand there and holler at
her, Kristen, get back here.
Q, So you're not able to walk on a regular basis
like you used to or anything?
A. No.
Q. And, basically, can you just -- You discussed the
nutl'; t-' .\It U/l".'~ IUl'fml1\l; .'iI:U\'ICf
If,.,rr~"u,,: ;-1;"-~1,,-/11,!1 ),Itl. :-J;".\~;.ftJh 1'\ '-'ilm-!B."I!;'
Exam./Foerster - V. Bugel
54
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baby, the exercise, the cleaning and the cooking
and the clothes.
Can you think of any other way
that you now can't do things that you used to be
able to do or you have to do things that you
didn't used ~o have to do?
The working.
You know, I had planned on going
back to be a waitress and stuff. And there's no
way I could waitress now.
I'm just in too much
pain with my foot.
Because I worked eight and
ten hours a day when I waitressed.
And so I
could not -- And that's a very hustle bustle job,
you know.
People do not like a slow waitress and
they will not understand hop-along there.
And so
there's just no way I would be able to go back
and do that.
And I loved that.
I loved working with
people, you know.
It's easy for me to talk to
people.
And so I can't do that.
So, in return,
that's hurt us financially, because we were set
up, okay, you'll take off work for a year and
take care of the baby, because I nursed her, and
nurse her, and then you'll return back to work.
So that has really put a financial strain.
It's caused, you know, a lot of pressure
and stuff in our marriage and stuff now, so. And
, 'Uth I- \h flh- ,.. IU I'OH (J\l; ...110 Il"
H."".hIH'\: :",. ~~" 1111.'1 },,,J,. .,. ,,.,...~,, ,'" 'IIlI..'Il.'ll.':"
~/'j /29/98
. .
-,--.. ..-,..... ..,....--.-..
orne! VISIT: lhis pnli.nt 10 ...n iI' I,,] l""-"I" Sh. is now 16 Months 81nca
tho ,ccld.nt. Shl contillu", tn hav. pHl., In hijr Idd doo,l ht.ral right fooe
with 80me ,lI,ht IwoUllIl. tt 'R ell athl 1""11 end it', "or..nl<.l by thin,. luch
II bolna On her (oat 011 dny, clUllll1R, .')II..tlm.. Hrst thinl In ellS 110rni"8
with ony Incr..,. In activiti.. luch M . 101 or wdklnl l1..ply around tha
nd,hborhood or JUI1(linR 011 a trowlpulino whiel. is Intolerable for hu. Sha
1&n t able to do hot hou,"work and I..rdu. IS lIuch as aho would lIka to but
it I, sanorally tolarabll plr ~., avan a very llKhc .Irobie work~ut 11 not vory
tolerahla. Sha takas Hutdn 600 .... oeenuJonaUy. It', uHf in eh, 110rnlnl.
IUOIL. V1C'1'OKIA
DOlI 10/6/69
1/29/98 ~oDtlnu,4."
Sha has SOI.a h..l 8y",pec",s bllt mual nf lhul. ara In tha fracture I1ta araa ea
not..d. Th, orthotics hav. not h..., holpCII1. Thay hauan't bun modUlad any
furthlr thoulh ami Gha dldn' t hav. th.,. wHh hor tnday. IIhan ,Olnl to th, ahoa
'tara, .ha finda that th, rlKhl Coot h Rbuut on,-half size larlar than tha
11ft becau81 of tha Iwallin8'
IlXAMIIIATION: Sh, has vory mtl<.l ,""llinR In the dor..l lataral right midfoot
with tendarnl" ov.r the Jr<.l and 4th tarRnl merar.r.el. partlculerly "i~h tha
crepitue arl11 notad whan ! movo thi. jolnt dor..Uy alld plantarward. Her
oVlrall foot posture Is satl.ractnry. Nu ~ew x-raya war. taken at thl. time.
lIlPRESSlON:
Status pn,t (rn~ture tnr~.11 metataraal articulations 2. J.
4 right COOL with "erslsllnl Byuovi~h and ,,11d past traulllaU<:
Arlhritis.
RieOHHEllDA'CtONl 1 told her tl,.t lOt tlob !,oint in tinoo It'. 101nl tn laet
longer, although I CAII't predlot "x.1ctly Itow 10llg, It could be that ehe
pennanently will havI .y..ptum. ..r it n:"y ho gnl1. In Q couple yeAU. 1 think
that ehe will ha.. to buleaUy necapt tl,nt And try to do all the dutl.. of
her nsular Hr.. althoulh a()v~rantly Rhl ls reeling bad about 1I0t being able
to do her houBlwork ns aluch a, ,he would Uk. to or a..rch. as much aa she
"auld l1kl to. I told her that I .t! II would not r.com..end aursary with
dabrldlllent cr fuBlon 1ft it may no~ .IIIka her IIny better and it could ..aka hiI'
war... 1 aU'8ested ~h. .ltould g1v1 It n t lenGt anothar year, but 11 It I.
ineol.rabla ,nd Ih. I~ lorc.d 10 dll a"l1I~thln6. we might condder lurlieal
debrldaltent vith fuaL"n. t "<luld Uk. t.. ... her In follow-up Ip 9 to IS
llonth, whln .ha CUI arrang. It back Ul> hare. If 8h. dun want another opinion,
I .Iulaastad an orthopodlc fool IInd ankle ."rfteon O'IaluQtlon may b. helpful.
AJH/ k..
ALLAN J. MIR.A, P. C,
Medical Arts Bulldinl
Suite 206
220 Wu'on Street
Carllale, PA 17013
ORTHOPEDIC SURGERY
ALLAN J. MmA, M.D.
Phone (717) 249.7400
July 6, 1998
Lisa J, Hauer, Attorney At Law
Graham & Hauer, P,C.
The Commons At Valley Forge
Suite 22, P.O. Box 981
Valley Forge, PA 19482
RE: Vietoria Bugel
Dear Attorney Hauer:
The following medical report 10 submitted to summarize the treatment and
condition of Victoria A. Bugel.
I first saw Hs. Bugel on November 18, 1996 when she presented as a 27-year-old
female who was involved in a motor vehicle accident near Ht. Holly Springs,
Pennsylvania on September 29, 1996. A vehicle had pulled out in front of Ms.
Bugel's vehicle. Hs. Bugel's vehicle struck the other and she was thrown forward
and immediately experienced pain in her right foot, ankle and knee. She was taken
tn Carlisle Hospital where x-rays were taken of her right ankle which were
negative. She was told that she had an ankle sprain and she was dismissed. She
had been visiting the area from North Carolina and Georgia and soul\ht continued
medical care down South. X-rays were taken of the foot at that time and it showed
fractures at the proximal ends of the 2nd, 3rd, and 4th metatarsals in the right
foot. She was treated with a cast and non-weight bearing.
After my review of her situation with history and physical and ~-ray
examination on November 18, 1996, it was my impression that Mrs. Bugel had healing
fractures of the right 2nd, 3rd and 4th metatarsals caused by the motor vehicle
accldent of September 29, 1996. In addition, she had evidence for a contusion and
sprain of the right knee secondary to the same accide~t. Her cast was removed and
she was treated with exercises and given further recommendations about activities.
Mrs. Bugel was followed up in the office on 10 subsequent occasions with the
last being January 29, 1998. She has continued to have pain and swel1ing in the
right midfoot snd consistent with the region of her injuries. Work-up for this
pain including a bone scan and CT ocan has shown that she has healed fractures but
residual deformity in the joints at the baseo oC the 2nd, 3rd, and 4th metatarsals
where they join the tarsal bones. This, hads to post-traumatic arthritis ar.d
synovitis as a cause of her symptomatology.
Bugel, Victoria
Page 2
July 6. 1998
Her symptoms include an achy pain that is worse by being on her feet for long
periods of time including household cleaning. taking a walk. exercising or
shopping. Pain is also present the first thing in the morning when she gets up on
her feet and also precludes any more strenuous things such as playing with her
child, running or jumping. Nonsteroidal anti-inflammatory medications have not
been especially helpful, In addition, shoe modifications with orthotics have not
been helpful. Her orthopedic examination shows that she hes some persistent
swelling over the region of the injury with some crepitation when stressing these
joints.
My present opinion is that Mrs. Bugel has post-traumatie arthritis of the
mid foot on the right secondary to intra-articular fractures at the bases of the
metatarsals 2,3 and 4 on the right foot. This condition is caused by the injuries
the patient sustained in a motor vehicle accident of September 29, 1996. This
opinion is made with a reasonable degree of medical certainty.
Since the patient's condition has not responded at this point in time, more
than 16 months after the original injuri'. she has a permanent condition as
described above which will deteriorate very slowly with time. This impairment is
disabling to her in that she cannot optimally perform the duties of her household
chores and the things she would like to do recrea tionally and for physical
cOllditioning. In addition, she had been a waitress in the past and I cannot see
her performing such a job for any substantial number of hours as a result of this
inj ury.
My recommendation for treatment at this time is the continued use of the
orthotics and also to obtain another orthopedic opinion, perhaps from an orthopedic
foot and ankle specialist either in Pennsylvania, perhaps at Hershey Medical
Center, or in North Carolina or Georgia near where she currently lives. It is
conceivable thac she may have to undergo surgical debridement or fusion of the
joints in her foot as a result of this condition. Once again. it is my opinion
that this condition and the associeted impairment and disability is a result of the
motor vehicle accident of September 29, 1996, to a reasonable degree of medical
certaint~' .
I hope this information in helpful to you. If you have any further questions,
please contact me.
AJM/kas
Sinnety.
A!.YJl ~;
HARTMAN & MILLb{, r.c. ATTORNEYS AT LAW
1:0 - 128 WAI.N\fT SrREET. H.\RJlL>DUR';, PA 17101 . TEI.EPHONE (717) 232.3040' WRITER> E\TENSlON 103
FACSIMII.E (717) 232-3538' EMAJl H.Mdp.\1nlino<nrn
JACK M. HARTMAN
DA VIO C. MIllER
MEUNDA 5. SHOOP
KEVIN E. OsBORNE
DREW r. GANNON
AMY C. FOERSTER
OUVER C. OVERLANDER III
T AlIA A. MUCHA
COpy
Apri13,I998
Lisa 1. Mauer, Esquire
Graham & Mauer, P.C.
The Commons at Valley Forge, Suite 22
P. O. Box 987
Valley Forge. PA 19482
Re: \'Ictoria A. Bugcl and Christopher Bugel v. Doris 1\1. Henr)'
Cumberland Count). No. 1997-6064
Dear Lisa:
<'
This letter is in response 10 your telephone conversation with Jack Hartman. Esquire, on
March 10, 1998, in which you made a demand on behalf of your clients. Victoria and
Christopher Bugel. of S 130.000.00 to settle the above-referenced matter. It is my understanding
thai this demand is bascd. at least in part, on Mrs. Bugel's most recent medical records. which
you contend reflect a "permanenl injury". The most recent medical records in our possession are
from Mrs. Bugel's 1/2')/98 office visit with Dr. Mira. In his recommendations, Dr. Mira
recorded "I told her that at this point in time it's going to last longer, although I can't predict
cxactly how long. It could be that she permanently will have symptoms or it may be gone in a
couple years." Dr. Mira is clearly unable to predict the course on"lrs. Bugel's alleged symptoms
at this time, and is unable to say when and ifher symptoms will completely r~solve. Dr. Mira's
uncertainty, however, does not constitute a diagnosis of a "permanent injury".
Prior to our representation in this lawsuit, you made a demand to Susan Philson, by letter
datcd March 19, 1997, for 542.500.00 to settle this matter. By letter dated April 19, 1997,
however, you withdrew this offer, because Mrs. Bugel allegedly had a "relapse", and may need
surgery. It is clear that Dr. Mira docs not recommend surgery at this time, and I see no evidence
in thc medical records substantiating the original dcmand of $42.500.00, or the increase to
5130,000.00. In any event, ( have been instructed by Erie to reject your offer of settlement for
S 130,000.00, and have becn authorized to ntake a counteroffer of 5 I 2.000.00 for the settlement
of both Mr. and Mrs. Bugel's claims.
Please discuss this counteroffer with your clients and respond by April 30. 1998.
Additionally, should your clicnts choose to reject this offer. please advise mc as to when ~lrs.
Lisa J. Mauer. ES'lulrc
..2..
April J. 1998
Buge! will bc availablc to present herself for an indcpendent medical examination in
Pennsylvania, In the meantime, please do not hesitate to contact me if you have any questions or
wish to discuss this matter further.
Very truly yours,
/i(1 ~nftlttl
t:; c. Foerster
ACF/drw
cc: Susan Philson
(Eric Claim 110101-7016.4170)
i)
GRAHAM & MAUER, P.C.
4nOrlU4",," ,-LAw
1'lta CON_ AT VUIJEY 'oael
SlJITlU,P.O,loxH7
v....UY 'UIlOI, PAo 194U
1t0000LI> M. Ill"""'"
I.lSo\J.M.ulUl
t'IOI ,>>-,,>>
l.....nHlOl
r 4lll510l91J.C1570
1136 SlJNNAWQOO Dal'l
.......uu. P41'1I1
(111) J.lO.09UO
(1t71651-UOO
.u.w~"""'IOI"""II,II"'W
April 21, 1998
Amy Foerster, Esquire
Hartman, & Miller, P.C.
One Keystone Plaza, Suite 107
front and Market Streets
Harrisburg, PA 17101
Re: Viclorla Bunl v. Henrv
Dear Amy:
I have spok.en to my client, Victoria Bugel, regarding your request for 11 defense medical
exanunation in Pennsylvania. She will be available for that exammation any day belween now and
May 29. However, she does need some advance nolice in order to make child care arrangements.
I assame that Erie Insurance tS paying for Mrs. Bugel's transportation to and from rcnmylvwlia.
Mrs. Bugel would prefer 10 have me present during the examination but I am on the
Cumberland County triollist for the week of May 18. Therefore. I would appreciate it if you would
ask your doctor for several possible dates and let me know as soon as possible. I WIll speak to Mrs.
Bugel and get hack to you right away.
Sincerely,
!.'
\ Y -
,''''''0, .A" I I;if j" F
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\" llSA J. MA~R
HARTMAN & MILLEI<, P.c. ArrORNEYS AT LAW
l1r>. 12~ WAlNlJT Sril:Hr, HAiC.K1SUUHC. PA 17101 . TEl El'HONl:: (717) 232..304b . WRITF.it'S EXHN~IUN
FAlSL'IJlE (717) 232.3538' EMAlI. H.Miilp.onlin.<om
103
JACK M. HARTMAN
DA V1D C. ~hllEll
MEUNOA S. SHOOP
KEVIN E. OSBORNE
DREW p, GANNON
AM'I C. FOERSTER
Ouvu C. OvERlANOEll ttt
T AlIA A. MUCHA
COPY
April 28, 1998
Lisa J. Mauer, Esquire
Graham, & Mauer. P.C.
The Commons at Valley Forge, Suite 22
P. O. Box 987
Valley Forge, PA 19482
Re: Victoria A. Hugel and Cbri.,topher Hugel v. Doris M. Henry
Cumberland County No, 1997-6064
John Roberts v, Jason C. Fry
Cumberland County No. 98-160-Civil
Dear Lisa:
This letter is simply to confirm our conversation on April 23, 1998, regarding the above-
referenced cases. With regard to lllu:l:l, I have reserved the right to lake a brief discovery
deposition of Dr. Mira prior to his videotaped deposition. You have indicated that you will not
object to such a deposition should I decide to take one on the date of his videotape deposition.
<As a note, 1 received your letter yesterday postponing Dr. Mira's deposition from May 12, 1998,
to a later, as yet unscheduled, dale. Regardless of the date on which his deposition is ultimately
scheduled, I assume that you will not object to a discovery deposition.) Additionally, although
we certainly will not unduly delay the scheduling of Mrs. Bugel's l.M.E., and understand that
she needs advance notice in order to arrange for child care, I cannot agree that her l.M.E. will be
scheduled for a date prior to May 29, 1998.
With regard to Roberts, I will talk to Mr. Fry about the scheduling of depositions, and
will be back in contact with you as soon as I can determine whether June 10, 1998, is an
available date for my client. Additionally, you have agreed not to pursue a Motion to Compel
the redacted portions of our response to your Request for Production of Documents until I have
had the opportunity 10 look into them further. I will try to be back in touch with you by May 4,
1998, regarding these matters.
Lisa J. Mauer, Esquire
-2-
April 28, 1998
Thank you for your cooperation with regard to the above. Ph:ase do not hesitate to
contact me if you have any questions
V~y~
Amy C. Foerster
ACF/jas
cc: Susan Philson
Roberts (110101-7025-8104)
BYW (110101-7026-4270)
'..
HARTMAN & MILLEt., fl.C. ATTORNEYS AT LAW
126 .12a WAlNUT STREET. HARJlliDURC:. PA t710l . TElEI'HONE (717) 2J,.)(J~h' WRmR, EXTENSION 103
FAC5IMltE (717) 232.J5Ja . EMAlt H.M@paonhn.com .
JACK M. HARTMAN
DA VlO C. /.~UER
MEUNDA S. SHOOP
KEVIN E. OsBORNE
DREW P. GANNON
AMY C. FOE"",ER
OUVER C. OveRlANDER III
TAMA. MUCHA
COpy
May 28, 1998
Lisa 1. Mauer, Esquire
Graham & Mauer, P.C.
The Commons at Valley Forge, Suite 22
P. O. Box 987
Valley Forge, PA 19482
Re: Victoria A, Bugel and Christopher Bugel \', Doris M. Henry
Cumberland County No, 1997-6064
Dear Lisa:
In follow-up to our telephone conversation on May I, 1998, please advise within ten (10)
days as to whether Mrs. Bugel will voluntarily present herself for an I.M.E. in Pennsylvania, or
whether I will have to pursue a Motion to Compel her attendance. We will, of course, be willing
to work with her in the scheduling of the l.M.E., so that she can make the appropriate child care
arrangements, etc.
Thank you for your anticipated cooperation with regard to this matter. Please do not
hesitate to contact me if you have any questions.
~1!li1i
Amy C. Foerster
ACF/drw
cc: Susan Philson
(Erie Claim 110101-7026-4270)
i
HARTMAN & MILLER, r.c. ATTOI(NE'r'S AT LAW
12h. 11M ","lNUT SrKfH. ~L\MRLSDl'Kl;. p" 17lUl . TI:::J.EI'UONE (717) 232-3046. Ww.rnR:; E\TE:-.iSION 103
FA~SIMllE (717) 232.35Jd. E~I^Jt. H.Mo(j}p.wnhnl! ~nm
J,KK M. H,IRTMAN
D^ V10 C. ~~llER
MUUNlJ^ S. SHOOI'
KEVIN E. ().;OORNE
DREW P. GANNON
AMY C. Fm"""'ER
OIJVER C. OvERLlNDF.R III
T AII^ A. MUCHA
June 25, 1998
COpy
Lisa J. Mau~r. Esquir~
Graham & Mau~r. P.c.
Th~ Commons at Vall~y Forg~. Sllit~ 22
P. O. Box 987
Valky Forge. PA 19-1S~
R~: Victuria A. Duge! and Christopher Dugel \', Doris i\I. Hcnl1'
Cumberland Count)' !'in. 1997-606"
Dear Lisa:
I am \\Titing in follow. up to my kll~r to you dal~d May 28. 1998. r~garding tho:
sch~duling of an I.I\I.E. in this mall~r. Plo:ase advise m~ withiilt~n (10) days as to whether or not
Mrs. Buge! will voluntarily prcs~nt h~rself for an I.M.E. in P~nnsylvania. If I do not hear from
you within thattim~.1 will pursue a :>'Iotion to Compel Plainliffto submit to a physical
examination pursuant to Pa. R.C.P. -1010.
Vt':~';i~~
f}Hf~ {We
Am; d. Fo~rst~r
ACF/jas
cc: Susan Philson
(Erie Claim #OIOI-70~6--I~70)
.
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GRAHAM & MAUER, P.C.
ATTORHlY..AT.L4w
THK CO~IMONIA T V ALLay Foaca
Surra 11, P.O. Box 917
VALLaY Fo.ca, i'A 19413
RONALD M. GILUWI
LIlA J. MAU..
(610) 9Jl.3J3J
I.IOQ.J II-OIOlI
FAX (610) 953-0570
1136 S\lMMUWOOD Dalya
IIAWsauxc, PA 17111
(717) J4G.09OO
(717) 651-1100
U...IWI...PSOfJl.Wjf,Ul'.....
.. '119~
June 29, 1998
Amy Foerster, Esquire
Hartman, & Miller, P.C.
One Keystone Plaza, Suite 107
Front and Market Streets
Harrisburg, P A 171 0 I
Re: Bugel v. Henry
Cumberland County No. 1997.6064
Dear Amy:
I am in receipt of your letter dated May 28, 1998 in which you inquire as to whether Mrs.
Bugel will voluntarily present herself for an l.M.E. in Pennsylvania. As we discussed on the phone,
Mrs. Bugel will voluntarily present herself for an l.M.E. in Pennsylvania if Erie Insurance Co. pays
for her travel expenses. Given the distance involved, her travel expenses would necessarily include
both transportation and hotel accommodations. This is a reasonable expectation given the fact that
it is the negligence of the Erie insured which has necessitated the I.M.E. Furthermore, the Bugels
have already incurred the expense of driving to Pennsylvania once for their depositions. That trip
also required Mr. Bugelto take off two days from work and make alternate child care arrangements
As I am sure you are aware, Pennsylvania case law not only supports the conclusion that Erie
Insurance is responsible for the Mrs. Hugel's l.M.E. travel expenses, it also supports the proposition
that Erie Insurance should have paid half of the travel expenses associated with the Bugels'
depositions. See Berg v. Presbvterian-Universitv HosDital. et aI., 128 P.L.J. 9 (1978). It is not
uncommon for a carrier to pay for l.M.E. transportation expenses. In fact, I have other cases in my
office in which the carrier paid for the transportation expenses within the state ofPa.
Furthermore, there is another option available to Erie Insurance which is also less financially
burdensome to the Bugels. Erie could also hire an orthopaedic surgeon in their home stale of
Georgia to examine her. This would clearly obviate the need for anyone to pay for transportation
expenses.
Amy Foerster, Esquire
June 29, 1998
Page 2 of2
Regardless of your decision about Mrs. Bugel's I.M.E., I intend to certifY this case for the
September trial term and I will forward my expert report prior to certi fieation.
Sincerely,
.1
, >R Ult ,(. i/ ~IL ~)
l~is~~J. M1jER
.,
ar:e? 4 1997
CORCHlN, GRAHAM, ROSATO & MAUER, P.C.
AnOANUS-A.T.LAw
Till! COMMONS AT V..u.UV FORG!
SUIT\! Sr."N, P.O. BoX 987.1.1
V,U.U:Y FORGE. PA 19411
MARk A. CO.CION, LL.M..
RONALD 1\1. GRAIIAM"
h,\ClS R. Rt)SATO, Ja.
LISA J. MAUl."
(6101 93J.JJJl
1.800-1111-0801
Fox (610) 911J.0610
1IJ6 SUMMIIWOOD DalVI
110..""".0, PA 17111
(717) z.l4).09OO
(717) 6U.llOO
. .."JtfJI Of'l..\IoIJaLAL "DHX'4l"t
,. "uo WU4IUll' "'.... lUlU .....
December 22, 1997
Amy Foerster, Esquire
Hartman, & Miller, P.C.
One Keystone Plaza, Suite 107
Front and Market Streets
Harrisburg, PA 17101
Re: Victoria Bugel v. Henry
Dear Ms. Foerster:
I understand that while I was out of the office on December
18, 1997 you contacted my secretary requesting an extension to
answer the complaint in this matter. While I do not have ".,
objection to a reasonable extension, I granted Susan Philson at
Erie Insurance Group an extension in November and Jack Hartman an
extension at the beginning of December.
As I explained to both Susan and Jack, my clients no longer
reside in Pennsylvania. They are currently living in Georgia and
Mrs. Bugel will be making a trip back to Pennsylvania to see her
orthopaedic surgeon at the end of January. As I also mentioned to
both Susan and Jack, it is my intention to schedule Mrs. Bugel's
deposition at the end of January when she will be returning to
Pennsylvania. Jack mentioned that since this is most likely a case
of clear liability, he might be willing to handle Mr. Bugel's
deposition over the phone regarding his loss of consortium claim.
However, I have spoken to my client since that time and learneo!
that Mr. Bugel will be accompanying his wife to Pennsylvania dUling
the last week in January and will be available to have his
deposition taken in person. However, I do appreciate Jack's offer
to make the depositions as convenient as possible for my client.
Page 2
When Jack and I spoke on December 3, 1997 we agreed that he
would respond to the Complaint by December 31. However, I believe
my secretary spoke to you last week and told you that it would be
acceptable to extend the time to January 5, 1998. Jack and I
agreed that once my client sets up her doctor's appointment I will
schedule the deposition and if he is tied up with the trial he
anticipated that would begin on January 26'. that he would have
another lawyer in his office handle the deposition. I assume from
your phone call that you will be handling this deposition.
Therefore, my clients will be available to have their. deposition
taken in your office on Friday, January 30~ at 9:00.
I have enclosed a Notice of Deposition for your client, Doris
Henry for 11:00 on the same day. Unless I hear from you otherwise,
r will assume that you would prefer to arrange for the court
reporter. Also enclosed you will find a minimal number of
Interrogatories directed to your client.
Please call me upon your return from vacation so that we may
further discuss this matter.
Happy holidays.
Sincerely,
.
~;~ 1" I 'I''J~.. ,.'1
4'''''- ~ l /(f)-u'L../
'"LISA J. ~J\.UER
LJMimmr
. . .
VICTORIA A. BUGEL and
CHRISTOPHER BUGEL,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
v.
CIVIL ACTION - LAW
DORIS M. HENRY,
NO. 1997-6064
Defendant
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Amy C. Foerster, Esquire, hereby certify that I am this day serving a copy of the
foregoing Motion of Defendant. Doris M. HenlY. to Compel Plaintiff Victoria A. BUiel's
Attendance at an Independent Medical Examination. with Travel and Lodilinll Expenses to be
Paid bv Plaintiffs, upon the person(s) and in the manner indicated below, which service satisfies
the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in
the United Stales mail, first-class postage prepaid, as follows:
Lisa J. Mauer, Esquirc
Graham & Mauer, P.C.
The Commons at Valley Forge
Suite 22, P. O. Box 987
Valley Forge, PA 19482
(Counsel to Plaintiffs)
HARTMAN & MILLER, P.C.
Dated: 1S//o/9 Y
By:-4 . Fo~~uire
Supreme Court l.D. #77986
126-128 Walnut Street
Harrisburg, P A 17101
(717) 232-3046
Attorneys for Defendant, Doris M. Henry
.
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AUG 1 8 1999p^
GRAHAM" MAUER, P.C.
B)': LI.. J. Mluer, E.qulre
Attonl)' J.D. N654Z6
SuItt n, VIDe)' FOl'Je CommoD'
P.O. 801987
VillI)' Fol'Je, PeDDl)'lvlDIa 19482
PhoDe: 6101933-3333
AltonI)' lor 'lUaua
TIm COURT OF COMMON PLEAS
CUMBBRLANb COUNTY
PBNNSYLV ANIA
CIVIL ACTION - LAW
VICTORIA A. BUOEL and,
CHRISTOPHER BUOEL.
u huaband and wife
Plaintiff
v..
DORIS M. HENRY
No. 97.6064
Defendant
JURY TRIAL DEMANDED
ORDER
AND NOW, thi. _ day of
. 1998, upon colllideration of
the Plaintiff.' Rcspollle to Motion of Defendant, Doris M. Henry, in Opposition to PIaintitli'
Praecipe for Listing Case for Trial, it is hereby ORDERED that said Motion is DENIED. The
abovc-captioncd action hereby ",mailll on the September 1998 Trial List, and the Pretrial
Conference remailllllChcdulcd for August 26, 1999.
1.
.
GRAHAM II MAUER. P.C.
By: LI.I J. Mluer, E.qulre
Attol'lley I.D.1IB426
Suitt 32, Viney Fo...e CommoDI
P.O. Box "7
VaDey Fol'le, PeDD'rlnDII 19482
'bODe: 6101933-3333
Attol'lley lor PllIaUff
THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYL VANIA
CIVIL ACTION - LAW
VICTORIA A. BUOEL and,
CHRISTOPHER BUGEL,
u huabllld and wife
Plaintiff
VI.
