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Home My WebLink About00-06133 . "';<":.::'.'r-,-:s>~ ._.''._ --, 0',-<' ,. ". , --,~, -, .. JOANNE L. MORTON, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-6133 CIVIL TERM CIVIL ACTION - LAW : JURY TRIAL DEMANDED DEFENDANT'S PRE.TRIAL MEMORANDUM ELLEN JANE WINTERS, Defendant I. FACTS This accident occurred on October 20, 1998 at the intersection of Market Street and Simpson Street in the Borough of Mechanicsburg. Defendant was traveling on Market Street and did not notice until the last moment that the light for her had turned red. She braked but was unable to stop before making slight contact with the right rear passenger side of Plaintiff's vehicle. There was minor damage to both vehicles, and immediately after the accident, the Plaintiff indicated that she was fine. Defendant admits that she was negligent in causing the accident. II. DAMAGES At the time of the accident, Plaintiff had elected the limited tort option, and therefore needs to prove that she sustained a "serious injury" in order to recovery non- economic damages. At the time of the accident, Plaintiff was under active treatment for injuries that she had sustained as the result of a July 1998 automobile accident. Plaintiff remained off of work for approximately six months following the accident, and then returned to work at the Naval Supply Depot until she took a volunteer retirement at age 62. Plaintiff now claims that she intended to work until age 70, and has therefore sustained a $200,000.00 future wage loss claim. . , -~ , ..'. ';C.', ,~,' H P"-:.'";1 iIIilJ III. UNUSUAL EVIDENTIARY MATTERS There do not appear to be any unusual evidentiary issues in this case. IV. WITNESSES 1. Ellen Winters 2. Perry Eagle, M.D. 3. Officer Cranga Defendant reserves the right to call any individual identified in Plaintiff's Pre-Trial Memorandum, and also reserves the right to call any of Plaintiff's treating physicians. V. EXHIBITS 1. Photographs of vehicles 2. Medical records of Plaintiff 3. Employment records of Plaintiff VI. STIPULATIONS Defendant requests a stipulation as to the authenticity of the medical and ~ employment records. VII. SETTLEMENT NEGOTIATIONS Plaintiff has made a demand of $90,000.00 to settle the claim. Respectfully submitted, WIX, WENGER & WEIDNER ~.J..I'l/ By ~ {"\ ,N / Richard H. Wix, Esq., ID# 07274 Attorneys for Defendant 4705 Duke Street Harrisburg, PA 17109-3099 (717) 652-8455 Dated: 6/10/03 2 -.i ,- ',"'i" -.""'" 'r- '-~"_ ,. .,> ., ~ ,..-..,P,\ ,'''.,'. '"0'.;.0 r,-"",',,,...,,.... ,:::,,.':: ."..;.,~ . ., =' 'c' ~,.". .' ,". .'~ ,_. .,.', ~ CERTIFICATE OF SERVICE AND NOW, this 10th day of June, 2003, I, Gaye Crist, an employee of the firm of Wix, Wenger & Weidner, attorneys for Defendant, hereby certify that I served the within Defendant's Pre-Trial Memorandum this date by depositing a copy of same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed as follows: Lee C. Swartz, Esquire Tucker Arensberg & Swartz P.O. Box 889 Harrisburg, PA 17108-0889 WIX, WENGER & WEIDNER G~~tW -; ""~ JUN. 17.2003 8: lOAM J ~~ .'0', . !>iiI, . , Q) NO. 6436-P, 3 ~iR 2 9 2gl~ r JUN 1 7 2003 t JOANNE L. MORTON, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-6133 CIVIL ACTION - LAW JURY TRIAL DEMANDED ELLEN JANE WINTERS, Defendant PLAINTIFF'S PRETRIAL MEMORANDUM I. FACTS REGARDING LIABILITY On Ootober 20, 1998, at approximately 12;09 p.m., Plaintiff Joanne Morton was operating a 1992 Oldsmobile 98 Regency in an easterly direction along Simpson Street Defendant Ellen Winters was operating a 1991 Dodge Caravan in a northerly direction along Market Street. At the time of the accident, Plaintiff Joanne Morton was travelling in an easterly direction along Simpson Street in Mechanicsbutg, Pennsylvania. As Plaintiff Joanne Morton approached the intersection of Simpson and Markets Streets, she observed a green traffic signal and proceeded to enter the intersection when she was suddenly and unexpectedly struck by Defendant Ellen Winters' vehicle entering the intersection from Plaintiff Joanne Morton's right-hand side. Officer Michael Cranga of the Mechanicsbutg Police Department arrived on the accident scene. It should be noted that Defendant Ellen Winters only offered the investigating officer the excuse that she failed to see the red light until the last minute. The circumstances surrounding the accident clearly establish that Defendant Ellen Winters was negligent, careless, and reckless in the operation of her vehicles, and was solely responsible for the accident The automobile accident was in no manner due to the , d~ JUN, 17.2003 8: lOAM NO. 6436 p, 4 ;" '., 1 act or failure to act by Plaintiff Joanne Morton. Plaintiff anticipates that liability will be admitted by Defendant. n. FACTS REGARDING DAMAGES At the time of this accident, Plaintiff Joanne Morton was the restrained driver of her vehicle who, unfortunately observed Defendant Elle Winters' vehicle entering the intersection. In preparation for the anticipated collision, Plaintiff Joanne Morton attempted to brace herself by placing her right arm in front oiher face. As a result, her right elbow struck the Steering wheel while her left arm and side struck the door. Following the investigation by Officer C:r;anga, Plaintiff Joanne Morton went to work but noted that within several hours her pain had become more severe. By the follOwing day, Joanne Morton's pain had become quite severe so she consulted Dr. Williaw K. Shaffer who had been treating her for neck injuries sustained in a rear-end collision on July 17, 1998. The injuries from the July 1998 incident had resolved to the point that Ms. Morton was able to return to Y. days oflimited work duties in mid- September and back to full activity prior to the October 20, 1998 accident; however, subsequent to the October 20, 1998 accident, Ms. Morton was once again disabled from employment Ms. Morton consulted Dr. Shl1ifer five (5) times during the month of October, consistently demonstrating objective findings which included: limited cervical range of motion; absent niceps reflex; absent left biceps and sluggish right biceps reflexes; reduced grip strength with arms extended; and reduced senSitivity in the left arm along all three (3) nerve distlibutions. ......... - ,~ ., .rt' ;.;~ JUN. 17.2003 8; lOAM W'" -- " "\ii. NO, 6436-P. 5- During the following four (4) months, Ms. Morton received treatment from Dr, Shaffer on a minimum of38 occasions. Commencing on November 18, 1998 she also received treatment at the Hetrick Center under the direction of Dr. Michael E. Treichler where she was ,treated on at least 12 oCl;:asions, During Ms. Morton's initial evaluation with Dr, Treichler, he diagnosed her as suffering a l;:ervical al;:celerationJdeceleration injury; abnormal neurological disc kinesis and disc diakinesis; and cervical-thoracic joint dysfunction. Throughout this period oftime, Ms, Morton's treatment a1ternlrted between chiropractic manipulation by Dr. Shaffer and aquatic therapy at the Hetrick Center, By January 1999, Plaintiff Joanne Morton had progressed with her therapy to the extent that Dr. Treichler removed her from aquatic therapy and began her on a land-based therapy program, which included instruction for a home exercise program. Opining that Joanne Morton had reached maximal therapeutic benefit from the Hetrick Center, Dr, Treichler released her from his care on February 8, 1999 with instructions to continue her home exercise program. Because of her continued symptomatology which included right-sided neck, shoulder, and elbow pain and numbness, pain, and weakness of the left arm, Joanne Morton consulted Dr, Morganstein on FebI1latY 17, 1999. Examination at that time revealed limitations in cervical range of motion, palpatory tenderness with active trigger points along the lower right cervical paraspina!s, localized tenderness over the medial aspect of the right elbow, weakness in right shoulder abdul;:tion, and decreased light touch sensation on the left corresponding to a CS and C6 dermatomallevel. Dr, Morganstein recommended diagnostic testing including x-rays of the right shoulder and elbow and a MRI of the cervical spine, JUN,17,20038:11AM ~ ~ .' "'~ '!t[J.i NO, 6436~P. 6-" Based upon the MRI of the cervical spine and a CAT scan of the right upper arm and MRI of the right shoulder, Dr. Morganstein diagnosed Joanne Morton with accident- related radiculitis of the left upper extremity, traumatic tendinitis of the right rotator cuff, a probable partial tear of the right supraspiDatus tendon, and myositis ossificans along the right upper humerus. Treatment for these conditions consisted of physical therapy with Karen Red, P. T., 2 to 3 times per week over a period in excess of2 months as well as a local injection to the right shoulder joint. CUITently, Plaintiff Joanne Morton has difficulty with the right shoulder and holding it in the extended position, ie, doing her hair, using the arm in a repetitive fashion, ie, cleaning and the inability to forcefully use the extremity to lift any object above shoulder level. It is the medical opinion of Dr. Bruce Goodman that Plaintiff Joanne Morton is totally disabled in terms of meeting her occupational demands as she previously had performed due to her accident related injuries. With a reasonable degree of medical certainty, Dr. Goodman states that Plaintiff Joanne Morton's physical condition affording her restricted work capability is directly and causally related to the motor vehicle accident occurring on October 28, 1998. Both Dr. Morganstein and Dr. Goodman will testify and have opined that Mrs. Morton has sustained a significant loss of a bodily function which establishes a serious injury. Plaintiff Joanne Morton has incUITed approximately $12,000.00 in medical expenses for treatment received regarding her injuries sustained as a result of the motor vehicle accident. However, it is noted that the $5,000,00 ofPlaintifI Joanne Morton's medical expenses related to this accident have been previously paid under her first party JUN,17,20038:11AM . . NO. 6436 P 7 " benefits of her automobile insurance carrier, Nationwide Insurance Company and the remainder of her medical expenses were paid by her health insurance company. Additionally, Plaintiff Joanne Morton was completely disabled from performing her job duties for a period of six (6) months following the date of the accident. For a two-week period beginning April 6, 1999, she was release to return to light-duty employment for Yo days, which was increased to six (6) hours per day over the following two weeks, and to eight (8) hours per day during the subseq,uent two (2) weeks. Plaintiff Joanne Morton was finally released to return to a full ten (10) hours workday during her office visit with. Dr. Morganstein on May 19. 1999. Nonetheless, Dr. Morganstein advised that it would be in J oanoe Morton's best interests to remain in the billing . . department since her prior duties involved more lifting and repetitive reaching activities that 'aggravate her symptoms. Plaintiff Joanne Morton's income loss is calculated as follows: 10/20/98 - 4/6/99 Off Work 4/6/99 - 4/30/99 Worked Half Days Only Loss of wages for period oftota! disability - 432 hours at $11.77 per hour and 536 hours at $12.18 per hour. Loss during half days - 61 hoursat$12.18 per hour. In addition to every 80 hours worked, Joanne Morton received 30 hours night differential pay which total $38.30. This would amount to $494.00. Plaintiff Joanne Morton sustained a total wage loss ofSI2,850.00prior to her retirement. However, it is noted that Defendant Ellen Winters' automobile insurance carrier, State Farm Insurance Company made wage loss payments to Plaintiff Joanne Morton as a result ofher income loss and that amount paid would offset the $12,850.00 total ""age loss. ~ ''''"', ,~i "... JUN.17.20038:11AM .~. W!><! , NO. 6436 P. 8 Additionally, Joanne Morton has sustained a loss of earning capacity of $25,334.40 per year. Inasmuch as she had to retire at age 62 and desired to work until she was 70, Plaintiff Joanne Morton has a $202,675,20 gross loss of wages. There should be no offset because she has retired or collects Social Security, Panichelli v. Libertv Mutual Insurance Co.. 543 Pa. 114,669 A.2d 930 (1996); Browne v. Nationwide Mutual Insurance Co.. 449 Pa. Super. 661, 674 A.2d 1127 (1996), allocatur denied, 545 Pa. 674, 682 A.2d 306 (1996). Even if one were to deduct these benefits, the income loss would be well over $100,000.00. As' a result of this accident and the injuries related thereto, Plaintiff Joanne Morton's life has been greatly affected. By the afternoon of the accident, Joanne Morton was in such extreme pain that she called Dr. Shaffer to schedule an appointment for the following day. She was not only experiencing neck pain and limited movement of her neck, but pain in her shoulders and right arm as well as tingling and numbness of the left arm. These symptoms'remained severe enough'to completely disable her from work for a period of roughly six (6) months. Although Plaintiff Joanne Morton's symptoms have improO'ed, she continues to suffer from occasional, but regular, flare-ups. During these periods, Joanne Morton's quality of life and activities of daily living are greatly affected. The pain hinders both her job performance as well as her activities of daily living. Understandably, these episodes are also emotionally traumatic for Joanne Morton, as she becomes frustrated at the limitations her injuries impose upon her. m. THE ISSUES OF LIABILln' AND DAMAGES eX < . JUN,17.2DD38:11AM - ."....;1:., "iIm, NO. 6436-P. 9 It is anticipated by Plaintiff Joanne Morton that Defendant Ellen Winters will raise the issue on whether Plaintiff Joanne Morton sustained a "serious" injury as defined under the PelUlSylvania Motor Vehicle Act. Plaintiff will be able to meet her burden that she will be able to establish a serious injury. IV. A SUMMARY OF ISSUES REGARDING EVIDENTIARY MATTERS None V. LIST OF WITNESSES Plaintiff may call: 1. Maynard Bertolet 2. Richard O'Tolle 3, Officer Cranga 4. Janice Berkheiser S. Steven E. Morg/Ulstein, D.O. (via video deposition) 6. Bruce Goodman, M.D. (via live testimony) 7. Plaintiff reserves the right to use any individual previously identified and/or provided during the course of discovery either by Plaintiff or Defendant as a witness at trial. VI. EXHIBITS 1. Photograph of Plaintiff Joanne Morton hotse riding 2, Medical records, reports and bills of Joanne Morton " ". ~ . . JUN, 17.2003 8: 12AM > ""~.." ..:.....:: . ~ ~ ~. "iNi! ~ --. .. .. ---NO, 6436-'P. 10 . .. 3. Plaintiff reserves the right to use any document previously identified and/or provided during the course of discovery either by Plaintiff or Defendant as an exhibit at trial. VII. STIPULATIONS Plaintiff requests that the parties agree to the authenticity of their respective exhibits. VIII. STATUS OF SETTLEMENT NEGOTIATIONS On January- 27, 2000, Plaintiff Joanne Morton proposed $90,000.00 to settle this case. Defendant Ellen Winters has not responded with a counter offer to date. Respectfully submitted, TUCKER ARENSBERG &: SWARTZ By: Lee . Swartz, Esquire Attorney 1.0. No. 07258 III North Front Street P.O. Box 889 Harrisburg, PA 17108-0&89 ATTORNEYS FOR PLAINTIFF 57695.1 JUN, 17.2003 8: 12AM ...~ . ~" . , . , NO. 6436 p, 11 .....",;.... "'~.~..'~ w, CERTIFICATE OF SERVICE AND NOW, this ;, 't!fJday of March, 2003, CATHLEEN A. KOBR, for the firm ofTUCKER ARENSBERG &: SWARTZ, attorneys for Plaintiff; hereby certifY that I have this day served the within document by depositing a copy of the same in the United SUItes Mail, pOsUlge prepaid, at Harrisburg, Pennsylvania, addressed as follows: Richard H. Wbt, Esquire WIX, WENGER & WEIDNER 508 North Second Street P.O. Box 845 Hanisburg, P A 171 08-0845 (J1thw ;/. )(~ CAmLEEN A. KORR 57914.1 - ,.=," !i,i JOANNE L. MORTON, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 00-6133 CIVIL ACTION - LAW ELLEN JANE WINTERS, Defendant JURY TRIAL DEMANDED PLAINTIFF'S PRETRIAL MEMORANDUM I. FACTS REGARDING LIABILITY On October 20,1998, at approximately 12:09 p.m., Plaintiff Joanne Morton was operating a 1992 Oldsmobile 98 Regency in an easterly direction along Simpson Street. Defendant Ellen Winters was operating a 1991 Dodge Caravan in a northerly direction along Market Street. At the time of the accident, Plaintiff Joanne Morton was travelling in an easterly direction along Simpson Street in Mechanicsburg, Pennsylvania. As Plaintiff Joanne Morton approached the intersection of Simpson and Markets Streets, she observed a green traffic signal and proceeded to enter the intersection when she was suddenly and unexpectedly struck by Defendant Ellen Winters' vehicle entering the intersection from Plaintiff Joanne Morton's right-hand side. Officer Michael Cranga of the Mechanicsburg Police Department arrived on the accident scene. It should be noted that Defendant Ellen Winters only offered the investigating officer the excuse that she failed to see the red light until the last minute. The circumstances surrounding the accident clearly establish that Defendant Ellen Winters was negligent, careless, and reckless in the operation of her vehicles, and was solely responsible for the accident. The automobile accident was in no manner due to the --' o. . ,,,,,-.. .."'. ~ . ""'" 'll'1'ill.u act or failure to act by Plaintiff Joanne Morton. Plaintiff anticipates that liability will be admitted by Defendant. II. FACTS REGARDING DAMAGES At the time of this accident, Plaintiff Joanne Morton was the restrained driver of her vehicle who, unfortunately observed Defendant Elle Winters' vehicle entering the intersection. In preparation for the anticipated collision, Plaintiff Joanne Morton attempted to brace herself by placing her right arm in front of her face. As a result, her right elbow struck the steering wheel while her left arm and side struck the door. Following the investigation by Officer Cranga, Plaintiff Joanne Morton went to work but noted that within several hours her pain had become more severe. By the following day, Joanne Morton's pain had become quite severe so she consulted Dr. William K. Shaffer who had been treating her for neck injuries sustained in a rear-end collision on July 17, 1998. The injuries from the July 1998 incident had resolved to the point that Ms. Morton was able to return to Vz days of limited work duties in mid- September and back to full activity prior to the October 20, 1998 accident; however, subsequent to the October 20, 1998 accident, Ms. Morton was once again disabled from employment. Ms. Morton consulted Dr. Shaffer five (5) times during the month of October, consistently demonstrating objective findings which included: limited cervical range of motion; absent triceps reflex; absent left biceps and sluggish right biceps reflexes; reduced grip strength with arms extended; and reduced sensitivity in the left arm along all three (3) nerve distributions. ,. , ,,,,',' . -,~ 'i!!l.\ During the following four (4) months, Ms. Morton received treatment from Dr. Shaffer on a minimum of 38 occasions. Commencing on November 18, 1998 she also received treatment at the Hetrick Center under the direction of Dr. Michael E. Treichler where she was treated on at least 12 occasions. During Ms. Morton's initial evaluation with Dr. Treichler, he diagnosed her as suffering a cervical acceleration/deceleration injury; abnormal neurological disc kinesis and disc diakinesis; and cervical-thoracic joint dysfunction. Throughout this period of time, Ms. Morton's treatment alternated between chiropractic manipulation by Dr. Shaffer and aquatic therapy at the Hetrick Center. By January 1999, Plaintiff Joanne Morton had progressed with her therapy to the extent that Dr. Treichler removed her from aquatic therapy and began her on a land-based therapy program, which included instruction for a home exercise program. Opining that Joanne Morton had reached maximal therapeutic benefit from the Hetrick Center, Dr. Treichler released her from his care on February 8, 1999 with instructions to continue her home exercise program. Because of her continued symptomatology which included right-sided neck, shoulder, and elbow pain and numbness, pain, and weakness of the left arm, Joanne Morton consulted Dr. Morganstein on February 17, 1999. Examination at that time revealed limitations in cervical range of motion, palpatory tenderness with active trigger points along the lower right cervical paraspinals, localized tenderness over the medial aspect of the right elbow, weakness in right shoulder abduction, and decreased light touch sensation on the left corresponding to a C5 and C6 dermatomallevel. Dr. Morganstein recommended diagnostic testing including x-rays of the right shoulder and elbow and a MRI of the cervical spine. :,.r ~~ '" ~ ~ .J~" ~ Based upon the MRI of the cervical spine and a CAT scan of the right upper arm and MRI of the right shoulder, Dr. Morganstein diagnosed Joanne Morton with accident- related radiculitis of the left upper extremity, traumatic tendinitis of the right rotator cuff, a probable partial tear of the right supraspinatus tendon, and myositis ossificans along the right upper humerus. Treatment for these conditions consisted of physical therapy with Karen Red, P.T., 2 to 3 times per week over a period in excess of 2 months as well as a local injection to the right shoulder joint. Currently, Plaintiff Joanne Morton has difficulty with the right shoulder and holding it in the extended position, ie, doing her hair, using the arm in a repetitive fashion, ie, cleaning and the inability to forcefully use the extremity to lift any object above shoulder level. It is the medical opinion of Dr. Bruce Goodman that Plaintiff Joanne Morton is totally disabled in terms of meeting her occupational demands as she previously had performed due to her accident related injuries. With a reasonable degree of medical certainty, Dr. Goodman states that Plaintiff Joanne Morton's physical condition affording her restricted work capability is directly and causally related to the motor vehicle accident occurring on October 28, 1998. Both Dr. Morganstein and Dr. Goodman will testify and have opined that Mrs. Morton has sustained a significant loss of a bodily function which establishes a serious injury. Plaintiff Joanne Morton has incurred approximately $12,000.00 in medical expenses for treatment received regarding her injuries sustained as a result of the motor vehicle accident. However, it is noted that the $5,000.00 of Plaintiff Joanne Morton's medical expenses related to this accident have been previously paid under her first party .., ""~'^-'~i, ... . '1lIIIIIiIlii' '~~ benefits of her automobile insurance carner, Nationwide Insurance Company and the remainder of her medical expenses were paid by her health insurance company. Additionally, Plaintiff Joanne Morton was completely disabled from performing her job duties for a period of six (6) months following the date of the accident. For a two-week period beginning April 6, 1999, she was release to return to light-duty employment for Y2 days, which was increased to six (6) hours per day over the following two weeks, and to eight (8) hours per day during the subsequent two (2) weeks. Plaintiff Joanne Morton was finally released to return to a full ten (10) hours workday during her office visit with Dr. Morganstein on May 19,1999. Nonetheless, Dr. Morganstein advised that it would be in Joanne Morton's best interests to remain in the billing department since her prior duties involved more lifting and repetitive reaching activities that aggravate her symptoms. Plaintiff Joanne Morton's income loss is calculated as follows: 10/20/98 - 4/6/99 Off Work 4/6/99 - 4/30/99 Worked Half Days Only Loss of wages for period of total disability - 432 hours at $11.77 per hour and 536 hours at $12.18 per hour. Loss during half days - 61 hours at $12.18 per hour. In addition to every 80 hours worked, Joanne Morton received 30 hours night differential pay which total $38.30. This would amount to $494.00. Plaintiff Joanne Morton sustained a total wage loss of $12,850.00 prior to her retirement. However, it is noted that Defendant Ellen Winters' automobile insurance carner, State Farm Insurance Company made wage loss payments to Plaintiff Joanne Morton as a result of her income loss and that amount paid would offset the $12,850.00 total wage loss. ~,~ ....~ - , " Additionally, Joanne Morton has sustained a loss of earning capacity of $25,334.40 per year. Inasmuch as she had to retire at age 62 and desired to work until she was 70, Plaintiff Joanne Morton has a $202,675.20 gross loss of wages. There should be no offset because she has retired or collects Social Security. Panichelli v. Libertv Mutual Insurance Co., 543 Pa. 114,669 A.2d 930 (1996); Browne v. Nationwide Mutual Insurance Co., 449 Pa. Super. 661,674 A.2d 1127 (1996), allocatur denied, 545 Pa. 674, 682 A,2d 306 (1996). Even if one were to deduct these benefits, the income loss would be well over $100,000.00. As a result of this accident and the injuries related thereto, Plaintiff Joanne Morton's life has been greatly affected. By the afternoon of the accident, Joanne Morton was in such extreme pain that she called Dr. Shaffer to schedule an appointment for the following day. She was not only experiencing neck pain and limited movement of her neck, but pain in her shoulders and right arm as well as tingling and numbness of the left arm. These symptoms remained severe enough to completely disable her from work for a period of roughly six (6) months. Although Plaintiff Joanne Morton's symptoms have improved, she continues to suffer from occasional, but regular, flare-ups. During these periods, Joanne Morton's quality of life and activities of daily living are greatly affected. The pain hinders both her job performance as well as her activities of daily living. Understandably, these episodes are also emotionally traumatic for Joanne Morton, as she becomes frustrated at the limitations her injuries impose upon her. III. THE ISSUES OF LIABILITY AND DAMAGES - '. ~ ~ ~~ ~ " '" ,; '~ ''"--- i ;__ 'e," ~~i It is anticipated by Plaintiff Joanne Morton that Defendant Ellen Winters will raise the issue on whether Plaintiff Joanne Morton sustained a "serious" injury as defined under the Pennsylvania Motor Vehicle Act. Plaintiff will be able to meet her burden that she will be able to establish a serious injury. IV. A SUMMARY OF ISSUES REGARDING EVIDENTIARY MATTERS None V. LIST OF WITNESSES Plaintiff may call: I. Maynard Bertolet 2. Richard O'Tolle 3. Officer Cranga 4. Janice Berkheiser 5. Steven E. Morganstein, D.O. (via video deposition) 6. Bruce Goodman, M.D. (via live testimony) 7. Plaintiffreserves the right to use any individual previously identified and/or provided during the course of discovery either by Plaintiff or Defendant as a witness at trial. . VI. EXHIBITS I. Photograph of Plaintiff Joanne Morton horse riding 2. Medical records, reports and bills of Joanne Morton "=~~ b ~ " ~." ~ 3. Plaintiff reserves the right to use any document previously identified and/or provided during the course of discovery either by Plaintiff or Defendant as an exhibit at trial. VII. STIPULATIONS Plaintiff requests that the parties agree to the authenticity of their respective exhibits. VIII. STATUS OF SETTLEMENT NEGOTIATIONS On January 27, 2000, Plaintiff Joanne Morton proposed $90,000.00 to settle this case. Defendant Ellen Winters has not responded with a counter offer to date. Respectfully submitted, TUCKER ARENSBERG & SWARTZ By: Lee . Swartz, Esquire Attorney LD. No. 07258 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 ATTORNEYS FOR PLAINTIFF 57695.1 i~ . . " r,' < . '" I~ v. #3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PEN,NSYLVANIA NO. 00-6133 CIVIL TERM JOANNE L. MORTON, Plaintiff ELLEN JANE WINTERS, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: PRETRIAL CONFERENCE At a pretrial conference held Wednesday, June 18, 2003, before the Honorable Edward E. Guido, Judge, present for the Plaintiff was Lee C. Swartz, Esquire, and present for the Defendant was Richard H. Wix, Esquire. This is a vehicular accident in which the Defendant admits negligence but questions both causation and the seriousness of Plaintiff's injuries to qualify for compensation in light of the limited tort policy applicable. The parties estimate that this case will take two days to try. Plaintiff's counsel has a conflict on Thursday and Friday and would prefer if the case begins on Monday. There are no complicated legal issues. The parties are willing to stipulate to the authenticity of medical records but reserve other grounds for objection to their admissibility. Plaintiff has demanded $90,000.00. As yet, Defendant has made no offer. Settlement does not appear likely. By Edward E. Guido, J. Lee C. Swartz, Esquire Attorney for Plaintiff Court Administrator Richard H. Wix, Esquire Attorney for Defendant srs i"'" '1.", .. ,~ '~~?H - W1l :ill ..'j..........=;~ . ~' ~ -'_~~)~~. ':,J!'iUU ~~ ,~ ~.~ >.,,'Y,T, y~, ~--'~, ", ~-- ',,' """ i.tH ''':'i'''~ ~, ' 0 C) () C GJ Z' Tl '"T) r::',- c_ --"J IT; [:C': ~ ~jJ 2: , ,..~~ .. I -, .0:::: ,--- -, ,;'1 en " co - :'::.J , Q ~ " ~'C -H ....-.:, :.::r::: (5 - ~.. :,--0 rn " r::::;; ~m_ . , . liIIIIIIiIIIl' ~'~"r!lll.~ft':" JOANNE L. MORTON, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA NO. 00-6133 CIVIL ACTION - LAW ELLEN JANE WINTERS, Defendant JURY TRIAL DEMANDED PLAINTIFF'S PRETRIAL MEMORANDUM I. FACTS REGARDING LIABILITY On October 20, 1998, at approximately 12:09 p.m., Plaintiff Joanne Morton was operating a 1992 Oldsmobile 98 Regency in an easterly direction along Simpson Street. Defendant Ellen Winters was operating a 1991 Dodge Caravan in a northerly direction along Market Street. At the time of the accident, Plaintiff Joanne Morton was travelling in an easterly direction along Simpson Street in Mechanicsburg, Pennsylvania. As Plaintiff Joanne Morton approached the intersection of Simpson and Markets Streets, she observed a green traffic signal and proceeded to enter the intersection when she was suddenly and unexpectedly struck by Defendant Ellen Winters' vehicle entering the intersection from Plaintiff Joanne Morton's right-hand side. Officer Michael Cranga of the Mechanicsburg Police Department arrived on the accident scene. It should be noted that Defendant Ellen Winters only offered the investigating officer the excuse that she failed to see the red light until the last minute. The circumstances surrounding the accident clearly establish that Defendant Ellen Winters was negligent, careless, and reckless in the operation of her vehicles, and was solely responsible for the accident. The automobile accident was in no manner due to the ~ - iili ~.~, ~. ,-. ~--'- ~"' 'fI!l&.:c act or failure to act by Plaintiff Joanne Morton. Plaintiff anticipates that liability will be admitted by Defendant. II. FACTS REGARDING DAMAGES At the time of this accident, Plaintiff Joanne Morton was the restrained driver of her vehicle who, unfortunately observed Defendant Elle Winters' vehicle entering the intersection. In preparation for the anticipated collision, Plaintiff Joanne Morton attempted to brace herself by placing her right arm in front of her face. As a result, her right elbow struck the steering wheel while her left arm and side struck the door. Following the investigation by Officer Cranga, Plaintiff Joanne Morton went to work but noted that within several hours her pain had become more severe, By the following day, Joanne Morton's pain had become quite severe so she consulted Dr. William K. Shaffer who had been treating her for neck injuries sustained in a rear-end collision on July 17, 1998. The injuries from the July 1998 incident had resolved to the point that Ms. Morton was able to return to Y:. days of limited work duties in mid- September and back to full activity prior to the October 20, 1998 accident; however, subsequent to the October 20, 1998 accident, Ms. Morton was once again disabled from employment. Ms. Morton consulted Dr. Shaffer five (5) times during the month of October, consistently demonstrating objective findings which included: limited cervical range of motion; absent triceps reflex; absent left biceps and sluggish right biceps reflexes; reduced grip strength with arms extended; and reduced sensitivity in the left arm along all three (3) nerve distributions. a-~~~"~ During the following four (4) months, Ms. Morton received treatment from Dr. Shaffer on a minimum of38 occasions. Commencing on November 18, 1998 she also received treatment at the Hetrick Center under the direction of Dr. Michael E. Treichler where she was treated on at least 12 occasions. During Ms. Morton's initial evaluation with Dr. Treichler, he diagnosed her as suffering a cervical acceleration/deceleration injury; abnormal neurological disc kinesis and disc diakinesis; and cervical-thoracic joint dysfunction. Throughout this period of time, Ms. Morton's treatment alternated between chiropractic manipulation by Dr. Shaffer and aquatic therapy at the Hetrick Center. By January 1999, Plaintiff Joanne Morton had progressed with her therapy to the extent that Dr. Treichler removed her from aquatic therapy and began her on a land-based therapy program, which included instruction for a home exercise program. Opining that Joanne Morton had reached maximal therapeutic benefit from the Hetrick Center, Dr. Treichler released her from his care on February 8, 1999 with instructions to continue her home exercise program. Because of her continued symptomatology which included right-sided neck, shoulder, and elbow pain and numbness, pain, and weakness of the left arm, Joanne Morton consulted Dr. Morganstein on February 17, 1999. Examination at that time revealed limitations in cervical range of motion, palpatory tenderness with active trigger points along the lower right cervical paraspinals, localized tenderness over the medial aspect of the right elbow, weakness in right shoulder abduction, and decreased light touch sensation on the left corresponding to a CS and C6 dermatomallevel. Dr. Morganstein recommended diagnostic testing including x-rays of the right shoulder and elbow and a MRI of the cervical spine. ........... ,,_. 'II;: ~. .~~- - o Based upon the MRI of the cervical spine and a CAT scan of the right upper arm and MRI of the right shoulder, Dr. Morganstein diagnosed Joanne Morton with accident- related radiculitis of the left upper extremity, traumatic tendinitis of the right rotator cuff, a probable partial tear of the right supraspinatus tendon, and myositis ossificans along the right upper humerus. Treatment for these conditions consisted of physical therapy with Karen Red, P.T., 2 to 3 times per week over a period in excess of2 months as well as a local injection to the right shoulder joint. Currently, Plaintiff Joanne Morton has difficulty with the right shoulder and holding it in the extended position, ie, doing her hair, using the arm in a repetitive fashion, ie, cleaning and the inability to forcefully use the extremity to lift any object above shoulder level. It is the medical opinion of Dr. Bruce Goodman that Plaintiff Joanne Morton is totally disabled in terms of meeting her occupational demands as she previously had performed due to her accident related injuries. With a reasonable degree of medical certainty, Dr. Goodman states that Plaintiff Joanne Morton's physical condition affording her restricted work capability is directly and causally related to the motor vehicle accident occurring on October 28, 1998. Both Dr. Morganstein and Dr. Goodman will testify and have opined that Mrs. Morton has sustained a significant loss of a bodily function which establishes a serious injury. Plaintiff Joanne Morton has incurred approximately $12,000.00 in medical expenses for treatment received regarding her injuries sustained as a result of the motor vehicle accident. However, it is noted that the $5,000.00 of Plaintiff Joanne Morton's medical expenses related to this accident have been previously paid under her first party ........Iilj ~'~1:l~' " , '~lr<<~~i@." benefits of her automobile insurance carrier, Nationwide Insurance Company and the remainder of her medical expenses were paid by her health insurance company. Additionally, Plaintiff Joanne Morton was completely disabled from performing her job duties for a period of six (6) months following the date of the accident. For a two-week period beginning April 6, 1999, she was release to return to light-duty employment for Y, days, which was increased to six (6) hours per day over the following two weeks, and to eight (8) hours per day during the subsequent two (2) weeks. Plaintiff Joanne Morton was finally released to return to a full ten (10) hours workday during her office visit with Dr. Morganstein on May 19, 1999. Nonetheless, Dr. Morganstein advised that it would be in Joanne Morton's best interests to remain in the billing department since her prior duties involved more lifting and repetitive reaching activities that aggravate her symptoms. Plaintiff Joanne Morton's income loss is calculated as follows: 10/20/98 - 4/6/99 4/6/99 - 4/30/99 Off Work Worked Half Days Only Loss of wages for period of total disability - 432 hours at $11.77 per hour and 536 hours at $12.18 per hour. Loss during half days - 61 hours at $12.18 per hour. In addition to every 80 hours worked, Joanne Morton received 30 hours night differential pay which total $38.30. This would amount to $494.00. Plaintiff Joanne Morton sustained a total wage loss of$12,850.00 prior to her retirement. However, it is noted that Defendant Ellen Winters' automobile insurance carrier, State Farm Insurance Company made wage loss payments to Plaintiff Joanne Morton as a result of her income loss and that amount paid would offset the $12,850.00 total wage loss. ..'" ".... -~ "'~ ,",m': Additionally, Joanne Morton has sustained a loss of earning capacity of $25,334.40 per year. Inasmuch as she had to retire at age 62 and desired to work until she was 70, Plaintiff Joanne Morton has a $202,675.20 gross loss of wages. There should be no offset because she has retired or collects Social Security. Panichelli v. Libertv Mutual Insurance Co., 543 Pa. 114,669 A.2d 930 (1996); Browne v. Nationwide Mutual Insurance Co., 449 Pa. Super. 661, 674 A.2d 1127 (1996), allocatur denied, 545 Pa. 674, 682 A.2d 306 (1996). Even if one were to deduct these benefits, the income loss would be well over $100,000.00. As a result of this accident and the injuries related thereto, Plaintiff Joanne Morton's life has been greatly affected. By the afternoon of the accident, Joanne Morton was in such extreme pain that she called Dr. Shaffer to schedule an appointment for the following day. She was not only experiencing neck pain and limited movement of her neck, but pain in her shoulders and right arm as well as tingling and numbness of the left arm. These symptoms'remained severe enough to completely disable her from work for a period of roughly six (6) months. Although Plaintiff Joanne Morton's symptoms have improved, she continues to suffer from occasional, but regular, flare-ups. During these periods, Joanne Morton's quality of life and activities of daily living are greatly affected. The pain hinders both her job performance as well as her activities of daily living. Understandably, these episodes are also emotionally traumatic for Joanne Morton, as she becomes frustrated at the limitations her injuries impose upon her. III. THE ISSUES OF LIABILITY AND DAMAGES <-.~.",.~~ . ,~ ". It is anticipated by Plaintiff Joanne Morton that Defendant Ellen Winters will raise the issue on whether Plaintiff Joanne Morton sustained a "serious" injury as defined under the Pennsylvania Motor Vehicle Act. Plaintiff will be able to meet her burden that she will be able to establish a serious injury. IV. A SUMMARY OF ISSUES REGARDING EVIDENTIARY MATTERS None V. LIST OF WITNESSES Plaintiff may call: 1. Maynard Bertolet 2. Richard O'Tolle 3. Officer Cranga 4. Janice Berkheiser 5. Steven E. Morganstein, D.O. (via video deposition) 6. Bruce Goodman, M.D. (via live testimony) 7. Plaintiff reserves the right to use any individual previously identified and/or provided during the course of discovery either by Plaintiff or Defendant as a witness at trial. VI. EXIllBITS 1. Photograph of Plaintiff Joanne Morton horse riding 2. Medical records, reports and bills of Joanne Morton .~, "h ~.1Pi"; ,~ ~ lil-.w.~j ~ ..~ ~ ~"' ~ -"- """".~~;;; 3. Plaintiff reserves the right to use any document previously identified and/or provided during the course of discovery either by Plaintiff or Defendant as an exhibit at trial. VII. STIPULATIONS Plaintiff requests that the parties agree to the authenticity of their respective exhibits. VIII. STATUS OF SETTLEMENT NEGOTIATIONS On January 27, 2000, Plaintiff Joanne Morton proposed $90,000.00 to settle this case. Defendant Ellen Winters has not responded with a counter offer to date. Respectfully submitted, TUCKER ARENSBERG & SWARTZ By: Lee . Swartz, Esquire Attorney LD. No. 07258 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 ATTORNEYS FOR PLAINTIFF 57695,1 --~". ~. '1IiiIiiIt'" .iliI.i!I~\i&.' . . CERTIFICATE OF SERVICE AND NOW, this ;) tf1JdaY of March, 2003, CATHLEEN A. KOHR, for the firm of TUCKER ARENSBERG & SWARTZ, attorneys for Plaintiff, hereby certify that I have this day served the within document by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Richard H. Wix, Esquire WIX, WENGER & WEIDNER 508 North Second Street P.O. Box 845 Harrisburg, P A 17108-0845 ~A.JI~ CATHLEEN A. KOHR S7914.1 r'~' ~ . . _.~, ~~ ""'ti;lm': . \,4Cv JOANNE L. MORTON, Plaintiff " IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-6133 CIVIL ACTION - LAW v. ELLEN JANE WINTERS, Defendant JURY TRIAL DEMANDED PLAINTIFF'S POINTS FOR CHARGE 1 . The assured clear distance rule requires that a driver keep her vehicle under such control that she can always stop within the distance she can clearly see. 75 Pa.C.S.A. SS3310, 3361. This is a mandatory section of the Pennsylvania Motor K Vehicle Code. A violation of the Vehicle Code establishes "negligence per se" which is, in effect, negligence as a matter of law. If you find that Ellen Jane Winters failed to stop within the assured clear distance ahead, you must find that she was negligent. Jinks v. Currie, 324 Pa. 532, 188 A. 356 (1936); Wermelinq v. Shattuck, 336 Pa. 23, 76 A.2d 406 (1950). 2. The Plaintiff is entitled to be compensated for the amount of earnings she ~ has lost up to the time of trial as a result of her injuries. Pennsylvania Suggested Standard Jury Instructions (Civil) 6.01 C. 3. Where a plaintiff proves that she has been impaired in her ability to perform the duties connected with her employment, the jury can award her damages for C. future loss of earnings power, even though she has not presented evidence translating that loss into a precise monetary figure. Pratt v. Stein, 298 Pa. Super. 92,444 A.2d 674 (1982); Christvv. Darr, 78 Pa. Commw. 354, 467A.2d 1362 (1983); Garvv. '" ~.~ -- . '" ., '~ - '"-"i&', Mankamyer, 485 Pa. 525, 403 A.2d 87 (1979); Feldman, Pennsylvania Trial Guide, Section 34.27. , ,~ ' . 4. If you find that the Plaintiff, Joanne L. Morton, has sustained a loss of V ~.:>\ earnings, you should subtract from the dollar amount which you have determined the ~ . -;;;f'b sum of $5,000 which is the responsibility of Joanne Morton's insurance company. Troutman v. Tabb, 285 Pa. Super. 353, 427 A.2d 673 (1981); Peak v. Home Association of Enola Leaion No. 751, 287 Pa. Super. 400, 430 A.2d 665 (1981); Pennsylvania Suggested Standard Jury Instructions (Civil) 6.02. 5. A plaintiff is entitled to be fairly and adequately compensated for such physical pain, mental anguish, discomfort, inconvenience and distress as you find he or 4 she has endured, from the time of the accident until today. Pennsylvania Suggested Standard Jury Instructions (Civil) 6.01 E. 6. A plaintiff is entitled to be fairly and adequately compensated for such physical pain, mental anguish, discomfort, inconvenience and distress as you believe he t4 or she will endure in the future as a result of his or her injuries. Pennsylvania Suggested Standard Jury Instructions (Civil) 6.01 F. 7. A plaintiff is entitled to be fairly and adequately compensated for such ~ embarrassment and humiliation as you believe he or she has endured and will continue to endure in the future as a result of his or her injuries. Pennsylvania Suggested Standard Jury Instructions (Civil) 6.01 G. -A 8. A plaintiff is entitled to be fairly and adequately compensated for past, present and future loss of his or her ability to enjoy any of the pleasures of life as a 2 ,'- "M v c..- c - , :o.;~ 'l ~, .~~ ~.~""~:, result of his or her injuries. Pennsylvania Suggested Standard Jury Instructions (Civil) 6.011. c.. 9. A negligent party is subject to liability for harm to another, although a physical condition of that person not known to the actor makes the injury greater than that which the actor, as a reasonable person, should have foreseen as a probable result of his or her conduct. Restatement (Second) of Torts 9461 ; Offensend v. Atlantic Refininq Co., 322 Pa. 399,185 A. 745 (1936); Boushell v. J. H. Beers, Inc., 215 Pa. Super. 439, 258 A.2d 682 (1969); Cinqota v. Milliken, 286 Pa. Super. 117, 428 A.2d 600 (1981). 10. The defendant in this case is liable for the injuries to Joanne Morton, whether the injuries were originated by the collision or constituted an aggravation of a preexisting condition. Cinqota v. Milliken, 286 Pa. Super. 117,428 A.2d 600 (1981); Walsh v. Snyder, 295 Pa. Super. 94, 441 A.2d 365 (1981). 11. A wrongdoer is liable for all harm caused by his or her negligent act, though increased by an unknown physical condition which could not have been discovered or anticipated prior to the wrongdoing. Offensend v. Atlantic Refininq Co., 322 Pa. 394,185 A. 745 (1936). 12. 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. Based upon the evidence presented at this trial, the only issues for you to decide in accordance with the law as I will give it to you, are: First: Was the Defendant negligent? 3 , . '". '~': Second: Was the Defendant's conduct a factual cause in bringing about harm to the Plaintiff? Conduct is a factual cause of harm when the harm would not occurred absent the conduct. An act is a factual cause of an outcome if, in the absence of the act, the outcome would not have occurred. In order for the conduct of a party to be a factual cause, the conduct must not be fanciful or imaginary, but must have played a real role in causing the injury. Therefore, in determining factual cause, you mustdecide whether the negligent conduct of the Defendant was more than an insignificant factor in bringing about any harm to the Plaintiff. Under Pennsylvania law, conduct can be found to be a contributing factor if the action or omission alleged to have caused the harm was an actual, real factor, not a negligible, imaginary, or fanciful factor, or a factor having no connection or only an insignificant connection with the injury. However, factual cause does not mean it is the only, primary, or even the most important factor in causing the injury. A cause may be found to be a factual cause as long as it contributes to the injury in a way that is not minimal or insignificant. To be a contributing factor, the Defendant's conduct need not be the only factor. The fact that some other cause concurs with the negligence ofthe Defendant in producing an injury does not relieve the Defendant from liability as long as her own negligence is a factual cause of the injury. The negligence of a defendant may be found to be a factual cause of a Plaintiff's harm even though it was relatively minor as compared to the negligence of the plaintiff. In effect, the test for factual causation has been met when the conduct in question has 4 -l -"~~"""~ ~ ." . ,to "' "~. ~ such an effect in producing the harm as to lead reasonable persons to regard it as one of the contributing causes that is neither insignificant nor inconsequential considering all the circumstances. Pennsylvania Suggested Standard Jury Instructions (Civil) 3.00. 13. Under Pennsylvania law, the Plaintiff may recover non-economic loss damages in this case if the Plaintiff can prove that: (1) the defendant was negligent in one or more ways as I described to you in my instructions; (2) the Defendant's negligence was a factual cause in bringing about injury to the Plaintiff; (3) the Plaintiff's injury resulted in non-economic damages; and (4) the Plaintiff suffered serious impairment of a body function. To decide this last and additional element of proof, you must decide, based upon the evidence: (1) whether the injuries sustained by the plaintiff in the accident impaired one or more body functions; and (2) whether that impairment of a body function was serious. In determining whether the impairment of a body function Was serious, you should consider such factors as the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious. The terms "serious," "impairment," and "body function" have no special or technical meaning in the law and should be considered by you in the ordinary sense of 5 ';~,..- . . - "0 :tii.jjjj~, their common usage.. Pennsylvania Suggested Standard Jury Instructions (Civil) 6.020. 14. Under Pennsylvania law the Plaintiff may recover economic damages V such as medical expenses and loss of income, irrespective of whether she sustained a serious injury, so long as you find that the Defendant's conduct was negligent and a factual cause of her losses. TUCKER ARENSBERG, P.C. By: Lee C. Swartz Pa.BarI.D.#072 111 N. Front St., P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: 717/234-4121 Facsimile: 717/232-6802 ATTORNEYS FOR PLAINTIFF 6 '"' r ...~ ."'"'- ...........: Sfll;!j 6.21 (Appendix) All race~ White AHathar .... '''''' ."'" BOthgellB8 Mo" Female Both9ax88 "me ,...... Elothsexea Male Female BOlh_s ".. 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Trindle Road Mechanicsburg, PA 17055 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 00 - ~/J3 Plaintiff v. e, U It I'l/L~ ELLEN JANE WINTERS 811 Anthony Drive Mechanicsburg, PA 17055 Defendant JURY TRIAL DEMANDED NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take 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 ag,ainst 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. THOMt,O C. CIIEFrlNC, COURT ADMltJIOTRA TOR ~. Co . ~~IL. Ohe 06l:lFll9sl:lsQ ~€l/,laFe, 4th rlMI f:kS'OCJa:1-lot0 C~:lII1l:iIl:l, F' A 17'613 J... .1 .1'1 TelefJl,ulle. (717) 145-6288 ..z ,:o~ f'iOE... Ca.tz.L:.l'~l /)/+ 17c/2l 717- ~lI9-],It..I.. NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demand as expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte enforma escrita sus defensas 0 sus objeciones alas demand as en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus pro- piedades 0 otros derechos importantes para usted. - H ."'._. "d' "~""-'" " ~ .~" .-;, '~:"'''' ,'- ,., <.' '.' ; , ~.,,,,,"<>i~,:'::;l":;":";k".. .....,~ , ... 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 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DON DE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. THOMAS E. CHEFFINS, COURT ADMINISTRATOR One Courthouse Square, 4th Floor Carlisle, PA 17013 Telephone: (717) 240-6200 TUCKER ARENSBERG & SWARTZ BY:~ &rF-~ L C. Swartz I.D. No. 07258 111 N. Front St., P.O. Box 889 Harrisburg, PA 17108 ATTORNEYS FOR PLAINTIFF -- " ~, '''",' ;, ",,,.,';', ""'"^,," - y , , "" JOANNE L. MORTON 921 W. Trindle Road Mechanicsburg, PA 17055 Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LNN NO. b()- (, j 3 ~ c.:x..e,. .u...-- v. ELLEN JANE WINTERS 811 Anthony Drive Mechanicsburg, PA 17055 Defendant JURY TRIAL DEMANDED COMPLAINT 1. The Plaintiff, Joanne L. Morton, is an adult individual who resides at 921 West Trindle Road, Mechanicsburg, Pennsylvania 17055 in the county of Cumberland. 2. The Defendant, Ellen Jane Winters, is an adult individual who resides at 811 Anthony Drive, Mechanicsburg, Pennsylvania 17055 in the county of Cumberland. 3. The facts and occurrences hereinafter related took place on or about October 20, 1998 at or about 12:09 PM in the Borough of Mechanicsburg, Pennsylvania at the intersection of South Market Street and Simpson Streets. 4. At the aforesaid time and place, the Plaintiff, Joanne L. Morton, was operating a 1992 Oldsmobile 98 Regency in an easterly direction along Simpson Street in Mechanicsburg, Pennsylvania. 5. As the Plaintiff approached the intersection of Simpson and Market Streets, she entered the intersection on a green traffic signal when suddenly and unexpectantly she was struck by a 1991 Dodge Caravan operated by the Defendant which entered the intersection when the traffic signal was red for vehicles traveling in her direction. 6. The foregoing accident and all of the injuries and damages set forth hereinafter sustained by the Plaintiff, Joanne L. Morton, are the direct and proximate result of the negligent, - " .~ .. ,'."",^.' , . ^~,~'~'., ." ~ ,.,.' careless, wonton and reckless matter in which the Defendant, Ellen Jane Winters, operated her motor vehicle as follows: (a) failure to have her vehicle under such control as to be able to stop within the assured clear distance ahead; (b) failure to keep alert and maintain a proper watch for the presence of other motor vehicles on the highway; (c) (d) (e) (f) vehicle; (g) (h) failure to observe the Plaintiff's vehicle although it was visible to her; failure to yield the right-of-way to the Plaintiff's vehicle; failure to keep a proper watch for traffic on the street; failure to apply her brakes in sufficient time to avoid striking the Plaintiff's failure to keep proper and adequate control over her vehicle; and entering the intersection on a red light. 7. As a result of the aforesaid conduct engaged in by the Defendant, the Plaintiff has sustained a serious injury causing a serious impairment of a body function or functions which injuries include but are not limited to the following: (a) trauma to and sprain of her neck, right shoulder and right elbow causing loss of strength in the right shoulder and numbness in the area of the shoulder and arm; (b) injury to her right rotator cuff including a partial tear of the supraspinatus tendon; (c) injury to her left arm, resulting in radiculitis of the left arm; (d) injury to her cervical spine; (e) severe headaches, pain, suffering and emotional distress; -2- .... ';",,'.., '~,~ ~ -0" '~'~'';';,'';'" i'-'UiJj , , . 8. The injuries sustained by the Plaintiff resulting from the Defendants conduct are permanent and progressive. 9. The conduct of the Defendant aforesaid was a substantial factor in causing the Plaintiff's injuries. 10. By reason of the aforesaid injuries sustained by the Plaintiff, Joanne L. Morton, she has been forced to incur liability for medical treatment and medications and similar miscellaneous expenses in an effort to restore herself to health and a claim is made therefore. 11. Because of the nature of her injuries, the Plaintiff, Joanne L. Morton, has been advised and therefore avers that she may be forced to incur similar expenses in the future and a claim is made therefore. 12. As a result of the aforementioned injuries, the Plaintiff, Joanne L. Morton, has undergone and in the future will undergo great physical and mental suffering, great inconvenience in carrying out her daily activities, loss of life's pleasures and enjoyment and a claim is made therefore. 13. As a result of the aforesaid injuries, the Plaintiff has been and in the future will be subject to great humiliation and embarrassment, and a claim is made therefore. 14. As a result of the aforesaid injuries, the Plaintiff has sustained loss of income, loss of opportunity and a permanent diminution of her earning power and capacity, and a claim is made therefore. 15. As a result of the aforesaid injuries, the Plaintiff, Joanne L. Morton, has sustained uncompensated work loss, and a claim is made therefore. 16. The Plaintiff, Joanne L. Morton, continues to be plagued by persistent pain and limitation and, therefore, avers that her injuries may be of a permanent nature, causing residual problems for the remainder of her lifetime and claim is made therefore. -3- -' - '. "~' < -- .', . ,,,,' , ',"__.';':""",""-,,.C,..,, "_"",, , " WHEREFORE, the Plaintiff, Joanne L. Morton, demands judgment against the Defendant, Ellen Jane Winters, in an amount in excess of $25,000.00, exclusive of interest and costs in excess of any jurisdictional amount requiring compulsory arbitration. TUCKER ARENSBERG & SWARTZ BY:~ cgk~ Lee . Swartz I.D. No. 07258 111 N. Front SI., P.O. Box 889 Harrisburg, PA 17108 ATTORNEYS FOR PLAINTIFF -4- ~ . .--~ ~" ',.. " ~~'". . '- ' . - VERIFICATION I, Joanne L. Morton, hereby certify that I am a Plaintiff in this action and that the statements contained in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements made to this verification are subject to the penalties of 18 Pa. C.S.A. 94904, relating to unsworn falsification to authorities. DATE: / ~,2000 ~;CJJ1~ J~nne L. Morton HBG:31643.1 ""'" ,">'.."..j.!-...c!.' , " .. '.... ,-'..; .. . . ".,....,.....cd;..,,/;'..;';';;;';,-;t;'liiiIiIiiJli ,<~',:,~~~,",""}:, ,','CC_",' ---;,.:'; ..,,-'-- ,..,--, "".',, ',-y.. . .. .. '0'."'..,..,..,,'... ......__' ...."w.__. ~ ~ ."l '0 f::: & C\ <N I ~ e F ~ (C)(.) ~~ .~ ,~,~ ,.-- r hC) o ~ ~ () f "~".'_ ^ ~ 0 ~~ (~ C :;:.-' ~ ~~, en' -< ';; --- ,', ?;(=~'; yc.: '7 :::::.i -< c-:-:' CJ U") ,"11 ''''0 I ~-j ~\} Go,) ;,) (::> ~l ~ ..', ' f I -- :!'f 0) .. . =,___,_ , .~ '~4__~~' " -,. ,"~"'" ,. - Il6IJ . . JOANNE L. MORTON, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 00-6133 CIVIL TERM ELLEN JANE WINTERS, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. It is admitted that Defendant's vehicle entered the intersection when the traffic signal was red and that contact was made between her vehicle and the Defendant's vehicle. 6. It is admitted that Defendant entered the intersection on the red light and was therefore negligent, however, it is denied that Plaintiff's alleged injuries are as the result of this accident, and proof to the contrary is demanded at the time of tdal. 7. Denied. 8. Denied. 9. Denied. 10. Denied. 11. Denied. 12. Denied. ,.,. ,," , '--:io,'c;"L' . '~rl " ,,"~ '0 ~,' ~ 12. Denied. 13. Denied. 14. Denied. 15. Denied. 16. Denied. NEW MATTER 17. Plaintiff's claims are barred in whole or in part by the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law. 18. Plaintiff's claims are denied in whole or in part by the provisions of the Pennsylvania Comparative Negligence Law. 19. Plaintiff's injuries pre-existed the accident. WHEREFORE, Defendant demands judgment against the Plaintiff together with costs of this action. Respectfully submitted, WIX, WENGER & WEIDNER By~f{-)J .--' Richard H. Wix, I.D. No. 07274 4705 Duke street Harrisburg, PA 17109-3099 (717) 652-8455 2 J M ,A', .' Jr. ,', ,.;. 'Cv "'~~' ~'..::'"", , ,,:,:"-' . 'iIlllI, . . CERTIFICATE OF SERVICE AND NOW, this 11th day of October, 2000, I, Richard H. wix, Esquire, of the firm of Wix, Wenger & Weidner, hereby certify that I have served a copy of Defendant's Answer with New Matter on this date, by depositing a copy of the same in the united states mail, postage prepaid, in Harrisburg, Pennsylvania addressed as follows: Lee C. Swartz, Esquire TUCKER ARENSBERG & SWARTZ 111 North Front Street P. O. Box 889 Harrisburg, PA 17108 By: WIX, WENGER & WEIDNER ~~ JJ~- Richard H. wix LD. No. 07274 4705 Duke Street Harrisburg, PA 17109-3099 (717) 652-8455 ,.J ~, . "" -- '0 ."'" . .., JOANNE L. MORTON, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. ELLEN JANE WINTERS : NO. 2000-6133 CIVIL TERM ORDER OF COURT AND NOW, this 8TH day of APRIL, 2003, at the request of Defendant's counsel, and without objection from Plaintiff's counsel, this matter is continued to the July Term. The Court Administrator is directed to place the matter on the July Trial List. /Lee C. Swartz, Esquire 111 North Front Street P.O. Box 889 Harrisburg, Pa. 17108-0889 / tf'llichard H. Wix, Esquire 508 North Second Street P.O. Box 845 Harrisburg, Pa. 17108-0845 Court Administrator Prothonotary :sld ; , I, ~~---4"~-r' .~ o"""""l, .''0. "', --'I ';', , ,j~' ~r:iCr . :,,'\I:'-~T \r, ."~<t.HY Ii, -f);'J-'f i J, ( ~ i 3: 09 ".. 3 ('Ii u" 'Jl;I~!.:,-' ,--: ~, ,:'" ,....... PI5iYsYC{;r~~iAUNIY ,~~~~LIf~J;li~'-~L'ii'!i1ijfWll'~~~1:rJ~,~;I.--. ,....'"1. ~, 'ool~."""~"'" ~""~-""~"".~ -"'. L""",' "Ii~i PRAEc1PE FOR LISTING CASE FOR TRIAL, (Must be typewritten and sul:xnitted in duplicate) TO THE PROTHOlUI'ARY OF CUMBERLAND COUNTY Please list the following case: (Check one) x for JURY trial at the next term of civil court. for trial without a, jury. , ' ---'--------~-----------------------------' CAPTl:ON OF CASE "(entire caption rtnlSt'~ stated in full) (check one) (X Civil Action - Law JOANNE L. MORTON Appeal from Arbitration (other) ( Plaintiff) vs. 7k-- ( Defendant) The triaL list will be called on and -4A.i.L ',::l,.y.,~ Trials cOrrmence on iJpn. ~ l :Jp; J~ Pretrials will be held onf}-etti( 1 ~l! (Briefs are due 5 days befor pret i ..j (The party listing this case for trial shall provide forthWith a copy of the praecipe to' all counsel, -pursuant to local Rule 214..1.) ELLEN JANE WINTERS vs. No. Civil 00-6133 19 Indicate the attorney who will try case for the party who files this praecipe: LeeC. Swartz, III N. Front st., Harrisburg, PA 17101 Indicate trial counsel for other parties if known: Richard H. Wix, 4705 Duke st., Harrisburg,PA17109 This case is ~dy for trial. Signed: ~Qyf{rol(t' Print Narre: Lee. C. Swartz Date: sLIl 0 "3 Attorney for: Plaintiff :' o,:';".~, . '<""llil~~!t,'!i&1m~l!!oc!!!!i"'!~IW;:~;~~;"'I""'''''f:;.",''',':,,1-~~~i,!d";:",,..,.,.A"'''--';l#.i!J!ii;:~<ktf ~"r'Jlit1. "''':'.'~''"'~ ~ ""'","" "~="~h '"~ . _. O~,' " ",7. r1, _ _,.,,- " ",-<,..'",, p,-"",f"d'_", ",,, ~,~ "." ~~ --. ,. .' ~ ,. I .. " I I (") a 0 c c..; ? " -r'cfi 2 ::~j fnrf! :-i..'zlO 2:r.I ;;0 "i1:O 65S'~' I 3~ -<:;:' V\ r::r-.; .,C) 5>- :2'2 r~~l ........."1 .....:,0. ~/..::., I~~ >r-"':'-;: ~ <- -{ ~._" t:"' > -< c:::> :v -< t- if t;; p[ . a I t. Jtr C\-~ q,.- 1 ---, .~, '"," 0', % --..",...' , "", ;",;; '.;;,~,~""~ ". ;-0, - ,- ~ -Co; ,>,.;;~,,-. ,'<,;C.;;",::~<,; . t:.L" . .. JOANNE L. MORTON, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-6133 CIVIL TERM ELLEN JANE WINTERS, Defendant : CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: please attach the enclosed Verification to the Answer with New Matter filed on behalf of the Defendant on October 12, 2000. Respectfully submitted, WIX, WENGER & WEIDNER ~NJJL~ Richard H. Wix, I.D. No. 07274 4705 Duke Street Harrisburg, PA 17109-3099 (717) 652-8455 . '..'~, ~'- ," ,'>--,o,'--i ..'_"..,''._"'_."'''''<<~J,,',_~''',oo..,:.,"'..;' "~",..~, Iii{ - VERIFICATION I, Ellen Jane Winters, have read the foregoing Defendant's Answer with New Matter to Plaintiff's Complaint which has been drafted by my counsel. The factual statements and/or denials contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this verification. This verification is made only as to the factual averments contained therein and not to legal conclusions and averments authorized by counsel in his capacity as attorney for the party or parties hereto. This verification is made subject to the penalties of 18 PA. C.S. section 4904, relating to unsworn falsification to authorities which provides that, if I knowingly made false averments, I may be subject to criminal penalties. Date: ~J&/ ~a- ~~ Ellen Jaffe winters - .'-*'"'~- " ~ - -''"- ,-, -,~-" ',', SHERIFF'S RETURN - REGULAR w I' t; \ ~ CASE NO: 2000-06133 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MORTON JOANNE L VS WINTERS ELLEN JANE DAVID MCKINNEY , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon WINTERS ELLEN JANE the DEFENDANT , at 0018:12 HOURS, on the 11th day of September, 2000 at 811 ANTHONY DRIVE MECHANICSBURG, PA 17055 by handing to ELLEN JANE WINTERS a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 8.68 .00 10.00 .00 36.68 So ;s;g~~!~t R. Thomas Kline Sworn and Subscribed to before 09/12/2000 TUCKER, ARENS BERG & SWARTZ R @7!,.h,"'7 Deputy Sheriff By: me this / O'tt: day of ~'0...L. .. ~ A.D. ~Q~,~ rothonotary . '~-._'< ",'. -- ;,'l~ ,..- .~"'--~"-"~,~,__ '"~~~_c 'r'. ", -""."..;"'"~ "'.'.'" "~i JOANNE L. MORTON, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY I PENNSYLVANIA v. NO. 00-6133 CIVIL TERM ELLEN JANE WINTERS, Defendant CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAEcrPE FOR APPEARANCE TO: Prothonotary Please enter the appearance of Richard H. Wix, Esquire, of the firm of wix, Wenger & Weidner, on behalf of Defendant Ellen Jane Winters in the above-captioned matter. WIX, WENGER & WEIDNER BY1S.Ackcv~ H. 04 Richard H. Wix, I.D. #07274 Attorneys for Defendant 4705 Duke Street Harrisburg, PA 17109-3099 (717) 652-8455 Dated: September 28, 2000 ':T," '.= .1 '",_ uu ....,IIIii!i~IlB'iIiI< _.~ <~!. ' , oC''';', "~ --"" ~",~",,~. ,--',""-_' ","-".0; '~'. ~'..< ,~ . -, ' "., I , ~" 0 t.~ (.,::) c: 0 n 5~ (/) .',. -0 CTj r"'r'l -:'TI n1r.,.', '-0 z:b 1"-" ;;::~: N >'!tJ cn=, u:> '~,.i ~~~ -C':. !:==Ci :"'1:~ """"n -:Pr. ..Y. Co-;~ (~) z " >0 ':'? ri"l c: ~~ ~ -"-" ~J1 5J r'-' -< \<;0 w:,_"=~~ ~-~, " = '""~'~if, \.}/v JOANNE L. MORTON, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-6133 CNIL ACTION - LAW ELLEN JANE WINTERS, Defendant JURY TRIAL DEMANDED PLAINTIFF'S TRIAL MEMORANDUM I. FACTS REGARDING LIABILITY On October 20, 1998, at approximately 12:09 p.m., Plaintiff Joanne Morton was operating a 1992 Oldsmobile 98 Regency in an easterly direction along Simpson Street. Defendant Ellen Winters was operating a 1991 Dodge Caravan in a northerly direction along Market Street. At the time of the'accident, Plaintiff Joanne Morton was travelling in an easterly direction along Simpson Street in Mechanicsburg, Pennsylvania. As Plaintiff Joanne Morton approached the intersection of Simpson and Markets Streets, she observed a green traffic signal and proceeded to enter the intersection when she was suddenly and unexpectedly struck by Defendant Ellen Winters' vehicle entering the intersection from Plaintiff Joanne Morton's right- hand side. Officer Michael Cranga of the Mechanicsburg Police Department arrived on the accident scene. It should be noted that Defendant Ellen Winters only offered the investigating officer the excuse that she failed to see the red light until the last minute. The circumstances surrounding the accident clearly establish that Defendant Ellen Winters was negligent, careless, and reckless in the operation of her vehicles, and was solely responsible for the accident. The automobile accident was in no manner due to the act or failure "'*"'~' ,'--~'- , ~ >0 , ",,~ to act by Plaintiff Joanne Morton. Plaintiff anticipates that liability will be admitted by Defendant. II. FACTS REGARDING DAMAGES At the time of this accident, Plaintiff Joanne Morton was the restrained driver of her vehicle who, unfortunately observed Defendant Elle Winters' vehicle entering the intersection. In preparation for the anticipated collision, Plaintiff Joanne Morton attempted to brace herself by placing her right arm in front of her face. As a result, her right elbow struck the steering wheel while her left arm and side struck the door. Following the investigation by Officer Cranga, Plaintiff Joanne Morton went to work but noted that within several hours her pain had become more severe. By the following day, Joanne Morton's pain had become quite severe so she consulted Dr. William K. Shaffer who had been treating her for neck injuries sustained in a rear-end collision on July 17, 1998. The injuries from the July 1998 incident had resolved to the point that Ms. Morton was able to return to V2 days of limited work duties in mid-September and back to full activity prior to the October 20, 1998 accident; however, subsequent to the October 20, 1998 accident, Ms. Morton was once again disabled from employment. Ms. Morton consulted Dr. Shaffer five (5) times during the month of October, consistently demonstrating objective findings which included: limited cervical range of motion; absent triceps reflex; absent left biceps and sluggish right biceps reflexes; reduced grip strength with arms extended; and reduced sensitivity in the left arm along all three (3) nerve distributions. During the following four (4) months, Ms. Morton received treatment from Dr. Shaffer ona minimum of 38 occasions. Commencing on November 18, 1998 she also received 2 - ~~, ~ . ., ~ ." ~" """"lli,itj,I<'l;'" treatment at the Hetrick Center under the direction of Dr. Michael E. Treichler where she was treated on at least 12 occasions. During Ms. Morton's initial evaluation with Dr. Treichler, he diagnosed her as suffering a cervical acceleration/deceleration injury; abnormal neurological disc lGnesis and disc dialGnesis; and cervical-thoracic joint dysfunction. Throughout this period of time, Ms. Morton's treatment alternated between,chiropractic manipulation by Dr. Shaffer and aquatic therapy at the Hetrick Center. By January 1999, Plaintiff Joanne Morton had progressed with her therapy to the extent that Dr. Treichler removed her from aquatic therapy and began her on a land-based therapy program, which included instruction for a home exercise program. Opining that Joanne Morton had reached maximal therapeutic benefit from the Hetrick Center, Dr. Treichler released her from his care on February 8, 1999 with instructions to continue her home exercise program. Because of her continued symptomatology which included right-sided neck, shoulder, and elbow pain and numbness, pain, and weakness of the left arm, Joanne Morton consulted Dr. Morganstein on February 17, 1999. Examination at thattime revealed limitations in cervical range of motion, palpatory tenderness with active trigger points along the lower right cervical paraspinals, localized tenderness over the medial aspect of the right elbow, weakness in right shoulder abduction, and decreased light touch sensation on the left corresponding to a C5 and C6 dermatomallevel. Dr. Morganstein recommended diagnostic testing including x-rays of the right shoulder and elbow and a MRI of the cervical spine. Based upon the MRI of the cervical spine and a CAT scan of the right upper arm and MRI of the right shoulder, Dr. Morganstein diagnosed Joanne Morton with accident-related radiculitis of the left upper extremity, traumatic tendinitis of the right rotator cuff, a probable partial tear of the right supraspinatus tendon, and myositis ossificans along the right upper 3 ;)i~- ~ ,.~," ~f!< humerus. Treatment for these conditions consisted of physical therapy with Karen Red, P.T., 2 to 3 times per week over a period in excess of 2 months as well as a local injection to the right shoulder joint. Currently, Plaintiff Joanne Morton has difficulty with the right shoulder and holding itin the extended position, ie, doing her hair, using the arm in a repetitive fashion, ie, cleaning and the inability to forcefully use the extremity to lift any object above shoulder level. It is the medical opinion of Dr. Bruce Goodman that Plaintiff Joanne Morton is totally disabled in terms of meeting her occupational demands as she previously had performed due to her accident related injuries. With a reasonable degree of medical certainty, Dr. Goodman states that Plaintiff' Joanne Morton's physical condition affording herrestricted work capability is directly and causally related to the motor vehicle accident occurring on October 28, 1998. Both Dr. Morganstein and Dr. Goodman will testify and have opined that Mrs. Morton has sustained a significant loss of body function which establishes a serious injury. Plaintiff Joanne Morton has incurred approximately $12,000.00 in medical expenses for treatment received regarding her injuries sustained as a result of the motor vehicle accident. However, it is noted that the $5,000.00 of Plaintiff Joanne Morton's medical expenses related to this accident have been previously paid under her first party benefits of her automobile insurance carrier, Nationwide Insurance Company and theremainder of her medical expenses were paid by her health insurance company. Additionally, Plaintiff Joanne Morton was completely disabled from performing her job duties for a period of six (6) months following the date of the accident. For a two-week period beginning April 6, 1999, she was release to return to light-duty employment for 1/2 days, which was increased to six (6) hours per day over the following two weeks, and to eight (8) hours per 4 ~"- . . '~=~ -,~ " "....'~'BJ., day during the subsequent two (2) weeks. Plaintiff Joanne Morton was finally released to return to a full ten (10) hours workday during her office visit with Dr. Morganstein on May 19, 1999. Nonetheless, Dr. Morganstein advised that it would be in Joanne Morton's best interests to remain in the billing department since her prior duties involved more lifting and repetitive reaching activities that aggravate her symptoms. Plaintiff Joanne Morton's income loss is calculated as follows: 10/20/98 - 4/6/99 Off Work 4/6/99 - 4/30/99 Worked Half Days Only Loss of wages for period of total disability - 432 hours at $11.77 per hour and 536 hours at $12.18 per hour. Loss during half days - 61 hours at $12.18 per hour. In addition to every 80 hours worked, Joanne Morton received 30 hours night differential pay which total $38.30. This would amount to $494.00. Plaintiff Joanne Morton sustained a total wage loss of $12,850.00 prior to her retirement. However, it is noted that Defendant Ellen Winters' automobile insurance carrier, State Farm Insurance Company made wage loss payments to Plaintiff Joanne Morto~ as a result of her income loss and that amount paid would offset the $12,850.00 total wage loss. Additionally, Joanne Morton has sustained a loss of earning capacity of $25,334.40 per year. Inasmuch as she had to retire at age 62 and desired to work until she was 70, Plaintiff Joanne Morton has ~ $202,675.20 gross loss of wages. There should be no offset because she has retired or collects Social Security. Panichelli v. Libertv Mutual Insurance Co., 543 Pa. 114, 669 A.2d 930 (1996); Browne v. Nationwide Mutual Insurance Co., 449 Pa. Super. 661, 674 A.2d 1127 (1996), allocatur denied, 545 Pa. 674, 682 A.2d 306 (1996). Even if one were to deduct these benefits, the income loss would be well over $100,000.00. 5 t.~""-"'~ ,,' . . ........... - "-";.1t,1.' As a result of this accident and the injuries related thereto, Plaintiff Joanne Morton's life has been greatly affected. By the afternoon of the accident, Joanne Morton was in such extreme pain that she called Dr. Shaffer to schedule an appointment for the following day. She was not only experiencing neck pain and limited movement of her neck, but pain in her shoulders and right arm as well as tingling and numbness of the left arm. These symptoms remained severe enough to completely disable her from work for a period of roughly six (6) months. Although Plaintiff Joanne Morton's symptoms have improved, she continues to suffer from occasional, but regular, flare-ups. During these periods, Joanne Morton's quality of life and activities of daily living are greatly affected. The pain hinders both her job performance as well as her activities of daily living. Understandably, these episodes are also emotionally traumatic for Joanne Morton, as she becomes frustrated at the limitations her injuries impose upon her. III. ISSUE OF LIMITED TORT COVERAGE As previously indicated, Doctors Morganstein and Goodman will testify that Mrs. Morton has sustained a serious loss of a body function. This testimony, together with the testimony of these doctors that Mrs. Morton was disabled from her employment for at least six months, should establish that Mrs. Morton has reached the limited tort threshold. The leading case on this subject is Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998). The initial threshold determination of whether a claimant has sustained a serious injury is for the jury, not the trial judge. The matter must be submitted to a jury unless reasonable minds could not differ. Washington, 719 A.2d at 740. Washington adopted a rule in defining serious injury as being one of two inquiries: (a) What body function was impaired; and (b) Was the impairment of the body function serious. Clearly, the testimony will show that Mrs. Morton's occupation involved lifting 6 -_...~ - ~'",- . '"' ~", , l"""""-"'.&~, heavy pneumatic tubes out of a cylinder, removing the materials and putting the tube back into the cylinder time after time over a lO-hour period. She and her physicians contend that she simply could not do this because of the injury to her shoulder, resulting in a partial tear of the right supraspinatus tendon and myositis ossificans along the right upper humerus. In addition, testimony will indicate that she is hampered in her daily living activities, including combing her hair, carrying groceries and doing her housework. A person's inability to physically work at their employment for a period of six months most certainly results in a serious loss of a body function. The body function here is the utilization of Mrs. Morton's upper body and arms to lift the tubes 100 or more times daily. In Kellv v. Ziolko, 734 A.2d 893 (Pa. Super. 1999), a case is remanded from the Supreme Court to consider Washington v. Baxter and ultimately the case was submitted to the jury where the injuries in an auto accident included in the plaintiff's neck, back and knees and intermittent numbness in two toes of his left foot. As a result of his injuries, the plaintiff had to undergo a course of physical therapy and a MRI which indicated he suffered from a herniated disc. He returned to work only three days after the accident, sought and received treatment for his injured back from a local chiropractor and described his daily comfort in his low back as dull and achy. He couldn't engage in riding a mountain bike or motorcycle, and hunting. Mrs. Morton has even more disability than the plaintiff in Kellv v. Ziolko. Prior to her accident, she was an excellent horsewoman and engaged in the practice of horse massage, preparing horses for show competition. She exercised the horses by riding them at the shows. The injuries to Mrs. Morton are also more serious than those found in Hellings v. Bowman, 744 A.2d 274, Pa. Super. (1999) where a plaintiff sustained injuries to his neck and back, missed six weeks of work and was treated by a chiropractor for approximately three 7 z",*"~,,," ~"~ " ~"" ., ;djf.~ ,', months following the accident. He had an admission to the hospital emergency room with severe low back pain and bilateral leg pain and had a MRI which revealed a herniated disc. However, he improved after following a prescribed course of physical therapy and was left with some back and knee pain and could not hunt or ride a horse. Clearly, Mrs. Morton's case requires the serious injury issue to be submitted to the jury. Respectfully submitted, TUCKER ARENSBERG, P.C. BY~~~ Jl,ee C. Swartz Pa. Bar LD. #07258 111 N. Front St., P.O. Box 889 Harrisburg, P A 17108-0889 Telephone: 717/234-4121 Facsimile: 717/232-6802 ATTORNEYS FOR PLAINTIFF 8 ,"""-"" ~ ~-~~"- , '. ,,~ 04/07/2003 10:14 i 71 76526290 WIX WENGER & WEIDNER I t ,-~ RJCHAR.O .... WIX moMAS L W'ENCER. DEAN' A WEIDNER. STEVEN C. WILD! THF.R.P.iA 1.. 5oHAOF W"lX. DAVID R.. GETZ STEPHEN .I. DZURANIN ~lkVJ:N K.. WIL.1.lAM:1 $~ P. b'UAN5Y TR..A.c::'V L UJl01KS 11;FFaa"t' C. Cl.AJUt WIX. WENGER a WEIDNER. ^ "l'-orESSIONAL C::Ol'-POMnON ATTORNEYS AT LAW' 4705 DuKe sTUe, HAP.JYS,au1'.c. PENNSVLVANlA, l"IOQ~30CKt (717) 652-6455 TE~!COPl!R (717) 55:iH1290 www.wwwpelaw.com April 7, 2003 -.., 'IOn ......r. ...............".rTT.. .... VIA FACSIMILE The Hon. Edward E. Guidd Cumberland County Court~ouse One Courthouse Square Carlisle, PA 17013-3387 Re: Morton v. Winters No. 00-6133 '" , Il1!i!1 . ':llli.', PAGE 02 P.O. .lIo.x $,"$ 508 NORTH SECOND STIlQ't HAlUUSBURc.. P""'17108-0e4$ (71'" ~~4'41,Ba TJf,.IiCQPIII;A. (71-") ;~~-.43:J'" Dear Judge Guido: The above-caP.tioned mattl:l.r r Is scheduled for a Pre-Trial Confererice in front of you at 8:45 a.m. Wednesday morning. I am starting l'l tril'll in York County this morning. and therefore will not be able td be present at the Pre-Trial Conference. : I would like to respectfully request that thjs case be continued to the nexl Cumbe~and Trial List. I As you undoubtedly know, the Dauphin County Trial Week is al~he week of April 28, 2003, and I have a numb~r of cases on that tril'll list, several of ich will definitely not settla. I would therefore re~pectfullY request that this case be conti ued to the next Cumberland County Term pt Court. I was unable to contact Mr. Swartz thia morning regarding this Issue as he ~s in Philadelphia today. . ! Very truly yours. ~~~.~~ Richard H. Wix RHW/gc cc: Lee C. Swartz, Esq. (via fax) ~'l)"O I,J' ,l . ""'. , ; , ." 'o--l't-~d 04/07/2003 10:14 71 765262'l0 WIX WENGER & WEIDNER PAGE 01 ~ AJCHARD H. WlX THOMAS 1.. WENCea. CE.t\N A. WEIDNER ~ftVEN C. W'llJ)$ '1'1. leAS..... L SHAPI6 '3UI.X- DAVID ~ (:.ETZ 5TEP~.J. bZ.U~1N ST'EVIN It.. 'W'lUlAMS SEAN p, DiJ,..ol\.NE.'r' TRACY I.. UPblKE rEffREY c. o....A.kK WIX. WENGER 8 WEIDNER A PROFESSIONAL CORPORATION ATTORN~YS AT LAW 4705 DUIt~ STREET I Lhl\IU5I'UI1\.C, pS.m-lSYLVAl'ollA 1710g,.~OOO (717) 852-8455 TELECOPIEk (717) 662-8290 WWN.wwwP8I~.Cll;lm p, O. ~)( a.ol~e 508 NOR.TH SECOND STREET KARRISBURG. P^- 1711;N:1-0S4!::1o (71]) 234-4IE12 TEl.ECQPJiN. C1J?) ::l!34-4224 IELECOPIER COVER SHEET ......... .........1:.. H"'''_<:'',,'''8_G ...... DATE: April 7,2003 Please deliver this and the fpIlowing pages to; , Nama: Irhe Hon. Judge Edward E. Guido (240-6462) Lee C. Swartz, Esq. (232-6802) Re: IRichard H. Wix. Esquire Morton v. Winters Sender's Name: We are transmitting a total br 2 pages, including this cover sheet. If you do not receive the indicated pages or there is a problem. please call (717) 652-8455. 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' ~ ,',.', "- ,,~',-, , ." eo; ".~".' " ~'N'il ./ "" JOANNE L. MORTON, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW ELLEN JANE WINTERS, : Defendant NO. 00-6133 CIVIL TERM VERDICT SLIP [Li~bility for causing the accident in this case , has been conceded by the Defendant. Therefo~e the jury ~oes not need to decide whether the Defendant was1negligent, since negligence is conceded.]. Question I: Was Defendant's negligence a factual cause of any harm to Plaintiff? , No -J.- Yes If you answer Question I "No," Plaintiff can. not recover and you should not answer any further questions and should return to the courtroom. Question 2: Did Defendant's causal negligence cause a serious injury to Plaintiff in the form of a serious impairment of a body function? Yes No If you answer Question 2 "No," any damages awarded to Plaintiff would be limited to economic lossl damages. If you answer Question 2 "Yes," any damages awarded to Plaintif(would not be limited to economic loss damages. Question 3: State the total amojmt of recoverable damages, if any, you find Plaintiff sustained as a result of the accident.', ' I TOTAL $ 7- 9- 2,003 (Date) y2A/t{j.J~ (F oreperson) ,.~ .~~ - ~- ~ 0 ,S.":::) ~_.- - ~~<~ ~ "# <- " ,~ S> ('\ c:::. ~ " - -c; --- ,D-- ""\ ~ es-- '"', 7\:- ~ ~ - + ~ < "tI ~ - ):).... .:5 . c * ~ '" :::;- " ;s tJ :J ):, f"'. S- ~ - .s::> 't-J 0 , -..J (' ~ ~ d G ('I ~ "j f' ~ -+ \) ~ 0 cs- ~ '- "- L ~ ":s --+- ,('J ~ 3 ~ ~ 0 t> :s '- R- lr-' - Q '- \ -C C:. ~ ~ :::t-- --+- 'j ~ !~ ~ t1) lJ\ ~ J ~ ,C) :h .'i 0 - ~ d ('\ :J \J\ ~ ~J - ~ :1 - s:L j ;:j- .3 j , ~ j C) - :> \J I ; ~ I -;i- L) - 0 '\.J ~ >l <:: ~ ") --.s;:--- -+- ~ U\ N -1. ;f '-vv fJ ~ ~ - -l;:\ V' ~ I ~..1~~\:;:;;,,;\ ;)\'J,;{~':jis~;;.,~;.{~'~;J,';.}:'~;,,~Wfu;;;~};f/;,*~5:;;{::~~ii7\~T~;'~;,;~;;,; ..~. ~1oI.L1 " ' .... CASE NO.: IlA/....G..:..... " DOCKET NO.: IrDt/ ~3 ~_~Iil-;ffif"_- , , , ' :f,. ;\ '%: ~ ~" , VS kJ~,^ "e' =",,~~~" ~"-'~;~~ Judge _ Cle.kJProth ~pstalf_' H__H "'---1' - " ,. COURTROOM NO.: DATE: 7'{)?-a3 162 --... C~,-,.,u.......~~n_~_.l.l J 91 - 6aL;c~tc, J.\..l E D3 ! PlQ) .....1&.1 Bl~.IIU,I, 8&..1 '\"'; , 157 Gravley, Patricia A lIt, E~1!b~aR, R6h~j, t € ~,'3 , 156 Dissi~l!:er, Kaleb M 146 Pottin!!:er, R~bert W , 155 Alban, Sondra L I Juror # Name, Random No '" -7~~~;.-r~J_~I:IH___.B~~-'2.''''i.n,~ ilJl'_:M~""l~ 120 Fnlton, Doulllas K Sweller, Matthew L V ollt, Steven M Coombs, Stad L -.K":,,,I:u,.., n-l,,~ j;:;a. t::l "L Enrico, Anthony R It.. .,.,~!!l~ LI_I. ~1I\:t:: L ,T .o.","",Hn, ('Iuiilltopktn 'II,," Baney, KeithlL Smay, Tiffany Ross, Richar~ G Parker, Lois j\ 3h:::illl1Ul, :r hl~lp J Whitcomh, C/tristi L Evans, Alson ,W I Betts, Charlylm R Moote, Keri ' Greenaway, Mark E Griffin, Margaret E Galer, Miriam M Bittinller, Keith G Lam~son, Susan L Leo, John A Koleno, Sharlene L Dnncan, Frank William D4 i'''d... 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