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Home My WebLink About00-08523 r SHIRLEY OGDEN, Plaintiff v. DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants j" ,-, ~ . 't~~_i I I I i i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA I , I i ! I .1 CIVIL ACTION - LAW ~ NO. 00-8523 CIVIL TERM ORDER OF COURT AND NOW, this 24th day of September, 2002, upon consideration of Defendants' Motion for Sanctions, a hearing/argument is scheduled for Friday, November 15,2002, at 11:00 a.m., in Courtroom No. I, Cumberland County Courthouse, Carlisle, Pennsylvania. Don Bailey, Esq. 4311 North 6th Street Harrisburg, P A 17110 Attorney for Plaintiff C. Kent Price, Esq. Stephanie L. Hersperger, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorneys for Defendants :rc BY THE COURT, J , .~ ~ 9_:L'/-O.:z., 9-. Ii ~~- ".c' .,. ~;" ~ .' . ., "I--~' ~ ,E E -~ ..' "",".y~,-. RLED..()fHCt 01: T~r=OP(\Wn\~'0l"D'J If i ~<_ l' ,~. ,.~.' h.),t\fll 02 Sfl' 2.4 p\'\ 2: :; \ C\JM8ERlfND CCAJI'ln' PENNS'llW\,NI,tI --~". , .> ..~-~~"~ ~e. :_~",",~_"".,._II!!_... I'. ,,-'~~~!;~ ',. v, ~~ " ~~"~--.~,-~~,' ,,~,!I!K " r~'''!~~''lJ l\'~~........._ r ~,-';;_t ,. ',' . ~~ '" - - ,---",--, ., .~ ,,--. , --.' .~--_"' ,,,,.o<d '- tMt:, SEP 2 0 2002 SHIRLEY OGDEN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-8523 CNIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants : CNIL ACTION - LAW : JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2002, upon consideration of Defendants' Motion for Sanctions, and any timely response thereto, it is hereby ORDERED AND DECREED that a judgment of non pros or default is hereby entered against Plaintiff, and the instant matter is dismissed, with prejudice. In the alternative, Plaintiff is precluded from offering any evidence or testimony in support of her claims or to oppose Defendants' defenses at the time of trial and shall reimburse Counsel for Defendants for the reasonable attomey fees for the preparation and filing of the instant Motion for Sanctions. BY THE COURT: J. " , _ ~_ _ ".0-"" ~. J --:.-<,;--,,-~,,~, ,'.';-"- -.' ~~,--- ,,"'-~- "" '0'"",,"; " ,,~_~/, - - ~" SHIRLEY OGDEN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-8523 CIVIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants : CIVIL ACTION - LAW : JURY TRIAL DEMANDED MOTION FOR SANCTIONS OF DEFENDANTS, DOUGLAS A. BREAM AND THE FOOT AND ANKLE CENTER, DUE TO PLAINTIFF'S FAILURE TO PROVIDE DISCOVERY RESPONSES IN ACCORDANCE WITH THE COURT'S ORDER ISSUED ON FEBRUARY 1. 2002 AND NOW, Defendants Douglas A. Bream and The Foot and Ankle Center, by and through their attorneys, Thomas, Thomas & Hafer, LLP, respectfully move this Honorable Court to grant their Motion for Sanctions due to Plaintiffs failure to comply with this Court's Order issued on February I, 2002, and in support thereof, aver as follows: I. Plaintiff Shirley Ogden instituted the instant medical malpractice suit by filing a Writ of Summons, and then, on February 12, 2001, a Complaint. 2. The instant cause of action stems from alleged injuries sustained by Plaintiff Shirley Ogden, on or about December 11, 1998, when she underwent a left bunionectomy and second toe hammertoe surgery performed by Defendant Douglas A. Bream, DPM. 3. Defendants Douglas A. Bream and The Foot and Ankle Center filed their Answer with New Matter on March 3, 2001. 4. On or about February 22,2001 Defendants served written discovery on Plaintiff, including Interrogatories and Request for Production of Documents. A true and correct copy of Defendants' Interrogatories, Set I and Set II, is attached hereto as Exhibit "A" , while a true and "' " ~'. ^ '-' -'-- ,-~-, -~ " '.--;,,-.-- '-'"" '___.',__"''''.'0__'''-,_-__'; ,'J~'" >_,_,.. a :--;'~:-'.c-d'-,; _ , " , H '-I ! d :1 i !I 5. Request No.2 of Defendants' Request for Production of Documents seeks copies ~ i 'I :i , ,I :1 II Ii II 'I [j II i-i correct copy of Defendants' Request for Production of Documents is attached hereto as Exhibit "B". of all x -ray films of Plaintiff s left foot. See Exhibit "B". 6. The Interrogatories and Request for Production of Documents further requested ;i i1 " i-i " I'j I, ij I :1 :! information regarding Plaintiffs other medical care providers and/or for medical records. See Exhibits "A" and "B". 7. Pursuant to Pa. R.C.P. 4009.12, Plaintiff was required to serve answers or ~j II ~ i :1 i1 , objections to Defendants' Interrogatories and Request for Production of Documents within thirty (30) days of service, or no later than March 24, 200 I. 8. On April 28, 2001, Defendants received Plaintiffs Answers to Defendants' Interrogatories Set I and II, as well as Plaintiffs response to request No. I of Defendants' Request for Production of Documents. True and correct copies of Plaintiffs Answers to Defendants' Interrogatories Set I and II and Plaintiffs response to request No. I of Defendants' Request for Production of Documents are attached hereto and marked as Exhibit "C". 9. However, Plaintiff failed to provide Defendants with copies of the x-rays or with signed authorizations which would enable Defendants to obtain x-rays directly from the medical care providers. 1 O. Plaintiff also failed to provide Defendants with the full names of Dr. Mixon and Dr. Master, whose names appear in her medical records, and further failed to provide Defendants with executed authorizations enabling Defendants to obtain medical records from Dr. Mixon, Dr. Master and Calvin S. Kibwe, DPM. 2 .. CO"_..'_'. ~; _'.~-o~' . '.. j ',""", '- -""_"0',:"",:"< _ '-'FA; 11. After making several attempts to obtain the x-rays and information regarding Plaintiff's medical care providers from Plaintiff's counsel without having to resort to Court intervention, Defendants were forced to file a Motion to Compel on October 18, 2001. A true and correct copy of Defendants' Motion to Compel is attached hereto and marked as Exhibit "D". 12. On October 29,2001, the Honorable Court issued a Rule upon Plaintiff to show cause why Defendants' Motion to Compel should not be granted; Plaintiff was given twenty (20) days to respond to said Rule. A true and correct copy of Judge Oler's Order dated October 29, 2001, is attached hereto and marked as Exhibit "E". 13. Plaintifffailed to file a formal response to the Rule.! 14. After attempting to again obtain authorizations from Plaintiff's counsel to obtain the x-rays and other information from Plaintiff's treating physicians, but with no success, Defendants filed a Motion to Make the Rule Absolute on or about January 22,2002.. A true and correct copy of Defendants' Motion to Make Rule Absolute is attached hereto and marked as Exhibit "F". 15. In their Motion to Make Rule Absolute, Defendants requested that the Court make the rule previously issued absolute, that it order Plaintiff to sign authorizations permitting Defendants to obtain records, including x -rays, from her treating healthcare providers, and that it impose sanctions at it deemed appropriate, including entry of judgment in Defendants' favor. See Exhibit "F". 16. Thereafter, on January 22, 2002, Judge Oler entered an Order making its prior Rule absolute and directed Plaintiff to respond, without objections and in verified form, to 1 Via cOITe~pondence, Counsel for Plaintiff indicated that Plaintiff did not have the x-rays in her possession and did not know the telephone numbers of her physicians. 3 , , -,', ",'-,'- -. '-V'=--C._ ,,-'. - ,,, -)- .~:,-,-~,,' '-', J'~ . ___,.: -\, Defendants' outstanding discovery requests. A true and correct copy of Judge Oler's Order dated January 22, 2002, is attached hereto and marked as Exhibit "G", 17. On February 1, 2002, Judge Oler then issued an Amended Order2 in which he directed Plaintiff to respond, without objections and in verified form to Defendants' discovery requests, within thirty (30) days of January 22, 2002, or by February 21, 2002. A true and correct copy of Judge Oler's Amended Order dated January 22, 2002, is attached hereto and marked as Exhibit "H". 18. To date, Plaintiff has failed to comply with this Honorable Court's Amended Order requiring her to provide complete, verified answers, without objections. 19. Specifically, Plaintiff has failed to provide Defendants with executed authorizations to obtain her x-rays and other medical records; Plaintiff also has failed to provide Defendants with the full names of several of her treating physicians. 20. It has been almost two years since the instant matter was initiated by Plaintiff, and despite numerous requests for discovery, including a Motion to Compel, a Rule to Show Cause why said Motion to Compel should not be granted, a Motion to make Rule Absolute, and the Court's Order dated January 22,2002, and its Amended Order dated February 1, 2002, both of which required Plaintiff to provide the requested discovery, Defendants still do not have the requested x-rays and medical records which are necessary for them to review prior to deposing Plaintiff and which are crucial in preparing their defense. 21. It is imperative that Defendants be able to review and examine the x-rays of Plaintiff's foot and the medical records since the condition of her foot prior to and after the 2 The Amended Order differed from the original Order only in that it set forth a specific time within which Plaintiff had to comply with the Court's Order. 4 ., ,,'-."" ^ ,;,-, L - ~' '^ --..', ,."'.,, ,,-,>,,:--:~ -~ surgery are crucial to the defense; to date, however, almost two years since Plaintiff instituted this suit, Defendants still have not had the opportunity to review the x -rays and medical records. 22. Without the requested x-rays and medical records, Defendants are unable to properly prepare the defense of this case, to evaluate the merits of the Complaint or to otherwise dispose of this case by trial or settlement. 23. From the record before this Court, it is apparent that since Defendants' initial request for x-rays and medical records, in February of 2001, over one and a half years prior to filing the instant Motion for Sanctions, Plaintiff has been deliberately and/or inexcusably delaying the progression of this case by failing to provide the requested discovery, all of which have caused irreparable harm to Defendants and their ability to defend the instant matter. 24. Moreover, from Plaintiffs actions and/or inactions, which are clearly documented and before this Court, it is apparent that Plaintiff has deliberately and/or consistently ignored and disobeyed this Court's Rule to Show Cause why Defendants' Motion to Compel should not be issued, and the Court's subsequent Order dated January 22, 2002, and the Court's Amended Order dated February I, 2002, despite the fact that Pennsylvania Rule of Civil Procedure 4019 provide that sanctions may be warranted when a party fails to obey a Court's discovery Order. 25. Pennsylvania Rule of Civil Procedure 4019 provides: (a)(I) The court may, on motion, make an appropriate order if (i) a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005; * * * (iv) a party or an officer, or managing agent of a party or a person designated under Rule 4007.1(e) to be examined, after notice under Rule 4007.1, fails to appear before the person who is to take the deposition; * * * 5 -,-- -.--,'" , ',~ ~-,~, -' ---,--- " ----, , p- -- - ,--- - .,_. "-'.e-- ,- (viii) a party or person otherwise fails to make discovery or to obey and order of court respecting discovery. (c) The court, when acting under subdivision (a) of this rule, may make * * * (2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition; (3) on order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience; (4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010; (5) such order with regard to the failure to make discovery as is just. See Pa. R.C.P. 4019. 26. In the instant matter, because of Plaintiffs continued, lengthy, deliberate and willful refusal to answer discovery outstanding since March of 2001, specifically by failing to provide copies of x-rays or medical records, or in the alternative, failing to provide executed Authorizations to obtain Plaintiffs x-rays and medical records, and in failing to obey this Court's Order of January 22,2002, and this Court's Amended Court of February I, 2002, as is demonstrated from the documents before this Court, Defendants respectfully request that this Honorable Court enter a judgment of non pros or default against Plaintiff. See Pa. R.C.P. 1019(c)(3). 27. In the altemative, Defendants would respectfully request that this Honorable Court enter an Order precluding Plaintiff from offering any evidence or testimony in support of her claims or to oppose Defendants' defenses and for reasonable attomey fees for the preparation and filing ofthe instant Motion for Sanctions. See Pa. R.C.P. 1019(c)(2). 6 I. -.-.':'- "',~,' ~ - ~ -.', -:,"';:;.J - ">,,. '., '"",,- ' ':"', - - .,': " .> ';.- - - 0-" ~ ,;: ',' '''; p WHEREFORE, Defendants, Douglas A. Bream and The Foot and Ankle Center, respectfully request that this Honorable Court grant their Motion for Sanctions and enter the attached-proposed Order. THOMAS, THOMAS & HAFER, LLP ~ht:::>>'2U; ':J ?t:<..<~;eVJr C. Kent rice, Esquire - J.D. No. 06776 Stephanie L. Hersperger, Esquire J.D. No. 78735 305 North Front Street P.O. Box 999 Harrisburg, P A 17108 (717) 255-7632 ATTORNEYS FOR DEFENDANTS :182674.2 7 . ~ >~~. ~ ~l , , , f'. '.,'., -, '-" 'c ,-, SEP 2 0 2002 SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLV, NO. 00-8523 CIVIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants CIVIL ACTION - LAW : JURY TRIAL DEMANDED INTERROGATORIES PROPOUNDED UPON THE PLAJNTIFF - SET J TO: Shirley Ogden c/o Don Bailev, Esquire 4311 North 6tli Street . Harrisburg, PA 17110 PLEASE TAKE NOTICE that you are hereby required, pursuant to Pennsylvania Rules of Civil Procedure, Rule 4005 and 4006, as amended, to file the original and serve upon the undersigned a copy of your Answers and Objections, if any, in writing and under oath to the following Interrogatories within thirty (30) days after service of the Interrogatories. The Answers shall be inserted in the space provided. If there is insufficient space to answer an Interrogatory, the remainder of the Answer shall folJow on a supplemental sheet. These shall be deemed to be continuing Interrogatories. If between the time of your Answers and the time of trial of this case, you, or anyone acting on your behalf, leam _~L .. ~ - ~." of any further Information not contained in your Answers, you shall promptly furnish said information to the undersigned by Supplemental Answers. , THOMAS, THOMAS & HAFER, LLP ~~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7632 ATTORNEYS FOR DEFENDANTS , I, ~ , '"'-. ,~ ~f"" INTERROGATORIES 1. State the name and address of every doctor, podiatrist, or other health care provider from whom you have received treatment or by whom you have been examined relative to any complaints or problems concerning your left foot since January 1, 1998 to the present time. ANSWER: 2. State the name and address of every hospital or medical facility to which you have been admitted as an in-patient relative to any complaints or problems concerning your left foot since January 1, 1998 to the present time. ANSWER: L 1_ ~. , ~ M.- _.~Ii''lI!j,il.iidiiiil,_ 3. State the name and address of every hospital or medical facility at which you have received out-patient, emergency or clinic treatment relative to any complaints or problems concerning your left foot since January 1, 1998 to the present time. ANSWER: 4. State the name and address of every doctor, podiatrist or any other health care provider who has made any comment or statement or who has expressed any opinion to the effect that the care and treatment provided to you by Douglas A. Bream, D.P.M. relative to your left foot was improper, inappropriate, unnecessary or was performed in a manner that was negligent or not within the applicable standard of care. ANSWER: J _. ~ .. ,.,l ,-, -"" -<<.1..r"" 5. With regard to the allegations contained in Paragraph 14 of your Complaint, state the name and address of each of the "disinterested physicians" referred to therein. ANSWER: I ,~,~l~ l ~ ~ ~ ,~ ' u ..:,' l1:~: CERTIFICATE OF SERVICE AND NOW, this 22nd day of February, 2001, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attomeys for Defendants, hereby certify that I have this day served the within Interrogatories Propounded Upon the Plaintiff - Set I by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 THOMAS, THOMAS & HAFER, LLP c-0)~ C. Kent Price, Esquire .' . J.,.'__ ,_.' I'" "" -",--,",'.- -,...;,. SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8523 CIVIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED INTERROGATORIES PROPOUNDED UPON THE PLAINTIFF - SET II TO: Shirley Ogden c/o Don BaHel' Esquire 4311 North 6 Street Harrisburg, PA 17110 PLEASE TAKE NOTICE that you are hereby required, pursuant to Pennsylvania Rules of Civil Procedure, Rule 4005 and 4006, as amended, to file the original and serve upon the undersigned a copy of your Answers and Objections, if any, in writing and under oath to the following Interrogatories within thirty (30) days after service of the Interrogatories. The Answers shall be inserted in the space provided. If there is insufficient space to answer an Interrogatory, the remainder of the Answer shall follow on a supplemental sheet. These shall be deemed to be continuing Interrogatories. If between the time of your Answers and the time of trial of this case, you, or anyone acting on your behalf, learn . ...,j",,-~ ,~ "- ."," ~ of any further Information not contained in your Answers, you shall promptly furnish said information to the undersigned by Supplemental Answers. THOMAS, THOMAS & HAFER, LLP ~~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7632 ATTORNEYS FOR DEFENDANTS . ~I " J' , ~ ,n, ~ -. INTERROGATORIES 1. State your full name, current residence address, date of birth, and current marital status. ANSWER: 2. State the name and business address of your current employer and the date your employment began. If you are presently retired, state the date you retired, the name and address of your employer at the time of your retirement, and a brief description of the nature of your occupation at that time. ANSWER: 3. State your present job title and set forth in detail the requirements/responsibilities of your current position, and the length of your employment in that capacity. ANSWER: >\,; ~ I.; " -<-.1 , , " ~ ,.-.,~ ~ ...~;. 4. For the five (5) years immediately preceding the date of the incident out of which this claim arose, state: (a) the name and address of each of your employers or, if you were self- employed, each of your business addresses and the name of the business while self-employed; (b) the dates of commencement and termination of each of your periods of employment or self-employment; (c) a detailed description of the services of work performed for each source of employment or self-employment; (d) the name of your immediate superior to whom you were responsible at each of the places of employment listed above; and (e) the reason for the termination of each employment or self-employment. ANSWER: state: " . I.;.' , , .-...~ 5. If you were employed at the time of the incident referred to in the Complaint, (a) the name and business address of your employer; (b) the position you held and the nature of the work you performed; and (c) the date your employment began; and (d) the average weekly earnings/wages you received for the six months immediately preceding the incident. ANSWER: 6. If you have lost any time from your business or occupation since the date of the incident referred to in the Complaint, state: (a) the number of days lost and the dates thereof; and (b) the amount of any earnings/wages lost, together with an explanation of how such amount was calculated. ANSWER: " ~~- "L, ~ .' ., "'..- , '"'--"b,,; 7. If you are making a claim for lost income or loss of earning capacity, state: (a) the basis for such claim; (b) the amount of such claim; and (c) an explanation of how this amount was calculated. ANSWER: 8. If you are making a claim for past or future medical expenses, state: (a) the amount of such claim; and (b) itemize each health care provider who has rendered services, the dates thereof and the charges made therefor. ANSWER: _f n 9. List all other financial losses for which you claim special damages and provide an itemization of the amount of each, setting forth the manner by which each such itemization was calculated. ANSWER: 10. List all social, recreational, family or other activities and hobbies in which you participated or engaged in the five (5) years immediately before the incident out of which this claim arises. ANSWER: .-.b;. "' ~l~" 11. If, as a result of the incident referred to in the Complaint, you are or were prevented from or limited in engaging in your normal business, social, recreational, family or other activities, state: (a) itemize each of the activities so affected; and (b) describe the manner in which the incident affected your ability to engage in each such activity. ANSWER: 12. If you are claiming a physical and/or mental disability as a consequence of the incident referred to in the Complaint. state: (a) the specific nature and degree of such disability; (b) whether it is total or partial; and (c) whether it is permanent or temporary. ANSWER: & 13. If you had suffered any injuries or diseases to those areas of the body that you claim to have been injured or affected by the incident referred to in the Complaint at any time before that incident, state: (a) the date and place where each such injury occurred; (b) provide a detailed description of the specific injury or injuries sustained; and (c) if any such injury required surgery, state the nature of the surgery, state the nature of the surgery performed, the name of the surgeon and the name of the hospital involved. ANSWER: '~-'- ." f'~~ ~; 14. If you had suffered any injuries or diseases to those areas of the body that you claim to have been injured or affected by the incident referred to in the Complaint at any time after that incident, state: (a) the date and place where each such injury occurred; (b) provide a detailed description of the specific injury or injuries sustained; and (c) if any such injury required surgery, state the nature of the surgery performed, the name of the surgeon and the name of the hospital involved. ANSWER: , l, " ,- ,,""-," 15. If you have a family physician or other medical practitioner with whom you consult for any general physical or mental complaint, give his/her name, address, the date upon which you last consulted him/her, and the reason for such consultation. ANSWER: - , ~cl .-~"' ,. A. -., 16. Identify each person from whom you, your attorney or anyone acting on your behalf has obtained a statement concerning any matter relating to this action and provide the date on which any such statement was obtained. ANSWER: 17. State the name and address of each person whom you intend to call as a non-expert witness at the trial of this case. ANSWER: ~ .,~ It . , -, ~' ,~ ~""'i1J-~-' 18. List and describe all exhibits which you intend to use at the trial of this case. ANSWER: 19. Identify each person whom you expect to call as an expert witness at trial and state the subiect matter on which each such expert is expected to testify. ANSWER: - . ,I " . '~'_' h .~" ....t,. 20. With regard to each expert identified above, state the following: (a) the facts and opinions to which the expert is expected to testify; and (b) a summary of the arounds for each opinion to which the expert is expected to testify. NOTE: As your answer, you may attach hereto a report signed by each expert. ANSWER: "I '-, --~""-----",*> 21. Identify each separate item of information supplied to each expert identified above for his/her review, use or consideration as a basis for formulating his/her opinion(s), including all objects and documents examined. ANSWER: ;b "'~ . , ""' ','.-, ~~,I~ :,"-, 22. With regard to each expert whom you expect to call at the trial of this case, supply a current copy of hislher curriculum vitae. ANSWER - ,I.- , .'l. ,. -,-, llilllJ!oL~,;' , CERTIFICATE OF SERVICE AND NOW, this 22nd day of February, 2001, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendants, hereby certify that I have this day served the within Interrogatories Propounded Upon the Plaintiff - Set If by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 THOMAS, THOMAS & HAFER, LLP r__~~/~ C. Kent Price, Esquire ~~_ ,1, , . " ..' 1<l'l!lij-:" ~ ~~'" , APR 3 0 2001 , SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8523 CIVIL TERM CIVIL ACTION - LAW DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants : JURY TRIAL DEMANDED REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF - SET I TO: Shirley Ogden c/o Don Baile~, Esquire 4311 North 61 Street Harrisburg, PA 17110 PLEASE TAKE NOTICE that pursuant to Rule 4009 of the Pennsylvania Rules of Civil Procedure, you are hereby requested to produce for inspection, examination and copying the following items at the offices of THOrvlAS, THOMAS & HAFER, LLP, 305 North Front Street, P.O. Box 999, Harrisburg, Pennsylvania, 17108 within thirty (30) days of service of the Request: 1. Copies of all medical records relating to the care and treatment of your left foot. 2. Copies of all x-ray films of your left foot. If any document sought by this Request is withheld from production based upon a claim of privilege, work product, or any other reason, Plaintiff shall identify each such document in her response to this Request by stating the nature of the document, the date " ~ 1.. .l _ , "~ , 'l' ",,,.'- . J 'I of its preparation and shall indicate the reason why its production is being withheld, This request shall be deemed continuing and any response shall be supplemented upon receipt of additional information. THOMAS, THOMAS & HAFER, LLP C--.~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 1.0. No. 06776 ATIORNEYS FOR DEFENDANTS - lI.iJil" ,-_-iJ-,_ ." -" ~ ....-" c~~ i CERTIFICATE OF SERVICE AND NOW, this 22nd day of February, 2001, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendants, hereby certify that I have this day served the within Request for Production of Documents to Plaintiff - Set I by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 THOMAS, THOMAS & HAFER, LLP Q-.~ C. Kent Price, Esquire ~" <-I '. ~..~: 1 . APR:3 /) 2001 SHIRLEY OGDEN'S ANSWERS TO INTERROGATORIES SET I 1. ) Dr. Miller 1711 Front Street Harrisburg, PAl 7 102 (formerly Muench) Dr. Bream 4740 Delbrook Road Mechanicsburg, Pa 17055 Dr. Polacheck 2800 Green Street Harrisburg, P A ~~~~/qq ~ ~ ~ N...... ~ ......x ~ OSC-P "...... O/"F Dr. Green 805 Sir Thomas Court Harrisburg, PAl 7109 Dr. Mixon 2013 Cunningham Drive Suite 203 Hampton, VA 23666 Dr. Kibwe 304 Marcella Road Hampton, VA 23666 2.) None. 3.) Pinnacle Health/Harrisburg Hospital I I I South Front Street Harrisburg, PAl 710 I Sentara Caraplex 3000 Coliseum Drive Hampton, VA 23666 Pinnacle Health/Physical Therapy 409 South Second Street Suite IA, Harrisburg, PA . J 10 .', ," , i 4.) Dr. Polacheck 2800 Green Street Harrisburg, P A Dr. Green 805 Sir Thomas Court Harrisburg, P A 17109 Dr. Kibwe 304 Marcella Road Hampton, VA 23666 5.) Dr. Polacheck 2800 Green Street Harrisburg, P A Dr. Green 805 Sir Thomas Court Harrisburg, PA 17109 Dr. Kibwe 304 Marcella Road Hampton, VA 23666 'c._ J~ ~-i '" ~~ _c . 1 ANSWERS TO INTERROGATORIES TO SET IT 1.) Shirley Rosetta Ogden 704 Monroe Street Bressler, PA 17113 DOB: 01/04/1961 Single 2.) Harrisburg School District 1201 N. 6tl' Street Harrisburg, P A November 1999 3.) Instructional Aide Required to pass criminal clearance and child abuse clearance. Responsibilities vary 4.) Keystone Residence 940 East Park Drive Harrisburg, P A 12/97-06/99 Community Support Associate Pan Covert, Porscha Summers Terminated due to health reasons. Gabriel Brothers Fall 1997, Customer Service Representative Pam (Last Name Unknown) Seasonal Employment Self-Employed 704 Monroe Street Bressler, PA Day Care Provider Terminated due to slow business. 5.) Keystone Residence 940 East Park Drive Harrisburg, P A Community Support Associate December 1997 Unknown at present 1 ,c ~. '. .-.J".,~~-~'ir,,- APR 3 0 2001 .."I ] ,- <' --',-',;;";.;.,, 1 6a.) Pending 6b.) Pending 7a.) Pending 8a.) Pending 9a.) Uncertain 10.) Sewing, physical fitness, crafts, reading, swimming, jogging, bike riding, speed walking, long walks etc. 11.) I can't exercise, run, walk or jump properly or without pain. A.) And sports I was always an energetic physical person who enjoyed being outdoors and enjoyed dong athletic things I liked riding, kickball, I can't do my toe raises. I used to do 2 forms of martial arts. I can't ever do that now. I enjoyed jogging and long walks. I can't do that - too much pain. I can't even cut my grass. B.) My toes are stiff. They won't flex properly. I have great pain in my foot and toes when I try to move about on my feet or maneuver or jump. It's like I have no base to move from without pain. 12.) Yes I am. A.) 1 don't' have the necessary flexibility in my foot to do the basic things, all the basic things, a person does on their feet. B.) My problems, as per Dr. Kibwe, and based on the feelings in my foot are permanent. Dr. Kibwe told me my foot will never be normal and I will have to have an artificial joint every 10-15 years. He said I will have to "baby it like Bo Jackson". All of this for a bunion. C.) Its permanent see "b" above. 13.) (A-C) No prior injury 14.) I had constant pain and injury caused by the incident. I had no outside intervening injury since the damage done by Dr. Bream. 15.) Dr. Miller 1711 Front Street Harrisburg, P A 1 , I~ , , ~ ~" t 16.) None at present 17.) Dr. Polacheck 2800 Green Street Harrisburg, Pa Dr. Calvin Kibwe 304 Marcella Road Hampton, VA 23666 Dr. Green 805 Sir Thomas Court Harrisburg, P A 18.) Uncertain of all exhibits intended to use. 19.) I am not completed with my efforts to acquire an expert yet. 20.) I am not yet prepared to answer this question. 21.) I am not yet prepared to answer this question. 22.) I am not yet prepared to answer this question. 2 "., '-"" u '" ~ ". ~'" - -I, ~ " ~ ... ;~. , VERIFICATION I, Shirley Ogden do hereby swear and affinn that the afore going Interrogatories are true and correct to the best of my knowledge, information, and belief. I am aware that making false representations to Authorities is a violation of law. ~// L!Jo&~ Shirley ~en .' Dated: (jJ /;2 d If) / " , ~ I , " '_L' "-', .' "'''"nf_'' CERTIFICATE OF SERVICE I hereby certifY that on this 28h DAY OF APRIL 2001, a true and correct copy of the foregoing PLAINTIFF SHIRLEY OGDEN'S INTERROGATORIES SET I & II and PRODUCTION OF DOCUMENTS was served upon the following counsel of record by United States Mail, certified, return receipt requested postage prepaid: KENT PRICE, ESO. THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, P A 17108-0999 BY: Don Bailey ID# 23786 4311 N. 6th Street Harrisburg, P A 17110 (717) 221-9500 ....... ~~~-:...~~1~ ,." - .- " ,- ~ "'- """-"\lim, , . SEP 2 0 2002 SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8523 CIVIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2001, upon consideration of Defendants' Motion to Compel Discovery Responses, it is hereby ORDERED AND DECREED that Plaintiff shall provide Defendants with all x-rays in her possession of her left foot to be copied by Defendants or, in the alternative, Plaintiff shall provide Defendants with copies of all such x-rays within twenty (20) days from the date of this Order. It is further ORDERED AND DECREED that Plaintiff shall provide Defendants with the full names of Dr. Mixon and Dr. Master and shall execute Authorizations enabling Defendants to obtain medical records from Dr. Mixon, Dr. Master and Calvin S. Kibwe, DPM within twenty (20) days from the date of this Order. Failure to comply fully with this Order shall subject Plaintiff to the imposition of sanctions. BY THE COURT: J. ~.OO...I 'IL 1_ - i ,,;. -- ..>1 ,~,~- "'- _~" '__,;, , SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8523 CIVIL TERM DOUGLAS A BREAM and THE FOOT AND ANKLE CENTER, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED MOTION OF DEFENDANTS DOUGLAS A. BREAM AND THE FOOT AND ANKLE CENTER TO COMPEL DISCOVERY RESPONSES FROM PLAINTIFF AND NOW, Defendants Douglas A Bream and The Foot and Ankle Center, by and through their attorneys, Thomas, Thomas & Hafer, LLP, respectfully move this Honorable Court to compel Plaintiff Shirley Ogden to respond to certain of Defendants' discovery requests pursuant to the Pennsylvania Rules of Civil Procedure and in support thereof aver as follows: 1. The instant cause of action stems from alleged injuries sustained by Plaintiff Shirley Ogden on or about December 11, 1998, when she underwent a left bunionectomy and second toe hammertoe surgery performed by Defendant Douglas A Bream, DPM. 2. Plaintiff filed a Complaint in the above-captioned matter on or about February 12, 2001. 3. Defendants Douglas A Bream and The Foot and Ankle Center filed their Answer with New Matter on March 3, 2001. 4. On or about February 22, 2001 Defendants served written discovery on Plaintiff's Counsel, including a Request for Production of Documents, a copy of which is attached hereto as Exhibit "An . 5. Request No.2 of Defendants' Request for Production of Documents seeks copies of all x-ray films of Plaintiff's left foot. 6. Pursuant to Pa.R.C.P. 4009.12, Plaintiff was required to serve answers or objections to Defendants' Request for Production of Documents within thirty (30) days of service. 7. On April 28, 2001, Defendants received Plaintiff's Answers to Defendants' Interrogatories Set I and II, as well as Plaintiff's response to request NO.1 of Defendants' Request for Production of Documents. 8. To date, Plaintiff has responded to all discovery except Defendants' request for x-ray films of Plaintiff's left foot. 9. Having received only partial responses to the Requests for Production of Documents, the undersigned sent a letter to Plaintiff's counsel on June 12, 2001 requesting the status of Plaintiff's overdue discovery responses relative to copies of all x-ray films of Plaintiff's left foot. A copy of the letter of June 12, 2001 is attached hereto as Exhibit "B". 1 O. Receiving no response to the aforesaid letter of June 12, 2001, Exhibit "B" hereto, the undersigned sent a follow-up letter dated September 18,2001 to Plaintiff's counsel reiterating the request for copies of all x-ray films of the Plaintiff's left foot. A copy of the letter of September 18, 2001 is attached hereto as Exhibit "C". 11. Plaintiff has failed to respond to the aforementioned correspondence and has also failed to completely and fully answer Defendants' discovery requests to date by producing copies of all x-ray films of Plaintiff's left foot. ,~~ , --" "~ , t 12. Without receiving copies of the x-rays of Plaintiff's left foot and knowing the nature and extent of Plaintiffs alleged injuries, Defendants are unable to properly prepare the defense of this case, to evaluate the merits of the Complaint or to otherwise dispose of this case. Thus, Defendants Douglas A. Bream and The Foot and Ankle Center are prejudiced by Plaintiff's refusal to serve answers to Defendants' remaining outstanding discovery requests. 13. All discovery sought by Defendants through the Request for Production of Documents is relevant to the instant litigation. 14. Plaintiff Shirley Ogden has not filed an objection to the subject discovery, nor has she sought a protective order related thereto. 15. Pa.R.C.P. 4019 (a) (viii) provides that upon motion of a party, the Court can make an appropriate order when a party "fails to make discovery." 16. Consequently, Plaintiff should be compelled to provide complete answers to Defendants' Request for Production of Documents, which include the production of all x-rays of her left foot in support of her allegations against Defendants or suffer the imposition of sanctions pursuant to Pennsylvania Rules of Civil Procedure 4019. 17. In addition to the foregoing, Plaintiff has identified two (2) out-of-state health care providers who have treated and examined her left foot subsequent to the surgical procedure performed by Defendant Dr. Bream which is the subject matter of this litigation. 18. In the letter of September 18, 2001, Exhibit "C" hereto, the undersigned provided Plaintiffs counsel with a written Medical Authorization to permit Defendants to obtain copies of medical records from one of the out-of-state health care providers, ,I ,~,f -- -', I .-, : *""; , Calvin S. Kibwe, DPM, and requested that Plaintiff sign the Authorization and return it to the undersigned. Plaintiff has failed and refused to do so. 19. In addition, the letter of September 18, 2001, Exhibit "C" hereto, also requested that Plaintiff provide the full names of two (2) health care providers, a Dr. Mixon in Virginia and a Dr. Masters in Harrisburg, whose partial names had been disclosed in Plaintiff's answers to interrogatories, in order that Defendants could obtain medical records from those sources. Plaintiff has failed and refused to do so WHEREFORE, Defendants Douglas A. Bream and The Foot and Ankle Center respectfully request that this Honorable Court enter an Order directing Plaintiff to provide Defendants with all x-ray films of her left foot in her possession so that copies can be made or that she provide Defendants with copies thereof within 20 days. In addition, Defendants further request that this Honorable Court enter an Order directing Plaintiff to identify the full names of Dr. Mixon and Dr. Masters and to provide Defendants with signed authorizations for the medical records of Drs. Kibwe, Mixon and Masters within 20 days. THOMAS, THOMAS & HAFER, LLP C--~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 1.0. No. 06776 ATTORNEYS FOR DEFENDANTS :142811.1 .-..... J " :.., i 1 C"n~' ',_ , APR 3 0 2001 SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8523 CIVIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF - SET I TO: Shirley Ogden c/o Don Bailex, Esquire 4311 North 6 Street Harrisburg, PA 17110 PLEASE TAKE NOTICE that pursuant to Rule 4009 of the Pennsylvania Rules of Civil Procedure, you are hereby requested to produce for inspection, examination and copying the following items at the offices of THOMAS, THOMAS & HAFER, LLP, 305 North Front Street, P.O. Box 999, Harrisburg, Pennsylvania, 17108 within thirty (30) days of service of the Request: 1. Copies of all medical records relating to the care and treatment of your left foot. 2. Copies of all x-ray films of your left foot. If any document sought by this Request is withheld from production based upon a claim of privilege, work product, or any other reason, Plaintiff shall identify each such document in her response to this Request by stating the nature of the document, the date ..~ ,"~ ,-<- ,;-., ..;--~,!l!... l'~,b' , of its preparation and shall indicate the reason why its production is being withheld. This request shall be deemed continuing and any response shall be supplemented upon receipt of additional information. THOMAS, THOMAS & HAFER, LLP Q-,~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 1.0. No. 06776 ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE AND NOW, this 22nd day of February. 2001, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attomeys for Defendants, hereby certify that I have this day served the within Request for Production of Documents to Plaintiff - Set I by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 THOMAS, THOMAS & HAFER, LLP O-'~ C. Kent Price, Esquire " , , ,-~, , - ),jiOOn (717) 255-7632 CKPra>tthlaw.com June 12, 2001 Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 RE: Ogden v. Bream No. 00-8523 Dear Don: On or about February 22, 2001 I served you with a Request for Production of Documents in the above matter. Subsequently, you did provide me with copies of medical records in response to that request. However, you have not provided copies of any x-ray films of your client's left foot and it is my understanding that she does have original films in her possession. Would you please consult with your client as to whether she does have x-ray films in her possession and, if so, make arrangements to provide me with copies at your earliest opportunity. Sincerely yours, THOMAS, THOMAS & HAFER, LLP C. Kent Price CKP/ves:118727.7 "~ ->-< '= " -', (717) 255-7632 ckp@tthlaw.com September 18,2001 Don Bailey, Esquire 4311 North 6th street Harrisburg, PA. 17110 RE: Shirley Ogden v. Douglas Bream, DPM Dear Don: In your answers to Interrogatories in this matter you identified two health care providers from Hampton, Virginia, namely Calvin S. Kibwe, DPM and a Dr. Mixon. I have tried to obtain a complete name for Dr. Mixon but the telephone company in Virginia has no such person at the address you provided. Would you kindly provide me with more information regarding this provider so I can obtain copies of his records. In order to obtain records from Dr. Kibwe, I have enclosed a Medical Authorization with the request that it be signed by your client and returned to me. Of course, I will see that you are provided with copies of any records I obtain by use of the Authorization. You did provide me with a letter from Dr. Kibwe dated November 28,2000 addressed to a Dr. Masters in Harrisburg, PA. I can find no reference to a Dr. Masters in the Harrisburg telephone book. Would you please provide me with more specific information regarding this Dr. Masters. Finally, I served you with a Request for Production on or about February 22, 2001 which contained a request for copies of all x-rays of Ms. Ogden's left foot. I also sent you a follow-up reminder in that regard on June 12, 2001. To date I have not received a response from you, nor have I been provided with copies of those films. I note in many of the medical records that the providers refer to the fact that Ms. Ogden has brought films with her or that she took films with her when she left, so I have reason to believe that she has x-ray films in her possession. If your client would drop the films off at your office, I can make arrangements to have them picked up and copied --'"" . --, -- "'-' , "'''''' Don Bailey, Esquire September 18, 2001 Page 2 and then return the films to you immediately thereafter. I would like to accomplish this within the next 14 days so we can move forward with depositions. I appreciate your attention to these matters. Should you wish to discuss these matters further, please call me at your earliest opportunity. Sincerely yours, THOMAS, THOMAS & HAFER, LLP C. Kent Price CKP/ves:118727.8 Enclosure ..1, .:. ' ,'__,___'" '= "" J\lii. CERTIFICATE OF SERVICE AND NOW, this 18iay of October, 2001, I, C. KENT PRICE, ESQUIRE, for the firm ofTHOMAS, THOMAS & HAFER, LLP, attorneys for Defendants, hereby certify that I have this day served the within Motion of Defendants Douglas A. Bream and The Foot and Ankle Center to Compel Discovery Responses from Plaintiff by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 THOMAS, THOMAS & HAFER, LLP ~YA~ C. Kent Price, Esquire " .I; i ~ ,[ , -';. ...'""~ iIl:ll.JIl, 1 \; , OCT 3 120m SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendant NO. 00-8523 CIVIL TERM ORDER OF COURT AND NOW, this 29th day of October, 2001, upon consideration of the Motion of Defendants Douglas A. Bream and the Foot and Ankle Center To Compel Discovery Responses from Plaintiff, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, Don Bailey, Esq. 4311 North Sixth Street Harrisburg, P A 17110 Attorney for Plaintiff TV' ...,""",r'" ~. K t Price, Esq. 3 North Fro, nt Street .0. Box 999 Harrisburg, PA 17108 Attorney for Defendants .'" . . -' . . e",''', ,~ ~' "".."'. f'J...-!' . '.2ho ( '~1L~tO~)- Pr(j1l'1~)r!(iJtaf ~f .-"1 J i ~- , . ~~ ,,: '1 .; -, "If~ \ SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8523 CIVIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2001, upon consideration of Defendants' Motion to Compel Discovery Responses, it is hereby ORDERED AND DECREED that Plaintiff shall provide Defendants with all x-rays in her possession of her left foot to be copied by Defendants or, in the alternative, Plaintiff shall provide Defendants with copies of all such x-rays within twenty (20) days from the date of this Order. It is further ORDERED AND DECREED that Plaintiff shall provide Defendants with the full names of Dr. Mixon and Dr. Master and shall execute Authorizations enabling Defendants to obtain medical records from Dr. Mixon, Dr. Master and Calvin S. Kibwe, DPM within twenty (20) days from the date of this Order. Failure to comply fully with this Order shall subject Plaintiff to the imposition of sanctions. BY THE COURT: J. _",I , ~ l< ~_~,_, ,,',"-,i. ,.'__,c~_ l~:i , SEP 2 0 2002 SHIRLEY OGDEN, Plaintiff -, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. NO. 00-8523 CIVIL TERM () r"') t;; r:~) .,:: '.,- ...ti~t~ ~; JURY TRIAL DEMANDED 1"T10,; ;.:; ~.~: tv DEFENDANTS' MOTION TO MAKE RULE ABSOLUTE ,<:0 :O:e )>c; ~ 'Zoo co Defendants filed a Motion to Compel Discovery Responses from prai~jff ::. S1 ...1 on or about October 18, 2001. DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants CIVIL ACTION - LAW 1. 2. On October 29,2001 the Honorable J. Wesley Oler, Jr. signed an Order issuing a Rule upon Plaintiff to show cause why the relief requested by Defendants should not be granted, said Rule being made returnable within 20 days of service. A copy of the aforesaid Order is attached hereto as Exhibit "A". 3. Defendants thereafter made service of the Rule upon Plaintiff's counsel of record by Certified Mail on November 2, 2001. A copy of the letter of transmittal and Postal Service signature card evidencing service are attached hereto as Exhibit "B". 4. By letter dated November 21, 2001 Plaintiff's counsel "responded" to the Motion to Compel, indicating that the Plaintiff had no x-rays in her possession and that she did not have telephone numbers of her doctors, which latter information counsel considered irrelevant to the litigation. A copy of the aforesaid letter is attached hereto as Exhibit "C". ~~ - =:--~ r~:~ ~~~~ ~t ~~~ (_~_rn 0;\ .". ~ , 5. Plaintiff has not filed a response to the Rule issued by this Honorable Court within 20 days of service thereof. 6. Plaintiff has not provided Defendants with the full names of Dr. Mixon and Dr. Master, whose names appear in her medical records, as requested in the Motion to Compel. 7. Plaintiff has not provided Defendants with signed authorizations which would enable Defendants to obtain medical records, including x-ray films, from Drs. Mixon, Kibwe and Master, the first two of whom practice medicine in Virginia and, therefore, are not subject to a subpoena issued in Pennsylvania, as also requested in the Motion to Compel. 8, Prior to filing the within Motion to Make Rule Absolute, Defendants made one final effort to obtain the discovery requested, rather than involve the court, by sending a letter to Plaintiff's counsel, dated December 17, 2001, enclosing yet another medical authorization with the request that it be signed by the Plaintiff in order that Defendants might obtain medical records and x-rays from Dr. Kibwe, a podiatrist practicing in Virginia. A copy of the aforesaid letter is attached hereto as Exhibit "D". 9. Despite the passage of more than 30 days since it was mailed, Plaintiff has made no response to the aforesaid letter. 10. Defendants request that this Honorable Court make the Rule issued by Judge Oler absolute for Plaintiff's failure to respond and impose sanctions upon the Plaintiff for her continuing failure and refusal to permit Defendants to have access to medical records and x-rays that are relevant to the issues raised in this matter and to which they are entitled. WHEREFORE, Defendants Douglas Bream, DPM and The Ankle and Foot Center request that this Honorable Court make the Rule previously issued absolute, that it order Plaintiff to sign authorizations permitting Defendants to obtain records from her treating health care providers, and that it impose such sanctions as it deems appropriate, including the entry of judgment in Defendants' favor. THOMAS, THOMAS & HAFER, LLP G.-~ c. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA. 17108 (717) 255-7632 ATTORNEYS FOR DEFENDANTS 155483.1 1.- " 'J ^= , .,', 'OJC.,'T' 'JI,. 1 '~"'1'I"!' ~ ""- ",Uy] SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendant NO. 00-8523 CIVIL TERM ORDER OF COURT AND NOW, this 29th day of October, 2001, upon consideration of the Motion of Defendants Douglas A. Bream and the Foot and Ankle Center To Compel Discovery Responses from Plaintiff, a Rule is hereby issued upon Plaintiff to show cause why the reliefrequested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, Don Bailey, Esq. 4311 North Sixth Street Harrisburg, PA 17110 Attorney for Plaintiff '~~ -.' ~ "-, ~. K t Price, Esq. 3 "North Front Street . .0. Box 999 Harrisburg, PA 17108 Attorney for Defendants !.' >',,~Ia!;;, .' ','.' .{J;~ ';,,:i}:Q,L Lfwt G::.~ ~ ' ,.".- -. . -.- ~.~~_.... .- ,~'"_.- ~_.__." - - .-,. . - . ' j' -,':(';,..~ )t~':.~; (717) 255-7632 ckp@tthlaw.com November 1, 2001 CERTIFIED MAIL Don Bailey, Esquire 4311 North 6th street Harrisburg, PA. 17110 RE: Shirley Ogden v. Douglas Bream, DPM Dear Don: I have enclosed a copy of a Rule issued by Judge Uhler in response to the Motion to Compel Discovery that I had previously filed and served on behalf of my clients in this matter. Please note that the Rule is returnable within 20 days of service. Sincerely yours, THOMAS, THOMAS & HAFER, LLP C. Kent Price CKP/ves:118727.9 Enclosure Complete "items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. II Print your name and address on the reverse so that we can return the card to you. . Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: 000 b(ll ky 2. Article Number (Transfer fram service label) PS Form 3811 . March 2001 cQil U\(t- ruOI D Agent o Addressee DYes o No 3. ~rvice Type ~'Certified Mail o Registered o Insured Mail o Express Mail o Return Receipt for Merchandise o C.O.D. 4. Restricted Delivery? (Extra Fee) DYes \~yo 6~l1S ~\l Dti.'. I ) Domestic Return Receipt 1Q2595-01-M-1424 Noli 26:.37 11:,o6a Don Baile:l .~ r__."" ,...... ....' ,. " 71.7 221 8600 p. 1 '-""'-- ~ . '. ,-', '. " ,-, . . .,.. . 'NOV2620Of .... " ~'. . . d'.",' ffJO/l ~~cu~~ d? . 6diJ. . . n"'(~f~llstluhi Omt~c: .' 114:,,8: 'i04~~,jt'S):h~ct '. . . . .Gii:Ci1s~ur'g" r~~\ 15601 . (7NS36~5~\~14 .. '4.jn,N:'6uiStI:~x:t..., __' : " ,ri~rrisbJ.T:;') ~jA'.17iJ,O,. ..,,~. ,. (717) 221'~500 . :Fax 22t..9600 . . . ,. ::: :~,~~l~y(u:l~~".~~~.r'"' ,.., , . .. . ': .' . " . . , , ,"'" _, dr qj')!lI1'S'~~;'- . '.' .f:;nn1.uel C.,'f;lLloutl.ulJ ". Andl:cv" j,. 9~'tro0sid. "'" "','.' ," . N,)vtll1bcr }I, l.Oeil. ...." , ..... - - - " ",- .,' -, ',i.':' ".,.- 'n_:"'-" ,c. :.,' . .<.;-;,:'~;. :,,~;~:l~{:~~rr~1{~;~;~~~:~t. ;~:s"~r;;', ~,~~'-i::.:.~'~ :,:" ~'f~~i::~~f~~1'~f;:'-', - ~ - ..;c,."....,..e...I".<:Ij(.IHCC...l::'Ji}ullf8' . '. .....~:r:;~6:\~';'N,\iiili't\;J;;r~ti;;G(.; . 'l?.() . Box'(l()<J ..' " 'lh]l+i~burf.t; Pi! 17108" . .VIAFi\X~ 2:i7~710r . "'-' '" '.'. . "',;'." . r)eill'IVlLI~li9ii' c..' .('-. . '.', < ,..,.. ." ,~,.,. . . .,,' ,-, " 'Siilc#rdYi '.' ...~..,CL\ D611 B<lilcy . . ., '. ,.' -',' . . ,. , , "'-' . . "-. . .' ,. . .. . . . . . . .. - . , - .. . ' ~ ' , . "- . :;~cd~' " . . - ,J .:-,,'.' Dlhilb cc: Shirley Ogden , ~-~ , , =' i (717) 255-7632 CKPrcv.tthlaw.com December 17, 2001 Don Bailey, Esquire 4311 North 6th street Harrisburg, PA. 17110 RE: Shirley Ogden v. Douglas Bream. DPM Dear Don: In my letter of September 18, 2001 to you regarding the above matter, I enclosed a Medical Authorization with the request that it be signed by your client and returned to me. Inasmuch as I have not heard from you in that regard, I have enclosed another Medical Authorization which will permit me to obtain medical records and x-ray films that Dr. Kibwe may have in his possession. As you are aware, I am more than a little interested in obtaining copies of all x-ray films and you have indicated in your letter of November 21, 2001 that your client did transport x-ray films to the doctor in Virginia, whom I believe would be Dr. Kibwe. Would you please have your client sign the Authorization and return it to me as soon as possible so that I might follow up in obtaining these records, Sincerely yours, THOMAS, THOMAS & HAFER, LLP C. Kent Price CKPlves:118727.10 Enclosure ~" I~ , '- ,,'~, ,.~~-~, ,'"--" ",;;:, - <'-, CERTIFICATE OF SERVICE AND NOWr this J.l ~y of January, 2002r Ir C. KENT PRICEr ESQUIREr for 'I I' I I 1:1 HI 1.1 ;,i ;1 i,1 Ii i'1 [i I ill I I: Ii i ~ i ,I !I Ii I'i II I', Ii ,I j i the firm of THOMASr THOMAS & HAFERr LLPr attorneys for Defendantsr hereby certify that I have this day selVed the within Defendants' Motion to Make Rule Absolute by depositing a copy of the same in the United States Mailr postage prepaidr at Harrisburgr Pennsylvania, addressed to: Don BaileYr Esquire 4311 North 6th Street Harrisburgr PA 17110 THOMASr THOMAS & HAFERr LLP (I~~ C. Kent Pricer Esquire ,I I: "I JAN 2 8 2002 SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants NO. 00-8523 CIVIL TERM 'i ORDER OF COURT ~ND NOW, this 22nd day of January, 2002, upon consideration of Defendant's Motion To Make Rule Absolute, the motion is granted, the Rule issued on October 29, 2001, is made absolute, and Plaintiff is directed to respond, without objections and in verified form, to Defendants' discovery requests. BY THE COURT, J. Don Bailey, Esq. 4311 North Sixth Street Harrisburg, PA 17110 Attorney for Plaintiff ~. ent Price, Esq. 5 North Front Street P.O. Box 999 Harrisburg, P A 17108 Attorney for Defendants :rc , 1- ;,', , , -{ FE8 0 4 2002 SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants NO. 00-8523 CIVIL TERM AMENDED ORDER OF COURT A;ND NOW, this 1st day of February, 2002, the Order of Court previously entered in this matter on January 22, 2002, is hereby amended to reflect that Plaintiff is directed to respond, without objections and in verified form, to Defendants' discovery requests within 30 days of January 22, 2002. BY THE COURT, J. Don Bailey, Esq. 4311 North Sixth Street 'Harrisburg, PA 17110 Attorney for Plaintiff <;.Kent Price, Esq. ~05 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants :rc I ' ,- "c.'-"'''''" ., ,c -<.j."-,"",,,, SHIRLEY OGDEN, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-8523 CIVIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants : CIVIL ACTION - LAW : JURY TRIAL DEMANDED AND NOW, tills CERTIFICATE OF SERVICE I ~fh day of September, 2002, I, STEPHANIE HERSPERGER, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendants, hereby certify that I have tills day served the within Motion for Sanctions of Defendants, Douglas A. Bream and The Foot and Ankle Center, by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, P A 17110 Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP ~n/YIjj2 ?-c~V7"'-- Stephanie L. Hersperger, Esquire ~"'"" ;,~j -',~~ ,iliil!rllll"'" ,," ,c,::t[,i:,"7i;'<' ''',,_,,">', 1'" >'-e,.,-, ,__ " ~ ;~"-~' ,,' M~Jl:,-~,>~;'j~'"-;;'_ii-[]:- 'eo': ":~';.:'~~":"~)"~'~--~';;B1:~~;>~:: " ,,' ,,X, ,<";;,;;;",,",, o <:;~ -OV' ~;~:~: ()~ 'I"' ,. , ~:::\~ ~-(::. (.--;, :J-- i" :~ , ,,_',_, -"'''''~''''',''''f, ,W,~ "' . ",I " ~- , C'":J 1"0 ,n en '-0 '" ""'" ';"'''';''1 (") ~T\ \.,0 :rJ r- ;~'n JO ~)~~}, t~!",) ,_":;; (I ~ ~o -< ~''''-, .--:.-". 0) J1 ,~ - -'--\0 SHIRLEY OGDEN ) Plaintiff ) \T. ) Douglas A. Bream and The Foot ) and Ankle Center ) ) Defendant ) l, , ,. -,-,,-, "~~" irk IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PA . c. ex> - ,pS.),J Cl(jL'l l~ CIVIL ACTION - LAW PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Issue a sUrUmons in Civil Action in the above captioned case against the above named Defeadants1 Dr. Douglas A Bream and The Foot and Ankle Center, Mechanicsburg,PA.,17055 ..; ~'7Jc{o "Ue.lIona::L ~ + DATED: December 11, 2000 Serve all Plaintiffs' papers through her Counsel, Don Bailey, Esquire, 4311 N. 6th Street, Harrisburg, P A., 17110. (717)-2 1-9500 Don Bailey, Esquire Counsel for Plaintiff ~~ixigiir~;' -~l,[ft~~ili!l~~~t~"!1J,;,:;wM.~~~m~~.mjJ['!jif;;~~;"'"' ~'--....~~ . , Hi:i1.m'l' V . (p (J ~ ~ ~~,h~D -. ::0 () 0 l--J ~ Q I ~ 0 & \/~~ "-<,t ,,~ -.,..., ,,~,)~ _. ''''. <_'c7"ho""~'~-'~,s.-:-' , "' _~,'" '_ ,. ,,",-, - ,'_',' - ''r1", ^' _ '"',''' ",",,- - '. ~ _-__~, ,.,,, I' _ ,~, I. "" "'"'''''''''' ~<_ =;J,,"- .' --,~ ..' ~ if '1'"<:J rPf ~ " /" e 1c- r- C) <::) 0 c 0 -o,~ -n 0 .;~ r'"1 ~m n ;:.~~ ~"l" ::r:; "'fO:.t zc -,--:Irn 8 ~~!::~ :.-i'.] 0 L.. "',.I. \<0 :>> ::'--:~I .~) ~o 3:: ik':k =0 ~C-) PC: ~ ofn ~ .=:) s;;: 0 ::0 -< ~ ~, 0 iu.....-.. . --.. Commonwealth of Pennsylvania County of Cumberland Shirley Ogden Court of Common Pleas VB. No, _mil_0_-:~?_2),J;:1-YU_')'~J?!I_m_mm 19____ Douglas A. Bream and The Foot and Ankle Center 4740 Delbrook Road Mechanicsburg, PA 17055 In _m_~jyg_A"t:1-2.Il_:_~"!_______________m Douglas A. Bream and The Foot and Ankle Center To _____________________________________________ You are hereby notified that _____liQirJ_~~-~q~D----------------------------------------------------------------------------- the Plaintiff h!';s commenced an action in __c.L'lZiL1Id:iOD.._-=_Law._n___n_n_n_n___n_nn_nn against you which you are required to defend or a default judgment may be entered against you, (SEAL) Curtis R. Long ._-------------------~--------------------------- , Prothonotary Date __Ile.cember_ll~_2ll.Q.Q_______ ~_2~_?!J~ Depu;--~tL ~.t&J*Ji"&j'""'""-'",,~[jbt'"'''~~~''~~;i'~~i!~~~ -;.0'.'. '" -~~mi~,;j)ffi11~~~' ~..c..~ . " """ - ...- ~~t:;5' lf~tf5' g< ~ I f-' f-':; n ... CD ~ .... t5 I 'if-' [0 cO 'i "'.... & 0 '>:If-' f-' II VlUlZ .... lij'OPl ~ p:l 00'. 1-'- <: 1-'- 0 Ul IJ1 O~ f-' .... r nf-'rt:J:' f:;3 VlCD f-' Ul 0" .8 rt'<: 0" 'i Pl . P. ;l> - ;:;, i'l CO:; p. S ~~P.W CD 'U(J)t<:! rt ~ :; ~ l :J:'rtUl .... ~ ' ~ CD 'i..o 0 [iJ@ ~ f-'CD' :; l-3 ...,CD f-'rt I ... P.CDPl ~ f-' = f-' :; 0 i ..., OP. o CD I Vl :; I Vl rt I CD 'i }'1;r'A~2/ ",>""CI"_j""~,,',,','_'e_',,_~,,,,,..,,,O~''-'' ~",'?' ~" -;-.,.:~, ",'NI" '-, If; -,,\1JjJoiilll- - ~~ ...1' - ..~ , """ SHERIFF'S RETURN - REGULAR .-, CABE NO: 2000-08523 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ODGEN SHIRLEY VS BREAM DOUGLAS A ET AL DAWN KELL , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon BREAM DOUGLAS A the DEFENDANT , at 0014:34 HOURS, on the 14th day of December, 2000 at 4740 PELBROOK RD MECHANCISBURG, PA 17055 by handing to JUDY JACKSON (MANAGER) a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 7.44 .00 10.00 .00 35.44 r~~~~ R. Thomas Kline 12/15/2000 DON BAILEY Sworn and Subscribed to before By: \)<lliTI\ -g. ~ Deputy Sheriff me this .3.Ml... day of 0.,,~ ,;),i'Hi1 A.D. C),ltoQ fvtl{lP"-',IlDtZ; rot onotary ~~"' .." "~ ;[ ~, ~'--- SHERIFF'S RETURN - REGULAR . . - CASE NO: 2000-08523 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ODGEN SHIRLEY VS BREAM DOUGLAS A ET AL DAWN KELL , Sheriff or Deputy Sheriff of Cumberland County, pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon FOOT & ANKLE CENTER THE the DEFENDANT , at 0014:34 HOURS, on the 14th day of December, 2000 at 4740 DELBROOK RD MECHANICSBURG, PA 17055 by handing to JUDY JACKSON (MANAGER) a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 .00 .00 10.00 .00 16.00 So Answers: , ' ?,' ~("":::-.-e< ~~~ ~ ~~~ ~r --eA;.~ . , R. Thomas Kline 12/15/2000 DON BAILEY Sworn and Subscribed to before By: ~(l.UYY\ .g.. U Deputy Sheriff me this .3 ~ day of ~ ~I A.D ~, Q . h..,QI,., # ' Prothonotary' . ",.; '-,j.:" -co., ,. " ,-..' ., ~ __" cL,,':, . ~, ,,,,.,,'" _' ""' ',- ,.' o . ',~ ~'" - """' .. ;;J[ SHIRLEY OGDEN, Plaintiff v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO. 00-8523 CIVIL TERM : CIVIL ACTION - LAW DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants : JURY TRIAL DEMANDED WITHDRAWAL AND ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please withdraw the entry of appearance previously made by Peter J. Curry, Esquire on behalf of Defendant Douglas A. Bream in the above-captioned matter. Please enter the appearance of C. Kent Price, Esquire on behalf of Defendant Douglas A. Bream in the above-captioned matter. R, LLP THOMAS, THOMAS & HAFER, LLP r~~ C. Kent Price, Esquire Identification No. 06776 P.O. Box 999 305 North Front Street Harrisburg, PA. 17108 (717) 255-7632 Attorneys for Defendant Bream 118136,1 1Ji't"i"ii "'i"~iW l,~",. ~1lli--t7'.... '" cl"".:.;i.>.~j~I~~l~-J.--""''"''''-'''~ "" ":,-,'c .~ ~ "~,,' "." ."".~-"'., .~,' ",^,""?~. 0'"- , "'J~:r "',, -,.., " , . " ",' ",',,"<"k," """"1 I i , ! ".., ,~"..." '% , D C) ,-...... ,., " ~CJ r~ '- III :.:~ :z :i:' ,.,,- ,. Z ;;':;- I :<-::) G0 ('0 ~~ Ci. , ~.-: -~? C') ~,:-- --.>' () ~>~ ~;C'I (" C') ):..... ~,) en C '..~ (:J .~,-- "-f ::< ~. (::> :0 -< " ~ ,"'"-, ,l ",", . THOMAS, THOMAS & HAFER, LLP By: Peter J. Curry, Esquire Identification No. 16622 305 North Front Street P. O. Box 999 Ha"isburg, PA 17108 (717) 255-7637 Attorney for Defendant Bream "~'I ,;"~ ,,' '1;,';,- :..~t 'r' , "~'-\,;" >,.0,',-'" ,,-,\.; ,,'.~ . s~i SHIRLEY OGDEN, Plaintiff v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO. 00-8523 Civil Term : CIVIL ACTION - LAW DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants : JURY TRIAL DEMANDED PRAECIPE FOR ISSUANCE OF RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Please issue a Rule upon the Plaintiffs to file a Complaint within twenty (20) days after service hereof or suffer judgment non pros. THO r -c,_ , ,-'>- 0""'''' "~, Ie """, - .-, c ",'", '~,'",' -' ':'A"^","" "';;'~;-""'~"~_'1__' "",_' ", , . RULE TO FILE A COMPLAINT TO: Shirley Ogden, by and through her attorney, Don Bailey, Esquire 3540 North Progress Avenue Harrisburg, PA 17110 A Rule is hereby issued upon you to file a Complaint within twenty (20) days after service hereof or suffer ajudgment non pros. Date:.J~ .:((::2Do f (L~) k, ~ Prothonotary -- di-J.s;, ;~: ,'" -"'~ UlMi~iii.!i-'" ,~ ,~,'~"~,v__,,," >'" ~",~,' ,J~""",~"",--,,,"_,~ - "'Io~&:";'>ttLJt~:"- ,-' :.:,~,'"", '-"~--;"il"_' ',>, , .,~" "",", " "'", ~,_ c '.__ I, _~ ~_ ,w ,,', """,.',"" 0 <::) 0 C . ?~ '- --:, ~~j :{',T> IT! """", :z ,'~ z S I " ~~-=~ (~ r'<:' , ~-,~ -< r::: \j ~>1J " """ ~ C~ -0 c> ,- )..'" c: ~i~ :z; =< -< , ''''I I . " '" '-"-"".--< ^,,"', '" '~ "0," ~ . _', '0' ,,- ;,,:j '.'0"__' ." ~'; ."l" " '\";~',,,,:;c:-~;,~,,,:'~',~':~~~ ':" , I 'I THOMAS, THOMAS & HAFER, LLP By: Peter J. Curry, Esquire Identification No. 16622 305 North Front Street P. O. Box 999 Ha"isburg,PA 17108 (717) 255-7637 Attorney for Defendant Bream SHIRLEY OGDEN, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : DOCKET NO. 00-8523 Civil Term : CIVIL ACTION - LAW DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants : JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance for the Defendant, Douglas A. Bream, in the above- captioned case. Respectfully submitted, ER, LLP ;., ~Bt[" ~' l ',," " Iii ,~"- ",,?'1,)~:;:!. .- "-': ~~I, "'", c~-",A.~,,~- !">,"",,,,",,_ :., - ~ '" ~.L ";,,'.:':"'~'.ijj~~>"";',,':'~J,'__' ,{'" ,2;"~::":~':~~~1;}(lir:\':t.~"> )'" - III! 11._ I. '<",,,~;,."" ' ",' '0"_" ';""',' ,-,,_, ,,~ < ~~'''' '. ",,'"~ ,"".",' ,;'i. ':^"71W''''-,-, .-,,~,.,~~, ,'-~~"'=''''''' "", ~~ ,"'-' . ".'", ,~"" .c<~",,,,,,c .,' ." o ~; -oM" 2~r: ZC' 'J) ,,~-. ~~ z :::! "~I c:.~ "') :;:''l ~,' !:'.: -'-I F":;;' ,-..-, ':':J 1'''-.:) .,."'~ " ,-, :,...' -':;,,- ~~;~~ 2:::1 ',~ 5:J -< - . L,. ' ~~~. >~ ~~"j,j!lt!l!" .~l , IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY OGDEN, ) Plaintiff ) ) V. ) ) DOUGLAS A. BREAM and THE ) FOOT AND ANKLE CENTER ) ) Defendants ) DOCKET NO.OO-8523 Civil Term CIVIL ACTION LAW 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 BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE,PA 17013 (717) 249-3166 r. ~ " , ~'~ I " ,,~_j"":1il~' "" - ~ , IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA SHIRLEY OGDEN, Plaintiff ) ) ) ) ) DOUGLAS A. BREAM and THE ) FOOT AND ANKLE CENTER ) Defendants ) DOCKET NO. 00-8523 Civil Term V. CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT COMES NOW the plaintiff, Shirley R. Ogden by and through her attorney Don Bailey, and brings the following in support of this complaint: 1. The Plaintiff, Shirley R. Ogden is an adult individual residing in Dauphin County, P A. 2. The Defendant, Douglas A. Bream, D.P.M. and the Foot and Ankle Center practice medicine at 4740 Delbrook Road, Mechanicsburg, Cumberland County, PA 3. On or about December II, 1998, Dr. Bream performed an operation on the Plaintiff, Shirley R. Ogden, at Harrisburg Hospital, in Harrisburg, Pennsylvania. 4. The operation was to be a bunionectomy of the left foot and Dr. Bream represented to Shirley that he was experienced and could perform the operation in a normal and routine manner. 1 (F~ - "",_ , - __w.iorJ~_),!-. . , 5. On December 11, 1998, Dr. Bream performed the operation at Harrisburg Hospital, in Harrisburg, Pennsylvania. 6. Defendant had represented to the Plaintiff, Shirley R. Ogden, that the operation was routine to Defendant and would be an easy matter for the defendant, but suggested that he be permitted to operate on the foot and the second toe to prevent future bunions. 7. The Plaintiff rejected this idea. Dr. Bream also suggested operating on plaintiffs right foot, but she rejected this idea also. 8. Dr. Bream said the operation to the second toe on her left foot would only involve shaving of some bone. Plaintiff still rejected this suggestion. 9. In the performance of surgery, Defendant was negligent and thereby committed medical malpractice with respect to Plaintiff, Shirley R. Ogden, in the following respects: a. by fusing bones in Plaintiffs' foot, b. removing cartilage, c. in performing an operation that was not consented to by the plaintiff. d. in performing an unnecessary operation. e. In damaging Plaintiffs' foot when no need was present to resolve her problem with bunions or for any other purpose. 2 0-"'1-, ~-~ 'I ^ ~~ ,-" ~~~~~ ~ "",.6",...""-,,;,,,,, . j f. in performing an operation beyond the range of his skill and ability, g. in failing to know or, or consult experts who would know of the medical risks and effect of the operation (even though it was not necessary nor consented to) being conducted on Plaintiffs' and its effects and potential effects on Plaintiffs future ability to walk and move, h. in failing to exercise the standard of care required of surgeons with respect to all the above. SHIRLEY R. OGDEN AGAINST THE DEFENDANTS DOUGLAS A. BREAM AND THE FOOT AND ANKLE CENTER 10. Plaintiff incorporates Paragraphs 1 through 9 above by reference. 11. Soley and proximately as a result of the negligence of the Defendants as set forth above, Plaintiff, Shirley R. Ogden, suffered at least the following grievous and severe injuries, some, or all of which, will continue indefinitely into the future: a. extreme pain and suffering from the wounds caused by the fusing and cutting and removal of bone in the area of her left foot and toes; b. extreme pain and suffering due to the protracted healing period due to the unneceSS31Y and improperly conducted operation on Plaintiff's foot and toes; c. extreme pain and suffering due to the protracted nature of the recovery 3 "'- .~, ~~w..iJIl_~_JJ~,i , caused by the unnecessary surgery; d. extreme pain and suffering caused by walking and trying to move about that has spread to Plaintiffs ankle; e. the need for corrective surgery to be perfonned by another physician; f. pain and suffering in connection with the surgery and nonnal healing process in connection with the corrective surgeries; g. pain and discomfort, in walking and maneuvering; h. severe emotional distress and humiliation in connection with the inability to walk and move about; i. severe emotional distress and humiliation in connection with the embarrassment of not being able to walk or move nonnaIly; j. severe and emotional distress and humiliation in connection with not being able to get up on her toes; k. loss of ability to perfonn nonnal daily and household functions, because of the surgery; 1. loss of ability to participate in recreational activities nonnaIly enjoyed, but now precluded because of the surgery and due to the protracted healing process; and; 4 J, '~~ , , '. - -,- ~~,t " . m. reduction in her ability to enjoy the pleasures of life. 12. Soley and proximately, as a result of the negligence of the Defendants as set forth above, Plaintiff has suffered the following property losses some of which may continue indefinitely into the future; a. considerable expenditures for treatment, medication and transportation in connection with the original surgery performed by Defendant and for corrective surgery to come; b. considerable expenditures for treatment, medication and transportation in connection with the protracted healing and following the surgery performed by Defendant and for corrective surgery to come; c. considerable expenditures for treatment, medication and transportation in connection with the corrective surgeries performed by another physician; d. loss of wages for an unwarranted period of time occasioned by the needlessly protracted period of time related to healing and pain and humiliations and to deal with corrective surgery to come; e. future expenditures for continued treatment, medication and transportation indefinitely in the future; and f. the likelihood of future expenditures for treatment and/or counseling in connection with emotional problems suffered by Plaintiff. 5 -~~I L of ~ J'"" ,~.! ' 1i'~il!wj,'i"""'4l;.<' , 13.) The defendant negligently, needlessly, and without plaintiffs consent performed substantive surgery and unnecessary surgery on plaintiffs foot that has caused severe and probably uncorrectable injuries to plaintiffs foot. 14.) Prior to filing suit plaintiff sought opinions from at least two disinterested physicians who informed her that what she had experienced with Dr. Bream was "incorrect" if she had seen "legal counsel" and the procedure on the second left toe "should not have been done," and the bones "should not have been fused," her second toe will never" bend again your in its present condition" and a "joint implant could be performed as a salvage procedure," and that the surgery was "not performed correctly" on the "large toe," all referring to the Defendants defective performance of their duties to plaintiff. WHEREFORE Plaintiff, Shirley Ogden, respectfully requests this Honorable Court to enter judgement in his favor and against Defendant in an amount in excess of $25,000.00 plus costs of suit. D Bailey PA ill #23786 4311 N. 6th Street Harrisburg, P A 17110 (717) 221-9500 2-12-01 6 - ~ ",. , , , ' CERTIFICATE OF SERVICE ."-" "'12_';';,-, I hereby certify that on this 12th day of February 2001, a true and correct copy of the foregoing COMPLAINT was served upon the following counsel of record by United States Mail, postage prepaid: KENT PRICE, ESQUIRE THOMAS, THOMAS, HAFER, LLP 305 NORTH FRONT STREET P.O. BOX 999 HARRISBURG,PA 17108 BY cfJ. .. Don Bailey ID# 23786 4311 N. 6th Street Harrisburg, P A 17110 (717) 221-9500 ,"";.",,~t ...:'il'~ '--'-""'!&i',~.~i!~_~Jll!lOi~H*-'~,jlj&~:;,{jJi'<k!j~;rr;.~~mLl~lIJ_""" ':l:li_lfljiwilH@".1~;>\i;~~.w.J ,,~i.!!)~J<J~ . tHo ,~, ""!<''''<''''.'''~''''',.."' ~.. "'';',<,'_ _--,'o,',_',.~.~."""",," ,",' .-.1." " "' ~ . ...~WllllSlillila ~"'" o ~;; -r; t-;~ n'lr--;-' z-:;-- 23; S~~:: -<.::. r:::c. -, 2>c, ~2 z -.... -< c> " ~"~'M .. (~-~ -" i-'-'1 _,')J f",) o ;-,;\?:' _~, l..) , :;:~ 6;~;~ ;:-"1 d;:; =< 1.0 ;;:- G:.l ~ ~'6 , - --, ~ "_.~ ~'""IWlll iOI~';;;'~ , , VERIFICATION I, Shirley Ogden do hereby swear and affinn that the afore going Complaint is true and correct to the best of my knowledge, information, and belief. I am aware that making false representations to Authorities is a violation of law, ~-/f'~ Dated: . '~_' .. r. _~ ". SHIRLEY OGDEN, Plaintiff v. DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants TO: Shirley Ogden clo Don Bailey, Esquire 4311 North 61n Street Harrisburg, PA 17110 1-- -~. :1 - ," .",- ',c.,,,",A ,_"b """.~"""".'(>~",<"'<-- -'-,I IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8523 CIVIL TERM : CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE YOU ARE HEREBY notified to plead to the enclosed New Matter within twenty (20) days of service hereof or a default judgment may be entered against you. DATED: 3J oOC J 01 THOMAS, THOMAS & HAFER, LLP 0--~~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 ATTORNEYS FOR DEFENDANTS --- <I ,~ -,,~ , J j- _ -,~,,_' _,' _<,,;<,,_,',.:>:~" <;';;i,,:~;;!:, ".,' "_ U-"l SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8523 CIVIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER 1. Admitted. 2. Admitted with clarification. Foot & Ankle Center is not a legal entity but rather is a fictitious name under which Defendant Douglas A. Bream trades and does business. Therefore, the proper designation of the Defendant should be Douglas A. Bream, D.P.M., Ud/b/a Foot & Ankle Center. 3. Admitted. 4. Admitted in part, denied in part. It is admitted that Defendant Bream represented he was experienced and could perform the surgical procedure in a normal and routine manner. The remaining allegation is denied. To the contrary, the surgical procedure performed was a bunionectomy of the left foot with pin and hammertoe correction of the left second toe. 5. Admitted. 6. Denied in accordance with Pa.R.C.P. 1029(e). 7. Denied in accordance with Pa.R.C.P. 1029(e). 8. Denied in accordance with Pa.R.C.P. 1029(e). ..l:i ! ,-- , ~- ",' . ,,',' r, ~:::,~:-.":, ',~~::"".;, ~ " --y ,-,";~' "",<":;~".-,,, ;,~," c-' :"','_ "" k' , 9. Denied. It is specifically denied that Defendant Bream was negligent and/or committed medical malpractice in the performance of surgery on the Plaintiff. To the contrary, Defendant Bream acted within the applicable standard of care in performing the surgery on the Plaintiff and providing medical treatment to her. By way of further answer, the allegations contained in Paragraph 9 of Plaintiff's Complaint, including subparagraphs (a.) through (h.) thereof, are denied in accordance with Pa.R.C.P.1029(e). 10, The answers set forth above in Paragraphs 1 through 9 are incorporated herein by reference. 11. Denied. It is specifically denied that the Defendants were negligent in the care and treatment provided to Plaintiff. By way of further answer, the allegations contained in Paragraph 11 of the Complaint, including subparagraphs (a.) through (m.), are denied in accordance with Pa.R.C.P. 1029(e). 12. Denied. It is specifically denied that the Defendants were negligent in the care and treatment provided to Plaintiff. By way of further answer, the allegations contained in Paragraph 12 of the Complaint, including subparagraphs (a.) through (f.), are denied in accordance with Pa.R.C.P. 1029(e). 13. Denied. It is specifically denied that the Defendants were negligent in the care and treatment provided to Plaintiff. By way of further answer, the allegations are denied in accordance with Pa.R.C.P, 1029(e). 14. Denied. After reasonable investigation, the Defendants are without information or knowledge sufficient to form a belief as to the truth of the allegations. By [ I " ':_ c,~ -<_',_ .;~,~ way of further answer, it is specifically denied that the Defendants were negligent in the care and treatment provided to Plaintiff. By way of further answer, the allegations are denied in accordance with Pa.R.C.P. 1029(e). WHEREFORE, Defendant Douglas A. Bream, Ud/b/a Foot & Ankle Center, demands judgment in his favor and against Plaintiff. NEW MATTER 15. Defendant Bream acted within the applicable standard of care in performing surgery on the Plaintiff and in providing medical treatment to her. 16. On November 16, 1998 Defendant Bream explained the proposed surgical procedure to the Plaintiff, together with an explanation of the purpose, nature and risks of, and the alternatives to, the procedure. 17. On November 16, 1998 Plaintiff signed a surgical consent form in which she authorized Defendant Bream to perform a bunionectomy of the left foot with pin and hammertoe correction of the left second toe. 18. Plaintiff may have caused or contributed to some or all of the injuries and damages of which she complains as a result of her own acts or omissions. 19. Plaintiff may have failed to mitigate her damages. 20. $ome or all of Plaintiff's alleged injuries and damages may be due to or the result of pre-existing conditions. _4_ :.I <'-,C ""___'0" .'," , ,"-'..,,,- ,.'';" ;;:;:~\~;;~_"" ~, ~"~ i I WHEREFORE, Defendant Douglas A. Bream, t1d/b/a Foot & Ankle Center, demands judgment in his favor and against Plaintiff. THOMAS, THOMAS & HAFER, LLP :124017,1 G~~ C. Kent Price, Esquire P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 I.D. No. 06776 ATTORNEYS FOR DEFENDANTS ~= ,"." ,', VERIFICATION I, Douglas A. Bream, D.P.M., verify that 1 am the Defendant in the foregoing action and that the attached Answer with New Matter is based upon the information which has been gathered by me, my counsel and/or others on my behalf in preparation of the defense of this lawsuit. The language of the Answer with New Matter is that of counsel and is not mine. I have read the Answer with New Matter, and to the extent that it is based upon information which 1 have given to my counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the contents of the Answer with New Matter is that of counsel and/or others on my behalf, I have relied upon them in making this Verification. I understand that intentional false statements herein are made subject to the penalties of 18 Pa. C.S. ~ 4904 relating to unswom falsifications made to authorities. Do!2r-1~~ DATE: 3) Ob} bJ ^ ,,,- ", . ,,,~,'.", '. . "~ ..; ~~; '-', .~m' CERTIFICATE OF SERVICE AND NOW, this ~ay of March, 2001, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendants, hereby certify that I have this day served the within Answer with New Matter by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 THOMAS, THOMAS & HAFER, LLP ~~ C. Kent Price, Esquire '~ I '^ ! I I '~ ......-,,'.k"-4.elJlJ,h:;:;i.j,;, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ) ) ) ) ) DOUGLAS A. BREAM and THE ) FOOT AND ANKLE CENTER ) Defendants ) SHIRLEY OGDEN, Plaintiff DOCKET NO. 00-8523 Civil Term V. CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFFS ANSWER TO NEW MATTER 15.) Denied. The defendants' Bream and "The Foot and Ankle Center" (Bream apparently does business in that name) did inappropriately and unlawfully operate on the plaintiff without her consent, and the operation that was done on plaintiff with her consent, a bunionectomy, was performed negligently. In addition, the surgery done on her toe was performed negligently, notwithstanding defendant's claim that this operation was done with plaintiff's consent, which is denied. 16.) Denied. It is denied that the defendants ever explained adequately, or at all, what procedures and, or, risks were involved in the operation defendants performed on plaintiff. 17.) Denied. If plaintiff signed any consent form regarding or indicating "a bunionectomy of the left foot with pin and hammertoe correction of the left second toe" it was unknown to or unrealized by her, and she was not in any event, adequately informed of the risks and complications, or even the need for any surgery beyond the , """..,,.J " , ~,~~),'~ bunionectomy, By way of further response the operation on her foot and second toe was perfonned in a negligent manner, in violation of the defendants duty of care to plaintiff, with serious injuries as a result. 18.) Denied, This paragraph is diffuse and unclear, being speculative in how it is constructed, The plaintiff denies contributing in any way to her own injuries and the same is denied, 19.) Denied. This paragraph also calls for speculation and is unclear. To the extent this paragraph does allege that plaintiff failed to mitigate damages, the same is emphatically denied, 20.) Denied. Plaintiff denies that any of her injuries were pre-existing or that any of her injuries were caused by any other entities or persons other than the defendants who negligently perfonned surgery on plaintiff's foot. Wherefore, plaintiff demands judgement jointly and severally of the defendants Bream and "The Foot and Ankle Center" together with fees, costs, and such other damages and relief as the Court may deem appropriate. mre 4311 N. 6th et Ramsburg, PA., 17110 717/221-9500 cc: File ,~I~" ,.I~ . d\ _II;~,,: VERIFICA nON I, Shirley Ogden do hereby swear and affinn that the aforegoing Documents are true and correct to the best of my knowledge, information, and belief. I am aware that making false representations to Authorities is a violation of law. ~/J~-A .~rO/ Shirley Ogd '7~ - Dated: ., I .... __L. "J. ,~ ,;o..,~...iI>m~I<<!g*,' IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA ) ) ) ) ) DOUGLAS A. BREAM and THE ) FOOT AND ANKLE CENTER ) Defendants ) SHIRLEY OGDEN, . Plaintiff DOCKET NO. 00-8523 Civil Term V. CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Don Bailey do hereby certify that I served a true and correct copy of the foregoing PLAINTIFF'S ANSWER TO NEW MATTER upon the following person this 16th day of March 2001 by first class mail, postage prepaid: C. KENT PRICE, ESQUIRE 305 North Front Street P.O. Box 999 Harrisburg, P A 17108 Don ey, ID# 23786 4311 N 6th Street Hanisburg,PJ\ 17110 (717)221-9500 ^ ~'N~ 'I " ,< '.'.'"' Bl!lt~ful!4'5}Jiiif[>I!li!t!'tirul~~ic1i!&lf~J/W!~~t,~''''f,1\ii''~'""<''M:\'\;!i;y;,,j<;J)j'~~~~~_i!ir!f"~jjf~j;~.,~~u~jl>.iit 0 C) () c:: -;1 "':"-''' - ~~ _-J.~ "U CO T..... -, -n ("flP-, cr.l z'::ri ,,~ --~-in ~3~: ';,-".., -1 ,,'-' ,-~:~() ~C':- -"D --~:: -n 2>.0 ~, ',~,!() ~..... &0 r- 'om ::Pc': --I Z :::> )'> :<! 01 ~ --", I', " " _', _' _ _ _r~ _'_ - ; .j,,'" ;C'-"d"C'~ , ;.' "",' ,,'- '.'-'', ;"""'; ~""'~:" - ~,,,':'~,<><,,,"_.,, ; SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8523 CIVIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE OF PREREQUISITE TO SERVE SUBPOENAS PURSUANT TO RULE 4009.22 As a Prerequisite to service of Subpoenas for Documents and Things pursuant to Rule 4009.22, Defendants certify that: 1. A Notice of Intent to Serve the Subpoenas with a copy of the Subpoenas attached thereto was mailed to each party at least twenty (20) days prior to the date on which the Subpoenas are sought to be served. 2. A copy of the Notice of Intent including the proposed Subpoenas are attached to this Certificate. 3. No objection to the Subpoenas has been received. 4. The Subpoenas which will be served are identical to the Subpoenas which are attached to the Notice of Intent THOM~S, T~OMAS & HAFER, LLP C-~~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 1.0. No. 06776 ATTORNEYS FOR DEFENDANTS ",- . ,. ." ~- -'...~~i. SHIRLEY OGDEN, Plaintiff v. : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8523 CIVIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER , Defendants : CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Counsel of Record Defendants intend to serve Subpoenas identical to the ones attached to this Notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the Subpoenas. If no objection is made, the Subpoenas may be served. THOMAS, THOMAS & HAFER, LLP ~~(~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 J.D. No. 06776 ATTORNEYS FOR DEFENDANTS DATE: February 28,2001 , '*,;~ COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SHIRLEY OGDEN , Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, DOCKET NO. 00-8523 Civil Term CIVIL ACTION - LAW J' DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER , Defendants : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR TH!NGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Robert L. Green. D.O. (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Copies of all medical records. includina but not limited to records of office visits. records of other health care providers. copies of x-rays of the left foot and correspondence. concemina Shirley Oaden. DOB: 1/04/61 at 305 North Front Street. Harrisbura. PA 17101 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name C. Kent Price. Esouire Address: 305 North Front Street Harrisbura. PA 17101 Telephone: (717) 255-7632 Supreme Court 10 # 06776 Attorney For: Defendants Date: );~ ,,)7. dCX.>/ Seal of the Court BY~E COURT: ,/) L!w-A. .) T! ~ Prothonotary/Clerk, Civil ~ '-- A!7/l,,, , 27i)/?/?/~/ Deputy . 'i -". lloW:M.>.{ COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SHIRLEY OGDEN, Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, DOCKET NO. 00-8523 Civil Term CIVil ACTION - LAW , DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER , Defendants : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: James C. Miller. 0.0, (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Copies of all medical records. includinQ but not limited to records of office visits. diaQnostic tests and records of other health care providers. concerninQ Shirlev OQden. DaB: 1/04/61, for the period from Januarv 1. 1998 to the present. at 305 North Front Street. HarrisburQ, PA 17101 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOllOWING PERSON: Name C. Kent Price. Esquire Address: 305 North Front Street HarrisburQ. P A 17101 Telephone: (717) 255-7632 Supreme Court ID # 06776 Attorney For: Defendants ~ Date: ,- 8.l, ;:n, ;),!'.Y)f Seal of the Court Prothonotary/Clerk, C iI Divi . '-- .41hJ7 ,P /j{J?/?H' r Deputy ~ ~- L. ,'0' , ~ ~, COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SHIRLEY OGDEN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, DOCKET NO, 00-8523 Civil Term CIVIL ACTION - LAW " DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Harrisburq Hospital (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Copies of all medical records. includinq but not limited to out-patient. in-patient and clinic records. concerninq Shirlev Oqden. DOB: 1/04/61. for the period from December 11. 1998 to the present date. at 305 North Front Street. Harrisburq. PA 17101 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name C. Kent Price. Esquire Address: 305 North Front Street Harrisburq. PA 17101 Telephone: (717) 255-7632 Supreme Court 10 # 06776 Attorney For: Defendants Date: ');;'-~ ;)7 ;;J. Nil Seal of the tourt BY HE COURT:~. Prothonotary/Clerk, Civil Div' . ~O/">.P ,P /71/?/2<"f.I, Deputy ,,;.,--) ~- ~,.:;I .<-- ~""m.,,', CERTIFICATE OF SERVICE AND NOW, this 1st day of March, 2001, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendants, hereby certify that I have this day selVed the within Notice of Intent to SelVe Subpoenas to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6\11 Street Harrisburg, PA 17110 THOMAS, THOMAS & HAFER, LLP r_~~ c. Kent Price, Esquire " ,C',," ,"_'~'-, ,', . ^'""C ,;,,' "I - -' ,--""',',,-,/,',-, ":'-"-':';-" "~~::,;",~--,,~;:--,--:'- "'-': CERTIFICATE OF SERVICE AND NOW, this Z~ay of April, 2001, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendants, hereby certify that I have this day served the within Certificate of Prerequisite by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 THOMAS, THOMAS & HAFER, LLP L-~~ C. Kent Price, Esquire ;,";;, '. ^,' .~'.- ,1<. """"',1 ,tp,<;,w,-,~",^",I,,,,,~, '" "illiIi.-- ,,~ . ~~~~ ^"'~' , ," ., "'.',-}2,,,,,~,,, ",,_ N,"" _~ ,:, ~, -';',i";<',," , ~ '-'. ," iIIilIilli'- ~'o qj;~~.'_: 2:f c~) ,~" ~ ~~C., ~,LS ? -.., -< Q C-~:J ~--=:: :.j c:' "",.,>",,> "",,", -:t:,.. -';~ ,::2 --.; 'C _.~, Wi ~~L~ '. ~' " ~ " , ',~, ;,'~ ,1~-- -, ,'.1"' , -k ,;_; .,' ~~' "-, "' "">'::'j ,~ SHIRLEY OGDEN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendant NO. 00-8523 CIVIL TERM ORDER OF COURT AND NOW, this 29th day of October, 200 I, upon consideration of the Motion of Defendants Douglas A. Bream and the Foot and Ankle Center To Compel Discovery Responses from Plaintiff, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, Don Bailey, Esq. 4311 North Sixth Street Harrisburg, PA 17110 Attorney for Plaintiff ~ ~ /0.30.01 C. Kent Price, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants + , '^~' ~,,":l.l V'.N'1'J\ V<;:;i,-~~:;":"~:I. (\ (",.. ,-,1.\..'."",.1,',<) "~n I'" , v.,'" 1'1' 1\ ,_i '-.il'" ,."'- 1'-)., .,~ 9\j:\\\4~ uSUa::] ,_"I"-",:} 1'..',': ~'J IcNW\" ,." Ie" ", ,,,, ^U'O.:"..II""'-' ',."'" :.,.., , 'J~' :\:.,"'" J I ,;1 ::lJ\, '~ ,-- J; "" - " c" " . ~, ," ,,', ~--'---',. ~' <,--. ~I .' , .,',<', , :. '" ;,;!'" . ;",.{" ''':--G'',';":,;;';,, ,)0",'.> :;:i'::J,-"!J.;i;:",";,J.;.;;~,,\..i'~,::.,,~ " .__' ,', "~ . SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8523 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, , Defendants ORDER AND NOW, this day of , 2001, upon consideration of Defendants' Motion to Compel Discovery Responses, it is hereby ORDERED AND DECREED that Plaintiff shall provide Defendants with all x-rays in her possession of her left foot to be copied by Defendants or, in the alternative, Plaintiff shall provide Defendants with copies of all such x-rays within twenty (20) days from the date of this Order. It is further ORDERED AND DECREED that Plaintiff shall provide Defendants with the full names of Dr. Mixon and Dr. Master and shall execute Authorizations enabling Defendants to obtain medical records from Dr. Mixon, Dr. Master and Calvin S. Kibwe, DPM within twenty (20) days from the date of this Order. Failure to comply fully with this Order shall subject Plaintiff to the imposition of sanctions. BY THE COURT: J. , ,", ~ ,~'-"'" " ~ ",. -,,"- ~ "--'.'C'-.-,,,,","_ ,~;,",,- - ".,i":>'"","'.,,,,,, i-~,.-;;; '_"1' 0\ -1'[ SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8523 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DOUGLAS A BREAM and THE FOOT AND ANKLE CENTER, Defendants MOTION OF DEFENDANTS DOUGLAS A. BREAM AND THE FOOT AND ANKLE CENTER TO COMPEL DISCOVERY RESPONSES FROM PLAINTIFF AND NOW, Defendants Douglas A Bream and The Foot and Ankle Center, by and through their attorneys, Thomas, Thomas & Hafer, LLP, respectfully move this Honorable Court to compel Plaintiff Shirley Ogden to respond to certain of Defendants' discovery requests pursuant to the Pennsylvania Rules of Civil Procedure and in support thereof aver as follows: 1. The instant cause of action stems from alleged injuries sustained by Plaintiff Shirley Ogden on or about December 11, 1998, when she underwent a left bunionectomy and second toe hammertoe surgery performed by Defendant Douglas A Bream, DPM. 2. Plaintiff filed a Complaint in the above-captioned matter on or about February 12, 2001. 3. Defendants Douglas A Bream and The Foot and Ankle Center filed their Answer with New Matter on March 3, 2001. 4. On or about February 22, 2001 Defendants served written discovery on Plaintiffs Counsel, including a Request for Production of Documents, a copy of which is attached hereto as Exhibit "A" -~, -'-"""-' , . ,,-',,-,,- ~-. ",--' ,-, b,',,"~' ""'~'~"",,,~,-, C'.~-",. '""."';.'-',,,,- " ,'. ~ c,,"jO 5. Request No.2 of Defendants' Request for Production of Documents seeks copies of all x-ray films of Plaintiff's left foot. 6. Pursuant to Pa.R.C.P. 4009.12, Plaintiff was required to serve answers or objections to Defendants' Request for Production of Documents within thirty (30) days of service. 7. On April 28, 2001, Defendants received Plaintiff's Answers to Defendants' Interrogatories Set I and II, as well as Plaintiff's response to request NO.1 of Defendants' Request for Production of Documents. 8. To date, Plaintiff has responded to all discovery except Defendants' request for x-ray films of Plaintiff's left foot. 9. Having received only partial responses to the Requests for Production of Documents, the undersigned sent a letter to Plaintiff's counsel on June 12, 2001 requesting the status of Plaintiff's overdue discovery responses relative to copies of all x-ray films of Plaintiff's left foot. A copy of the letter of June 12, 2001 is attached hereto as Exhibit "B". 10. Receiving no response to the aforesaid letter of June 12, 2001, Exhibit "B" hereto, the undersigned sent a follow-up letter dated September 18, 2001 to Plaintiff's counsel reiterating the request for copies of all x-ray films of the Plaintiff's left foot. A copy of the letter of September 18, 2001 is attached hereto as Exhibit "C". 11. Plaintiff has failed to respond to the aforementioned correspondence and has also failed to completely and fully answer Defendants' discovery requests to date by producing copies of all x-ray films of Plaintiff's left foot. " "-<'~',' - ,,~ "" ~"' ,- ,I. .'~ -'--"." -,.\~",- - '~'" <A '--""_." ,~-,;:~"~;,,i-,~:::,</icl;',>c;_:-i~',"" " ' 12. Without receiving copies of the x-rays of Plaintiff's left foot and knowing the nature and extent of Plaintiff's alleged injuries, Defendants are unable to properly prepare the defense of this case, to evaluate the merits of the Complaint or to otherwise dispose of this case. Thus, Defendants Douglas A. Bream and The Foot and Ankle Center are prejudiced by Plaintiff's refusal to serve answers to Defendants' remaining outstanding discovery requests. 13. All discovery sought by Defendants through the Request for Production of Documents is relevant to the instant litigation. 14. Plaintiff Shirley Ogden has not filed an objection to the subject discovery, nor has she sought a protective order related thereto. 15. Pa.R.C.P. 4019 (a) (viii) provides that upon motion of a party, the Court can make an appropriate order when a party "fails to make discovery." 16. Consequently, Plaintiff should be compelled to provide complete answers to Defendants' Request for Production of Documents, which include the production of all x-rays of her left foot in support of her allegations against Defendants or suffer the imposition of sanctions pursuant to Pennsylvania Rules of Civil Procedure 4019. 17. In addition to the foregoing, Plaintiff has identified two (2) out-of-state health care providers who have treated and examined her left foot subsequent to the surgical procedure performed by Defendant Dr. Bream which is the subject matter of this litigation. 18. In the letter of September 18, 2001, Exhibit "C" hereto, the undersigned provided Plaintiff's counsel with a written Medical Authorization to permit Defendants to obtain copies of medical records from one of the out-of-state health care providers, "" ' ~ , "-~^ - ",~,\,'u"" ' ,"" '"',,~ ,'--- '"~~., ,,'x~", ,'':'",,^'"' :",;, '\, " '0__''''- " - "~-, " . Calvin S. Kibwe, DPM, and requested that Plaintiff sign the Authorization and return it to the undersigned. Plaintiff has failed and refused to do so. 19. In addition, the letter of September 18, 2001, Exhibit "C" hereto, also requested that Plaintiff provide the full names of two (2) health care providers, a Dr. Mixon in Virginia and a Dr. Masters in Harrisburg, whose partial names had been disclosed in Plaintiffs answers to interrogatories, in order that Defendants could obtain medical records from those sources. Plaintiff has failed and refused to do so WHEREFORE, Defendants Douglas A. Bream and The Foot and Ankle Center respectfully request that this Honorable Court enter an Order directing Plaintiff to provide Defendants with all x-ray films of her left foot in her possession so that copies can be made or that she provide Defendants with copies thereof within 20 days. In addition, Defendants further request that this Honorable Court enter an Order directing Plaintiff to identify the full names of Dr. Mixon and Dr. Masters and to provide Defendants with signed authorizations for the medical records of Drs. Kibwe, Mixon and Masters within 20 days. THOMAS, THOMAS & HAFER, LLP ~~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 I.D. No. 06776 ATTORNEYS FOR DEFENDANTS :142811.1 ~~-'" .~~. - _I ~~> ~ ~l r'~>;:-, ',' . APR 3 0 2001 SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8523 CIVIL TERM CIVIL ACTION - LAW DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants JURY TRIAL DEMANDED REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF - SET I TO: Shirley Ogden c/o Don Bailel' Esquire 4311 North 6 Street Harrisburg, PA 17110 PLEASE TAKE NOTICE that pursuant to Rule 4009 of the Pennsylvania Rules of Civil Procedure, you are hereby requested to produce for inspection, examination and copying the following items at the offices of THOMAS, THOMAS & HAFER, LLP, 305 North Front Street, P.O. Box 999, Harrisburg, Pennsylvania, 17108 within thirty (30) days of service of the Request: 1. Copies of all medical records relating to the care and treatment of your left foot. 2. Copies of all x-ray films of your left foot. If any document sought by this Request is withheld from production based upon a claim of privilege, work product, or any other reason, Plaintiff shall identify each such document in her response to this Request by stating the nature of the document, the date , 1 -" '. , .1. kL~::" ',' . of its preparation and shall indicate the reason why its production is being withheld. This request shall be deemed continuing and any response shall be supplemented upon receipt of additional information. THOMAS, THOMAS & HAFER, LLP ~,~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 I.D. No. 06776 ATTORNEYS FOR DEFENDANTS " L,,,^ ,. ~j!If.:; ". '.' . CERTIFICATE OF SERVICE AND NOW, this 22nd day of February, 2001, I, C. KENT PRICE, ESQUIRE, for the firm ofTHOMAS, THOMAS & HAFER, LLP, attorneys for Defendants, hereby certify that I have this day served the within Request for Production of Documents to Plaintiff - Set I by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 THOMAS, THOMAS & HAFER, LLP ~,~ C. Kent Price, Esquire ~l;Wili.-. '~. '... (717) 255-7632 CKP@tthlaw.com June 12, 2001 Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 RE: Ogden v. Bream No. 00-8523 Dear Don: On or about February 22, 2001 I served you with a Request for Production of Documents in the above matter. Subsequently, you did provide me with copies of medical records in response to that request. However, you have not provided copies of any x-ray films of your client's left foot and it is my understanding that she does have original films in her possession. Would you please consult with your client as to whether she does have x-ray films in her possession and, if so, make arrangements to provide me with copies at your earliest opportunity. Sincerely yours, THOMAS, THOMAS & HAFER, LLP C. Kent Price CKP/ves:118727,7 .~ ~' J ""~H-'''''"-M~' '. (717) 255-7632 ckp@tthlaw.com September 18, 2001 Don Bailey, Esquire 4311 North 6th street Harrisburg, PA. 17110 RE: Shirley Ogden v. Douglas Bream, DPM Dear Don: In your answers to Interrogatories in this matter you identified two health care providers from Hampton, Virginia, namely Calvin S. Kibwe, DPM and a Dr. Mixon. I have tried to obtain a complete name for Dr. Mixon but the telephone company in Virginia has no such person at the address you provided. Would you kindly provide me with more information regarding this provider so I can obtain copies of his records. In order to obtain records from Dr. Kibwe, I have enclosed a Medical Authorization with the request that it be signed by your client and returned to me. Of course, I will see that you are provided with copies of any records I obtain by use of the Authorization. You did provide me with a letter from Dr. Kibwe dated November 28,2000 addressed to a Dr. Masters in Harrisburg, PA. I can find no reference to a Dr. Masters in the Harrisburg telephone book. Would you please provide me with more specific information regarding this Dr. Masters. Finally, I served you with a Request for Production on or about February 22, 2001 which contained a request for copies of all x-rays of Ms. Ogden's left foot. I also sent you a follow-up reminder in that regard on June 12, 2001. To date I have not received a response from you, nor have I been provided with copies of those films. I note in many of the medical records that the providers refer to the fact that Ms. Ogden has brought films with her or that she took films with her when she left, so I have reason to believe that she has x-ray films in her possession. If your client would drop the films off at your office, I can make arrangements to have them picked up and copied -< _J" ,<, 1Ii..ii.:B!:lk . Don Bailey, Esquire September 18, 2001 Page 2 and then return the films to you immediately thereafter. I would like to accomplish this within the next 14 days so we can move forward with depositions. I appreciate your attention to these matters. Should you wish to discuss these matters further, please call me at your earliest opportunity. Sincerely yours, THOMAS, THOMAS & HAFER, LLP C. Kent Price CKP/ves:118727,8 Enclosure ,,= _ , " ." .,__,' ~ ,~,--"',' ~'__r_ - ," ,--','.' ,....-- ;-" _'r.' ,1'",;,;,,"0' i,' "'",,"L y",,' {,'_.", -;'hO:'~"-"~;;"',>,k'~<ilh-;';;"':;";:""'."p.2;.i,h~"",,";;o,-;:;~~~r;-f~,"Q"", "'.,',,__,\d:,c/ CERTIFICATE OF SERVICE AND NOW, this 18~ay of October, 2001, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendants, hereby certify that I have this day served the within Motion of Defendants Douglas A. Bream and The Foot and Ankle Center to Compel Discovery Responses from Plaintiff by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 THOMAS, THOMAS & HAFER, LLP ~~~ C. Kent Price, Esquire .:tii:'-'Jjw:. ':"oc.~: illi~i":'~~~. "-~. --1'- -", ~~~~",(,,',\;';"'-~'~~"~ ", c;:'" '-',<,,'~ __~ '"C"_ "'__""~' _" J~. ..... , ~' -" "," 0- (") c:: '? "1:ii";; ,~r '" c, J?:,--\ L'" )::9 '- 2: :< C'" ;', "'. --, ,,' ~^,- - '" , 'i o o " :,~ :::; -'I a C"J '-~ 1'...) t...:; .'-:"1 ,it! (~ r~;~';:~ -t:;"; ~n =< ""0 ::;r; 't? ~o..) " ~ SHIRLEY OGDEN, Plaintiff v. DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants 0'.' , ,"', ..;" ,,~- , '~ , . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 00-8523 CIVIL TERM ORDER OF COURT AND NOW, this 22nd day of January, 2002, upon consideration of Defendant's Motion To Make Rule Absolute, the motion is granted, the Rule issued on October 29, 2001, is made absolute, and Plaintiff is directed to respond, without objections and in verified form, to Defendants' discovery requests. v&: Bailey, Esq. 4311 North Sixth Street Harrisburg, PA 17110 Attorney for Plaintiff > ~ Kent Price, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants :rc BY THE COURT, ~ OJ 'j.~-tJJ.. ;;il ~ -~ - -'" ,,""J' < .,,"-' r ,~," . ,~"" """,~ """'~,,'""'~" 'i,H"" F!LED-,(}~~7iCf OF T' "., 1"1'" j "\"'~J1'ARY J !;'-,L "";-';_."'-:""'h" /-'1, I 02 Jj~iv. 23 Ail 10: 52 CUMBEriUv\iO COUN7Y PENNSYLVANiA I , ",',' ,,, "'~'''''' ' ...~,,,. ',,', _r~~1I1'{$~IJY1.~1..," ~ ]",~~i ~J '.,' " ~" ""-,-,'~~'"",,, '=-'",,"" ,~, ",',L', ""~""'~--'^_""__, .~_L P"~~~' "'l!II!I"""",, ~~..~"-- ,-, -~- <- "I cd.! -- ",;-,.- ';'" ,~, '" ",'-,,-, ,'"", '-'-,"'l-.~"",,..'~--i-J'''J"''''',!''--'_'_' ,_-"~";;",,,,- ,,', "0' SHIRLEY OGDEN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNIY v. NO. 00-8523 CIVIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' MOTION TO MAKE RULE ABSOLUTE 1. Defendants filed a Motion to Compel Discovery Responses from Plaintiff on or about October 18, 2001. 2. On October 29, 2001 the Honorable J. Wesley Oler, Jr. signed an Order issuing a Rule upon Plaintiff to show cause why the relief requested by Defendants should not be granted, said Rule being made returnable within 20 days of service. A copy of the aforesaid Order is attached hereto as Exhibit "A". 3. Defendants thereafter made service of the Rule upon Plaintiff's counsel of record by Certified Mail on November 2,2001. A copy of the letter of transmittal and Postal Service signature card evidencing service are attached hereto as Exhibit "B". 4. By letter dated November 21, 2001 Plaintiff's counsel "responded" to the Motion to Compel, indicating that the Plaintiff had no x-rays in her possession and that she did not have telephone numbers of her doctors, which latter information counsel considered irrelevant to the litigation. A copy of the aforesaid letter is attached hereto as Exhibit "C". -' '- - " .', ' " , ',..~ .";" ^',,,"N,,',,",,"'''''A'',,,- ,;;;-,,~-,~ -,-~ '~--,,,,;-<,;,,",..,,:,,;',',,,"~.;,,'>- '_"'" ~'" ,,' ';''-'i;,;,o'~i I 5. Plaintiff has not filed a response to the Rule issued by this Honorable Court within 20 days of service thereof. 6. Plaintiff has not provided Defendants with the full names of Dr. Mixon and Dr. Master, whose names appear in her medical records, as requested in the Motion to Compel. 7. Plaintiff has not provided Defendants with signed authorizations which would enable Defendants to obtain medical records, including x-ray films, from Drs. Mixon, Kibwe and Master, the first two of whom practice medicine in Virginia and, therefore, are not subject to a subpoena issued in Pennsylvania, as also requested in the Motion to Compel. 8. Prior to filing the within Motion to Make Rule Absolute, Defendants made one final effort to obtain the discovery requested, rather than involve the court, by sending a letter to Plaintiff's counsel, dated December 17, 2001, enclosing yet another medical authorization with the request that it be signed by the Plaintiff in order that Defendants might obtain medical records and x-rays from Dr. Kibwe, a podiatrist practicing in Virginia. A copy of the aforesaid letter is attached hereto as Exhibit "D". 9. Despite the passage of more than 30 days since it was mailed, Plaintiff has made no response to the aforesaid letter. 10. Defendants request that this Honorable Court make the Rule issued by Judge Oler absolute for Plaintiff's failure to respond and impose sanctions upon the Plaintiff for her continuing failure and refusal to permit Defendants to have ,,' ':.i/;I'" v",.- - "'j -', ;':",' &~"i:'l off_' ",,-,,; ,I" __""""",,,,,,,-'-';;''';';;''~'~';''''''''';;'';:'~!' "";,",,-'''''''~",*'''';'~'''''' 0',;;:";'; ''-'''';''>'t''';'~~~~ access to medical records and x-rays that are relevant to the issues raised in this matter and to which they are entitled. WHEREFORE, Defendants Douglas Bream, DPM and The Ankle and Foot Center request that this Honorable Court make the Rule previously issued absolute, that it order Plaintiff to sign authorizations permitting Defendants to obtain records from her treating health care providers, and that it impose such sanctions as it deems appropriate, including the entry of judgment in Defendants' favor. THOMAS, THOMAS & HAFER, LLP ~~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA. 17108 (717) 255-7632 ATTORNEYS FOR DEFENDANTS 155483.1 ~- --,'~o_l~~' .' '"' ~ ~ . ~"' '-, ~ .~ " , Lw"--~;":b...~t , OCT 3 120m SHIRLEY OGDEN, Plaintiff IN THE COURT OF COMlvION PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendant NO. 00-8523 CIVIL TERM ORDER OF COURT AND NOW, this 29th day of October, 2001, upon consideration of the Motion of Defendants Douglas A. Bream and the Foot and Ankle Center To Compel Discovery Responses from Plaintiff, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, Don Bailey, Esq. 4311 North Sixth Street Harrisburg, P A 17110 Attorney for Plaintiff C. Koo.t Price, Esq. iMNorth Front Street A.o. Box 999 Han-isburg, PA 17108 Attorney for Defendants '~"::~~.[i~-i::1;;;~~U' ~~~~. r.J I,., ~= 'f__ _.', ,~ '_ " __,~'. '-'~ (717) 255-7632 ckp@tthlaw.com November 1, 2001 CERTIFIED MAIL Don Bailey, Esquire 4311 North 6th street Harrisburg, PA. 17110 RE: Shirley Ogden v. Douglas Bream, DPM Dear Don: I have enclosed a copy of a Rule issued by Judge Uhler in response to the Motion to Compel Discovery that I had previously filed and served on behalf of my clients in this matter. Please note that the Rule is returnable within 20 days of service. Sincerely yours, THOMAS, THOMAS & HAFER, LLP C. Kent Price CKP/ves:118727.9 Enclosure ,. . "I _ll ,-- Complete "items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desireq. _ . Print your name and address on the reverse so that we can return the card to you, .. Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: 00 (\ bCl I \-ey J 2. Article Number (Transfer from service labelj PS Form 3811, March 2001 J\: ( ~q Ul(t- ruOI x D. Is delive ~ddress differe , 'from item 1? If YES, enter delivery address below: 3. Service Type ~'certified Mail o Registered o Insured Mail o Agent o Addressee DYes o No o Express Mail o Return Receipt for Merchandise OC,O,D, 4. Restricted Delivery? (Extra Fee) \~yo ~ n Ie 6~LIS Domestic Return Receipt DtDl DYes 102595-01.M-1424 , , ,.i"-:~' ., '" ~~~1,:' r Nov 26,37 '11: 06a ' i '" , bon ~a ~ l'e.~' ""1"- 717 221 8600, P" 1 ,"'C'-"'" .-.{ . ~ '.,.' , '. ,," NOV 2'aZaOl . --,,, , --' ," , ' ',,",,', ,'..' ~"/) ,',,', , :_ 0/2, ~9Jcu~, ," '..."'.'. .' 'G?'.." ' , (().17':. , (.Tl;t~\~lisl:i'tih!, Offio.~'; , 114 ,S. '~~jn'.Str~~c~' '," , .Gi-6ci1sbuig,. P(\ '1!?601 '. ',(724) SM~5JS4 "', '."'" .,,' " . :'~F~11,.iJ: 6t.il'St,r~~c(:' ,',' .-,< .<: '. .' -" "r-rilr:~i$burg;'l'A,17.il0', ":> -- ' (717) 221,:~500 ' ,Fax 2;il.,9600 ' , - '-(~~A-j,~ciy@v~,[,.~~,\,:~. ; . ,-'. '" .,' (It''(':(lun;id,':' :, S~n1.u,=l C: .8.i.6.;LLuu , An.(h;c:i.~ J. p.st,r~w$kl .:; Novembcr 211001 " '"," '."',' ..-...... .:.".... . ',,;'., ' . - . " " . "". VIA [i/\X-J:n~TI 05 ~~.~!~I~~~'i!! .. , , , ' 1',0. Box <)()9 ,',",' ,", , , Ila;.Hsl,lI;g;,!>!i \Tl(J8 :,:~ '::., : (,'.' I',' , .~ ' . ,"',: , r)e~irIYILP1.~icc .'";.',." .. .'.', ....', , ",-",-, '...."'".:,:",".". "', ",' ':',,;, '""",>,, .:,':"':.: ,.- .': ',..-",," ,. ",' ,-;:,.,." ", ',' ' " " J havc[hr~)llgl1IYI:Cvi(;wcd:i:Ollr rcqllcstsas olltlillclLin Yt)lll.Iiloti\ln(,i ," "';'~~' "C()l,11p~"LI\'1s::(}LI:J(;'I'I',it'if{~)I'i11S"l1,~,,'{h,~l{;':"'>'<''': " ,. ", ',' '" '" .- .... ".." _.. ,.,' ,1 .fSli';;~hI~'li~'x~,~y~," 81i~ dj~n;'lns-p()h x~r~ysJr6;1~:Yl\urcHeil'tt'(;".[T;Gd(ICll)r: ' I,::: :" ': ." .1,,1,1.'. V~) (it,~,{,(.' .. ". ' ": ': .'_::- ,';~ ....... ' ,', ,:',:'. " '.." .,,';' ' ,:,:~',::. ,:,"-':'"':' :'.,~: ',.,' ,'"o,:.,~:.:,_':,'.;::',': ',,': ',~,'.: " '> ;,',::' , ,>;.'; ,"~, :"~"" : """. '. ~ ., , .".", ,'" ',.,2) Shch~sn()nll'tbt;l: inI:Orm~i\i(~11<1\)OutthcdQcftlrsp1iQllctjLunhcts{b\;~YOll,'," ,'9()UklilOiti'ld iIi, tile~, t,~it~i1hoflehook,llo\\'e\tc\<i\,cli.tlipi;g11i1()ir~!~>i~ljirJl/ !hh: '.'., '."'" ,', "", "li(igaUol1:shc;'1IdF:~iJIC();I1j.inu~ 1()"i'eiTc~,Gllt tfle111tht'111ii[lS11 !\)ry4u: I:\S SOQjias '."'." , ", '.wcblOIV Y()lI\iJinb~'rl6titjedtorll\\~i!h:. ' ' , . " ; " , " , ~, " . . . -, - . ' " , " Siric,erdY, .',.,' , ,,' . i ' , , '''\, kC',;' \ ",.'.,~', 0' I ,n, " ;. , .>,..L <;0 ~~ I),ill-lhtiky "',',,' .. ' ',. ' ' DB:alb cc: Shirley Ogden _......~=..r-~ ....;' , ~ JI _ 1"_" -, - ,,,, ~ , .-..- ......."1,,_ (717) 255-7632 CKP@tthlaw.com December 17, 2001 Don Bailey, Esquire 4311 North 6th street Harrisburg, PA. 17110 RE: Shirley Ogden v. Douglas Bream, DPM Dear Don: In my letter of September 18, 2001 to you regarding the above matter, I enclosed a Medical Authorization with the request that it be signed by your client and returned to me. Inasmuch as I have not heard from you in that regard, I have enclosed another Medical Authorization which will permit me to obtain medical records and x-ray films that Dr. Kibwe may have in his possession. As you are aware, I am more than a little interested in obtaining copies of all x-ray films and you have indicated in your letter of November 21, 2001 that your client did transport x-ray films to the doctor in Virginia, whom I believe would be Dr. Kibwe. Would you please have your client sign the Authorization and return it to me as soon as possible so that I might follow up in obtaining these records. Sincerely yours, THOMAS, THOMAS & HAFER, LLP C. Kent Price CKP/ves:118727.10 Enclosure - ' " ' ,~--- -" _,~, '" ''-^< "_ ",:;,~-- :";'~;"';,_'J:' ;"'-~""" -- -'"',;,:';,,.:, _:'~.:",r,;i<:.:.';;"" ~""""-\-'-';;"';J! CERTIFICATE OF SERVICE AND NOW, this :21 ~y of January, 2002, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendants, hereby certify that I have this day served the within Defendants' Motion to Make Rule Absolute by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 THOMAS, THOMAS & HAFER, LLP (l~~ C. Kent Price, Esquire ~kj"II(l:~ ' >''''~il:IIJl ~~~~ "M,",,",",'" ,."...... ='h, _'~".,""_ ..0'f._ ;,'~'~.;;,'" ,~ ,"'". ,&!,-,..>.. ,-~,,' '..>=- '~-'~~.,i",,_L;', ;-", <" I.., 0,'<' .';'-U"__ "d".", ",",'eo" "t1l!l( " n 0 0 C ~V -r; 5: ,; .,"f ""Om .,. CPr+: :1:: 1":'1,"1, ~-, N i..;i :z S:~ 1'0 ~z L C::'CJ """ ;~;~ ~D ::Jl: :;;0 9? ~5m c j;! z ::< :0 -.l -< ~ :1. . SHIRLEY OGDEN, Plaintiff v. DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants J 11 , "---"'j' "j:_-:, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 00-8523 CIVIL TERM AMENDED ORDER OF COURT AND NOW, this 1st day of February, 2002, the Order of Court previously entered in this matter on January 22, 2002, is hereby amended to reflect that Plaintiff is directed to respond, without objections and in verified form, to Defendants' discovery requests within 30 days of January 22, 2002. qfun Bailey, Esq. 4311 North Sixth Street 'Harrisburg, P A 1711 0 Attorney for Plaintiff ~Kent Price, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants :rc BY THE COURT, 0 <::> 0 c "" ,'1 <c ..,., -atI) --'1 rq , rnm ct) ci:: ~};;j Z~Tl ~?i:~ I =~~2j " '\ ~ ~t) ~ ",e -- v ~~1i .c; z'": ~ ~c> ~ :'"'':(1 r;i' ~:rfl Pc ,j Z ~i c- ..l> -j :n -,. co -< aiJ ) L~ -fL pXS o ~-O} - oJ.. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) SHIRLEY OGDEN, (Plaintiff) VS, DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER (Defendant) No. 00-8523 Civil 2000 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Motion for Sanctions of Defendants, Douglas A. Bream and The Foot and Ankle Center 2. Identify counsel who will argue case: (a) for plaintiff: Address: Don Bailey, Esquire 4311 North Sixth Street Harrisburg, PA 17110 (b) for defendant: C. Kent Price, Esquire Stephanie L. Hersperger, Esquire Address: Thomas, Thomas & Hafer, LLP 305 N. Front St., P.O. Box 999 Harrisburg, PA 17108-0999 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 23, 2002 Dated:September 18, 2002 At ~~ .0- ..::J ?-t7.L -" -.. .~~ Attorneys for Defendant ' C. Kent Price, Esquire Stephanie L. Hersperger, Esquire . ' - l'J~ "' '.- ."".,~,', -' , ,'. ~ ~ ,:1 ,~;:"', : '.~ ci ", "'0," , ,i__,--, ,,__~," ;.--,,>-<,' 8/:;;J:"; '-i:;j;;:",,,,,,\k; ','"",()Y.i-;'",~,:,'.' ;\;-':J';\_'~".-:d , . . . 'I .. . I..' ... ._ ._.... _. . .-. .;",~- .-: -.''';'''''','.- OCT 11 2002 SHIRLEY OGDEN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-8523 CNIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants : CNIL ACTION - LAW : JURY TRIAL DEMANDED BRIEF IN SUPPORT OF MOTION FOR SANCTIONS OF DEFENDANTS, DOUGLAS A. BREAM AND THE FOOT AND ANKLE CENTER, DUE TO PLAINTIFF'S FAILURE TO PROVIDE DISCOVERY RESPONSES IN ACCORDANCE WITH THE COURT'S ORDER ISSUED ON FEBRUARY 1, 2002 AND NOW, Defendants, Douglas A. Bream and The Foot and Ankle Center, by and through their attorneys, Thomas, Thomas & Hafer, LLP, submit the following Brief in support of their Motion for Sanctions due to Plaintiffs failure to comply with this Court's Order issued on February 1, 2002. I. STATEMENT OF FACTS AND PROCEDURAL HISTORY: Plaintiff, Shirley Ogden, instituted the instant medical malpractice suit by filing a Writ of Summons, and then, on February 12, 2001, a Complaint. The instant cause of action stems from alleged injuries sustained by Plaintiff, Shirley Ogden, on or about December 11, 1998, when she underwent a left bunionectomy and second toe hammertoe surgery performed by Defendant Douglas A. Bream, DPM. Defendants Douglas A. Bream and The Foot and Ankle Center filed their Answer with New Matter on March 3, 2001. On or about February 22, 2001 Defendants served written discovery on Plaintiff, including Interrogatories and Request for Production of Documents. See Exhibits "A" and "B" of Defendants' Motion for Sanctions. Request No.2 of Defendants' Request for Production of Documents seeks copies of all x-ray films of Plaintiffs left foot. See Exhibit "B". The Interrogatories and Request for Production of Documents further requested information ~~- .. -' ~' ,L-, , - -'. -~ -~". ~ ,,' >-:(1""'-' "'.c~':' ',,",,"',"-''i:'', .~"~" "'. "'-",,;. 0<''-'-:::,'':''';;\; /i"-~-:!,,;,,-, '-'"," ~i ;, regarding Plaintiffs other medical care providers and/or for medical records. See Exhibits "A" and "B " , On April 28, 2001, Defendants received Plaintiffs Answers to Defendants' Interrogatories Set I and II, as well as Plaintiffs response to request No. 1 of Defendants' Request for Production of Documents. See Exhibit "c" of Defendants' Motion for Sanctions. However, Plaintiff failed to provide Defendants with copies of the x-rays or with signed authorizations which would enable Defendants to obtain x-rays directly from the medical care providers. Plaintiff also failed to provide Defendants with the full names of Dr. Mixon and Dr. Master, whose names appear in her medical records, and further failed to provide Defendants with executed authorizations enabling Defendants to obtain medical records from Dr. Mixon, Dr. Master and Calvin S. Kibwe, DPM. After making several attempts to obtain the x-rays and information regarding Plaintiffs medical care providers from Plaintiffs counsel without having to resort to Court intervention, Defendants were forced to file a Motion to Compel on October 18,2001. See Exhibit "D" of Defendants' Motion for Sanctions. On October 29,2001, the Honorable Court issued a Rule upon Plaintiff to show cause why Defendants' Motion to Compel should not be granted; Plaintiff was given twenty (20) days to respond to said Rule. See Exhibit "E" of Defendants' Motion for Sanctions. Plaintiff failed to file a formal response to the Rule. However, via correspondence, Counsel for Plaintiff indicated that Plaintiff did not have the x-rays in her possession and did not know the telephone numbers of her physicians. After attempting to again obtain authorizations from Plaintiff s counsel to obtain the x- rays and other information from Plaintiffs treating physicians, but with no success, Defendants filed a Motion to Make the Rule Absolute on or about January 22, 2002. See Exhibit "F" of 2 -. ~ ^' -,' J " ^", ':-01" ,~'." .- . ~, ~"">~h "_'''''-~~'~'-!.' ~, ',2,',,",,: ..o->~-"" ',' _'" 'l_;';:"'~" .";,;,i~, ',^,'_ Defendants' Motion for Sanctions, In their Motion to Make Rule Absolute, Defendants requested that the Court make the rule previously issued absolute, that it order Plaintiff to sign authorizations permitting Defendants to obtain records, including x -rays, from her treating healthcare providers, and that it impose sanctions at it deemed appropriate, including entry of judgment in Defendants' favor. See Exhibit "F". Thereafter, on January 22,2002, Judge Oler entered an Order making its prior Rule I'; i., I;,' absolute and directed Plaintiff to respond, without objections and in verified form, to Defendants' outstanding discovery requests. See Exhibit "G" of Defendants' Motion for Sanctions. On February 1, 2002, Judge Oler then issued an Amended Order in which he directed Plaintiff to respond, without objections and in verified form to Defendants' discovery requests, within thirty (30) days of January 22,2002: or by February 21,2002. See Exhibit "H" of Defendants' Motion for Sanctions. The Amended Order differed from the original Order only in that it set forth a specific time within which Plaintiff had to comply with the Court's Order. To date, approximately 1 year and 8 months after this litigation has been instituted, Defendants still have never received the requested x -rays or the information regarding Plaintiff s medical care providers from Plaintiffs counsel. Defendants have been severally and irreparably prejudiced by Plaintiffs continued failure to provide information which is necessary for Defendants to prepare their defense, and therefore, Defendants file the instant Motion for Sanctions. II. STATEMENT OF OUESTION PRESENTED: WHETHER THIS COURT SHOULD ENTER AN ORDER, PURSUANT TO Pa. R.C.P. 4019, IMPOSING DISCOVERY SANCTIONS UPON PLAINTIFF FOR HER CONTINUAL FAILURE TO PROVIDE INFORMATION AND/OR DOCUMENTS REQUESTED BY MOVING DEFENDANTS IN THEIR WRITTEN DISCOVERY REQUESTS OR OTHERWISE COMPLY WITH IN ANY 3 " "",,- "',~" ' I v, -,"' -",>",,""'-,O"-<'__""~f"~' ,;'h ,--"",,';>< ii~""':_"",,,,,,!; A',"/-, ',' MANNER THE FEBRUARY 1, 2002 ORDER OF THIS HONORABLE COURT. (Suggested answer in the affirmative.) III. DISCUSSION: Pennsylvania Rule of Civil Procedure 4019 provides: (a)(l) The court may, on motion, make an appropriate order if (i) a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005; *** (iv) a party or an officer, or managing agent of a party or a person designated under Rule 4007.1 (e) to be examined, after notice under Rule 4007.1, fails to appear before the person who is to take the deposition; * * * (viii) a party or person otherwise fails to make discovery or to obey and order of court respecting discovery. (c) The court, when acting under subdivision (a) of this rule, may make *** (2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition; (3) on order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience; (4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010; (5) such order with regard to the failure to make discovery as is just. See Pa. R.C.P. 4019. The imposition of sanctions for non-compliance with discovery under Pa. R,C.P. 4019 is within the discretion ofthe trial court. Grunde v. Huff, 639 A.2d 1227, 1230 (pa. Super. 1994). Rule 4019 requires that the Court select a punishment that fits the crime. 4 n__ , ',__ ~",< .".'_ --':"1 -<'''- ',,__",__'..,"-~ :~"^,;<...',;';i;,"-' ~'--~:,",~',,>_-., ,J>_^",,," ii,,_ "..';" '- ,.' -~, -,.'; In considering the imposition of sanctions, the Court must examme several factors. Those factors are: I) the party's failure, in light of the prejudice caused to the opposing party, and whether the prejudice can be cured; 2) willfulness or bad faith on the part of the party who has failed to comply with a discovery order, i.e., the merits of the excuse for non-compliance; 3) the number of discovery violations; and 4) the importance of precluded evidence in light of the failure to comply with discovery. Id., quoting, Steinfurth v. LaManna, 404 Pa. Super. 384, 590 A.2d 1286, 1288-89 (1991). It also is important to note that each factor of this test "represents a necessary consideration and not a necessary prerequisite. . .." Grandelli v. Methodist Hospital, 2001 Pa. Super. 155, 777 A.2d 1138, 1144 (2001) citing Croydon Plastics Co., Inc. v. Lower Bucks Cooling & Heating, 698 A.2d 625,629 (Pa. Super. 1997), appeal denied, 553 Pa. 689, 717 A.2d 1028 (1998)(emphasis added). As for the first factor, prejudice, the Defendants have been repeatedly prejudiced by the delays occasioned by Plaintiffs continued failure to provide x-rays of her left foot and/or authorizations for Defendants to obtain same. Plaintiff also has failed to provide the identities/addresses of several of her healthcare providers, The withholding of this information by Plaintiff is clearly prejudicial to Defendants since Plaintiff s very claim is that Defendants were negligent in performing surgery on Plaintiffs left foot. Any x-rays and/or medical records regarding Plaintiffs left foot obviously are both relevant and necessary for Defendants to evaluate the merits of the case. The Defendants have also been prejudiced due to the expenses necessitated by three Motionsl to attempt to have the Plaintiff comply with basic discovery requirements. 1 Defendants have had to file a Motion to Compel, Motion to Make the Court's Rule Absolute and the instant Motion for Sanctions. 5 ~: i; ~! ~i I " \i it g , " t'; " i' H I, " h I~ Ii; I;! m " I, I, I~ 1'1,.., '1 11 I: !.! Ii t, ~ ~ ~ It I; K I i~ ~ "3"" _ n""';"::',-. I: ,," .~ . , '" " '0,':;":' J,:~d;,'",.,"", ,-",,' . ;':'-.;,;., ""--"''--'''.'''-,''- '., '-'i\i: :, I Importantly, Defendant, Dr. Bream, has been severally and irreparably prejudiced by being subjected to the instant lawsuit for almost two years during which time he has been unable to determine whether the suit has any merit or not since he has not had access to all the necessary f' ! i I, I' 1 r I: I' , i'- medical information. During this almost two year period of time, Dr. Bream also has had to identify the instant lawsuit as being outstanding when he applies for malpractice insurance, despite the fact that the suit could be totally frivolous. Having to state on insurance applications 1 , ii, i I: I? L j' that the instant lawsuit is outstanding, when it may not even have any factual or legal basis, obviously is hannful to Dr. Bream in light of the difficulty physicians in Pennsylvania are having in obtaining malpractice insurance. Having to identify outstanding lawsuit(s) when applying for malpractice insurance increases the premiums requested or even the ability to obtain appropriate insurance. Dr. Bream should not be required to be a party to a lawsuit in which the Plaintiff As for the second factor, willfulness or bad faith on the part of the defaulting party, the r.3 ~, " , r; r ji h I: ;i continuously fails to provide necessary and requested discovery. Court should examine the merits of the Plaintiffs excuse for failing to comply with discovery, Frankly, the pattern of repeated failures to provide the requested information and the 'l' !I r; disobedience of this Court's prior Order over an extended period of time suggests some element of willfulness or bad faith. Plaintiffs counsel has advised that Plaintiff did not have the x -rays in her possession and did not know the telephone numbers of her physicians. Plaintiff could easily have remedied the situation regarding her x -rays by providing signed authorizations to obtain the x -rays from third parties if she is not in possession of same. Moreover, if Plaintiff happens to argue that she does not know where her x-rays are located at or the addresses/full names of her physicians, how are Defendants supposed to obtain this information? Obviously, Plaintiff is in the best position to obtain this information and it is 6 ,\,,- "'J' ' " - -' .:;;; -';:..:,: --.""~'",,,", -,; , ,";:, --, ~ _, ro,' - --;"', ^ ,>',~--- (<J:{ h :i , " II' i her burden to produce same. Counsel for Plaintiff has never even indicated what steps, if any, he i ~ I"~ took in an attempt to locate the x -rays or information regarding the physicians. Plaintiff s , '" continued failure to provide the medical information necessary for Defendants to evaluate this , " I Ii case certainly suggests some element of willfulness or bad faith. This is especially so in light of !~, " ~; the fact that there was a Court Order directing Plaintiff to produce this information and/or ~;~ documents. I::; k r(~ ~:; The third factor is the number of discovery violations. Plaintiff failed to respond to the " ~; If; initial discovery request. Plaintiff then failed to respond to Defendants' Motion to Compel said i:'! ". ~,! '" discovery. Plaintiff subsequently failed to respond to the Court's Rule to Show Cause why Defendant's Motion to Compel should not be granted. Plaintiff then failed to respond to ~:,: 1'1. Ij j Defendant's Motion to make Rule Absolute. Lastly, Plaintiff failed to respond to the Court's Iii Order compelling that she provide the requested information. Clearly, Plaintiff has engaged in ;:: ,,.~ numerous discovery violations in this case. The Steinfurth case notes that repeated discovery i; ill 1; i:j r: abuses are disapproved. 590 A.2d at 1288-89. The final factor refers to the importance of the precluded evidence in light of the failure to comply with discovery. At this point, the Defendants are seeking the drastic sanction of dismissal. This is based on the repeated discovery violations and the failure to comply with a Court Order. Defendants further seek the sanction of dismissal since the information requested goes to the very heart of the instant medical malpractice case, i.e. the condition of Plaintiff s left foot prior to and following the alleged surgery at issue. Simply ordering Plaintiff to produce the requested information again is not a sanction at all. Moreover, Plaintiff has already been ordered to produce said information and failed to do so. Another order compelling Plaintiff to provide the requested information is therefore unlikely to invoke action on the part of Plaintiff. Thus, 7 . ~'" ~ -", ;"~*~~",,,- "'1'--', .- - ','''''''_, "'"',a,, ,"" "'" ,^""" , under the circumstances, i.e. almost two years after the instant medical malpractice suit was , I' Ii Ii: I;: instituted, dismissal is appropriate. I:! In addition to or in the alternative to dismissal, the Defendants believe that the Plaintiff should be ordered to pay expenses incurred in preparing the instant Motion for Sanctions, including the instant supporting Brief. IV. CONCLUSION: To date, Plaintiff has failed to comply with this Honorable Court's Amended Order ~ j requiring her to provide complete, verified answers, without objections. Specifically, Plaintiff ,^': ill has failed to provide Defendants with executed authorizations to obtain her x -rays and other ,,>, 1:: medical records; Plaintiff also has failed to provide Defendants with the fun names of several of ~; her treating physicians. From the record before this Court, it is apparent that since Defendants' ,..I ,j u "I I I rl II I: I , initial request for x-rays and medical records, in February of 2001, over one and a half years prior to filing the instant Motion for Sanctions, Plaintiff has been deliberately and/or inexcusably delaying the progression of this case by failing to provide the requested discovery, an of which have caused irreparable harm to Defendants and their ability to defend the instant matter. :,1',' " Moreover, from Plaintiffs actions and/or inactions, which are clearly documented and before this Court, it is apparent that Plaintiff has deliberately and/or consistently ignored and disobeyed this Court's Rule to Show Cause why Defendants' Motion to Compel should not be issued, and the Court's subsequent Order dated January 22, 2002, and the Court's Amended Order dated February I, 2002, despite the fact that Pennsylvania Rule of Civil Procedure 4019 provide that sanctions may be warranted when a party fails to obey a Court's discovery Order. Because of Plaintiffs continued, lengthy, deliberate and willful refusal to answer discovery outstanding since March of 200 I, specifically by failing to provide copies of x -rays or 8 " ;"'S" 1',- "'.-:,~.;, " ,", " ,\ 0"': -"'-'\ '0_' ",,~/ ,;'i.,,,- " medical records, or in the alternative, failing to provide executed Authorizations to obtain Plaintiffs x-rays and medical records, and in failing to obey this Court's Order of January 22, 2002, and this Court's Amended Court of February I, 2002, as is demonstrated from the documents before this Court, Defendants respectfully request that this Honorable Court enter a , , " judgment of non pros or default against Plaintiff. See Pa. R.C.P. 1019(c)(3). In the alternative, Defendants would respectfully request that this Honorable Court enter i I' I I' " an Order precluding Plaintiff from offering any evidence or testimony in support of her claims or to oppose Defendants' defenses and for reasonable attorney fees for the preparation and filing of l< ''i ~': the instant Motion for Sanctions. See Pa. R.C.P. 10 I 9(c)(2). WHEREFORE, Defendants, Douglas A. Bream and The Foot and Ankle Center, respectfully request that this Honorable Court grant their Motion for Sanctions and enter the Ii attached-proposed Order. ;" , , ;'; " THOMAS, THOMAS & HAFER, LLP ./J ~/;a/'d../-.-:;J %.........::;f2/~ C. Kent Price, Esquire LD. No. 06776 Stephanie 1. Hersperger, Esquire LD. No. 78735 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 ATTORNEYS FOR DEFENDANTS : 185550.1 9 " ~'. -- - ;;. --"~ _:_.'" '"J "';:",-<.<; ~--~,," :, ~"'--'-- -" , - "--~"" "<~ .;, 1'- ,; , r i I SHIRLEY OGDEN, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-8523 CNIL TERM DOUGLAS A. BREAM and THE FOOT : CNIL ACTION - LAW AND ANKLE CENTER, Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this IOtA day of October, 2002, I, STEPHANIE HERSPERGER, , , I I , I:', I , l 1:'1 ~,., ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendants, hereby " r-i certify that I have this day served the within Brief in support of Motion for Sanctions of Defendants, , I, c; !;: f:1 ( Douglas A. Bream and The Foot and Ankle Center, by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 Attorney for Plaintiff f< i: , I " I, I' e 1~ ?: THOMAS, THOMAS & HAFER, LLP 4C;A041-U- -2- ?~I Stephanie L. Hersperger, Esquire ' 10 ~llilIi;iI . ~. ~ j , -, ""''''''_,','"i, " i: r OCT 11 2002 SHIRLEY OGDEN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-8523 CNIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants : CNIL ACTION - LAW : JURY TRIAL DEMANDED BRIEl? IN SUPPORT OF MOTION FOR SANCTIONS OF DEFENDANTS, DOUGLAS A. BREAM AND THE FOOT AND ANKLE CENTER, DUE TO PLAINTIFF'S FAILURE TO PROVIDE DISCOVERY RESPONSES IN ACCORDANCE WITH THE COURT'S ORDER ISSUED ON FEBRUARY 1, 2002 AND NOW, Defendants, Douglas A. Bream and The Foot and Ankle Center, by and through their attorneys, Thomas, Thomas & Hafer, LLP, submit the following Brief in support of their Motion for Sanctions due to Plaintiffs failure to comply with this Court's Order issued on February 1, 2002. I. STATEMENT OF FACTS AND PROCEDURAL HISTORY: Plaintiff, Shirley Ogden, instituted the instant medical malpractice suit by filing a Writ of Summons, and then, on February 12, 2001, a Complaint. The instant cause of action stems from alleged injuries sustained by Plaintiff, Shirley Ogden, on or about December 11, 1998, when she underwent a left bunionectomy and second toe hammertoe surgery performed by Defendant Douglas A. Bream, DPM. Defendants Douglas A. Bream and The Foot and Ankle Center filed their Answer with New Matter on March 3,2001. On or about February 22, 2001 Defendants served written discovery on Plaintiff, including Interrogatories and Request for Production of Documents. See Exhibits "A" and "BOO of Defendants' Motion for Sanctions. Request No.2 of Defendants' Request for Production of Documents seeks copies of all x-ray films of Plaintiffs left foot. See Exhibit "BOO. The Interrogatories and Request for Production of Documents further requested information ,-., <, <;"""'."ll--..,.,. ~ ~ - " ~ ';g,~""",^,- t '. regarding Plaintiffs other medical care providers and/or for medical records. See Exhibits "A" and "B". On April 28, 2001, Defendants received Plaintiff's Answers to Defendants' Interrogatories Set I and II, as well as Plaintiff's response to request No. I of Defendants' Request for Production of Documents, See Exhibit "c" of Defendants' Motion for Sanctions. However, Plaintiff failed to provide Defendants with copies of the x-rays or with signed authorizations which would enable Defendants to obtain x-rays directly from the medical care providers. Plaintiff also failed to provide Defendants with the full names of Dr. Mixon and Dr. Master, whose names appear in her medical records, and further failed to provide Defendants with executed authorizations enabling Defendants to obtain medical records from Dr. Mixon, Dr. Master and Calvin S. Kibwe, DPM. After making several attempts to obtain the x-rays and information regarding Plaintiff's medical care providers from Plaintiff's counsel without having to resort to Court intervention, Defendants were forced to file a Motion to Compel on October 18, 2001. See Exhibit "D" of Defendants' Motion for Sanctions, On October 29,2001, the Honorable Court issued a Rule upon Plaintiff to show cause why Defendants' Motion to Compel should not be granted; Plaintiff was given twenty (20) days to respond to said Rule, See Exhibit "E" of Defendants' Motion for Sanctions. Plaintifffailed to file a formal response to the Rille. However, via correspondence, Counsel for Plaintiff indicated that Plaintiff did not have the x-rays in her possession and did not know the telephone numbers of her physicians. After attempting to again obtain authorizations from Plaintiff's counsel to obtain the x- rays and other information from Plaintiff's treating physicians, but with no success, Defendants filed a Motion to Make the Rule Absolute on or about January 22, 2002. See Exhibit "F" of 2 -~=, ~~. ~--~'j^ " c Defendants' Motion for Sanctions. In their Motion to Make Rule Absolute, Defendants requested that the Court make the rule previously issued absolute, that it order Plaintiff to sign authorizations permitting Defendants to obtain records, including x-rays, from her treating healthcare providers, and that it impose sanctions at it deemed appropriate, including entry of judgment in Defendants' favor. See Exhibit "F". Thereafter, on January 22,2002, Judge Oler entered an Order making its prior Rule absolute and directed Plaintiff to respond, without objections and in verified form, to Defendants' outstanding discovery requests. See Exhibit "G" of Defendants' Motion for Sanctions. On February 1, 2002, Judge Oler then issued an Amended Order in which he directed Plaintiff to respond, without objections and in verified form to Defendants' discovery requests, within thirty (30) days of January 22,2002, or by February 21,2002. See Exhibit "R" of Defendants' Motion for Sanctions. The Amended Order differed from the original Order only in that it set forth a specific time within which Plaintiffhad to comply with the Court's Order. To date, approximately 1 year and 8 months after this litigation has been instituted, Defendants still have never received the requested x-rays or the information regarding Plaintiffs medical care providers from Plaintiffs counsel. Defendants have been severally and irreparably prejudiced by Plaintiffs continued failure to provide information which is necessary for Defendants to prepare their defense, and therefore, Defendants file the instant Motion for Sanctions. II. STATEMENT OF QUESTION PRESENTED: WHETHER THIS COURT SHOULD ENTER AN ORDER, PURSUANT TO Pa. R.C.P. 4019, IMPOSING DISCOVERY SANCTIONS UPON PLAINTIFF FOR HER CONTINUAL FAILURE TO PROVIDE INFORMATION AND/OR DOCUMENTS REQUESTED BY MOVING DEFENDANTS IN THEIR WRITTEN DISCOVERY REQUESTS OR OTHERWISE COMPLY WITH IN ANY 3 ,~"'-""-~ "~~ ~" " " ~,$'\<~'" '" MANNER THE FEBRUARY 1, 2002 ORDER OF THIS HONORABLE COURT. (Suggested answer in the affIrmative.) III. DISCUSSION: Pennsylvania Rule of Civil Procedure 4019 provides: (a)(1) The court may, on motion, make an appropriate order if (i) a party fails to serve answers, suffIcient answers or objections to written interrogatories under Rule 4005; *** (iv) a party or an offIcer, or managing agent of a party or a person designated under Rule 4007.1 (e) to be examined, after notice under Rule 4007.1, fails to appear before the person who is to take the deposition; *** (viii) a party or person otherwise fails to make discovery or to obey and order of court respecting discovery. (c) The court, when acting under subdivision (a) of this rule, may make *** (2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition; (3) on order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience; (4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010; (5) such order with regard to the failure to make discovery as is just. See Pa. R.C.P. 4019. The imposition of sanctions for non-compliance with discovery under Pa. R.C.P. 4019 is within the discretion of the trial court. Grunde v. Huff, 639 A.2d 1227, 1230 (Pa. Super. 1994). Rule 4019 requires that the Court select a punishment that fIts the crime. 4 ," ..- - - ~"'.,~~-.... ~~~ < ' ,,' , <ll.~"""",,,tJ^t-'-' In considering the imposition of sanctions, the Court must examine several factors. Those factors are: 1) the party's failure, in light of the prejudice caused to the opposing party, and whether the prejudice can be cured; 2) willfulness or bad faith on the part of the party who has failed to comply with a discovery order, i.e., the merits of the excuse for non-compliance; 3) the number of discovery violations; and 4) the importance of precluded evidence in light of the failure to comply with discovery. rd., Quoting, Steinfurth v. LaManna, 404 Pa. Super. 384, 590 A.2d 1286, 1288-89 (1991). It also is important to note that each factor of this test "represents a necessary consideration and not a necessarv prerequisite. . .." Grandelli v. Methodist Hospital, 2001 Pa. Super. 155, 777 A.2d 1138, 1144 (2001) citing Crovdon Plastics Co., me, v. Lower Bucks Cooling & Heating, 698 A.2d 625,629 (Pa. Super. 1997), appeal denied, 553 Pa. 689, 717 A.2d 1028 (1998)(emphasis added). As for the first factor, prejudice, the Defendants have been repeatedly prejudiced by the delays occasioned by Plaintiffs continued failure to provide x-rays of her left foot and/or authorizations for Defendants to obtain same. Plaintiff also has failed to provide the identities/addresses of several of her healthcare providers. The withholding of this information by Plaintiff is clearly prejudicial to Defendants since Plaintiff s very claim is that Defendants were negligent in performing surgery on Plaintiffs left foot. Any x-rays and/or medical records regarding Plaintiff s left foot obviously are both relevant and necessary for Defendants to evaluate the merits of the case. The Defendants have also been prejudiced due to the expenses necessitated by three Motions1 to attempt to have the Plaintiff comply with basic discovery requirements. 1 Defendants have had to file a Motion to Compel, Motion to Make the Court's Rnle Absolute and the instant Motion for Sanctions. 5 "..-~"...."",,,- , " i l, ~*""~"'-," , Importantly, Defendant, Dr. Bream, has been severally and irreparably prejudiced by being subjected to the instant lawsuit for almost two years during which time he has been unable to detennine whether the suit has any merit or not since he has not had access to all the necessary medical infonnation. During this almost two year period of time, Dr. Bream also has had to identify the instant lawsuit as being outstanding when he applies for malpractice insurance, despite the fact that the suit could be totally frivolous. Having to state on insurance applications that the instant lawsuit is outstanding, when it may not even have any factual or legal basis, obviously is harmful to Dr. Bream in light of the difficulty physicians in Pennsylvania are having in obtaining malpractice insurance. Having to identify outstanding lawsuit(s) when applying for malpractice insurance increases the premiums requested or even the ability to obtain appropriate insurance. Dr. Bream should not be required to be a party to a lawsuit in which the Plaintiff continuously fails to provide necessary and requested discovery. As for the second factor, willfulness or bad faith on the part of the defaulting party, the Court should examine the merits of the Plaintiffs excuse for failing to comply with discovery, Frankly, the pattern of repeated failures to provide the requested information and the disobedience of this Court's prior Order over an extended period of time suggests some element of willfulness or bad faith. Plaintiffs counsel has advised that Plaintiff did not have the x-rays in her possession and did not know the telephone numbers of her physicians. Plaintiff could easily have remedied the situation regarding her x-rays by providing signed authorizations to obtain the x-rays from third parties if she is not in possession of same. Moreover, if Plaintiff happens to argue that she does not know where her x-rays are located at or the addresses/full names of her physicians, how are Defendants supposed to obtain this information? Obviously, Plaintiff is in the best position to obtain this information and it is 6 "",~.~" ~~... ~. ~ ~ = J : ~ ~~~'In. , her burden to produce same. Counsel for Plaintiff has never even indicated what steps, if any, he took in an attempt to locate the x-rays or information regarding the physicians. Plaintiffs continued failure to provide the medical information necessary for Defendants to evaluate this case certainly suggests some element of willfulness or bad faith. This is especially so in light of the fact that there was a Court Order directing Plaintiff to produce this information and/or documents. The third factor is the number of discovery violations. Plaintiff failed to respond to the initial discovery request. Plaintiff then failed to respond to Defendants' Motion to Compel said discQvery. Plaintiff subsequently failed to respond to the Court's Rule to Show Cause why Defendant's Motion to Compel should not be granted. Plaintiff then failed to respond to Defendant's Motion to make Rule Absolute. Lastly, Plaintiff failed to respond to the Court's Order compelling that she provide the requested information. Clearly, Plaintiff has engaged in numerous discovery violations in this case. The Steinfurth case notes that repeated discovery abuses are disapproved. 590 A.2d at 1288-89. The final factor refers to the importance of the precluded evidence in light of the failure to comply with discovery. At this point, the Defendants are seeking the drastic sanction of dismissal. This is based on the repeated discovery violations and the failure to comply with a Court Order. Defendants further seek the sanction of dismissal since the information requested goes to the very heart of the instant medical malpractice case, i.e. the condition of Plaintiffs left foot prior to and following the alleged surgery at issue. Simply ordering Plaintiff to produce the requested information again is not a sanction at all. Moreover, Plaintiff has already been ordered to produce said information and failed to do so. Another order compelling Plaintiff to provide the requested information is therefore unlikely to invoke action on the part of Plaintiff. Thus, 7 >Dl"""'"'" _, .J__ .~ ,,"," ~, '~ "<-~"<Q, . under the circumstances, i.e. almost two years after the instant medical malpractice suit was instituted, dismissal is appropriate. In addition to or in the alternative to dismissal, the Defendants believe that the Plaintiff should be ordered to pay expenses incurred in preparing the instant Motion for Sanctions, including the instant supporting Brief. IV. CONCLUSION: To date, Plaintiff has failed to comply with this Honorable Court's Amended Order requiring her to provide complete, verified answers, without objections. Specifically, Plaintiff has failed to provide Defendants with executed authorizations to obtain her x -rays and other medical records; Plaintiff also has failed to provide Defendants with the full names of several of her treating physicians. From the record before this Court, it is apparent that since Defendants' initial request for x-rays and medical records, in February of 2001, over one and a half years prior to filing the instant Motion for Sanctions, Plaintiff has been deliberately and/or inexcusably delaying the progression of this case by failing to provide the requested discovery, all of which have caused irreparable hann to Defendants and their ability to defend the instant matter. Moreover, from Plaintiffs actions and/or inactions, which are clearly documented and before this Court, it is apparent that Plaintiff has deliberately and/or consistently ignored and disobeyed this Court's Rule to Show Cause why Defendants' Motion to Compel should not be issued, and the Court's subsequent Order dated January 22, 2002, and the Court's Amended Order dated February 1, 2002, despite the fact that Pennsylvania Rule of Civil Procedure 4019 provide that sanctions may be warranted when a party fails to obey a Court's discovery Order. Because of Plaintiff s continued, lengthy, deliberate and willful refusal to answer discovery outstanding since March of2001, specifically by failing to provide copies ofx-rays or 8 ~~~-~ '-n .' ~. ~" ,~ , '''"''''"~'''-<l:tJ",,) medical records, or in the alternative, failing to provide executed Authorizations to obtain Plaintiffs x-rays and medical records, and in failing to obey this Court's Order of January 22, 2002, and this Court's Amended Court of February 1, 2002, as is demonstrated from the documents before this Court, Defendants respectfully request that this Honorable Court enter a judgment of non pros or default against Plaintiff. See Pa. R.C.P. 1019(c)(3). In the alternative, Defendants would respectfully request that this Honorable Court enter an Order precluding Plaintiff from offering any evidence or testimony in support of her claims or to oppose Defendants' defenses and for reasonable attorney fees for the preparation and filing of the instant Motion for Sanctions. See Pa. R.C.P. 1019(c)(2). WHEREFORE, Defendants, Douglas A. Bream and The Foot and Ankle Center, respectfully request that this Honorable Court grant their Motion for Sanctions and enter the attached-proposed Order. THOMAS, THOMAS & HAFER, LLP A~ha~n- -::? ?7'~€?/~ C. Kent Price, Esquire I.D. No. 06776 Stephanie 1. Hersperger, Esquire I.D. No. 78735 305 North Front Street P.O. Box 999 Harrisburg, P A 17108 (717) 255-7632 ATTORNEYS FOR DEFENDANTS : J 85550.1 9 " ,M'~' .if'IJ. ~ >.,--"',-, SHIRLEY OGDEN, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-8523 CIVIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants : CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this Ie) fh day of October, 2002, I, STEPHANIE HERSPERGER, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendants, hereby certif'y that I have this day served the within Brief in support of Motion for Sanctions of Defendants, Douglas A. Bream and The Foot and Ankle Center, by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP /ft;?~- -2- '7~ Stephanie L. Hersperger, Esquire ' 10 ~._.."~ ~~ I 1 " ,. '" w""~ "-~~"'~.' ocr 11 2002 .. SHIRLEY OGDEN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL V ANlA v. : NO. 00-8523 CNIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants CNIL ACTION - LAW JURY TRIAL DEMANDED BRIEF IN SUPPORT OF MOTION FOR SANCTIONS OF DEFENDANTS, DOUGLAS A. BREAM AND THE FOOT AND ANKLE CENTER, DUE TO PLAINTIFF'S FAILURE TO PROVIDE DISCOVERY RESPONSES IN ACCORDANCE WITH THE COURT'S ORDER ISSUED ON FEBRUARY 1,2002 AND NOW, Defendants, Douglas A. Bream and The Foot and Ankle Center, by and through their attorneys, Thomas, Thomas & Hafer, LLP, submit the following Brief in support of their Motion for Sanctions due to Plaintiffs failure to comply with this Court's Order issued on February I, 2002. I. STATEMENT OF FACTS AND PROCEDURAL HISTORY: Plaintiff, Shirley Ogden, instituted the instant medical malpractice suit by filing a Writ of Summons, and then, on February 12, 2001, a Complaint. The instant cause of action stems from alleged injuries sustained by Plaintiff, Shirley Ogden, on or about December 11, 1998, when she underwent a left bunionectomy and second toe hanunertoe surgery performed by Defendant Douglas A. Bream, DPM. Defendants Douglas A. Bream and The Foot and Ankle Center filed their Answer with New Matter on March 3,2001. On or about February 22, 2001 Defendants served written discovery on Plaintiff, including Interrogatories and Request for Production of Documents. See Exhibits "A" and "B" of Defendants' Motion for Sanctions. Request No.2 of Defendants' Request for Production of Documents seeks copies of all x-ray films of Plaintiffs left foot. See Exhibit "B". The Interrogatories and Request for Production of Documents further requested information E.lil""~~' -- ~ \, .- ' , -, _~iil.<,_ regarding Plaintiffs other medical care providers and/or for medical records. See Exhibits "A" and "B". On April 28, 2001, Defendants received Plaintiffs Answers to Defendants' Interrogatories Set I and II, as well as Plaintiffs response to request No. I of Defendants' Request for Production of Documents. See Exhibit "c" of Defendants' Motion for Sanctions. However, Plaintiff failed to provide Defendants with copies of the x-rays or with signed authorizations which would enable Defendants to obtain x-rays directly from the medical care providers. Plaintiff also failed to provide Defendants with the full names of Dr. Mixon and Dr. Master, whose names appear in her medical records, and further failed to provide Defendants with executed authorizations enabling Defendants to obtain medical records from Dr. Mixon, Dr. Master and Calvin S. Kibwe, DPM. After making several attempts to obtain the x -rays and information regarding Plaintiff s medical care providers from Plaintiff s counsel without having to resort to Court intervention, Defendants were forced to file a Motion to Compel on October 18, 2001. See Exhibit "D" of Defendants' Motion for Sanctions. On October 29,2001, the Honorable Court issued a Rule upon Plaintiff to show cause why Defendants' Motion to Compel should not be granted; Plaintiff was given twenty (20) days to respond to said Rule. See Exhibit "E" of Defendants' Motion for Sanctions. Plaintiff failed to file a formal response to the Rule. However, via correspondence, Counsel for Plaintiff indicated that Plaintiff did not have the x -rays in her possession and did not know the telephone numbers of her physicians. After attempting to again obtain authorizations from Plaintiff s counsel to obtain the x- rays and other information from Plaintiffs treating physicians, but with no success, Defendants filed a Motion to Make the Rule Absolute on or about January 22, 2002. See Exhibit "F" of 2 -;._.~ . - _, I I ~ ~~~'". Defendants' Motion for Sanctions. In their Motion to Make Rule Absolute, Defendants requested that the Court make the rule previously issued absolute, that it order Plaintiff to sign authorizations permitting Defendants to obtain records, including x-rays, from her treating healthcare providers, and that it impose sanctions at it deemed appropriate, including entry of judgment in Defendants' favor. See Exhibit "F". Thereafter, on January 22,2002, Judge Oler entered an Order making its prior Rule absolute and directed Plaintiff to respond, without objections and in verified form, to Defendants' outstanding discovery requests. See Exhibit "G" of Defendants' Motion for Sanctions. On February I, 2002, Judge Oler then issued an Amended Order in which he directed Plaintiff to respond, without objections and in verified form to Defendants' discovery requests, within thirty (30) days of January 22, 2002, or by February 21, 2002. See Exhibit "H" of Defendants' Motion for Sanctions. The Amended Order differed from the original Order only in that it set forth a specific time within which Plaintiff had to comply with the Court's Order. To date, approximately 1 year and 8 months after this litigation has been instituted, Defendants still have never received the requested x -rays or the information regarding Plaintiff s medical care providers from Plaintiffs counsel. Defendants have been severally and irreparably prejudiced by Plaintiffs continued failure to provide information which is necessary for Defendants to prepare their defense, and therefore, Defendants file the instant Motion for Sanctions. II. STATEMENT OF QUESTION PRESENTED: WHETHER THIS COURT SHOULD ENTER AN ORDER, PURSUANT TO Pa. R.C.P. 4019, IMPOSING DISCOVERY SANCTIONS UPON PLAINTIFF FOR HER CONTINUAL FAILURE TO PROVIDE INFORMATION AND/ORDOCUMENTS REQUESTED BY MOVING DEFENDANTS IN THEIR WRITTEN DISCOVERY REQUESTS OR OTHERWISE COMPLY WITH IN ANY 3 -" , . . , ""'~'~~-"-h MANNER THE FEBRUARY 1, 2002 ORDER OF THIS HONORABLE COURT. (Suggested answer in the affirmative.) III. DISCUSSION: Pennsylvania Rule of Civil Procedure 4019 provides: (a)(I) The court may, on motion, make an appropriate order if (i) a party fails to serve answers, sufficient answers or obj ections to written interrogatories under Rule 4005; *** (iv) a party or an officer, or managing agent of a party or a person designated under Rule 4007.1(e) to be examined, after notice under Rule 4007.1, fails to appear before the person who is to take the deposition; *** (viii) a party or person otherwise fails to make discovery or to obey and order of court respecting discovery. (c) The court, when acting under subdivision (a) of this rule, may make *** (2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition; (3) on order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience; (4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010; (5) such order with regard to the failure to make discovery as is just. See Pa. R.C.P. 4019. The imposition of sanctions for non-compliance with discovery under Pa. R.C.P. 4019 is within the discretion of the trial court. Grunde v. Huff, 639 A.2d 1227, 1230 (Pa. Super. 1994). Rule 4019 requires that the Court select a punishment that fits the crime. 4 ~ ~~ = ~. -~ ~ j l~ .. ~ M .. ~", In considering the imposition of sanctions, the Court must examine several factors. Those factors are: 1) the party's failure, in light of the prejudice caused to the opposing party, and whether the prejudice can be cured; 2) willfulness or bad faith on the part of the party who has failed to comply with a discovery order, i.e., the merits of the excuse for non-compliance; 3) the number of discovery violations; and 4) the importance of precluded evidence in light of the failure to comply with discovery. Id., quoting, Steinfurth v. LaManna, 404 Pa. Super. 384, 590 A.2d 1286, 1288-89 (1991). It also is important to note that each factor of this test "represents a necessary consideration and not a necessarv prerequisite. . . ." Grandelli v. Methodist Hospital, 2001 Pa. Super. 155, 777 A.2d 1138, 1144 (2001) citing Crovdon Plastics Co.. Inc. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997), appeal denied, 553 Pa. 689, 717 A.2d 1028 (1998)(emphasis added). As for the first factor, prejudice, the Defendants have been repeatedly prejudiced by the delays occasioned by Plaintiffs continued failure to provide x-rays of her left foot and/or authorizations for Defendants to obtain same. Plaintiff also has failed to provide the identities/addresses of several of her healthcare providers. The withholding of this information by Plaintiff is clearly prejudicial to Defendants since Plaintiff s very claim is that Defendants were negligent in performing surgery on Plaintiffs left foot. Any x-rays and/or medical records regarding Plaintiff s left foot obviously are both relevant and necessary for Defendants to evaluate the merits of the case. The Defendants have also been prejudiced due to the expenses necessitated by three Motionsl to attempt to have the Plaintiff comply with basic discovery requirements. 1 Defendants have had to file a Motion to Compel, Motion to Make the Court's Rule Absolute aod the instant Motion for Saoetions. 5 " '~1 - ~ - L ., '--' ~" "- _oi Importantly, Defendant, Dr. Bream, has been severally and irreparably prejudiced by being subjected to the instant lawsuit for almost two years during which time he has been unable to determine whether the suit has any merit or not since he has not had access to all the necessary medical information. During this almost two year period of time, Dr. Bream also has had to identifY the instant lawsuit as being outstanding when he applies for malpractice insurance, despite the fact that the suit could be totally frivolous. Having to state on insurance applications that the instant lawsuit is outstanding, when it may not even have any factual or legal basis, obviously is harmful to Dr. Bream in light of the difficulty physicians in Pennsylvania are having in obtaining malpractice insurance. Having to identify outstanding lawsuit(s) when applying for malpractice insurance increases the premiums requested or even the ability to obtain appropriate insurance. Dr. Bream should not be required to be a party to a lawsuit in which the Plaintiff continuously fails to provide necessary and requested discovery. As for the second factor, willfulness or bad faith on the part of the defaulting party, the Court should examine the merits of the Plaintiffs excuse for failing to comply with discovery. Frankly, the pattern of repeated failures to provide the requested information and the disobedience of this Court's prior Order over an extended period of time suggests some element of willfulness or bad faith. Plaintiff s counsel has advised that Plaintiff did not have the x -rays in her possession and did not know the telephone numbers of her physicians. Plaintiff could easily have remedied the situation regarding her x -rays by providing signed authorizations to obtain the x-rays from third parties if she is not in possession of same. Moreover, if Plaintiff happens to argue that she does not know where her x-rays are located at or the addresses/full names of her physicians, how are Defendants supposed to obtain this information? Obviously, Plaintiff is in the best position to obtain this information and it is 6 -.,~ . . .,~~. , her burden to produce same. Counsel for Plaintiff has never even indicated what steps, if any, he took in an attempt to locate the x -rays or information regarding the physicians. Plaintiff s continued failure to provide the medical information necessary for Defendants to evaluate this case certainly suggests some element of willfulness or bad faith. This is especially so in light of the fact that there was a Court Order directing Plaintiff to produce this information and/or documents. The third factor is the number of discovery violations. Plaintiff failed to respond to the initial discovery request. Plaintiff then failed to respond to Defendants' Motion to Compel said discovery. Plaintiff subsequently failed to respond to the Court's Rule to Show Cause why Defendant's Motion to Compel shonld not be granted. Plaintiff then failed to respond to Defendant's Motion to make Rule Absolute. Lastly, Plaintiff failed to respond to the Court's Order compelling that she provide the requested information. Clearly, Plaintiff has engaged in numerous discovery violations in this case. The Steinfurth case notes that repeated discovery abuses are disapproved. 590 A.2d at 1288-89. The fmal factor refers to the importance of the precluded evidence in light of the failure to comply with discovery. At this point, the Defendants are seeking the drastic sanction of dismissal. This is based on the repeated discovery violations and the failure to comply with a Court Order. Defendants further seek the sanction of dismissal since the information requested goes to the very heart of the instant medical malpractice case, i.e. the condition of Plaintiff s left foot prior to and fOllowing the alleged surgery at issue. Simply ordering Plaintiff to produce the requested information again is not a sanction at all. Moreover, Plaintiff has already been ordered to produce said information and failed to do so. Another order compelling Plaintiff to provide the requested information is therefore unlikely to invoke action on the part of Plaintiff. Thus, 7 ,",''''''''~'..~._, - . ~ " ~ , .....~\(..." , under the circumstances, i.e. almost two years after the instant medical malpractice suit was instituted, dismissal is appropriate. In addition to or in the alternative to dismissal, the Defendants believe that the Plaintiff should be ordered to pay expenses incurred in preparing the instant Motion for Sanctions, including the instant supporting Brief. IV. CONCLUSION: To date, Plaintiff has failed to comply with this Honorable Court's Amended Order requiring her to provide complete, verified answers, without objections. Specifically, Plaintiff has failed to provide Defendants with executed authorizations to obtain her x-rays and other medical records; Plaintiff also has failed to provide Defendants with the full names of several of her treating physicians. From the record before this Court, it is apparent that since Defendants' initial request for x-rays and medical records, in February of 2001, over one and a half years prior to filing the instant Motion for Sanctions, Plaintiff has been deliberately and/or inexcusably delaying the progression of this case by failing to provide the requested discovery, all of which have caused irreparable harm to Defendants and their ability to defend the instant matter. Moreover, from Plaintiffs actions and/or inactions, which are clearly documented and before this Court, it is apparent that Plaintiff has deliberately and/or consistently ignored and disobeyed this Court's Rule to Show Cause why Defendants' Motion to Compel should not be issued, and the Court's subsequent Order dated January 22, 2002, and the Court's Amended Order dated February 1, 2002, despite the fact that Pennsylvania Rule of Civil Procedure 4019 provide that sanctions may be warranted when a party fails to obey a Court's discovery Order. Because of Plaintiff s continued, lengthy, deliberate and willful refusal to answer discovery outstanding since March of 2001, specifically by failing to provide copies of x -rays or 8 -...~ ~"" ~~~, " "~ .J8b.."""~ medical records, or in the alternative, failing to provide executed Authorizations to obtain Plaintiffs x-rays and medical records, and in failing to obey this Court's Order of January 22, 2002, and this Court's Amended Court of February 1, 2002, as is demonstrated from the documents before this Court, Defendants respectfully request that this Honorable Court enter a judgment of non pros or default against Plaintiff. See Pa. R.C.P. 1019(c)(3). In the alternative, Defendants would respectfully request that this Honorable Court enter an Order precluding Plaintiff from offering any evidence or testimony in support of her claims or to oppose Defendants' defenses and for reasonable attomey fees for the preparation and filing of the instant Motion for Sanctions. See Pa. R.C.P. 1019(c)(2). WHEREFORE, Defendants, Douglas A. Bream and The Foot and Ankle Center, respectfully request that this Honorable Court grant their Motion for Sanctions and enter the attached-proposed Order. THOMAS, THOMAS & HAFER, LLP A~lJa/M/J-.-::J ?r~~/~ C. Kent Price, Esquire LD. No. 06776 Stephanie L. Hersperger, Esquire LD. No. 78735 305 North Front Street . P.O. Box 999 Harrisburg,PA 17108 (717) 255-7632 ATTORNEYS FOR DEFENDANTS : 185550.1 9 . ,~.. ",. '. "_~_ "-'''"_'J'''"_''.'~ ..""". - - -~ >I:' SHIRLEY OGDEN, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-8523 CNIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants : CNIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this lOrn day of October, 2002, I, STEPHANIE HERSPERGER, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendants, hereby certifY that I have this day served the within Brief in support of Motion for Sanctions of Defendants, Douglas A. Bream and The Foot and Ankle Center, by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP ~ChL-U- -2- /~.. Stephanie L. Hersperger, Esquire 10 ~~~. ~...I~ , ~ SHIRLEY OGDEN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants NO. 00-8523 CIVIL TERM IN RE: MOTION FOR SANCTIONS ORDER OF COURT AND NOW, this 15th day of November, 2002, upon consideration of Defendants' Motion for Sanctions, and following a proceeding in chambers of the undersigned judge in which Plaintiff was represented by Don Bailey, Esquire, and Defendants were represented by C. Kent Price, Esquire, it is ordered and directed that within 14 days of today's date Plaintiff provide to Defendants' counsel (a) a valid authorization for release of all medical records of Plaintiff, including X-rays, in the possession of Calvin S. Kibwe, DPM, of the Ambulatory Foot & Ankle Center in Hampton, Virginia or (b) all X-rays taken or reviewed at any time with regard to her foot by Defendant, Douglas A. Bream, Dr. Miller (of Harrisburg), Dr. Green (of Harrisburg), or Dr. Kibwe. In the event that this order is not timely complied with, the Court will grant a Motion for Judgment of NonPros filed on behalf of Defendants. It appears to the Court that the delay which has been occasioned in the prosecution of this case from the date of Defendants' discovery request to the present time would not be fairly attributed to the Defendants for purposes of delay damages, but no ruling on that issue is being made at this time. ~ . < ,'~ '''-'';;';' - / Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 For the Plaintiff I C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 For the Defendants :mae D_' .~; By the Court, > ~~~ - I/-/Cj-OA ,. I RX3 .~ ~, --, , ~ ~- 1._"""",, D~ 3 2002 SHIRLEY OGDEN, Plaintiff v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 00-8523 CIVIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants : CNIL ACTION - LAW : JURY TRIAL DEMANDED ORDER OF COlJRT AND NOW, this (. ~ay of December, 2002, upon consideration of Defendants' Motion for Judgment of Non Pros based upon Plaintiffs failure to comply with the Court's Order of November 15, 2002, it is hereby ORDERED AND DECREED that judgment of non pros is entered in favor of Defendants Douglas A. Bream and The Foot and Ankle Center and against Plaintiff Shirley Ogden in this matter. By the Court, 1'--kOQ. t1rt~ 1\K~ to: ~.~O:\\~ /Pf\ Co? ~ ~~ . """,.",~,,- - l"'~~ IA- i- "::'ICE 'C:NOTt::,f{Y 02 DEe -b PH 2: 19 CUi,'~"Ci.;'i ,J I,"~ rY"U""T\' ';...<...1 :-"1 \;~""" V ! '\j PENNSYLVANIA' ~^ ~, =,- ~~<n_, " . , 'l!lM-"""~~~<~~I'lIi\I!'If'"",.,.,.,.,.,.,_~,,,~ ".m;l'~~m<W\('iif~;:1%ti~~~~_Wt@i~!ti~#iil "llJi!I__._...~ """"-~""" SHIRLEY OGDEN, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA NO. 00-8523 CIVIL TERM JURY TRIAL DEMANDED g -s: -00] ~'" w..;-(j 2:t_~_ mo' :::..(.";E y-C ZO L-,O :Pc:. ~ o "1'1 "-" DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants CNIL ACTION - LAW o N ~ .C"'> I V:' J ,......" -::.:~S:S {~~(:) -:-"-'~'; -0 ---,t'. 0) .' -:i.~;:)\ 9 "7 ~ DEFENDANTS' MOTION FOR JUDGMENT OF NON PROS :J1 (? 1. On November 15, 2002 the Honorable J. Wesley Oler, Jr. issued an Order, in response to Defendants' Motion for Sanctions, directing the Plaintiff within 14 days thereof to provide Defendants' counsel with either (a) a valid authorization for release of all medical records of Plaintiff, including x-rays, in the possession of Calvin S. Kibwe, DPM of the Ambulatory Foot & Ankle Center in Hampton, Virginia, or (b) all x-rays taken or reviewed at any time with regard Plaintiffs foot by Defendant Douglas A. Bream, DPM, Dr. Miller, Dr. Green or Dr. Kibwe. 2. The last day to comply with the aforesaid Order was Friday, November 29, 2002. The first business day following the expiration ofthe last day to comply with the aforesaid Order was Monday, December 2, 2002. 3. The aforesaid Order further provided that the Court would grant a Motion for Judgment of Non Pros in the event that Plaintiff should fail to comply with the terms and conditions thereof within the time period provided therein. 4. As of the date [Tuesday, December 3,2002] and time of filing the within Motion for Judgment of Non Pros, Plaintiff has failed to comply with the terms and conditions ofthe aforesaid Order, and, in fact, the undersigned counsel for Defendants has not received any correspondence, telephone calls, FAXes, E-mails or any other communications from Plaintiff or ,--, ,'. ~-'- _1 ,.c her counsel regarding the aforesaid Order since the time of the hearing in chambers on Defendants' Motion for Sanctions on November 15, 2002. WHEREFORE, Defendants Douglas A. Bream and The Foot and Ankle Center respectfully request that this Honorable Court enter judgment of non pros in their favor for Plaintiffs failure to comply with the terms and conditions of the Court's Order of November 15, 2002. THOMAS, THOMAS & HAFER, LLP Cl-~J~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, P A. 171 08 (717) 255-7632 ATTORNEYS FOR DEFENDANTS 213094.1 'H' ,;. _ ~~ L. ~' '.'_ _ "--'" < 1~ii>""~,,,',lf , SHIRLEY OGDEN, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL V ANlA v. : NO. 00-8523 CNIL TERM DOUGLAS A. BREAM and THE FOOT AND ANKLE CENTER, Defendants : CNIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 3rd day of December, 2002, I, C. KENT PRICE, ESQUIRE, for the fIrm of THOMAS, THOMAS & HAFER, LLP, attomeys for Defendants, hereby certifY that I have this day served the within Motion for Judgment of Non Pros on behalf of Defendants Douglas A. Bream and The Foot and Ankle Center by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Don Bailey, Esquire 4311 North 6th Street Harrisburg, PA 17110 Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP r_~2o c. Kent Price, Esquire