DORIS M. HENRY
No. 97-6064
Defendant
1URY TRIAL DEMANDED
PLAINTIFFS' RESPONSE TO MOTION OF DEFENDANT, DORIS M. HENRY,
IN OPPOSITION TO PLAINTIFFS' PRAECIPE LISTING CASE FOR TRIAL
I. Admitted.
2. Admitted. Counsel have stipulated that Defendant Doris M. Henry is solely and
proximately liable for the occurrence of the accident as alleged in Plaintiffs' Complaint and that
Plaintiffs Victoria and Christopher Bugel were in no way comparatively negligence for said accident
3. Admitted.
4. Admitted.
S. Admitted.
6.
7. Admitted.
8. Admitted.
9. Admitted. It is admitted that, in her deposition taken on Ianuary 30, 1998, Plaintiff
Victoria A Bugel discuased in detail the ways in which tho fractures of her second, third and fourth
metatarsals of her right foot, the primary injuries caused by the motor vehicle accident ofSeptembcr
29, 1996, have affccted her life.
10. Admitted. It is admitted that Plaintiff Victoria Bugel sought medical treatment with
Allan 1. Mira, M.D. in Carli ale, Pennsylvania, for her fractured foot from November 18, 1996
through Ianuary 29,1998.
I I. Admitted. It is admitted that Plaintiff Victoria Bugel's last office visit with Dr. Mira
occurred on Ianuary 29, 1998, an appointment which was made to coincide with Plaintiff's
deposition in Pennsylvania. On that date, Plaintiff was a resident of the State of Georgia. A copy
of the office record made by Dr. Mira on Ianuary 29, 1998 was hand delivered to defenac counsel
by Plaintiff at her deposition on January 3D, 1998.
12. Admitted.
13. Admitted.
14. Admitted. It is admitted that in a letter dated April 21, 1998, Plaintiffs' counsel
indicated that Victoria A. Bugel, who resided in Alabama at the time of this accident and who
currently resides in Georgia, would be available for a defense medical examination between April
21 and May 29, 1998.
IS. Admitted. It is admitted that during a telephone conversation on or about May I, 1998,
Plaintiffs' counsel indicated to defense counsel that, since Plaintiff Victoria Bugel was a reaidcnt of
Georgia at that time and that, since liability for this accident which nccesailates this 1MB had been
stipulated to, Erie Insurance, and not Plaintiff Victoria Bugel, is responsible for paying for tho
transportation and related expenses for Plaintiff Victoria Bugel ifshe is required to present herself
for a defense medical examination in PeMlylvania.
16. Admitted in part; denied in part. It i. admitted that defense counsclsent Icttcn dated
May 28, 1998 and lune 2', 1998 to Plaintiff.' coun.cl regarding Viloria Bugcl'. 1MB in
PCMI)'lvania. It i. denied that, following thc May I, 1998 tclephone conversation, that "voluntarily
present" mcant that Plaintiffwu required to pay for her own transportation to and from thc 1MB.
To thc contrary, Plaintiff.' coun.cl indicated during aaid phonc conversation to dcfensc counsclthat
"voluntarily present" means that Plaintiff is willing to aubmil hcrself to a dcfcnse medical
examination without requiring Defcndantto compel said cxamination for good cause shown pursuanl
to Pa.R.C.P. 4010(a).
17. Admitted. It is admitted that, in a Ictter dated lunc 29, 1998, Plaintiff.' cOUlllCI
indicated to dcfense counsel of her intention to certify this casc for the Septembcr triallcrm, given
thc fact that Pennsylvania case law clearly supports the conclusion that Eric Insurancc Company is
responsiblc for PlaintiffVictoria Bugel's travcl cxpenscs to and from her IME. BerlZ v. Presbvterian-
University H0511ital. ct aI., 128 P.L.I. 9 (1978).
18. Denied as staled. Dcfensc counscl first indicated that she would bc pursuing a Motion
to Compcl Victoria Bugcl's attendance at a dcfense medical examination in PCMlylvania with
Plaintiffs to pay the cost of travcl and lodging, in hcr Ictter dated May 28, 1998. Please refer 10
Dcfendant's Exhibit C altached to Motion ofDcfendant Doris M. Henry. Howcvcr, Defense counsel
failed to file said Motion to Compcl until several days prior to thc August 18, 1998 Call ofthc List
in Cwnbcrland County Court of Common Picas.
19. Admitted.
20. Admitted.
21. Denied. M staled in Paragraph number 16 abovc, Plaintiffs' counsel previously
indicated to Defendant that Plaintiff Victoria Bugel would voluntarily ,ubmit herself to a defenac
medical examination without requiring Defendant to file a Motion for Good Cause Shown.
Therefore, the requiremenll of Pa.R.C.P 4010(a) are irrelevant and the defense does not need to
identity the physician who will conduct the defense medical examination before ,eeking the
appropriate order.
22. Denied. Plaintiffi, unaware of Defense counsel', receipt from a physician confinning
hi, willingneas to conduct a defense medical examination of Plaintiff. However, defense collltlel
indicateathat she has been in the proccas ofidentifying such a physician lhroughoutthe time period
during which ahe has been having discussions with Plaintiffs' counsel regarding the defense medical
examination and, since defense counsel's earlicst letter regarding said examination is dated April 3,
1998, Plaintiff is in disbelief that it has taIcen defense counsel more than four (4) months to identity
a physician willing to conduct said examination.
23. Denied. Defendant's motion compelling Plaintiff's attendance at a defense medical
examination was not rcceived until several days prior to the August 18, 1998 Call of the List.
24. Admitted.
2S. Denied. The "discovery dispute" referenced by defense counsel is a dispute CRllted by
defendant solely for the purpose of delaying the bial of this matter, and is evidenced by the fact thst
said discovery dispute, whieh has continued since early 1998 and could ha\'e been resolved prior to
this time, is not yet resolved due to defense counsel's failure to file a Motion to Compel until ,everal
days prior to the August 18, 1998 Call of the List and subsequent to Plaintiffs' counsel listing thi,
matter ready for trial.
26. Denied. ~ stated in Plaintiffs' counsel letter, dated April 21, 1998, Defendant'.
Exhibit B attached to Motion of Defendant Doris Henry, Victoria Bugel has been willing to subject
herself to a defense medical examination since April 1998. DefCIIBC coWllCl'a failure to conduct Aid
examination and failure to timely file a Motion to Compel are the IOle reuoM why Aid examination
hu yet to be conducted.
WHEREFORE, Plaintiffs Victoria and Christopher BUllel respectfully requllIt lhIa Honorable
Court deny Defendant's Motion in Opposition to Plaintiffs' Praecipe for Listinllthe cue for Trial,
and list this matter for the September 1998 Trial Week.
RClpCCtfully submitted,
GRAHAM " MAUER, P.C.
Date: Aupat 17, 1998
AUG 1 8199SVkV
GRAHAM" MAUER, P.C.
By: Un J. Mauer, E.qulre
Attorney 1.0. 1#65426
Suite 22, Valley Forae CommoD'
P.O. 801 987
Valley Forae, PeDD.ylvaula 19481
PboDe: 610/933-3333
Attorney for PlalatIJl'
VICTORIA A. BUGEL and,
CHRISTOPHER BUGEL,
as hUlband and wife
TIlE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
Plaintiff
CML ACTION - LAW
vs.
No. 97-6064
DORIS M. HENRY
Defendant
1URY TRIAL DEMANDED
ORDER
AND NOW, this _ day of
. 1998, upon consideration of
the Plaintiffs' Response to Motion of Defendant, Doris M. Henry, in Opposition to Plaintiffs'
Praecipe for Listing Case for Trial, it is hereby ORDERED that said Motion is DENIED. The
above-captioned action hereby remains on the September 1998 Trial List, and the Pretrial
Conference remains scheduled for August 26, 1998.
J.
GRAHAM" MAUER, P.C.
By: LI.. J. Mauer, E.qulre
Attorney 1.0, *65426
Suite :U, Valley Forge Commoa.
P.O. BOl987
Valley Forge. Peaa.ylnala 19481
Pboae: 610/933-3333
Attorney ror Phllada
VICTORIA A. BUGEL and,
CHRISTOPHER BUGEL,
u husband and wife
THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
Plaintiff
CIVIL ACTION - LAW
vs.
No. 97-6064
DORIS M. HENRY
Defendant
JURY TRIAL DEMANDED
PLAINTIFFS' RESPONSE TO MOTION OF DEFENDANT, DORIS M. HENRY,
IN OPPOSITION TO PLAINTIFFS' PRAECIPE LISTING CASE FOR TRIAL
I. Admitted.
2. Admitted. Counsel have stipulated that Defendant Doris M. Henry is IOlely and
proximately liable for the occurrence of the accident u alleged in Plaintiff.' Complaint and that
Plaintiffs Victoria and Christopher Bugel were in no way comparatively negligence for said accident
3. Admitted.
4. Admittccl.
S. Admitted.
6.
7. Admitted.
8. Admitted.
9. Admitted. It is admitted that, in her deposition taken on January 30, 1998, Plaintiff
Victoria A Bugel discussed in detail the ways in which the fractures of her second, third and fourth
metatarsals of her right fool, the primary injuriCl caused by the motor vehicle accident ofSeplembcr
29, 1996, have affec:ted her life.
10. Admitted. It is admitted that Plaintiff Victoria Bugcl sought medicalln:atment with
Allan J. Mira. M.D. in Carlisle, Pennsylvania, for hcr fractured foot from Novcmber 18, 1996
through January 29, 1998.
II. Admitted. It is admitted that Plaintiff Victoria Hugcl's last office visit with Dr. Mira
occurred on January 29, 1998, an appointmcnt which was made to coincidc with Plaintifr.
deposition in Pennsylvania. On that datc, Plaintiff was a resident of thc Statc of Georgia. A copy
of the officc record made by Dr. Mira on January 29,1998 was hand dclivered to dcfense counsel
by Plaintiff at her deposition on January 30, 1998.
12. Admitted.
13. Admitted.
14. Admitted. It is admitted that in a letter dated April 21, 1998, Plaintiffs' counsel
indicated that Victoria A. Hugel, who resided in Alabama at the time of this accident and who
currently resides in Georgia, would be available for a dcfense medical examination between April
21 andMay29,1998.
I S. Admitted. It is admilled that during a telephone conversation on or about May I, 1998,
Plaintiffs' counsel indicated to defense counsel thaI, since Plaintiff Victoria Bugcl wu a resident of
Georgia at that time and that. since liability for this accident which necessitates this IME had been
stipulated to, Erie Insurance, and not Plaintiff Victoria Hugel, is responsible for paying for the
transportation and related expenses for Plaintiff Victoria Hugel if she is required to present herself
for a defense medical examination in Pennsylvania.
16. Admitted in part; denied in part. It is admitted that defense counsclsent letters dated
May 28, 1998 and June 2', 1998 to Plaintiffs' counsel regarding Viloria Bugel's /ME in
PeMSylvania. It i. denied thaI, following the May I, 1998 telephone conversation, that "voluntarily
present" meant that Plaintiffwaa required to pay for her own transportation to ar.d from the /ME.
To the contrary, Plaintiffa' counsel indicated during said phone conversation to defense counsel that
"voluntarily present" means that Plaintiff is willing to submit herself to a defense medical
examination without requiring Defendant to compel said examination for good cause shown pursuant
to Pa.R.C.P. 4010(a).
17. Admitted. It is admitted that, in a letter dated June 29, 1998, Plaintiffs' counsel
indicated to defcnsc counsel of her intention to certify this case for the September trial term, given
the fact that Pennsylvania case law clearly supports the conclusion that Erie Insurance Company is
responsible forPlaintiffVictoriaBugel's \ravel expenses to and from her IME. Benz v. Presbvterian-
Univenity Hospital. et al.,128 P.L.J, 9 (1978).
18. Denied as stated. Defense counsel first indicated that she would be pursuing a Motion
to Compel Victoria Bugel's attendance at a defense medical examination in PeMSylvania with
Plaintiffs to pay the cost or travel and lodging, in her letter dated May 28, 1998. Please refer to
Defendant's Exhibit C attached to Motion of Defendant Doris M. Henry. However, Defense counsel
failed to file said Motion toCornpe1 until several days prior to the August 18, 1998 Call of the List
in Cumberland County Court of Common Pleas.
19. Admitted.
20. Admitted.
21. Denied. A3 stated in Paragraph number 16 above, Plaintiffs' counsel previously
indicated to Defendantlhat Plaintiff Vic\oria Bugel would voluntarily submit herself to a defC1l8C
medical examination without requiring Defendant to file a Motion for Good CaUle ShoWll.
Therefore, the requirements of Pa.R.C.P 401O(a) are irrelevant and the defense doe. not need to
identifY the physician who will conduct the defense medical examination before seeking the
appropriate order.
22. Denied. Plaintiffi. unaware of Defense counsel'. receipt from a physician confinning
his willingness to conduct a defense medical examination of Plaintiff. However, defense counsel
indicatCllhat she has been in the process of identifying .uch a phy.ician throughout the lime period
during which she has been having discussions with Plaintiffs' counsel regarding the defense medical
examination and, since defense counsel's earliest letter regarding said examination is dated AprilJ,
1998, Plaintiff is in disbelieflhat it has taken defense counsel more than four (4) months to identifY
a physician willing to conduct said examination.
23. Denied. Defendant's motion compelling Plaintitrs attendance at a defense medical
examination was not received until several days prior to the August 18, 1998 Call of the List.
24. Admitted.
25. Denied. The "discovery dispute" referenced by defense counsel is a dispute created by
defendant solely for the purpose of delaying the trial of this matter, and is evidenced by the fsct that
said discovery dispute, which has continued since early 1998 and could have been resolved prior to
this time, is not yet resolved due to defense counsel's failure to file a Motion to Compel until several
days prior to the August 18, 1998 Call of the List and subsequent to Plaintiffs' counsel listing this
matter ready for trial.
26. Denied. As slated in Plaintiffs' counsel letter, dated April 21, 1998, Defendant'.
Exhibit B attached to Motion ofDefendant Doris Henry, Victoria Bugel has been willing to subject
herself to a defense medical examination since April 1998. Defenae coun&lll'. failure to conduct laid
examination and failure to timely file a Motion to Compcl are the IOle reuona why said examination
baa yet to be conducted.
WHEREFORE, Plaintiffs Victoria and Chri.tophCl' Bugell'Clpectfully requClIt \hi. Honorable
Court deny Defendant', Motion in Oppo.ition to Plaintiffs' Praecipc for Listing the cue for Trial,
and list this matter for the September 1998 Trial Week.
RClpeCtfully submitted,
GRAHAM" MAUER. P,C.
'J
By:
Date: Augult 17, 1998
CERTIFICATE OF SERVICE
I HEREBY CERTIFY thai on this 17* day of AUiUll, 1998, a Inlo and comet copy of
Plaintiffs' Remonlt! to Motion or Defendant. Doris M. Heruy. in ODDOlition to Plaintiffa' p,..~ipe
Li.lillll Caso for Trial was mailed first class, po.tage prepaid 10 the followina:
Amy Foerster, Esquire
Hartman, & Miller, P.C.
126-128 Walnut Street
Harri.burg, P A 171 0 I
GRAHAM & MAUER
GRAHAM & MAUER, P.C,
By: Usa J. Mauer, Esquire
Attorney I.D. #65426
Suite 22, Valley Forie Commons
P.O. BOI 987
Valley Forie, Pennsylvania 19482
Pbone: 610/933-3333
Attorney for PlallltlJJ
VICTORIA A. BUGEL and,
CHRISTOPHER BUGEL,
as husband and wife
THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
Plainti ff
CIVIL ACTION - LAW
VS.
No. 97-6064
DORIS M. HENRY
Defendant
JURY TRIAL DEMANDED
PLAINTIFFS' RESPONSE TO MOTION OF DEFENDANT, DORIS M. HENRY,
IN OPPOSITION TO PLAINTIFFS' PRAECIPE LISTING CASE FOR TRIAL
1. Admitted.
2. Admitted. Counsel have stipulated that Defendant Doris M. Henry is solely and
proximately liable for the occurrence of the accident as alleged in Plaintiffs' Complaint and that
Plaintiffs Victoria and Christopher Bugel were in no way comparatively negligence for said accident.
3. Admilled.
4. Admilled.
S. Admilled.
6.
7. Admilled.
8. Admilled.
9. Admitted. It is admitted that, in her deposition taken on January 30, 1998, Plaintiff
Victoria A Bugel discussed in detail the ways in which the fracturcs of her second, third and fourth
metatarsals of her right foot, the primary injuries caused by the motor vehicle accident of September
29, 1996, have affected her life.
10. Admilled. It is admitted that Plaintiff Victoria Bugel sought medical treatment with
Allan J. Mira, M.D. in Carlisle, P~nnsylvania, for her fractured foot from November 18, 1996
through January 29, 1998.
II. Admilled. It is admitted that Plaintiff Victoria Bugel's last office v.isit with Dr. Mira
occurred on January 29, 1998, an appointment which was made to coincide with Plaintiffs
deposition in Pennsylvania. On that date, Plaintiff was a resident of the State of Georgia. A copy
of the office record made by Dr. Mira on January 29,1998 was hand delivered to defense counsel
by Plaintiff at her deposition on January 30, 1998.
12. Admilled.
13. Admitted.
14. Admilled. It is admilled that in a letter dated April 21, 1998, Plaintiffs' counsel
indicated that Victoria A. Bugel, who resided in Alabama at the time of this accident and who
currently residcs in Georgia, would be available for a defense medical examination between April
21 and May 29, 1998.
15. Admitted. It is admilled that during a telephone conversation on or about May 1, 1998,
Plaintiffs' counsel indicated to defense counsel that, since Plaintiff Victoria Bugel was a resident of
Georgia at that time and that, since liability for this accident which necessitates this IME had been
stipulated to, Erie Insurance, and not Plaintiff Victoria Bugel, is responsible for paying for the
transportation and related expenses for Plaintiff Victoria Bugel ifshe is required to present herself
for a defense medical examination in Pennsylvania.
16. Admilled in part; denied in part. It is admilled that defense counsel sentlellers dated
May 28, 1998 and June 25, 1998 to Plaintiffs' counsel regarding Viloria Bugel's IME in
Pennsylvania. It is denied that, following the May I, 1998 telephone conversation, that ''voluntarily
present" meant that Plaintiff was required to pay for her own transportation 10 and from the IME.
To the contrary, Plainti ffs' counsel indicated during said phone conversation to defense counsel that
"voluntarily present" means that Plain!iff is willing to submit herself to a defense medical
examination without requiring Defendant to compel said examination for good cause shown pursuant
10 Pa.R.C.P. 401O(a).
17. Admilled. It is admilled that, in a leller dated June 29, 1998, Plaintiffs' counsel
indicated to defense counsel of her intention to certify this case for the September lrialterm, given
the fact that Pennsylvania case law clearly supports the conclusion that Erie Insuranee Company is
responsible for Plaintiff Victoria Bugel's travel expenses to and from her IME. Ben! v. Presbyterian-
University Hosoital. et aI., 128 P.L.), 9 (1978).
18. Denied as stated. Defense counsel first indicated that she would be pursuing a Motion
to Compel Victoria Bugel's allendance at a defense medical examination in Pennsylvania with
Plaintiffs to pay the cost of travel and lodging, in her leller dated May 28, 1998. Please refer to
Defendant's Exhibit C allached to Motion of Defendant Doris M. Henry. However, Defense counsel
failed to file said Motion to Compel until several days prior to the August 18, 1998 Call of the List
in Cumberland County Court of Common Pleas.
19. Admilled.
20. Admitted.
21. Denied. As stated in Paragraph number 16 above, Plaintiffs' counsel previously
indicated to Defendant that Plaintiff Victoria Bugel would voluntarily submit herself to a defense
medical examination without requiring Defendant to liIe a Motion for Good Cause Shown.
Therefore, the requirements of Pa.R.C.P 40 I O(a) are irrelevant and the defense does not need to
identify the physicilUl who will conduct the defense medical examination before seeking the:
appropriate order.
22. Denied. Plaintiff is unaware of Defense counsel's receipt from a physician confirming
his willingness to conduct a defense medical examination of Plaintiff. However, defense counsel
indicates that she has been in the process of identifYing such a physician throughout the time period
during which she has been having discussions with Plaintiffs' counsel regarding the defense medical
examination and, since defense counsel's earliest leuer regarding said examination is dated April 3,
1998, Plaintiffis in disbelieflhat it has taken defense counsel more than four (4) months to identify
a physician willing to conduct said examination.
23. Denied. Defendant's motion compelling Plaintiffs allendance at a defense medical
examination was not received until several days prior to the August 18, 1998 Call of the List.
24. Admiued.
25. Denied. The "discovery dispute" referenced by defense counsel is a dispute created by
defendant solely for the purpose of delaying the trial of this maUer, and is evidenced by the fact that
said discovery dispute, which has continued since early 1998 and could have been resolved prior to
this time, is not yet resolved due to defense counsel's failure to file aMotion to Compel until several
days prior to the August 18, 1998 Call of the List and subsequent to Plaintiffs' counsel listing this
matter ready for trial.
26. Denied. As stated in Plaintiffs' counsel letter, dated April 21, 1998, Defendant's
Exhibit B attached to Motion of Defendant Doris Henry, Victoria Bugel has been willing to subject
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 171h day of August, 1998, a truc and correct copy of
Plaintiffs' Rc~ponsc to Motion of Defendanl. Doris M. Henrv. in Qllllosition to Plaintiffs' Praecipc
Listin~ Case for Trial was mailed first class, postagc prepaid to thc following:
Amy Foerster, Esquirc
Hartman, & Millcr, P.C.
126-128 Walnut Strcct
Harrisburg, P A 17101
GRAHAM & MAUER
By: l
LISA J. UE, Esquire
Attorney for Plaintiff
"
JL\
AUG 2 0 1998 pI'\
GRAHAM & MAUER, P.C.
By: Lisa J. Mauer, Esquire
Auomey l.D. #65426
Suite 22, Valley Forge Commons
P.O. Box 987
Valley Forge, Pennsylvania 19482
Phone: 610/933-3333
Attorney for Plaintiff
VICTORIA A. BUGEL and,
CHRISTOPHER BUGEL,
as husband and wife
THE COURT OF' COMMON PLEAS
CUMBERLAND COUNTY
PENNSYL VANIA
Plaintiff
CIVIL ACTION - LAW
vs.
No. 97-6064
DORIS M. HENRY
Defendant
JURY TRIAL DEMANDED
PRETRIAL MEMORANDUM OF PLAINTIFFS
VICTORIA AND CHRISTOPHER BUGEL
I. Statement of Basic Facts as to LIability
This case stems from an automobile accident which occurred on September 29, 1996 in
Cumberland County, Pennsylvania. Al the time of the accident, Plaintiff Christopher Bugel was
driving a rental car in which his wife, Victoria, was a passenger. The negligence of Defendant Doris
Henry, who disregarded a stop sign, was the cause of this crash. Therefore, the parties have
stipulated to liability.
II. Statement of Basic Facts as to Damal!es
Plaintiffs Christopher and Victoria Bugel were both injured in this accident. However,
Christopher Bugel's claim for personal injuries was settled in 1997. Mr. Bugel's remaining claim
is for loss of consortium.
While Plaintiff Victoria Bugel, a twenty-six year old Alabama resident, sustained numerous
injuries in this accident, including contusions and a sprain of her right knee, her primary injury
consisted of three fractures of the metatarsals in her right foot. This injury to her foot required the
use of a cast and crutches for many months, as well as non-weight bearing activity. Plaintiffs
fractures have failed to properly heal. Plainti ff Victoria Buge1 is still unable to perform many of her
pre-accident activities without pain, such as walking, cleaning, carrying her child, and exercising.
Plaintiffs treating physician, orthopaedic surgeon, Allan Mira, M.D., has opined that she is left with
residual deformity in the joints at the bases of the 2nd, 3rd and 4th metatarsals and that she has a
permanent condition. Dr. Mira also opines that the post-traamatic arthritis in her foot will
deteriorate slowly with time and that he cannot see her performing a waitressingjob, which she had
held in the past and hoped to have again. Dr. Mira states that it is conceivable that she may require
surgical intervention in the future.
III. Statement as to Prlncioallssues of Liability and Damaves
As a result of the Stipulation as to negligence filed in February 1998,therc are no remaining
issues pertaining to liability.
On August 10, 1998, subsequent to Plaintiffs listing of this case for trial, Defendant filed a
Ml2Jion of Defendant. Doris M. Henrv. to Comoel PlaintiffVicloria A. BUl!el's Attendance at an
Independent Medical Examination. with Travel and Lod~inl! EXDenses to be Paid bv Plaintiffs.
While Plaintiff Victoria Bugel is willing to voluntarily present herself for a defense medical
examination, the cost of making a trip to Pennsylvania from Georgia, where Plaintiff currently
resides, has been made an issue by Defendant. In Defendant's motion, she claims that Plaintiffs
physical condition is "in controversy" and that an I.M.E. is necessary for Defendant to further
evaluate and defend against Plaintiffs claims of injury. While causation of Plaintiffs injuries is clear
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 19th day of August, 1998, a true and correct copy of
Pretrial Memorandum of Plaintiffs Victoria and ChristQpher BUilel was mailed first class, postage
prepaid to the following:
Amy Foerster, Esquire
Hartman, & Miller, P.C.
126-128 Walnut Street
Harrisburg,PA 17101
GRAHAM & MAUER
By:
"
L)
~l.\
AUG 2 4 199B..,
'tv"
GRAHAM & MAUER, P.C.
By: Lisa J. Mauer, Esquire
Attorney l.D. #65426
Suite 22, Valley Forge Commons
P.O. Box 987
Valley Forge, Pennsylvania 19482
Phone: 610/933-3333
Attorney for Plaintiff
VICTORIA A. BUGEL and,
CHRISTOPHER BUGEL,
as husband and wife
THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
Plaintiff
CIVIL ACTION - LAW
vs.
No. 97-6064
DORIS M. HENRY
Defendant
JURY TRIAL DEMANDED
PLAINTIFFS' RESPONSE TO MOTION OF DEFENDANT, DORIS M. HENRY.
TO COMPEL PLAINTIFF VICTORIA A. BUGEL'S ATTENDANCE
AT AN INDEPENDENT MEDICAL EXAMINATION.
WITH TRAVEL AND LODGING EXPENSES TO BE PAID BY PLAINTIFFS
1. Admitted. It is further admilled that Plaintiffs' response to Defendant's Motion in
Opposition to Plaintiffs' Praecipe listing this csse for trial was filed on August 18, 1998.
2. Admilled.
3. Admilled.
4. Admitted.
S. Admitted.
6. Admitted.
7. Admilled.
8. Admitted.
9. Admitted.
It is admitted that Defendant has stipulated to liability in this mailer.
AUG 2 4 199~ ~\~
GRAHAM & MAUER, P.C.
By: Lisa 1. Mauer, Esquire
Allomey l.D. #65426
Suite 22, Valley Forge Commons
P.O. Box 987
Valley Forge, Pennsylvania 19482
Phone: 610/933-3333
Attorney for Plaintiff
VICTORIA A. BUGEL and,
CHRISTOPHER BUGEL,
as husband and wife
THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
Plaintiff
CIVIL ACTION - LAW
vs.
No. 97-6064
DORIS M. HENRY
Defendant
JURY TRIAL DEMANDED
PLAINTIFFS' RESPONSE TO MOTION OF DEFENDANT. DORIS M. HENRY.
TO COMPEL PLAINTIFF VICTORIA A. BUGEL'S ATTENDANCE
AT AN INDEPENDENT MEDICAL EXAMINATION.
WITH TRAVEL AND LODGING EXPENSES TO BE PAID BY PLAINTIFFS
1. Admilled. It is further admilled that Plaintiffs' response to Defendant's Motion in
Opposition to Plaintiffs' Praecipe listing this csse for trial was filed on August 18, 1998.
2. Admilled.
3. Admilled.
4. Admilled. It is admilled that Defendant has stipulated to liability in this matter.
S. Admitted.
6. Admilled.
7. Admitted.
8. Admilled.
9. Admilled.
10, Admilled. It is admined that Christopher and Victoria Bugel were residents of Alabama
on the date of this accident and lived in Carlisle from approximately November 1996 to October
1997, when they moved to Georgia, where they currently reside.
II. Denied. Plaintiff was treated by Allan Mira, M.D. from November 1996 through
January 29,1998. Plaintiffis not currently treating with Dr. Mira, as she resides in Georgia, but was
told by Dr. Mira that he would like to see her in follow up when she can arrange it back up to
Pennsylvania. See Dr. Mira's office note of 01/29/98 attached as Exhibit No.1 hereto.
12. Admitted. It is admitted that Plaintiff scheduled her last appointment with Dr. Mira
the day prior to her deposition, which took place in Harrisburg, Pennsylvania.
13. Admitted.
14. Admilled. It is admitted that Dr. Mira told Plaintiff, Victoria Bugel, that no further
treatment was recommended at this time.
IS. Admitted.
16. Admilled.
17. Admitted.
18. Denied. It is denied that Plaintirrs physical condition in is controversy in this law suit.
To the contrary, Plaintiffs physical has been clearly documented by her treating physicians.
19. Denied. It is denied that an IME is necessary for Defendant to further evaluate and
defend against Plaintiffs' claims of injury. Defendant has failed to articulate any basis for her claim
that Plaintirrs physical condition is in controversy or the grounds for a Motion for Good Cause
Shown.
20. Denied. It is specifically denied that there is an inconsistency between Dr. Mira's
office notes and report. To the contrary, Dr. Mira's report is merely a summary of his cumulative
office notes and is clearly consistent with his notes of treat men I.
21. Denied. It is denied that Plaintiffs IME i, currently scheduled for October 28, 1998
at 3:00 P.M. Plaintiff has not previously been notified of said appointment for a defense medical
examination.
22. Admitted in part; denied in part. It is admitted that if Plaintiff is required to present
herself for a defense medical examination, the scope of said examination should include Plaintiff's
right foot and knee. It is denied that Plaintiff is required to subject herself to potentially harmful x-
rays or other diagnostic studies, e~pecially in light of the fact that previously taken x-rays and
diagnostic films of Plaintiffs right foot could be made available to the defense doctor.
23. Denied. It is specifically denied that the only individuals to be present at the defense
medical examination are Plaintiff, Dr. Lonergan, and any necessary members of Dr. Lonergan's
office staff. Pursuant to Pa.R.C.P. 401 0(a)(4)(i) (1998 Revised Edition) "The person to be examined
shall have the right to counselor other representative present during the examination." Therefore,
Plaintiff's eounsel will be present at said defense medical examination.
24. Admitted. It is admilled that Plaintiffs' counsel confirmed that Plaintiff is willing to
voluntarily present hersel f for a defense medical examination, provided one of the above conditions
is [sic] met.
25. Admitted.
26. Admitted.
27. Denied as stated. Said Exhibit No.7 does not reference a discussion between counsel
regarding payment of Plaintiffs' travel expenses.
28. Admitted in part; denied in part. It is admitted that counsel have discusscd payment
of Plaintiffs' travel and lodging expenses incurred by Plaintiff is she is required to travel from
Georgia to Pennsylvania for a defense medical examination. It is denied that said conversation took
place on May I, 1998.
29, Admilled in part; denied in part. It is admitted that defense counsel sent lellers dated
May 28, 1998 and June 25, 1998 to Plaintiffs' counsel regarding whether or not Plaintiff would
voluntarily present for a defense medical examination in Pennsylvania. It is denied that the implied
understanding of "voluntary" includes Plaintiff paying for her own travel and lodging expenses.
30. Admilled.
31. Admitted in part; denied in part. It is admitted that both appointments, which were
necessitated by the negligence of Defendant Doris Henry, were scheduled on consecutive days in
January 1998 in order to eliminate the need for Plaintiff Victoria Bugel, an Alabama resident at that
time, to make numerous trips to Pennsylvania. It is denied that Plaintiffs did not have to make a
special trip to Pennsylvania for their depositions. To the contrary, this motor vehicle accident and
related appointments in Pennsylvania are the sole reasons Plaintiffs had for rcturning to
Pennsylvania.
32. Admitted. It is admilled that, in his January 29, 1998 office note, Dr. Mira indicated
that he wanted to see Plaintiff in nine to twelve months when she can arrange to make it back to
Pennsylvania and that her injury could be permanent. It is also admitted that defense counsel offered
to schedule Plaintiffs defense medical examination in the year 1999. However, Plaintiff Victoria
Bugel is not required to endure an indefinite and intentional delay of the defense medical
examination and trial of this matter because Defendant Henry's negligence has caused Plaintiff to
sustain a permanent injury.
33. Admitted. It is Plaintiffs' position, given thc Defendant's stipulation to liability in this
matter, that the ncgligencc of Dcfendant Henry caused this accident, Plaintiffs' injuries, and
necessitated the defense medical examination of Plaintiff Victoria Bugel. Pa.R.C.P.4010(a)(2)
allows a physical examination to be made ofa party for good cause shown. Rule 4012(a) allows that
party, upon motion, to be protcctcd from discovery when said discovery causes unreasonable
annoyance, burdcn or expense. Plaintiff Victoria Bugel is clearly not obligated to pay for the
defense of this case. To the contrary, if the Defendant required a medical examination of Plaintiff,
an Alabama r~sident, in Pennsylvania in order to defend their casc, Defendant is obligated to pay the
necessary costs incurred by Plaintiff in attending said defense medical examination.
34. Admitted. It is admilled that the existence of Plaintiffs injuries, primarily thrce
fractures of the metatarsals of her right foot, and their devastating effect on her life form the basis
for her outstanding claim and her husband's loss of consortium claim.
35. Denied. It is denied that the necessity of the defense medical examination does not
relate to the liability aspect of this case, but to damages only. To the contrary, the defense medical
examination was necessitated by the negligence of Defendant Henry. Defendant has stipulated to
liability in this case and it is Defendant's negligence which has caused Plaintiffs injuries and
necessitated said defense medical examination.
36. Admitted in part; denied in part. It is admitted that Plaintiff initiated this law suit in
Cumberland County, Pennsylvania, the jurisdiction where Defendant Henry's negligence caused said
motor vehicle accident and Plaintiff Victoria B\:gel's corresponding injuries. Plaintiff continued
pursuing her claim once she moved to Georgia, since that is the only proper venue for said cause of
action. It is denied that Plaintiff is seeking to avoid subjecting herself to a defense medical
examination in Cumberland County. To the contrary, pursuant to Plaintiffs' counsel letters dated
Apri12l, 1998 and June 29, 1998, Plaintiff has always been willing to voluntarily subject herselfto
a defense medical examination in Cumberland County, Pennsylvania. See Defendant's Exhibits No.
6 and 9 allached to Defendant's Motion to Compel.
37. Denied. It is denied that Ber~ v. Presbyterian-University HosDital. et al., 128 P.L.J. 9
(1978) in inapplicable to the case at bar (see Exhibit No.2 allached hereto). To the conlrary,lkIi
is clearly on point with the case at bar. While the parties are reversed in 1!.m:, that case stands for
the proposition that a party is required to pay reasonable travel expenses in order to conduct
discovery which would require the opposing party to travel to another state and lose time from work,
causing unreasonable expense and oppression. Judge Wellick's opinion states that fairness required
the Plaintiff to pay the Defendant's travel expenses incurred in traveling to his deposition. Judge
Wettick also noted that the Plaintiff had not demonstrated her inability to pay for said travel
expenses. In the case at bar, Defendant Erie Insurance Company is requiring Plaintiffs Christopher
and Victoria Bugel to pay for their necessary travel expenses in traveling from Georgia to
Pennsylvania in order to have Plaintiff Victoria BUl1el examined by a defense medical doctor in
Pennsylvania. Said trip will require Plainti ff Christopher Bugel to be away from work for at least
two days and to incur all necessary travel and lodging expenses. This request on the part of Erie
Insurance Company, a defendant who is clearly able to pay for Plaintiffs' travel expenses, imposes
unreasonable expense and oppression upon Plaintiffs Christopher and Victoria Bugel. As Judge
Wettick found in Dgg. fairness requires Defendant Erie Insurance Company to pay Plaintiffs' travel
expenses if said insurance requires Plaintiff to present herself in Pennsylvania.
38. Denied. It is denied that Plaintiff had the option of discontinuing her case when she
moved 10 Georgia. To the contrary, Cumberland County, Pennsylvania, the county in which the
cause of action arose, is, pursuant to Pa.R.C.P. 1006(a), the proper venue for an action brought
against an individual.
It is also denied that Plaintiffs will not expect to have their travel expenses paid by
Defendant's insurance company when they return to Pennsylvania for the trial of this mailer.
Plaintiffs clearly expect to have all of their expenses paid for by Defendant's insurance company
since the Pa. Molor Vehicle Financial Responsibility Law entitles full tort plaintiffs, such as the
Bugels, to be compensated for all of their economic and non-economic losses sustained as a result
of a motor vehicle accident due to the fault of another person, such as Defendant Henry. 75
Pa.C.S.A.g170S(c) ~ speaks to the issue of fairness with respect to the costs of discovery and
looks at the ability of the party requesting said discovery to pay and the burden placed upon the party
being summoned to another state. Defendant insurance company is clearly placing a fmancial
burden on the Plaintiffs by requesting them to return to Pa. for discovery purposes, losing time from
work and incurring travel, transportation and child care expenses.
39. Denied. It is specifically denied that Plainti ff indicated that Defendant is rcouired to
choose a physician nearer to Plaintiffs home. Plaintiff suggested such an alternative as a way for
Defendant insurance company to have a medical examination of Plain tiff without having to pay the
necessary travel expenses that said insurance company has insisted they cannot pay. It is also denied
that Plaintiff has given Defendant an ultimatum. To the contrary, Plaintiff has requested that
Defendant insurance company pay the costs of eompleting their own discovery in accordance with
generally accepted practice and Pennsylvania case law.
40. Admined.
41. Dcnied. It is specifically denied that Plaintiffs counsel is not permittcd to attend the
defense medical cxamination of Plaintiff. Pa. R.C.P.
40 I O(a)(4)(i) (1998 Rcvised Edition) providcs that "The person to be examined shall have the right
to counselor othcr representative present during the examination." Therefore, Plaintiffs counsel is
clearly permittcd to be present at said cxamination.
42. Admitted.
43. Admitted in part; denied in part. It is admitted that in her letter dated July 10, 1998
defense counsel stated that certifying this matter for the September trial term would be inappropriatc
in light of the outstanding discovery dispute. It is specifically denicd that certifying this matter for
the September trial term is inappropriate. By the Scptember trial term, it will be nearly onc ycar
since the filing of Plaintiffs Complaint. Dcfendant insurance company has had numerous
opportunities latd options available in which to have a medical examination of Plaintiff but has failed
to cxercise any oflhosc options for nearly one year.
First, Defendant insurance company knew of Plaintill's move to Gcorgia and of Plaintiffs'
counsel's scheduling of depositions in Pennsylvunia for two and a half months prior to the date on
which Plaintiffs' depositions were hetd (see Exhibit No.3 attached hereto). Said insurancc company
could easily have scheduled Plaintiffs defense medical examination to coincide with her deposition
and eliminated thc burden and financial cxpense of rllquesting Plaintiff to rcturn to Pa. for an
examination, but failed to do so.
Second, for nearly a year Defendant insurancc company could havc completed thcir medical
examination of Plaintiff by simply paying for the travel cxpcnses necessary to bring her back to
Pennsylvania to the doctor of their choosing, as discussed above, but failed to do so.
Third, Defendant insurance company, knowing that Plaintiffs were not Pennsylvania
residents allhe time of this accident or at the time of the filing of the Complaint, could have hired
a physician in Georgia, the stale where Plaintiff currently resides, to examine her, but failed to do
so.
Fourth,the entire extentofPlaintill's injuries and medical treatment was known to Defendant
insurance company in January 1998, the month of Plaintill's last medical appointment and
deposition. Knowing that they were unwilling to pay to bring Plaintiff back to their Pennsylvania
doctor, Defendant insurance company has had an opportuni ty to file a Motion to Compel since
January, but failed to file said motion until several days prior to the August 18, 1998 Call of the List
in an attempt to now use this fictitious discovery dispute as a reason to continue delaying the trial
of this matter.
Plaintiff are entitled to their day in court and Plaintiff Christopher Bugel has already made
arrangements to be absent from work during the September trial term in order to return to
Pennsylvania for the trial of this matter and Plaintiff Victoria Bugel has made child care
arrangements for her toddler. Defendant's failure to use the tools available to them to resolve
discovery matters is clearly not a legitimate reason to delay a trial. In light of the fact that Defendant
insurance company has failed to complete the medical examination of Plaintiff given all of the above
mentioned options available to it, PlaintitTs have no guarantee that Defendant insurance company
will ever conduct their medical examination if the trial is removed from the September trial term.
Not only have Plaintiffs sustained physical injuries as a result ofthe negligence of Defendant
Hlmry, Plaintiffs will be doubly penalized if they are required to bear the financial burden of
retuming to Pennsylvania for a defense medical examination and be forced to postpone the trial of
this matter.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 21M day of August, 1998, a true and correct copy of
Plaintiffs' Response to Motion of Defendant. Doris M. Henrv. to Compel Plaintiff Victoria A.
BUlZel's Attendance at an Independent Medical Examination. with Travel and LodllinlJ Expenses to
be Paid bv Plaintiffs was mailed first class, postage prepaid to the following:
Amy Fo:rster, Esquire
Hartman, & Miller, P.C.
126-128 Walnut Street
Harrisburg, PA 17101
GRAHAM & MAUER
By:
: - - , , - . , . -" -. " ",-' ~' .. - r'..~..r... "":v' , .6Ij.."-;1.;,",.,f.'t":c:." 04J11jrt'I.~
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1129/98 orlICI VISIT' rhh pathnt la ...n ln fuUlIY.up. Sill 11 now 16 Ilontll. line.
the ledd.nt. She contlnuu co h.... pni., III her 1I1~ ~or..l laCaral r1cht toOt
wltb '0"1 1l1,ht ,wallin,. it',.n achi' vaLn .nd it '. vor..n.d by thln,. .uch
.. bdna on h.r foot .11 d'1, cloanln" .0Ul~t1Jlt. flut thiD, in the .ornina.
wltb .ny Lnen... in Icthit1.. .uch M a lot of' wdkina .illply around ch.
ndfhborhood or jUllpinll Oil . trnll!I.,Un. which if intolerable for har. She
L1n t able to do har hou..work .nd ..<lrc1o. U Iluch .. .h. would Uk. to but.
It i. ,"n.r.ll)' tol.rabl. p.r la, .v." . vaTY light a.robic work~ut i. not v.ry
tol.rehll. She Uk.. "uCtin 600 .... oCCuion.lly, It'. uHf in the IIOrUn,.
--..... ..... ....... .. . .-.----.-.....
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DOli 10/6/"
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Sh. h.. '0'" h.d .ymptOIl. but mOil Df thaI. an in the fracture dt. ana a.
not.d. Th. orthoticl hn. not bun IIdp!"i. TII.y hav.n't bun IDod1thd any
furthar thou,h and Ih. didll't hova th... with her torlay, Wh.n ,olng to the .ho.
.tora, .h. Und. chIC the rigllt root 11 obllut on.-half Ih. lu,u cllan tll.
Itft b.c.u.. 0 f thl .w.UiIlS'
IXAHIHATIONI Sh. haa vary mild .wdUnll in ch. dornl htual rl,hc .1dfoot
"!th t.nduQlU ovar the lr" and 4th cnul. l1eratu..lI particularly w:lth the
ertpitu. .till notad whln ! mOVe thie Joint dorsally alld plantarYard. H.r
ov.rall loot po.tura La "chf.ctory. Nu lit'" KMraya "'.ro Cak.n at th1l till..
IllPIlESSIOH:
StatuI pOlt frnccure toronl. m.tatanal erUculatlon. 2, 3.
4 rlgllt Coot "'ith p.rsistont .yuo.l~h an" Id1d pOlt trau.aUc:
arthrich,
AECOHKr./DATIONI I CuI" h.r tllDt .t thlo 1,.,lnt in thl it's ,oinl cn laaC
lon,.r, a1thougll I can' t l)r.~i.t axactly IIow 10llg, It could bo that .h.'
perllan.ntly wIll have 1)'.ptO"o ur it ..ny ~o gon. in a couple y..u. 1 think
Chat ah. w111 han to badcdJy ."".pt thnt and try to d~ all tho duti.. of
her uaulor lih, dthou,h Ivp~untly ah. i. felUnS bad Ibout not bt1nS .ble
to do lI.r hou""'ork U :\luch a. Ih. woul~ 11k. to or uercial II ..uch II ah.
would lilt. to. I to 1" h.r thlt I .t1ll woul~ not r.co....nd aUller)' wieh
do&rld..,lnt cr luaton al it lIa)' noe ...ko hur any b.ttor and it could lIakl hit
won.. I IUSSllt.d ,h. Ihoul~ 81v. it At hlllt another year, but if it 11
incohrable .nd .ho 1a Corcod to do lomp.thlos. "'. might consider .urlicd
d.brido...nt with Euaton. I wouhl Uk. tll an her ill follow-up i~ 9 co IS
.0Dth. wllln Ih. cnll nrans" ic back uv hart. It Ih. dun Want anotbor opinion,
I IU"I.ud an orchop.dlc foot .nd Inkh .'''II"on ,valuation .ay b. hlIpful.
AJH/lta. '
"
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ved Jun-17-98 11:84 from 717 545 9729 ~ 16189838578
JUN-I?-" 11'la ~H TW.LU. T.... ?I? S4S .?a.
pag. 11
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ODIO ..... Dr, ........ llallllll, .. I_It 01.,. 01 1M ..-41... II HI .._01,
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anlor ....uIriftI Dr. _n .. .,.....11I "nob...._ .1 bll.._ lot IIlo .....11.....
hi' lMot --. .. ..... Ill. IoIIowlDc Dr40r 01 ColIn,
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""nb, _rod 1Il.1 Dr. II. IuPM ......... .".U .,,..,11I PlI......... lor lilt '"1IIf
alllll._IU.... a'olllllt 1IIlII.... ....raI.n'lO lilt pull.. ,...Ided IIlaI ,lalalW, II
1_ _ _k prior 10 IIlo ..... 01 1M "poIIlI""'. prooINo ..........1. lRl1tpClNlloe
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...ice ....a.. 4007, ..I/uII, look 10 _ ,Ot.... ..,........ Tlwtt I.In."., 10 III ,.,.IIt,
lIlC....... _'''''''11. ... """', ......-a.1ee _.......,.. ""-' _ Ift,,.,.,_
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2.
ERIE.
STEVEN L IoI2T lLfR. Ale, AIM
-_..__._~-
ERIE INSURANCE GROUP
Eltlll1Ch OIftca . 4901 LoW.. Ct. . Aoumoyne BUlineu Cenl8l . P.O. Ilo.< 2013 . MecIwlnoc:lIlutg, PA 17011&-O710
(717) 795-8200 . Toll F.oe 1-800-382-13004 . Fax (717) 795-2315 . hnpJ_._lNUIlII1C. com
November 17, 1997
Lisa Mauer, Esq,
Law Firm of Corchin, Graham, Rosalo" Mauer, P,C,
The Commons at Valley Forge, Suite 7
P,O, Boll 987-23
Valley Forge, PA 19482
Re: ERlB Claim
ERlB INured:
Dale of Lou:
Your Cllenu:
1010170264270
Roy Henry
9/29/96
Chrlatopher" VIctoria BUlel
Dear Lisa:
This lener will serve to confirm our rcccnllelephone conversation,
I am aware that you wanted scheduled the depositions of your cllenls (or Ihe lut week of January due to the
fact that they are moving out of the area.
Also per tIw conversalion, you have granled us a 3O-day elllension 10 flIe an II1Iwer (rom today'a dale.
I lhank you for your cOnlinued cooperation in this malter.
Sincerely,
'Sv.., ._ ('",. f?~
Susan 0, Philion, AIC
Clalma AdJusler
P,O, Box A
Enola, PA 17025
(717) 732.7859
SGP:nni
330305
Defcndant has stated in her Pre-Trial Memorandum lhat PlaintiffBugcl is not entitled to such
a charge because she has failed 10 produce a vocalion expert report in support of her allegarions that
she has indeed suffered a loss of earning capacity. No expert testimony is required in Pennsylvania
to show loss of earning capacity. Garv v. Mankamyer, 485 Pa, 525,405 A,2d 87 (1979),
Defendant also states thai, since there is absolulely no evidence that Mrs. Bugel is physically
incapable of performing c1crical work, she docs 1101 have a viable claim for a loss in earning capacity
resulting from this motor vehicle crash,
The law in Pennsylvania clearly slates that in order for a plaintiff to be worthy of a charge
on diminished earning capacity, plaintill's injury must be permanent and result in plaintifTrestricting
her occupational activities in thc future, Janson v, HUl!hes. 309 Pa,Super, 399, 455 A,2d 670 (1982),
The plaintifTmust establish that hcr economic horizon has been shortened, Kearns vs, Clark, 343
) Pa,Super 30, 493 A,2d 1358 (1985), Thc tcst for impaired eaming capacity is whether the economic
horizon of the disabled pcrson has been shortened because oflhe injuries sustained as a result of the
tort feasor's negligence, Hardin!! v. Consolidated Rail Com, 423 Pa,Super 208, 620 A,2d 1185
(\ 993),
...)
In the case at bar, bolh parties have stipulated that this motor vehicle accident was caused
by Defendant's negligence, Plaintill's treating physician, Dr, Mira, has opined that Plaintill's foot
fractures were caused by said motor vehicle accidenl and lhat he does not see her going back to
waitressing in the future, It is not relevanl that Plainliffwas unemployed at the time of this accident.
Earning capacity for purposes of dctermining damages lor loss thereof. has to do with the injured
person's economic horizons, nol aclllal carnings, Ruzzi v, Butlcr Pelroleum Co. 527 Pa, 1,588 A,2d
I (1991), A plaintiff may be enlilled to a charge on lost earning capacity even though he has
suffered no actual wage loss as of the time oflrial. Bochar v, lB, Motors. 374 Pa, 240,97 A.2d 813
')
(1953), "Where the plainti IT proves thai he has been impaired in his ability to perform the duties
connected with his employmel1t, lhe jury can award him damages for the future lOBS of earning
power even though he has not presented evidence lranslaling that loss into a precise monetary figure.
Pratt v. Stein, 298 Pa,Super 92, 444 A,2d 674 (1982), citing Pennsylvania Trial Guide ~34,27 at 26,
Respeclfully submitted.
GRAHAM & MAUER. P.C.
By:
. /, J . ,.
,'7', ,1.1 ~,ili(j:/ i
LISA J, MMJE~SQUlRE
Attorney ftft Plaintiff
~)
,
Date: September 14,1998
...)
1
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 14lh day of September, 1998, a true and correct copy of
a Briefin SlIpport of Plaintiffs' Motion in Limine in Support of the Jurv Insl1llction on Future Lost
Eaminll C~acity was hand delivered to the following:
Amy Foerster, Esquire
Hartman, & Miller, P,C,
126-128 Walnut Street
Harrisburg, PA 17101
GRAHAM & MAUER
By:
~
.,
.j
,
-,
\
Defendant has stated in her Pre-Trial Memorandum that PlaintiffBugel is not entitled to such
a charge because she has failed to produce a vocation expert report in support of her allegations that
she has indeed suffered a loss ofeaming capacity, No expert testimony is required in Pennsylvania
to show loss of earning capacity, Gal)' v, Mankamver, 485 Pa. 525,405 A,2d 87 (1979),
Defendant also states that, since there is absolutely no evidence that Mrs, Bugel is physically
incapable of performing clerical work, she does not have a viable claim for a loss in earning capacity
resulting from this motor vehicle crash,
The law in Pennsylvania clearly stat(;s that in order for a plaintiff to be worthy ofa charge
on diminished earning capacity, plainti ffs inj ury must be permanent and result in plaintiffrestricting
her occupational activities in the future, Janson v, HUl:hes, 309 Pa,Super. 399,455 A.2d 670 (1982).
The plaintiffmust establish that her economic horizon has been shortened, Kearns vs. Clark, 343
Pa,Super 30, 493 A,2d 1358 (1985), The tesl for impaired earning capacity is whether the economic
horizon of the disabled person has been shortened because of the injuries sustained as a result of the
tort feasor's negligence. Hardin\! Y. Consolidated Rail Com, 423 Pa,Super 208,620 A,2d 1185
( 1993),
In the case at bar, both parties have stipulated that this motor vehicle accident was caused
by Defendant's negligcnee, Plaintill's treating physician, Dr, Mira, has opined that Plaintill's foot
fractures were caused by said motor vehicle accident and that he does not see hcr going back to
waitressing in the future, It is not relevant lhal Plaintiffwas unemployed at the time ofthis accident.
Earning capacity for purposes of dctermining damagcs for loss thereof, has to do with the injured
person's economic horizons, not actual earnings, Ruzzi v, Butler Petroleum Co, 527 Pa, 1,588 A.2d
I (1991). A plaintiff may be entilled to a charge on lost earning capacity even though he has
suffered no actual wage loss as of the time oftrial. Bocharv, J.B, Motors, 374 Pa, 240,97 A,2d 813
~
'\
(1953), "Where the plaintiff proves that he has been impaired in his ability to perform the duties
connected with his employment, the jury can award him damages for the future loss of earning
power even though he has not presented evidence translating that loss into a precise monetary figure.
Pratt v, Stein, 298 Pa,Super 92, 444 A.2d 674 (1982). ciling Pennsylvania Trial Guide ~34,27 at 26,
Respectfully submitted,
GRAHAM & MAUER, P.C.
By:
Date: September 14,1998
)
"
~
',II I' : II;, ,1"':11'
I ~, ,I I I I, ,: I
,
IIARTM/\N & MILI,IK "('
1\ I J 1 Ii(~, I \" .\ I L,\ IV
IJ,.. "~XWAINI"r"'IIHFI.}-t.\K~'III.JlI"P,,\ Illll]' 1"III'lh,oJ! C~17i.'.I': Ilqi,. Wnn,-';nlln.ll"\
I \, ~[MI1" (;17) '.'J.' l'd~. J-:M;\II II I\hq,.I"IlI11ll' , l'ln
Jill
1.\1 lr.. \l II "kl Mi\N
DAVUJ C Mn.uJ.:
f..lnJ."lll\S ~;Hll(\l'
KrVT'J L (l:->NIRI\.I"
PIUw I' t;.\N,'.ll ':~
,\MY t' F(II'Il"IER
()IJVrw C llVI-:RI.ANI 'ullll
TAM"i\ MtK11;\
S"I'I'''"her II), 1998
Thc Illlllomhlt. J Wesley Okr, Jr.
Cllmberland Cuunly ('ollrth,'l1s.,
ClIIC Court Ilollsc S<JlIM"
Clrlislc,l'A 170lJ3JM7
tfN ;"3a
~ff~
I~c: Victoria 1\, Ihl~,'1 and Chrisllll'hcr 1I0~,,1 v. ll11ri~ 1\<1, IIclIry
Cumberlnuu ('o"nly No, I'J'I7.hOti~
Dear Judge Olcr:
I rcprc~clltthe Dcrcnd:ullll1l1ll' abo,,, rdcrenccd maller, which IS ~chcdlll"d 11.1 h"lWl
trial in fwnl of you :11 1:30 P,J11. lodn}. All i,:,uc ilfOSC 1,llc y,,:sh'lIlay alicrnoon Ihall would like
III dr:IW III Y(lIlr altCl1110n II1lh,' ,'v~lIllhal you h:11'l' Ihe "pp".tllllily 10 gil'l' II YOllr wllsidcr;uioll
prior In any prclrialllll~"liIlU ill your d.alllhcrs Ihis anCllllltlll.
As you may I'~call. in an ()I'd~r d"led .-\U~,U'I :'(', )1)1)8, Jlldge I kss rcs.')wd "II
oUI~!;lI1dinl~ 1.1\-1.1'. i""" by rulillg Ih;lIl1cl"'lllanl I"" ':lIlil"''' Il' ~dlc':lIlc an I.t-I.E. or 1'1:llnllll
tal' Monday. Scplcmbcr I~, 19l)~. 1'111,11\11.' lYle, schedubl wilh Dr. Rohen Muufl,r,ror .1:00
p.lIl. on Scplemocr I ,It II. l'olkl\I'illg Ihe 1.1\1-"., thc dclcn$c lIludc Ihc dctcl'111lnnlion thallhcy
would nolllO'I""sl a \\'rillCII rcporl from Dr Mallrcl, all" would 1I0t hc calliog him (IS an '~~lll'rt "I
lrial. This pl(lll IV(lS cull\'cyed 10 PI"inlil'l', (.r1un"c1, I.is" Mauer, allll" vilkolapc d"posili,,,, of
Plailltiffs' expcrt. Dr. Mira, on Mondn)' c\'<'lliug. :\lIllmc)' Mau"r did mIl indicale 111,,1 sll(' Illld
allY ohjcellOn 10lhis .:lIoi.... olllil\' (Janor Ihc Dclcnd,lIll.
At 5:00 p.lll. ycstcrday, h\,w""'I, I r('n:l\nl" fax li'olll !\lIorllC) M"uer':; par"it'l!1I1.
includillJ.l:I Subpoena IlIlcsllly al trial IIhidl was "pparcl1ll)' i.,sucd uplln Dr. 1\101111\'1'. Thc
dcCcnsc nbjccls In Plaintiffs' allempl tll haw Dr. Maurl'r tesliry '1IIri;11. Ill', ~'Iaurcr was e1I';II'))
nol onc of Plainlilrs trclllinl' phy,id,lus, ano C(lnllllllCslir)' illlhal 1'(lpaCII). II.' 11'01' not
idcntif,cd as a willll'" hy Plailllil'!:' inlheir I'rclrinl M,'III1I1'''.IIII1I11 PI""l1i1h ",,", 11111 pfl,dllce""
rcporl aUlhored hv Ill'. I\lalllel', uor h:I\'c Ihcy idenlllkd hilll "" 1lI1 expert III 1t'.',lil)' i1llrialund."
1'", R,C'.p. -100J S d,'spite disco\'cry reque'b "Tkill!! Ih\' idclllity IIralll!,\p"J1 wilnesscs 10 l"sliry
allrial. Furthcrlllurc, Pluinlin:, shonl" 1101 hI' "lIllwcd 10 do so allhi. l"le LlllIc, Dr, Maurer
should 1I0t, Ihcrcl(ll'C, h<, <'Ilmpcll,," 10 1"5Iil\ liS ,m <,.xpcrl onPlalulifl~' beh"l!'.
'.II'.lt.l"l"j:: 11":11'
fUIIII!,,!1
'Ill i If. Ii
~ I I I I
Thunk you t.w y,1ur ~11l"Jer,lll,,"..1 rhis 1Il"lIer.
V~r)' 11(11)' yuurs,
&1Ul41
Amy C. Foerster
ACF:blw
ce: Lisa.l, MolUer, ES(llIlr~ (via fae:;;rnil. 61(J.()H.1.0~"O)
'IJlIII. I 11
':t/,'-lt:."\',I'r.: 1l"':111 Ih.I.llh,IJ liill fl., 1
'HAHTMAN & !\II 1.1 ,EH. 1',(', . ATTOIPiEYS AT LA W
I .ll! "
't-.i'6.'TIi\VAlNlJI s~~. "U IlfT''\~I,.l,KKjSlllii(~ I 11j~,II';,~r-
rUE;I'llnNE lilll.'I! Jf).ltJ.. h\t'SIMlIl' I 'I!) ~ l.~ H'II
FACSIMILE
To'
,l.kdje. ..fl/p/, ',L.c.JJa..Ln h.R..(~
Company:
Fax Number: _91Itl'7!o 'i<iLQ
Dale: ..2-1(0 .m
from: ilJJty.fb.~4:.1"1 L2f
(';7. -77\
Tillie: _0 . :s y. a. ..!:!2 '.
bl. & 3-- ____
Message~
,_(~C.~j'd'~~ ~e.r:,.....L-Scj_ ((; /()~ 98..:?J . Q~lO)
~._.~._---- .-------.----------.-
""---.--... _____n___ ''7\
We arc lransmillmg -,_...2--- .. _ p"g,,~, Inell/ding Ih,~ <Jne.
NOTICE OF CONFIDENTIALITY: The Slalcl1ll'nls UpOIl "lid any documelll~ indllded IVllh !hi~
facsimik Irmsmittal sheet culllaHI infnrm:ltionliOlllthe (It1ke ,'I' Ilartman & ~lill,'r. r.c.,
Attorneys OIl Law, IhallS contidcllllal. privikged and exempl frllm thsclosur,' IImkr applicahlt'
laws, This inlorm;uion IS IIlIellded 10 be fllr 'he exclll'""c use "rlhe lIallled a,hhessc,!. Jfyou arc
110tlhe addressee, 1I0le that aoy discloslUc, cO!lYlng, d:slflUlltillll nr use of'he cnrlll'lIts ,'flhi:;
Iral1S1toual is prohibited, (fyuu ha.c rccciwd Ihl:; Llt',imilt':1I errllf,I'!c;\:iC illlrtledlaldy n,'llly
liS '" 7 J 7-21~-3(J.lti (eullecl) so lhal we ':;111 amlllgl' r'lI the relnl~.;d or Ihe Ilngill,,1 <I''':IIIII\'IIIS ,II
110 cas! IU you.
< TRANSACTION REPORT >
09-16-1998(l~O) 08:48
[ RECEIVE J
NO,
8190
DATE T I'E
9-16 08:46
DESTIWoTION ST:.TIOtl
FlO, DURATION IlOC'E
~E ~u.. ,
3 O' 01 '27- rlOl'r1AL 0.
3 0'01'27'
VICTORIA A. BUGEL and
CHRISTOPHER BUGEL,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
CIVIL ACTION - LAW
v.
NO. 1997-6064
DORIS M, HENRY,
Defendant
JURY TRIAL DEMANDED
BRIEF IN SUPPORT OF THE MOTION IN LIMINE
OF DEFENDANT. DORIS M. HENRY
Defendant, Doris M, Henry, by and through her attorneys, Hartman & Miller, P,C"
respectfully requests that this Honorable Court make the following evidentiary determinations in
.limi.nl: to the effect that Plaintiffs, their counsel. representatives, and witnesses, be inr.tructed to
refrain from making any mention, directly or indirectly, in any manner whatsoever, during
opening statemenlS, examination of witnesses, objections, closing arguments, or otherwise, of the
fact that Plaintiff, Victoria A. Bugel, allegedly became pregnant subsequent to the autornobile
accident in question and suffered a miscarriage. or that she should not get pregnant at this time
because her injuries would allegedly cause her difficulties,
L STATEMENTOFTHE FACTS
With regard to damages. Plaintiffs' Complaint sets forth a personal injury claim on behalf
of Victoria A. Bugel (hereinafter "Mrs, Bugel"), and a loss of consortium claim on behalf of her
husband, Christopher Bugel (hereinafter "Mr, Bugel"), Specifically, Plaintiffs allege that Mrs.
Bugel suffered "injuries to the bones, muscles, tissues, and ligaments of her right foot, injuries to
her knees, right ankle, and face. headaches, [and] shock and injury to the nerves and nervous
system," (Complaint, paragraph 10,) It is further alleged lhat Mrs, Bugel has been, and may
continue to be in the future, ullable to attend to her usual habits, customs, vocation, and enjoyment
of life; has been in the past, and may continue to be ill the future, required to undergo medical
treatment and procedures; has in the past. and may continue to be in the future, required to spend
great sums of money for medical treatments and procedures as a result of her injuries; and has
been unable to engage in her occupation and, therefore, has in the past and may in the future
continue to suffer a loss of income and/or loss of earning capacity. (Complaint, paragraphs 11-
14.)
U. ARGUMENT
Evidence is relevant only if it tends to establish some fact material to the case, or tends to
make a fact at issue more or less probable. Leonard Packel and Anne Bowen Poulin,
Pennsylvania Evidence, ~ 403 (1987), Any evidence related to Victoria Bugel's alleged
miscarriage, and the Plaintiffs' opinion that Mrs, Bugel should not get pregnant due to this injury,
is clearly irrelevant, as no claim for such damages has been made,' Although Plaintiffs' have
made a claim for "loss of life's pleasures", such a claim contemplates an Inability to enjoy life's
pleasures as a result of one's injuries, not a selective decision to forego life's pleasures based on
subjective complaints of pain, fu Pa,S,SJ,I. (Cir) 6,011.
I It should be noted that at the Pretrial Conference held in this rnatter before The
Honorable Kevin A. Hess, Plaintiffs' counsel, Lisa Mauer, indicated that Plaintiffs' expert, Dr,
Mira would not testify regarding the issue of pregnancy, but that Victoria Bugel herself would
testify that the added weight of pregnancy would cause additional difficulties with her foot. Dr.
Mira's deposition, during which he indeed did not address the issue of pregnancy, was taken on
September 14, 1998.
2
Furthermore, there is absolutely no medical evidence, from Dr, Mira or otherwise,
supporting Victoria Bugel's deposition testimony that she may have suffered a miscarriage as a
result of the over-the-counter pain medication lhat she was taking to treat her foot injury, nor that
she should wait to get pregnant because of the extra pain and swelling lhat it may cause her foot
and because she would have to stop taking her pain medication, Mrs, Bugel herself is not a
physician, and should not be allowed to render such a medical opinion, Moreover, any statements
allegedly made by Dr, Mira to Mrs, Buge1 regarding this matter would constitute inadmissible
hearsay, and Mrs, Bugel should not, therefore. be allowed to testify regarding any such
conversations,
Additionally, "[a] trial court may properly exclude evidence ifits probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury," pennsylvania Evidence, ~ 403, There is no medical evidence supporting Plaintiffs'
assertion that Mrs, Bugel was ever pregnant or that, if she was pregnant, she suffered a
miscarriage as a result of the pain medications which she was taking, Even if she did lose a child
as a result of pain medications, Defendant certainly had no control over the medications which
Mrs, Bugel was taking over-the-counter and/or by prescriplion, Furthermore, there was a note in
the medical records regarding Mrs, Bugel falling on some stairs in June of 1997, and there is no
evidence to negate the possibility that her miscarriage, which she allegedly suffered sometime that
month, was due to the fall rather than the medication which she was taking, With regard to Mrs.
and Mrs, Bugel's testimony that Mrs, Bugel should not get pregnant at this lime. there is no
medical evidence supporting this claim, The prejudicial effect of this unsubstantiated deposition
3
testimony subslantially outweighs a'lY probative value which it may provide as to Mrs, Bugel's
claims, Furthermore, Plaintiffs should not be allowed to make a monetary claim for their decision
not 10 have additional children without acknowledging the corresponding cost of raising children,
which would have to be set off against their c1airn,
IY. CONCLUSION
Based upon the reasons set forth above, and those contained in Defendant's Motion in
Limine, Defendant, Doris M, Hel1ry, respectfully requests that this Honorable Court enter an
Order precluding Plaintiffs, their counsel, representatives, and witnesses, from making any
mention, directly or indirectly, during opening statements, examination of witnesses, objections,
closing arguments, or otherwise, of the fact that Plaintiff, Victoria A. Bugel. allegedly became
pregnant subsequent to the accident in question and suffered a miscarriage, or that she should not
get pregnant at this time because her injuries would allegedly cause her difficulties,
Respectfully submitted,
HARTMAN & MILLER, P,C,
Dated:
9//6/%
By:
y . oerster, Es uire
Supreme Court I.D, #77986
126-128 Walnut Street
Harrisburg, PA 17\01
(717) 232-3046
Attorneys for Defendant, Doris M, Henry
4
GRAHAM &. MAUER, P.C.
By: Lisa J, Maucr, Esquire
Attorney I.D, #65426
Suitc 22, Valley Forge Commons
P,O, Box 987
Valley Forge, Pennsylvania 19482
Phone: 610/933-3333
Attorney for Plaintiff
VICTORIA A. BUGEL and.
CHRISTOPHER BUGEL,
as husband and wife
THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
Plainti ff
CIVIL ACTION - LAW
VB,
No, 97-6064
DORIS M. HENRY
Defendant
JURY TRIAL DEMANDED
PRAECIPE FOR DETERMINATION
TO THE PROTHONOT AR Y:
Please subrnit the following Motion in Limine in Support of the Jurv Instruction on Future
Lost Eaminll CaDacitv to Judge Oler for determination,
Respectfully submitted,
GRAHAM &. MAUER, P.C.
-,.;,J
Date: September 14,1998
--...J
GRAHAM & MAUER, P,C.
By: Lisa J, Mauer, Esquire
AlIorney I,D, 1165426
Suite 22, Valley Forge Commons
P,O, Box 987
Valley Forge, Pennsylvania 19482
Phone: 610/933-3333
AlIorney for Plaintiff
VICTORIA A. BUGEL and,
CHRISTOPHER BUGEL.
as husband and wife
THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYL VANIA
Plaintiff
CIVIL ACTION - LAW
vs.
No, 97-6064
DORIS M. HENRY
Defendant
JURY TRIAL DEMANDED
PLAINTIFFS' MOTION IN LIMINE IN SUPPORT OF THE JURY INSTRUCTION
) ON FUTURE LOST EARNING CAPACITY Pa,S.S.J.I. 6.0ID
1. On September 29, 1996, Plaintiff Victoria Bugel was involved in an automobile accident
in Cumberland County,
2, Plaintiff Victoria Bugel sustained numerous injuries, including three fractures to her
right foot.
3, Plaintiff Victoria Bugel was primarily treated for said foot injuries, by Allan Mira,
M.o" an orthopedic surgeon in Carlisle. Pennsylvania,
4, Plaintiff Victoria Bugel's deposilion was taken on January 30, 1998, At her deposition
Plaintiff testified that she had been employed as a waitress in the past, although was unemployed at
the time of this accident. (N,T, 8-9) (Please see relevant pages of Plaintiff's deposition attached
--'
hereto as Exhibit A.)
5, Plaintiff Victoria Bugel further leslified that she had planned to retum to a waitressing
pOloition after her child reached the age of one, but is unable to do so because of the injury to her
foot. (N.!. 12-13).
6. Dr, Allan Mira opined ill his expert report that Plaintiff's condition is permanent and
that he cannot see her performing a job such as waitressing, (Please see Dr, Mira's expert report,
attached hereto as Exhibit B,)
WHEREFORE, Plainliff Victoria Bugel requests that this Honorable Court charge the jury
with the Future Loss of Earnings and Lost Earning Capacity Instruction, (Pa.SSJI 6.0 I D)
Respectfully submitted,
GRAHAM & MAUER, P.C.
By:
.to
Date: September 14,1998
\
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 14th day of September, 1998, a true and correct copy of
a Motion in Limine in Support of the Jurv Instruction on Future Lost Earnini Capaci~ wu hand
delivered to the following:
Amy Foerster, Esquire
Hartman, & Miller, P,C.
126-128 Walnut Street
Harrisburg, PA 17101
GRAHAM & MAUER
)
By:
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2 A.
3
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6
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14
15 A.
16 Q.
17
18
19
20 A.
21 Q.
22 A.
23 Q.
24 A.
25
Exam./Foerster - V. Bugel
8
time?
I had hoped to later pursue a teaching career
later on, but not go back to office executive
secretary.
Did you have any idea at that time -- I'm kind of
talking just when you left Tri-County
of when
you'd go back to pursue your teaching?
No.
Had you discussed this with your husband? Is
this something you
We weren't married at the time.
I was single
then.
Now I'd like to go through your employment
history a little bit.
Okay.
And you've already kind of alluded to it. But if
we went back again to when you were going to
school at Tri-County, were you working at that
time?
Yes, I worked at Pizza Hut as a waitress.
And how many hours a week were you working?
I worked basically 35 to 38.
Wow, while going to school?
Yes.
I stayed very busy.
I didn't have time for
a man.
FlLlUSl. ,\"WCIS REPORT/....C SERVICE
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15 Q.
16 A.
17
18
19
20
21 Q.
22 A.
23 Q.
24 A.
25
'-
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Exam./Foerster - V. Bugel
9
And how much did you make? Was it an hourly
wage, I assume?
Yes. I made 2.13, plus my tips, and that could
go all th~ way up to $22 an hour sometimes.
And why did you leave your waitressing job then?
I was not married and had no insurance, and I
wanted a job that I would have medical insurance,
health insurance.
And that's when you began working?
At Clifton Precision.
And where was that?
That's in Murphy, North Carolina, also.
And how many hours a week were you working there?
40 hours.
And how much were you making per hour?
I made like 4.65, but I worked quite a few
overtime. They always had -- My line always
worked overtime. So I probably had about 10
hours' overtime every week. So it was about 50
hours, then.
And what did you do there?
I was an assembly worker. I wound coils.
And why did you decide to leave Clifton?
We moved to Decatur, Alabama, my husband and I.
We met at Clifton precision and was married and
FILIUS [. ,1r.-U/CoH RCrORTJ,\IG SCRVICE
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Exam./Foerster - V. Bugel
12
'\
1
A.
In a way, it was.
I had to take down all this
"-
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2
on the back of refrigerators, the model number,
3
serial n~mber, what was wrong with it.
It was
4
like an inventory kind of checklist, stuff like
5
that. I had to have all that down precisely,
6
because we had to go punch it into the computer
7
and then they had to be taken out one by one. So
8
you could not mess up on it.
9
Q.
Did you work for anybody else when you were with
10
the temporary agency?
11
A.
No.
12
Q.
And why did you leave General Electric in
13
November of '95?
14
A.
Because my baby was due December 1995. I quit
15
like a little over two weeks before she was born.
16
Q.
When you left that job, did you have any
17
intentions of going back to work in the near
18
future or were you going to stay home? Was it
19
your plan to stay home with the baby or did you
20
have any idea?
21
A.
No, I had planned on returning to work after she
22
was one year old.
23
Q.
And did you have any idea what you had planned to
24
return to doing?
25
A.
Hopefully, waitressing.
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19 A.
20 Q.
21
22
23
24
25
Exam./Foerster - V. Bugel
13
But you had no set plans at that time?
No,
And now, just sitting here today, do you have any
future plans of going back to work?
I can't really because of the injury of my foot,
It would be too painful to go back and do
waitressing or do like the job that I had at G!.
I was on my feet there all day long, also. I
walked around constantly there.
Now, just so I have my time frame right, you left
there in November of '95 and you came up here
about a year later, August of '96 or something
like that?
Yes, correct.
During that time period, you were home with the
baby?
Yes.
And that's what you intended to do?
Yes. Until she was one year old.
Let's just move ahead to the accident itself.
Because of discussions your attorney end I have
had earlier, we don't need to go through the
actual accident and what happened.
I'm just
interested in what happened to you, like what you
were doing immediately prior to the accident and
FILIUS t.'f .\kLUC.lS REPORTING SCRrlCC
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Bugel, Victoria
Paga 2
July 6. 1998
Her symptoms includa an achy pain that is worsa by being on har teat tor long
periods of time including household claaning. taking a walk. axarciaing or
shopping. Pain is also p.esent tha tirst thing in the morning when sha gata up on
her feet and also precludes any more strenuous things such as playing with her
child, running or jumping. Nonsteroidal anti-inllallUllatory medicationa have not
been especially helpful. In addition. shoe modifiestions with orthotics have not
been helpful. Her orthopedic examination shows that she has aome persistent
swelling over the region of the injury with some crepitation when streadng theee
jointa.
My preaent opinion is that Mrs. Bugel haa poat-traumatic arthritis of the
midfoot on the right aecondary to intra-articular fractures at the basea of the
metatareals 2,3 and 4 on the right foot. This condition is caused by the injuries
the patient sustained in a motor vehicle accident of September 29, 1996. This
opinion is made with a ressonable degree of medical certainty.
Since the patient's condition has not responded at this point in time. more
than 16 months after the original injury. she has a permanent condition as
described above which will deteriorate very slowly with time. This impairment is
disabling to her in that ahe cannot optimally perform the duties of her household
chores snd the things she would like to do recreationally and for physical
conditioning. In addition. she had been a waitress in the past and I cannot see
her performing such a job for any substantial number of hours as a result of this
injury.
My recollUllendation for treatment at this time is the continued use of the
orthotics and alao to obtain another orthopedic opinion, perhapa from an orthopedic
foot and ankle specialiat either in Pennaylvania, perhaps at Herahey Medical
Center, or in North Carolina or Georgia near where she currently lives. It is
eonceivabl.. that 3he may have to undergo surgical debridement or fusion of the
joints in her foot as a result of this condition. Once again, it is my opinion
that this condition and the associated impairment and disability is a result of the
motor vehicle accident of September 29. 1996, to a reasonable degree of medical
certa1nt~'.
I hope this information io helpful to you. If you have any further questions.
please contact me.
SinndY.
"YJ ~-
AJH/kas
~
CORCHIN, GRAHAM, ROSATO' MAUER, P.C.
BY, LISA J. MAUBR, BSQUIRE
Attorney 1.0, 65426
The Commons at Valley Forge
Suite Seven, P.O. Box 987
Valley Forge, Pennsylvania 19402
(610) 933 -3333
Attorney for Plaintiffs
VICTORIA A. BUGEL and CHRISTOPHER
BUGEL, as husband and wife
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Docket No: 97-6064
vs.
DORIS M. HENRY
JURY TRIAL DEMANDED
STIPULATION
It is hereby stipulated between counsel for the parties
hereto that the Defendant, Doris M. Henry is solely and
proximately liable for the occurrence of the accident as alleged
in Plaintiffs' Complaint and that Plaintiffs, Victoria Bugel and
Christopher Bugel were in no way comparatively negligent for said
accident.
CORCHIN, GRAHAM, ROSATO r. MAUBR, P.C.
J.
~4...
LISA J.
'--- .
Attorney
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R, squire
r Plaintiff
HARTMAN , MILLER, P.C.
AMY~C~,
Attorney for Defendant
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21. Denied. It is specifically denied that the claims set
forth in Plaintiffs' Complaint are barred BY the operation of the
doctrine of the "Last Clear Chance," To the contrary, Defendant
Henry's negligence was the sole and proximate cause of all claims
set forth in Plaintiffs' Complaint,
22. Denied. It is specifically denied that any claim or
cause of action set forth in Plaintiffs' Complaint is barred by
the operation of Plaintiffs' assumption of a known risk. To the
contrary, Plaintiffs did not assume any known risk,
23. Denied. It is specifically denied that any claim or
cause of action set forth in Plaintiffs' Complaint was caused by
Plaintiffs' lack of familiarity with the area in which the
accident occurred. To the contrary, Defendant Henry's negligence
was the sole and proximate cause of all claims set forth in
Plaintiffs' Complaint.
24. Denied. It is specifically denied that any claim or
cause of action set forth in Plaintiffs' Complaint was caused by
Plaintiffs' lack of familiarity with the rental car which they
were driving. To the contrary, Defendant Henry's negligence was
the sole and proximate cause of all claims set forth in
Plaintiffs' Complaint.
25. Denied, It is specifically denied that any claim or
cause of action set forth in Plaintiffs' Complaint is barred by
the Statute of Limitations. To the contrary, Plaintiffs'
Complaint was timely filed.
26. Denied. It is specifically denied that any claim or
cause of action set forth in Plaintiffs' Complaint is barred or
limited by the Motor Vehicle Financial Responsibility Law as
codified at 75 Pa.C.S.A. 51701 et seq, To the contrary,
Plaintiffs' claims are supported by 75 Pa.C.S.A.51701 et seq. and
Defendant, Doris Henry's violations thereof.
27. Denied. It is specifically denied that the injuries
suffered by Plaintiff as a result of this accident are not the
result of any negligence on the part of Defendant, Henry, but
instead, existed prior to September 29, 1996 or are the result of
the pre-existing medical conditions or subsequent injuries of
Plaintiff. To the contrary, Plaintiff had neither pre-existing
nor subsequent injuries to the parts of her body which were
injured as a result of this accident.
28.
Denied.
It is specifically denied that any claim or
cause of action as set forth in Plaintiffs' Complaint on behalf of
Christopher Bugel is barred by the general release executed by him
WRIPICATION
I, Lisa J. Mauer, Esquire, hereby state that I am the attorney
for the Plaintiff in this Action and verify that the statements
made in the foregoing document are true and correct to the best of
my knowledge, information and belief.
I understand that the statements therein are made subject to
the penalties of 18 Pa.C.S. 54904 relating to unsworn falsification
to authorities. I am authorized to take this verification in this
absence of my clients who currently reside outside the jurisdiction
of the Court.
\
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,
VICTORIA A. BUGEL and
CHRISTOPHER HUGEL,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYL VANIA
I'lainli ffs
v,
CIVIL ACTION - LA W
DORIS M, HENRY,
NO, 1997.6064
Defendant
JURY TRIAL DEMANDED
NOTICE TO PLEAD
You are hereby notified to file a written response to the enclosed Answer and New Matter
within twenty (20) days from service hereof or ajudgment may be entered against you.
Respectfully submitted,
HARTMAN & MILLER, p,c.
By: f!1j. ~a~~
Supreme Ct. I.D, #21902
Amy C. Foerster, Esquire
Supreme Ct. I.D, #77986
126-128 Walnut Street
Harrisburg,PA 17101
(717) 232-3046
Attomeys for Defendant, Doris M, Henry
8, Th~ av~rm~nts I:ontail1.:d in paragraph 8 of PlainlitTs' ('omrlllint arc .:ondusions
of law or fact 10 whkh no response is nel:essary, To the extentlhlll a response is deem.:d
Ilel:essary. the averments are deni.:d pursuant to Pa, R.C.P, 1029(e).
9-15, The averments contained in paragraphs 9-15 of Plaintiffs' Complaint are
conclusions of law or fact to whil:h no r~sponse is n.:c.:ssary, To th.: .:xt~nt thai a response is
d<:<:m.:d necessary. th.: averments are d':l1ied pursuanl to Pa, R,C.P, 1029(e), By way of further
answer, D.:fendant h.:reby incorporates by ref~rel1ce paragraph 25 of her New Matter. as though
fully set forth herein,
16, No further response is necessary to paragraph 16,
17, After reasonable investigation, Henry lacks knowledge or information sufficient
to form a belief as to the truth of the averm.:nts contained in paragraph 17 of Plaintiffs'
Complaint; the averments are therefore denied. and strict proof lhereof is demanded at trial.
18, The averments contained in paragraph 18 of Plaintiffs' Complaint are conclusions
of law or fact to which no response is necessary, To the extent lhat a response is deemed
necessary. the averments are d.:nied pursuant to Pa, R,C.P, 1029(e),
WHEREFORE. Def.:ndant, Doris M, Henry. demands judgment in her favor and against
Plainliffs, and that Plaintiffs' Complaint be dismissed with prejudice and costs of this action,
NEW MATTER
19, The averments set forth in Plaintiffs' Complaint fail to state a claim or cause of
action against Defendant upon which reli.:f may be gral1ted,
20, Any claim or cause of action sel forth in Plaintiffs' Complaint is barred by
operation of the contribulory/comparalive negligence of PlaintitTs. as may he developed during
discovcry,
21. Any claim or cause of lII:tion set forth in Plaintiffs' Complaint is barred by
operution of the doctrine of "Last Clear Chance", as may be developed durinl! discovery,
22, Any claim or cause of aclion set forth in Plaintiffs' Complaint is barred by the
operution of Plaintiffs' assumption of a known risk. as muy be developed during discovery,
23, Any claim or cause of action set forth in Plaintiffs' Compluint was caused by
Plaintiffs' lack of familiarity with the area ill which the accident occurred,
24, Any claim or cause of aclion set forth in PlaintitTs' Compluint was caused by
Pluintiffs' lack of familiarity with the rental car which they were driving,
25, Any c1uim or cause of aclion set forth in Plaintiffs' Complaint is barred by the
applicable statute of limitations. including specifically, but not limited to, any claim or cause of
action which, by reason of lack of specificity of pleading, is not directly or specifically set forth
in the language of Plaintiffs' Complaint. but which Plaintiffs seek to raise at a later time by
further amendment, claiming to have preserved such claim or cause of action within Plaintiffs'
Complaint.
26, Any claim or cause of action set forth in Plaintiffs' Complaint is barred or limited
by the Motor Vehicle financial Responsibility Law, as coditied at 75 Pa, C,S,A. 91701 ~ ,llil,. as
may be developed during discovery,
27, The injuries alleged to have been suffered by PlaintitTas a result oflhis accident
are not the result of any negligence on the part of Defendant. but instead either existed prior to
September 29. 1996. or are the result of the preexisting medical conditions or subsequent injuries
of Plaintiffs,
28, Any claim or causc of actiol1 sct forth ill Plail1tiffs' Complaint on behalf of
Christopher Bugel is barred by the Gcncral Release executed by him llll June 23, 1997. as may be
developed during discovery,
WHEREFORE, Defendant, Doris M, Hcnry, demands judgment in her favor and against
Plaintiffs, and that Plaintiffs' Complaint be dismissed with prejudice and costs of this action,
Respectfully submitted,
HARTMAN & MILLER, P,C,
Dated: I /'J../q~
By: JfttJ.~}::.':C
Supreme Ct.I.D, #21902
Amy C, Foerster, Esquire
Supreme Ct. I.D, #77986
126-128 Walnut Street
Harrisburg. PA 17101
(717) 232-3046
Attorneys for Defendant, Doris M. Henry
VERIFICATION
.
I. Doris M, Henry, hereby verify and state that the facts set forth in the foregoing
document are true and correct to the best of my information, knowledge and belief, I understand
that false statements herein are made subjecl to the penalties of 18 Pa, C.S,A, Section 4904
relaling to unsworn verificatiol1 to authorities,
Daled:../) 1/1 .4 () / Jfl97
/
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Doris M. Hcnry
CERTIFICATE OF SERVICE
I, Amy C, Foerster. Esquire, hereby certify that I am this day serving a copy of the
foregoing document upon the person(s) and in the manner indicatcd below, which serviee
satisfies the requirements of thc Pennsylvania Rulcs of Civil Procedure. by depositing a copy of
same in the United States mail, first-class poslage prepaid, as follows:
Lisa J, Mauer. Esquire
Corchin, Graham, Rosato & Maucr, P,C,
The Cornmons at Valley Forge
Suite Seven, p, 0, Box 987
Valley Forge, PA 19482
(Counsel to Plaintiffs)
HARTMAN & MILLER. P,C,
Dated: 1/:;;/ f('
By: 11m, e~Lv"'
A~, Foerster, Esquire
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C I V I LAC T ION
COUHT I. - NBGLIGENCE
VICTORIA BUGEL v.. DORIS M. HENRY
1. Plaintiffs, Victoria Bugel and Christopher Bugel, are
adult individuals residing at 1124 Pheasant Drive North, Carlisle,
Cumberland County, Pennsylvania.
2. At all times relevant hereto, Christopher Bugel was the
driver and Victoria Bugel was a passenger of the 1996 Ford Contour
motor vehicle involved in the hereinafter mentioned accident.
3. Defendant Doris Henry, hereinafter Henry, is an adult
individual residing at 1516 Continental Rd., York, Pennsylvania and
at all times relevant hereto was the driver of the 1995 Ford motor
vehicle involved in the hereinafter mentioned accident.
4. Baltimore Pike, SR0034, is a public thoroughfare in the
municipality
Dickinson
Township,
County,
cumberland
of
Pennsylvania, running generally in a northerly and southerly
direction.
5. pine School Road is a public thoroughfare in the
municipality
Dickinson
Township,
Cumberland
county,
of
Pennsylvania, running generally in a easterly and westerly
direction.
6. On or about Sunday, September 29, 1996, at or about 5:26
p.m. Plaintiff Christopher Bugel was driving said motor vehicle
along Baltimore pikA in a northerly direction.
7. At the aforementioned date and time, Defendant Henry was
operating said ~otor vehicle along pine School Road in a easterly
direction.
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8. As the plaintiff, Christopher Bugel was proceeding
northbound, Defendant Henry disregarded a stop sign, causing her
motor vehicle to collide with Plaintiffs' vehicle.
9. Defendant, Henry was negligent and careless in the
operation of s~id motor vehicle for the following reasons which
include:
(a) In operating the vehicle at d high, dangerous and
excessive speed under the circumstances;
(b) In failing to have the vehicle under proper control;
(c) In continuing to operate the vehicle in a direction
towards the plaintiffs' vehicle when its operator saw or in the
p.xercise of reasonable diligence should have seen that further
operation in that direction would result in a collision;
(d) In that the driver was inattentive and failed to
maintain a lookout of the road and the other motor vehicles on the
road;
(e) In failing to operate the brakes in such a manner so
that the vehicle could be stopped in time t~ avoid the collision;
(f) In failing to observe the care and caution required
under the circumstances;
(g) In violating the various statutes pertaining to the
operation of motor vehicles on public thoroughfares under the
circumstances including 75 P.S.A. 3323 (b);
(h) In failing to remain stopped at the stop sign
located at the aforesaid intersection until it was safe to proceed;
(i) negligence per se.
10. As a direct and proximate result of Defendant Henry's
negligen=e and carelessness, and not due to any act or failure to
act on the part of Plaintiffs, Christopher and Victoria Bugel, said
Plaintiff victoria Bugel suffered great pain, traumatic anxiety,
and other injuries, some or all of which may be permanent,
including: injuries to the bonea, muscles, tissues and ligaments
of her right foot, injuries to her knees, right ankle and face,
headaches, shock and injury to the nerves and nervous system.
11. As a direct and proximate result of Defendant Henry's
negligence dnd carelessnE'ss, Plaintiff Victoria Bugel has been, and
may continue to be in the futurF.., unable to attend to her usual
habits, customs, vocation and enjoyment of life.
12. As a direct and proximate result of Defendant Henry's
negligence and carAlessness, Plaintiff Victoria Bugel has been in
the past, and may continue to be in the future, required to undergo
medical treatments and procedures.
13. As a direct and proximate result of Defendant Henry's
negligence and carelessness, Plaintiff victoria Bugel has been in
the past, and may continue to be in the future, required to spend
great sums of monAY for medical treatments and procedures as a
result of her injuries.
14. As a direct and proximate result of Defendant Henry'S
negligence and carelessne13s, Plaintiff Victoria Bugel has been
unable to engage in her occupation and therefore has in the past
and may in the future continue to suffer a loss of income and/or
loss of earning capacity.
15. Plaintiff, Victoria Bugel is entitled to recover damages
under the full tort option provided by the Motor Vehicle Financial
Responsibility Law, Title 75 Pa.C.S,A. S1705 et. seg.
WHEREFORE, Plaintiff, Victoria Bugel, demands judgment in her
favor and against Defendant Henry in a sum of money in excess of
the arbitration limits for Cumberland County.
COUMT II. LOSS OF CONSORTIUM
CHRISTOPHER BUOEt v. DORIS N, HENRY
16. The averments of the First Count of this Complaint are
incorporated herein and made a part hereof as if the same were set
forth fully at length.
17. Plaintiff, Christopher Bugel, states that at all times
mentioned he is the spouse of the plaintiff, Victoria Bugel,
residing together at the same address.
18. Due to the negligence of Defendant Henry, Plaintiff
Christopher Bugel, has been deprived and may in the future be
deprived of the companionship, support, services and consortium of
his wife.
WHEREFORE, the Plaintiff Christopher Bugel demands judgment in
11 is favor and against Defendan': Henry in an amount of money in
,'xcess of the arbitration limits of Cumberland county.
CORCHIN, GRAHAM, ROSATO' MAUER, P.C.
By:
'LU
s u Esgu re
I
~~ttorney .0. 65426
The Commons at Valley Forge
suite Seven, P.O. Box 987-23
Valley Forge, Pennsylvania 19482
(610) 933-3333
Attorney for Plaintiffs
VIRII'ICATIOII
I, victoria Bugel, her.eby state that I am the Plaintiff in
this Action and verity that the statements made in the toregoing
document are true and correct to the best ot my knowledge,
information and belief. I understand that the statements therein
are made subject to the penalties of 18 Pa. C.B. Section 4904
relating to unsworn falsitication to authorities.
Date:
)<~.
VICTORIA BUG
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VICTORIA A. BUGEL and
CHRISTOPHER BUGEL,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
Plolintiffs
CIVIL ACTION - LAW
v,
NO. 1997-6064
DORIS M, HENRY,
Defendant
JURY TRIAL DEMANDED
DEFENDANT'S PROPOSED VERDICT SLIP
AND NOW, comes the Defendant, Doris M, Henry, by and through her attorneys,
Hartman & Miller, P.C" and submits the following Proposed Verdict Slip in the above-
referenced action.
Respectfully submitted,
HARTMAN & MILLER, P.C,
By:
Amy Foerster, Esquire
Supreme Ct. I.D, No, #77986
126-128 Walnut Street
Harrisburg, PA 17101
(717) 232-3046
Attorneys for Defendant, Doris M. Henry
3, If you find that Victoria Bugel was contributorily negligent, was her contributory
negligence a substantial factor in causipg her present inujuries?
Yes_ No_
Go to question #4,
4. If you have answered yes to questions #1 or 1#3, then determine the percentage
negligence of Doris Henry and Victoria Bugel, assuming that the total of both must equal 100"10,
Doris Henry _%
Victoria Bugel _%
TOTAL
100%
If you have found Victoria Bugel's causal negligence to be greater than 50%, then
the Plaintiffs cannot recover and you should not answer question I#S and should
return to the courtroorn,
S. State the amount of damages, if any, sustained by Plaintiffs as the result of
Victoria Bugel's injury, without regard to and without reduction by the percentage of causal
negligence, if any, that you have attributed to Victoria Bugel.
S
Dated:
SIGNATURE:
F oreperson
.3.
,
NO, 24
VICTORIA A, HUGEL and
CHRISTOPHER BUGEL,
as husband and wife,
Plainti ITs
IN TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
97-6064 CIVIL
vs,
CIVIL ACTION. LAW
DORIS M, HENRY.
Delendant:
IN RE: PRETRIAL CONFERENCE
Present at a pretrial conference held August 26. 1998, were Li~a J. Mauer. Esquire.
attorney for the plaintiffs, and Amy C, Foerster. Esquire, attorney for the defendant.
This is a case in which the defendant has stipulated to liability in the automobile accident
which gave rise 10 the plaintiff s injuries,
The primary pending issue has to do with a petition for an independent medical
examination tiled after the matter was listed for lrial. The request for the (ME would have travel
and lodging expenses to be paid by the plaintiffs, We have resolved this motion by order of even
date herewith, The case will proceed to trial in September but leave has been granted to the
defendant to schedule an independent medical examination on Monday, September 14, 1998,
This case, lherefore. should be scheduled for later in the trial week, The plaintiffs are traveling
from Alabama and it is. then:fore, important that the plaintiffs receive a firm trial date as soon as
possible,
The resolution of the pending discovery motion makes it possible to cancel the argument
on this matter which had been set for September 3, 1998,
The defendant intends to make a motion in limine with respect to an item of damages
,....
claimed by thc p!aintill', Viclllria Dugc!. Specilically, Mrs, Bugel contends that because of her
injury (including multiple fractures in her right foot). she must forego pregnancy in the
immcdiate future, She testified to this concern during her deposition and lhe defendant is.
therefore. not surprised, Nonetheless, lhcre is no reference to this concern in the complaint.
While wc urc inclincd to believe that there is no prejudice to thc defendant by permitting this
tcstimony. the matter shotild be ruled on by the trial judge,
August 26. 1998
Lisa J, Mauer. Esquire
For the Plaintiffs
Amy C. Foerster, Esquire
For the Defendant
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J. STATEMENT AS TO HIE PRINCIPLE ISSlJES OF LIABILITY AND
DAMAGES
As indicated above. Defendant has slipulated to liability in this matter,
With regard to damages. Plaintill's' Complaint sets forth a personal injury claim on behalf
of Victoria A, Bugd (hereinaller "Mrs, Bugel"), and a loss of consortium c1airn on behalf of her
husband. Christopher Bugel (hcreinaller "Mr, Bugel"), Specifically, PlaintilTs allege that Mrs,
Bugel suffercd "injuries to lhe bones, muscles. tissues and ligaments of her right foot, injuries to
h-:r knees, right ankle and face. hcadaches, [and! shock and injury to the nerves and nervous
system, n (Complaint, ~ I 0.) It is further allcged that Mrs. Bugel has been, and rnay continue to
be in the future, unable to attend to her usual habits, customs, vocation and enjoyment of lite; has
bee 11 in the past, and may continue to be in the future, required to undergo medical treatments
and procedures; has been in the past. and may continue to be in the future, required to spend
great sums of money for medical treatments and procedures as a result of her injuries; and has
been unable to engage in her occupation and therefore, has in the past and may in lhe future
continue to suffer a loss of income and/or loss of earning capacity, (Complaint, ~11-14,)
Mrs, Bugel has testified lhat her fractured foot has affected her family responsibilities and
recreational activities from the dale of the accident up to the present. Mrs, Bugel asserts that
following the accident, she was unable to take care of her baby, help her husband move to
Carlisle, exercise, or cook and clean for her family as a result of her broken foot. She contends
that she is still unable to do these things to her pre-accident capacity.
With regard to the other injuries allegedly suffered as a result of this accident, Mrs. Bugel
2
leslified that her arm and facial bruises resolved within a couple of weeks following the accident.
Her knee injury resolved approximately two months following the accident, although she reports
that she still has "/lare-ups". Mrs, Bugel allegedly gets headaches as a result of the automobile
accident, but she has not sought any trealment for them. Finally, Mrs, Bugel teslified that she did
not suffer any injury to her right ankle, neck, or shoulders as a result of the accident, contrary to
the allegations contained in the Complaint and her Answers to Interrogatories.
With regard to her medical treatment, Mrs. Bugel was seen at Carlisle Hospital on
9/29/96 following the automobile accident. At that time, she was diagnosed with right ankle
strain and abrasion of the right maxillary region due to airbag deployment. X-rays taken of her
righl ankle at that time were interpreted as showing no fractures, Mrs. Bugel subsequently
treated with physicians in North Carolina on four occasions, during which she was diagnosed
wilh a fracture of the second, third, and fourth metatarsals, and her foot was put in a cast. Mrs,
Bugel began treating with Allan J. Mira, M,D, in Carlisle, Pennsylvania, on 11/18/96, An x-ray
taken that day showed healing fractures in her right foot and no abnormalities of her right knee,
Dr, Mira rernoved her cast at that time and reported that x-rays of her right foot showed good
healing, Mrs. Bugel treated with Dr, Mira again on 12/20/96 al1d 1/30/97, with continued
improvement. She was discharged from Dr, Mira's care on 1/30/97. Mrs, Bugel apparently
lelephoned Dr. Mira's office on 4/14/97, however, complaining of pain in her foot. X-rays of the
righl foot taken on 4/16/97 showed that the fractures of her foot had healed, Victoria Bugel saw
Dr, Mira again on 4/29/97, at which time he reported that x-rays taken that day "show good
3
hcaling". Mrs. Bugcl was seen by Dr, Mira again on 7/15/97, howcver, with reports of
worsening of symptoms.
Mrs, Bugd's most recent appointmcnt with Dr, Mira was on 1/29/98, At that time, she
continued to complain of pain und had vcry mild swclling in her foot. Dr, Mira's office notes
indicate that hc told her lhat hcr condition was going to last longcr. although he could not predict
exactly how long, He slated that she could permanently have the symptoms, or they may be
gone in a couple of years, Dr, Mira continucd to recommend conservative treatrnent, stating that
he slill would not recommend surgery at that time, and that she should give it at least another
year, In his expert report. however, daled July 6, 1998, Dr, Mira statcd that Mrs, Bugel has post-
traumatic arthritis of the mid-foot secondary to lhe fracturcs resulting from her rnotor vehicle
accident. Dr, Mira rendered this report without having examined Mrs, Bugel again subsequent to
the 1/29/98 office visit. In his report, Dr, Mira opincd that Mrs, Bugel's condition is permanent
and will deteriorate very slowly with time, He stated that her impairment is disabling to her
because she cannot optimally perform the duties of her household chores and other things that
she would like to do recreationally and for physical conditioning, Additionally, he stated that she
had been a waitress in the past, but that he cannot see her performing such a job for any
substantial number of hours as a result of this injury,
Although the Complaint makes a claim for medical cxpcnses. Plaintiffs have not provided
copies of all the medical bills incurrcd this far. The bills that have bcen provided total $1.637,00,
all of which has been paid for by PlaintilTs' insurance r.arrier, and there is no subrogation claim,
4
In a letter to undersigned counsel dated February 23, 1998, Plaintiffs' counsel stated that she will
not seek recovery ofMrs, Bugel's medical bills,
Mrs, Bugel was not employed at the time of the automobile accident, which negates any
claim for wage loss, Plainliffs have, however, also made a claim for loss of earning capacity.
Relative to this claim. it should be noted that Mrs, Bugel graduated from high school in 1988,
She studied Business Administration and Office Executive Secretary at a community college, but
left school after two years, Mrs, Bugel's most recent employment prior to the accident in
question was with General Electric through a temporary agency, Mrs, Bugel worked at General
Electric, making $6,50 per hour, from October of 1994 to November of 1995, at which tirne she
left work because she was due to deliver hcr first child in December, At her deposition, Mrs,
Bugel testified that she intended to return to work when her child was one year old, Mrs, Bugel's
responsibilities at General Electric included taking down information (modcl number, serial
number, damage) from the back of refrigerators and then entering it into a computer, There is
absolutely no evidence that Mrs, Bugel is physically incapable of performing such clerical work
employing her Business Admil1istration and/or Oflice Executive Secretary training,
Furthermore, Plaintiffs have failed 10 produce a vocational expert report in support of their
allegations that Mrs, Bugel has indeed sulfered a loss in earning capacity. Mrs, Bugel does not,
therefore, have a viable claim for a loss in earning capacity resulting from this motor vehicle
accident.
5
The admission or exclusion of evidence is within the sound discretion of the trial judge,
and will not be reversed on appcalabsent an abuse of discretiol1, Pontiere v, Jarnes Dinert. [nc"
426 Pa, Super 576, 587. 627 A.2d 1204, 1209 (I993),alloc, denied. 537 Pa, 623,641 A,2d 588
(1994), Evidence is relevant ol1ly if it lends to establish some fact material to lhe case, or tends
to make a fact at issue more or less probable, Leonard Packel and Anne Bowen Poulin.
Pennsylvania Evidence, ~403 (1987), Any evidence related to Victoria Bugel's alleged
miseurriage lII1d the recommendation (from either her husband or her physician) that she not get
pregnant due to this injury is clearly irrelevant, as no claim for such damages has been made, nor
has any medical evidence in support of such claims been provided by Plaintiffs,
Additionally, "[a] trial court may properly exclude evidence if its probative value is
substlll1tially outweighed by the danger of unfair prejudice, confu~ion of issues or misleading the
jury," Pennsylvania Evidence. ~403, There is no medical evidence supporting Plaintiffs'
assertion that Mrs, Bugcl was ever pregnant or that, if she was pregnant. she suffered a
miscarriage as a result of the pain medications which she was taking, Additionally, even if she
did lose the child as a result of pain medicalions. Defendant certainly had no control over the
medications which Mrs, Bugel was taking over-the-counter and/or by prescription, There is a
nole in the medical records regarding Mrs, Bugel falling on some stairs in June of 1997, and
there is no evidence to negale the possibility that her miscurriage, which she allegedly suffered
sometime that month, was due to the fall rather than the medication which she was taking, With
regard to Mr, lII1d Mrs, Bugel's testimony that it would not be physically practical for Mrs, Bugel
7
to get pregnant at this time, there is no medical evidence supporting this claim. Additionally, no
claim for such damages is contained in the Complaint or Mrs. Bugel's Answers to Interrogatories
regarding her injuries. The prejudicial elTeet of this unsubstantiated deposition testimony
substantially outweighs any probative value which it may provide as to Mrs, Bugel's condition,
Undersigned counsel seeks to have any such testimony excluded at trial, and requests that if a
formal Motion and Briefis required, a brieling schedule be set forth at the Pre-Trial Conference.
There are two other Motions currently outstanding in this matter, On or about July 29,
1998, undersigned counselliled a Motion in Opposition to Plaintiffs' Praecipe listing this case
for trial. On August 4, 1998. the Honorable Kevin A, Hess issued a Rule upon Plaintiffs to show
what cause, if an~', they have to list the above-captioned case for the trial term commencing on
September 1'1, 1998. in light of an outstanding discovery dispute, Undersigned counsel has
received Plaintiffs' response to the Motion, which has presumably been filed with the Court,
The above-referenced discovery dispute centers on Mrs, Bugel's refusal to submit to an
independent medical examination here in Pennsylvania unless Defendant's insurance company
pays her travel and lodging expenses, despite the fact that Plaintiffs were moving to Carlisle,
Pennsylvania, when the accident occurred, and were living in Carlisle until the end of October of
1997, when they moved to Georgia, On August II, 1998, undersigned counselliled a Motion to
Compel Mrs, Bugel's attendance at an I.M,E" with travel and lodging expenses to be paid by
Plaintiffs, On or about August 14, 1998, Judge Hess issued a Rule to Show Cause upon
Plaintiffs relative to this Motion, which is returnable on September 3, 1998.
8
~ WITNESSES
a. Robert p, Lonergan, M,D, (Defendant's expert. pending resolution of Motion to
Compel)
b, Victoria A. Bugel (as on cross)
e, Christopher Bugcl (as on cross)
d, Allan J. Mira, M,D. (Plaintiffs' expert) (as on cross)
Defendant reserves the right to introduce and/or utilize any witnesses identified or
produced by any other party at trial.
6. EXHIBITS
a, Carlisle Hospital records, dated 9/29/96
b, Carlisle Hospital radiology records, dated 9/29/96 through 7/31/97
e, Peachtree Orthopaedic Clinic records
d. Office records of Dr, Huffman
e, Office records of Allan J, Mira, M,O,
f, Expert report and curriculum vitae of Allan J, Mira, M,O,. dated 7/06/98
g, Expert report and curriculum vitae of Robert P. Lonergan, M.D, (pending
resolution of Motion to Compel)
h, Anatomical charts and models
Defendant reserves the right to introduce and/or utilize any exhibits identified or
produced by any other party at trial.
9
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VICTORIA A. BUGEL and
CHRISTOPHER BUGEL,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs
CIVIL ACTION - LAW
v.
NO, 1997-6064
DORIS M, HENRY,
Defendant
JURY TRIAL DEMANDED
PROPOSED POINTS FOR CHARGE OF DEFENDANT, DORIS 1\1. HENRY
AND NOW, cornes the Defendant, Doris M. Henry, by and through her attorneys,
Hartman & Miller, P.C" and submits the following Proposed Points for Charge,
Respectfully submitted,
HARTMAN & MILLER, P.C.
By:
, Foerster, Esquire
Supre e Ct. I.D, #77986
126-128 Walnut Street
Harrisburg, PA 17101
(71 7) 232-3046
Counsel to Defendant, Doris M. Hemry
. I -
DEFENDANT'S POINT NO, I
I. In order for the Plaintiffs to rccover in this case, the negligent conduct of Doris
Henry must have been a substantial factor in bringing aboul the Plaintiff.wife's injury, This is
\', what the law recognizes as legal cause, A substantial factor is an actual, real factor, although the
result may be unusual or unexpected, but it is not an imaginary or fanciful factor or a factor
having no connection or only an il1significanl connection with the harm.
Pa, S,S.J,1. (Civ) No, 3,25.
_APPROVED
_MODIFIED
_REJECTED
-2-
".
.
DEFENDANT'S POINT NO, 2
2, Doris Henry is legally responsible or liable for the Plaintiff-wi fe's injury ifher
negligenl conduct was a legal cause of that injury, In order for the negligent conduct to be a
j
legal cause, that conduct must have been a substantial factor in bringing about the Plaintiff-
wife's injury,
~ Pa, S,S.J,1. (Civ) No, IO,03B(a)
_APPROVED
_REJECTED
-3-
_MODIFIED
DEFENDANT'S POINT NO, 3
3. In civil cases such as this one, the Plaintiffs have the burden of proving those
contentions which entitle them to relief.
When a party has the burden of proof on a particular issue, her contention on that
issue must be established by a fair preponderance of the evidence, The evidence establishes a
contenlion by a fair preponderance of the evidence if you arc persuaded that it is more probably
accurate and true than not.
To put it another way, think, if you will, of an ordinary balance scale, with a pan
on each side. Onto one side of the scale, place all of the evidence favorable to the Plaintiffs; onto
lhe other, place all the evidence favorable 10 Doris Henry, If, after considering the comparable
weight of the evidencu, you feel that the scales tip, ever so slightly or to the slightest degree in
favor of the Plainliffs, your verdict must be for the Plaintiffs, Iflhe scales tip in favor of the
Doris Henry, or are equally balanced, your verdict must be for Doris Henry,
In this case, the Plaintiffs have the burden ofprovil1g that Doris Hel1ry's negligel1ce was a
substantial factor in bringing about the Plaintiff-wi fe's injury, If, after considering all the
evidence, you feel persuaded that it is more probably true lhan not lhat the Plaintiff-wife's injury
was caused by the negligence of Doris Henry, then your verdict must be for lhe Plaintiffs,
Otherwise, your verdict should be for Doris Henry,
Pa, S.S.J,1. (Civ) No, 5,50
_APPROVED
_REJECTED
_MODIFIED
-4-
.,
DEFENDANT'S POINT NO, 4
4. Doris Henry elaims that the Plaintiff-wife was contributorily negligent in eausing
her present injuries, Contributory negligence is negligence on the part of a plaintiff that is a
substantial factor in bringing about that plainliffs injury. The burden is not on the plaintiff to
prove her freedom from contributory negligence, The defendant has the burden of proving
contributory negligence by a fair preponderance of the credible evidence, You must determine
whether Doris Henry has proven that the Plaintiff-wife, under all of the circumstances present,
failed to exercise reasonable care for her own protection.
Stated another way, lhink, if you will, of an ordinary balance scale, with a pan on each
side, Onto one side of the scale, place all of the evidence favorable to the Doris Henry on the
issue of the Plaintiff-wife's contributory negligence; onto the other, place all of the evidence
favorable to the Plaintiff-wife on the issue of her contributory negligence, If, after considering
the comparable weight of the evidence, you feel that the scales tip ever so slightly or to the
slightest degree in favor oflhe Doris Henry, then your verdict must be for the Doris Henry on the
issue of Plaintiff-wi fe's contributory negligence, If the scales tip in favor of the Plaintiff-wife on
this issue, or are equally balanced, your verdict must be for the Plaintiffs on the issue of
contributory negligence,
Even if you find that the Plaintiff.wife was negligent, you must also determine whether
Doris Henry has proven that the Plaintiff.wife's conduct was a substantial factor in bringing
about her injury, If Doris Henry has not sustained that burden of proof, then the defense of
~
.
.5.
DEFENDANT'S POINT NO, 5
5, The Court has already instructed you about what you may consider in determining
whether the Plaintiff.wife was contributorily negligent, and whether such negligence, if any, was
a substantial factor in bringing about the Plaintiff-wife's injury, If you find that lhe Plaintiff-
wife was contributorily negligent and such contributory ncgligence was a substanlial factor in
bringing about her injury, the 11 you must apply the Comparative Negligence Act, which provides
in Section I:
The fact that a plainliffmay havc becn guilty of contributory negligence shall not
bar a recovery by the plainliff where such negligence was not greater than the
,
\
causal negligence of the defendant against whom recovery is sought, but any
,"
damages sustained by the plaintiff shall be diminished in proportion to the amount
of negligence attributed to the plaintiff.
Under this Act, if you find that the Plaintiff-wife was causally negligent, it is your duty to
apportion the relative degree of causal negligcnce among Doris Henry and the PlaintW:wife, In
apportioning the causal negligence, you should use your common sense and experience to arrive
at a result that is fair and reasonable under the facts of this occurrence as you have determined
them from the evidence,
If you find that the Plaintiff-wi fe's causal negligence was greater than the causal
negligence of Doris Henry, then the Plaintiffs are barred frorn recovery, and you need not
consider what damages should be awarded,
- 7 .
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If you find that the Plaintiff.wife's causal negligcnee was equal to or less than the causal
negligence of Doris Henry, then you must set forth the percel1tages of causal negligence
attributable to both the Plaintiff-wife and Doris Henry. The total of these percentages must be
100 percent. You will then determine the total amount of damages to which the Plaintiffs would
be entitled if the Plaintiff-wife had not been contributorily negligent; in other words, in finding
the amount of damages, you should not consider the degree, if any, of the Plaintiff-wi fe's fault.
After you return your verdict, the Court will reduce the amount of damages you have found in
proportion to the amount of causal negligence you have attributed to the Plaintiff-wife.
~ Pa. S,S,J,I. (Civ) ~ 3.03A,
_APPROVED
_REJECTED
- 8 -
_MODIFIED
DEFENDANT'S POINT NO, 6
6,
You rnust compute damages according to the law. not according to your own
I"~
satisfaction.
Grel10rius v, Safeway Steel Scaffold Co,. 409 Pa. 578, 187 A,2d 646 (1963),
,
,
_APPROVED
_REJECTED
_MODIFIED
-9-
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DEFENDANT'S POINT NO, 8
8. If you decide that Doris Henry's negligence was a substantial factor in the
Plaintiff-wi fe's injury, then you may award damages to the Plaintiffs, Those damages may not
exceed compensation for compensable loss, and damages should be awarded with the least
burden to the wrongdoer consistent with the idea of fair compensation to the injured party,
Incollinl:o v, Ewinl:, 444 Pa. 263, 282 A.2d 206 (1971),
_APPROVED
_REJECTED
- II -
_MODIFIED
DEFENDANT'S POINT NO 9
9, Damage awards serve to compensate the party seeking damages for any alleged
loss suffered as a result of the occurrence; damages are not intended to make the party seeking
them wealthy, nor are they intended to be an economic windfall. Similarly, the purpose of
awarding compensatory monelary damages is not to punish a defendant.
Frankel v, United States, 321 F,Supp. 1331 (E,D, Pa. 1970), ii.lr.d. mll!2lD. Frankel v, Heym,
466 F,2d 1226 (3rd Cir. 1972).
_APPROVED
_REJECTED
.12.
_MODIFIED
DEFENDANT'S POINT NO, 13
13, Damages for pain and suffering arc compensatory in nature, That is, they are
designed to compensate the Plaintiff for pain and suffering associated wilh her injuries, even
though she has not suffered a financial loss as a result thereof. Damages for pain and suffering
arc not intended to punish or penalize anyone, including the Defendant.
lIKWlin~o v, Ewin.:, 444 Pa. 299, 307, 282 A,2d 206, 229 (197\),
:,i
_APPROVED
_REJECTED
- 16-
_MODIFIED
DEFENDANT'S POINT NO, 14
14. Damages for pain and suffering should not be awarded on the basis of sympathy
or sentimentality, but should be limited to reasonable compensation for the injuries sustained,
Pain and suffering is not measured by what the j ury or some other person would charge to
undergo the same pain, You the jury must use your common sense in arriving at this figure, The
question is basically what is the reasonable allowance for the alleged pain and suffering which is
the direct and proximale result of the conduct which you have found was negligent on the part of
the Defendant.
Bostwick v, Pillsburllh Railwavs, 255 Pa, 387, 100 A, 123 (1917); Littman v, Bell Telephone Co,
Qf.fil.. 315 Pa, 370,172 A, 687 (1934); Burllan v, Pittsbur~h. 373 Pa. 608.96 A,2d 889 (1953).
_APPROVED
_REJECTED
- 17 -
_MODIFIED
DEFENDANT'S POINT NO. IS
IS. You as a jury may not feel that you have an intelligent understanding of how
damages can be calculated in Ihis case. If, for example, there was not enough competent
evidence submitted by the Plaintiffs to detennine such Ihings as future lost wages and pain and
suffering, then the Plaintiffs have failed to carry their burden of proof and you must find for
Doris Henry in regard to those items of damages.
Tyus v. Resta, 328 Pa. Super. 11. 476 A.2d 427 (1984).
_APPROVED
_REJECTED
. 18 .
_MODIFIED
DEFENDANT'S POINT NO. 16
16. If you decide that a witness has deliberately falsified his testimony on a
significant point, you should take this into consideration in deciding whether or not to believe the
rest of his testimony; and you may refuse to believe the rest of his testimony, but you are not
required to do so.
Pa. S.SJ.1. (Civ) No. S.OS.
_APPROVED
_REJECTED
.19 -
_MODIFIED
j'
DEFENDANT'S POINT NO. 17
17. You will recall that Dr. Mira gave testimony as to his qualifications as an expert.
A witness who has special knowledge, skill, experience. training or education in
any particular science, profession or occupation may give his opinion as an expert as to any
muller in which he is skilled. In detennining the weight to be given to his opinion, you should
consider the qualifications and reliability of the expert and the reasons given for his opinion.
You are not bound by an expert's opinion merely because he is an expert; you may accept or
reject it, as in the case of other witnesses. Give it the weight, if any. to which you deem it
entitled.
Pa. S.8,1.I. (Civ) No. S.30.
_APPROVED
__REJECTED
_MODIFIED
- 20-
DEFENDANT'S POINT NO. 18
18. In general, the opinion of an expert has value only when you accept Ihe facts upon
which it is based. This is lrue whelher Ihe facts are assumcd hypolhetically by the expert, or they
! come from his personal knowledge, from some othcr propcr source, or from some combination
of these.
Pa. 8.8.1.1. (Civ) No. SJI.
_APPROVED
_REJECTED
- 21 -
_MODIFIED
DEFENDANT'S POINT NO. 19
19. Questions have been asked in which an expert witness was invited to assume that
ccrtuin facts were true and 10 give an opinion based upon that assumption. These are called
, , hypotheticalljuestions. If you find that any muterial fact assumcd in a particular hypolhctical
question has not becn established by the cvidence, you should disregard th~ opinion of Ihe expert
given in response to that question. By material fact, we mean one that was important to the
expert in fonning his opinion.
8imilarly, if the expert has made it clear that his opinion is bascd on the
assumption that a particular fact did not exist and, from the evidence you find that it did exist and
thut it was matcrial, you should give no weight to the opinion so expressed.
Pa. 8.8.1.1. (Civ) No. S.32.
_APPROVED
_REJECTED
.22 -
_MODIFIED
.'
DEFENDANT'S POINT NO. 20
20. The Plaintiffs claim that the Plaintiff.wife was injured as a result oflhe negligcnt
conduct of the Doris Henry. Thc Plaintiffs havc the burdcn of proving their claims. Doris Henry
contends that the Plaintiff-wife was herselfncgligent in causing her present injuries and that such
negligence was a substantial factor in bringing about the injuries. Doris Henry has thll burden of
proving this contention. Based upon the evidcnce prescnted at this trial, the only issues for you
to decide in accordance with the law as I shall give it to you, are:
First: Was Dr. Doris Henry's conduct a substantial factor in bringing about harm
to the Plaintiff.wife?
Second: Was Ihe Plaintiff-wifc herself negligent?
Third: Was the negligence of the Plaintiff-wife a substantial factor in bringing
about her injury?
Pa. 8.8.J.I. (Civ) No. 3.00.
_APPROVED
_REJECTED
- 23-
_MODIFIED
DEFENDANTS' POINT NO. 21
21. You should not allow sympathy, emotion or prejudice to influence your
deliberations. You should not be influenced by anything other than the law and the evidence of
the case. All the parties stand cqually before the Court, and each is entitled to the same fair and
impartial treatment at your hands.
Sk~ Pa. 8.8.C.J.1. No. 20.00
_APPROVED
_REJECTED
- 24-
_MODIFIED
GRAHAM & MAUER., P.C.
BY: RONALD M. GRAHAM. ESQUIRE
AlIomey J.D. 64483
The Commons at Valley Forge
Suite 22, P.O, Box 987
Valley Forge, Pennsylvania 19482
(610) 933.3333
Attorney for Plaintiffs
VICTORIA A. BUGEL and
CHRISTOPHER BUGEL. as husband and wife,
Plaintiffs
COURT OF COMMON PLEA8
CUMBERLAND COUNTY
Docket No: 97-6064
vs.
DORI8 M. HENRY,
Defendant
JURY TRIAL DEMANDED
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter my appearance for Plaintiffs in the above-eaptioned mailer pursuant to local
Rules.
GRAHAM & MAU R., P.C,
By:
, squire
83
..
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VICTORIA A. HUGH und
CHRISTOPHER HUGEl.,
as husband and wife,
Plaintills
IN TilE COURT OF COMMON PI.EAS OF
CUMBERI ,AND COUNTY, PENNSYL VANIA
v.
CIVil. ACTION. LA W
DORIS M. HENRY,
Defendant
NO. 97-6064 CIVIL TERM
VERDICT
[In this case, Defendant ,oncedes that the accident was caused by her
negligence. Remaining at issue are whether Defendant's negligence (in other words, whether
the accident) was a substantial factor in causing the hann cornplained oCto Plaintiff Victoria
A. Bugel and, if so, what damages have been proven by Plaintiffs.]
Ouestion I:
Was Defendant's negligence a substantial factor in brining about the hann complained
of to Plaintiff Victoria A. Bugel?
Yes_
NoK
If you answered Question I "No," Plaintiffs can not recover and you should not
answer any further questions and should return to the Courtroom. If you answered Question
I "Yes," you should proceed to Question 2.
Ouestion 2:
a. State the total amount of damages, if any, you find Plaintiff Victoria A. Bugel
sustained as a result of the accident:
TOTALS
.,
b. State the total amount of damages, if any, you find PlaintilT Christopher Bugel
sustained for loss of consortium as a result of the accident:
TOTALS
~ 0 \ \q~CO
(Date)
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CASE N>. ..2 'I
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VICTORIA A. HUGEL and
CHRISTOPHER HUGEL, lIS
husband and wife,
Plaintilfs
IN TilE COURT OF COMMON PLEAS OF
CUMBER1.AND COUNTY,PENNSYLVANIA
v.
CIVIL ACTION. LA W
DORIS M. HENRY,
Defendant
NO. 97.6064 CIVIL TERM
ORDER OF COURT
AND NOW, this tS~ay ofOctobcr, 1998, upon consideration of Plain tilTs' Motion
for Post Trial Relief in the Fonn ora Motion for Judgment Notwithstanding the Verdict or,
in the Alternative, for a New Trial, and of the Answcr filed by Defendant in response to
PlaintilTs' Motion for Post Trial Relief, argument on the motion is scheduled for Friday,
December 4, 1998, at II: I S a.rn., in Courtroom No. I, Cumberland County Courthouse,
Carlisle, Pennsylvania.
Plaintiffs' brief shall be filcd with the Court Administrator alleast twelve days prior
to the argument, and Defendant's bricfshall be filed at least five days prior to the argument.
C.C.R.P. 210-6 (except that only one copy of the briefs nced to bc filed), 210-6-I(a), 210-7,
210-8 and 210-9 shall apply.
BY THE COURT,
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GRAHAM & MAUER., P.C.
BY: LISA J. MAUER., ESQUIRE
Anorney I.D. 65426
The Commons at Valley Forge
8uite 22, P,O. Box 987
Vulley Forge. Pennsyh'ania 19482
(610) 933.3333
Attorney for Plaintiffs
VICTORIA A, BUGEL and
CHRI8TOPHER BUGEL. as husband and wife,
Plaintiffs
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Docket No: 97.6064
vs.
DORl8 M, HENRY,
Defendant
JURY TRIAL DEMANDED
PRAECIPE FOR DETERMINATION
TO THE PROTHONOTARY:
Kindly submit the following matter to Judge Oler for detennination: Plaintiffs' Motion
for Post Trial Reliefin the Fonn of a Motion for Judgment Notwithstanding the Verdict or, in the
alternative. for a New Trial.
Date of Filing: 8eptember 2S, 1998
GRAHAM & MAUER., p.e.
BY: LISA J. MAllER, ESQUIRE
Attorney J.D, 65426
The Commons at Valley Forge
Suite 22, P.O. Box 987
Valley Forge, Pennsylvania 19482
(610) 933.3333
Attomey for Plaintiffs
VICTORIA A. BUGEL and
CHRI8TOPHER BUGEL, as husband and wife,
Plaintiffs
COURT OF COMMON PLEA8
CUMBERLAND COUNTY
Doeket No: 97-6064
vs.
DORI8 M, HENRY,
Defendant
JURY TRIAL DEMANDED
PLAINTIFF'S MOTION FOR POST TRIAL RELIEF IN THE FORM
OF A MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
OR., IN THE ALTERNATIVE, FOR A NEW TRIAL
Pursuant to Pa..R.C.P, No. 227.I(a)(I), Plaintiffs Victoria and Christopher Bugel,
through their undersigned counsel, move this Court for the entry of judgment in their favor
notwithstanding the verdir.t and against Defendant Henry, and in support aver the following:
J. Motion for Judl!l1lent Notwithstandin~ the Verdict
I. This case, stemming from an automobile accident in which Plaintiff Victoria Bugel
was injured, was tried to a jury verdict during the week of 8eptember 14, 1998.
2. Plaintiff Victoria Bugel sustained two primary injuries: an injury to her right knee
and three fractures of her right foot.
3. The parties stipulated to liability. (See 8tipulation attached hereto as Exhibit A.)
4. At the time of this automobile accident, Plaintiffs were residents of the 8tate of
,
Alubama and, therefore, entitled to recover non.economic damages us if they had cler.ted the full
tort option. 7S Pu.C.S.A, ~ 1705(a)(l)(D),
S, At trial, Plainliff provided cxpert medicalteslimony from treating orthopaedic
surgeon, Allan Mira, M.D. Defendant provided no cxpert medical testimony.
6. Dr. Miratestificd that the condition of Plaintiff Victoria Bugel's right foot was
permanent and that the source of her ongoing pain and difficulty was a defonnity in her foot
which rcsulted from the fractures. He further testi fied that she has now developed post-traumatic
arthritis, which is also permanent. (Notes of testimony pages 23-24, 29-30, 41, attached hereto
as Exhibit B.)
7. Dr. Mira's uncontradicted testimony also indicated that Plaintiff Victoria Bugcl's
foot injury would cause hcr to suffer work-related restrictions in the future, in that she will be
restricted from being on her feet a lot in any kind of job, and restrictions pertaining to
recreational activities, such as walking, aerobics and some sports. (Notes of testimony pages 30-
31, attached hereto as Exhibit C.)
8. Dr. Mira also testified that Plaintiff Victoria Bugel's knee injury was that ofa
ligament strain and that he did not believe any more damage than that had been done to her knee.
(Notes of testimony pages 8-9, allached hereto as Exhibit D.)
9. Dr. Mira further testified to a reasonable degree of medical certainty that Plaintiff
Victoria Bugel's right foot and right knee injury were caused by the motor vehicle accident of
September 29, 1996. (Notes of testimony pages II, allached hereto as Exhibit E.)
10. At trial Plaintiff Victoria Bugel testified about the pain, swelling and stiffness that
has persisted in her injured foot since the accident. 8he further testified that she has occasional
flare ups from her injured knee.
.
II. At the close of triul. the Court llc.ve the jury the Substantiul Factor instruction, and
als,o provided the Jury with a verdict slip on which Question No. I stated "Was Dcfendant's
negligcnce a substantial factor in bringing about the harm complained of to Plaintiff Victoria A.
Bugcl?". (A copy of Verdict 8lip is attached hereto as Exhibit F,)
12. Plaintiffs, through their counsel, objected to the 8ubstantial Factor instruction and
verdict slip question on the basis that Plaintiff provided uncontradicted testimony as to the cause
of Plaintiff's harm at the trial of this matter.
13. The jury returned a verdict in favor of the Defendant.
14. The jury verdict is clearly against the weight ofthe evidence. The jury's verdict
was inconsistent with Plaintiffs testimony about her pain and suffering, inconvenience and loss
of life's pleasures associated with a significant pennanent injury to her right foot.
I S. It is Plaintiffs' position that the jury disregarded the overwhelming preponderance
of credible evidence in reaching its verdict.
16. The verdict is inconsistent with the uncontradicted medicaltestirnony of Allan
Mira. M.D., who testified that her foot injury was causcd by the motor vehicle accident and is
pennanent, likely to cause her continuing pain and require future medical treatment, including
the possibility of surgery.
WHEREFORE, Plaintiffs Victoria and Christopher Bugel respectfully request that this
Honorablc Court enter judgment in their favor notwithstanding the verdict.
II. Motion for A New Trial
Pursuant to Pa..R.C.P. No. 227.I(a)(I), Plaintiffs Victoria and Christopher Bugel,
through their undersigned counsel, move this Court for a new trial in the above captioned action,
and in support aver the following:
17. Prior to the trial of this matter, Defendantliled a pre-trial Memorandum which
listed Robert p, Lonergan, M.D., as the medical expert for the defense, pending resolution of
Motion to Compel. (See Defendant's Pre-Trial Memorandum, attached hereto as Exhibit G.)
18. The outcome of said discovery motion was that Dr. Lonergan could examine
Plaintiff Victoria Bugel on the first day of the September trial term, September 14, 1998, but that
Plaintiff could not be compelled to travel to Pennsylvania for said examination on an alternate
date. (8ee Order dated August 26, 1998, attached hereto as Exhibit H.)
19. 8ubsequent to the issuance of said Order, Defense counsel advised Plaintiff that Dr.
Lonergan was unavailable to conduct the defense medical examination on 8eptember 14, 1998.
20. By letter dated September 9, 1998, Defense counsel notified Plaintiff that
orthopaedic surgeon Robert Maurer, M.D. had been hired to conduct the defense medical
examination of Plaintiff Victoria Bugel on Monday, 8eptember 14,1998 and Dr. Maurer's
deposition was scheduled for Tuesday, September IS, 1998 at 4:00 p.m. (See letter, attached
hereto as Exhibit I.)
21. Due to defense counsel's untimely scheduling of the defense medical examination
subsequent to the Pre-Trial Conference, Defendant did not previously list Robert Maurer, M.D.
as an expert witness on Defendant's Pre-Trial memorandum. (See Exhibit G, attached hereto.)
22. Defense counsel made verbal assurances at the pre-trial conference before Judge
Hess on August 26, 1998 that the undersigned counsel would receive a copy of Dr . Maurer's
expert report prior to his deposition, which was scheduled to be held approximately 24 hours
after his only examination of Plaintiff Victoria Bugel.
23. The undersigned counsel was never provided with a copy of Dr. Maurer's
Curriculum Vitae or any expert report.
24. On Monday, September 14, 1998, PlaintiffVitoria Bugel was examined by the
defense medical expert, Robert Maurer, M.D. Plaintiffs' counsel was present for said
examination.
2S. Dr. Maurer opined that Plaintiff Victoria Bugel's knee injury was that ofa torn
ligament and that her foot pain was caused by bone fragments which had not properly healed.
26. Based on the results of said examination received from Dr. Maurer, Defendant
elected not to provide Plaintiff with a medical expert report, not to take Dr. Maurer's previously
scheduled deposition on September IS, 1998, and not to call him as a medical expert during the
trial of this matter.
27. Based on statements made by Dr. Maurer during said examination pertaining to the
ongoing nature of Plaintiff Victoria Bugel's knep. and foot injuries, Plaintiff subpoenaed Dr.
Maurer with the intention of calling him as a witness at the trial of this matter, (8ee subpoena,
attached hereto as Exhibit J.)
28. On 8eptember 16, 1998, defense counsel wrote a letter to the Honorable Judge Oler
objecting to Plaintiff calling Dr. Maurer to testify at trial. (8ee letter attached hereto as Exhibit
K.)
29. On September 17, 1998 oral argument was held on the record whereby defense
counsel argued her reasons for said objection to Dr. Maurer's testimony, which included, among
other things, that Plaintiffhad failed to list Dr. Maurer as an expert witness on Plaintiffs' pretrial
memorandum and that Defendant was not previously notified of Dr. Muurer beinll called as a
witness by Plaintiff.
30. Plaintiff argued thai Defendant was in no way prejudiced by Dr. Maurer testifying
for Plaintiff pursuant to subpoena, sinee it was Defendant who previously hired Dr. Maurer and
was, therefore, aware of his credentials, Defendant would have been penniued to call Dr, Maurer
as their expert witness in spite of the fact that Defendant bad failed to list Dr. Maurer on their
pretrial memorandum, and that Defendant was aware of the content of Dr. Maurer's testimony,
which was the sole reason for Defendant's decision not to call Dr. Maurer at the trial of this
mailer.
31. The Honorable Judge Oler excluded Dr. Maurer's testimony based on the premise
thaI on expert cannot be subpoenaed to give an opinion as our expert witness over his objection.
32. Dr. Maurer did not raise any objection to Plaintiffs entering his findings into the
record, but rather Defendant raised the untimely objection.
33, While Defendant objected to Plaintiffs calling Dr. Maurer to testify on behalf of the
Plaintiff, Dr. Maurer himself was willing to give his deposition testimony on behalf of the
Defendant during the triaJ.
34, Plaintiffs were prejudiced by the Court's ruiing excluding the testimony of Dr.
Maurer, which would have corroborated the testimony of Dr. Mira on Plaintirrs foot injury and
expanded upon Dr. Maurer's testimony on Plaintirrs knee injury,
3S. Plaintiffs were prejudiced by the Court's jury instruction and verdict slip question
pertaining to substantial far.tor in light of Dr. Mira's uncontradicted medical testimony on
causation, pennanence and limitations pertaining to Plaintirrs foot injury.
I.
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36, Plaintiff reserves the right to tile additional grounds supporting this motion after
receipt, review and analysis of the trial transcript.
WHEREFORE, Plaintiffs Victoria and Christopher Bugel respeetfully request that this
Honorable Court grant Plaintiffs' a new trial.
Respeetfully submitted,
By: Graham & Mauer, P.C.
~~ 1l{1/~J
8 J. M ER
Attorney for laml1ffs
Date: September 2S, 1998
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2Sm day of 8eptember, 1998, a true and correct eopy of
Plaintiffs' Motion for Post Trial Reliefin thc Fonn of a Motion for Judl!ment NotwithstandiOlz
the Verdiet or. in the alternative. for a New Trial was mailed first class, postage prepaid to the
following:
Amy Foerster, Esquire
Hartman, & Miller, P.C.
126-128 Walnut 8treet
Harrisburg, PA 17101
GRAHAM & MAUER
By:
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Exhibit A
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CORCHIN, GRAKAJI, ROSATO" MAOJ:R, P.C.
BY I LISA J, MAOJ:R, SSQUID
Attorney 1.0. 65426
The Commons at Valley Forge
Suite Seven, P.O. Box 987
Valley Forge, Pennsylvania 19482
(610) 933-3333
Attorney for Plaintiffs
VICTORIA A. BUGEL and CHRISTOPHER
BUGEL, as husband and wife
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
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It is hereby stipulated between counsel for the pa~ie8'
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hereto that the Defendant, Doris M. Henry is solely and
STIPULATION
Docket No: 97-6064
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JURY TRIAL DE~ED':.J
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OORIS M. HENRY
proximately liable for the occurrence of the accident as alleged
in Plaintiffs' Complaint and that Plaintiffs, Victoria Bugel and
Christopher Bugel were ~n no way comparatively negligent for said
accident.
CORCHIN, GRAHAM, ROSATO " MAOBR, P.C,
HARTMAN " MILLBR, P.C.
>J<t~~~.
Attorney for Defendant
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Exhibit B
23
1 or the source of that pain and stiffness?
2
3 fractures,
4
A.
The injury and the distortion from the heel
0,
Is that a condition that you believe will ever
5 go away at this point?
6
7
A,
At this point, I believe it will not go away,
0,
Did you examine her again at that January
8 visit, this past January 1998?
9
10
o.
A.
Yes,
11
A.
And what did that examination reveal?
It showed she had mild swelling in the area of
12 the fractures with tenderness in the same areas, And
17
A.
13 still the clicking when I moved her midfoot.
14
o.
Is this deformity, that you described, also the
15 cause of the swelling that sh~ had in January of this
16 year?
Yes, I think so because of the reaction that
18 the joint has to that deformity. It gets inflammation or
19 posttraumatic arthritis that will cause some swelling the
20 longer she's on it.
21
o.
Is posttraumatic arthritis the same type of
22 arthritis that we hear that elderly people have?
23
A.
It's a distortion of the joint and swelling and
24 pain in the joint. And it's caused by mechanical
25 disruption of the joint. So it's caused by another
Central Pennsylvania Court Reporting Services
(717) 258-3657 or 800-863-3657 or fastfngers@aol.com
.
24
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1 method. But its result is very similar.
2
3 away?
4
5
Q,
And is the posttraumatic arthritis likely to go
A,
No.
Q,
And did you ever see Mrs. Bugel since that
6 January 1998 visit?
7
8
9
10
11
A.
12
Q.
13
A.
A,
Yes,
Q.
When was that?
A,
Today,
And did you exam her foot today?
Q,
Yes.
And what did that examination reveal?
Revealed the same tenderness and clicking in
14 her foot that -- that was before,
15
Q,
So that tenderness and clicking that you
16 described has been consistent throughout the last year
17 when you've seen her?
18
A,
19
Q.
20 Mrs, Bugel?
21
A.
Yes.
Did you l'ecommend any treatment options for
I'm tending more to discuss surgery seriously.
22 But I want to have her get a second opinion, since fusions
23 in mid foot are not often done. And I think it's good to
24 talk with other experts about fuston versus trimming the
25 bump off, and whether or not we really think it needs to
Central Pennsylvania Court Reporting Services
(717) 258-3657 or 800-863-3657 or fastfnger8~aol.com
41
1 Thank you.
2 IlKDIUCT UAIIIHATIOIi'
3 BY MS, MAUER:
4
Q,
Just two questions, Doctor, With regard to the
5 radiology reports that you were asked to --
6
A.
Urn-hum.
7
Q,
-- look at during cross-examination, do the
8 radiologists who write those reports have the benefit of
9 conducting an examination of the -- of the patient before
10 they write those reports?
11
A.
Theoretically they do, but practically they
12 essentially never do.
13
Q,
And, Doctor, based on the treatment that you
14 have rendered to Mrs. Bugel during the past two years, the
15 films you have reviewed and the examination you conducted
16 of Mrs, Bugel today, September 14, 1998, do you have an
17 opinion you can state to a reasonable degree of medical
18 certainty as to whether or not Mrs, Bugel's right foot
19 will ever return to its normal preaccident status?
20
A.
My opinion is, it will never return to its
21 normal preaccident status.
22
MS. MAUER: Thank you, No further questions,
23
(Whereupon, the deposition wa. oonoluded
at 7143 p,II,)
24
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Central Pennsylvania Court Reporting Services
(717) 258-3657 or 800-863-3657 or fastfngersaaol.com
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O. Do you have an opinion you can state as to
whether Mrs. Bugel will have any continuing disability or
impairment?
2
3
4
^,
Yes, I believe she will have continuing
5 symptoms in her foot that will limit her from doing things
13
A.
6 that are demanding of her foot.
7
O.
During the time in which you have treated Mrs.
8 Bugel, have you become familiar with her vocational
14
O.
9 background?
10
A,
Yes.
And are you aware that at one point she had
12 become a waitress?
11
0,
Yes,
Are you familiar with the general duties a
15 waitress must perform?
16
A,
Yes,
And what would you understand those to be?
Running back and forth between the kitchen and
19 the tables constantly,
17
0,
Based on your understanding of her condition
21 and those requirements of a waitressing position, do you
18
A.
22 have an opinion that you can state as to whether or not
23 she will suffer any work-related restrictions in the
20
0,
24 future?
25
A,
Yes. She will be restricted from being on her
Central Pennsylvania Court Reporting Services
(717) 258-3657 or 800-863-3657 or fastfngers@aol.com
3l
'-
1 feet a lot in any kind of job.
2
3
4
Q.
In any kind of a job, not just waitressing?
A,
Yes,
Q.
Would those restrictions also apply to any
5 recreational activities such as some of those you've
6 discussed with Mrs. Bugel in the past?
7
8
9
A.
A.
Yes.
Q.
Could you give us an example?
Walking, aerobics, playing around in the
10 backyard, jumping, some sports.
11
MS. MAUER: Thank you, Doctor. I have no
12 further questions at this time.
13
MS. FOERSTER: Off the record.
14 (Di.cu..ion held off the record,)
15 CROSS-BXAMINATION
16 BY MS. FOERSTER:
17
Q.
Doctor, again, my name is Amy Foerster and I
18 represent the defendant, Ms. Doris Henry.
19 Are you holding in your hands your chart on
20 Mrs. Bugel?
21
A,
22
Q.
Yes.
I'll be referring to that chart on occasion,
23 Please feel free to look at it whenever YOU'd like.
24
A,
25
Q.
Okay.
I'm going to start with the first day that you
Central Pennsylvania Court Reporting Services
(717) 258-3657 or 800-863-3657 or fastfngers@aol.com
9
'-'
1 trom tully straight when taken through a no~al range ot
2 motion. And her knee was stable, There was no swelling.
3 And I thought that by her history and examination that ahe
4 had sustained a bruise on the dashboard, and maybe aome
5 minor sprain ot the ligaments that hold the knee bones
6 together.
7 I didn't think she had any turther damage than
8 that,
9
Q.
Did you review any other health care providers
10 records or films during this tirst consultation?
11
A,
Yes, I reviewed records from Peach Tree Clinic
12 where she'd been before she came to see me the first time,
13 and a set of x-rays they took down there,
14 Q. Did you review anything from the Carlisle
15 Hospital emergency room?
16 A, Yes, I did.
17 Q. What was that?
18 A, An ankle x-ray done on the date of the
19 accident,
20
Q.
Are those films and documents, that you
21 reviewed, the kind that you usually rely upon in reaching
22 a diagnosis and in treating your patients?
23
A.
Yes.
24
Q,
As a result of your exam and the tests that you
25 performed on Mrs. Bugel and the history you took and the
Central Pennsylvania Court Reporting Services
(717) 258-3657 or 800-863-3657 or fastfngers~aol,com
Exhibit E
11
........
1
A.
Perhaps less than that, about a month, I think,
2 would be about right. And the foot feels a little weak
3 and strange, and use two crutches and put on 10 pounds,
4 20, 50, 70, so forth, for perhaps over a period of about
5 two weeks until you're fully weight-bearing.
6
Doctor, do you have an opinion that you can
Q.
7 state to a reasonable degree of medical certainty as to
8 whether or not the fractures to the second, third and
9 fourth metatarsals of Mrs, Bugel's right foot and the
10 right knee sprain were caused by the motor vehicle
11 accident of September 29, 1996?
12
Yes, I do. As I stated before, those were all
A.
13 related to that auto accident,
14 Q. Do you. see Mrs. Bugel again after that firs~
15 visit?
16 A. Yes.
17 Q. When was that?
18 A. December 20th, 1996,
19 Q, And what was the result of that visit?
20 A. Her knee was doing very well, Her foot
21 appeared with good alignment without gross deformity,
22 other tenderness or pain. Her gait was good, And I
23 encouraged her to progressively do activities as tolerated
24 and see her back in six weeks,
...
'-
25
What do you mean perform her activities as
Q,
Central Pennsylvania Court Reporting Services
(717) 258-3657 or 800-863-3657 or fastfngers@aol,com
Exhibit F
~
~
VICTORIA A. BUGEL and
CHRISTOPHER BUGEL,
as husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
. .... ... ....... -. -...-.. -_.
CUMBERLAND COUNTY, PENNSYL VANIA
".
v.
CIVIL ACTION - LAW
DORIS M. HENRY,
DeCendant
NO. 97-6064 CIVIL TERM
VERDICT
[In this case, DeCendant concedes that the accident was caused by her
negligenCl:. Remaining at issue are whether DeCendant's negligence (in other words, whether
the accident) was a substantial Cactor in causing the harm cornplained of to PlaintitTVictoria
A. Bugel and, iCso, what darnages have been proven by PlaintitTs.]
Question I:
Was DeCendant's negligence a substantial factor in brining about the harm complained
of to PlaintitTVictoria A. Hugel?
Yes_
No_
If you answered Question I "No," PlaintitTs can not recover and you should not
answer any further questions and should return to the Courtroorn. If you answered Question
I "Yes," you should proceed to Question 2.
Question 2:
a. State the total amount of damages, if any, you find PlaintitT Victoria A. Hugel
sustained as a result ofthe accident:
TOTAL S
...
b. State the total amount of damages, if any, you find Plaintiff Christopher Bugcl
sustaincd for loss of consortium as a result of the accident:
TOTALS
(Datc)
(Forcperson)
40
Exhibit G
Received Aug-21-98 14:51
FUl-21-1999 iSles
Irom CCllT 03 . 16199839579
MTW'lN & MILLER. PC
-- '-"
page 2
P.0VU
VICTORIA A. BUOBL end
CHRISTOPHBR BUQBL,
IN THB COUR.T OF COMMON PL!AS
CUMBERLAND COUNTY,
PENNSYLV ANJA
CIVIL ACTION . LAW
NO. 1997,6~
1URY TRIAL DBMANDBD
PlalntUrl
v.
DOlUS M, RENR.Y,
DeCendW
PRETRIAL MEMORANDUM OF DEFENDANT, DORIS M. HENRY
AND NOW, eom.. the DeCondant, Doria M. HIlII1'Y. by and lhrouah har attomayl,
Hartman '" Miller, p.e., IIld IIIbmil.l tho within Protrial Memol'Uldum pun\IIDt to Cllmber!atld
ColInI)' Loeal RIIlo No. 212-4,
.L ~T"Tlr.MI'NTn""TJ.f'. RA~'I"!II'A.M~ .l~Tnl l.l'An.rrv
Dofandant hu mpullteclto liability In th!I mal1or; thentore, thoro.1'I JIO tacu to be
pmentod at trial II to Uablllty.
2.. iTAT~Mr.N'T' nPTRJr. R4!CTt'! "ArrS.4." Tn n.M...('nr~
PI...e refor to the Sl.Itemcnt oCth. Bwe Facti lito DamasOl c:on1llnoclln ".Inrl"..'
Pretrial MemOl'Blldum. D.f'onclant cIllJluc" thatlh. damaS" alIeSed hav. actually been ,utren4
by Plalntiffl II . rceult olllll. motor vchielo ,",dOl11.
3. ~T A.1TM11NT A!I Tn TJ.fV PRINro, .. 'A~'T1UI n. , '~'An.1'TV A.ND
R.e81V8d Aug-21-98 14:51
AUG-21-199B 15'10
fro. CCIII 03 ~ 161&983&57&
~~ & MILLER. PC
pagl g
,",~11
......
--
1bct Il'lIWO other MotioGa OlImIItly O\ltltandl"l inlhlt 1IIIltIr, OIl or 1bo1ll1uIy 2P,
199',llIIdanlllltd colWl1 lllod a Motion In OppoaltloD to pl.I"Il"" PrMolP'1lIlina Ihll e...
lot IrIII. 011 AuJlllt 4, 199.. tho Hoaonbl. KevlD A. Hili fllutd a Ru). IIpOIl PlalaliftJ to abow
whal ClllIe, It any, thlY have to lilt tho Ibovo-captlOllcd cuo for tho trial tmn commcnclni on
September 14, 1998,In lIaht olan o\ltalandlDs cliJcovtl)' dltP\lto, UndtrlliDCd cO\lJ\l.llw
received P1aln1ltr.' reapoDJO 10 thl MotfOll, which lw prwumably bltD died with tho COIlrt.
The Ibov.....rcrcnccc1 clIlCOVcry dltpU1l caalcn on Mra. BUllll'1 rc1\aaal1o IUbmit to an
Indepmdenl medloal p....i...tlon herein PlIlnI}'lvanla unl... De!endanl'.lnIur*. ~PIl1Y
PlY' her Iravol and Jodain, OllpCllIOt, dllpltt tho lid that P1alnt1ft'J were movlna 10 Cull.l"
PellDlYlV1DiJ, wbGll tho IOOldlDl occWTtd, IIId WIl'O IJvlna In CarIWIIU1IH thllDd of October of
1m, whtD thO)' moved 10 Ooora/a. On AUilllt II, 1995,IIDdenlJllcd counacl til;cll Motion to
Compel Mn, Busol" lltIDcl&nco at In I.M.!!., with trav.1 andlod,ws cxpon'OIIO lit paid by
P1alntlfti. On or about AUilllt 14, I 99S,1udac Hcaluued a Rul. to Show Callie upon
P1ainliftJ ...latlvl to thla Motion, whleb II rollln1lblo on September 3, 1998.
!. WITN'l!~~...~
I. Robert P. LonerSln, M.D. (DtCondlllt'. export. plllldin, ruolUtlOA orMction to
Comptl)
b. VIctoria A. BUlcI (u on croll)
c, Chriltophar BUIIIl (u on croll)
cl. Allan 1. MIra, M.D. (Plalntiffa' 8Xpttl) (u an croll)
Dlt=dw nlICrVOI tho rl&ht to lnl1'Od1lee and/or \Ilfl1ze any witneuoalclcnt1ftod or
8
'-
v
VICTORIA A. BUGEL and
CHRI8TOPHER BUGEL,
as husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEA8 OF
CUMBERLAND COUNTY, PENNSYLVANIA
97.6064 CIVIL
vs.
CIVIL ACTION. LAW
DORI8 M. HENRY,
Defendant:
IN RE: MOTION OF DEFENDANT TO COMPEL PLAINTIFF'S. VICTORIA A. BUGEL'S
ATTENDANCE AT AN INDEPENDENT MEDICAL EXAMINATION WITH TRA VEL AND
LODGING EXPENSES TO BE PAID BY THE PLAINTIFFS
ORDER
AND NOW, this
2"~
day of August, 1998, the motion of the defendant
to compel an independent medieal examination of the plaintiff is DENIED without prejudice to
the defendant to schedule an independent medical examination early in the eivil trial week
commencing 8epiember 14, 1998, so as not to delay the trial of the case from this tenn. The
argument set in this matter for 8eptember 3, 1998, at 2:30 p.m., is CANCELED.
BY THE COURT,
Lisa J. Mauer, Esquire
For the plaintiffs
Amy C. Foerster, Esquire
For the Defendant
4\
:rlm
"
Exhibit I
I.......- V
HARTMAN & MILLER, P.c. ATIORNEYS AT LAW
126. t28 WAI.NUT STRl!Irr. flAIOOSUURI:. I'A t1\OI . Tl!I.l!1'1I0NII (717) 232.3046 . WRITUR'S UlCTENSION 103
FACSlMlLl (717) 232.3538 . EMAlL H.MQp"online.com
lAC]( M. HAIn'MAN
DAWl C. MnulJl
MBUNDA S. S/tOOP
klVlN E. OsBORNB
Duw p, GANNON
AJ.N C. FoIlllmUl
OI.MlIIC, OvlIIu.\NDEIlIII
TAIlAA. MUCHA
Facalmlle (610}983-0570
September 9, 1998
Lisa J. Mauer, Esquire
Graham &. Mauer, P.C.
The Commons at Valley Forge, Suite 22
P. O. Box 987
Valley Forge, PA 19482
RE: Victoria A. BUleland Cbrlatopber BUlel v, Doria M. Henry
Cumberland County No. 1997-6064
Dear Lisa:
Pursuant to our telephone conversations last week, I am writing to confirm the scheduling of the
relevant pre-trial matters in the above-referenced action. It is my understanding that Ms. Bugel will be
seeing Dr. Mira in the early afternoon of Monday, September 14,1998. Her I.M.E. with Dr. Maurer is
scheduled for 3:00 p.m. that afternoon. Although I believe that I Indicated in our telephone conversation
that the I.M.E. would take place in the offices on Green Street in Harrisburg, I said that I would get back
to you after I confirmed this information. As it turns out, I was incorrect, and Ms. Bugel's 3:00 p.m.
I.M.E. will take place at the Per Diem offices at 1600 Hummel Avenue, Camp HIli, Pennsylvania. If you
need directions to this address, please let me know. It is my understanding that Ms. Bugel will be
bringing all oflhe x-rays related to this accident with her to her l.M.E., and I would ask that she also
bralng a copy of the office records (even if only handwrlllen) generated by Dr. Mira on September 14,
1998.
With regard to depositions, Dr. Mira's videotape deposition is scheduled for September 14,
1998, at 5:00 p.m. at his office In Carlisi.. Finally, Dr. Maurer's vldclitape deposition for use of trial Is
scheduled for 4:00 p.m. on September IS, 1998, at the Hummel Avenue address. I am enclosing a eopy
of the Deposition Notice herewith.
If you have any questions, or ifany of the above does not comport with your understanding,
please do not hesitate to contact me.
Very truly yours,
ftl.~~
...
Enclosure
ACF:slr
ce: Susan Philson (Erie Claim #0101-7026-4270)
j
.
COMMONWEALTH OF PENNSYL VANIA
COUNTY OF CUMBERLAND
Victoria A. Bugel and Chriltopher Bugel, hIw
Plaintiffl
. :
File No.: 97-6064
v.
Doria M. DCllI)'
,
"
Defendant
TO:
SUBPOBNA
J(')btM -Mau(.((" MJ> '2.I:j(CO ~r.qQY1 Sf-.
1lJ. '2 -'''I=.59~
~vr\~~r~
1.
You ue ordered by the court to come to: ~~ ~~~ ~ =~~ause Souare
in Carlisle. Cumberland County. Pennsvlv 'a ll~'.odl~ I r. 8 t. a to testifY on
behalf of the Plaintiff in the above cue, and to remain until excused.
And bring with you the following: {Il'\lf.{ I. . hl;,\I;'
" .1 ( ,.. V1
2.
If you fail to attend or to produce the documents or things required by this subpoena, you may be aubject to
the sanetiona authorized by Rule 234.5 of the Pennsylvania Rules of Civil Procedure, ineluding but not limited to
costs, attomey feel and imprisonment.
ISSUED BY A PARTY/COUNSEL IN COMPLIANCE wrm Pa.R.C.P. No. 234.2(a)
NAME: LIla J, Mauer, EaquJre
ADDRESS: The Commona at Valley Forge
Suite 22, P.O. Box 987
Valley Forge, P A 19482
TELIlPHONB: 6101933-3333
SUPREME COURT ID# 65426
DATE: rl.~? 199P
of the Court
BVTIlBCOURT:
1:1 (L"7b_/~#r
thonotuy, Civil DiVllian
\.
L2~~ . 0 ~~./'
... uly
OFFICIAL NOTE: This form of subpoena shall be used whenever a subpoena is issusble, including hearings in
connection with depositions and before arbitrators, masters, commissioners, ete. in compliance with Pa.R.C.P.
No. 234.1. If a subpoena for production of documents, records or things is desired, complete pmgraph 2.
-
-
.
,
,.
.,'
Exhibit K
Re€elved Sep-16-98 98:48
.' SEP-16-1998 09'06
from CCITT G3 ~ 16199839579
HM~ L MILLER, PC
page 2
P. 0<l/0J
HARTMAN & MILLER, P.C. AnOaNll'l'S AT LAw
126 -128 WALNlIT STulT. ~ PA 17101 . TlWtIONl (711) Z3HO~ · Wanllll', amNIICN 10)
p.ClIN!. (111)131-3531 . IIwAIL H.Meplllllilnl,com
IM:X M, IiAImoIM
DAVID Co MIwII
~~
kMN I.
Duw P. AIN:lN
AMf Co JIOIN'TD
Q.lVllCo OvuvNDU m
T.....A.MUCKA
stptemblt 16, 1998
'l'be HODOllblo J. W.tloy Olll, Jr.
Cllmbtrlaad CoUllty Collltho\ltl
011o Court HoutO Squue
Carlllll. PA 17013.3387
Rei Vlctori. A. Ba." ad Cbn.topb.r Ba..1 ~, Dorll MoIlaI7
Cumberllllld Couty No. 1997~
Dear Juda' Oler:
r rep....OIlt tho Dofondant In tho Ibovo-"fmncod DI8ltU, whleh illdlIduIod to boaln
trlalln front otyou all :30 p.m. today, AD Issue IrOSO laIC y~ aftomoon \hat 1 would llke
to drsw to your ItlcIltlOD In the event that you hive the opportunity to alve It your consideratlon
prior to any pmrlal mMllIli In yow ehambcn thla aftcmoon.
,.. you may recall, In ID Order dated Auauat 26, 1998, Judao Heu relOlvcd an
oulltaacllllll I.M.E, luuo by rullIIa t!W Dttlllldant was ontltlcd to IQhcdulo ID I.M.E. otP1alntlff
tor MOIIday, September 14, 1998. Thll I.M.B. was lChedulcd wlth Dr. Robert MaIaer for 3:00
p.m. on Soptember 14th. Followlnll tho I.M.B., tho dmnIe made tho d8tlnlllndtion that lhey
would not reqUOlt I wrlltOlll'GpOrt from Dr. Maurer, IIld would not be callina him II ID expert at
trial. ThIs pllll was convoyed to Plain1lffs' counaol, Lt.n Maull, It the videotape depolltion of
Plalntiffa' expert, Dr. MIra, on Monday ovonlnll. Attomoy Mauer did IIOt lndlcatllthat she had
any objection to thla choice on tho part of tho Dofoadant.
At 5:00 p.m. yos"rday, however, I rtCtlvtd I fax &om Attorney Mauer's paralllllal,
lnoludlna . Subpocll& to loIti1Y at trial which wu apporontly Issued upon Dr. Mallnlr, Tho
defOlUO objecll to Plaintiffs' attempt to hay. Dr. Maurer testify 11 trial. Dr. Maurer wu clearly
not one ofPlalntltrs tre&tlna physlclllll, and elllllOt wtl!y in that capacity. Ho wu IIOt
Iclmtlftod u I wltneu by PJllntltfJ In their PlClri.1 M.mOl'lllllum. Plaintiff, hive IIOt proclucecl I
repon sUlhorod by Dr. Mlllnlr, nor havo thO)' Identl1ied him u an .xport to tertlfy at trial WIder
PL RoC.P. 4003.5 despite dlscovery roqu'.1I INIdns the ldontity of all export wltnellO'to testify
II trial FurthlIm10tl, Plalatit!i should not be l\Jowed to do 10 11 this Iato dalO. Dr. Maurer
Ihould not, tboroforo, be compollcd to tat/fy U ID expert OD PlaIntlff'a' behalf.
Received Sep-16-98 98:48
. . SEP-U.-199El 091 07
from CCITT 03 ~ 16199839579
~'m'IN .. MILLER, PC
page 3
p . IilJ.Ie3
1'hI.Dk you Cor your cODlideration or WI mattar.
V ff'/ fluly youn,
~~
Amy C, FOftItcr
ACF':b1w
co: Lilli. Mauer, Beq\llrt (vii tac.lmllc 610-913.0570)
~ ')
..
TOTAL. P ,113
ocr
II iY9~
!
i
GRAHAM & MAUER, P.C.
BY: LISA J, MAUER, ESQUIRE
Allorney I.D. 65426
The Commons at Valley Forge
Suite 22, P,O. Box 987
Valley Forge, Pennsylvania 19482
(610) 933-3333
Attorney for Plainti ffs
VICTORIA A. BUGEL and
CHRISTOPHER BUGEL, as husband and wife.
Plaintiffs
COURT OF COMMON PLEA8
CUMBERLAND COUNTY
Docket No: 97-6064
vs.
DORI8 M. HENRY,
Defendant
JURY TRIAL DEMANDED
ORDER
AND NOW, this
day of
, 1998, upon
consideration of Plaintiffs' Motion for Post Trial Relief in the form ofa Motion forJud~ent
Notwithstandinl! the Verdict or. in the Alternative. for a New Trial and Defendant's response, it
is hereby ORDERED that a new trial is granted as between Plaintiff and Defendant.
By the Court:
J.
OCT
8199~
GRAHAM &. MAUER., P.c.
BY: LISA J, MAUER., ESQUIRE
Attorney I.D. 6S426
The Commons at Valley Forge
Suite 22, P.O. Box 987
Valley Forge, Pennsylvania 19482
(610) 933-3333
Attorney for Plaintiffs
VICTORIA A. BUGEL and
CHRI8TOPHER BUGEL, as husband and wife,
Plaintiffs
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
DllCket No: 97-6064
vs.
DORI8 M. HENRY,
Defendant
JURY TRIAL DEMANDED
ORDER
AND NOW, this
day of
,1998, upon
consideration of Plaintiffs' Motion for Post Trial Relief in the fonn ofa Motion for Judllltlcot
NotwithstandinlZ the Verdict or. in the Alternative. for a New Trial, and Defendant's response, it
is hereby ORDERED that judgment is entered in favor of Plaintiffs and against the Defendant
notwithstanding the verdict.
By the Court:
J.
~
/
.
"
>.
"
HARTMAN" MILLEIl. P,C,
126-1:11 w.wwr 8TUIr
~ PA. mOl
(7l7)23~
~ '.'
.
.
"
,
I
,
,'-
~-
.':;"';-~::J1.~
-.';-----.r~_...:.:.__:__ :.-:-~::.4~
.
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENN8YL VANIA
VICTORIA A. BUGEL and
CHRISTOPHER BUGEL,
v.
CIVIL ACTION - LAW
DORIS M. HENRY,
NO. 1997-6064
Defendant
JURY TRIAL DEMANDED
ORDER
AND NOW, this _ day of
_, 1998, upon consideration of Plaintiffs'
Motion for Post-Trial Relief in the Form ofa Motion for Judgment Notwithstanding the Verdict
or, in the Alternative, for a New Trial, and the Defendant's Answer and New Matter in
opposition thereto, Plaintiffs' Motion is hereby DENIED.
J.
itself. Defendant specifically denies stipulating to liability for any injuries allegedly suffered by
Plaintiff Victoria Bugel.
4. Denied as stated. It is admitted only that in awarding damages, ifany, Plaintill;
are to be treated as if they had elected the Full Tort Option under the Motor Vehicle Financial
Responsibility Law.
S. Denied as stated. It is admitted that Plaintiffs provided the expert medieal
testimony of Plaintiff Victoria Bugel's treating orthopedie surgeon, Allan Mim, M.D., by
videotaped testimony at trial, and that Defendant did not call her own separate medical expert. It
is specifically denied that Defendant provided no expert medical testimony, as Defendant elicited
testimony from Dr. Mira on eross-examination.
6. Denied as stated. It is admitted that Dr. Mira testified at trial by videotaped
deposition as noted on pages 23-24, 29-30, and 41 of his deposition transcript attached to
Plaintiffs' Motion as Exhibit "B". Defendant objects to Plaintiffs' characterization of Dr. Mim's
testimony. By way of further answer, Dr. Mira testified that he examined Plaintiff Victoria
Bugel on January 29,1998, at which time he was unable to predict exactly how long her
condition would last. Dr. Mira further testified that he did not examine Victoria Bugel at all
between January 29, 1998, and July 6, 1998, but rendered an expert r~port on July 6, 1998,
indicating that he felt that Victoria Bugel's condition was permanent. (Trans~ript of Dr. Mira's
videotaped deposition testimony for use at trial (hereinafter "Dr. Mira's Transcript"), p. 38.)
Additionally, Dr. Mira testified on several occasions on cross-examination that various radiology
2
reports indicated that Plaintiff Victoria Bugel's fractures were healinll in a lIood position (Dr.
Mira's Transcript, p. 3S 1.11-16), and that he himself also felt that the fractures were healing in a
good position (Dr. Mira's Transcript, p. 321.6, p. 32 1.22-23, p. 3S 1.4-7). A true and correct
copy of the relevant portion of Dr. Mira's transcript is attached hereto as Exhibit "A", and is
incorporated herein by reference.
7. Denied as stated. It is admitted that Dr. Mira testified as pages 30-31 of his
transcript indicate. It is specifically deni~d that Dr. Mira's testimony on direct examination was
uncontradicted, as evidenced by the testimony elicited by Defendant on cross-examination of
both Dr. Mira and Plaintiffs.
8. Denied. Plaintiffs' characterization of Dr. Mira's testimony is incorrect. Dr.
Mira's testimony speaks for itself. Specifically, Dr. Mira testified that when he examined
Plaintiff for the first time, her knee was stable and she had no swelling. He further testified that
he thought that she had sustained a bruise on the dashboard and maybe some minor sprain of the
ligaments that hold the knee bones together. It is admitted that Dr. Mira did not think that there
was any further damage than thaI. (Plaintiffs' Motion, Exhibit "D".)
9. Admitted. Any implication that Dr. Mira's testimony was accurate, credible, or
worthy of belief by the jury is specifically denied. The jury was not bound by Dr. Mira's opinion
merely because he is an expert, but could accept or reject it, as in the case of other witnesses. Pa.
8.8.1.1. (Civ) 5.30.
3
10. Denied as stated. It is generally admitted that Plaintiff Victoria Bugeltestified
regarding pain in her foot and knee. No further admissions with regard to Plaintiff Victoria
Bugel's testimony on this matter can be made pending the review of the trialtranscripl.
II. Denied as stated. It is admitted that at the close of trial, the Court instructed the
jury as to the substantial factor requirement in a negligence action, and provided the jury with a
copy of the verdict slip attached to Plaintiffs' Motion as Exhibit "F".
12. Denied as stated. It is admitted that to the best of undersigned counsel's
recollection, unaided by the trial transcript, Plaintiffs, through their counsel, objected to the
Court's jury instruction regarding the substanl1al factor requirement in a negligence aetlon.
Undersigned counsel does not recall whether or not Plaintiffs' counsel objected on the record to
the Verdict Slip question regarding "substantial factor". Regardless, Plaintiffs' objection was
misplaced. The "substantial factor" requirement fulfills the causation element necessary to
SUPP011 a cause of action in negligence. & O'Neal v. DellI. Of Army, 852 F. 8upp. 327,335
(M.D. Pa. 1994). The fact that Defendant has stipulated to causing the accident in no way
obviates Plaintiffs' need to prove the remaining elements of a negligence action.
It is specifically denied that Plaintiffs provided uncontradicted testimony as to the cause
of Plaintiff Victoria Bugel's hann at the trial of this matter. For example, although Dr. Mira
testified that the motor vehicle accident in question caused Plaintiff Victoria Bugel's injuries, he
also testified that the x-rays taken at Carlisle Hospital immediately following the accident were
not interpreted as showing a fractured fool. In fact, Victoria Bugel was not found to have a broke
4
foot until several days later. The jury apparently found this point to be relevant, because during
its deliberations it returned to the Court with a question as to when Plaintiff Victoria Bugel's foot
was ultimately put in a cast. Pursuant tD the stipulation of the parties, the jury was infonned that
Victoria Bugel's foot was put in a cast on October 8, 1996. The jury returned to the courtroom
with its defense verdict shortly after receiving this infonnation. It is conceivable that the jury did
not find Dr. Mira's testimony that the fractures do appear on the Carlisle Hospital x-rays, despite
the fact that they were not noted in the radiology report, credible, and disregarded it. The jury
may have detennined that Plaintiffs' did not, therefore, prove that the accident in question, as
opposed to some intervening event, caused Victoria Bugel's fractured foot. Additionally, as
indicated in paragraph 6 above, although Dr. Mira testified on direct examination that Victoria
Bugel's fractures did not heal properly, he testified on cross-examination that both he and
various radiologists had found that the fractures healed properly. This testimony acts both to
support the jury's verdict in favor of Defendant, and to call Dr. Mira's credibility into question
with the jury.
Although Defendant did not call any separate witnesses of her own, the cross-
examination of Victoria Bugel, Christopher Bugel, and Dr. Mira was rife with contradictions.
Furthennore, the testimony elicited on the cross-examination of these three witnesses called into
question whether or not Plaintiff Victoria Bugel actually suffered any serious or pennanent
injuries; the extent of the pain, loss of future eaming capacity, and loss of life's pleasures
allegedly suffered by Victoria Bugel; and, generally, the validity of the damages alleged by
s
Plaintiffs. For example, Dr. Mira testified on several occulons durina cross-eumillldollthM
Mrs. Bugel was doing very well and that her fractures showed aood healinl and lood position.
Pursuant to the jury instructions given by Judge Oler, and relevllllt case law, the jury WIt not
required to find the testimony olTered by Plaintiffs credible, and, in fact, wu entitled to believe
all, part, or none of the evidence. Randt v. Abex COlJ)., 448 Pa. 8uper. 224, 234, 671 A.2d 228,
233 (1996). Evidence is not proof until it is believed and accepted by the jury. Henerv v.
Shadle. 443 Pa. 8uper. 331, 337, 661 A.2d 439, 442 (1995), alloc. denied, 668 A.2d 1133 (1 99S).
13. Admitted.
14-16. Denied. The jury found that Defendant's negligence was not a substantial factor
in causing the harm complained of by Plaintiff Victoria Bugel. The jury apparently decided that
Plaintiffs did not prove that Victoria Bugel actually broke her foot as a result of the automobile
accident. The Carlisle Hospital Radiology Report does not identify the breaks in her foot.
Although Dr. Mira testified that those x-rays do indeed show the fractures, perhaps the jury
found that Dr. Mira was not credible in his other testimony, and, therefore, disregarded his
testimony. The jury may have found that Mr. and Mrs. Bugel were not credible in their
testimony about Mrs. Bugel's pain and suffering, inconvenience, and loss of life's pleasures
associated with her alleged injury, and. therefore, found that Defendant's negligence was not a
substantial factor in causing all of the harm alleged by Plaintiffs. "Ajury is entitled to believe
all, part, or none of the evidence presented. Ajury can believe any part ofa witness' testimony
that they choose, and may disregard any portion of the testimony that they disbelieve.
6
Credibility determinations are for the jury." RlIIIl11 at 234, 671 A.2d at 233 (citations omitted).
Additionally, the jury may have concluded that whatever "injury" Victoria Bugel sustained in the
accident was nothing more than a mere rub of life for which no damages were indicated. By way
of further response, Defendant's New Matter is incorporated herein by reference.
WHEREFORE, Defendant, Doris M. Henry, respectfully requests this Honorable Court
deny Plaintiffs' Motion for Judgment Notwithstanding the Verdict for the reasons set forth above
and those set forth in Defendant's New Matter below.
lL MOTION FOR A NEW TRIAL
17. Admitted,
18. Denied as stated. It is admitted that the Honorable Kevin A. Hess entered an
Order denying the specific relief sought in Defendant's Motion to Compel, without prejudiee to
Defendant to schedule an independent medical examination (hereinafter "I.M.E.") early in the
civil trial week commencing 8eptember 14, 1998, so as not to delay the trial of the case. In that
regard, Judge Hess indicated in his Pre-Trial Conference Memorandum that this case was to be
scheduled "for later in the trial week". It is specifically denied that Judge Hess ordered that the
I.M.E. be conducted by Dr. Lonergan. A true and correct copy of Judge Hess' Order and
Memorandum is attached hereto as Exhibit "B", and is inCOrPorated herein by reference.
19. Admitted. By way of further response, Dr. Lonergan was willing to conduct an
I.M.E. of Plaintiff Victoria .'3ugel in October of 1998, and had tentatively set aside time to do so.
Dr. Lonergan simply was not available to conduct an I.M.E. on such short notice.
7
20. Denied. The letter allached to Plaintiffs' Motion as Exhibit "I" confirms rather
than notifies Plaintiffs' counsel that Dr. Maurer would be conducting the I.M.E. of Victoria
Bugel on Monday, 8eptember 14,1998, and that Dr. Maurer's deposition was scheduled for
Tuesday, 8eptember IS, 1998, at 4:00 p.m. Counsel discussed the possibility that Dr. Maurer
would be conducting the I.M.E. in telephone conferences on August 26, 1998, and August 28,
1998. On August 31, 1998, undersigned counsel confinned to Plaintiffs' counsel that Dr. Maurer
would be conducting the I.M.E. on 8eptember 14,1998. Finally, undersigned counsel's records
also reflect that she telephoned Plaintiffs' counsel on September 1. 1998, to discuss the
scheduling of Dr. Maurer's deposition.
21. Denied as stated. It is adrnilled that Robert Maurer, M.D., is not listed as an
expert witness in Defendant's Pre-Trial Memorandum. It is specifically denied, however, that
the scheduling of the J.M.E. subsequent to the Pre-Trial Conference was untimely. The history
of this matter, as reflected in the various Motions which have been filed with the Court,.
demonstrates that the Motion of Defendant, Doris M. Henry, in Opposition to Plaintiffs' Praecipe
Listing Case for Trial and the Motion of Defendant, Doris M. Henry, to Compel Plaintiff's
Allendance at an Independent Medical Examination were both outstanding at the time of the Pre-
Trial Conference before the Honorable Kevin A. Hess. Judge Hess resolved these matters by
allowing Defendant to have an I.M.E. of Plaintiff conducted on 8eptember 14, 1998, without
delaying trial, which was to be scheduled for later that week. The J.M.E. was indeed conducted
on 8eptember 14, 1998, and, therefore, was not "untimely".
8
22. Denied us stated. It is admilled that undersigned eoIIIIMI UIlnd ,.-'-"cr.'
counsel that she would receive a copy of Dr. Maurer's expert report prior to hit depoIition,
which was not, however, scheduled at that time.
23. Admilled. By way of further response, it is undersigned counsel's understanding
that Dr, Maurer never produced a written expert report. Additionally, Defendant did not present
Dr. Maurer as an expert witness at trial, thereby obviating the need to provide an expert report.
24. Denied as staled. It is admitted that Plaintiff underwent an I.M.E. arranged by
Defendant on 8eptember 14, 1998. By way of further response, although undersigned counsel
was not present at the I.M.E., it is her understanding and belief that Plaintiffs' counsel was
present for said examination.
2S. Denied. Dr. Maurer did not render a written expert report regarding Plaintiff. To
the extent that an oral opinion was given to Plaintiffs or their attorney at the examination,
undersigned counsel was not p~ivy to such conversation.
26. Denied as slated. Dr. Maurer did not render a wrillen expert report following his
I.M.E. of Plaintiff Victoria Bugel. Defendant did not, therefore, elect not to provide Plaintiff
with the medical expert report, as alleged in Plaintiffs' Post-Trial Motion, but instead elected not
to have a written report produced at all. The reason for such decision is protected as allorney
work product. It is admitted that Defendant elected not to take Dr. Maurer's deposition and not
to call him as a medical expert during the trial of this matter. By way of further response,
PlaintitTVictoria Bugel's I.M.E. was scheduled for 3:00 p.m. on Monday, September 14, 1998.
9
The videotaped deposition of Plaintiffs expert for use at trial, was scheduled for S :00 p.m. that
same day. Undersigned counsel did not determine that Defendant would not call Dr. Maurer as
an expert witness at trial untilapprollimatcly S:OO p.m. on September 14, 1998. She infonned
Plaintiffs' counsel of this decision immediately following Plaintiffs' expert's deposition.
27. Denied. It is admitted that undersigned counscl received a copy of the subpoena
from Plaintiffs' counsel via facsimile transmission at approximately S:OO p.m. on Tuesday,
September IS, 1998. Undersigned counsel is unaware of Plaintiffs' bllSis for subpoenaing Dr.
Maurer.
28. Denied as stated. It is admitted that on 8eptember IS, 1998, immediately
following her receipt of the above-referenced subpoena, Defendant's counsel prepared a letter to
the Honorable J. Weslt:y Oler, Jr. objecting to Plaintiffs calling Dr. Maurer to testify at triaJ.
This letter was transmitted to both Judge Oler and Plaintiffs' counsel at approximately 8:S0 a,m.
on 8eptember 16, 1998, in the event that Judge Oler had the opportunity to consider the maller
prior to the beginning of the trial that day, and so that, pursuant to Dr. Maurer's request,
undersigned counsel would be able to inform him whether or not he was required to testify at
triaJ.
29. Denied as slated. The oral argument referred to by Plaintiffs was held on
September 16, 1998, prior to the beginning of trial, at which time undersigned counsel argued
that Dr. Maurer was clearly not one of Plaintill's treating physicians, and could not testify in that
capacity, nor was he identified as a witness by Plaintiffs in their Pre-Trial Memorandum.
10
Furthennore, Plaintiffs had not produced a report authored by Dr. Maurer, nor had they identified
him os an expert to testify undcr Pa. R.C.P, 4003.S despite discovery requests se;::king the
identity ofoll expert witnesses to testify at trial. The Defendant's discovery requests, which
were served in conformancc with Pa. R.C.P. 4003.5, required that Plaintiffs provide the reports
of all experts to testify on their behalfat thc time of trial. 8imilarly, despite the fact that
Plaintiffs' counsel was present at Victoria Bugel's I.M.E., undersigned counsel could not have
presented Dr. Maurer at trial without first providing a copy of his expert report, or otherwise
meeting the requirements ofPa. R.C.P. 4003.S. Although Plaintiffs' counsel was apparently in
attendance at Victoria Bugel's independent medical examination. undersigned counsel was not.
Finally, undersigned counsel also argued that an expert witness cannot be compelled to give his
opinion at trial.
30. Denied as stated. It is admitted that Plaintiff made the arguments set forth in
Paragraph 30 of their Motion. It is specifically denied, however, that Plaintiffs' arguments were
accurate. Contrary to Plaintiffs' arguments, Defendant certainly would have been prejudiced had
Dr. Maurer been compelled to testify for Plaintiffs pursuant to subpoena, because, os set forth in
paragraph 29 above, Plaintiffs had not yet provided the report of Dr. Maurer. Defendant wos not,
therefore, aware of the content of Dr. Maurer's proposed testimony.
31. Denied as slated. It is admitted that Judge Oler excluded Dr. Maurer's testimony.
To the best of undersigned counsel's recollection, without having a trial transcript yet available,
Judge Oler excluded Dr. Maurer's testimony for the reasons set forth in paragraph 29 above.
11
32. Denied as stated. It is admitted that Dr. Maurer did not appear in Court to object
to Plaintiffs' subpoena. Dr. Maurer, however, was not a party to this action, and, therefore, as
with other discovery or evidentiary disputes, the relevant objection was raised by counsel for one
of the parties. It is specifically denied that Defendant's objection was untimely. To the contrary,
it was raised at 8:S0 a.m. on the first business day following the belated receipt of Plaintiffs'
subpoena.
33. Admitted. It is admitted that Dr. Maurer was willing to testify on behalf of
Defendant at the time of triaJ. It is specifically denied that Dr. Maurer gave any indication that
he was willing tC' testify on behalf of Plaintiffs at the time of trial.
34. Denied. Plaintiffs had already identified their expert witness and provided his
expert witness report prior to the Pre-Trial Conference held in this matter. In c.hambers prior to
the trial of this matter, Plaintiffs' counsel indicated that Dr. Maurer would actually contradict Dr.
Mira's testimony regarding Victoria Bugel's injuries. Without yet having the transcript of the
trial available, undersigned counsel does not recall whether or not this part of the conversation
took place on the record. In any event, Plaintiffa certainly cannot establish prejudice for not
being allowed to subpoena an expert witness the night before trial to testify on their behalf.
3S. Denied for the reasons set forth in paragraph 12 above.
36. Denied. Pursuant to Pa. R.C.P. 227. I (b)(2), Post-Trial relief may not be granted
unless the grounds therefore are specified in the Motion. Grounds not specified are deemed
12
waived unless leave is granted upon cause shown to speeify additional grounds. Plaintiffs may
not, therefore, reserve the right to file additional grounds supporting their Motion.
WHEREFORE, Defendant, Doris M. Henry, respectfully requests that this Honorable
Court deny Plaintiffs' Motion for a New Trial for the reasons set forth above and those set forth
in Defendant's New MaUer below.
NEW MATTER
37. "Judgment notwithstanding the verdiet is an extreme remedy, which a trial eourt
may properly enter only where, after viewing the evidence in the light most favorable to the
verdict winner, no two reasonable minds fail to agree that the verdict was improper." Giosa v.
School District of Philadelphia, 157 Pa. Commw. 489, 498, 630 A.2d 511, 515 (1993),llll2k.
dmkd, 647 A.2d SI2 (1993), overruled on another basis. Fernandez v. Citv ofPiusburl;lh. 643
A.2d 1176 (Pa. Commw. 1994) (citations omiued).
38. "[J]udgment n.o.v. may not be employed to invade the province of the jury. Thus,
questions of fact must be resolved by the jury." Ludmer v. Nemberll. 553 Pa. Super. 316, 322,
640 A.2d 939, 942 (1994), alloc. denied. 664 A.2d S42 (199S), cert. denied, 116 S. Ct. 1849
(1996).
39. "In ajury trial, the entry of judgment n.o.v. is proper where binding instructions
should have been given at the close of trial." Scbolastic Technical Service Employees v.
Pennsylvania State University, 37 Pa. Commw. 622, 625, 391 A,2d 1097, 1098 (1978) (citations
13
omitted), limited on annt. hllla,lnl Ass'n of Fire Fiihten v. Ciey of!lennton, 448 A.2d 114
(PI. Commw. 1982).
40. Plaintiff did not seek 0 directed verdict at the close of trial, and it would not hive
been proper for the Court to give binding instruetions in favor of Plaintiffs.
41. "In determining whether a judgment notwithstanding the verdict was required,
only the evidence which supports the verdict may be considered, giving the verdict winner the
benefit of any doubt." Deienhardt v. Dillon Companv, 543 Pa. 146, IS3, 669 A.2d 946, 9S0
( 1996).
42. In the case at bar. therefore, only the evidence supporting the verdict in favor of
Defendant, that is the contradictions and testimony elicited on cross-examination, the fact that no
bro~en foot was diagnosed in the emergency room, etc., must be considered.
43. "A judgment notwithstanding the verdict may be entered only if the movant is
entitled to judgment as a mailer of law and if the evidence presented at trial was such that no two
reasonable minds could disagree that the verdict would be in favor of the movant." Dellenhardt,
S43 Pa. at IS3, 669 A.2d at 950.
44. In the case at bar, it is clear that "two reasonable minds" could in fact disagree
that the verdict would he in favor of Plaintiffs, because there was evidence elicited at trial which
was contrary to the Plaintiffs' position, and which supports the verdict for the Defendant.
14
4S. Additionally, Plaintiffs are not entitled to a Judgment Notwithstanding the
Verdict, because they failed to object to the verdict before the jury was dismissed. ~ Picca v.
Kriw. 43S Pa. 8uper. 297, 64S A.'Zd 868 (1994).
46. For the reasons set forth above in paragraphs 17 through 36, Plaintiffs are not
entitled a new trial based upon the Court's ruling excluding the testimony of Dr. Maurer, nor
because the Court included the issue of "substantial factor" in its jury instruction and verdict slip.
WHEREFORE, Defendant, Doris M. Henry, respectfully requests that this Honorable
Court deny Plaintiffs' Motion for Post-Trial Relief in the fonn of a Motion for Judgment
Notwithstanding the Verdict, or, in the Alternative, for a New Trial.
Respectfully submitted,
HARTMAN & MILLER, P.C.
Dated: /O/la..H6
.
By:
Amy C. Foerster, Esquire
8upreme Court I.D. #77986
126-128 Walnut Street
Harrisburg, PA 17101
(717) 232-3046
Attorneys for Defendant, Doris M. Henry
IS
EXHI8IT A
31
I
I
I
1 feet a lot in any kind of job.
2
3
4
Q.
In any kind of a job, not just waitressing?
A.
Yes.
Q.
Would those restrictions also apply to any
5 recreational activities such as some of those you've
11
13
17
Q.
6 discussed with Mrs. Bugel in the past?
7
A.
Yes.
Q.
Could you give us an example?
8
9
A.
Walking, aerobics, playing around in the
10 backyard, jumping, some sports.
MS. MAUER: Thank you, Doctor. I have no
12 further questions at this time.
MS. FOERSTER: Off the record.
14 (Discussion held off the record.)
15 CROSS-EXAMINATION
16 BY MS. FOERSTER:
Doctor, again, my name is Amy Foerster and I
18 represent the defendant, Ms. Doris Henry.
19 Are you holding in your hands your chart on
20 Mrs. Bugel?
21
A.
Yes.
I'll be referring to that chart on occasion.
23 Please feel free to look at it whenever you'd like.
22
Q.
24
A.
25
Q.
Okay.
I'm going to start with the first day that you
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34
lone's are on the top. Let me look through here.
2
I see February 3rd, 1997.
3
o.
That's fine, Doctor. And was the February 3rd.
4 1997 letter the letter in which they were requesting a
5 copy of Mrs. Bugel's medical records?
6
A.
Yes.
7
o.
And that was subsequent to your discharge of
8 her on January 30th of 1997?
9
A.
Yes.
10
0,
Did you again see Mrs. Bugel on April 6th --
11 excuse me -- did you again see Mrs. Bugel on April 29th of
12 1997?
13
A.
Yes.
14
o.
Prior to that, did you send her to get
15 additional x-rays taken on April 16th of 1997?
16
A.
Thereabouts, yes.
17
o.
And it was you that sent her to have those
18 x-rays taken, was it not?
19 A. Yes.
20 Q. Do you have a copy of that radiology report?
21 A. I see April 16th, 1997.
22 Q. Yep. That's it, Doctor.
23 A. Um-hum.
24 Q. Is it correct that that report states that
25 fractures at the base of the second, third and fourth
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35
1 metatarsals described on the 18 November 1996 have
2 healed. No other bony abnorma li tie s are visualized?
3 A. That's what it SiJYs.
4 Q. On April 17th of 1997 do your office records
5 indicate that somebody from your office contacted Mrs.
6 Bugel to indicate that her x-rays looked good?
7 A. Yes.
8 Q. Did Mrs. Bugel again then have additional
9 x-rays taken on April 29th of 1997?
10
A.
Yes.
11
And do those x-rays
if you look at the
Q.
12 radiology report -- state that
or does the radiology
13 report state that, no fracture or other bony abnormality
14 is seen. The joint spaces are normal and no soft tissue
15 abnormality is noted?
16
A.
That's what the radiologist says.
17
Q.
On April 29th, 1997 -- I believe you testified
18 just a few minutes ago that you did again see Mrs. Bugel
19 on April 29th of '97. Is that correct?
20
A.
Yes.
21
Q.
If you look approximately eight lines down in
22 your office note from that day, your note does say, x-rays
23 today show good healing, does it not?
24
A.
Yes.
25
Q.
When Mrs. Bugel came in to see you on July 15th
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1 of 1997, did she. in her history to you, report that
2 and I'm quoting here from your office notes -- about six
3 weeks ago she was coming down off a step and sort of
4 missed the last step landing on both feet, or jumped down
5 to the bottom, landing with both feet flat. And it seemed
6 to aggravate her with a little bit more discomfort in the
7 lateral portion of the midfoot?
8
That's what it says, right.
A.
9
Did you again -- you again saw Mrs. Bugel on
Q.
10 July 22nd of 1997 -- excuse me. Pardon, Doctor. You
11 again saw her on July 25th of 1997?
12
That's right.
A.
13
And in your notes for that date, did you
Q.
14 instruct Mrs. Bugel or recommend to her that she give her
15 condition about another 18 months before she do anything,
16 other than conservatively treat it?
17
A.
Yes.
18
Q.
And then again on August 8, 1997 you saw Mrs.
19 Bugal and told her to give her condition another 4 to 6
20 months to see if it is tolerable. Is that correct?
21
A.
Yes.
22
Q.
On August 25th of 1997, however, did Ms. --
23 Mrs. Bugel call for an appointment to discuss surgery with
24 you?
25
A.
Yes.
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36
38
1 Doctor. If you read the next sentence, does it not say,
2 they haven' t be'~:l modif ied any further though, and she
3 didn't have them with her today?
4
A.
That' oJ correct.
Okay. At that time, Doctor, in your office
6 note for August 29th, 1998, did you not, under your
15
A.
5
Q.
7 recommendations, indicate to her that you could not
16
Q.
8 predict exactly how long her condition would last?
9
A.
What 'o'/as the date of that? I'm sorry.
I'm still on January 29th of 1998, Doctor.
Okay.
If yea look under recommendations, does it not
13 state that you Clnnot predict exactly how long her
10
Q.
14 condition will last?
11
A.
That' oJ right.
Now, Doctor, you rendered an expert report in
17 this case on Julj 6th of 1998, did you not?
12
Q.
That I S right.
Did YJU examine Mrs. Bugel at all between
20 January 29th an; August .. excuse me -- July 6th of 1998?
18
A.
No.
In y,)'lr report of July 6th, 1998, however, you
23 did indicate tha': now you feel her condition is permanent,
19
Q.
21
A.
22
Q.
24 did you not?
25
A.
Yes.
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39
1
Q.
And .,' that time. Doctor, did you indicate that
2 you believe Mrli. Bugel should continue with her -- her
3 orthotics or UiJ':lg the orthotics?
4 A.
5 report?
6 Q.
7 A.
8
9
I'm srry, did you say that was part of that
Yes, Joctor.
Whel~ do you see that?
MS. FjERSTER: Could we go off the record?
(Discu:Jsion held (Iff the record.)
10 BY MS. FOERSTEr::
11
Q.
Doctc:, I would draw your attention to the
12 second to the la3t paragraph in your report. Do you
)
13 indicate that yc': would recommend that she continue the
14 use of the ortl:otics at this time?
15 A. Yes.
16 Q. Doctc::, are you certified to render AMA
17 disability rati.:'js?
18 A. Not special qualifications, no.
19 Q. And have you conducted a functional capacities
20 evaluation of [':, '. Bugel?
21
A.
No.
22
Q.
Have you coordinated your findings, your
23 medical findings with regard to your testimony
24 her employment : mitations, have you coordinated those
25 findings with J vocational rehabilitation expert?
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40
1
A.
No.
2
And have you done any independent search of
Q.
3 your own as the jobs available in the economy for Mrs.
4 Bugel, given her limitations, as you've testified to them?
5
No.
A.
6
MS. MAUER: Objection. The doctor already
7 testified that he has not consulted with a vocational
8 expert, And that question is way beyond his field of
9 expertise.
10 MS. FOERSTER: He's gone one step further than
11 waitressing at this point. So I want to explore and let
12 the jury understand that the doctor doesn't have the
13 capacity to make that determination as to what --
14
MS. MAUER: The step forward he made was with
15 regard to weight-bearing activities. And that is within
16 his field of expertise. And that's in his report.
17 MS. FOERSTER: Okay.
18 BY MS. FOERSTER:
19
My last question for you, Doctor, is whether or
Q.
20 not you have been asked by Mrs. Bugel or perhaps her
21 attorney to evaluate, review or approve any possible job
22 descriptions that may be available to her, that she is
23 perhaps looking into?
24
I haven't.
A.
25
MS. FOERSTER: No more questions, Doctor.
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EXHIBIT B
})
duimcd by thc plaintiff. Victoria Bugcl. SP.cciliqlly. Mrs, llugcl contcnds that bccuusc of hcr
, ,
injury (including multi pic fractures in hcr right root), shc must forcgo prcgnancy in thc
immcdiatc future. Shc tcstilicd to this conccrn during hcr dcposition and the dcfcndunt is.
therefore, not surpriscd. Nonethelcss, thcre is no rcfcrcncc to this conccrn in thc complaint.
Whilc we are inelincd to bclievc thatthcrc is no prcjudicc to thc dcfendant by pcrmilling this
testimony, thc mallcr should bc rulcd on by thc trial judgc.
Lisa J. Mauer, Esquire
For thc Plaintiffs
August 26, 1998
Amy C. Focrstcr, Esquire
For the Defendant
:r!m
Plaintiffs
IN THE COURT OF COMMON PLEA8
CUMBERLAND COUNTY,
PENN8YL VANIA
CIVIL ACTION - LAW
VICTORIA A. BUGEL and
CHRI8TOPHER BUGEL,
v.
DORI8 M. HENRY,
NO. 1997-6064
Defendant
JURY TRIAL DEMANDED
CERTIFICATF. OF SERVICE
I, Amy C. Foerster, Esquire, hereby certify that I am this day serving a C(JPY of the
foregoing document upon the person(s) and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure, via facsimile
transmission and by facsimile and United States First-Class Mail, as follows:
Lisa J. Mauer, Esquire
Graham & Mauer, P.C.
The Commons at Valley Forge
8uite 22, P. O. Box 987
Valley Forge, PA 19482
(Counsel to Plaintiffs)
Dated: /tJ! 011'6
HARTMAN & MILLER, P.C.
By: ~ eK;~
Amy r. Foerster, Esquire
Supreme Court J.D. #77986
126-128 Walnut 8treet
Harrisburg, P A 17101
(717) 232-3046
Attorneys for Defendant, Doris M. Henry
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GRAHAM & MAUER, P.C.
By: Lisa 1. Mauer, Esquire
Allorney I.D. #6S426
8uile 22, Valley Forge Commons
P.O. Box 987
Valley Forge, Pennsylvania 19482
Phone: 610/933-3333
Attorney for Plaintiff
VICTORIA A. BUGEL and,
CHRI8TOPHER BUGEL,
as husband and wife
THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
Plaintiff
CIVIL ACTION - LAW
vs.
No. 97-6064
DORIS M. HENRY
Defendant
JURY TRIAL DEMANDED
PLAINTIFFS VICTORIA AND CHRISTOPHER BUGEL'S RESPON8E TO
DEFENDANT DORl8 M, HENRY'8 NEW MATTER IN OPPOSITION TO
PLAINTIFFS' MOTION FOR POST-TRIAL RELIEF IN THE FORM OF A MOTIO~
NOTWITHSTANDING THE VERDICT OR. IN THE ALTERNATIVE,
FOR A NEW TRIAL
37. Admitted.
38. Admilled.
39. Denied as stated. The case cited by Defendant speaks for itself.
40. Denied. Answering Plaintiff is advised by counsel and, therefore, avers that the
allegations contained in the corresponding paragraph of the Defendant's New Matter are
automatically deemed denied as conclusions of law to which no responsive pleading is required.
8trict proof thereof is demanded at trial, ifmaterial.
41. Denied. Answering Plaintiff is advised by counsel and, therefore, avers that the
allegations contained in the corresponding paragraph of the Defendant's New Maller are
automatically deemed denied as conclusions of law to which no rcsponsive pleading is required.
8trict proof thereof is demandcd at trial, if material.
42. Denied. It is speci fically denied that only the evidencc supporting thc verdict in favor
of Defendant, that is the contradictions and tcstimony elicited on cross-examination, the fact that no
broken foot was diagnosed in thc emergency room, etc., must be considered. To the extent,
however, an answer may be required, Plaintiffs specifically deny that no broken foot was diagnoscd
in the Emcrgcncy Room. To the contrary, x-rays exhibited at trial by treating physician Allan Mira,
M.D. clearly indicated fractures visible at the time Plainliffwas examined at the Emergency Room
on the date of the accident. (N.T. 26, videodeposition of Dr, Allan Mira, 9/14/98, allached hereto
as Exhibit A.)
43. Denied. Answering Plaintiff is advised by counsel and, therefore, avers that the
allegations contained in the corresponding paragraph of the Defendants' New Malter are
automatically deemed denied as conclusions of law to which no responsive pleading is required.
8trict proof thereof is demanded at trial, if material.
44. Denied. It is specifically denied that "two reasonable minds" could, in fact, disagree
that the verdict would be in favor of Plaintiffs, because there was evidence elicited at trial, which
was contrary to the Plair;tiff's position, and which supports the verdict for the defendant. To thc
contrary, there was no evidence elicited at trial which was contrary to Plaintiffs' position since thc
Defendant did not call any witnesses or provide medicalteslimony on behalfofthe defense.
4S. Denied. Answering Plaintiff is advised by counsel and, therefore, avers that the
allegations contained in the corresponding paragraph of the Defendants' New Maller are
automatically deemed denied as conclusions of law to which no responsive pleading is required.
8trict proof thereof is demanded at trial, ifmalerial.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2811I day ofOctobcr, 1998, a true and correct copy of
Plaintiffs Victoria and Christopher BUllel's Response to Dcfendants Doris M. Henrv's New Maller
in OpDosition to Plaintiffs' Motion for Post-Trial Reliefin the fonn ofa Motion Notwithstandinll
the Verdict or. in the Alternative. for a New Trial mailed first class, postage prepaid to the following:
Amy Foerster, Esquire
Hartman, & Miller, P.C.
126-123 Walnut Street
Harrisburg, PA 17101
GRAHAM & MAUER
By:
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'L18A J. MAUEll, Esq Ire
Allorney for Plwntiff
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