Loading...
HomeMy WebLinkAbout98-00511 . percentage of causal negligence, if any, that you have attributed to the Plaintiff. $ Question 7 State the amount of damages, sustained by the Ronald Ruby as a result his wife's injuries, without regard to and without reduction by the percentage of cal:sal negligence, if any, that you have attributed to the Jill Ruby. $ After you return your answers to these questions on the verdict form, signed by your forernan, the Court will determine the amount to be awarded to the plaintiffs, if any, by reducing the amount f damages found by you in proportion to the percentage of the plaintiff's causal negligence, if any. I again caution you that you are not to rnake this reduction yourselves in reaching the amount of the plaintiffs damages, as set forth by your answer to Questions 6 and 7. Jury Foreman 3 >- ,... ~ U' ...;: II: 1- wP sa .::)~-t; u" -.- Oz w: r.:; :r= ~.:~ ..,.. c..)...-r.: ..:')> C., ';:'S:! e__ ,., :.~(/') L.t. f:',_ ~II} 0.)2 -J n: -;; ., => $Iff! ;=: Lt. ., Q a, ::J 0' u f\\'\ 5 ~~ 19. LOSS OF CONSORTIUM Mr. Ruby hns mnde a clnim in this Case for loss of consortium. Under Pennsylvnnin lnw, Mr. Ruby is entitled to be compensnted for the loss of Mrs. Ruby's services to him nnd the loss of compnnionship of Mrs. Ruby. , ') .1 II Ii i' P.S.C,J.I. 60lL ., ~ J I I' ,~ .". >- r- ~ cr l/",) ,.,: ,-- a 1l.IQ :::J::;; 0/- :c Oz Ci:Q ()~ '.l...~p .~ ~l:> 9~ '='.<2 C.' M :::~[n 0'4: LLI(J~ _,)z u:!I.U _J f.1.jZ Uw T :::> coo.. r-: ..., ~ u. m :::> 0 en U , 'Ii ,; ~ 2 I. COMI)ARATIVE NEGLIGENCE Thc Court has alrcady instructcd you about what you may considcr in dctcrmining whcthcr thc Dcfcndant, Rocky Gcorgc, was ncgligcnt, whcthcr Mrs. Ruby was contributorily ncgligcnt, and whcthcr such ncgligcncc, if any, was a substantial factor ill bringing about Mrs. Ruby's harm. If you find, in accordancc with thcse instructions, that thc Dcfcndant, Rocky Gcorgc, was ncgligcnt and such ncgligcncc was a substantial factor in bringing about Mrs. Ruby's harm, you must thcn considcr whcthcr Mrs. Ruby was contributorily ncgligent. If you find that Mrs. Ruby was contributorily ncgligcnt and such contributory ncgligencc was a substantial factor in bring about her harm, then you must apply the Comparative Negligcnce Act, which provides in Section I: The fact that a plaintiff may have been guilty of contributory negligence shall not bar a rccovery by the plaintiff where such negligence was not greater than that causal ncgligence of the dcfendant, or defendants against whom recovery is sought, but any damagcs 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 Defendant was causally negligent and you find that the Plaintiff was also causally negligent, it is your duty to apportion the relative degree of causal negligence between the Defendant and the Plaintiff. In apportioning the causal negligence you should usc your common scnse and experience to arrive at a result that is fair and reasonable undcr the facts of this occurrence as you have determined them from the cvidence. If you find that the Plaintiff's causal negligence was greater than the causal negligence of the Defendant, then the Plaintiffs are barred from recovery and you need not consider what damage should be awarded. If you find that the Plain tift's causal negligence was equal to or less than the causal negligcncc of the Defendant's, then you must set forth the pcrcentages of causal negligence attributable to the Plaintiff and thc percentagc of causal ncgligence attributablc to the Defendant. Thc total of thcse perccntagcs must be 100 percent. You will then detcrmine the total amount of damagcs to which the Plninliffs would bc cntitlcd if Mrs. Ruhy hnd not hecn contributorily ncgligcnt; in othcr words, in finding thc 1I1ll0unt of dlllllngcs, you should not considcr thc dcgrec, if any, of Mrs. Ruhy's fnult. Aftcr you return YOUI' vcrdict, the Court will rcducc thc alllount of dnmnges you have found in proportion to the alllount of causal negligence which you have allributcd to thc Plaintiff, if any. To further clarify thcsc instructions, thc Court will now distribute to each of you a vcrdict forrn containing specific questions. At the conclusion of your deliberations, one copy of this forrn should be signed by your foreman and handed to the court clerk; this will constitute your verdict. The verdict form reads as follows: Question 1: Do you find that the Defendant was negligent? Yes No If you answer Question I "No" as to Defendant, the Plaintiff Cannot recover and you should not answer any further questions and should return to the courtroorn. Question Was the about the 2: negligence of Defendant a substantial factor in bringing Plaintiff's harm? l , Yes No If you answer Question 2 "No," the Plaintiffs cannot recover and you should not answer any further questions and should return to the courtroom. Question 3: Was Jill Ruby contributorily negligent? II ,I \t. ~I 'I I, I Yes No If you answer Question 3 "No," proceed to Question 5. .~ /., <~, Question 4: If you answcrcd Qucstion 3 "Ycs," was Jill Ruby's contributory ncgligcncc a substantial factor in bringing about hcr harm'/ Ycs No Question 5: Taking thc combined ncgligcncc that was a substantial factor in bringing about Mrs. Ruby's harm as 100 pcrccnt, what percentage of that causal negligcnce was attributable to thc Dcfendant and what percentage was attributablc to Mrs. Ruby? Pcrccntage of causal ncgligencc attributablc to Defendant. (Answcr only if you havc answered "Yes" to Qucstions I and 2) % Percentage of causal ncgligcnce attributable to Jill Ruby. (Answcr only if you have answcred "Yes" to Questions 3 and 4) % Total 100% If you havc found thc Plaintiffs causal ncgligcnce to bc greatcr than 50% then the Plaintiffs cannot rccovcr and you should not answcr Qucstions 6 and 7 and you should rcturn to the courtroom. Question 6 Thc panics have stipulated that Mrs. Ruby sustained medical expenses and loss of carnings as a rcsult of hcr injurics in the following amounts: A. Medical Expensc $ 661.26 ~."o' >- ,... ~ ~ In ,-- IJ../Q <5 8~ (.)~ R-e> :c -... .cor.: ocr ;;: ("Jr..- '-1 ;:;-; 2:5) .- 5= U-J!i. " ('") ~~Y' ...J o::~ li: ~?! -l 1=: => lli~ -, OJ. ... 0 cr, B e1\ \ "", .. 1. The Plaintiffs, JfI1 L. Ruby and Ronald L. Ruby. claim that they sustained damages as a result of the negligent conduct of the Defendant, Rocky George. The Plaintiffs have the burden of proving their claims. The Defendants deny Mr. and Mrs. Ruby's claims and assert an alTlrmatlve defense that Mrs. Ruby was herself negligent and that her negligence was a substantial factor In bringing about her Injuries. The Defendants have the burden of proving this alTlrmatlve defense. Based upon the evidence presented at trial, the only Issues for you to decide In accordance with the law as I shall give It to you are: First: Second: Was the Defendant, Rocky George, negligent? Was the Defendants' conduct a substantial factor In bringing about harm to Plaintiffs Was Mrs. Ruby herself negligent and was such negligence a substantial factor In bringing about her Injury? Third: ! j \ 1 i t 1\. ,f 'II'" ,. ;:',' '.\\ .., ,\:'.':. .'( , , j'\ l ' I; ;' [J , ' II,,~ (...., kt->i. ~ ','I. ~,.:" ";,!,,' ~ 2 .. 2. The legal tcrm negligence, othcnvlsc known as carelessncss. Is the absencc of ordInary carc whIch a reasonablc prudent person would exercIse under the cIrcumstances hcrc prcsented. Negligent conduct may consIst of either an act or the failure to act when there Is a duty to do so. In othcr words, negllgcncc Is the failure to do somethIng which a reasonably carcful person would do, or the doIng of somethIng whIch a reasonably careful person would not do, In light of all the surroundIng cIrcumstances established by the evIdence In thIs case. It Is for you to determIne how a reasonably careful person would act In those cIrcumstances. ~ , 1 ~ I l , \ I } I,. r 1\, . I~ U 0'\", '1,' " \' ,( '; i" II I' : 3 3. Ordinary Care Is the care a reasonably careful person would use under the circumstances presented In this case. Ills the duty of every person to use ordinary care not only for his own safety and the protection of his property, but also to avoid Injury to others. What constitutes ordinary care varies according to the parllcular circumstances and condlllons exlsllng then and there. The amount of care required by the law must be In keeping with the degree of danger Involved. J I) :.1 I ~ I' i , , t! I [ ~ ~ ,I d II' ' 11<" I,: 'I 2 1/> iL" IL ! 4 11. DAMAGES If you find that the Defendants are liable to the Plaintiffs. you must then find an amount of money damages which you believe wlll fairly and adequately compensate the Plaintiffs for aU the physical and financial InJury they have sustained as a result of the accident. The amount which you award today must compensate the Plaintiffs completely for damage sustained In the past. as weU damage the Plaintiffs will sustain In the future. ~ ~ , I I I' i j I ! I I I I f t. r I 2 18. ENJOYMENT OF LIFE Mrs. Ruby Is entitled to be fairly and adequately compensated for past. present and future loss of her ability to enjoy any of the pleasures of llfe as a result of her Injuries. , ~ , I j v i I l, f II::: " (;;; I.... ,:'......' I 9 f' " " 21. COMPARATIVE NEGLIGENCE ~ The Court has already Instructed you about what you may consider In determining whether the Defendant. Rocky George. was negllgent. whether Mrs. Ruby was contributorily negllgent. and whether such negllgence. If any. was a substantial factor In bringing about Mrs. Ruby's harm. If you find. In accordance with these Instructions. that the Defendant. Rocky George. was negllgent and such negligence was a substantial factor In bringing about Mrs. Ruby's harm. you must then consider whether Mrs. Ruby was contributorily negllgent. If you find that Mrs. Ruby was contributorily negllgent and such contributory negligence was a substantial factor In bring about her harm. then you must apply the Comparative Negllgence Act. which provides In Section 1: The fact that a plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff where such negllgence was not greater than that causal negligence of the defendant. or defendants against whom recovery Is sought, but any damages sustained by the plaintiff shall be diminished In proportion to the amount of negligence attributed to the plaintiff. Under this Act. If you find that Defendant was causally negllgent and you find that the Plaintiff was also causally negligent. It Is your duty to apportion the relative degree of causal negllgence between the Defendant and the Plaintiff. 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 Plaintiffs causal negligence was greater than the causal negligence of the Defendant. then the Plaintiffs are barred from recovery and you need not consider what damage should be awarded. If you find that the Plaintiffs causal negligence was equal to or less than the causal negllgence of the Defendant's. then you must set forth the percentages of causal negllgence attributable to the Plaintiff and the percentage of causal negligence attributable to the Defendant. The total of these percentages must be 100 percent. You wlll then determine the total amount of damages to which the Plaintiffs would be entitled if Mrs. Ruby had not been contributorily negligent; in other words. in finding the amount of damages. you should not consider the degree. if any. of Mrs. Ruby's fault. After you return your verdict. the Court will reduce the amount of damages you have found in proportion to the amount of causal negligence which you have attributed to the Plaintiff. If any. , \ ." Ii . , < . ! 'i li :1 ,. 22 ..'" Question 5: Taking the combined negllgence that was a substantial factor In bringing about Mrs. Ruby's harm as 100 percent, what percentage of that causal negllgence was attributable to the Defendant and what percentage was attributable to Mrs. Ruby? Percentage of causal negllgence attributable to Defendant. (Answer only If you have answered "Yes" to Questions 1 and 2) % Percentage of causal negllgence attributable to Jl11 Ruby. (Answer only if you have answered "Yes" to Questions 3 and 4) % Total 100% If you have found the Plaintiffs causal negllgence to be greater than 50% then the Plaintiffs cannot recover and you should not answer Questions 6 and 7 and you should return to the courtroom. Question 6 State the amount of damages. sustained by the Jlll Ruby as a result of her injuries, without regard to and without reduction by the percentage of causal negllgence. if any. that you have attributed to the Plaintiff. A Medical Expense $ 661.26 B. Loss of Earnings $ 6.528.58 C Past Pain and Suffering $ D. Future Pain and Suffering $ E. Embarrassment and Humiliation $ F. Enjoyment of Life $ Question 7 State the amount of damages, sustained by the Ronald Ruby as a result his wife's injuries. without regard to and without reduction by the percentage of causal negllgence. If any. that you have attributed to the Jl11 Ruby. $ 24 >, \1 \ After you return your answers to these questions on the verdict form. signed by your foreman. the Court wl11 determine the amount to be awarded to the Plaintiffs. if any. by reducing the amount of damages found by you in proportion to the percentage of the Plaintiffs causal contributory negligence. if any. I again caution you that you are not to make this reduction yourselves In reaching the amount of the Plaintiffs' damages. as set forth by you in answer to Questions 6 and 7. J~ '"' , J ~ I , ,I j ! P.S.C.J.I. 303A 25 ., . . '( 1 . Respectfully submitted. By: Q~~ Richard E. Freeburn, Esquire I.D. No. 30965 4775 Linglestown Road, Suite 200 Harrisburg, PA 17112 (717) 671-1955 Dated: 7/12/99 Attorney for Plaintiffs 26 >- ,... ~ 0;; ,s ...~ L..,r-;? .. e :-:)~ ( l...._ ,-..- -:-C-, ;;r.: --';:0' n- ;l; (.,):i c-, I~. ~.r o::i ".q C'la r.-" ::-: >- w'J -1_ '.J;') fLu I -' ii:z f!: :::> lLltD -, ~n.. 1.1. r.n ~: 0 ::> en (J '. JILL L. RUBY and RONALD L. RUBY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA Plaintiffs No. 98-511 Civil vs. CIVIL ACTION - LAW V.R. MOWRY, INC. and ROCKY GEORGE, Defendants JURY TRIAL DEMANDED POINTS FOR CHARGE SUBMITTED BY DEFENDANT Submitted by: Jeffrey T. McGuire, Esq. CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorney for the Defendant In addition to the Court's standard jury Instructions, the Defendant requests the following jury instructions. CALDWELL & KEARNS By: . McGuire, Esquire Attorney 1.0. #73617 DEFENDANT'S POINT FOR CHARGE NO.1 BURDEN OF PROOF In civil cases such as this one, the plaintiff has the burden of proving those contentions that entitle her to relief. Because Ms. has the burden of proof on this particular Issue, her contention on that Issue must be established by a fair preponderance of the evidence. The evidence establishes a contention by a fair preponderance of the evidence If you are persuaded that It Is more probably accurate and true than not. To put It another way. think, If you will, of an ordinary balance scale, with a pan on each side. Onto one side of the scale, place all of the evidence favorable to the plaintiff; onto the other, place all of the evidence favorable to the defendant. If. after considering the comparable weight of the evidence, you feel that the scales tip. ever so slightly or to the slightest degree, In favor of the plaintiff, your verdict must be for the plaintiff. If the scales tip In favor of the defendant, or are equally balanced, your verdict must be for the defendant. In this case, the plaintiff has the burden of proving the following propositions: that the defendant was negligent, and that the negligence was a substantial factor In bringing about the accident. If, after considering all of the evidence, you feel persuaded that these propositions are more probably true than not true, your verdict must be for the plaintiff. Otherwise, your verdict should be for the defendant. GRANTEO: OENIED: MODIFIED: ~ S-:5"D ~~~ Pa. SSJI 95.50. r, '...0' DEFENDANT'S POINT FOR CHARGE NO.4 ISSUES IN THE CASE The plaintiff claims that she was Injured and sustained damage as a result of the negligent conduct of the defendant. The plaintiff has the burden of proving her claims. The defendant denies the plaintiff's claims and asserts as an affirmative defense that the plaintiff was herself negligent and that such negligence was a substantial factor in bringing about her own injuries. The defendant has the burden of proving this affirmative defense. Based upon the evidence presented at this trial, the only issues for you to decide In accordance with the law as the Court shall give It to you. are: First: Was the defendant negligent? Second: Was the defendant's conduct a substantial factor in bringing about harm to the plaintiff? Third: Was the plaintiff herself negligent and was such negligence a substantial factor in bringing about her Injury? GRANTED: MODIFIED: DENIED: pa.SSJI~ // DEFENOANT'S POINT FOR CHARGE NO.7 CONTRIBUTORY NEGLIGENCE The defendant claims that the plaintiff was contributorily negligent. Contributory negligence is negligence on the part of a plaintiff that is a substantial factor in bringing about the plaintiffs 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 the defendant has proven that the plaintiff, under all the circumstances present, failed to exercise reasonable care for her own protection. _ [Set forth concisely the defendant's specific grounds of contributory negligence that are supported by evidence. For example: in failing to keep a reasonable lookout; in failing to yield the right of way, etc.] The defendant claims that the plaintiff had a choice of where to stand, one area that was perfectly safe and another area that was obviously dangerous, and that the plaintiff unreasonably chose the obviously dangerous place to stand. Even if you find that the plaintiff was negligent, you must also determine whether the defendant has proven that the plaintiffs conduct was a substantial factor in bringing about the her injury. If the defendant has not sustained that burden of proof, then the defense of contributory negligence has not been made out. Therefore, if you believe that Ms. 's decision to stand on the metal plate rather than the loading dock was a substantial factor in causing her injuries, then you should find for the defendant. i , , GRANTEO: ~ ." r i i ' I 1- OENIED: MODIFIED: r .~ DEFENDANTS POINT FOR CHARGE NO.8 ASSUMPTION OF RISK The defendant claims that the plaintiff assumed the risk of Injury and the defendant has the burden of proving this was so. The elements of assumption of the risk are: 1. The plaintiff fully understood the specific danger that caused her injury; 2. She appreciated the nature and extent of that danger; and 3. She voluntarily chose to encounter It under circumstances Indicating a willingness to accept the specific danger. This Is a subjective test. The question is not whether a reasonable person in the plaintiffs position would have understood the risk, but whether the Ms. herself actually did. The plaintiffs knowledge and understanding of the specific danger may be proven by circumstantial evidence. Direct evidence is not required. Not all voluntary risk-taking amounts to an assumption of the risk. The defense applies only to preliminary and deliberate conduct with an awareness of the specific risk. It is for you to determine whether the plaintiff had a choice about encountering the risks. You must therefore determine whether the defendant met his burden of proof. If you find that the plaintiff Intelligently and voluntarily accepted the specific risk that caused the her injuries, your verdict must be for the defendant. GRANTED: DENIE~ MODIFIEO: Pa. SSJI ~3.04 ~ DEFENDANT'S POINT FOR CHARGE NO. 11 EXPERT TESTIMONY--CREDIBILlTY GENERALLY You will recall that _ [state name of witness] gave testimony of (his) (her) qualifications as an expert In the field of _' [Similarly, _ testified as to (his) (her) qualifications as an expert In this same field.] A witness who has special knowledge, skill, experience, training, or education in a particular science, profession, or occupation may give his or her opinion as an expert as to any matter In which he or she Is skilled. In determining the weight to be given to the expert's opinion, you should consider the qualifications and reliability of the expert and the reasons given for his or her opinion. You are not bound by an expert's opinion merely because he or she 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. GRANTED: DENIED: MODIFIED: DEFENDANT'S POINT FOR CHARGE NO. 13 HYPOTHETICAL QUESTIONS Questions have been asked In which an expert witness was invited to assume that certain facts were true and to give an opinion based upon that assumption. These are called hypothetical questions. If you find that the evidence has not established any material fact assumed in a particular hypothetical question, you should disregard the opinion of the expert given In response to that question. By material fact, we mean one that was important to the expert in forming (his) (her) opinion. Similarly, If the expert has made it clear that (his) (her) opinion is based on the assumption that a particular fact did not exist and, from the evidence you find that it did exist and that it was material, you should give no weight to the opinion so expressed. GRANTED: DENIED: , I I ~ ,\ ii MODIFIED: I Pa. SSJI 95.32 w~ /; , f: i"','. DEFENDANT'S POINT FOR CHARGE NO. 15 EVIDENCE AS PROOf: Evidence Is not proof unless or until the jury, as the trier of fact, believes and accepts the evidence presented. ~ GRANTED: OENIED: [- . Henerv v. Shadle, 661 A.2d 439 (Pa. Super. 1995). , , I i L I , ;~ DEFENDANT'S POINT FOR CHARGE NO. 16 DIRECTED VERDICT Based on all evidence presented and all reasonable Inferences drawn from the evidence, and Interpreting this evidence In a light most favorable to the Plaintiff, the Plaintiff has failed to prove her case by a preponderance of the evidence, and a verdict Is entered In favor of the defendant. GRANTED: DENIED'~ MODIFIEO: 98-86/ 455 :0- r-- -- i:!; u~ (:.~ <c ?. l~" 9 ~)4~ Ulr:~ 1_ -:-;.. ~j::j U~." .", t~ . "::.; .~ CJ?:j ('51-,- ~.~ t;; I (.~ ,0") (,j --..~ ,"C,f;: C.L. ".:J "-;"J _J '..lJt' ~L. ~1 ::) Ctl(l.. 1'" -~ .." ." ~. &.to' 0-' :::> Q (.:;, (J '~--.-~-. JILL L. RUBY and RONALD L. RUBY, Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-511 CIVIL ACTION - LAW V. R. MOWRY, INC. and ROCKY GEORGE, Defendants JURY TRIAL DEMANDED PLAINTIFFS' TRIAL BRIEF L FACTS Jill L. Ruby was injured on March 12, 1997. at ABF Freight Systems, Inc. located at 2001 Carlisle Pike, New Kingston. Cumberland County, Pennsylvania. At that time, Ms. Ruby was employed by ABF Freight as a tracing clerk. Defendant, Rocky George, was truck driver employed by Defendant, V.R. Mowry. Inc. Rocky George, backed his employer's tractor trailer rig up to a loading dock at ABF's loading dock for the purpose of off-loading a single pallet. After backing up to the dock, the Rocky George went onto the dock and extended a hinged metal plate from the dock to the tailgate of the trailer (the "Dock Plate"). The Dock Plate serves as a bridge from the dock to the trailer and allows traffic to travel safely between the dock and trailer. A forklift operator then drove into the trailer, lifted the pallet onto the forks of the forklift and backed out across the dock plate. The operator stopped near the back of the trailer so that Jill Ruby could affix a label to the pallet. Jill Ruby was standing on the Dock Plate affixing the label to the pallet when Rocky George suddenly pulled his truck away from the dock. This causcd thc Dock Plale 10 collapsc. As a rcsulL. JI11 Ruby fcll sevcral fcct onto thc macadam truck yard. U. FACTUAL ISSUES It is not disputed that Rocky George pulled his trailer away from the dock with the dock plate still extended Into the back of the trailer. Plaintiff and employees of ABF contend that Rocky George was not told that it was clear to leave, and that he should have known that pulling away with the Dock Plate extended was unreasonably dangerous. Rocky George claims that JI11 Ruby told him that it was clear to pull away. m. DAMAGES A NATURE OF INJURY: At the time of the accident, Ms. Ruby was about seven months pregnant. When she fell to the macadam tnlck yard, she landed on her feet, Injuring her right foot, spraining her left thumb and causing contusions and abrasions to her left shin. In addition, the shock of the fall caused Ms. Ruby to wet her pants. Aside from the embarrassment that this caused, Ms. Ruby was greatly worried that she had broken her water and that the fall had injured her unborn child. Ms. Ruby's injuries were inltlally diagnosed as a right foot third metatarsal head fracture, left thumb sprain and contusion; and left shin contusion and abrasion. Ms. Ruby continues to have pain in the right foot with increased walking or wearing certain types of shoes. Ms. Ruby was last examined by Dr. Ted B. Eshbach on April 29, 1999. At that time she still had pain to palpation of her right foot and a slight lift off of the third toe which he found to be very convincing. Dr. Eshbach 2 ~' testified that Ms. Ruby sustained significant Injury to the associated soft tissues, the muscles, the capsule and a pcrmanent nerve Injury which explains the residual symptoms thal she Is having. Dr. Eshbach testified that this condition Is permanent. B. MEDICAL EXPENSES: The parties have stipulated to medical expenses that have been paid in the sum of $661.26, as a result of Ms Ruby's Injuries, and that these expenses are reasonable and necessary. C LOSS OF EARNINGS: The parties have stipulated that Ms. Ruby was off work as a result of the Injuries she sustained In this accident from March 12. 1997 until May 19, 1997, and that the amount of her loss of earnings was $6,528.58. D. PAST AND FUTURE PAIN AND SUFFERING. MENTAL ANGUISH. EMBARRASSMENT AND HUMILIATION. DISFIGUREMENT. IV. LEGAL ISSUES A WHETHER A JURY MAY TAKE INTO ACCOUNT A PREGNANT WOMAN'S APPREHENSION THAT HER UNBORN CHILD MAY HAVE BEEN HARMED AS A RESULT OF DEFENDANT'S NEGLIGENCE IN AWARDING DAMAGES FOR MENTAL SUFFERING? 8.. WHETHER THE OPINION TESTIMONY ELICITED FROM DR. ESHBACH ON CROSS-EXAMINATION WITH REGARD TO THE LACK OF INJURY TO MS. RUBY'S UNBORN CHILD AS A RESULT OF TIDS ACCIDENT SHOULD BE STRICKEN? (Deposition of Eshbach p. 18-19). V. DISCUSSION A A JURY MAY TAKE INTO ACCOUNT A PREGNANT WOMAN'S APPREHENSION THAT HER UNBORN CHILD MAY HAVE BEEN HARMED AS A RESULT OF DEFENDANT'S NEGLIGENCE IN AWARDING DAMAGES FOR MENTAL SUFFERING. 3 ^ fundamental and general principle of Pennsylvania law Is the right of victims to obtain full compensation for the Injuries and damages suffered at the hands of a wrongdoer. Bcthca v. Forbes, 519 Pa. 422. 548 A.2d 1215, 1217 (1988); lncolllnl!o v. Ewing, 444 Pa. 299, 282 A.2d 206 (1971); Catalano B. Bujak, 148 Pa. Cmwth. 269, 611 A.2d 314, 317-18 (1992). Restatement (Second) of Torts ~456 states: If the actor's negligent conduct has so caused any bodily harm to another as to make him liable for it, the actor is also subject to liability for (a) fright, shock, or other emotional disturbance resulting from the bodily harm or from the conduct which causes it, and (b) further bodily harm resulting from such emotional disturbance. Pennsylvania law holds that If a plaintiff suffers an objective, measurable, observable physical injury, no matter how mild, then all of the psychological and emotional pain and suffering is compensable. Botek v. Mine Safety Appliance Corp., 531 Pa. 160. 611 A.2d 1174, 1177 (1992). relying on Dazatsky v. King David Memorial Park. Inc., 575 Pa. 183, 527 A.2d 988 (1987). Pennsylvania law also holds that a tortfeasor must take his victim as he finds him, and Is liable for an harm caused by his wrongful act, although it Is increased by the physical condition of the plaintiff. Geyer v. Steinbronn, 351 Pa. Super 536, 506 A.2d 901 (1986). In Rosen v. Yellow Cab Co., 162 Pa. Super. 293, 56 A.2d 398 (1948), the Pennsylvania Superior Court speclficany held that a jury may take into account a pregnant woman's apprehension that harm may have resulted to 4 IV. Admissions from Pleadings to be Made Part of the Record. None. V. Stipulations. None. VI. Witnesses to be Caned. Plaintiffs, Jil\ L. Ruby and Ronald L. Ruby (liability and damages, cross) Defendant, Rocky George (liability) All witnesses listed by Plaintiffs as on cross (including Robert Toman and Donald Hibner). VII. Exhibits. Defendant may use Plaintiffs medical records and employment records along with the depositions which have been taken in this matter. Defendants may use photos as wen as the bil\ of lading and Interrogatory Answers. . I , ! I , VIII. Damages. Kindly refer to Plaintiffs Pre-Trial Memorandum. IX. Statement of any Objections or Evidentiary Problems to be Resolved Prior to Trial. None anticipated. X. Special Requests. A. Desired additional discovery None. 2 '" v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-511 CIVIL ACTION - LAW JILL L. RUBY and RONALD L. RUBY, Plaintiffs V. R. MOWRY, INC. and ROCKY GEORGE. Defendants JURY TRIAL DEMANDED PLAINTIFFS' PRETRIAL MEMORANDUM AND NOW, come Plaintiffs, Jill L. Ruby and Ronald L. Ruby, by their attorney, Richard E. Freeburn, and file the following Pretrial Memorandum: L FACTS AS TO LIABILITY This action arises from personal injuries sustained by JI11 L. Ruby on March 12, 1997, at ABF Freight Systems, Inc. located at 2001 Carlisle Pike, New Kingston, Cumberland County, Pennsylvania. At that time. JI11 Ruby was employed by ABF Freight as a tracing clerk. and Rocky George was employed by V.R. Mowry, Inc. as a truck driver. Rocky George. backed Defendant's tractor trailer rig up to a loading dock at ABF's loading dock for the purpose of off-loading a single pallet. After backing up to the dock, the Rocky George went onto the dock and extended a hinged metal plate from the dock to the tailgate of the trailer (the "Dock Plate"). The Dock Plate serves as a bridge from the dock to the trailer and allows traffic to travel safely between the dock and trailer. A forklift operator then drove into the trailer, lifted the pallet on the forks of the forklift and backed out across the dock plate. The operator stopped near the back of the trailer so that JI11 Ruby could affix a label to the 1\ 1\ i I , I ~ \ ~~ Ii . '. 'I .. I, 'I I . . " I.~- pallet. Jlll Ruby was standing on the Dock Plate affixing thc label to the pallet when Rocky George suddenly pulled his truck away from the dock. This caused the Dock Plate to collapse and Jill Ruby to fall approximately five feet onto the macadam truck yard. Plaintiff and employees of ABF contend that Rocky George was not told that It was clear to leave, and that he should have known that pu11lng away with the Dock Plate extended was unreasonably dangerous. Rocky George claims that Jill Ruby told him that it was clear to pull away. u. DAMAGES A NATURE OF INJURY: At the time of the accident, Ms. Ruby was about seven months pregnant. When she fell to the macadam truck yard, she landed on her feet, Injuring her right foot. spraining her left thumb and causing contusions and abrasions to her left shin. In addition, the shock of the fall caused Ms. Ruby to wet her pants. Aside from the embarrassment that this caused, Ms. Ruby was greatly worried that she had broken her water. Ms. Ruby's injuries were inltlally diagnosed as a right foot third metatarsal head fracture. left thumb sprain and contusion: and left shin contusion and abrasion. Ms. Ruby continues to have pain in the right foot with increased walking or wearing certain types of shoes. Ms. Ruby was last examined by Dr. Ted B. Eshbach on April 29, 1999. At that time she still had pain to palpation of her right foot and a slight lift off of the third toe which he found to be very convincing. Dr. Eshbach testified that Ms. Ruby sustained significant injury to the associated soft .~ 2 tissues, the muscles, the capsule and a permancnt nerve Injury which explains the residual symptoms that she Is having. Dr. Eshbach testified that this condition Is permanent. B. MEDICAL EXPENSES: The parties have stipulated to medical expenses that have been paid In the sum of $661.26, as a result of Ms Ruby's Injuries, and that these expenses are reasonable and necessary. C LOSS OF EARNINGS: The parties have stipulated that Ms. Ruby was off work as a result of the Injuries she sustained in this accident from March 12. 1997 until May 19, 1997. and that the amount of her loss of earnings was $6,528,58. D. PAST AND FUTURE PAIN AND SUFFERING. MENTAL ANGUISH. EMBARRASSMENT AND HUMILIATION. DISFIGUREMENT. m. PRINCIPAL ISSUES OF LIABILITY AND DAMAGES A Whether Defendant, Rocl{1J George was negligent? B. Whether Plaintiff, Jill Ruby was contributorily negligent? C What is the amount of money damages that will fairly and adequately compensate the plaintiffs for aU of the physical and flnancial injury that they have sustatned as a result of the accident. IV. LEGAL ISSUES 1. WHETHER THE OPINION TESTIMONY ELICITED FROM DR. ESHBACH ON CROSS-EXAMINATION WITH REGARD TO THE LACK OF INJURY TO MS. RUBY'S UNBORN CHILD AS A RESULT OF THIS ACCIDENT SHOULD BE STRICKEN? (Deposition of Eshbach p. 18-19), This evidence is not relevant. Pa.R.E.401. Dr. Eshbach was not qualified to express an opinion on this subject. Pa.R.E. 702. This cross-examination was beyond the scope of direct examination. Pa.R.E. 611 (b). 3 i , ~.; r" I I .~ :.t.i" .~' 2. WHETHER A JURY VIEW OF THE PREMISES SHOULD BE PERMlTI'ED? Pa. R.C.P. No. 219. V. IDENTITY OF WITNESSES 1. Plaintiffs 2. Dr. Ted B. Eshbach. M.D., (by videotape). 3. Donald Hivner, AB.F. dock worker 4. Robert Toman. A.B.F. dock worker 5. Steve Walters, former branch manager of AB.F. 6. Steve Campbell. Dock Supervisor of AB.F. 7. Paul Davidson, Jill Ruby's step father with regard to damages 8. Faith Davidson, Jill Ruby's mother with regard to damages VI. LIST OF EXHIBITS 1. Photos of dock and dock plate 2. Photos of Injuries. 3. Possible video of the premises In lieu of a jury view. 4. AB.F. Bill of Lading 5. V.R. Mowry Bill of Lading 6. Super Rite Foods Proof of Delivery VB. STATUS OF SETTLEMENT NEGOTIATIONS \ . I j This and I I i ~, f [ , 1. Defendant has offered settlement in the sum of $7.500.00. was rejected as the worker's compensation carrier's lien is $5.027.08, because it is only slightly greater than the amount of special damages. By: Respectfully submitted. ~~j;Y/ Richard E. Freeburn. Esquire I.D. No. 30965 4775 Linglestown Road, Suite 200 Harrisburg. PA 17112 (717) 671-1955 Attorney for Plaintiffs Dated: 6/17/99 ;;:;,~ 4 ,;~ . - -.-...... - '~.., r JILL L. RUBY and RONALD L. RUBY, PlatnUffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUN1Y. PENNSYLVANIA NO. 98-511 CIVIL ACTION - LAW V. R. MOWRY, INC. and ROCKY GEORGE, Defendants JURY TRIAL DEMANDED PLAINTIFFS' TRIAL BRIEF L FACTS Jill L. Ruby was Injured on March 12. 1997, at ABF Freight Systems. Inc. located at 2001 Carlisle Pike, New Kingston, Cumberland County, Pennsylvania. At that time. Ms. Ruby was employed by ABF Freight as a tractng clerk. Defendant, Rocky George. was truck driver employed by Defendant. V.R. Mowry. Inc. Rocky George, backed his employer's tractor trailer rig up to a loading dock at ABF's loading dock for the purpose of off-loading a single pallet. After backing up to the dock. the Rocky George went onto the dock and extended a hinged metal plate from the dock to the tailgate of the trailer (the "Dock Plate"). The Dock Plate serves as a bridge from the dock to the trailer and allows traffic to travel safely between the dock and trailer. A forklift operator then drove Into the trailer, lifted the pallet onto the forks of the forklift and backed out across the dock plate. The operator stopped near the back of the trailer so that JI11 Ruby could affix a label to the pallet. Jill Ruby was standing on the Dock Plate affixing the label to the pallet when Rocky George suddenly pulled his truck away from the dock. J \ , I I \ i I , l \~ r , ;1 \; 'I , ";' , 'i , ' ; \ ~ . .1 l 1 1'<' ", ~..t..; This caused the Dock Plate to collapse. As a result, Jill Ruby feU several feet onto the macadam truck yard. D. FACTUAL ISSUES It is not disputed that Rocky George pulled his trailer away from the dock with the dock plate stln extended Into the back of the trailer. Plaintiff and employees of ABF contend that Rocky George was not told that it was clear to leave, and that he should have known that pulling away with the Dock Plate extended was unreasonably dangerous. Rocky George claims that Jill Ruby told him that it was clear to pull away. m. DAMAGES A NATURE OF INJURY: At the time of the accident. Ms. Ruby was about seven months pregnant. When she feU to the macadam truck yard, she landed on her feet, Injuring her right foot. spraining her left thumb and causing contusions and abrasions to her left shin. In addition, the shock of the fall caused Ms. Ruby to wet her pants. Aside from the embarrassment that this caused. Ms. Ruby was greatly worried that she had broken her water and that the fall had injured her unborn child. Ms. Ruby's injuries were Inltially diagnosed as a right foot third metatarsal head fracture. left thumb sprain and contusion; and left shin contusion and abrasion. Ms. Ruby continues to have pain in the right foot with Increased walking or wearing certain types of shoes. Ms. Ruby was last examined by Dr. Ted B. Eshbach on April 29, 1999. At that time she stln had pain to palpation of her right foot and a slight lift off of the third toe which he found to be very convincing. Dr. Eshbach 2 testified that Ms. Ruby sustained significant Injury to the associated soft tissues, the muscles. the capsule and a permanent nerve Injury which explains the residual symptoms that she Is having. Dr. Eshbach testified that this condition is permanent. B. MEDICAL EXPENSES: The parties have stipulated to medical expenses that have been paid In the sum of $661.26. as a result of Ms Ruby's injuries, and that these expenses are reasonable and necessary. C LOSS OF EARNINGS: The parties have stipulated that Ms. Ruby was off work as a result of the Injuries she sustained in this accident from March 12, 1997 until May 19, 1997. and that the amount of her loss of earnings was $6.528.58. D. PAST AND FUTURE PAIN AND SUFFERING. MENTAL ANGUISH. EMBARRASSMENT AND HUMILIATION. DISFIGUREMENT. IV. LEGAL ISSUES A WHETHER A JURY MAY TAKE INTO ACCOUNT A PREGNANT WOMAN'S APPREHENSION THAT HER UNBORN CHILD MAY HAVE BEEN HARMED AS A RESULT OF DEFENDANT'S NEGLIGENCE IN AWARDING DAMAGES FOR MENTAL SUFFERING? 8.. WHETHER THE OPINION TESTIMONY ELICITED FROM DR. ESHBACH ON CROSS-EXAMINATION WITH REGARD TO THE LACK OF INJURY TO MS. RWY'S UNBORN CHILD AS A RESULT OF TmS ACCIDENT SHOULD BE STRICKEN? (Deposition of Eshbach p. 18-19). V. DISCUSSION A A JURY MAY TAKE INTO ACCOUNT A PREGNANT WOMAN'S APPREHENSION THAT HER UNBORN CHILD MAY HAVE BEEN HARMED AS A RESULT OF DEFENDANT'S NEGLIGENCE IN AWARDING DAMAGES FOR MENTAL SUFFERING. 3 ..... 'I A fundamental and general principle of Pennsylvania law Is the right of victims to obtain full compensation for the Injuries and damages suffered at the hands of a wrongdoer. Bethea v. Forbes, 519 Pa. 422. 548 A,2d 1215. 1217 (1988); Incolllngo v. Ewing. 444 Pa. 299, 282 A.2d 206 (1971); Catalano B. Bujak. 148 Pa. Cmwth. 269. 611 A.2d 314.317-18 (1992). Restatement (Second) of Torts 13456 states: " , , " , , If the actor's negligent conduct has so caused any bodily harm to another as to make him liable for it, the actor is also subject to liability for (a) fright, shock, or other emotional disturbance resulting from the bodily harm or from the conduct which causes it. and , (b) further bodily harm resulting from such emotional disturbance. Pennsylvania law holds that if a plaintiff suffers an objective, measurable, observable physical injury. no matter how mild, then aU of the psychological and emotional pain and suffering is compensable. Botek v. Mine Safety Appliance Corp.. 531 Pa. 160. 611 A.2d 1174. 1177 (1992), relying on Dazats~ v. King David Memorial Park. Inc., 575 Pa. 183. 527 A.2d 988 (1987). ') \ , I I , I I I i \ \ I I Pennsylvania law also holds that a tortfeasor must take his victim as he finds him, and is liable for all harm caused by his wrongful act, although It is increased by the physical condition of the plaintiff. Geyer v. Stelnbronn, 351 Pa. Super 536, 506 A,2d 901 (1986). In Rosen v. Yellow Cab Co.. 162 Pa. Super. 293. 56 A.2d 398 (1948), the Pennsylvania Superior Court specifically held that a jury may take into account a pregnant woman's apprehension that harm may have resulted to 4 her unborn child due to another's negligence when estimating damages for mental suffering. B. THE OPINION TESTIMONY ELICITED FROM DR. ESHBACH ON CROSS-EXAMINATION ABOUT THE LACK OF INJURY TO MS. RUBY'S UNBORN CHILD AS A RESULT OF THIS ACCIDENT MUST BE STRICKEN. (Deposition of Eshbach p. 18-19). Opinion testimony elicited from Dr. Eshbach. Plaintiffs treating orthopedic surgeon, regarding the lack of Injury to Plaintiffs unborn child is not admissible. Dr. Eshbach was not qualified to express an opinion on this subject. Pa.R.E. 702. In addition. this cross-examination was beyond the scope of direct examination. Pa.R.E. 611 (b). Respectfully submitted, By: ~ ~~{2 , ,1 - ........ hard E. reeburn, Esquire I.D. No. 30965 4775 Llnglestown Road. Suite 200 Harrisburg, PA 17112 (717) 671-1955 Dated: 7/12/99 , I i I , ~ ~ Attorney for Plaintiffs 5 JILL L, RUBY and RONALD L. RUBY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW V.R. MOWRY, INC., AND ROCKY GEORGE, Defendants NO. 98-0511 CIVIL TERM PRETRIAL CONFERENCE AND NOW, this 23rd day of June, 1999, before Edgar B. Bayley, Judge, present for the plaintiffs was Richard E. Freeburn, Esquire, and for the defendants, Jeffrey T. McGuire, Esquire. Plaintiff, Jill L. Ruby, was working for ABF Freight Systems, Inc., on March 12, 1997. Defendant Rocky George in the employ of Defendant V.R. Mowry, Inc., was offloading a single pallet. Plaintiff claims that after backing up to the dock, George went onto the dock and extended a hinged metal plate from the dock to the tailgate of the trailer. A forklift operator then drove onto the trailer, lifted the pallet and backed across the dock plate. The operator stopped so that plaintiff could place a label on the pallet. While she was doing so, George pulled the truck away and plaintiff fell approximately 5 feet to the macadam truck yard. Defendant denies liability and maintains that plaintiff was contributorily negligent. At the time of the accident plaintiff was seven months pregnant. She seeks special and general damages for injuries to her right foot (broken bone), left thumb, and other contusions and abrasions. Plaintiff was worried at the time of the accident she had broken her water but this was not so. The baby was born without complications, although plaintiff seeks damages for fear of possible future complications. The parties P .Il, 'r;\t 1l ;\ -' ('oJ :t~ ---J <"'J <7' C...... ;- I;; t~~ (-"" '~l r.'.)~ "." ~~- /'t:) ':~J~:' .L% \.:JUJ : f.i U... Z '-) <) , en c: iE ~'!= Ulr:~ h~r;:> ',1.-' 0'" I I.... at.' 1.1.11: . ~-.II ," U":. ~ r,: It. a .. - '"0- N.,: ..- JILL L. RUBY and RONALO L. RUBY, Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. q]l .) I / c.. II \ I CIVIL ACTION - LAW JURY TRIAL DEMANDED V. R. MOWRY, INC., Defendant NOTICE 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 fall to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights Important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU 00 NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. =RVICE CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE PA 17013 (717) 249 3166 ~z=, i'il Richard E. J='reeburn, Esquire WILT & FREEBURN I.D. No. 30965 4775 Linglestown Road, Ste. 200 Harrisburg PA 17112 (717) 6"11-1955 Date: 1/26/98 Attorney for Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW JURY TRIAL DEMANOEO JILL L. RUBY and RONALO L. RUBY, Plaintiffs V. R. MOWRY, INC., Defendant NOTICE Le han demandado a usted en la corte. SI usted qulere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dlas de plazo al partir de la fecha de la demanda y la notification. Usted debe presentar ua apariencia esrlta 0 en persona 0 por abogado y archlvar en la corte en forma escrita sus defensas 0 sus objeciones alas demand as en contra de su persona. Sea avlsado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo avlso 0 notlficaclon y por cualquler queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dlnero 0 sus propledades 0 otros derechos importantes para usted. ) LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGAOO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA OR LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONOE SE PUEOE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE CUMBERLANO COUNTY COURTHOUSE COURT ADMINISTRATOR 1 COURTHOUSE SQUARE CARLISLE, PA 17013 (717) 240-6200 . \ , I , , , , i' , ~L {fJ-, Richard E. 'Freeburn, Esquire WILT & FREEBURN 1.0. No. 30965 4775 Linglestown Road, Ste. 200 Harrisburg PA 17112 (717) 671-1955 Date: 1/26/98 Attorney for Plaintiffs ~ JILL L. RUBY and RONALO L. RUBY, Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLANO COUNTY, PENNSYLVANIA NO. 'l y. ~"JI C~';.f T.iM- CIVIL ACTION - LAW JURY TRIAL OEMANOED V. R. MOWRY, INC., Defendant COMPLAINT AND NOW come Plaintiffs, Jill L. Ruby and Ronald L. Ruby, by their attorneys, Wilt & Freeburn, and file the following Complaint: 1. At all times relevant hereto, Plaintiffs, Jill L. Ruby and Ronald L. Ruby, were husband and wife and resided at 7 Faye Road, Middletown, Dauphin County, Pennsylvania. 2. Defendant, V. R. Mowry, Inc., is a corporation, organized under the laws of West Virginia, with principal offices/place of business at 104 S. Main Street, Petersburg, West Virginia 26847. 3. The facts and occurrences hereinafter related took place on or about March 12, 1997, at the premises of ABF Freight System, Inc., 2001 Carlisle Pike, Cumberland County, Pennsylvania. 4. On that date Plaintiff, Jill Ruby was employed by ABF Freight as a tracing clerk. 5. At that time and place, Oefendant's employee, agent or representative, the Identity of whom Is unknown, (hereinafter referred to as the "Driver"), backed Defendant's tractor and trailer up to a loading dock at ABF Freight's facility to be unloaded. 6. After backing up to a loading dock, the Orlver exited the tractor and went onto the dock where he extended a hinged metal plate from the dock to the tailgate of the trailer, thus creating a bridge from the dock to the trailer. 7. During the process of unloading the trailer, the Driver was In a hurry and pulled the trailer away from the dock while Plaintiff, Jill L. Ruby, was standing on the metal plate. As a result, the metal plate collapsed and Jill Ruby fell onto the macadam surface in front of the dock. 8. The foregoing accident and all of the injuries and damages set forth hereinafter sustained by Plaintiffs Jill L. Ruby and Ronald L. Ruby are the direct and proximate result of the negligent, careless conduct of Oefendant's Driver as follows: (a) failure to keep alert and maintain a proper watch for the presence of others Including Jill L. Ruby; (b) causing the trailer to pull away from the dock with the metal plate extended; (c) causing the trailer to pull away from the dock while Plaintiff, Jill L. Ruby was standing on the metal plate; (d) failin9 to give notice or warning that he was going to cause the trailer to pull away from the dock; (e) in otherwise failing to exercise reasonable care for the safety of others including Jill L. Ruby. 9. Oefendant V. R. Mowry, Inc. is liable for the injuries, damages and losses suffered by Plaintiffs as set forth hereinafter, as a result of the negligent and careless conduct of its Oriver. 2 CLAIM I Jill L. Ruby. Plaintiff v, V, R. Mowry, Inc.. Defendant 10. Plaintiff, Jill L. Ruby, incorporates herein by reference thereto Paragraphs 1 through 9, as If set forth fully herein. 11. Plaintiff, Jill L. Ruby, sustained painful and severe Injuries which include, but are not limited to, a metatarsal head fracture of the third metatarsal of her right foot, a large abrasion and contusions on her interior shin, and Injury to her left thumb. 12. By reason of the aforesaid injuries, Plaintiff, Jill L. Ruby, has been forced to Incur liability for medical treatment In an effort to restore herself to health, and claim Is made therefor. 13. Because or the nature of her Injuries, Plaintiff, Jill L. Ruby may be forced to Incur similar medical expenses In the future, and claim is made therefor. 14. As a result of the aforesaid injuries, Plaintiff, Jill L. Ruby, has suffered a loss of earnings, and a claim is made therefor. 15. As a result of the aforesaid injuries, Plaintiff, Jill L. Ruby may incur loss of earnings in the future, and a loss of opportunity and a diminution of her earning power and capacity, and claim is made therefor. 16. As a result of the aforesaid Injuries, Plaintiff, Jill L. Ruby has suffered and will in the future suffer great physical pain, mental anguish, discomfort, inconvenience and distress, and claim is made therefor. 17. As a result of the aforesaid injuries, Plaintiff, Jill L. Ruby has suffered and will in the future suffer great embarrassment and humiliation, and claim is made therefor. 18. As a result of the aforesaid injuries, Plaintiff, Jill L. Ruby has suffered and may in the future suffer disfigurement, and claim is made therefor. 3 ...... 19. As a result of the aforesaid Injuries, Plaintiff, Jill L. Ruby has suffered and may In the future suffer a loss of her ability to enjoy the pleasures of life, and claim Is made therefor. 20. As a result of the aforesaid injuries, Plaintiff, Jill L. Ruby has sustained and may in the future sustain incidental costs, the exact amount of which cannot be ascertained at this time, a claim is made therefor. WHEREFORE, Plaintiff, Jill L. Ruby, demands judgment in her favor and against Defendant, V. R. Mowry, Inc. in a sum in excess of TWENTY.FIVE THOUSAND DOLLARS ($25,000.00), plus Interest and costs of suit. CLAIM II Ronald L. Ruby, Plaintiff v. V. R. Mowry. Inc.. Defendant 21. Plaintiff, Ronald L. Ruby, incorporates herein by reference thereto Paragraphs 1 through 20, as if set forth fully herein. 22. As a result of Defendant's negligence, Plaintiff, Ronald L. Ruby, has been deprived on the society, companionship, contributions and consortium of his wife, Jill L. Ruby, to his great detriment and loss. 23. As a result of Defendant's negligence, Plaintiff, Ronald L. Ruby, has incurred and will in the future incur large medical bills and expenses to treat his wife's injuries. 24. As a result of Defendant's negligence, Plaintiff, Ronald L. Ruby, has suffered a disruption of his daily habits and pursuits and a loss of enjoyment of life. 4 , JILL L. RUBY and RONALD L. RUBY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 98-511 Civil vs. CIVIL ACTION - LAW V. R. MOWRY, INC., Oefendant JURY TRIAL DEMANDEO PRAECIPE TO THE PROTHONOTARY: Please enter my appearance on behalf of the Defendant with regard to the above captioned matter. Respectfully submitted, CALDWELL & KEARNS BY: James L. Goldsmith, Esquire Atty 10 #27115 Attorney for Oefendant 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 /rl'LfL Dated: OJI, y J 9f 98-86 97997-1 h= '1' c.:; .;..!' U: .... ,..':: C'~ :'1 ('') I>:: U~"" ,- C. -.' -- Erl..' '0' ....'. U. j I~r ! ~ g~': ;"'4 (') ; :Il I ',' We.- _-II.' (.:.:": ;-1: .1 G:--. ... ~: :Ht1- i~.": :.r; I.L a: ::.) 0 0'" (J ... JILL L. RUBY and RONALD L. RUBY, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 98.511 CIVIL ACTION - LAW JURY TRIAL OEMANDED v. V. R. MOWRY, INC., Defendant REPLY TO NEW MATTER AND NOW come Plaintiffs, Jill L. Ruby and Ronald L. Ruby, by their attorneys, Wilt & Freeburn, and file the following Reply to New Matter: 25. This paragraph contains no averments of fact, only conclusions of law to which no reply Is required. To the extent that a court determines that this paragraph contains averments of fact, the same are specifically denied. 26. This paragraph contains no averments of fact, only conclusions of law to which no reply is required. To the extent that a court determines that this paragraph contains averments of fact, the same are specifically denied. 27. This paragraph contains no averments of fact, only conclusions of law to which no reply is required. To the extent that a court determines that this paragraph contains averments of fact, the same are specifically denied. 28. Denied. Plaintiff specifically denies that she is bound by the limited tort option and/or that she is not entitled to recover non-economic damages. By way of further reply, this paragraph contains no averments of fact, only conclusions of law to which no reply is required. v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA NO. 98-511 CIVIL ACTION - LAW JILL L. RUBY and RONALD L. RUBY, Plaintiffs V. R. MOWRY, INC. and ROCKY GEORGE, Defendants JURY TRIAL DEMANDED NOTICE 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 judgment may be entered against you by the Court without further notice for any money claimed In the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE CUMBERLAND COUNTY COURTHOUSE COURT ADMINISTRATOR 1 COURTHOUSE SQUARE CARLISLE, PA 17013 (717) 240-6200 r-) i.( ) _~_! ,"l.,JL- Richard E. Freeburn, Esquire WILT & FREEBURN I.D. No. 30965 4775 Linglestown Road. Ste. 200 Harrisburg PA 17112 (717) 671-1955 Date: 1/19/99 Attorney for Plaintiffs JILL L. RUBY and RONALD L. RUBY, Plainttffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTI, PENNSYLVANIA NO. 98-511 CIVIL ACTION - LAW V. R. MOWRY, INC. and ROCKY GEORGE, Defendants JURY TRIAL DEMANDED NOTICE Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paglnas sigutentes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notification. Usted debe presentar ua apariencia esrlta 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avlsado que si usted no se deflende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notiflcacion y por cualquier queja 0 allvio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA OR LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERlGUAR DONDE SE PUEDE CONSEGUlR ASISTENCIA LEGAL. CUMBERLAND COUNTI LAWYER REFERRAL SERVICE CUMBERLAND COUNTI COURTHOUSE COURT ADMINISTRATOR 1 COURTHOUSE SQUARE CARLISLE, PA 17013 (71 7) 240-~~00 /1 'I~ i' ~tJL Richard E. Freeburn, Esquire WILT & FREEBURN I.D. No. 30965 4775 Linglestown Road. Ste. 200 Harrisburg PA 17112 (717) 671-1955 Date: 1/19/99 Attorney for Plaintiffs JILL L. RUBY and RONALD L. RUBY, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-511 CIVIL ACTION - LAW v. V. R. MOWRY, INC. and ROCKY GEORGE, Defendants JURY TRIAL DEMANDED AMENDED COMPLAINT AND NOW come Plaintiffs, Jill L. Ruby and Ronald L. Ruby, by their attorneys, Wilt & Freeburn. and file the following Amended Complaint: 1. At all times relevant hereto, Plaintiffs, Jill L. Ruby and Ronald L. Ruby, were husband and wife and resided at 7 Faye Road, Middletown, Dauphin County, Pennsylvania. 2. Defendant, V. R. Mowry, Inc.. is a corporation. organized under the laws of West Virginia. with principal offlceslplace of business at 104 S. Main Street, Petersburg, West Virginia 26847. 3. Defendant, Rocky George, Is an adult individual who resides at HC32, Box 1132 Petersburg, West Virginia 26847. 4. The facts and occurrences hereinafter related took place on or about March 12, 1997. at the premises of ABF Freight System, Inc., 2001 Carlisle Pike, Cumberland County, Pennsylvania. 5. On that date Plaintiff. JI\1 Ruby was employed by ABF Freight as a tracing clerk. 6. At all times relevant hereto. Defendant, V. R. Mowry, Inc.. employed and was the master of Defendant. Rocky George. 7. At all times relevant hereto, Defendant, Rocky George, was acting within the scope of his employment for Defendant, V. R. Mowry, Inc. 8. At that time and place, Defendant, Rocky George backed Defendant, V. R. Mowry, lnc.'s, tractor and trailer up to a loading dock at ABF Freight's facility to be unloaded. 9. After backing up to a loading dock. Defendant, Rocky George, extended a dock plate onto the tailgate of the trailer. The dock plate is a hinged metal plate which Is attached to the dock. When it is extended from the dock onto the tailgate of an open trailer, it creates a bridge between the dock to the trailer on which vehtc1es and people may safely traverse. 10. During the process of unloading the trailer, Defendant, Rocky George, pulled the trailer away from the dock while Plaintiff, Jill L. Ruby. was standing on the dock plate. As a result, the metal plate co1lapsed and Jill Ruby fell down on onto the macadam surface of the parking lot in front of the dock. 11. When Defendant, Rocky George, last saw the dock plate, it was still extended into the back of the trailer. 12. Before pulling the trailer away from the dock, Defendant, Rocky George, was not told that the dock plate had been retracted. 13. Before pulling the trailer away from the dock. Defendant, Rocky George, was not told that it was safe to pu1l away from the dock. 14. Defendant, Rocky George, did not give notice to Plaintiff. Jill L. Ruby. or anyone else that he was going to pu1l away from the dock before pulling away. 2 ..... 15. As a result of this Incident, Plaintiff, JI11 L. Ruby, sustained painful and severe Injuries which Include, but are not limited to, a metatarsal head fracture of the third metatarsal of her right foot, a large abrasion and contusions on her Interior shin, and injury to her left thumb. 16. By reason of the aforesaid injuries, Plaintiff, JI11 L. Ruby, has been forced to incur liability for medical treatment in an effort to restore herself to health, and claim is made therefor. 17. Because or the nature of her injuries, Plaintiff, JI11 L. Ruby may be forced to incur similar medical expenses in the future, and claim is made therefor. 18. As a result of the aforesaid Injuries, Plaintiff, JI11 L. Ruby, has suffered a loss of earnings, and a claim is made therefor. 19. As a result of the aforesaid injuries, Plaintiff, Jill L. Ruby, may incur loss of earnings in the future. and a loss of opportunity and a diminution of her earning power and capacity. and claim Is made therefor. 20. As a result of the aforesaid Injuries. Plaintiff. JI11 L. Ruby, has suffered and will in the future suffer great physical pain. mental anguish, discomfort, inconvenience and distress. and claim is made therefor. 21. As a result of the aforesaid injuries. Plaintiff, Jill L. Ruby, has suffered and will in the future suffer great embarrassment and humiliation, and claim is made therefor. 22. As a result of the aforesaid injuries. Plaintiff. Jill L. Ruby, has suffered and may in the future suffer disfigurement, and claim is made therefor. 3 23. As a result of the aforesaid InJuries, Plaintiff, Jl11 L. Ruby, has suffered and may In the future suffer a loss of her ablltty to enjoy the pleasures of life, and claim Is made therefor. 24. As a result of the aforesaid inJuries, Plaintiff. Jl11 L. Ruby, has sustained and may in the future sustain incidental costs, the exact amount of which cannot be ascertained at this time, a claim is made therefor. 25. The foregoing accident and all of the Injuries and damages set forth hereinafter, sustained by Plaintiffs, JI11 L. Ruby and Ronald L. Ruby. are the direct and proximate result of the negligent. careless conduct of George as follows: (a) failure to keep alert and maintain a proper watch for the presence of others including Jill L. Ruby; (b) causing the trailer to pull away from the dock with the dock plate extended; (c) causing the trailer to pull away from the dock while Plaintiff, JI11 L. Ruby was standing on the dock plate; (d) falltng to give notice or warning that he was going to cause the trailer to pull away from the dock; (e) for being in too great to great a hurry to pull away from the dock; (f) for failing to determine that the dock plate had been retracted before pu11lng away from the dock; (g) for falling to determine that it was safe to pull away from the dock before pul1lng away from the dock; 4 (h) in otherwise failing to exercise reasonable care for the safety of others, Including JI11 L. Ruby. CLAIM I Jill L. Ruby. Plaintiffv. Rocky Georee. Defendant 26. Plaintiff, Jill L. Ruby, incorporates herein by reference thereto Paragraphs 1 through 25, as If set forth fully herein. WHEREFORE, Plaintiff, Jill L. Ruby, demands judgment In her favor and against Defendant, Rocky George, in a sum in excess of TWEN1Y-FIVE THOUSAND DOLLARS ($25,000.00). plus interest and costs of suit. CLAIM II Jill L. Ruby. Plaintiffv. V. R. MoWJY. IDe.. Defendant 27. Plaintiff, Jill L. Ruby. incorporates herein by reference thereto Paragraphs 1 through 26, as if set forth fully herein. 28. Defendant, V. R. Mowry, Inc., is vicariously liable under the doctrine of respondeat superior for the aforesaid acts committed by Defendant, Rocky George. WHEREFORE, Plaintiff, Jill L. Ruby. demands judgment In her favor and against Defendant, V. R. Mowry, Inc. in a sum in excess of TWEN1Y- FIVE THOUSAND DOLLARS ($25,000.00), plus interest and costs of suit. 5 CLAIM m Ronald L. Rubv. Plaintifl'v. Roeky Georie. Defendant 29. Plaintiff. Ronald L. Ruby, incorporates herein by reference thereto Paragraphs 1 through 28, as if set forth fully herein. 30. As a result of Defendant's negligence, Plaintiff, Ronald L. Ruby, has been deprived on the society, companionship, contributions and consortium of his wife, Jill L. Ruby, to his great detriment and loss. 31. As a result of Defendant's negligence, Plaintiff, Ronald L. Ruby, has incurred and will in the future incur large medical bills and expenses to treat his wife's injuries. 32. As a result of Defendant's negligence. Plaintiff, Ronald L. Ruby, has suffered a disruption of his dally habits and pursuits and a loss of enjoyment of life. WHEREFORE, Plaintiff. Ronald L. Ruby. demands judgment in his favor and against Defendant, Rocky George. in a sum in excess of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00), plus Interest and costs of suit. CLAIM IV Ronald L. Ruby. Plaintifl'v. V. R. Mowrv.lDe.. Defendant 33. Plaintiff, Ronald L. Ruby, incorporates herein by reference thereto Paragraphs 1 through 32, as if set forth fully herein. 6 VERIFICATION We hereby verify that the statements in the foregoing document are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Dated: 1- Il~ qq Wi?J. ~ i / J L L. RUBY' ! v~cge~ RONALD L. RUBY , JILL L. RUBY und RONALD L. RUBY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Pluinti ffs vs. No. 98-511 Civil V. R. MOWRY,INC. and ROCKY GEORGE, CIVIL ACTION - LA W Defendanls JURY TRIAL DEMANDED NOTICF. TO: Jill L. Ruby and Ronuld L. Ruby c/o Richard Freeburn, Esquire Wilt & Freeburn 4775 Linglestown Road, Suite 200 Harrisburg, PAl 7112 YOU ARE HEREBY NOTIFIED that the New Matter set forth herein contains avennents against you to which YOll arc required to respond within twenty (20) days after service thereof. Failure by you to do so may constitute an admission. CALOWELL & KEARNS By: iz/L--, Oate: I /:<7/77 / I oldsmith, Esquire A .1. .27115 Jeffrey T. McGuire, Esquire Atty. I.D. 73617 3631 North Front Street Harrisburg, P A 17110 (717) 232-7661 I ,\ 1 JILL L. RUBY and RONALD L. RUBY. Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA NO. 98-511 CIVIL ACTION - LAW ! '/ V. R. MOWRY. INC. and ROCKY GEORGE. Defendants JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I. Jeffrey T. McGuire. Esquire. accept service of the Amended Complaint on behalf of Rocky George. and certify that I am authorized to do so. Respectfully submitted. CALDWELL & KEARNS Date: //; J/[7 I I ~ Je / e . McGuire. Esquire 1.0. No. 7 ']t;O 3631 North Front Street Harrisburg PA 1711 0-1533 (717) 232-7661 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Acceptance of Service of Plaintiffs' Amended Complaint, has been duly served on the following this 28th day of January, 1999, by placing the same In the U.S. First Class Mall, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Jeffrey T. McGuire. Esquire CALDWELL & KEARNS 3631 North Front Street Harrisburg PA 17110-1533 BY: '\lJ:----i:(2 Richard E. Freeburn. Esquire WILT & FREEBURN Attorney 1.0. #30965 4775 L1nglestown Road. Suite 200 Harrisburg, PA 17112 (717) 671-1955 ! Dated: 1/28/99 Attorney for Plaintiffs \, J llr'..'.'..., I..' il :. 1'., j, ! ~. , '1 ), t;':~ +~ ';0' ." E: ~ If; \., .:t. oo ~S~ '-=; U/..!/ C'1 C);,.:::' (::::! (~) :'c I~):'~ p.." c.:.- ~~\:] hl~' .-.~ ('. 0" :<, ef) 6. eoJ ::1:;::': WI I:.. f:l''X -~1I1 ?~. ~.t1uJ ~.,- .:-.t (:J(1... ..:: -, .;.:,;. ~. I'. m :".1 0 0" U 4 --, 1 occasion to treat Jill Ruby? 2 3 A. Q. Yes. Doctor, would it be fair to say that your medical 4 specialty is orthopedic surgery? 5 6 A. Q. Yes, it is. Could you explain to the jury, Doctor, what orthopedic 7 medicine is? 8 A. Orthopedic medicine or orthopedic surgery deals with 9 the evaluation and treatment of disorders, diseases, injuries to 10 the musculoskeletal system. So that's the bones, joints, 11 muscles, tendons, and associated supporting structures of the 12 skeleton. .,Ii.. (l ,,," 13 14 15 Q. Doctor, are you certified by any boards as an orthopedic surgeon? A. Yes. I was board certified in orthopedic surgery by 16 the American Board of Orthopedic Surgery in September of 1980. 17 18 Q. A. Doctor, what does board certified mean? There are certain qualifications to even take the board 19 examination, and the main one being to have completed 20 successfully an accredited orthopedic residency training program, 21 having fulfilled the proper training and having received 22 documentation of performance from the chief of the program. Then 23 approximately a year after completing residency, a written and an 24 oral examination is given. So it's a matter of completing both 25 the written and oral examination in orthopedic surgery by v MERRITT COURT REPORTING 5 1 committee from the American Board of Orthopedic Surgeons. If you 2 pass the test, and again, your credentials are in order from your 3 training, then you become board certified. ') 4 Q. Doctor, you have met all of the qualifications to be 5 certified by the American Board of Orthopedic Surgeons; is that 6 correct? 7 8 9 10 11 Q. A. Q. A. A. That's correct. u Doctor, do you have any hospital privileges? Yes, I do. And where are your hospital privileges, Doctor? Presently here in St. Marys at St. Marys Regional 12 Medi ca 1 Cente r. .:P'-"'.... t~J 13 14 Q. A. Doctor, have you had any teaching appointments? Yes. In the roughly 17 years when I practiced in 15 Harrisburg, for most of those years we were on the clinical staff 16 at Hershey Medical Center, Penn State Universi~y, teaching 17 residents from the Hershey program. And then, oh, golly, in 18 about the last, from about 1992, I'm going to guess, through '95, 19 we were then training residents from the osteopathic programs in 20 Harrisburg and York Memorial Hospital. So I had teaching 21 appointments with those programs, and previously with the Hershey 22 Medical Center as previously mentioned. 23 24 25 Q. A. Doctor, do you have any professional affiliations? Yes. I belong to a number of the medical associations; the American Medical Association, the Pennsylvania State Medical MERRITT COURT REPORTING ) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I:) ~ 6 Society, the American Academy of Orthopedic Surgeons, the Pennsylvania State Orthopedic Society, and here locally, the Elk County Medical Society. Q. Doctor, could you briefly describe for the jury, please, your orthopedic medicine practice? A. I practice as a general orthopedic surgeon, meaning I have no particular subspecia1ties but deal with pretty much the full gamut of orthopedic problems. That's largely fractures, sports-related injuries, arthritis, joint replacement surgery, disorders of the spine, shoulders, knees, feet, things of that general nature. Q. Doctor, have you had occasion to treat patients with the same type of injury that Jill Ruby presented? A. Yes, many times. Q. I offer Dr. Eshbach as a medical expert with a specialty in orthopedic medicine and surgery. MR. McGUIRE: I have no objection to Dr. Eshbach and no questions for Dr. Eshbach at this time. This is Attorney Jeffrey McGuire. BY MR. FREEBURN: Q. Now, Doctor, I'm going to ask you some questions this afternoon. Some of the questions that I will ask will require your medical opinion. I will ask you to not answer those questions unless you are able to do so within a reasonable degree of medical certainty. Is that fair? MERRITT COURT REPORTING ,,.......,., t'--"" I,..J \ , '"-'" 7 1 2 3 4 5 A. Yes. Doctor, have you had occasion to treat Jill Ruby? Yes, I have. Q. A. Q. A. When did you first examine Jill Ruby, Doctor? I first myself examined her on the 4th of April, 1997, 6 but she was seen in our office on March 14, 1997, by our 7 physi ci an assi stant at that ti me. 8 Q. Doctor, when you first examined Ms. Ruby, did you take 9 a hi story? 10 Well, I had the information from the previous A. 11 examination from Dr. Horner available, but then I continued to 12 ask her how she was doing as of that time, yes. I didn't go all 13 the way back to the original injury. 14 Q. Doctor, before your deposition today, did you have 15 occasion to review the records of your prior office, in 16 particular the records with regard to the first examination in 17 you r offi ce on March 14, 19971 18 19 Yes, I did. And Doctor, have you also had occasion to review the A. Q. 20 records of the emergency room at Carlisle Hospital with regard to 21 Ms. Ruby's injury? 22 23 A. Q. Yes. Doctor, have you taken into account what those records 24 said in arriving at your opinion with regard to Ms. Ruby's 25 injuries? MERRITT COURT REPORTING :') 1 2 A. Q. 8 To some extent, yes. Doctor, as part of your history, did you ascertain 3 where Ms. Ruby was working at the time of her injury? 4 5 A. Q. Well, yes. She was working at ABF. Doctor, as part of your history did you ask Ms. Ruby 6 questions regarding her general health condition, in particular 7 her pregnancy at the time? 8 A. That information was well made aware to me from the 9 office note that pre-existed my seeing her myself for the first 10 time. 11 Q. Doctor, what did Ms. Ruby tell you was hurting her when 12 you first examined her on April 4, 1997? .j"'" ~ fl ) A. Certainly her major complaint, if not her only complaint, at that time was pain in the right foot, more 13 14 15 specifically into the forefoot. That is, the toe area of her 16 right foot. She mentioned being unable to weightbear or ambulate 17 in the little shoe that she had been given to treat the sort of 18 injury that she had sustained. So she was still continuing to 19 try to keep the pressure off the sore part of her foot, not 20 really weightbearing or walking in the way that often we would 21 have expected at that time. 22 Q. Doctor, as part of your treatment of Ms. Ruby on 23 April 4, 1997, did you conduct a physical examination? 24 25 ""'--" A. Q. Yes. And what did your physical examination show? MERRITT COURT REPORTING 9 ,I) 1 A. Well, with regard to her right foot -- and I should 2 make an aside. Yes, she was certainly pregnant at that point; 3 roughly seven months pregnant, which would have been obvious to 4 all. But back to the foot, I noted that she had normal alignment 5 of the toe, meaning the third toe. She was still certainly quite 6 tender over the third metatarsal, which again is the bone in the 7 mid-foot leading out to the third toe, the one that's in the area 8 that had been injured. She was sore in that area to palpate and 9 to touch, somewhat in a way that I would have expected for her 10 injury, possibly a bit more pain than I would have expected 11 roughly two to three weeks following the injury. .4. ( ) -t., 12 13 14 Q. Doctor, what recommendations did you have for Ms. Ruby following your history and physical examination on April 4, 1997? A. Well, we discussed in general the appropriateness of 15 obtaining follow-up x-rays to look at this injured toe, presumed 16 fracture. But since she was well into her pregnancy, she was 17 concerned, and rightfully so, about x-rays. And given the 18 relatively benign nature of the fractures in that area, I did not 19 feel that we needed to pursue x-rays. So I held off on obtaining 20 any follow-up x-rays in the interest of not provoking any concern 21 on her part with regard to the pregnancy, and frankly, because I 22 felt it was not clinically that necessary for the foot itself. 23 As far as recommending any further treatment, it was to 24 try to have her walk and stand on this progressively as comfort 25 would permit. I believe at that time, if not in my office note, '..../ MERRITT COURT REPORTING 10 1 on an ABF form, we suggested that she still stay off work since 2 she was having, again, so much discomfort and difficulty in 3 weightbearing. So she was to be off work until further notice as 4 of that visit. --, 5 Q. Doctor, when did you next have occasion to see Ms. Ruby 6 following that visit? 7 8 9 A. Q. A. Approximately three weeks later, on 4-22-97. And Doctor, what were your findings at that time? By history, her symptoms, that is the pain in the right 10 foot, the pain was settling down. Again though, she was having 11 more difficulty with this injury than I might have expected for 12 similar injuries. I did not appreciate any significant swelling 13 in the foot at that time, but she still was tender over the 14 injured area. I noted that tendon function, that is movement of 15 the toe by tendons that normally attach there, tendon function 16 was intact. Her neurovascular status, that is the sensation and 17 circulation to the toe, seemed intact. I mentioned that she ( :"') , ~.,.' 18 still was having difficulty walking and that she did not feel 19 safe or secure enough with that right foot to be driving the car 20 with it at that point. 21 Q. And Doctor, did you recommend that she not drive at 22 that time? 23 A. Yes. I said if she felt insecure, not safe with that, 24 that she should not be driving at that point. 25 '-'" Q. Doctor, did you keep Ms. Ruby off work as of April 22, MERRITT COURT REPORTING --, 1 19971 2 3 A. Q. Yes, we did. Doctor, when did you next have occasion to see Ms. Ruby 4 following the April 22, 1997 visit? 5 6 7 A. Q. The next visit was 5-13-97. And, Doctor, what were your findings on that visit? Well, at this point we are about two months following A. (~") -'1-- 8 her injury. Again, her symptoms were such that she was becoming 9 more comfortable, but by no means was she pain-free. Again we 10 discussed the issues of getting an x-ray. I was a bit concerned 11 as to there may be something going on here that might be amiss in 12 that for a third metatarsal fracture which was the presumptive 13 diagnosis at that time, I would have expected some symptoms but I 14 would have expected them to have settled down some. I was 15 concerned about a few unlikely but potential problems that an 16 x-ray might help resolve. Nonetheless, and again, she was close 17 to her term in pregnancy and since her symptoms were improved, I 18 felt, again, we could hold off on x-rays and clinically follow 19 that. As far as other recommendations, I advised that she should 20 continue to try to get by, meaning weightbear progressively as 21 her symptoms would allow and that I was planning to have her 22 return in about one month. One month would have, I would have 23 still been in the practice there in Harrisburg. I knew I was, 24 certainly, at that point I was going to be moving but my move was 25 not until mid-July. Nonetheless, that was a last time that I saw ---' MERRITT COURT REPORTING 11 \ '1 , " : ~'1 " ,) ,...) 12 1 her. I guess she had her baby, then returned in my having moved 2 away absence and was seen then by one of my associates, 3 Dr. Maurer, in the practice back in Harrisburg. 4 Q. Did your records, Doctor, indicate when Ms. Ruby was 5 last seen at the offices of Harrisburg Orthopedic Associates? 6 A. The last note I have was from Dr. Maurer on July 23, 7 1997. 8 9 Q. A. And Doctor, how was Ms. Ruby doing at that time? Well, going by Dr. Maurer's notes, he mentions kind of 10 reviewing some of my history, that she had had substantial pain 11 and swelling initially, mentioned she was on maternity leave, 12 although she had returned to work shortly prior to her delivery. 13 She reported substantial improvement in the symptoms in the knee 14 and calf, which had been part of the initial injury but not a 15 major part certainly while I had seen her. But she continued to 16 have occasional right foot pain. 17 When he examined her, he noted no swelling but she was 18 tender in the same area, around the third metatarsal neck which 19 is the area we have been discussing, and surrounding soft tissue. 20 He noted no bruising or deformity. Neurovascular exam, he felt 21 also normal. The exam of the joint was normal in terms of no 22 instability or any other specific joint findings to the joints of 23 the third toe. He noted no pain or swelling in her ankle. And 24 he noted no abnormality or pain over the plantar, that is the 25 sole aspect of her metatarsal head, nor in the area of the MERRITT COURT REPORTING '"' 13 '1 1 digital nerves which are in that lower area of the foot. 2 Q. Doctor, when was the last occasion you had to see 3 Ms. Ruby? 4 A. I just saw her a few days ago. Specifically 4-27 of 5 this year, '99. 6 7 8 Q. A. Did you take a repeat history, Doctor, at that time? Yes. Q. And what did your repeat history indicate with regard 9 to Ms. Ruby's continuing complaints? 10 A. Well, just that, it was to see and review with her what , ) '1.'-," ,..j.-~. 11 had happened in roughly the past two years in preparation for 12 this hearing, I'm sure. She mentioned that she still is having 13 pain in the foot; swelling, not really. The pain certainly had 14 moderated and changed from what it had been acutely in the months 15 that I had seen her following the injury to where she is now. 16 Her major complaints at this point continue to be, 17 though, pain in the area of injury; that is, the third metatarsal 18 neck area of the right foot. The pain is not present all the 19 time, but it is present consistently with increased walking 20 distances or with wearing certain shoes, generally tighter 21 fitting shoes or higher heeled shoes. 22 She had been accustomed to walking for enjoyment and 23 for exercise purposes, she related to me at that time. That is, 24 prior to her injury she had done that. And while she still 25 walked for enjoyment and for exercise, she found that she did not ,--,' MERRITT COURT REPORTING 14 1 have the comfort or endurance to do that compared to her 2 pre-injury status. So she was relating pain with walking, not 3 unbearable but annoyingj generally relieved if she would take 4 aspirin, or an Ibuprofen or a Tylenol, generally permitting her 5 to do her regular work activity. The only impact it seemed to 6 have, as I recall from her history, was the length of walking and 7 some restrictions with certain footwear, at least for extended 8 peri ods of ti me. .--., , , 9 10 11 Q. A. Q. Doctor, what does the word "chronic" mean? Chronic refers to long-term or longstanding. And at the time that you last saw Ms. Ruby it was more 12 than two years following her initial injury which was on /...- , ) L...," March 12, 1997j is that correct? 13 14 15 A. Q. That's correct. Doctor, did you indicate in your notes that Ms. Ruby 16 was suffering from chronic right foot pain? 17 18 A. Q. Yes, I did. And Doctor, did you conduct a physical examination of 19 Ms. Ruby on April 27, 1999? 20 21 22 A. Q. A. Yes. What did your physical examination show, Doctor? First, just observing her walk in and out of the office 23 and the exam room, she had essentially a normal gait pattern, no 24 limp was identifiable. Stance, I felt both feet were symmetrical 25 except on the right foot there was a slight hyperextension or ,.,./ MERRITT COURT REPORTING ~ t.~ ( ) I~..~ ~ 15 1 lift off of the third toe. That is, the third toe compared to 2 the others that lay flat on the floor, just ever so slightly, was 3 in an extended or upward position off the floor. That was 4 somewhat of an unusual finding, but it was quite convincing. In 5 the same sense, there was no what's called clawing or hammertoe 6 deformity, which is more of a c1awlike deformity that can develop 7 in certain toes for a variety of reasons. She did not have that 8 more typical clawing, just hyperextension at the MT joint. 9 I examined the foot for what's called intrinsic muscle 10 function. There were some small muscles in the foot that help 11 with the bending and straightening of the toes. Some people can 12 flare their toes, some cannot. She was able to do that, which 13 14 suggested the small intrinsic muscles in the foot were functioning normally. She had normal sensation to light touch in 15 both feet. I did not appreciate any swelling. She still was 16 tender to palpate directly in the area of the third metatarsal 17 head and neck, the area that had been sore ever since the injury. 18 I did a neurologic examination in a more general sense 19 of both lower extremities, that is, both from the hips on down, 20 and felt that there were normal findings in both legs with regard 21 to nerve function in both lower extremities not just the right 22 foot alone. I believe that pretty much was the end of the 23 physical examination findings. 24 Q. Now Doctor, you indicated that Ms. Ruby had a slight 25 lift off of the third toe upon your physical examination; is that MERRITT COURT REPORTING 16 r) 1 correct? 2 A. She brought it to my attention and, yes, I confirmed it 3 obse rvi ng he r stand. 4 Q. And Doctor, I think you have indicated that Ms. Ruby's 5 symptoms were a little greater than what you might have expected 6 for this type of injury; is that correct? 7 A. Yes. From the outset, the amount of pain she was 8 having with this injury, the rather protracted course and the 9 fact that she still is having symptoms would be unusual for what 10 was presumed to be a relatively non-displaced, in fact, a 11 non-displaced fracture of the third metatarsal. 12 13 Q. Doctor, I think in your note of your last visit you ,.""-'..> i. ) I ~."_ . indicate that it is clear that she's having ongoing legitimate 14 problems there of the foot; is that correct? 15 16 A. That's correct. Q. Doctor, how would you attribute these increased 17 symptoms and physical findings that you have of Ms. Ruby with 18 regards to her injury? 19 A. I don't presume to have all the answers here, but the 20 most likely explanation that would explain the whole picture from 21 the beginning, the seemingly exaggerated, if you will, or greater 22 symptoms than generally we would anticipate, and the fact that 23 she still is having symptoms, plus the finding of the toe being 24 somewhat displaced, if you will; what would explain that would be 25 not fracture as much as injury to the surrounding soft tissues, -....,/ MERRITT COURT REPORTING 17 -~ 1 meaning muscles, ligaments. And certainly, nerve injury would 2 explain a lot, if not everything here, other than the lift off of 3 the toe, which I cannot explain on a nerve-related injury 4 directly. 5 So the presumption that I would have in hindsight, 6 looking back here, is that, with the injury, that she sustained 7 significant injury to the associated soft tissues again, the 8 muscles, the capsule -- nerves in the area of impact there that 9 likely caused some scarring, probably some permanent nerve injury 10 either from the stretch of nerve or crush of nerve that caused 11 the severity of symptoms from the outset and also has left her 12 with the residual symptoms that we just discussed. ~~- ( ) ,~~ 13 M Q. Doctor, do you have an opinion which you are able to state to a reasonable degree of medical certainty whether the 15 accident in question of March 12, 1997, was the direct cause of 16 the findings and conditions you testified to this afternoon? 17 A. Yes. I have nothing to suggest otherwise. That is, it 18 would be my opinion that the injury of March 12th of '97 did 19 cause the pain then and the ongoing symptoms we have discussed 20 still present. 21 Q. And Doctor, with regard to Ms. Ruby's prognosis, would 22 you have an opinion as to whether she is likely to continue to 23 experience the same type of pain into the future? 24 25 A. It is likely now, two years roughly from the time of , i '--' injury, that her symptoms will remain stable but present as we MERRITT COURT REPORTING t1 ..~'.",- , ) j.,..'" '-" 19 1 that you did review from the date of the accident showed that her 2 child was in no apparent distress in the emergency room at that 3 time? 4 That's my general interpretation. I'm not an A. 5 obstetri ci an, but, yes. 6 In fact, I believe the report notes that there was Q. 7 fetal movement and good fetal heart tone? 8 I would have to review that, but I don't doubt that A. 9 you're ri ght. 10 You only have one page of the emergency room recordj is Q. 11 that correct? 12 13 14 15 16 17 18 That's correct. The report I have really does not get A. into anything about fetal heart tones that I have come up with yet. MR. FREEBURN: I'm going to object. (The following discussion was had off the videotaped record, but was placed on the oral record.) MR. FREEBURN: I will object and move to strike as 19 beyond the scope of direct examination. The doctor was not 20 offered as an expert with regard to prenatal care. He was only 21 offered as an expert with regard to orthopedic medicine and 22 0 rthopedi c su rge ry . 23 MR. McGUIRE: Well, in response to that I'll just say 24 that I'm asking him about the medical record which he indicated 25 he reviewed in preparation of this deposition. MERRITT COURT REPORTING 20 r'1 1 (Back on the videotaped record at 4:36 p.m.) 2 BY MR. McGUIRE: 3 Q. One of the initial comp1a'ints that she voiced to you 4 was problems with her thumb; is that correct? 5 A. She had mentioned that to Frank Horner actually, who 6 was our physician assistant who saw her on the 14th. So that was 7 a complaint she had. By the time I had seen her, that no longer 8 was a complaint. So that problem, as best I know, resolved 9 itself. 10 Q. The first time you saw her was on April 4th. So by 11 then it had resolved? :~''') ,.... 12 13 14 A. That would be my presumption, yes. Q. And you, I believe, previously indicated on your direct testimony that you would not have expected the level of pain that 15 she complains about today; is that correct? 16 A. Well, it depends. In retrospect, if you go with the 17 hypothesis of the soft tissue injuries, which is what I feel in 18 retrospect is really at issue here, then everything does make 19 sense. If the working diagnosis is a third metatarsal neck 20 fracture, which is what the diagnosis was back at the time, then 21 certainly there was pain, swelling, bruising, and such associated 22 with that, consistent with her symptoms. But the amount of pain 23 and the length of time that those symptoms persisted was greater 24 or longer than what we generally see. Not totally inconsistent 25 with the diagnosis, but just raised suspicion for something more ''"-'" MERRITT COURT REPORTING 1 ~ 2 3 4 5 6 7 8 9 10 11 12 13 ( ) 14 15 16 17 18 19 20 21 22 23 24 25 ~ 21 or something different is going on. Q. Would you agree with me though, however, that in each of the notes that you made after seeing her, you indicated that she was experiencing more pain than you expected at that time? A. Correct. Q. And in fact with a fracture of this type you wouldn't have expected two years out for her to have really any of the pain she is having at this time; is that correct? A. For a third metatarsal neck fracture, the answer would be correct for that question. Q. You did indicate on your latest report, from April 27th of '99, that the bone is well-healed and well-aligned; is that correct? A. It's well-aligned. I think there is some question about the diagnosis of a fracture going back to the original injury. So, well-healed I think then becomes a semantic issue. Q. Okay. But in your report you stated, certainly, the bone is well-healed and well-aligned? A. Yes, uh-huh. Q. And you had indicated that she can carry out her -- you indicated she has returned to her previous job and can carry that out quite normally. A. That was my understanding in my discussion with her, yes. Possibly with the exception of some footwear modifications that we have mentioned previously. MERRITT COURT REPORTING 1 r"\ Q. Do you know, when she came on April 27th, did she come 2 with anybody else or did she come up alone? 3 A. That I don't know. I only saw her in the exam room and 4 I don't know how or with whom she might have come. Q. That's all I have, Doctor. 5 6 7 REDIRECT EXAMINATION 8 BY MR. FREEBURN: 9 Q. Doctor, I'm going to offer as a plaintiff's exhibit a 10 copy of the emergency room record that was previously referred to 11 in your testimony. Doctor, at the time that you were treating 12 Ms. Ruby back in the spring of 1997, you did not know at that 13 time that she would continue to experience pain and problems with ("'1) -',0' 14 he r ri ght foot on into the futu re and now mo re than two yea rs 15 since the date of the injury; is that correct? 16 17 A. Q. I did not know that, correct. Doctor, based upon your diagnosis with regards to a 18 soft tissue type of an injury you described in your direct 19 testimony, her complaints are not surprising at this time; is 20 that correct? 21 22 23 A. No. They are consistent with that sort of an injury. MR. FREEBURN: I have nothing further. MR. McGUIRE: I have nothing based on that. Thank 24 you, Doctor. o 25 (Videotaped deposition concluded at 4:40 p.m.) MERRITT COURT REPORTING 22 ^~ f) 1 Active SlaIf . , 1 AMlI J .- - - ' Porter, A,R.. TrllllO, T,A" Rudy, F.R., EshlMch, T,8" Florid Reactive PeriollitiJ of PhallOllflI, American 1ouma1 ofROCII_oIOlrV. 1!lIS: 144; 61NSlI Iti. r 11..d', .!.t>., I r 1ft : AIIIerleu Boerd ofOrt.....eI!lc s.....I)', Boerd Certllled. Septe.. I,. AmeriCIII Mediea\ AuocialiOll . 1979-pttl1Cnt PCIUIJy\vania Medical Society. 1911-present American Academy of Orthopaedic SUl'JleIlIlI' 1984-ptescnt Penn5ylvaola Orthopaedic Society - 1!lI~praen.t ElklCamllrOll McdlcaJ Society. I !I!IS - present - ~ February 1999 2)'1', term P!IIlIlI)'lvanla Medical Society: Prol'csslonal Liability Insurance .Appeals Committee - member: 1994 - preacnl - chairman: I !l97 - present Pennsylvania Medical Socicty DcIcga1e for Elk County - 1991 _ present. , .. J o l \ . I J i o RUBY, JILL MR #794956 03/12/1997 ,'j " ; ." , CHIEF COMPLAINT: Fall, HISTORY: This Is a 31-year-old white female who Is Gravida 2, Para 1001, who presents after a fall off a loading dock. She landed flat on her feet and then noticed that her panties were wet, and she Is concerned that she may have "broken her water" rather than just wet herself, She complains of pain al the right ankle and the third, fourth, and fifth toes of the right fool. She denies any abdominal pain. She stales that she continues to feellhe fetus move, There was no abdominal or back trauma. , MEDICATIONS: Prenatal vitamins, PAST MEDICAL HISTORY: None. , ALLERGIES: None, C) PHYSICAL EXAMINATION: In general, lhe patient Is alert, Vllals stable, Abdomen Is gravid with fetal heart tones at 140 and non tender, Right lower extremity reveals some ecchymosis over the lateral ankle but not bony tenderness. Tenderness Is at the third, fourth, and fifth toes at the base of the phalanxes, There Is no gross deformity, allhough there Is some ecchymosis, Pelvic exam/ bimanual exam revealed a closed os with no gross fluid, allhough sample of vaginal contents wllh nltrazlne negative and did not fern upon microscopic examination, EMERGENCY DEPARTMENT COURSE: I did not x-ray the patient's foot and she was In agreement with this since definitive diagnosis of broken toes would not change treatment plan. She was limited to desk duty at work until she could bear weight without assistance, She is to use an Ace wrap to the ankle and foot and the postop shoe and cane, She should contact her gynecologist tomorrow for repeat exam, She should return to the Emergency Room If she does not notice the fetus moving or abdominal pain, She should see her doctor tomorrow. She can rest, Ice to ankle and foot four limes dally, Tylenol for pain, minimize weight bearing, use cane and Ace and special shoe for a week. . \ , I i " , DIAGNOSIS: Acute right ankle and foot sprain, AJG/tet 0: 03/12/1997 - 05: 18 pm T: 03/19/1997 ,L.IL!(' rJ ;s- Ar?fOOry. -d~, 0.0, ....J I PLAINTIFF'S EXHIBIT Z ~'19~ 5/1 '! Page 1 of 1 ORIGINAL CARLISLE HOSPITAL EMERGENCY ROOM RECORD JILL L. RUBY and RONALD L. RUBY. Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-511 CIVIL ACTION - LAW v. V. R. MOWRY. INC. and ROCKY GEORGE. Defendants JURY TRIAL DEMANDED REPLY TO NEW MATTER AND NOW come Plaintiffs, JI1I L. Ruby and Ronald L. Ruby, by their attorneys. Wilt & Freeburn. and file the following Reply to New Matter: 34. This paragraph contains no averments of fact. only conclusions of law to which no reply is required. To the extent that a court determines that this paragraph contains any averments of fact, the same are specifically denied. By way of further reply. Plaintiffs Incorporate herein by reference thereto all of the allegations contained in their Amended Complaint as if set forth in their entirety. 35. This paragraph contains no averments of fact, only conclusions of law to which no reply is required. To the extent that a court determines that this paragraph contains any averments of fact. the same are specifically denied. 36. This paragraph contains no averments of fact. only conclusions of law to which no reply is required. To the extent that a court determines that this paragraph contains any averments of fact. the same are specifically denied. t , I ., VERIFICATION We hereby verify that the statements in the foregoing document are true and correct. We understand that false statements herein are made Rubject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Dated: ~- 6J} 7 (!!J~ ~, JI , L. RUBY C'(f\ ~l P 'l C. C- )n~ . \ 1'~' RONALD L. RUBY . j ~ ..:I' ~ C wO 8 ~<r ( );.-": 0:<:; r).'. !Fr.: ..:;.:: - :,.:.1. ~r-' '::);2 0 C> >C/) 0.: :~J:< I.L en II: 2': [f: ~t "" 1l1ll.J ""; ~qo_ r= ~- ..... -'- LL en -:J 0 C'\ () JILL L. RUBY and RONALD L. RUBY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA : NO. 98-0511 CIVIL TERM V.R. MOWERY, INC. and ROCKY GEORGE, Defendants VERDICT QUESTION 1: Do you find that Defendant George was negligent? YESX NO If you answer Question 1 "No," Plaintiffs cannot recover and you should not answer any further questions and should return to the courtroom, QUESTION 2: Was Defendant's negligence a substantial f.1ctor in bringing about Plaintiff Jill Ruby's harm? YESlS. NO If you answer Question 2 "No," Plaintiffs cannot recover and you should not answer any further questions and should return to the courtroom. I Dl\TB: '1 h~ \ qq I CA'lE t<<l. 8' CXXJkn<< at, 5 tc. qca. 5\ I CIVIL TERO'\ 1.' Ii (, rrQ.n~ F1;~h', 2..59 ~.lm&eb ~o..+~mcu\ 3..& I JOf'lcd-ha.n E]5lf~o~L 4.i--1.3.:7' R okt"H?!..c6 _ r 3 5..l3~ W\lli6-.trl 60uJU 6.' e~ Nt i ItoY"l Moor h~a..d 7..5 fa Bl-ti--e. -...lo Ha.r<-- 8.' Cf4 fv1arshCl. (isha- r.9....2>Z.~:.J.dl ';~L~ I r~ 10.' 82 .Jo~ ~nTjGofl C- ll.' ,~ 2 0 g o..,.-r-y'-~"::::"~ F" 'i lZ.' ..f (;)6 <1 "",If '"'- ~ G t d.JJL ~:;t 13.' 64 .Je:>hn '~IShoc~ 14.' to Ga..r\ 18run lJ<..-r r).. <:11 I l27 Dor', S r:-r~( i ~ ~:r~,,~ I :::~~~~~~"~i~l~ i 2bJ 55' Amy Hi lef ! 27,.' ~'~.'~H , '.. . i' ~ ~, 'I, "j. ..;: .' ' : .to. v' \ ~" , ....~,: ..'; 'p' ~,., "', , , }~.( f . ,~ . " . c.,.~I''Oo-...... I. ~ '. IoN....-l._.J. -;:--'"I"'~ , \ i I i r , , ~..; , ., I' . I "T . .1" , ... . , .'" . ,.,~, ~ I , > . 1 ~ I . . I ,. :\ ", ~'I ~.' ."' , ~,.... .' . .., ... . '. " ~ .:: ,':~. ; . . to. t I'; ,; 23.' 24.11 25.11 26.11 27.11 '~ . " " .' " ., " " I ,I .~, 'It;'.,'" , . , <,. '-, " .;. \ , ': .. ..... . \ .,' , ,0./:' I:....: