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Home My WebLink About99-02617 ,. ,. TERRY J. ROSENBERRY and BEVERLY ROSENBERRY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED Plaintiffs v. STEVEN D. GRASLEY, Defendant ORDER AND NOW, this __ day of , 2000, it is hereby ORDERED that Plaintiff and Plaintiffs expert, Lawrence J. Guzzardi, M.D., are precluded from offering any testimony at trial concerning the consumption of alcohol, blood alcohol tests or any evidence bearing on the issues of alcohol and intoxication. By the Court: George E. Hoffer, P.J. -. r', ," L , , r.. ~ ~ 0- I ~~ OJ OJ <D a: 0- 0 "' .. 1; ~ ... 0- .. ~ ~ z .. S- ~ " cf ~ ... 0 I . <D a: t'i E x " 0- 0 <D ~ a: "' 0 a: 0: .. ~ z a: ~ "' .. 0 X .., Q ~ .. 4 ".. tlj ; O{. Exhibit A '. . COUNTERPOINT@ AN OFFICIAL PUBLICATION OF THE PENNSYLVANIA DEFENSE INSTITUTE An Association of Defense Lawyers and Claims Executives 1/" JANUARY 2000 Admissibility of Alcohol Consumption and/or Intoxication Evidence in a Civil Action By: Gregg A. GUlhrie, Esquire, Summers, McDonn"'l, Walsh & Skeel. L.L.P., Pill.burgh, P.4 ~ I. lnrroducllon The issue of whether evidence of alcohol consumption and/or intoxication is admissible in a civil action can be: criti. cal to the outcome of1he case. Evidence of a pany's consumption of alcohol andlor intoxication can greatly influence jurors in deciding issues of both liability and damages. Evidence of intoxication on the port of a plaintiff can fonn the basis of a contributory/comparative neg- ligence defense which can result in a substantial reduction of the plaintifrs cloim or even a complete bar to the plaintifrs claim where the plaintifrs negligence exceeds the defendant's neg. Iigcnce. Evidence of intoxication on the part of the defendant can be an aggravat- ing factor on the issue of liability and will usually increase the defendant's degree of fault. Additionally, evidence of a defendant's intoxication may, under ceruin circumstances. constitute "outra. geous conduct" andlor a "reckless indif. ference to the interests of others" fonn. ing the basis of a claim for punili,'e dam. ~ges. Even where there is no claim for punitive damages, 3. jury may reflect its disdain for a defendant's intoxicated conduct by inflating any award for com. pensatory d:tmagcs.' This article provides a review of relevant Pennsylvania case law pertaining to the admissibility of alcobol consumption and/or intoxication evidence in various types of civil actions. A, ~Iotor Vehicle Cases It is well est:lblisbed under Pennsyl. vania law that when recklessness or c:lrelessness is at issue, proof of intoxi. cation is relevant. but the mere fact of consuming alcohol is not admissible, being unfairly prejudicial, unless it rea. ,onably est:lblishes a degree of intoxiea. tion which proves unfitness to drive.' Evaluating Expert Testimony With Respect to Medical Causation: The Use of Epidemiological Studies in Court By: Maddine M. Sherry. Esquire and Frederick E. Blakelocl<. Esquire Hecker Brown Sheny and Johruon, Philadelphia. PA In tox.ic tort C:lses, medical causation is c:lusation, One of the most common often the plaintifrs most difficult ele. sources of information expen witnesses ment of proof. The li"l hurdle a plaintiff may rely on to support their opinions fJees is proving gener.lI C3u5ation. th:H regarding: callsation are epidemiological the substance at issue is capable of caus. srudies. Wbile epidemiological studies ing Ihe disease or condition from which C;1n be useful 10 assist a SCil"nlist in the p1J.intitT suffers. Special c3usation is dClt.'nnining "hethcr it is likely th3t a gcncr.lJly more ch311enging to prove. su:-;peclt:'d lo~in might h3\'e the 3blliry to The pl,JinrilT must show th3t the suspect- C:luse :J particulJI conJillon, .J problem ed toxin 3t issue mUle likely th:m not anscs Yo her. experts rely too heJVlly on \\'3S 3 ~ubslJ.nljJJ contributing factor in epidemiologic:lI studies to prove specif- c3using his or her paniculM injury. ic cJusation. In many c.Jscs. ~uch opin. Expert testimony is the [001 with which ior.s should Ix: viewed with slC'Plicism, plJintiffs meet {heir burden of proving D continui;-d on page 12 It is also clear under Pennsylvania law that evidence that a person was in a bar shonly before an accident or that a per. son was in a place where drinks are served is inadmissible unless such evi- dence reasonable cst:lblishes a degree of intoxication which proves unfimess to continued on page 2 On The Inside . Medical MaJproctice Case Update........................................... 15 . 171e .Remedy Analysis. under the Motor Vehicle Financial Responsibility /.Ew........................23 . How to HandJe Medical Only Claims in UgIlt of the Lemansl<y Decision.......................25 . Commonwealth Courl Continues to Define "tncarceration. under the Workers' Compensation Act........31 .'nsuranco Coveroge and Claims Update ..............................31 . 171e 171ird OfOJ~ EstJblishes a Pnma Faoe Case for "Reverse o.scnmination" Ca.ses...................37 -/n5Ur::lIlce Cover.Jge and Bad Faith Update..........................39 . Motor VehicJe /.Ew Update...........44 . Worl<er.;' Compensation Update SIgnificant Case Summaries ........51 ,.. COUNTERPOINT We encourage comments from OUt rc=adcrs Write: Pennsylvania Defense Institute 133 State Street Harrisburg, PA 17101 Phone: 717.238.7806 1.800.PDI.0737 FAX: 717.238.2766 Ralpb E. Kates, Esq. ........"."..,..."......,.". .Editor-in-Chief Madeline M. Sherry, Esq, .,. . . . . . . . . , . . , . . . , . . . , . . . . . .AssisClnt Editor James C. Haggerry. Esq. . . . . . . , . . , . . , . . . . . . , . . . . . . . , . .AssisClnt Editor Thomas R. Bond, Esq. .,..........,.."...,..,...... .Assistant Editor Counterpoint has been designed by the Pr.nnsylvania Defense Instirute to infonm members of developments iu defense-related legislation, relevant and significant cases and court decisions, and any othcr information wbieh is of interest to the membersbip. Bulk Rate posClge paid at Harrisburg, Pennsylvania Copyright <0 2000. Pennsyl,'onio Defense Institute Admissibility of Alcohol continued from page 1 drive.' As the Pennsylvania Supreme Court stated in Morreole " Prince: In terms of the possible prejudice there is no fuoctional difference between evidence that a litieant was drinking and evidence that b'(, was in a bar. Both pieces of evidence give rise to the insidious inference that the individual involved was intoxicated or under the influence of alcohol, which inference, without some proof of intoxication, has no role 10 play in any case.' The r:ltionale for excluding evidence of alcobol consumption or evidence of being in a bar is tbat such evidcpce is unfairly prejudicial unless it reasonably establishes a degree of intoxication which proves unfitness to drive.' An individual's conduct, if sufficicntly deviate and of the type associated with intoxication can be sufficient evidence alone of intoxication.~ The most com. mon types of proof of conduct consistent with intoxication arc trouble standir.t!. slurred speech. staggering gail, dri\'in~g erratically and odor of alcohol.' This is the type of conduct which will permit lay opinion testimony as to 'M:hclh~r a person is inlDXicJlcd,- While the mere description of an indi"idu3l's conduct m3Y. under certain circumstanccs. be sufficient to allow the jury to draw the conclusion of "unfitness to drive:' it would be prudent to call an expert to cSClblish unfitness to drive. Such proof is mandatory in cases where an indi\'id~ uaJ's blood alcohol content is relied upon as evidence of intoxication. The use of blood alcohol content in establishing intoxication falls into two (2) categories -(I) where there is "other" evidence of intoxication in addi- tion to the subject's blood alcohol level and (2) where the !.>!cod alcohol contcnt is the ooly evidence of intoxication. "Vv'here "other evidence" of intoxication such as slurred speech, sClggering gai~ odor of liquor on the breath and loud and boisterous conduct accompanies a higb blood alcohol level, the courts in Pennsylvania bave had no hesitation in permiuing evidence of the blood alcohol percentage.' For example in Cu.'ioris \~ Rcich~rl. III the Pennsylvania Superior COUrT reversed the trial court's order precluding evi. dence of the defendant's intoxication. In reversing the trial court, the Superior Court stated: While we again acknowlcdge the vitality of this policy of exclusion, it is clear that the instant facts could reasonably establish intoxication, thereby obviating the danger ofpreju- dire to Reichert. The offer of proof included testimony that Reichert had 3 h100d alcohol content of.14 approx. im31ely one hour af1er the accident. Our kgislature has expressly approved the blood alcohol les: as a ml~Jns of dc.,trm1ining whelhC"r a pC"r. son is driving under the influence of intoxicating DC'\'erages. Indeed. 3 blood alcohol conlent of ,10 percenl 2 JANUARY 2000 or more of weight raises a presump- tion of intoxication. 75 Pa,C,S. S I 547(d)(3), While it is true that the . Supreme Coun in Billo_: when con- fronted with a defendam baving this same amount of blood aleohol- .14- ruled the testimony inadmissible, it is crucial to note that the breathalyzer result was Ibere the sole evidence pre- sented to support an inference of intoxication, Such a reading on a breathalyzer might be caused by legit. Imate medication or chemical sub- SClnces. Instantly, however, appellants also proffered testimony that Reichert bad consumed a considerable amount of alcohol prior to the inciden~ and had the odor of alcohol about him when the investigating officer arrived at the scene. Taken in its totality, this evidence revcals far more than the mcrc hint of intoxication condcmned as prejudicial in Morreole and 11gnoli. As the evidence presented could rea- sonably support a conclusion that Reichert was intoxicated. the question should have been placed before the jury.11 Also, in Gollagher v. lng, II the Pennsylvania Superior Court held that a a blood alcohol content of. I 8 was admi.. .. sible wbere there was other evidence of unfitness 10 drive, including expert opin- ion. The Gallogher court stated: It bas been suggested in some of the decisions that a blood alcohol content of.l0 percen: of marc, when standing alone, is insufficit'nt to show a degree of intoxication whicb proves unfit- ness to drive and. therefore, is inad- missible. See: Billow" Formers Trust Co.. supra; AcJ.erman \: De/comico. supra. Assuming, without deciding, that a blood alcohol content, no mat- ter how higb, can be used only in con- junction with other evidence to show intoxication rendering a motorist unfit to drive, such a rule of law docs not aid appellant in the instant case. Here-, the-rc was additiona.l evidence, which "'as ~umci('nt. if belie\'cd, to ~bow th~lt th~ dccC'dcnt was until 10 dri\'e J "chick This addItional c\'idcnct" ,...howed that the dcC'edcnt hJ\ h-crn dnnking ~colch for J r~riod of Jpproximately an hour ~md J h:df ncfore r(,l1in~ in his C31 to . drive home. He had rmxcd the drinks for himself, u,ing a boule 0: scotch rurch2,ed for hIm toy friends who knew his fOl1dnc!.s for ~cotch. SC'\'ernl .' "" ,,;r..:,- ,,' ~"., :,",'" ;"I'~':':"":':>~ ':"';,",1;,":' ',',,~'~~'/:". ,;:'"'r":~':,,,' ,'r::,~''''.,,'~::';'',,::,,'!:'~,''. '." rl..~"'. ",;~('i,>': .'. ,1,'_\ ''''J , Il' ,"'. '<. ',...."'.~-.....((':r-:':l~\"~<\..'.,\'..~~\::.......,..~,..~.'h',I\.'.~. ',\ '''. I f.o, l , . "'. \ ". ", . , .., .....~. ........;I;.'..;...oJ, ._ ..... ,. .'. I . ..... ,lJ _ ' .~...., J", '" ' , . . . JANUARY 2000 .. ". witnesses observed the decedent drie ving at a high rate of speed on a dark, winding and hilly road approxil11at<:ly one mile from the scene of tile acci. dent. In addition It> evidence thai s:1l11plcs of dccclh:nt's blood revealed a blood alcohol eonlent of .1 S per. ceO[, Dr. Frederick Rcidcrs. a toxico- logical expert. testilied extensively regarding the signitic3ncc of sLlch a high alcoholic content with respect to the decedent's ability to drive safely. The 'other' evidence nc:c:~ss:uy to r~n- del' admissiblc a blood alcohol con- tent in excess of .10 percent, it bas bc:c:n held, may consist of expert testi- mony interpreting the signitic::mcc: of Ihe results of blood alcohol tesls with respect to unlitncss to drive. It may also consist of lay Icstimony pcrtain- ing to conduct on the part of the actor which suggests intoxication, or. as lhe case law demonstrates. it may consist of both of these types of evidence combined. The tria' court concluded that the evi- dence was sufficient 10 establish a degree of intoxication proving unfit- ness to drive and allowed the evi- dence of consumption of alcohol. We find no error therein. Contrary to appellant's contention, the evidence was not merely that tbe decedent had a blood alcohol reading of .18 per- cent. Tbe evidence was sufficient, if believed, to show that the decedent was so inloxic:Hcd th:H he was inca. pable of driving safely and that tbis was the legal cause for his loss of control of tbe vehicle whieb he was driving, ""'"here the sole evidence of drinking Or intoxication is an elevated blood alcobol level or where the evidence does not rea- sonably establish imoxication which proves unfitness to drive. courts in Pennsylvania have excluded evidence of alcohol consumption as being unfairly prejudicial,lI In Billow \-'. Fanners Trost CO..14 the: Pennsylvania Supreme Court affinned the trial court's orde:r excluding evidence of the plaimitrs imox1c::Uion which con- sisted of. blood alcohol content of .14 and expen testimony interpreling the same, The Pennsylvania Supreme Coun stated: The trial court properly c.,e1uded the proffcrcd evidence of decedent's blood alcohol content. Crucial 10 appellant's olTer of proof was Ihe tes- timony of a Dr, Robert McCollaghie. who apparenliy would have stated Ihal, in his opinion, a man wilh a blood alcohol content of.14 would be allcctcd in his driving, This stalement laiLi to meet Ihe standards we recent- ly set forth in A/orrea/I! v. Prince, 436 Pa, 51, 258 A.2d 50S (1%9). where we said: While proof of inloxication is rei. evant whcre reckless or careless driving of an aUlomobile is the matter at issue, the mere fact of drinking into:dcaling liquor is not admissible, being unfairly preju- dicial, unless it reasonably estab- lishes a degree of intoxication which proves unfitness to drive. (citations omitted) Dr. McConaghie's opinion that a per. son with a blood alcohol cOnlent of ,14 would be 'atTected' in his driving falls shon of the requiremenl that the evidence show "3 degree of intoxica- tion wbich proves unfitness to drive.' Since the otTer wa.~ insufficient it was properly excluded." Arguably, the Billow case stands for the proposition Ihat evidence of an elevated blood alcohol content, standing .Ione, is not admissible under any circumstances, Tb., United States Coun of Appeals for the Tbird Circuit, applying Pennsylvania low, reached a similar result in ROl'egno v. Geppert Brothers. Inc, I. In Ro\-'egno, the Third Circuit precluded testimony Ihat the plaintifrs blood alcohollcvel at the time of the accident was J 58 per- cent. as well as the testimony of an expert tbat a blood alcohol level of that de!!Tee would h3\'e made the plaintitT unfit to drive and that "the allects of alcohol on judgment, coordination and such. ma.ke him unfit to dri\'e,"t~ A physician's testimony is. in elfect, '.olhc:" evidence." Accordingly, it has b~~n argued that expen testimony c~tJ.b- lishing that a cenain blood alcohol bel renders an individual untit to operate :1 motl'r vehicle should be sufficient tcsli- monv even in light of the Billow deci. sion: This type of testimony was permit- ted in Emerick i-~ Carson. II ",'herein :1 physician was permined to testily Ihat "the atTect of a .20 percent hlood alcohol J COUNTERPOINT'" level is euphoria, loss of restraint. loss of mOlar coordimllion and impainncnI of ralional d~cision.making ability," Intcrpreting lhe results of a blood alco. hol tcst necessarily requires expert testi- mony, This is especially true where Ibe blood alcohol lest is taken sometime a/ler an accident hOlS occurred. In thaI case. expert testimony is necessary to establish the actual blood nlcohol con- tent at the time of tbe accident. Tbis is known as relation.baek testimony. Relation-back testimony is necessarily premised on a determination of when tbe subject ceascd drinking. Where the evi- dence fails to disclose wben tbe subject drank bis/her last drink, it has been held that :m expcrt is incompetent to render Dn opinion interpreting the subject's blood alcohol level at the time of the accid~nt.l" tn Schwar:bach v. Dunn,:o the Pennsylvania Superior Coun vie\'led relation-back testimony with skepticism. Since the Schll'or:bach decision, courts have regularly permitted relation.back testimony.:1 An admission of alcobol use and intoxi- cation can be admissible evidence of a party's intoxication. In McKee by McKee v. Evans." the PeMsylvania Superior Court held that the defendant's admis- sion at a deposition tbat he was "proba- bly" intoxicated, that he consumed seven or more 12-ounce glasses of beer at a party within a three.hour period immediately preceding the accident and that bis blood alcohol level was "proba. bly" more than .10 percent was alone sufficient evidence of intox.ication. The Evans court stated: In the case before us, [defendant] himself. admitted that be was 'proba. blv' intoxicated. that he consumed se~en or more 12-ounce glasses of beer at :1 pany within :1 three.hour period imrnediately prior to the acci- dent and tbat bis blood alcobol level was 'probably' more than ,10 percent. In our view, these statements. alone. arc sufficient evidence of intoxication to inlroduce Ibe questioned deposi. tion testimonv. \Ve therefore con- clude, as did ~"unscl for above [co. defendanls] in their appellate briefs, that the trial coun did not commie error in penniuing the abovc-quoted teslimony.:' Pennsylv:mia courtS have also held that a pica of guilly 10 the criminal cbar!;e of continued on fXJgCJ 4 ,.. COUNTERPOINT Admissibility of Alcohol continued from page 3 driving under tbe innuenee is admissible in i1 civil 3ction as an admission OJBainst interest.:. Proof of driving while intoxicated is evi. de~ce of negligenc~ and, in fae~ driving while under the Innuenee constitutes negligence as a maneI' of Jaw if il is a substantial factor in bringing about the injury since it is the violation of a mandatory statute." i, PlaIntiff-Passenger Evidence of intoxicalion of a defendant. driver may be admined to support a defense of contributory/comparative negligence in a claim by a plaintiff-pas- senger. :. In Karchner \' Flaim," a passenger brought a negligence action againsl her driver and Penn DOT to recover for injuries sustained in an accident in whieb the driver was killed, The trial coUrt beld that evidence of tbe driver's alcohol consumption and blood alcohol content, along with other independent evi~e.nee, Was admissible. The jury, deCiding solely the issue of liability, returned a verdict for PennOOT, but found the plaintiff forty percent negli- gent and the defendant sixty percent negligent. Plaintiff appealed, arguing that the trial court should not have erro. neously allowed evidence of defendant's intoxication and that the trial court should not bave instrUcted the jury on contributory and comparative negli. genee. In affirming the trial collrt. the Superior Court stated that the evidence of the defendant's intoxicalion was suffi- cient. Witb respect to the trial coun's jury instn,ction on contributory/compar. ative negligence,tbe Superior CoUrt held that there was sufficier.t evidence of plaintiff's contributory negligence because she was aware that the defen- dant had consumed alcohol and c.xpen testimony indiC3tt:d thai someone with the defendant's blood alcohol conlent would be \'isibly intoxicated. The Superior Coun staled: In its opinIOn. the tri:.l! court con.C'cllv relied upon Honnon ". Gfl' d( Phtlodclphia, 138 PaCmwlth.' J 6(;. 587 A.2d 8~5 (199J), in n:aking a delerminalion on IhIS is~ue. In Hannon, a passenger hrought an action against the city and the driver for injuries sustained in an accident. There, we held that a passenger may be negligent by exposing himself to an unreasonable risk. In so holding, the Hannon coun made it clear that, at trial, the points for charge must not absolve passengers from any duty 10 assess the safel'V of tbe circumstances in wbich they place themselves when they entrust their safely to a driver who they know has consumed alco- hol. [Plaintiff] insists that there was no evidence upon wbicb tbe trial court could base its decision to instrUct the jury on the issues of con. tribulory negligence or comparative negligence. We disagree, It is admitted tbat [plaintiff] knew tbat [defendant) had consumed alcohol. As noted above, testimonv at trial indicated that both plai~tiff and defendant drank at least two 7.ounce beers eacb before getting into tbe car with a 6-pack of beer preceding the accident. Expen testimony indicated that [defendant] bad a 0.16 percent blood alcohol content at the time of the accident and further expert testi- mony indicated that someone with a 0.16 percent blood alcobol content would be visibly intoxicated. Significantly, our courts have held that even minimal evidence of con- tributory negligence requires a charge on the issue. (citations omined) No maneI' how slight the evidence of plaintifr. COnlribulOry negligence, it is rcversible error not to charge the jury on the issue. (citations omined) In the instant matter. there was evi- dence of plaintifrs contributory neg- ligence; the trial court was therefore obligated to instruct the jury accord- ingly." The decided cases requirc that the plain. tiff-passenger be aware of the risk of harm arising from the defcndant-driver's conducl.'9 The pJ~~;~ngC'r'b knowledge may be inferred, without actual proof. from the wlTounding cirtulJ1stanrcs, 1" ii. ~rJ:ligl'nt Enlru!lo!ml'nr E\'idcnre of a dli'.'cr's ;ikohol cnn~umr- lion and/or intoxic:Hion c;,.tn be Jdmis!,j. b!e- 10 prov~.1 c1Jim of n<"rlltCn1 ('ntl11~.t- mcnt.)! In II",,: 1'. A"rphan," the Superior Coun held thai c\'llkncr of a dfWt'1 's inltlxicO!. 4 tion when he borrowed a car eighteen (18) hours before the accident as well . as evidence of the driver's continued ' drinking after he borrowed the car was admissible 10 prove a negligent entrUst- ment action against the vehicle owner. In reversing the trial court's ruling excluding such evidence, the Superior Court stated: The trial court decided, after an offer of proof, not to allow testimony regarding Kepbart's intoxication wben he received the keys. In his opinion the Judge states the testimony would be irrelcvant since the keys were given to Kepbart 17 hours before the collision with appellants. We undersland the coun's concern witb the prejudicial and inflammatory potential that testimony about a defendant's intoxication bas in a jury trial. However, the intoxication testia mony was a vital part of appellants' cause of action against appellees. This ruling effectively denied appellants the opponunity to prove their claim of negligent entrusttnent." The COUrt went on to hold thai the evi- dence was necessary for plaintiffs to . prove their negligent enlrusttnent claim against the vehicle owner, Actual knowledge on the part of the entrustor of the entrustee's intoxication is required to establisb negligent entrUst- ment.~ iii, Punith'e Damages Driving under the innuence of alcohol may, under certain circumstances. consti- tule "ouoageous conduct" and a "'reck- less indifference to the interests of oth- ers" sufficient to allow the imposition of punitive damages." In Focht \' Rabada, the PennsylV'dnia Superior Court held that the trial coun erred in refusing to submit the issue of punitive damages to the jury. The Superior COlin noted that although several jurisdictions bave held that evidence of intor-ication does not support an award of punitive damages, the majority of jurisdictions do allow r~co\'C'ry of punitive damages from :m intm:icJlcd driver under certain circum. :->IJllccs. TIle Focht coun concluded: We believe th,t driving while under . the inOuence of intoxicating liquor with its very great potential for h,rm and serious injury may under certain circuflihlances be deemed 'outrageous conduct' and 3 'reckless indifference JANUARY 2000 . to the interests of others' sulliciclll to allow the imposition of punitive damages. . Automobiles represent the most Icthc1 and deadly weapons today entrusted to our citizenry. When automobiles are driven by intoxicated drivers, the possibility of death and serious injury increases substantially. Every licens. ed driver is aware tbat driving wbile under the influence of intoxicating liquor presents a significant and very real danger to others in thc area. Thus, we have no hesitancy in concluding that an intentional assault with fiSIS, may. in certain instances. constitute action less outrageous than anempt- ing to drive while under the influence of intoxicating liquor wbich consti. tutes a threat to the life and safety of others. In certain factual circum- stances, the risk to others by the drunken driver may be so obvious and the probability that harm will follow so great that outrageous misconduct may be eS13blished witbout reference to motive or intent. We conclude, therefore, that, under the appropt1ate circumstances, evidence of driving wbile under the influence of intoxi- cating liquors may constitute a suffi- cient ground for allowing punitive damages." Wbere an intoxicated defendant's actions constitute .'wanton" conduct, the defenses of eontril:-utoryleQmporative negligence may not be available." B. Pedestrian Cases The general rule in pedestrian cases is that evidence of alcobol consumption and/or intoxication on the part of a pedestrian is inadmissible unless such C'oidence proves unfimess to be crossing the street." The relevant S13tutory provision is 75 Pa.C.S.A. ~ 3550. That section provides as follows: Section 3550. Pedestrians under influence or alcohol or controlled subuance. . A pedestrian who is under the influ. ence of alcohol or any controlled sub. stance to a degree which renders the pedestrian a h=rd shall not walk or be upon a bigbway except on a side- walk." Pennsylvania case law is clear that where there is sufficient evidence of a pedestrian's if1l0xic:llion. such evidence is relevant and admissible,"" The most recent case to address the issue of the odmissibility or alcohol cunsumption! into,'<ic:uion of a pcdl~strian.plainlitT is Kraus \I. TtJy/or..1 In Kraus. the Pennsylvania Superior Court held that there was sufficient evidence of the plainti1}"-pedestrian's intoxication at the time of the accident. The Kraus court stated: Appellant next contends that tbe trial court committed reversible error by admitting evidence of appellant's blood alcohol level at th<< lime (he incident occurred. Appellant asserts that because he was a pedesrrian. i.lther than a driver. the evidence was not relevant. Appellant relies on Kriner v. McDonald. 223 Pa. Super. 531, 302 A.2d 392 (1973) and Whyte v. Robinson, 421 Pa. Super. 33. 617 A.2d 380 (1992). Again, Appellant's reliance is misplaced. In Kriner. we stated; Evidence tending to establish intoxication on the part of a pedestrian is inadmissible unless such evidence proves unfitness to be crossing the street. Pennsylvania Courts have gone to great lengths to enforce [the anal- ogcus rule relating to tbe intoxica- tion of drivers]. Consequently, no reference should be made to a pedesrrian's use of alcohol unless there is evidence of intoxication or copious dn"nA.lng on the parr of the pedestrian: for example. evidence that the injured parry was staggering or had liquor on his breath give support to such an inference. Kriner. 223 Pa. Super. at 533-34, 302 A.2d at 394 (emphasis added)(cita- tions omined). In Why/e. we simply applied the rule established by Kriner. S,'e fl7rrre, 421 Pa. Super. at 38-40, 617 A.id at 383. Both cases turned on our conclusion that evidence of the pedestrian '5 intoxication was so insubst.:lnliJI. and the potential preju- dice so signific.:mt. that it was an abuse of discretion to admil the: evi- dence. See Kriner. 223 fa. Super. at 533-35, 302 A.2d at 394; 1t7r)'tr. 421 Pa. Super. at 43-44,617 A.2d at 385. In contrast, appellees in this C.2.se pro- ducrd substantial evidence of appel. 5 COUNTERPOINT"" lant's intoxication at the time of the accident. First, the responding officer testified that he scented alcohol on appellant's breath shonly ane!' the accident. S~cond. the hospital mcrt. sured the appellant's blood alcohol level in excess of 0.25% wilhin 40 minutes of th" accident. Finally, appellees produced expen testimony that, given the blood test results, appellants judgment 'md motor cool" dination would have been severely impaired at the time of the accident. The trial court did not abuse its dis- cretion in admitting this substantial evidence of appellant's intoxication at tbe time of the occident.'.' In another very recent decision, Chicchi v. SEPTA." the Commonwealth Court beld that evidence of a pedestrian's cocaine use was admissible since there was circwnst3ntial evidence of cocaine intoxication. Several courts have refused to admit evi. dence of a pedestrian's intoxication where the evidence did not reasonably establish intoxication whicb proved untimess to be crossing the street.~ The most recent case wherein the coun refused to admit evidence of a pedest. rian's alleged intoxication is Clinton v. GileJ." In Clinton, tbe Superior Court beld that the defendant's proffered evi. dence of the pedestrian's blood alcohol content was inadmissible since there was no independent corroboration of the pedestrian's conduct on the night of the accident. Relying on Kriner. Ackerman and IVhyre. the Superior Court s13ted: Evidence tending to esublish intoxi. cation on the pan or a pedestrian is inadmissible unless such evidence proves unfitness to be crossing the street. Pennsylvania courts have gone to great lengths to enforce this rule. Consequently, no reference should be made to a pedestrian's use of alcohol unless there is evidC'nce of intoxica- tion or copious drinking on the part or thc pedestrian; for example, evidence that the injured party was staggering or had liquor on his bre3th gives sup- port to such an infcrc-nce. TIle lheory behind allowing a hlood alcohol level to be admined into "i. de-rice in :1 ci\'il case is lhat it is rele- vant circumsunlia! evidence relating to intoxication. However, blood alco- hol IC'o'el alone may not be admitted for the purpose of proving intoxica- continued on page 6 .. COUNTERPOINT , , \. ' " .", .:, ',',' " ,. '< ':.,~ " ". ':,' ';'>" :1' t' ',f: I \~,', I. ,~. '_' (: . . . ';' JANUARY 2000 Admissibility of Alcohol continued from page 5 lioil. There must be other evidence showing the actor's conduct which suggests intoxication. Only then, and if other safeguards are present, may a blood alcohollevcl be admitted. Conduct establishing intoxication of a pedestrian includes evidence of stag. gering, stumbling, aimless wandering or ineoherent mumbling. The evidence [defendant) intended to present was [plaintiff's) blood alcohol content as indicated in a hospital lab report, and the testimony of a medical expert interpreting that blood alcohol level. As the trial court correctly ruled, neither was admissible under Pennsylvania law. Funhennore, there were no other witnesses to the acci- dent, and [defendant] himself ac- knowledged that he became aware that be had hit [plaintifl] not because he saw her, but rather because he felt a thump. In the absence of any evidence related to [plaintifrsj con. duct or timess to cross the street on the evening of the accident, the trial judge did not abuse her discretion in grant-ing the motion in limine.~ Pennsylvania couns have held that the standard for admission of evidence of intoxication applicable to reckless driv- ing of an automobile is the same stan. dard to be applied to an il1loxicated operator of a bicycle." C. Producls Liabilil)' Cases Evidence of a plaintiffs intoxication is relevant and admissible in a products lia- bility case only where the evidence of intoxication is offered to prove that the accident was caused .<ole(I' by the ploin- tiff's conduct as opposed to a product defcct:" In Afadonna \'. lIarh,'.Do\'j.wm, Inc.:~ the plaintiff was the operator of a Jlarley.Davison molorc\'ck who was injured after an upper m~unting holt on the brake caliper of the fronl wheel of the molorcycle allegedly broke causing the subject accidcnt. Ilarley-Davison 3sscncd that the bolt was working prop- erly before the :ledden1 Jnd bro~c JS 3. result of the accidcn:. The defense sought to prove that the cause of the accident was solely ope-rator ('[Tor. At tri:ll, evidence of the plaintiff's inloxica~ tion and vehicle operation were admitted because they were relevant to the calise of the accident and injuries, III affinning the Superior Court's ruling admitting evidence of tbe plaintiff's intoxication, the Madonna court noted that negli. gence concepts are not 10 be introduced into a strict liability case. The COllrt stat. cd. however, that a plaintifrs conduct in a products liability case is not always irrelevant and inadmissible. The coun stated tbat inquiry into the plaintifrs use of the product may be relevant as it relates to causation. Relying on Childers \~ Power Line Equipment Rentals,!PIl the Madonna court stated: In the case before us, [defendants] introduced evidence that despite the bolt defect, the accident occllrred solely due to the intoxicattd condi. tion of the driver. unrelated in any way to the product. This is precisely the situation whicb the court in Childers recoQnized wOllld make admission of pjaintitrs conduct rele. vant because it dircctly impacts on the issue of causation. In Childers, evi- dence of the user's conduct was not admitted because the defendants were only able to show carelessness, whicb conduct would not have caused the decedent's death absent defects in tbe truck. Here, in contrast, [defendants') evidence sought to prove that the dri. vcr's reckless conduct alone caused the accidcnt reQardless of the defect in the bolt, Fo"r tbis reason, it was properly admitted." Similarlv, in SJlrmdec \~ Generai MOlors Corp.," ihe plaintiffs brougbt a strict lia- bility claim alleging that their vehicle malfunctioned while the driver was backing into a parking space. The Superior Court beld that expert testimo- ny of the driver's intoxication, corrobo- rated by other evidence, was admissible "to establish the intoxication of the dri. vcr 10 a degree that his intoxication was the cause of the accident:' Also. in Gallagher I: /ng." the Superior Court admitted evidence of the plain. tiff's intoxication on the iSl;ue of causa~ lion. In Gallop-her. the administratrix <.If the decedent's estate broup.hl J wrongful death action ag3inst the manufacturer of the automobile in which he was driving when killcd. It was alleged that the Porsche automobilc had been defective- ly designed. The manufacturer denied that there was a design defect and defended by presenting evidence that the 6 decedent lost control of the vehicle because he was intoxicated. The plaintiff . contested the admission of this evidence and on appeal, the Superior Court beld that it was properly admitted. The Superior Coun stated that the evidence was "sufficient, if believed, to show tbat tbe decedent was so intoxicated that he was incapable of driving safely and that this was the lecal cause for his loss of control of the \'~hicle which he was driv. ing:' As these cases demonstrate, a product user's negligence is not relevant or admissible evidence in a strict products liability action if the product defect con- tributed in any way to the harm. However, where the defense offers evi. dence to eswblish that the accident was cause solely as the result of the user's conduct, and not related in any way to a product defect, it is relevant and admis. sible for the purpose of proving causa. lion.S4 D. Dram Shop Act Liability . Evidence of alcohol consumption andlor intoxication is admissible in a liquor lia- bility action to prove liability against a licensee who has furnisbed liquor to any . person who is visibly intoxicated. . Injuries to either a visibly intoxicated person or injuries caused by :i visibly intoxicated person bave resulted in lia- bility to licensees who have furnished alcohol to a visibly intoxicated person. However, there can be no liability unless the patron was served alcoholic bever- ages while visibly intoxicated.n The relevant statutory provision, 47 P.S. ~ 4-493( I ), provides as follows: It shall be unlawful -{ I) For any licensec . . . or any employee, servant or agent of such licensee. . . to sell, furnisb or give any liquor or malt or brewed beverages, or 10 permit any liquor or malt or brewed beverages to be sold. furnished or given to any per- son visibly intoxicated. . .!Ifo A violation of the requirement of this statute is deemed negligence per st', and if the violation is the proximate cause of the plaintiff's ,"juries, then the defen. dant is IiJbk," Thu.'i. in order 10 make out a prima facil' .. case. a plaintiff must prove two (2) things: (I) that all employee or agent of ,he licensee served alcoholic beverages to 3 customer while visibly intox.icated; and (2) that this violation of the statute - JANUARY 2000 . proximately caused lhc plaintitT's injuries,l. It is not sutlicicnt for a plaintill'to estab- lish merely that alcoholic beverages were served to a patron or that the patron was intoxicated at the time he or she was injured or caused injury to another. For civil liability to attach, evidence must be produced indicating that the patron was served alcohol at a time when he or she was visibly intoxicated.I' The mere breacb of the statutory duty to refrain from serving alcobol to visibly intoxicated persons does not alone establish liability, as a plaintitTmust also prove that tbe breach was thc proximate cause and cause in fact of the injury..' Liability for serving alcoholic beverages to a visibly intoxicated customer is not limited to licensees but includcs employ. ees of the Iicensee.~l The relevant statu- tory provision. 47 P.S. ~ 4-497, provides as follows: [N]o licensec shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by the said licensfc or his agent, .servant or employee wben the said customer was visibly intoxicated." While the type of proof of visible intox- ication differs somewhat from proof of unfitness to drive, the subject's bloed. alcohol level has been held 10 be rele- vant, and a blood alcohol test est:lblish. ing an elevated blood.alcohol level is admissible.u Where evidence of into:\i- cation is present (staggering, belliger- ence and instability) at the time of the accident, even though there is a lack of direct evidence of the subject's condition at the time he was served tbe last drink, the issue of whether the subject was vis. ibly intoxicated at the time he was served is a jury question.... In Sp(~ichcr \-', Reda1t and Peluso l'. Halter.... summ:u)' judgment \\':15 denied even though lhe licensee testified that the subject was not visibly intoxic:ucd while served bC'c:l.u~e the evidence indicated that the subject had consumed six or seven beers outside the bar prior to being served ~nother four b<ers at the bar in a period of one hour. In Fondo::; v. Kelly Hotel. Inc.... the Pennsylvania Superior Court held that direct eycwitnrss evidence th31 an indi~ vidual was !;cn'C'd ",hile visibly intoxi~ . . cated was not required. Ratltl:r, the court held thai circumstantiJI evidence of vis~ ible intoxication was sutTIcient to crC:lle a jury question. The circumstantial evi~ lienee included, inter alia. expert lesti~ mony thaI the plaintitT had a SAC ofJO percent at thc time he left the Kelly Hotel and wilness testimony that the plaintitT exhibited conduct consistent with intoxication after leaving the Hotel. Before the Fllndo;:i decision, the Superior Court. in COUlS v. Ghjon, "" reversed a compulsory nonsuit and rem~mded for a new trial where there was no direct cvidence or a bar patron's cant/irian when he was served."" The patron . subsequenily killed another motorist. In Couts, there was only cir~ cumstantial evidence related to how much alcohol tbe patron was served, the m~mncr in which he drove after leaving the bar, his visible intoxication at the time of the accident and his blood alco- hol content after the accident Even without direct evidence of the patron's condition at the bar, the Superior Court found Ibat a jury could havc reasonably concluded he was visibly intoxicated when served. '"ll However, in eron \0', Sarjac,'1 the Superior Court held that circumst:lntial evidence was not enough to overcome summary judgment in favor of a t:lvem since there was no evidence that the patron was visibly intoxicated while at the tavern. The Pennsylvania Supreme Court granted allocatur and later dis. missed the appeal on a 4-3 split." In a dissenting opinion by Justice Russell Nigro, joined by two (2) other justices, Justice Nigro Slatcd the "ourt should have decided the case to clarify what type of evidence is needed in Dram Shop cases. Justice Nigro felt that the plaintitT in Cron should have been etllitled to pursue her Dram Sbop claim based upon the circurnst.1ntiJI evidence: which created a jury question as to whether the defendant was served while visibly intoxic:ned. "J \Vith respect to minors. 3 licensee who serves a minor is liable for injuries to a third pany that were caus<d by the minor c\'tn thouch the minor was not \'i~ibly tntoxiCJh;d ~hcn sCf'"C'd.'. The fumis~hing of alcoholic bcvcrJges to a minor can result in liability irrespective of the: minor's st:tte of inloxicJtion Jlthe time he W.:IS ~cn'c:d. A licensed bt,-er distributor \4ho unl:1\I,'~ fully sells beer to a minnr C,ln be held 7 COUNTERPOINT.... liable to " third party for injuries caused by the minor's subsequent intoxication e'o'en if the minor was 110t visibly intoxi~ c.:lIcd at the time of the sale," Where a minor injures himself wbile under the influence of intoxicating bev. erages, a licensee who sells the alcoholic beverages to an adult under circum~ stances in which the licensee knew or should have known that the adult was purchasing the beverages for use by the minor, can be held liable." Licensees may raise contributory/com. par::Hive negligence as a defense to a Dram Sbop action regardless of whether thc claim is brought by an adult or on bebalfofa minor.n E. Social Host Liability Pennsylvania courts do not recoh-mize common law social host liability with respect to furnishing of alcoholic bever- ages to adults." Tbe Pennsylvania Supreme Count in Klein v, Raysinger. '" reasoned that "in the case of an ordinary able bodied man, it is the consumption of the alcohol, rather than tbe furnishing of the alcohol, wbich is the proximate cause of any subsequent occurrence." However, social bost liability does alt.'lch wben a person less tban twenty- one (21) years of age is served .Icoholto the point of intoxication." This rule applies not only to injuries caused by a minor to a third person but also to injuries suffered by the minor himself." The social host mav assert the minor's eontributory/comp,';"uive negligence as a defense to tbe minor's negligence action.1: In Orner v. Molli<'k." the Pennsylvania Supreme Court extended the Congin; case to a social host wbo furnisbed alco- hol to :1 minor even though the minor \\-'as not served in an :unount sufficient to render him intoxicated. Chief Justice Nix.. in a dissenting opinion, voiced :1 concern that the fumishing of "a table- spoon of an intoxicating substance.' would cause Iiabiliry without any demonstration thaI. the conduct of the minor was influenced by the consump~ tion of the alcohol. It is doubtful that the Orn('r case intends to impose absolute I1abilirv on the social host, and, in all Iikclib~od, causation would have to be established by a sbowing that the con- duct of the minor who caused the injury resulted from the atTect of the alcobol. In contmued on page B .. COUNTERPOINT' Admissibility of Alcohol continued from page 7 fact, the Orner case subsequently pro. ceeded to trial and the trial court sranled the defendant's motion for nonsuit as a resulr of the plaintiff's failure to suffi- ciently establisb proximate cause." The furnishing of alcohol to a minor by an adult is negligence per se. In Herr " Booten." the Superior Court held that furnishing alcohol to a person on the day before bis 21st birthday amounted to negligence per se as a maneI' of law. A minor cannot be held liable under the social bost doctrine for fumisbing alcobol to another minor who is subse. quently injured as a proximate result of his intoxicated condition." Since the Liquor Code does not create a cause of action against a non.licensed person who has fumisbed intoxicants without remuneration. an employer is not liable for the harm that results from its furnishing of alcoholic beverages to ~ts vi.sibly intoxicated employee and/or 1t3 failure to warn the employee against driving or failing to prevent the employ. ee from operating a motor vebicle." The Superior Court held that an employer has no greater duty than any social host who furnished alcoholic beverages to an adult guest." F. Histol)' of Drug! Alcohol Abuse Where a plainliff in a personal injury ac~ion is c1ajmjn~ a pennanent injury, eVidence of ~ hiStory of drug and/or alcohol abuse IS relevant and admissible to sbow a decrease life expectancy." In Kraus ", Taylar.vo the Pennsylvania Superior Court affirmed the trial court's ruling admitting evidence of the plain- tiff's cbronie drug and alcobol abuse for purposes of evaluating the plainliff"s life expectancy. The Kraus coun stated: Here, [plaintiff] sought damages for permanent injury. Such a c1:tim requires the jury to evaluate the c1aiman['s life expectancy. Evidence of lplaintiff's] chronic drug and alco- hol abuse strongly suggests that his life expectancy dcvialCS from the average. CF. Capon \', Dil';ne Prm'id(,Tlce Hospital. 270 POl.Super. 1"7,410 A.2d 1282 (1980)(aflimlino <. exclusion of hypothetical qucstion concerning life expectancy which did not mention decedent's chronic ~lco. holism). Accordingly, the evidence of [plaintiff's] drug abuse tended to establisb a material fact and was therefore relevanL Moreover, actuari- altables were submined to the jury, at [plaintiff's] reques~ to help them evaluate bis life expectancy. When such tables are submitted in a person. al injury case, the jury musl be per- mitted to consider individual cbarac- teristics that impact on the injured party's life expectancy. See Helm " Eagle Downs-Keys/one Racetrack, 385 PaSuper. 550, 561 A.2d 812 (1989)(discussing the appropriate charge wben actuarial tables are sub- mined to ajury)." Althougb the Kraus court found evi- dence of the plaintiff's chronic drug and alcobol abuse to be prejudicial, the court nevertheless found the evidence 10 be probative and therefore admissible. The Kraus court stated: Appellant next claims that. despite its relevance, the evidence of his chronic drug abuse should have been exclud- ed as overly prejudicial. Even rele- vant evidence may be excluded if its probative value is substantially out. weighed by danger of unfair preju- dice or confusion. See Sprague " Walter. 441 Pa.Super. I, 656 A.2d 890 (/995). The balancing of potential prejudice against probative valuc is within the sound discretion of the trial coun. Id. We agree that the evidence of appellant's chronic drug and alco. hol abuse was bighly prejudicial. See. generally, Commonwealth v. Gaddy. 468 Pa. 303, 362 A.2d 217 (1976)(discussing the prejudicial affect of drug use testimony). As dis- cussed above, however, the evidence is also higbly probative of appellant's life expectancy. Accordingly, admis- sion of the evidence was well within the court's sound discretjon.~ G. Impeachment of Witnesses Evidence of the consumption of intoxi- canll:i and/or intoxication can be admissi. ble for the purpose of impeaching the credibility of a witness a.nd/or to test the wiln~ss' ability to recall or perceive the events for which he/she is t~s(ifying.~' In Ha"non I'. City of l'hiladclphia,~ the Commonwealth Coun held that evi- dence of :1.0 injured pJssenger's drinking was relev:mt and admissible to impeach his testimony regarding whether the dri- ver was negligrnt in the operation of his 8 .' ':"7">:.,':,;":'.~ '>",~.;.-:. ~ " '.,';. ""',,' . .,:.;:.".c:;;}i'c;:;'~'JANUARY 2000 vehicle. " - ,'~ I, _"';:" " In Kra~s v. Taylor." ludge Beck, in a c~ncumng .statemen~ agreed thaI the tnal court did nOI abuse its discretion in admitting evidence of the plaintiff's his- tory of alcohol and drug abuse where the plainti~ pl~ced ~is life expectancy at Issue With hIS c1..m of permanent injury. Judge Beck opined that an additional basis for admission of that evidence was for impeacbment purposes. Judge Beck stated: An additional basis for admission, however, and one I believe to be even more persuasive, is for impeachment purposes. Appellant testified that he bad been in 'excelJent health' prior to the acciden~ wben in fact he had had numerous hospital admissions for alcohol dependency, and a long bistD- ry of drug use, including intravenous beroin, barbiturates, LSD and am- phetamines. The trial court did not err in admitting evidence of this bistory to allow [defendants] 10 impeach [plaintiff's] credibility," In a recent trial court decision. Pickelsimer v. General MOlors Corp.!' the Court of Common Pleas of Dauphin County held that evidence of the plain. tiff's intoxication in a products liability case was relevant and admissible to challenge the witness' ability to perceive the events for which he was testifying. The PickeiJimer court stated: In the case at bar, this court properly admitted the evidence of Pickelsimer's ~Jcohol . intoxicatjon and consump. lion. TIlls court admitted the evidence solely to impeach credibility; namely, to challenge Pickelsimer's ability to remember and perceive the events of the accident. A critical question before the jury was whether the acci- dent was the type of collision for wh;cb an airbag should deploy. Thus, the nature, force and circumstances of the accident were vital. Aiso, if the jury found that Pickelsimer's accident was the type of accident in which an airbag should have deployed, tile jury h:ld (0 delennine if the non~depJoy- mcnt of the airb;J,S c:wsed Pidel- ~,imcr's injuries. The jury had 10 de'tennin!: when Pickel!.:imer received his injuries. 11' Pickelsimer sustained his injuries before the time the airb:!g should ha\'e deployed, then Geneml Motors would not be liable. As Pickelsimer was the ~ole u'jtness . . 'i JANUARY :WOO . to the accidcnt and b<cause of the important causation issues. Pickelsimer's recount of the accident was viral. Thus, Pick<lsimer's ability 10 per. ceive the :lccidcnt was relevant. The rel<vance of Pickelsimcr's alcohol consumption and intoxication out~ weigh<d any pnssible prejudice it may hu"vc.criuseu because of its vital importam::e [Q detcnninc the accuracy of Pickelsim<rs recollection of the :lecident. Also, because the case W:lS a strict products liability action, Pickel- simer's conduct was not at issue to determin< Gen<ral Motors' strict lia- bility for its airbag. While a witness or party may be cross. examined as to whether he was intoxi- cated at the time of th< occurrence to wbich h< has testifi<d. there must b<, at a minimum. some tactual basis upon which to conclude or to susp<ct that the witness was intoxicJted before questions regarding alcohol consumption ar~ pcnnissible.~' H. Other Types of Intoxication In Chicchi v. SEPTA,w the Pennsylvania Commonwealth COUrt held that evi. dence thaI a pedestrian who was struck by a commuter train while walking on the railroad tracks had consumed cocaine was admissible bec:luse circum- stantial evidence showed that the pedes- trian could not hear the train's whistle at the time of the accident due to bis phys- ical impaimlcnt resulling from cocaine intoxication. The Chicchi court stated: The record in this m;1tter contains suf- ficient circumstantial eVIdence, from which it mav be inferred that at the time of the -accident, Chicchi could not hear the whistle due to bis physi. cal impairment resulting from imoxi- coltion of cocaine. S~veral witnesses testified that Chiccbi did not move or otherwise respond to the loud and shrieking whistle of the approaching train until th< impact. At tlle trial. Chicchi could not explain why he did not h<ar the whistle. The viles used to package cocJ.ine were found next to Chicchi at the .Jccident scene. and the druglests perfonned in the erncr. j;cncy room reve.::lled the 'suspected' use of cocaine by Chicci. In excrcis. iog its broJd discretion. the trlJI CQun detennined that any prejudicial effect of the evidence of Chicchi's use of drugs was outweighed by its proba- tive value. Therefore.' we reject Chicchi's challenge to the trial court's . . evidentiary rulings on the drug test results and the officer's lestimony. In Hawrhorrle v. Draw} Corp.. 1111 Ihe Superior Court extended the rule with regard to th-= consumplion of alcohol to Ihe use of marijuan~. In Hawthorne, the Sup<rior Court held that <vid<nce that the decedent used marijuana marc: than four hours before the automobile aeci. dem that gave rise (0 the suil was irrele. vant and. lh<refore, properly exclud<d. II. Conclusion Whetb<r alcohol consumption and/or intoxication evidence is admissible in a civil action CJn ~ critical to the out. come of the case. The admissibility of such evidence can greatly influence jurors in d-=ciding iS~iUes of both liability and damages. Whether such evidence is admissible in a motor vehicle or pedestri:In case depends upon th< nature, extent and quality of th< available evidence. Where the sole evidence of intox.ication is :In elevated blood alcohol l<veJ. the likeli- hood of that evidence being Jdmitted is remote. However. where "other" evi- dence of intoxication is avail:Ible, in addition to an el<vated blood alcohol level, the chances of sucb evidence being admitted are greatly improved. The "other" evidence helpful in estab- lishing intoxication includes, inter alia. lay witness testimony describing con. duct consistent with intoxication, testi. mony regarding the type and amount of alcohol consumed and expert testimony (usually by a toxicologist> interpreting the results of any blood alcohol tests and the effects of the alcohol consumption. Driving under the influence of alcohol m:IY. under certa.in circumst.:mces. con. stirute "outrageous conduct" :Ind a "reckless indifference to the interest of others" sufficient to allow the- imposition of punitive damages. Evidence of a plaintiff's intoxication in a strict products liability case is only admissible where the evidence of intox~ icJlion is offered to prove that the acci. d<nt was caused solely by the plaintiWs conduct a.s opposed to a product defect. OlhcN'ise. evidence of a pbintiff's ncg. ligent conduct has no place in a strict products liability action. In Dram Shop cases, evidence of alcohol consumption ::lOdJor intoxication is admissible to prove liability against .1 licensee who hJ.s fumj~hed liquor to Jny 9 COUNTERPOINT.... person who is visibly intoxic:ued, Direct eyewilness testimony thal a patron was servcd alcoholic bevemgcs while visibly inroxicated is not required. Rather. dr. cumsr3ntiJI evidence is sufficient to ere. atf.~ a jury question on the: issue of whether the patron was served while vis. ibly intoxicated. Pennsylv~l'lia couns do not recognize social host liability with respect to the furnishing of akoholic beverages to adults by adult' or to minors by other minors. However, social bOSl liability do<s attach for injuries caused to a minor or third parties wbere an adult serves :IJcoholic beverages 10 a minor und<r twenty.one (21) years of ag<. This rule can apply even wbere the minor is not served alcoholic bcvernges in :In amount sufficient to cause inroxicmion. Evidence of a bistory of drug andlor alcobol abuse can be admissible to show a decreased life exp<ctaney wbere the plaintiff has alleged a permanent injury. Evidence of alcohol consumption and/or intoxication can also be admissible for other purposes such as to impe,cb th< credibility of a witness andlor to lest the witness' ability to recall or perceive the events for which be/she has testified. ENDNOTES: I. As 3 gene~ rule. where negligence is 3dmiltw and there is no c1:1im for punitive d:un.Jges. evi- dence of a ddendanz's 3lcohol consumplion Ollldlor into,\ic:llion should be (~c1uded :lS irrele~nl. However. :II least one trial COU" decision, Basingf!r \: Pmu. JO O&C.Jd 1 (1986). held that evidence of defendanl-driver's inroxication in Olll aUlomobile ca....e W:L5 :xfmissible 10 show the sever. ilY of the impact even though the defendanl~ver admi[led negligenl:c, 1. Cn't:.u \: DOf1O\'an. 189 Pi1. 381. 137 A. 66S (1917): Landv v. RosntStf!Ut. 325 h 209. 188 A. 855 (1937): Balla v. SlaJf"k. 381 P:1. 85. II:! A.:!d 156 (1955): Fishu l: O\.~. J86 PJ.. 1-41, 125 A.:!d -471 (19561: Harw'V l: DoI;,It"t: 399 Pa. 356. 160 A.:!d 561 (1960); .Cook v. PhilaJdphia TroMp. Cl,.. -41-4 Pa.. 15..J, 199 A.:!d +l6 (196-l): V,grwli "- Standard .\rotor Frright. Inc.. -418 Pa.. 21-'. 210 A.2d 271 (1%5): J,(of1Yulc v. Prinu, 436 P.:a. 51. 258 A.2d 508 (1969); Billow 1'. Farm~rs Trust Co.. -43:1 Pol. 51-4. 266 A.:!d 92 (1970); Krillt'T 1I. ,\lcDollalJ. 233 hSuper. 531. 302 A.2d 392 (19731: Sf'lb\' '1'. Bro..H.. 150 P.1.Su~r. 1,3.l. 378 ,\.:!J 862 ('1977); S("/I"'~,..bo.c:Jr J'. DlIlI.... 2.51 P:t,Supcr. -4S.l. 381 A.2d 1295(19"/7): Cusaris J'. Rt'lcht'f1. ~67 fa.Super. 2.l7, -W6 A.~ 787 (1979): Couts v. Chiem, 2MI hSuper. 135. -421 A.2d 118-4 (19~OI: flm'f"~lI(' v. C,.ppnT BrtJthn"S. tn('.. 677 f,:d 317 13d Cir. 19M2): Emrrick v. Canof1. 325 Pa.SupC'r. 308.-'72 A.2d 1133 (19~): Gaflothrr v. Ing.. 367 P:t.Supcr. J..l6. 532 A.2d f 179 (1987); McKrf! bv McKu v. Evans. J8~ ~uper. 120.551 A,2d 260 (19l'tMI; H/J11f101l v. City ofPhiUuklphia. 1)8 PaCmwlth. t66. 587 A.Z4 S4S (1991); Why" continued on page 10 .. COUNTERPOINT Admissibility of Alcohol continued from page 9 v. Robinson. 421 Pa.Super. 33. 617 A.2d 380 (1992); Loc~ \\ Claypo"l. 426 l'a.Super. 528, 627 A.2d 801 (1993): S"mw;~~ 1: Gtntral MOlor: CO'P.. 448 Pa.Super. SIO, 672 A.:!d 333(1996). 3. Morn>alf! v. Prinu. 436 Pa. 51. 258 A.2d 508 (1969); Cook \: PhiJaddphja Trrvup. Co.. 414 Pa. 154, 199 A.2d 446 (196-#); Han'n'l: DoUna. 399 Pa. 356. 160 A.2d S62 (1960). . 4.436 Pa. a' 53. 258 A.:!d a' 5OS-ll9. S. Monro/I! l~ Prinu. 436 Pol. 51. 158 A.2d 508 (1969J: Crir:.t!r v, Doruwan. 289 fa. 381. 137 A. 665 (1927). 6. GlYinf!T t'. Voltsk'agf!nwf!rk.M:Jit!ngt'sf!t1es. Chaft. 540 F.2d 8S, 89 I3d Cir. 1976); Common'K'f!o/lh ,~ Ca"f!, 219 hSupcr. S 12. 281 A.2d 733. 734 (1971). 7. Spt!ichu v. Rt!da. 290 Pa.Super. 168.434 A.2d 183 (19HI); COUIS l'Chian.. 281 PLSuper.13S. 421 A.2d 1184 (1986). 8. Common'K'ro/rh I: E\'/f!f; 217 fa. 5J2. 66 A.746 (1907); Commonweal;h \: COI'l'. 2 J 9 Pa.Super. 512,281 A.2d 733 ()971). 9. Cusatis \: Rejchf!n. 267 Pa..Super. 247. 406 A.2d 787 (I 979)(Superior Coun admitted evidence of a blood alcohol content of .14 where 1hen: was also evidence that the person had con~umed a com.ider- able qua.ntity of alcohol and smelled of alcohol); Gallagher v. lng, 367 Pa.Super. 346. 532 A.2d J J 79 (J987)(Superior Coun held that a blood alco- hol con lent of ,18 was admissible \\'here the~ was other evidence of unfitness 10 drive. including expen opinion. The coun specifieaJly left open (t,e question ofwhethr:r a blood alcohol contenl of .10 sLanding alone would have beeD admissible); MtKub)'McKu,~ Evans, 380 Pa.Super. 120.551 A.2d 260 (l988)(pcrson's statemenl in deposition that he had consumed five to seven glas~s of beer and was "probably" inloliC4ited. sufficienl evi. dence): Emerick \: Carson. 3~ Pa.Super. 308, 471 A.2d) 133 (1984): Hannon ,: Cif);ofPhiloorlphia, 138 Pa.Cmwhh. 166. 587 A.2d 845 (1991); Kal"Chllerl~ FliJirn. 661 A.2d 928 (1995): SU/"OM';U ", Gt>flual MOlers Corp., 44E Pa.Super. 510. 671 A.2d 333 (1996); Ad:.rl"man I'. fklcomi('o. 336 Pa.Super. 569, 4R6 A.2d 410 098-1); Kraus I'. Taylor; 710 A.2d 1142 (1998). petilion few appe;l.1 Granled at 727 A.2d 1109; Couts I~ Ghi('lfl, 281 Pa.Super. 135.421 A.2d 1184 (19S6); Mulholland ". H~nkr/s &- M('Coy, Inc., 34 DctC.4- 5:?0 (19%1. 10.267 Pa.Super, 247. 406 A.:!d 787 (1979). 11. 406 .\.2d AI 789-90; I.ner C.ll.~i h;l.~~ held tnOlI the preliumplion of unritneu to dovt' b.ar.ed upon a HAC of .10% or more i!i nOI :lpplicablt' in ci\'il __clions (Su: wcl..~ I'. Cla.\phOl, .1:6 Pa.Surer. 5:!8;627 A.2d 801 (1993) :lRd WhHt' l'. Pohinsnn. 412 Pa.Super. 33, td7 A.:!d 380 C199~)). 12. 36i Pa.Super. 346. 5~:! A.:!d 1179 (11}!\i) 13. Sr(": Bil!aM' t.. Fa,,,,,t'r'S Tn...u en.. 4~,1l Pa ~I.II, 2M A.:!d 92 (1970) (Pr:nn~yl\':lni, SUptTrnt Cnun held th:.;t the resultJi of a blTaltt..l)'l.N. ~..hl~.h "howr:d a blood alcohol COntf~nl of . J 4 and an tlJ"C'n opinion Ihou liuch.ll fl('1"Mln would he ~.nt"~I. t'.d~ in hi, drh'inh, wa~ not lufficKnl to ul..bll~h intm.icAlion. ^5 . ~l.ih. the !""Idtnce was. inad. miuiblr); Critun'. Dn'/t'JI'tJfl. 289 PI.. 381.137 A. bM (1927) (Tht' COU" u..cIL:cde.:l t'J'idrnct that I ~non sm<<kd of alcohol). S~1tt: .". [J,jfWl. 2:4 PLSop<r. 70, 302 A.2d 434 (1973) (Coun exclud. ed evidenee that a person smelled of alcohol); Vignoli ~. SlandtJrrJ MtJttJr Frright, Inc., 418 Pa. 214. 210 A.2d 271 (1965) (Coun excluded evi. dent.: thaz a person who h.3d consumed two beers befo~ Ihe stan or a trip was actins "funny" at the scene of an accident): Locu \~ Claypool. 426 P.a.Super. 528, 627 A.2d 801 (1993)) (.06 percent blood Alcohol and elpc:n lestimony was nOl suffi. cient to eSbblish inlolicalion); Wh'1t' I', Robi1Uon. 421 P.t.Super. 33. 617 A.2d 380(1992)(Coun held th.3t evidence or odor of alcohol.la.y opinion as to inlolic.3tion and blood alcohol contenl or O.I~ .....as not admissible as heing unfmrly prejudici.3I); RO\'~Gflo ,~ G~ppn1 Brothers, Inc., 677 F.2d 3:!7 (3d Cir. 1982) (COW1 precluded lestimony thai the plaintitrs decedent's blood .alcohol level III the time of lhe acddent .....as .158 percent. as well as expen lestimony that a blood alcohol level of th.3t dc;:re: WDulQ h.1\'e made Ihe pla:incifrs decedent untit to drive and thai "'the affects of alcohol on judgments. coordination nnd such. made him unfit to drive"); Ha"o',home \'. Dral'o Corp.. 352 Pa.Soper. 359, 508 A.2d 298 (I 986)iblood alcohol level or .057 hO( admissible), 14.438 Pa. 514. 266 A.2d 91 (1970) 15.266 A.2d a193. 16.677 F.2d 327 (3d Cir. 198:!). 17. The Ro\'rgno decision has no bindinb prece. denli.al effect on Pennsylvania stale couns. 18. 325 Pa.Sup<r. 308. 472 A.2d 1133 (1984). 19. Commonw~alth v, Gon.:alr:. 519 Pa, 116.546 A.2d 26 (1988). ~O. :!52 Pa.Super. 454. 381 A.2d 1295 (1977). :!1. CU$Glis \~ R~ich~n, 267 Pa.Super. 247, 4{)6 A.2d 787 (l979)(ln Cllsalis, it .14 percen! blood alcohol conlent was admitted even though the lest \\'as taken one hour after the accidenl); Emerick I: Carsofl, 325 Pa.Super. 308. 472 A.2d 1133 (1984)(ln Ernrricl:.. 8 hlood alcohollCSl petiormed lWo or thrtt hours ;l.ft.er the accidenl rc'veotled a blood aJcohollevel of .185 percent and a medical el.pc:n \\'as pnmil1ed 10 ('JrtC's~ all "pinio!'! within a rea.\Onable dt'p-ee of medic.al ceruinlY WI the blood alcoholle~e1 was approlimalely .22 percent althe lime of the accident). 22.380 Pa,SLtper. 120.551 A.2d:!60 (1988). 23.551 A.2d .11.1 :!81; Sf't' also: Emmd: I', Carsem. 325 Pa.Super. 308. 472 A.2d 113J (1984) <Plaintiff'50 0....11 admi~"ion and BAC of .185 ulen 2.3 hours arlel lht' accidt'nL was ruled sufficient); Eldrr ". BI.,I..("s Body Shop, ~ D&C."s- 5:!5 (996){Coun htld Ihal evidence of pl;l.intiIT's inlo..ic31ion. includin~ admi50~ion of 8 hours of CUnlInUOUl> drinling prior 10 tht accidr:nl, ......3S admi50!>ihlt'); Mlllholland I'. /frnl..rIs & M('Co.\: In(',. :!t. 0&C.4- ~42 (l99,~). 24. Cmmln' \'. Cardnrr; 15~ Pa.Surer. 4fI7., 385 A.~d 4J~ (.197h t(l/por.; I'. BmTlu~h af Hr;.Hol. I:!:! Pa Cmwhh. 192. 551 A.~d M711WI>I) =~, "'rrmd/n,!;' I'. SlwullcI... ;Vlti POI, 23. 7(j A,~d 4()6 t19~O). =6. A.o,.,.hnC'f I', Flm",. M 1 A:!d 9~" (Ili'i~ I: Hannon ,. Clfr of I'hdIJJrf{lhia. DR POlCmv.lth 1M. ~S7 A.:!d' !\4~ (1991); 1I"r/nl't' I', Gul.Jfrflrr. "'02 Pa.Sl.lrrr 492. 44R A,:'d 131"(, (lllIi,21; lOBUli I'. EI'01lJ, )4J Pa 483.23 A:!d 4.:9 {19.12); "rm't'r ,. CJOI'/I.ollfll. ~5 P"".Suptr. ~3:!. :.RM A.:!d 109.1 (11)78). 27. fl61 A'd 9:'11 (]W~l. 10 JANUARY 2000 28.661 A.2d .'931.32- 29. };alcwr ~. Fla;m, 661 A.2d 928 (995); Hannon v, City of Phi/oiklphia, 138 hCmwlth. 166,587 A.2d 845 (1991); Bortner ". Galdltlt~r; 302 Pa,Super. 492.448 A2d 1386 (1982); Cassidy t: E\'ans. 343 Pil. 483. 2J A.2d 449 (942): Wtavu ~', Claybau~h. ~5 P.a.Super, 532. 38B A,ld 1094 (1978). 30. m'a"~r'~ Clo~'ballgh. 2.55 P.LSuper. 532. 388 A.2d 1094 (1978). 31. m,t1': I~ K~l'hDrr, 374 Pa.Super. 274. 542 A.2d 1019 (1988); ROOarr \: PcL4rdll09 PLCmwlth. 87, 530 A.2d 534 (1987): Gibson I: Brrmu, 406 Pa. 315. 178A.2d 145 (1961), 32. Wtn: ,~ K~pluJn. 374 Pa.5uper. 274, 5-:2 A.2d IOt9 (1988). 33. 542 A.2d at 1023. 34. Wtrr:: ,~ Kephan, 374 Pa.Supc:r. 274.542 A.2d 1019 (1988); Roba".. Pdarrik. 109 Pa.Cmwllh. 87. 530 A.2d 534 (1987); Gibson v. BfTln~r; 406 Pa. 315, 178A.2d 145 (1961). 35, Foc!rt v. Rabada, 2J7 Pa.Super. 35. 268 A.2d 157 (1970); FlIgagli \~ CAtmD.Si. 426 Pa. I. 229 A.2d 735 (1967): SiJLs \~ Wi/J:inson. No._ (CCP Perry Co. 1997). 36.268 A.2d at J60-J61. 37. Kasanovich \: Gtorgt', 348 Pa. J99, 34 A.2d 523 (1943); Kri\'l'j.,4,nskj v. Union Railroad Co.. 357 Pa.Super. 196,515 A.2d 933 (1986). 38. Kraus v. Ta,\'ltJr; 71OA.2d 1142 (l998),pc:tition for .:Ippeal ~nted at 727 A.2d J 109; Aclrrman v. D~'comico, 336 P.I..Super. 569. 486 A.2d 410 (1984): Emerick v. Canon. 325 P.t.Super. 308. 472 A.2d 1133 (19M); Clim01l~, Giles. 7)9 A.2d 314 (1998); Wh\1t'" Robinson. 421 Pa.Super. 33. 617 A.2d 380.(1992); Krifltr v. McDoflllld. 223 Pa.Super. 531. 302 A.2d 392 (1973); Sent: v. Duon, 224 Pa.Super. 70. 302 A.2d 434 (1973); Conk I~ PhiladdphiD TIt11U. Co.. 414 Pa. 154. 199 A.2d ....6 (I %I). 39. 750 P",.C.S.A. f 3550. 40. Kraus t'. Taylor; 710A.:!d 1142 (1998). petition for appeal t!r.lnled al 727 A.2d 11091; AcimnDn ,~ DC"/comim. 336 Pa.Super. 569. 486 A.2d 410 (19R4); Em~rid" Cnmm. 325 Pa,Super, 308. 472 A.,d 1133 (191\4). 41. 7JOA.2d 114:! (1998). 42. 710A.2d al p.:or-e 1145-46. 43.727 A.2d 604 (l999J. .J4. Clifllon t'. Gill'S, 719 A.2d 314 (1998); WhYlf I'. Robinsnn. 42 I Pa.Sura. 33. 617 A.2d 380 (1992); Krinrr t'. McDonald, 223 Pa.Super. 531. 302 A.2d 39:! (1913); 5rnt: \'. DlJ.on, 224 Pa.Super. 70. 302 A.2d 4J.S (1973); Coot I'. PhiJadrlphia Trans. el". 414 Pa. 1.54. 199 A.2d 44(, (19M). J~. 719 A.2d 314 1199!\) 46,719A.2daI3IR-319, 4i, uwl..r I', C/o\'p.."I. 4:'6 Pa.Suprr. ;211. 627 A.:'d HOI (199~J(Suprnor COlln hrld that the trial court tn-cd in DrJrnming nidenct' or bio;yc1ist's imollcOItion ~l th~ IJlm' or the acc:idenl Vo'hich lncludcd 8 ro1ic:c officer', te~timony thai he ~mrlkd the <lCior of ~r cmanat'nl: from the t.mhulz.nce __hich housed tht plaintiff. , blond alcohol contenl of .06 pct't:nt and Cl(1C1! ltsli. mony Ul31 t.caulte Lod..t' ""U a n\ioor tit .'OOld . .1 .) JANUARY 2000 . have an t}lllggcr.uccJ reaction to alcohol), 4M. MllJonnu v. H(~rlt!,v.Ot.I,,;.wn. Inr:.. 7011 A.2d S07 (11J9M); SI/mwit!c v. Gtf/trrll MottJrr Corp., 44H Pa.Super. 0510. 612 A.::!d J3J (1996); Ph:kt!l~'imu v. Gt!nt!rul Mown Corp.. ~ No. 2675 S 19~4 '(Dauphin Cu. 1911HI: GIJJJCl.r:huv./n.l:, 367 Pa,Supcr. 346. 532 A.::!d 1179 (19117); S.:hwar:.. buch v. Dunn. 2,52 P:I..Supcr, J,54. 381 A.211 1295 (1977). 49. 708 A.2~ 507 (19981. 50.452 Pa,Super. 94. 6HI A.::!d 201 (19%). S I. 70li A.2t.1 at 509. 52. 448 P,.Super. 510. 672 A.2d 333 (19%). 53.367 P,.Super. 3-16. 532 A.2d 1179 (1987). .54. In anOlhcr Pf'OtJuclS liability c~ /lascdli v. Randy. In,',. 339 p-...Supc:r. 254, 488 A.2d JJJO (19K5), the :l.ctions of a driver wen: ;dso round to be: relevant amJ .:Idmissiblc. Although this W:lS nO[ a ca...~c lhal involved imo.\ic':l.lion. the :actions of the: drh1cr wen: relc...:!."t to show the C':lUSC of lhe: .3cci. dent. rn BcJ.Iu/li. the plaintiff alleged th;)t lhe left screw cap in the handlebar olSSCmbly of his motor. cycle was defettive. Plaintiff sought to show at trial th:u the disengagement of the screw had impaired his Olbility to steer lhe motorcycle. which caused it to veer and ultim.ately crash. 11JC defense sought to have introduced the plaintifrs 3dmh:sion that "nothing had really happened to the front end and th:u the front end had begun to wobble and the bike had gone down when he was tr:.....eling at approll'.im:uely 100 mph:' The trial coon refused (0 admit this evidence noting it tended to show con- tributory negligence whicl1 was im:lcv:mt in a product liability case. The Superior COUrt dis- agreed.and held that the driver's :ldmission [hat the front-end assembly did not fail and th;u he lost control of [he motorcycle while tr:Iveling :l.t 100 mph was relevant to show the cause of the xcident. 55. Hulpp v. F~:..lflc.. 440 P:1.Super 512. 656A.2d 141 (19951; CcJflflU v. Duffi~ 438 P3.Super. 277. 652 A.:!d .172 Cl994); Hil~s v. BranJywill~ Club. 4-J3 Pa.Super. 462. 662 A.:!d 16 (199.:5): Jonnson v. Harris. 419 P3.Supcr. 541. 61.:5 A.2d 771 (1992). 56. 47 P.S. 1-l-l93(1 )(S" alsa: 47 P.S. 1-l-l97). 57. Farulo:::i Yo Kellv HOftl. lllc.. 711 A.2d 524 (1998): McDonald 'v. MiJm.of CcJrp.. 388 P3. Super. 121. StS-l A.2d 1296 (1989): JoIrroon v. Ham.s. 419 P;l..Super. 541. 61.:5 A.2d nl (1992): Majors v. Broodh,.od Hord. 416 P:l..:!65. 205 A.1d 873 (1965). 58. Faruld::.i V. K~ll\' HOld. Inc.. 711 A.1d 514 (1988). . .:59. FanJo::.i v. KLllv HOld. Inc.. 711 A.2d 5.:!4 (199~U: Hulpp v F~:..lnc:.. -40 p..1.,super. 5 12. 6~6 A.2d 14709951. 60. Jfi/la ~'. Bran R~il T,,\,tf71. lnc.. 701 A.1d 1071 (1997); Hulpp \'. Ft':./nc.. -l-UJ ~"'pc'r. 5 11. 656 A.1d 147 (1995): Connu ,~ Duffy. 438 PJ..Supc:r. 277. 652 A..:!d 37.:! (1m). 61. D~~'ilt'r v. Brumbaur:h. .wI ~P'=r. 110. 656 A..:!d 9.w (1995 I: R~brl' v. PLeD. 101 P.:t.CmwIl.h. 397.516 A.':'d J,-lQ (19l)61. . . 62. 47 P.S. ~ ol-H7 (emphasis 3dtkc,J). 63. COllIS Yo Gllion. 281 Pa.Supcr. 135.421 A.:?J 1184 (1986). 64. Sp~ichu v. Rt!Ja. 21J() POol. Super. 168.4.14 A.1d IS3 (1981); Pdum v. WUllt'/; 3J4 P:l.Su~r. 609. 483 A.2d 905 (1984). 65. 290 P:J.Su~r. 168. 4J.! A.2d 18) (I9HI). ~6. 334 Pa.Super. 609. -183 A..:!tJ 90.:5 (19/W). 67. Fundo::i v. Kt!!ly [{old. 1m.... 711 A.1d 5.:!4 (1998). 68.281 Pa.Super. 135.421 A.:!d 118-1 (I9HO). 69.281 P:J.Super. 135.421 A.2d 11l:W (1980>. 70. 281 Pa.Su~r.:J1 142.421 A..:!d:Jt 1188. 71. 697 A.2~ ,~O 119%). n. Th~ Supreme Coun gr.:UllaJ Olllocatur :Jt .:550 P3. 691. 704 A.2d 1381: The Supreme Coun later dismissed the appeal ~ improvidently granled at .:552 Pa. 269. 714 A.:!d 10:2-1. 73.714 A.1d al 102-1 and 1026. 74. Mallh~ws Yo Konic:.I~ 515 fa. 106. .:527, A.2d 508 (1987). 75. McGaha I~ ,'t"att~r. 365 P:I.Super. 6. .:528 A.2d 988 (1987). 76. Thomas Yo Duqu~sn~ Ughl Co.. 376 P:J.Supc-r. 1,545 A.2d 2~9 (1988). 77. Congini v. Ponun'ill~ Val,'t' Co.. so.s fa. 157. 470 A.2d 515 (1983): Manhnvs v. Ktmi,.c:n.v. 515 Pa.. 106. 527 A.2d 508 (1987): Mi/lt!r 1I, Brws Rail Tavun. Inc.. 702 A.2d 1072 (1997): Barn.~ v. Pa. LCB. 137 P'.Cmwtth. 514.506A.2d 1017 (1991). 78. Kl~in Yo Rayringu. 504 P:l. 141. 470 A.2d 507 (1983); Congifli b.v Congini v. Porr~m';ll~ Vah-~ Co.. 504 fa. 157.470 A.2d 515 (1983): Bt!mis .... Gurnb.,ki, 369 P"-Super. 101, 5J.l A.2d IIl99 (1987); BiJrkhan v. Brrx:*wa.v Gluss Co.. J52 P3.Super. 2!J.l..\07 A.2d ll44(1986). 79.5!J.lP,.141.470A.1~S07(19S3). EO. Congini' b_~ Congini' v. PonuTViIl~ \-al\'~ Co.. So.s P;t.157.470A.:!d515fl98J):Harl: BIJolt'n. 398 P,,-Super. 166. 580 A.2d 1115 (1990);. 81. Congin; b:~ Congini v. Porum.illt' \tlll'" Co.. 5!J.l!':L 157. 470A.2d 515 n9~3). 82. COilS in; by Consini v. Ftm~rnill~ ~a"'t' Co" 504 P,,- 157, 470A.2d 515 (1983). 83. 515 Pa. 132.527 A.:!d 521 (1987). &4. The Superior Court I;ucr at1irmc:..J the trial coun's entrY or non-suit for failu~ to sufTicientlv e!>ubli!oh proll'.irr..:lle C:JU!oe' (Su: Omt'r I'. .\ful/ie'l. 432 P3.Supc-r. 580. 639 A.:!d 491 (199.l)). 85.398 P,.Supcr. 166, 5S0A~d t 115 (19901. 86, Kapr~s v. Hrlla S36 P:l. 55 t. bJO A.:!d SS8 (199~)(The Kap'u coun OO(nf lh.;;1 dIe l'nitcd Sf.1leS Court of ApJX':lI!o for the ThinJ Circuil t'e:lched me oppo\ile condu~.ion in FI.UJrtt l'. DdliJ KIlPf'rJ Epsilun. 807 F.1d 1150 (:xI Cir. 1986). Iii Flluctr. the Third Circui' condudr-d th~t th~ Penn:>ylv:mi:l SLipft'me Coun \Io'uulJ inlC'rplTl the COfICini dr-ci!.ion to ,;;lrply in $itll;Jtjonl, ",ht'l"(' one .. .. COUNTERPOINT_ minor furnishes Alcohol to anulher minor. However. Ill( Kl1prr:r COU" slalctJ th.:lt "tho: inler- prtl:llion by the ThinJ Circuit Court of Appeals a.'i tn Pcnnsylv.:lnia I:.w on lhis subjc:ct i:l: nO{ binding anll. wilh all due respl.:ct. is incon.shMnt with our conclusiuns.:l.S slaled herein"); Me/rn v. McM1V. 17 D&CAlh ISH. ;!1inncll 432 Pa.Su.pcr. 672: (j3J A.2d 1227 (19921. 87, BurA:hllN \'. Brodcwa.~ Gluss Co.. 352 Pa.Supcr. 2().J. 507 A.1d S+~ (1986),. 88. S~f! ulsu: Sift'S v. C/tHman. 328 P:..Super. 481. 477 A.2d S-I7 (1984)(Coun held thai a non-com- mercial organiuliun which sponsored a private soci:ll g:Jlhtring :l1Id acted slrictly as :J soci:ll host in gr.lluiIOlJ.\ly supplying littuor coult.l nOI be held liable to Ihird panic:s injured when struck by :In aUlomobile dri~cn by a gUc:st who became intoll'.i~ COjfcd ;It the c\'enl/. 89. Kraus v. Ta~'lot; 710 A.2d 1142 (1998), petition for :Jppeal gl'3tlted at 727 A.2d 1109: Captln v. Di"int' F'rol'iJ('n'.~ Hospilal. 270 P:J.Supcr. 127. 410 A.2d 128.2 (1980). 90. 710 A.2d 11.209981. 91. 710A.1d.. 043-14. 92. 710A..2d~ 114-1. 93./n tht iI'It~rrslofM,,\1.. .:547 Pa. 2.17. 690 A.2d 17.:5 (1997): HUMan v. Clty of PhilaJt"iphia. 120 Pa..Cmwlth. 383. 548 A.2d 693 (I989)("Hannon I"); HanllDn v. City of Phil.. 1.18 P:l.Crnwlth. 166. 587 A.2d 84.:5 (199IX"HannoOl II"): Piculsim~r v. G~n('ral MOlon Corp.. No. 267.:5 S 1994 (Dauphin Co. 1998): Milt's v. R\'CUI. 4&-1 F.2d 125.:5. 12.57-58 (3d Cir. 1973): G~in~r v. VolA:swQg~nwerk_ AktiC'nK~ull~s.Chaft. SolO F.2d 85. 90 (3d Cir. 19761. 94. 120 P.:t.Cmwlth. 383. .:54g A.2d 693 (1989X-H:mnon r). 95. 710A.2d 11.2(998). 96.710 A.2d.:u 11-17. 97. No. 267.:5 S 199-1 (Dacphin Co. 1998). 98. In lfltt'rruof.\f..'tf.. 547 P3. 2J7. 690A.2d 175 (1997): COfJUtIOn"'C'Cllrh v. D~. SOO P:I. 585. 459 A.1d JI8 (198j1: CUff1fnUllwC'allh v. JfcGl.lirr. 302 P.:t.Supcr. 226. +t8 A.2d 6[)9 (1982). 99. 727 A.2d 6Q.l (1999). 100. J52 Pa.Super. 359. 508 A.2d 29S (19861. $ ( j r.. ~ ~ 0- OJ ~ S OJ <D ~ a: 0 0- 1; "' m .. 0- m ~ ~ ... z m ~ b 0 K cf ~ a: 0 a: ... .. " ~ x OJ ~ E 0- ci "' a: ~ 0: -<l 0 z a: .. ~ ~ "' ~ ~ 0 e .., Q ~ " OCT 2 5 2000tl TERRY J. ROSENBERRY and BEVERLY ROSENBERRY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, . PENNSYLVANIA Plaintiffs v. NO. 99-2617 CIVIL ACTION - LA.W STEVEN D. GRAS LEY, Defendant JURY TRIAL DEMANDED ORDER AND NOW, this _ day of , 2000. it is herebv . . ORDERED that Plaintiff and Plaintiffs expert, Lawrence J. Guzzardi, M.D., are precluded from offering any testimony at trial concerning the consumption of alcohol, blood alcohol tests or any evidence bearing on the issues of alcohol and intoxication. By the Court: George E. Hoffer, P.J. OCT 2 5 2000f/J TERRY J. ROSENBERRY and BEVERLY ROSENBERRY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 99-2617 STEVEN D, GRASLEY, CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendant ORDER AND NOW, this _ day of , 2000, it is hereby ORDERED that Plaintiff and Plaintiffs expert, Lawrence J. Guzzardi, M,D., are precluded from offering any testimony at trial concerning the consumption of alcohol, blood alcohol tests or any evidence bearing on the issues of alcohol and intoxication, By the Court: George E. Hoffer, P.J. r.. ~ ~ 0- W ~ S w <D c.:; a: 0 0- f; "' 01 .. 0- .. ~ ~ ... Z 01 C 0 " ..; . a: 0 a: Q '" ... '" ::> ~ . X 0 '" E 0- "' a: 0: 0: ~ 0 ~ z a: .; "' .. x I:l 0 e .., Q ~ . . 'i:~ "~~)?OOO TERRY J, ROSENBERRY and BEVERLY ROSENBERRY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED Plaintiffs v, STEVEN D. GRAS LEY, Defendant ORDER AND NOW, this _ day of , 2000, it is hereby ORDERED that Plaintiffs expert, Richard L. Sieber, M.A., is precluded from offering any testimony at trial concerning speculation about Mr. Rosenberry's loss of future wages due to reasons other than the subject motor vehicle accident. By the Court: Edward Guido, J. fJr.r ?52~ TERRY J, ROSENBERRY and BEVERLY ROSENBERRY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED Plaintiffs v. STEVEN D. GRASLEY, Defendant ORDER AND NOW, this _ day of , 2000, it is hereby (lCT 25 2' ORDERED that Plaintiff's expert, Richard L. SIeber, MA, is precluded from offering any testimony at trial concerning speculation about Mr, Rosenberry's loss of future wages due to reasons other than the subject motor vehicle accident. By the Court: Edward Guido, J. impact on Mr, Rosenberry if, "for any reason", he should lose his current job with the Department of Transportation, 6, There is no medical foundation or testimony in the case to support the proposition that Mr, Rosenberry is now, or will become in the future, physically unable to perform his job with the Department of Transportation as a result of the March 5, 1998 accident. 7. Regardless of the level of skill or experience of a witness, experts are not permitted to guess or state a judgment based on mare conjecture. Childers v. Powerline Eauipment Rentals Inc., 681 A.2d 201, 209 (Pa.Super, 1996), auotina, Collins v. Hand, 246 A.2d 398, 404 (Pa. 1968). 8. Moreover, it is not proper for an expert to offer an opinion that a result "could have come from," "possibly did come from" or "very highly probably came from" a particular cause, Pennsylvania law regarding experts and opinions on causation require a higher standard of certainty. Childers, supra. 9. The portion of Mr, Sieber's report dealing with possible consequences should Mr. Rosenberry lose his present employment is speculative, it does not meet the standard required of experts in Pennsylvania and it will in no way assist the jury in assessing or reaching a conclusion as to the reasonable value of Mr. Rosenberry's claim. 10. Because Mr. Sieber's opinions concerning future economic losses do not meet the requisite standard of certainty and because the opinions are not backed by unequivocal supporting medical evidence, Mr. Sieber should be precluded from testifying at trial concerning the speculative economic consequences to Mr. Rosenberry EJdllblt A KNESTRICK and SLEBER CLINICAL PSYCHOLOGY ASSOCIATES 264S North Third Street, Suite 430 Harrisburg, Pennsylvania 17110 LICENSED PSYCHOLOGISTS James L. Kneslrick, Ph.D. Richard L. Sieber, M.A. Richard L. Kohr, Ph.D. W. Robert Davidson, M.A. Alicelyn W. Sieber, M.P.S.S.c. CONFIDENTIAL Telephone 717.238.0885 Fax 717.236-6633 I I ! I I' July 10, 2000 VOCATIONAL EVALUATION Name: Terry K, Rosenberry Reason for Referral: Terry Rosenberry was referred for a vocational evaluation by his attorney, Mr, Edward E. Knauss of the law firm Metzger and Wickersham, The purpose of the evaluation was to assess the vocational, economic, and psychological impact of a March 5, 1998 motor vehicle accident. The evaluation consisted of clinical interviews of Mr. Rosenberry and his wife, psychological testing, and a review of wage and medical information. All opinions rendered are done so within a reasonable degree of professional certainty. Background Information: Terry Rosenberry is a 47-year-old man who resides at p, 0, Box 197, 1010 Three Square Hall Road, Newburg, Pennsylvania. He has been married to his wife, Beverly, for 22 years and the couple has two children residing at home. He is a 1970 graduate of Chambers burg High School where he was involved in the Vo- Tech program majoring in auto mechanics. He has been employed by the Pennsylvania Department of Transportation since December 1994. His job title is "operator A" and his duties include flagging, laboring, and operating equipment. Currently he receive. $11.18 per hour, Prior employment included working for Troy Coons from 1991 to 1994 as a logger, He left that position due to lack of work. Prior to working for Troy Coons, he was self-employed as a logger fi'om 1970 to 1991. Mr. Rosenberry indicates that on March 5, 1998, he was waiting in traffic to make a left- hand turn when he was struck by a motor vehicle, which then knocked him into another vehicle. He was unable to open the doors of his vehicle and had to exit through the window. He noticed immediate discomfort in his ankles but was able to "hobble" to the side of the road. He was taken to Carlisle Hospital where he was x-rayed, given pain pills and then released. The next day he went to see Dr, Robert Richards who told him "a piece was busted ofC' in his right ankle. His left ankle was also sprainc,d and he had pain in his ribs, He was put in a cast for six weeks but was unable to walk once the cast was removed due to severe discomfort. He underwent surgery on May 5, 1998, which consisted of the doctor "taking out the bone spurs." Following surgery, he was again placed in a cast for six to eight weeks. He continued to have difficulty walking after the cast was removed and was also in physical discomfort. He then underwent a course of rehabilitation at Chambersburg Hospital, following which he returned to work in July 1998. CONFIDENTIAL Vocational Evaluation Name, Terry Rosenberry Page Two Hc continues to have daily pain, which is aggravated by activity, His ankle "hurts mainly when I am on it and doing things," The pain starts as a dull ache in the morning, but by the time he is off of work "it's like a toothache," Pain is aggravated by extended standing or walking and he tries to stay offhis ankle as much as possible. He currently takes 800 mgs of ibuprofen a day to help control the pain, The doctor has recommended that he stay off his leg as much as possible and has indicated that he will likely need another operation in five to ten years, His job duties with the Department of Transportation include flagging, laboring and driving equipment. In the winter, he drives a snowplow, Laboring includes such things as shoveling stone into the back of a truck or laying pipe, He has difficulty getting in and out of his truck and also jobs that require extended standing or walking. He no longer bids on paving or chipper jobs, as they arc more labor intensive, As a consequence of not bidding those jobs, he has lost out on overtime hours, On occasion, he has difficulty falling asleep as the pain persists throughout the night. He has put on 20 pounds since the accident and his blood pressure has increased. He continues to engage in prior recreational activities such as hunting and fishing but at a reduced level. He is also limited doing activities around the home such as cutting firewood, He denied any significant anxiety or depression. He did note that he is "a little grouchier," An interview with Beverly Rosenberry indicated that Mr. Rosenberry frequently comes home from work complaining of pain. As he becomes fatigued, he has difficulty walking and will drag his foot. He is angry over what has occurred and irritated when he is in physical discomfort. He does not hunt as much as he used to and is not as active around the house. Psycholol,'ical Testing: Mr. Rosenberry was administered the Wide Range Achievement Test 3 (WRA T-3) and also P-3 Pain Inventory, On the WRA T-3, Mr. Rosenberry obtained the following scores: Standard Score Percentile Grade Equivalent Reading Spelling Arithmetic 77 76 89 6 5 23 6 6 7 These scores are suggestive oflow average intellectual abilities, which would be consistent with his educational and work history. Mr. Rosenberry was also administered the P-3 Pain Profile which was computer scored ~Jld interpreted through National Computer Systems Inc. The P-3 is designed to identify pain patients who arc experiencing emotional distress that may be affecting their symptoms and response to the treatment. The Validity Index indicated that Mr. Rosenberry was able to read the items and appropriately attend to the item content. He appeared to approach thc test in an open and honest manner and the test results can be interpreted with confidence. The P-3 measures CONFIDENTIAL Vocational Evaluation Name, Terry Rosenberry Page Three three psychological dimensions, which are anxiety, depression and somatization. Mr. Rosenbeny's anxiety score was considerably below average for pain patients. His pattern of response did not indicate any nervousness or agitation. Mr, Rosenbeny expressed fewer symptoms of depression than the average pain patient. His pain does not appear to be creating undue emotional stress at present. Mr, Rosenbeny also indicated experiencing less somatic thought than most pain patients and one would not expect there to be any somatic interference with treatment. Medical Information Reviewed: A February 24, 1999 report by Dr. Robert N. Richards, of Orthopedic Associates indicated that in the future Mr. Rosenbeny may require further surgery which might involve arthroscopy or possible ankle fusion, He may be limited in his activities, including running or prolonged walking. It was felt that he may have difficulty working ajoh which involves a great deal of prolonged standing and walking, Dr. Richards felt it might be advantageous for Mr. Rosenbeny to change positions at work, as he would do better at ajob where he would sit most of the day, rather than one where he stands on hard concrete, An Aprill7, 2000 report from Dr, Richards indicated that he had reviewed Mr. Rosenbeny'sjob description and discussed with him his job duties, Dr, Richards felt that Mr, Rosenbeny would be allowed to continue his job as a transportation equipment operator with the restriction that he not do paving and chipping jobs. Vocational. Economic. and Psycholofical Impact of Accident and Injuries: Mr. Rosenbeny was off work for 4\1, months (18 weeks) following his accident, Weekly wages were $411.00 ($10.95 x 37,5 hrs), Lost past regular wages were therefore $7398,00 ($411.00 x 18 wks), lv"rr. Rosenbeny then returned to work and has been able to maintain his job with the Pennsylvania Department of Transportation. He has, however, been restricted from working certain overtime jobs such as paving and sealing, as they aggravate his ankle. A letter from Mr. Donald G. Mays, Cumberland County District 8.2 of the Commonwealth of Pennsylvania Department of Transportation dated May 24, 2000 provided actual and e~timated hours ofJost overtime. Mr, Rosenbeny would experience being unable to perform seal. coat, and paving operations. Mr. Mays 1998 and 1999 calculations reflected actual lost overtime, while his 2000 and 2001 were estimates of lost overtime. The following chart was provided by Mr. Mays. m.a .l.222 2.OOQ 2Qill. Seal Coat 14.0 hrs 16.0 hrs 0 0 Paving +1439 hrs +108.9 hrs +110,0 hrs +110 0 hr~ 157.9 hrs 124.9 hrs 110.0 hrs 110.0 hrs RatelHour x $10.95 x$I1.18 x $11.72 x $12.40 Ovenime Factor x 15 x J 5 x 1.5 x 1.5 Totals $ 2593.51 $ 2094.57 $ J 933.80 $ 2046.00 CONFtnfN1/AL Vocational Evaluation Name: Terry Rosenberry Page Four Mr. Rosenberry lost $4,688,00 in actual wages in 1998 and 1999. Estimates wage losses in 2000 and 2001 total $3,980,00, His average lost overtime wages for 2000 and 2001 is $1,990.00. This figure will be utilized to calculate lost overtime wages over the remainder of his work life until the normal retirement age of65, Mr. Rosenberry would have sixteen years of remaining work life from 2002 until age 65 in 2017, He would, therefore, experience lost overtime wages during that period in the amount of$31,243.00 ($1,990.00 x 15.7 years), Total lost overtime wages since the time of the accident until retirement age total $40,508,00 ($4,688.00 + $3,980.00 + $31,840.00). There are some additional factors that should be taken into consideration relative to Mr, Rosenberry's vocational future and economic horizon, If, for any reason, he should lose his jobwith the Pennsylvania Department of Transportation, Mr, Rosenberry would have reduced labor market access and reduced earning capacity. Mr. Rosenberry has worked at laboring and labor-intensive type positions throughout his work life. Skills he had obtained do not translate well into less labor-intensive type jobs, His lack of transferable skilIs, limited academic abilities, and physical restrictions would likely limit him to jobs that pay an average of$8.00 per hour, This is a $3.18 reduction from his current hourly wage of$11.18 and would lead to annual lost wages of$6,188.00 ($3,18 x 37.5 hrs x 52 wks). The United States Government has defined an individual as having a work disability if the individual has a mental or physical impairment which limits the kind or amount of work an individual can perform, Mr. Rosenberry's injury and restrictions appear to qualify him for a work-disabled classification. Individuals with a work disability, on the average, have shorter worklives than their non-disabled peers, The new ,Worklife Expectanc~Iill2k:l by A.M. Gamboa, Ph.D., MBA indicate that a 47-year-old non-disabled male with 12 years of education has an estimated 15.1 years of remaining work life. A not-severely-disabled male with the same characteristics has 10.4 years of remaining work life. It is not uncommon for individuals experiencing chronic pain conditions to exit the work force prematurely, particularly when their work aggravates their physical condition. Neither the interview nor testing produced evidence of any clinical levels of anxiety or depression. Both Mr, Rosenberry and his wife have noted increased irritability, irritation, and anger related to the injury and chronic pain that he experiences. chard L. Sieber, M.A. Licensed Psychologist RLS/plk r.. ~ ~ 0- W <D ~ S w 0 a: c..i 0- f; "' .. ~ ., 0- .. ... z " ~ c 0 K .; ~ a: 0 a: ... <D " Q . % 0 " ~ E 0- "' a: a; ~ ." 0 a: z ~ . ~ "' % ., 0 ~ .., E: Q ~ :Il ; ,UJI ~,; l' . -'. 'i -...:..:;r~ THOMAS, THOMAS & HAFER, LLP yes ATrORNEYS AT LAW '....- -..-:;.~;~~~ ',~..; -.'.~i~~? I; ; I: , . . 305 NORTH FRONT STREET SIXTH FLOOR P.O. BOX 999 HARRISBURG, PA 17108 ',. I. !.~. ',' .., ('1.\ ',' ..' ,:., .~, ". '- ;;\ '. ") r '-.'I [j, ~ j'~;.r ! ., ; ~~ -: :. EDWARD E, KNAUSS, IV, ESQUIRE METZGER, WICKERSHAM, KNAUSS & ERB, P.C. 3211 NORTH FRONT STREET P.O. BOX 5300 HARRISBURG, PA 17110-0300 THOMAS. THOMAS & HAFER. LLP yes AlTORNEYS AT LAW 305 NORTH FRONT STREET SIXTIl A.OOR P.O. BOX 999 HARRISBURG, PA 17108 ~ I .' :.' , ",I,'-.~. ~~:', :>~:i;~:~;'~'~~~~:::=7 : " <~.\"d ~',,;'<\ "',.:.-" ~ I'~ '1- Ll~ s~jl (! ~1'~'~ C"t -I': '. ,,\0, . (\::-~ (IL!~" '~'~j:J~:'.~r.(:::!:? Ci .3 ::: ~ I~ " .... c...J " t':t, ",-':::,,:' .:. .. ._J: C. KENT PRICE, THOMAS, THOMAS P.O. BOX 999 HARRISBURG. PA ESQUIRE & HAFER, LLP 17108 which would likely limit him to a low paying job. In Mr, Sieber's opinion, if this scenario should play out, Mr, Rosenberry would suffer an annual loss of wages totaling $6,188.00. II, STATEMENT OF ISSUE PRESENTED Whether Mr. Sieber should be permitted to testify about the speculative scenario set forth in his report, Le, annual lost wages based upon the Plaintiffs losing his job for any reason? Suggested Answer: No III, DISCUSSION Expert testimony is permitted in civil suits where scientific, technical or other specialized knowledge beyond that possessed by a lay person will assist the trier of fact in understanding the evidence or determining a fact and issue. Pa.R.E. 702 Pennsylvania cases have long required experts to set forth their opinions with reasonable professional certainty. On the other hand, regardless of how experienced or skillful a witness might be, he or she is not permitted to guess or state a judgment based on mere speculation. Childers v. Powerline Eouipment Rentals Inc., 681 A.2d 201,209 (Pa.Super. 1996), Quotina, Collins v. Hand, 246 A.2d 398, 404 (Pa.1968). Experts may not testify about mere possibilities or probabilities when offering an opinion that a particular result came from a particular cause. Childers, supra. The hypothetical scenario referenced in page four of Mr. Sieber's report does not contain the type of information which would be helpful to a jury in assessing the merits of this claim. There is no medical evidenc.e or testimony that Mr. Rosenberry is, iii fact, presently medically restricted from his employment with the Department of Transportation exceot for certain overtime activities involving prolonged standing or walking, Mr. Sieber's report does set forth his calculation of overtime income loss and, although tha defense disputes those figures, there is at least some medical support for the proposition that Mr. Rosenberry does have an accident-related restriction which could form the basis for an award of damages based upon lost overtime. It is quite a different proposition, however, to claim that Mr, Rosenberry has a potential $6,188.00 annual wage reduction based upon future iob loss which can be placed into evidence in this case. The entire premise for this projection is that if Mr. Rosenberry should lose his job for any reason in the future, the physical restrictions that he has as a result of the accident may, in part, limit his employability. There are a number of problems with this line of reasoning. First, and most Important, this opinion is purely conjectural as it is not supported by any medical evidence. Although Mr. Rosenberry's doctor did place a restriction on overtime work involving prolonged standing or walking, Dr, Robert Richards did not render any opinion that Mr. Rosenberry was likely to lose the ability to perform his present job at any time in the future or that Mr. Rosenberry was presently unable to perform his job. The issue of job loss was not discussed during the deposition of Dr. Richards and, consequently, there is no medical foundation for Mr. Sieber's opinion and it should be ruled inadmissible. Second, Mr. Sieber's opinion is based upon the loss of employment "for any reason." He does not limit his opinion to job loss due to injuries sustained in the motor vehicle accident which is the subject matter of this case. Thus, a down-turn in the economy or physical limitations due to subsequent events unrelated to the vehicular r.. ~ ~ 0- ~~ W ... <D a: 0- 0 "' .. f; ~ .... 0- .. ~ " z .. 0 - a: ~ .,' L ~ ~ ... 0 a: E x <D " 0- 0 <D ~ a: " 0 a: 0: .. ~ z "' a: c:I .. 0 x e .., Q ~ :I{;-, .) ,. '- :.> Z()(JQ _ J C>: ',', ::', '::, ':':,.:' '.''-' :'\":,J"." :'::"~>'::":":":',;'-i~';;;",;',:'.',::,~';;;:,~~;/;, ::;~;::.':,..:,!:~:,,: .:;, ',,:; ',)::",..':',<:::::'. : "::'; i,:,:':: . .. ::., ,: :'1' '. TERRY J, ROSENBERRY and BEVERLY ROSENBERRY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 99-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED STEVEN D. GRAS LEY, Defendant DEFENDANT'S BRIEF IN SUPPORT OF MOTION IN LIMINE I. FACTUAL BACKGROUND This case involves a claim for personal injuries arising from a motor vehicle accident that occurred on March 5, 1998. As a result of the accident, Mr. Rosenberry has filed suit claiming that he sustained personal injuries including an injury to his right ankle. In the course of discovery, the Plaintiffs produced a vocational evaluation report authored by Richard L. Sieber, M.A. In the report, Mr, Sieber projects the vocational and economic impact of the March 5, 1998 accident on Mr. Rosenberry and reaches conclusions about the economic consequences of the accident. Near the end of his report, Mr. Sieber creates a scenario which is based on the hypothetical possibilj!y that Mr. Rosenberry could lose his present employment with the Department of Transportation for some reason. In that regard the report states that "[I]f, for any reason, he should lose his job with the Pennsylvania Department of Transportation," Mr. Rosenberry would have reduced labor market access and reduced earning capacity due to the fact that he does not possess much in the way of transferable skills, he has limited academic abilities and he also has physical restrictions which would likely limit him to a low paying job. In Mr. Sieber's opinion, if this scenario should play out, Mr. Rosenberry would suffer an annual loss of wages totaling $6,188.00, II. STATEMENT OF ISSUE PRESENTED Whether Mr. Sieber should be permitted to testify about the speculative scenario set forth in his report, i.e. annual lost wages based upon the Plaintiffs losing his job for any reason? Suggested Answer: No III. DISCUSSION Expert testimony is permitted in civil suits where scientific, technical or other specialized knowledge beyond that possessed by a lay person will assist the trier of fact in understanding the evidence or determining a fact and issue. Pa.R.E. 702 Pennsylvania cases have long required experts to set forth their opinions with reasonable professional certainty. On the other hand, regardless of how experienced or skillful a witness might be, he or she is not permitted to guess or state a judgment based on mere speculation. Childers v. Powerline Equipment Rentals Inc., 681 A.2d 201,209 (Pa.Super. 1996), auotinq, Collins v. Hand, 246 A.2d 398, 404 (Pa.1968), Experts may not testify about mere possibilities or probabilities when offering an opinion that a particular result came from a particular cause. Childers, supra. The hypothetical scenario referenced in page four of Mr. Sieber's report does not contain the type of information which would be helpful to a jury in assessing the merits of this claim. There is no medical evidence or testimony that Mr. Rosenberry is, in fact, presently medically restricted from his employment with the Department of Transportation except for certain overtime activities involving prolonged standing or walking. Mr. Sieber's report does set forth his calculation of overtime income loss and, although the defense disputes those figures, there is at least some medical support for the proposition that Mr, Rosenberry does have an accident-related restriction which could form the basis for an award of damages based upon lost overtime. It is quite a different proposition, however, to claim that Mr. Rosenberry has a potential $6,188,00 annual wage reduction based upon future iob loss which can be placed into evidence in this case. The entire premise for this projection is that if Mr. Rosenberry should lose his job for any reason in the future, the physical restrictions that he has as a result of the accident may, in part, limit his employability, There are a number of problems with this line of reasoning. First, and most important, this opinion is purely conjectural as it is not supported by any medical evidence. Although Mr. Rosenberry's doctor did place a restriction on overtime work involving prolonged standing or walking, Dr. Robert Richards did not render any opinion that Mr. Rosenberry was likely to lose the ability to perform his present job at any time in the future or that Mr, Rosenberry was presently unable to perform his job. The issue of job loss was not discussed during the deposition of Dr. Richards and, consequently, there is no medical foundation for Mr. Sieber's opinion and it should be ruled inadmissible, Second, Mr. Sieber's opinion is based upon the loss of employment "for any reason." He does not limit his opinion to job loss due to injuries sustained in the motor vehicle accident which is the subject mailer of this case. Thus, a down-turn in the economy or physical limitations due 10 subsequent events unrelated to the vehicular , ' CERTIFICATE OF SERVICE AND NOW, this "?S\I'day of October, 2000, I, C. KENT PRICE, ESQUIRE, for the firm of THOMAS, THOMAS & HAFER, LLP, attorneys for Defendant, hereby certify that I have this day served the within Defendant's Brief in Support of Motion in Limine by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Edward E, Knauss, IV, Esquire Metzger, Wickersham, Knauss & Erb, P.C, 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 THOMAS, THOMAS & HAFER, LLP ( I_~r~~-~/~ C. Kent Price: Esquire : :,: "-. ',~' ,;,::"': '~.:"",' i:/';"~ .' I :-'.!~:, :' :;~' :::C~ &i~~~:7~b~"~(;'~\1 '.\,~' '.~ \~~~'~<~\\,"";'.:" ", ' ~'~'~'.:,.' .',::;', ': >, ','..< ':..' -':';' ":' ,'l'. \'~,,/, '" .\ ," , ' I', "", .'.' ,^ ". "..,J, G. Donald G, Mays, PA DepartmcntofTmnspol111lioll H. Wilbur Coy, PA Departl11cntofTmnsportution 1. Perhaps several damage witncsscs who would hc Ii'icnds, neighhors or relativcs, names to be supplied J. Royden A, Mercado K. Robert N. Richards, Jr.. M,J)" hy vidcOlllpc (scc allachcd n'pnr1s) L. Lawrence 1. Guz7A1rdi, M.D" (scc CXPL'l"1 reports allllchcd) M. Richard L. SIeber, M,A" (scc attachcd cXJlcrt rcpol1) VI. Exhibits A. Chambersburg Hospital Blood Alcohol Analysis on J>eli.'ndullt Stcphen D, Gmsley B. Photographsofscelle ofaceidcllt C. Photographsofvehiclesillvolvcd illaccidCIll D. Two charts on blood alcllhollcvcls ovcr limc E. Chart on wage losscs atld misccllal1CllUSCXpclIsccalculalilltlS F. Life expectancy table G. Videotape and trllnscriptofdcposilion of Rohcrt N, Richards, M,D. VII. Current Status of Settlement N..!1:.utiutions Settlement negotiations arc currclltly taking placc. METZGER, WICKERSIIAM. KNAUSS & ERB, p,c. ({, Dated: Octohcr A?,~ooo <:::. ..~. -;;. , 7;/ . (.-,;;.. j V " BY; ,./ /' '." /,.tt.~.'-"<~""~I hlward E, Kllauss, IV, Esquirc 31 II Nnr1h Front SlI'ccl P.O, Box 5.100 Ilul'rishur[!, PA 171 lo.moo Attorneys fill' I'Jailllill;, Tcrry j, Roscnhcrry and Be\crly HoscnhL'rry .l exhibit A LAWRENCE J, GUZZARI1I. M,D. April 3, 2000 Andrew Norfleet, Esq. Metzger Wickersham 3211 N. Front Street D,.......C"ll^^ ~^oJ>J'lJU Hanisburg, PA 1711 Q. 0300 Re: Rosenbeny v. Gresley Dear Mr. Norfleet, Thank you for asking me to fonnulate an opinion in the above- referenced matter. In this regard, I have reviewed the following: Pennsylvania Police Accident Report Cumberland Valley Hose Company Ambulance/EMS Records Chambersburg Hospital Medical Records Statement of Stephen Grasley to Elle Insurance Company Deposition of Stephen Gresley dated August 24, 1999. According to the Infonnalion presented, Mr. Steven Grasley struck a stationary vehicle opereted by Mr. Teny Rosenbeny while Mr. Rosenbeny was walling for the light to change, The result of t'lis collision was that Mr. Rosenbeny's vehicle was propelled Into oncoming treffic, causing an accident With resultant injury to Mr. Rosenbeny, This accident occurred at 3:18 p.m. on March 5, 1996 subsequent to which Mr. Grasleywas transported to Chambersburg Hospital. At 5:40 p.m., a plasma sample was obtained with a result of .11 % wlv of alcohol In plasma. Mr. Grasley stated in a telephone interview with Douglas Reinhart of the Erie Insurance Company that he completed wol1l at the Preslon Trucking Company In Emlgsvllle and that he had had consumed two beers, each of twelve ounces subsequent to wol1l and prior to his driving for about one hour and ten minutes from YOIX Haven to tne slta of the accident. He had eaten "a burger" at the time he was consuming alcohol. In his deposition of August 27, 1999, Mr. G!'llsley states that he finished won: at 10:30 a.m. on March 5, 1968 after beginning wol1l at 10:30 p.m. the previous evening, He left Preston Trucking Company at about 10:50 a.m. and went to Sybol's Steakhouse and began drinking at about 11 or 11 :10 a.m, at which location "he hed a couple of beers", He later stated In the same deposition that he ate the soup and sandwich speclal and drank between "two and four" bottles cf Coors Light beer, each of twelve ounces. He claims the consumption of no other alcoholic beverages In tlle time periods relevant to this matter. He also stated that he had some food while at WOIX but that he didn' remember what It was. His only medication was Zestril for high blood pressure which he lakes dally. Mr, Grasley's height and weight at the lime of his accident was six feet tall and about two hundred twenty four pounds. Mr. Grasley's recolleellon of the amount of alcohol consumed cannot be accurate given the height and weight stated In his deposition. Since his recollection was inaccurate, I cannot estimate the alcohol level of Mr. Gras/ey at the time of his accident from his statements regarding the amounl of alcohol consumed. I can however estimate his blood alcohol by reverso extrnpolallon from the plasma sample drawn at 5:40 p.m. Using the average conversion ration of plasma to whole blood of 1.14/1, the average blood alcohol of Mr. Grasley at 5:40 p.m. was about .1 % wlv. The ranges of conversion listed by the Chambersburg Hospital would yield a blood alcohol level between .08 and .1. I hava attached an EMI:RGCNCY MWICINE" MmlCAl TOXlmLOGY 341 Creston Road" YOlK, Pennsylvania 17403" Phone (17) 854-7785 " Fax (717) 843.2925 248 South 13th St=1 . Philadelphia, Pennsylvania 19107" Phone: (215) 735.8404 "Fax: (215) 545.3043 ORTHOPAEDIC ASSOCIATES ROBERT N. RICHARDS, SR. M.D. JOHN O. ASHBY, 1.1 O. ROBERT N. RICHARO~I JR., M.D. SHABBAR HUSSAIN, M.D. ntpaom.t... A!=dcaa Douod eI o.u.op.cdlc h'="'T 1035 WAYNE MNUE CHAMBERS8URG, PA 172O'.2ll68 TELEPHONE (717) 2l'<~ll FAA NO. Z64.(;106 February 24, 1999 Mr. Edward E. Knauss, IV Metzger Ilickersham 3211 N. Front St. P.O. Box 5300 Harrisburg, PA 17110-0300 RE: Terry J. Rosenberry Dear Mr. Knauss: I am writing to you concerning Terry Rosenberry, who I have been treating for quite some time concerning his right ankle. He was involved in an auto- mobile accident on 3/5/98, He injured both ankles at the time of the acci- dent. He was seen in Carlisle Emergency Room, and a splint was applied to his ankle. I saw him in the office on 3/6/98. At that time e~amination of his ankle revealed he was quite tender over the anterior aspect of the ankle. X-rays at that time revealed extensive osteoarthiritis of the right ankle joint with large spurs over the anterior aspect of the joint. It appeared at that time that he may have fractured one of these spurs in the front of the ankle. He was treated conservatively with a cast and also antibiotics to prevent any celluliits, His left ankle was not injured too badly and did not re- quire much treatment. Unfortuantely, Terry continued to complain of a lot of discomfort with the right ankle. He continued to have a lot of pain with walking. He then underwent surgery on 5/5/98. This surgery involved an arthrotomy along with excision of large spurs from the front of the ankle joint. This spur was found to be loose and was probably fractured at the time of the car accident. The ankle joint was thoroughly irrigated and de- brided. He was found to have a moderate amount of osteoarthritis of the ankle joint at that time with some wearing down of the articular cartilage. Since the surgery he has been doing reasonably well. His ankle has gone on to heal very nicely. He did :eeturn to work in July, 1998. At the pre- sent time he is working full time for Penn Dot. He states that by the end of the day he docs have some discomfort and swelling in the ankle. In regards to my statement regarding the arthritis of his ankle from the office notes of 3/6/96. I was indicating that the x-rays showed osteoarth- ritis of the ankle .joint and that this arthritis was not causcd by the auto accident. 1 was stating that he had problems with arthritis in his anklc from previous injuries or problems.Apparently he did havc a fracture of his ankle in 1976. Prior to this automobile accident, Terry stated that _.,'_',', .A"..', ,,', ",.. "', exhibit C ',", '>'1 KNESTRfCK and SLEBER CLINICAl. I'S\'CHOLOGY ASSOCIATES 2645 North Third Street, Suite 430 Harri~burg, Pennsylvilllia 17110 LfCfN5EfJ I'SYGIO/.()GI5T5 James L Knestrick, Ph.D. Ric"a,d L. SId"", M.A. Riel""d L. K""" I'''.D. W Robert Davidson, M.A. Alicl'I>'1I \O\~ SId"." M.I'.S.S.c. CONFIDENTIAL lclepholle 717-238-0885 Fax 717-236-6(,]3 July 10, 2000 I I I VOCATIONAL EVALUATION Name: Terry K. Rosenberry Reason for Referral: Terry Rosenberry was referred for a vocational evaluation by his attorney, Mr. Edward E. Knauss of the law firm Metzger and Wickersham. The purpose of the evaluation was to assess the vocational, economic, and psychological impact ofa March 5,1998 motor vehicle accident. The evaluation consisted of clinical interviews of Mr. Rosenberry and his wife, psychological testing, and a review of wage and medical information. All opinions rendered are done so within a reasonable degree of professional certainty, Background Information: Terry Rosenberry is a 47-year-old man who resides at P. O. Box 197, 1010 Three Square Hall Road, Newburg, Pennsylvania. He has been married to his wife, Beverly, for 22 years and the couple has two children residing at home, He is a 1970 graduate of Chambers burg High School where he was involved in the Vo-Tech program majoring in auto mechanics. He has been employed by the Pennsylvania Department of Transportation since Decembcr 1994. His job title is "operator A" and his duties include flagging, laboring, and operating equipment. Currently he receives $11.18 per hour. Prior employment included working for Troy Coons from 1991 to 1994 as a logger, He left that position due to lack of work. Prior to working for Troy Coons, he was self-employed as a logger from 1970 to 1991. Mr, Rosenberry indicates that on March 5, 1998, he was waiting in traffic to make a left- hand turn when he was struck by a motor vehicle, which then knocked him into another vehicle. He was unable to open the doors of his vehicle and had to exit through the window. He noticed immediate discomfort in his ankles but was able to "hobble" to the side of the road, He was taken to Carlisle Hospital where he was x-rayed, given pain pills and then released. The next day he went to see Dr. Robert Richards who told him "a piece was busted off' in his right ankle. His left ankle was also sprained and he had pain in his ribs. He was put in a cast for six weeks but was unable to walk once the cast was removed due to severe discomfort. He underwent surgery on May 5, 1998, which consisted of the doctor "taking out the bone spurs." Following surgery, he was again placed in a cast for six to eight wecks. He continued to have difficulty walking after the cast was removed and was also in physical discomfort. He thcn underwent a course of rehabilitation at Chambcrsburg Hospital, following which he returned to work in July 1998. CONFIDENTIAL Vocational Evaluation Name: Terry Rosenberry Page Two He continues to have daily pain, which is aggravated by activity, His ankle "hurts mainly whcnl am on it and doing things," The pain starts as a dull ache in the moming, but by the limc he is off of work "it's like a toothache." Pain is aggravated by extended standing or walking and he tries to stay offhis ankle as much as possible, He currently takes 800 mgs of ibuprofen a day to hclp control the pain. The doctor has recommended that he stay off his leg as much as possible and has indicated that he will likely nced another operation in five to ten years. His job duties with the Department of Transportation include flagging, laboring and driving equipment. In the winter, he drives a snowplow, Laboring includes such things as shoveling stone into the back ofa truck or laying pipe. He has difficulty getting in and out of his truck and also jobs that require extended standing or walking, He no longer bids on paving or chipper jobs, as they are morc labor intensive. As a consequence of not bidding those jobs, he has lost out on overtime hours. On occasion, he has difficulty falling asleep as the pain persists throughout the night. He has put on 20 pounds since the accident and his blood pressure has increased. He continues to engage in prior recreational activities such as hunting and fishing but at a reduced level. He is also limited doing activities around the home such as cutting firewood. He denied any significant anxiety or depression, He did note that he is "a little grouchier." An interview with Beverly Rosenberry indicated that Mr. Rosenberry frequcntly comes home from work complaining of pain. As he becomes fatigued, he has difficulty walking and will drag his foot. He is angry over what has occurred and irritated when he is in physical discomfort. He does not hunt as much as he used to and is not as active around the house, Psycholofical Testing: Mr. Rosenberry was admini~tered the Wide Range Achievement Test 3 (WRAT-3) and also P-3 Pain Inventory. On the WRAT-3, Mr, Rosenberry obtained thc following scores: Standard Score Percentilc Grade Equivalent Reading Spelling Arithmetic 77 76 89 6 5 23 6 6 7 These scores are suggestive of low average intellcctual abilities, which would be consistent with his educational and work history, Mr, Rosenberry was also administered the P-3 Pain Profile which was computer scored and intc'1lrcted through National Computer Systems Inc. The P-3 is designcd to identify pain patients who are experiencing emotional distress that may be affecting their symptoms and response to the treatment. The Validity Index indicated that Mr. Rosenberry was able to read the items and appropriately attend to the item content. He appeared to approach thc test in an opcn and honcst manncr and thc lesllcsulls can be intc'1lreted wilh confidence. The P-3 mcasures CONFIDENTIAL Vocational Evaluation Name: Terry Rosenberry Page Threc three psychological dimensions, which are anxiety, depression and somatization. Mr. Rosenberry's anxiety score was considerably below average for pain patients. His pattern of response did not indicate any nervousness or agitation. Mr. Rosenberry expressed fewer symptoms of depression than the average pain patient. His pain does not appear to be creating undue emotional stress at present. Mr, Rosenberry also indicated experiencing less somatic thought than most pain patients and one would not expect there to be any somatic interference with treatment. MedicallnfoTmation Reviewed: A February 24, 1999 report by Dr. Robert N, Richards, of Orthopedic Associates indicated that in the future Mr, Rosenberry may require further surgery which might involve arthroscopy or possible ankle fusion. He may be limited in his activities, including running or prolonged walking, It was felt that he may have difficulty working a job which involves a great deal of prolonged standing and walking. Dr, Richards felt it might be advantageous for Mr. Rosenberry to ehange positions at work, as he would do better at ajob where he would sit most of the day, rather than one where he stands on hard concrete. An April 17, 2000 report from Dr. Richards indicated that he had reviewed Mr. Rosenberry's job description and discusscd with him his job duties. Dr. Richards felt that Mr. Rosenberry would be allowed to eontinue his job as a transportation equipment operator with the restriction that he not do paving and chipping jobs. Vocational. Economic. and Psychological Impact of Accident and Injuries: Mr. Rosenberry was offwork for 4Yz months (18 weeks) followiug his accident. Weekly wages were $411.00 ($10,95 x 37.5 hrs). Lost past regular wages were therefore $7398.00 ($411.00 x 18 wks). Mr, Rosenberry then returned to work and has been able to maintain his job with the Pennsylvania Department of Transportation . He has, however, been restricted from working certain overtime jobs such as paving and sealing, as they aggravate his ankle. A letter from Mr, Donald G. Mays, Cumberland County District 8-2 of the Commonwealth of Pennsylvania Department of Transportation dated May 24,2000 provided actual and estimatcd hours of lost overtime. Mr, Rosenberry would experience being unable to perform seal, coat, and paving operations, Mr, Mays 1998 and 1999 calculations refleeted actual lost overtime, while his 2000 and 2001 were estimates oflost overtime. The following chart was provided by Mr. Mays. l.2.2.S .l.22.2 2illlQ 2illll Seal Coat 14.0 hrs 16.0 hrs 0 0 Paving + 143.9 hrs +108.9 hrs +110,0 hrs +]]O.Ohrs 157.9 hrs 124.9 hrs 110.0 hrs 110.0 hrs RatclHour x $10.95 x$11.I8 x $11.72 x $12.40 Overtime Factor x I 5 x 1.5 x.....l..s x 1.5 Totals $ 2593.51 $ 2094.57 $ 1933.80 $ 2046.00 CUNFlUfNlIAL Vocational Evaluation Name: Terry Rosenberry Page Four Mr, Rosenberry lost $4,688.00 in actual wages in 1998 and 1999, Estimates wage losses in 2000 and 2001 total $3,980,00. His average lost overtime wages for 2000 and 2001 is $1,990.00. This figure will be utilized to calculate lost overtime wages over the remainder of his work li fe until the nonnal retirement age of65, Mr. Rosenberry would have sixteen years of remaining work life from 2002 until age 65 in 2017. He wO:Jld, therefore, experience lost overtime wages during that period in the amount of$31,243.00 ($1,990.00 x 15,7 years). Total lost overtime wages since the time of the accident until retirement age total $40,508.00 ($4,688,00 + $3,980.00 + $31,840,00), There are some additional factors that should be taken into consideration relative to Mr. Rosenberry's vocational future and economic horizon. If, for any reason, he should lose his job with the Pennsylvania Department of Transportation, Mr. Rosenberry would have reduced labor market access and reduced earning capacity. Mr. Rosenberry has worked at laboring and labor-intensive type positions throughout his work life, Skills he had obtained do not translate well into less labor-intensive type jobs. His lack of transferable skills, limited academic abilities, and physical restrictions would likely limit him to jobs that pay an average of $8,00 per hour. This is a $3.18 reduction from his current hourly wage of$11.I8 and would lead to annual lost wages of$6,188.00 ($3.18 x 37.5 hrs x 52 wks). The United States Govemment has defined an individual as having a work disability if the individual has a mental or physical impairnlent which limits the kind or amount of work an individual can perfonn, Mr, Rosenberry's injury and restrictions appear to qualify him for a work-disabled classification. Individuals with a work disability, on the average, have shorter worklives than their non-disabled peers, The new Worklife Expectancy Tiiliks by A.M. Gamboa, Ph.D., MBA indicate that a 47-year-old non-disabled male with 12 years of education has an estimated 15.1 years of remaining work life. A not-severely-disabled male with the same characteristics has 10.4 years of remaining work life. It is not uncommon for individnals experiencing chronic pain conditions to exit the work force prematurely, particularly when their work aggravates their physical condition. Neither the interview nor testing produced evidence of any clinical levels of anxiety or depression. Both Mr. Rosenberry and his wife have noted increased irritability, irritation. and anger related to the injury and chronic pain that he experiences. ~ .' chard L. Sieber, M,A. Licensed Psychologist RLS/plk ''"-'' II, Statement of Basic Facts as to Damaaes: Mr. Rosenberry suffered bilateral ankle injuries, greater on the right than the left. A large bone spur, due to a previous injury to the right ankle, was broken off, but there were no fractures to the ankle or foot itself. The hospital records Indicate a prior history of "some ankle fractures." X-rays of the right ankle were Interpreted as showing "severe degenerative change" but no recent fracture. After attempting conservative treatment, Mr. Rosenberry underwent surgery on May 5, 1998 to remove several spurs, the largest of which was about "the size of a small egg," and some smail loose bodies in the ankle joint. It was noted that he had osteoarthritis of the ankle joint with some wearing down of the articular cartilage which pre-dated the accident. Please refer to Plaintiffs' Pre-Trial Memorandum for more specific information regarding the alleged injuries and damages. III. Princioal Issues of L1abilltv and Damages: The principal issues of liability are negligence and causation. The Defendant is prepared to stipulate to liability, The principal issues of damages are causation and relatedness, Defendant contends that Plaintiff had suffered one or more significant right ankle injuries years before and the motor vehicle accident merely resulted in the breaking off of one or more bone spurs that were related to the earlier injuries; Plaintiff suffered no new injury to the right ankle or foot that did not previously exist. RE: DAm PAGE: Terry Rosenberry March 31,1999 2 also nOled in the Emergency Room record, He was neurovascularly intact. X-rays revealed extensive osteoarthritis with large spurs, Dr, Richard notes "it appears as if he may have fractured one of the spurs over the front of the ankle joint." He was placed in a cast and treated conservatively, but continued to have persistent pain and tenderness, He eventually underwent surgical excision of the large osteophyte and debridement of the joint, I reviewed the x-rays of 3/6198 from Dr, Richard's office, The patient does have advanced degenerative arthritis of his ankle, With respect to the large bony fragments in the anterior aspect of his ankle, to my inletpretation, this has rounded edges, sclerotic bone and in my opinion, this is most likely an old finding, I agree with the radiologist's intetpretation Ihat there is no apparent new fracture to my review. Follow up x-rays done in Dr, Richard's office show removal of this bony fragment. I certainly cannot disagre!: with Dr, Richard's care however, as casting this was certainly a safe, reasonable option to consider initially in the event that there was a subtle new bony injury Impression: Based on my review of the x-rays and medical records, I do not see that the motor vehicle accident played any significant role in the ultimate end result The accident did mark the onset of increasing pain and thus the accident may have aggravated a pre-existing problem, but I have serious doubts as to whether there was a true fracture, The findings appear old on x-ray to my review. I do feel he has received expert medical care and I certainly agree with the attempted non-operative care of this as well as the subsequent surgical excision. Therefore, in my opinion, I do not feel that the motor vehicle accident caused a fracture and at best, it caused increasing symptoms which led to the required treattnent Whether you believe the accident caused the exacerbation of symptoms and a fracture or not, there is no doubt that any ongoing symptoms are related to the advanced pre-existing degenerative arthritis that he has in his ankle. Future surgery may be necessary, Such possibilities include repc'.at debridement and even ankle arthrodesis, but if and when any additional surgery is necessary, in my opinion, it will be related to the pre-existing degenerative arthritis without contribution from the reported motor vehicle accident If there is any future disability, I do not feel that it would be related to the MV A of 3/5198. Thank you for allowing me to review these records and x-rays. If you have any questions, please do not hesitate to contact me through Per Diem. v~/; #...b 7ffj) / hulr- Cregory A, Hanks, M.D. GAH/kmb r\l~~\\~~ \~~~ ~?~ II II r.. ~ ~ 0- W ~ 9 w <D ~ a: 0 0- f; "' 01 ., 0- .. ~ ~ ... z .. ~ c 0 " c>' .. a: 0 a: '" ... <D " . X <D ~ E 0- 0 "' a: a: 0: ~ 0 z a: .. ~ "' .. x ~ 0 .., e Q ~ OCT [/ 0< ~\ 5, As a result of the aforesaid accident and collision, Plaintiff, Terry J. Rosenberry, sustained various personal injuries, all or some of which may be pennanent or chronic in nature, including a fractured spur of his right front ankle joint, a sprain of both ankles, an aggravation of a pre-existing asymptomatic condition of his right ankle, contusions and soft tissue injuries to his ribs, and contusions and abrasions to various parts of his body. 6, As a result of the aforesaid accident and injuries, Plaintiff, Terry J. Rosenberry, has incurred various medical expenses for physicians, hospitals, medical supplies, medication, therapy, and other medical treatment, and he will in the future continue to incur such medical expenses, 7, As a result of the aforesaid accident and injuries, Plaintiff, Terry J. Rosenberry, has sustained a loss of income and may, in the future, continue to suffer a loss of income and a pennanent impainnent of his future earning capacity. 8, As a result of the aforesaid accident and injuries, Plaintiff, Terry J. Rosenberry, has undergone emotional and menial distress and anguish, embarrassment, and humiliation, and will in the future continue to undergo such mental distress, anguish, embarrassment, and humiliation. 9. As a result of the aforesaid accident and injuries, Plaintiff, Terry J. Rosenberry, has undergone much pain, suffering, inconvenience, loss of enjoyment of life, and loss of life's pleasures, and will in the fUlUre continue to suffer such losses. 4 10. As a result of the aforesaid accident and injuries, Plaintiff, Terry J. Rosenberry, has sustained, or may in the future sustain, permanent, serious scarring and disfigurement, which entitles him to recover for his non-economic losses. 11. As a result of the aforesaid accident and injuries, Plaintiff, Terry J, Rosenberry, has sustained, and will in the future continue to sustain, a serious impairment of his ability to walk, run, use his foot, use his leg, and move his foot and ankle normally, which entitles him to recover for all non-economic losses which he has suffered. 12, Plaintiff, Terry J, Rosenberry, is further entitled to recover for all non- economic losses by reason of the fact that he has lost, and will in the future lose, a full range of motion of his ankle and foot joints; he has missed a significant amount of time from work and will continue to miss work in the future; he is significantly restricted in his ability to perform his functions at work and his work duties; he continues to suffer from pain and swelling of his ankle joint; he has suffered objective injuries which required casting and surgery and may in the future require additional casting and surgery, including a fusion of his ankle joint; he has been unable to engage in various hobbies and recreational activities which he enjoyed prior to the accident; there has been a serious interference with the activities of his daily life for over a year, which interference will continue in the future; he has taken and continues to take medication for his pain on a regular basis; and he has been under various fonus of physician-imposed restrictions since the time of the accident. 5 I' . ",1 ., II.: ' . ... ", ,":.: ',' .,;;.':,,':.... ~ *:,:'~;~-fi,I~~;,,,,:,~ _,,;:\:'I'~:~,~,?~':~~"".~;~';~,~j u'~.. ;' '. <: r~ ',. \". ' .". /" ,~. \ , \"'. : ~', ' ' : .' \, ."~ ,.' ) "',' i, . " ~ 'J ,', , . , ;' I, .,' ," 13. At the time of the accident, the Defendant, Steven D. Grasley, was intoxicated and operating his vehicle under the influence of alcoholic heverages, which intoxication was a significant contributing factor to the happening of this accident. COUNT I Terrv .J. Rosenberry v. Steven D, Graslev 14. Proceeding paragraphs 1 through 13 are incorporated herein by reference and made a part hereof. IS. The aforesaid accident and injuries suffered by the plaintiff were the direct and proximate result of the negligence and carelessness of the Defendant, Steven D. Grasley, as follows: (a) He failed to operate his vehicle at a safe and appropriate speed; (h) He failed to keep a proper lookout for other vehicles ahead of him on the highway: (c) He failed to operate his vehicle at such a speed and in such a manner so as to he ahle to Slop within the assured clear distance ahead; (<I) lie was following the vehicle driven hy P!?intiff, Terry J. Rosenberry, too closely; (e) lie failed to kecp his vchicle undcr control; en lie faiic:d io sleer or SlOp his whicle so as 10 aVDid a collision with the vehicle driven by Plaintiff. Terry J. Rosenhcrry; (1'1 He failed lil ohserVI: the vehicle ahead of him drivcn hy Mr. Roscnberry; (, (h) He failed to pay proper and careful attention to the vehicles ahead of him on the highway; and (i) He was operating his vehicle under the influence of alcohol. 16, The conduct of the Defendant, Steven D, Grasley, in operating his motor vehicle on the highway while under the influence of alcohol was outrageous, wanton, and showed a reckless indifference and disregard for the rights of other motorists on the highway, including the Plaintiff. 17, By virtue of the proceeding Paragraph, Plaintiff is entitled to punitive damages from the Defendant. WHEREFORE, Plaintiff, Terry J, Rosenberry, demands judgment against Defendant, Steven D. Grasley, in an amount exceeding that requiring submission to compulsory arbitration, plus costs and punitive damages. COUNT II Beverlv Rosenberrv v. Steven D. Grasley 18, Proceeding Paragraphs I through 17 are incorporated herein by reference and made a part hereof, 19. By reason of the accident and injuries to her husband, Plaintiff Beverly Rosenberry, has suffered a loss of companionship. loss of services, loss of society, and loss of consortium, and she will in (he future continue to suffer such losses. 20. Defendant. Steven D. Grasley, is liable to Beverly Rosenberry for her losses. 7 '" !, " ~n t,'; (..~ '..- , . ..J "~ ) '. t,:\ '..) II l.. ~ ~ 0- W ~ S w .. ci . 0 0- S . .. .. 0- .. ~ I:l ... z .. e c 0 K .,' . . 0 0: \) '" ~ .. ::> ~ ~ . 0 .. E 0- '" a: " lr .l! 0 ~ z .. .. . '" x I:l 0 E M Q ~ , . CERTIFICATE OF SERVICE - I, C. KENT PRICE, ESQUIRE of the law firm of THOMAS, THOMAS, & HAFER, llP do certify that I serv"d the foregoing document on the following person(s). by depositing the same in till' United States Mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: Edward E. Knauss, IV, Esquire 321 1 North Front Street P.O. Box 5300 Harrisburg, PA 17110 THOMAS, THOMAS & HAFER, llP Date: 5 hn he; ~~~ C. KENT PRICE, ESQUIRE 6: (") '- ~~ ~. ~ I- N :-,:)...~ lJ.lt:"") 0";: L"-;' -- I'.) ~:.;~. -"~ C) ,..1..._'. ~'- j~~i .c-. C)[:, c'> c.o',- I .' U.ll...., I ':- :-~-; .--'t' '. ~. ',.!iD U:' ::3 ..- ':~ 1 0_ I- ."J ..,::. 0._ 0' ::..> 0 c' U In The Court of Common Pleas of Cumberland County, Pennsylvania Terry J. Rosenberry VS, Steven D. Grasley No. 99 - 2 6 1 7 C i v i1 19_ Now, 5 / 3/99 19_, I SHERIFF OF CUMBERLAND COUNTY, P A do hereby deputize the Sheriff of County to execute this Writ, this deputation heing made at the request and risk of the Plainliff. FrAnkl in r~?~~t Sheriff of Cumberland County, Po. Affidavit of Service Now, within upon at by handing to attested copy of the original tbe contents thereof. 19 ,ot o'clock M, seMltd the o true and ond mode known to So answers, Sheriff of County. ro. COSTS Sworn ond subscribed before me Ihis do)' of 19_ SERVICE S ~IIL[AGE____ AFFIDA VIT s '. SHERIFF'S OFFICE . 157 LINCOLN WAY EAST, CHAMBERSBURG, PENNSYLVANIA 17201 (717) 261 -3877 SHERIFF SERVICE I~~~~-;;~C~;~~S- F;~ ~~RVI~EO~-~~OCE~~~~;::;-~ Iype or prlnl _"_.____.._._. _ ~~()C~SS RECEIPT, and AFFIDAVIT OF RETURN leg,uly. Do nol deloch ony COpIO.. 1. PLAINTIFFI SI -, - 12 - COUIlT NUMBEF1-- - ,--- ----- ---- TERRY J ROSENBERRY. ET AL 99-2617 3~[fEFENDiiNfi 51 4. TYPE 01' \"11m Oil COMPLAIIH. STEVEN D GRAS LEY I C -'------~---,---------- -- -- - __.. . . ... ...... .. NOT!. E . AND COMPLAINT S;E {_~:_~;;~i~i::~~~i~:;:'i;;~;:~^.T~~I:,.::~~,T~:[;:::~:~10;I:C;~~:~N 01 prlol'"i!y ]G.BELEVII,n. ^T~^CliE~OR_~~D~--- _~J______L59..?_-';.rllili3I>\'_1.9_T_!W@L ilIiIPJ>ENSBVR.G,_. P A. 1]251... 7. INDICATE UNUSUAL SERVICE: IJ COMMON OF PA. II DEPUTIZE [] OTHER Now, --~--~--_._=~~-19.==~=~=-'.-(SHER-I'F'F-6F'F'RANKLfr\rcbUNT'("PA.,-ci"6'-hercby"ciep'utize ihc"sh-e"riff"oT" - ---.----.-------- ----- - m__________.__..________ County to execute tilis Writ and make return tilereof according to law. Tilis deputation being made at tile request and risk of the plaintiff. _____._..._.____._--------. ._____________.___.. !.!H!'III {II I H^I;"lIN C{JIINlY 8. SPECIAL INSTRUCTIONS OR-OTHERlNFORMATiOii,tHA'r'" WILLASSlS,.-IN-exPEOifING'SERliicE:-------.. -'-----------'-~------- N6tEONL YAPPlICAiile-orlwRit-6fE-j(jfcutf6r.l,r'J:a:WAivEFfoFWAfctiMArr=Anyaepuly'si1.irrrievying uj'iOii-Oiauilchinganyproriert\, under- within writ may leave same without a watchman, in custody of whomever is lound in possession, alter notifying person of levy or attachment, without liability on ~art of ~.f!.Ld..~J!ty__orJb.~ 2!:!.~~I~JO any_pJal!Jt~!~rQ.I[l_1~QYJ.o.?s.!.s1e5trl!ctlo!:! or. retl19vdLQ.1 ~ny' ~u~t~ PlOp.Qr:!y_befo.r:e ~!!enl~ ~alg t!.!Q!~Qf_ ______ 9. SIGNATURE 01 ATTORNEY or olhorORlGINATOR J 10 TELEPHONE NUMBER J11 DATf: CUMBERLAND COUNTY SHERIFF 1~ SEND NoiiC-E OF si"Rv-lce-copy- reNAME AND ADDRESS BEl.OW: (This area -must be co-mplCtCd if notice Is-to bcmaiicd)~ -- --_~___~____4 R THOMAS KLINE ONE COURTHOUSE SQUARE, CARLISLE, PA 17013 ____-=~~-=:--S~AC_E -BELoVf.FORJ!~rOF_.sJ[EFilEFQ-l'lLy:.j~QNOTwRIfE_~fi...oW.THI!U.I!::lE::::-=====-= 13. ~~~~~~;"~~~?:sr~~~~t~~t~~;~~~} ~~N TURE 01 Aulhonl FCSO Dopuly 0 Clerk and T,lIe . e ~~~:;~lVed ..r:~{':~o~IHearin9 dale l~l-h;;;by-CERTlF';~~ndREiu-RN lh~lr6t{~ 5on~rvcd. r1 tlilVC Icg~1 vidence 01 servi~c. 3S SI1-~~~ 'i'~ "R-~~"~rks':,-[~-J 1~~~e-~~~~l~tCd-~~showrl-;;:;'--- ~RelTlarksM, the writ or complaint describe II1t1 individu31. company, corporation, etc., at ll1e address shown above or 011 the individual, company, ___~~E~ratio~~I_~:.'_.~~.!.~~_~~~_~.e_~~_!~~_~0~~_~_~~1~~_~y_11<:I_r:'9_~~g.a TRUE and ArrESTED COPY Ihoreal. . ______._~ 17. 0 I hereby cartlly and return a NOT FOUND !)Pr.rlIJ<;P I ;lnl HIl:lhln 10 Inct'lt(' tl1..-.;> Irvj!\'id~J2.!. cc~~p.:1.ny, cc:pcr;:!:c:1, c~c,' n~:T:cd abv'~\" (SG13 r.::rr.,il!-..S be:h,)w) -18. Name an~iieofjn(iividuar--sen;o-d(-i(noish'o\vn-~:ibo've')- _un. --- -,' --, -. ----. --------.TI-1"g.--A- l;f:r';'~'l.-'<)1 ~'''lilt)I~-- ::;l~~';ll\~ (t,.,n'-'.".'~; '-t;;~~.- ."---.'-'~'-"-~ ll".ldHHl '11 1I11' de!!)r111.II,t l, U~'.lMr pl.'I<.;,) of STEVE GRAS LEY "'",w CI 20.-Ad'dressoj"~vher-e-'5erve-d{COmpleieonly'j'fd'!ferent than stlown above) (Street or RFD, Aparimen1 No., '121' Dale 01 s("r\llc~'122. Tifne- -- ~A..M-~- City, Boro, Twp, Stale and Zip Code) r~T I r05T SHERIFF'S OFFICE , [' I I 5-12-99 1,11:43,AM__ ~~__A:~~:TS_ [Datej M,les IDep.lnt.j Dale I Miles IDep.lnt.i Oalo ! Miles jDep,lnt. Oalo I Milos I Dep,ln'j Dal~IMHcSLDep._I:~ 24. Advance Costs 125 Service Ct'sts !2G. N'olary CPrt' 127. Mileage or POS1<igl~ ! 28. Tot.'ll CO~>15 :29. COST DUE OR RtrUND 18.00 4.00 j ! 22.00 L 53.00 RF;F-ll.NQ_ 30. REMARKS: 31 AFFM and ~ub~crltJ('d to be'IOII Illl'1hl$ 12TH 34 d'ifOj)''J\Y //'1 --:- 1999 37 c.-u I,tl..,,~ . MY C .MMISS10N [>flf" ~ . 38 I ACKN 0 WL.E.DGE Ii CEII.'T .0fUQTlMl!AIfSEA-ETU. RN SIGtATURE I. OF AUT HOlillHlIS UllilAntJ~IO"lI$fl~Ne,NcWyf'ubl,c J Chalr,bor"but;J, Franklin Courll'y 1(',,) 1 ll! IJ1..Cr_~.'.~.' .:':~~~ I W"lr","; NOv <II ~YIO I 'r".;, 1 ,) SO ANSWER. ~hU1U'JJ. ,j :!rt, .\ ~ \.. . V....}...J..., LAURIE A ETTER ;v.il.lI,' 5-12-99 ""'J".,I.",.,' .'"," ,( ll.," SHERIFF OF FRANKLIN COUNTY ,., 1...I,.l.. '"I''''' .... "'~"" SHERIFF'S OFFICE ;C.. "1 - . 157 LINCOLN WAY EAST, CHAMBERSBURG, PENNSYLVANIA 17201 (717) 261-3877 -----~.-------- --SHERIFF SERVICE I'~~S;;~~;IO~~-~~~~~;~IC~ ~;-~-;;~-;~;~~~~c ty~:-;';'rlnt =~~~ii~I~~~~'~:h:,E~EI.I,:,.,:::: I~:,ID::I: I~F RETUR.N ...IC.Q..-i.b ly....D. 0... nO..I]~...~.-~.ca,~..o..~..~.n!.I~ .!-l. ~~~.O.~E.-n--.--..- __ ___._ _____ 3. DEi'ENDANTI 51 .. 4. TYPE OF WRIT orfcDMPCiiiNT'--'--'-------: ._______.______"__~:~~~~Vt~~~ ~)_y~~~~.~:~.~~_ ___.. _ __ _ ____ ~~q:flCI~ A~W CO~1PLAl~T SERVE {~~~~~~~,~;:~IO~~:~~~~~:Y,~::rO~~T10~ET~:'OS'~"V'c_Eon:~sc:r~:: O~:'OP';r'TYfO iiE lEVIEI)~ ATTACHED OR SOLO. - . 6. ADDRESS (Slroot or RFD, Ilpanmenl No.. CIly, Ooro, lwp., Slalo and ZIP Codo) , -..... --.. .m,__ .-------.------ AT. ____!.5,9_;UJNUl'J'LLlI:rJW"1~, _:i11)1'.1'fi-'lf>..IillI<<,;LJ'LJIl';L.__,,___.____. __ _ _ 7, INDICATE UNUSUAL SERVICE: 0 COMMON OF PA. [J DEPUTIZE Ll OTHER . .-. "- ------ Now, -=---==:~==_-:~.:::: 19::--=-.:::',-:I,sFiERIFF-OFFRANKLINCbuNTV;P/c'-dOhoreb"Y'depuUZethe.Sheritlof------- ------.-------- County to execute this Writ and make return thereof according to law, This deputation being made at tho request and risk of the plaintift. 8. SPECIAL INSTRUCTIONS OR-OTHER INFORMAii6N--iHATWiLLAssisT IN EXPEDITING SERVICE: ~H wrr 01' I 1l"f.lKI.!N COW-I1Y NOTE ON!..Y A~~t.ICABLE otrWRff-OF-eXECUTICfN:-N.B. WAIVeRO-F-WATCHMAN- Any deputy sheriff levying upon or attaching any property under within writ may leave same without a walchman, in custody of whomever is found in possession, aller notifying person 01 levy or attachment, without liability on the Dart of such deputy_or the sherifllo an.V.J?laintlf!..b..erein for _C!QyjQ~~cj.esl~~!LQ!l..QL~~.l!lq~f!Lq!i1...:'Y~!!~h.2roperIV beforQ..sheril~ sale tJ:l_ereo~_ 9. SIGNATURE of ATTORNEY or olhor ORtGINATOR. ] 10. TELEPHONE NUMOER -l1i~E CUMBERLAND COU;,TY SHEinFF ~ 12. SEND NOTICE OF SERVICE COPY TO NAMEAND ADDRESS'SEL.OW:(Thls arca ';'"Slbe completed ji,;ollcclSto bc malled)-'--- R THOI\AS KLINE ONE COURTHOUSE SQU!<.!l.~, GAiU.,ISLE, PA 17013 ,_ SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE 13. I aCknowl~dge r~c~ipt of the writ } SI9~"TURE cf ~. r~~ FCSO De.~PU1Y ~C.l ark and Tillo ..T14~oate ~.eceive.d ..- 15. Expirationlliearing date or complaml as md,caled above. -t:O;.:::.:J-.,-_'.)7-LLUZ2d~~,_______:__ J__1.:+"~2c~_ 6-1-?9 16. I hereby CERTIFY and ,RETURN that rciit;~c 9JXson'a!ryServed, Ll have legal tVldence of service as shown in "Remarks", 0 have executed as shown in "Remarks., the wnt or complaint descnbcU.oo the IndiVidual, company, corporaliol), etc., at the address sho..,n above or on the individual, company, corporation, elc.. at the address inserted below by handling a TRUE and ATTESTED COP V thereof. I . ._.m._______.____._"_.___._.___,__.__.___.,____.~__~_._..___..._.___~~-_-. 17. 0 I hereby certify and return a NOT FOUND because I am unable 10 locate the individunl, company, corporation. ctc.. nameL1 above, (See remarks below) 1a'1iame and title of IndJVldual servcd(tl no. I.SI..'.OW. n.a b..ove.-) -.-.. -. --- ..~--,-- - ,..--___m.._... j 19.'A'.;~~~~-r~.'.~I. ;:';--Ililbl~ O[JQ l\nrl dlSCII'llol1 Ihon - IlJ51[Jlfl\l 111 tI,e dl'!{)l1danl'~ IJsual plllco 01 STEVE GRi\SLEY <Ilh1d(], fJ 20. Address 01 whereserved(compleie"oniY-ll Jiiierc'11.lhansh.o~n-2.bove) (s.-tr"..'o i.".'.' -H. F.D ,Apa n" merIIN.-O:-- --. -... nli,oa;oOls''''''C r2. T,me AM City, Bora, Twp. Stale and ZIp Code) ~~ EOST SbERlFF':; UFF1CE ,-I .'-99 ] 1 :43A'1 :3 ~iTEMPT_~I~aleT:I~eC:,~nt.]Dato] Mii:sj DCP.lnt.]D:at:lM"estp:I:[Da~..J MII~] D.~:~nt.e~t~J Mi-~sL:.lnt. - 24 Advance Costs____ j:5::::';~!COSIS J2GN~:a~,Ccn T7_~"Ca:o:po~'ago T8_,:;~:~~s~__ 2~,~~:::UE,~~;~;~~0 3D. REMARKS: 31. AFFIRMED and $ubscnb('d 10 before me Ihls 1. . .. .. I i\i:.p~;~::::::~;" of , i :l~) ~>Ig;;-';IL)'" (11 ~;. "." i SHERIF F OF FRANKLIN COUNTY '-"',j SO ANSWER. i. ",,,,,,, ",."",.-'l,,,p'~\ '""""'\ I',,!>'" j:i:it;l,11,' --1 j:lL ndt.. 34 day of 37 . ;,1'\ . ,J) ~ 19' . MY COMM'SSlml EXPIRES , 38:1 ACKNOWLEDGE HECEtPT OF niE SHERIFFS REn ,r;N SIGtlATURE 1 ___.of'.~UTHORllED ISSUING AU1HOl11TY AND T"! '. :--l'l1l..h'"';""VI"1 I F c,n 1~"'1 ~' AlICHn.;: TERRY J. ROSENBERRY and BEVERLY ROSENBERRY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-2617 CIVIL ACTION - LAW JURY TRIAL DEMANDED Plaintiffs v. STEVEN D. GRASLEY, Defendant NOTICE TO: Terry J. Rosenberry and Beverly Rosenberry c/o Edward E. Knauss, IV, Esquire Metzger, Wickersham, Knauss & Erb, P.C. 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 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. THOMAS, THOMAS & HAFER, LLP c_~r~~ C. Kent Price, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 255-7632 ATTORNEYS FOR DEFENDANT DATED: bj/bI9C>J 5. Denied in accordance with PaRC.P. 1029(e). 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). 9. Denied in accordance with Pa.R.C.P. 1029(e). 10. Denied in accordance with Pa.R.C.P. 1029(e). 11. Denied in accordance with Pa.R.C.P. 1029(e). 12. Denied in accordance with Pa.R.C.P. 1029(e). 13. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, it is specifically denied that Defendant Steven D. Grasley was intoxicated and operating his vehicle under the influence of alcoholic beverages at the time of the subject accident. By way of further answer, the allegations are denied in accordance with Pa.R.C.P. 1029(e). COUNT I Terrv J. Rosenberrv v. Steven D. Graslev 14. The answers set forth above in Paragraphs 1 through 13 are incorporated hefein by reference. 15. Denied. The allegations are conclusions of law and/or fact to which no answer is required. To the extent that an answer may be required, it is specifically denied that Defendant Steven D. Grasley caused or contributed to causing the subject accident and the alleged injuries to Plaintiff Terry J. Rosenbefry by any negligent or careless act or omission. By way of further answer, the allegations contained in Paragraph 15 and subparagfaphs (a) through (i) thereof are denied in accordance with Pa.R.C.P. 1029(e). ~ r" _"1' t'. l~; I.!.. i '..J',' ,',' r-:-\ c: " t. ,':'-, <, , ':-.. .. <.-,~, l.. ~ ~ ~ ~ S ... ... ci 0: .. ~ ~ 0 '" m E ... ~ m ~ E c z m 0 ~ ~ a: " .,' .. 0 a: ~ f X .. ::> :. 0 .. ~ '" 0 " ii .. ~ z '" I:l '" . 0 . E ... Q ~ I .I , TERRY J. ROSENBERRY and BEVERLY ROSENBERRY. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PA Plaintiffs, NO. 99-2617 v. CIVIL ACTION - LAW STEVEN D. GRASLEY. JURY TRIAL DEMANDED Dcfcndant. ~EeI,Y QV,Xl<AINHEES TQ NF$ MATTER OF DEFENDANT 21. Dcnicd, 22. Ocnicd. 23. Ocnicd. 24, Ocnicd, 25. Ocnied. 26. Ocnicd . WHEREFORE. Plaintiffs demand jud~mcnt in their favor with COS1S, MFf/,CiFR. WICKERSHAM. KNAUSS & ERB. P.C. Bv: , . ...... - . ....-. .. ..._----_.~------_.._. Edward F, Knauss. IV. Esquire 3211 Notth Flonl Sllccl 1'0 Box 5.~(){) lI:uli,hlll!!. 1''\ I7llOm{)() ^,"'"1C\" lor I'lainlifls. Tcrry J. !{oscnhcrry ;md Bcn'lly I{oscnhcrry D:llc: