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Home My WebLink About99-02759 \ \ \ \ ) i , ,. (,: ,,; ~l ....... "" , " \c) ! '='i ~: , , , , I:)o.j ~l , . ; ~I 1 - 7 ,S 14 15 - 16 17 - 19 20 2l 166 2l 166 167 - 178 179 180 182 183 184 185 Cumberland County Prothonotary's Office Civil Case Inquiry 1999-02759 SMITI1 MdCE ~;T AI. (vs) KAUFMAN MICI1AEL Page PYS510 HofcrcncQ No..: Case 'l'ypo.. . . .: COMPl.AIN'I' Judgment...,.,:' ,00 Judge Assigned: Disposed Desc, : ------------ Case Comments ------------- Filed..,...., : Time".",.,. : Execution Date Jury Trial"" Disposed Date, Higher Crt 1,: Higher Crt 2,: 5/07/1999 3:08 0/00/0000 0/00/0000 1513 MDA2000 ...*****************************************************************.**********~ General Index Attorney Info SMI TH ALICE PLAIm'IFF LUTZ DAVID L 5550 SmTH DRIVE MECHANICSBURG PA 17055 SMITH JOHN SR PLAINTIFF LUTZ DAVID I. 5550 SMITH DRIVE MECHANICSBURG PA 17055 KAUFMAN MICHAEL DEFENDANT 5665 HILLSIDE LANE MECI1ANICSBURG PI'. 17055 .,'.***'..*."...,."'*'*..*......"..."...*...,.""*************************** . Date Entries · .-.-*..-...-.*...-.--..---.*.-.-.-.*.-..-....-...".-....,............,..,...... ------.------- FIRST ENTRY - - - - - - - - - - - - - - 5/07/1999 511211999 COMPLAINT - CIVIL ACTION ------------------------------------------------------------------- SHERIFF'S RETURN FILED Litiqant.: KAUFMAN MICHAEL SERVED : 5/11/99 MECHBG PA Costs" .,: $34.06 Pd By: ANGINO & ROVNER 05/12/1999 ------------------------------------------------------------------- DEFENDANT'S ANSWER TO PLAINTIFFS' COMPLAINT 5/28/1999 1 II 0/2000 2/25/2000 3/14/2000 ----------,--------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR TRIAL BY DAVID I. LUTZ ESQ ------------------------------------------------------------------- ORDER - IN RE PRETRIAL CONFERENCE - BY THE COURT GEORGE E HOFFER PJ ------------------------------------------------------------------- VERDICT - JURY SELECTED 3/13/00 DO YOU FIND THAT DEFENDANT WAS NEGLIGENT - YES WAS DEFENDANT'S NEGLIGENCE A SUBSTANTIAL FACTOR IN BRINGING ABOUT HARM TO PLAINTIFF - NO --------------------------------------------------_.~--------------- 3/20/2000 ORDER OF COlJR1' - DATED 3/16/00 - BY EDGAR B BAYLEY J COPIES MAILED 3/20/00 ------------------------------------------------------------------- 5/23/2000 TRANSCRIPT LODGED ------------------------------------------------------------------- 5/30/2000 TRANSCRIPT FILED ------------------------------------------------------------------- 7/14/2000 ORDER OF COURT AND OPINION - DATED 7/13/00 -IN RE MOTION OF PLFFS POST-TRIAL RELIEF - GRANTED - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 7/17/00 ------------------------------------------------------------------- 7/25/2000 ~~~~~~~~_~~~_~~~~~~~_~~~~_~~~_~~:~~_~~_~~~:~_~_~~:~_~~9____________ 8115/2000 NOTICE 01' APPEAl, TO 'I'IlE SUPERIOR COUHT OF PENNSYLVANIA ------.------------------------------------------------------------- 8/22/2000 SUPEIHOH COUllT OF PA NOTICE OF APPEAl, DOCKETING TO ~ 1513 MDA 2000 MiscellaneouS ila[ieis - - - - - - .. - - - LAST ENTHY .. - - - - - - - - - - - - - ....................**........................**..*..........*.....*.***.......~ ._ E~r:row Information .. . F,'"'' ~ Debits fl"Q flal Pvmts/Adi End nal . ...........*..*....~.~.*........t.*.....*l.*....{....~.......................... COMI'I,AINT T,\X ON CMPLT SET1'L~:MEN'r JCI' FEI' APPEAL 35,00 .50 5,00 5.00 30,00 35,00 ,50 5.00 5,00 30.00 .00 ,00 ,00 .00 ,00 '~ , 'f ~l' 'oj,. -I ~-"f' I ' . ';",',~'~~;~. ';',:"" ' b,.-;ij.tl" i \~,. <, I PYS510 Cumberland County Prothonotary's Office r-, Civil Case Inquiry ("'"':; 1999'-02759 SMI'rH ALICE ET AL (vs) KAUFMAN IHCHAEL Page 1 Reference No,.: Case Type.." ,: COMPLAINT ,Judgment. . , . . . : ,00 ,Judge Assigned: DIsposed Desc,: ------------ Case Comments -------______ Filed. . . . . . . . : Time.... .....: Execution Date Jury Trial, . , . Disposed Date, Higher Crt 1,: Higher Crt 2,: 5/07/1999 3:08 0/00/0000 0/00/0000 1513 MDA2000 t*****_***_.*_***_****_**_*********__**_*_*******************************~****.* General Index Attorney Info SMITH ALICE PLAINTIFF LUTZ DAVID L 5550 SMITH DRIVE MECHANICSBURG PA 17055 SMITH JOHN SR PLAINTIFF LUTZ DAVID L 5550 SMITH DRIVE M[';CHANICSBURG PA 17055 KAUFMAN MICHAEL DEFENDANT 5665 HILLSIDE LANE MECHANICSBURG PA 17055 t*******************,**,,********,*,**************,**,************************** · Date Entries * ****'*********'*****'**********'**'****'******"'**"********************,******* - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - _ _ _ 5/07/1999 ~~~~~~~~!-=-~~~~~_~~~~~~___l~_]________,____________________________ 5/12/1999 SHERIFF'S RETURN FILED Litiqant,: KAUFMAN MICHAEL SERVED : 5/11/99 MECHBG PA ~~~ ~~::::: -~ ~~: ~~ -~~ - ~~:- ~~~~~~- ~- ~~~~~~ -. ~~~ !~~!~ ~~ - _?t_ _ ___ __ _ __ ___ I?~~~~I?~~: ~ ~ - ~~~~~~ _!~ _ ~~~~~!~ ~~~ ~ _ ~~~~~~:~: _ _I}::_ J;J _ _ _ _ _ _ _ _ _ _ _ _ _ _.._ ~~~~~:~~-~~~-~~~!:~~-~~~~-~~~_!~:~~_~~_I?~~:I?_~_~~!~_~~9-J-~-----t~-I& ORDER - IN RE PRETRIAL CONFERENCE - BY THE COURT GEORGE E HOFFER 1>J -------------------------------------..----------------------------- VERDICT - JURY SELECTED 3/13/00 DO YOU FIND THAT DEFENDANT WAS NEGLIGENT - YES WAS DEFENDANT'S NEGLIGENCE A SUBSTANTIAL FACTOR IN BRINGING ABOUT ~~~~ -!~ - ~~~:~!~~~ -=- ~~ --- _ J]:~ i1~_ _ _ _ _ _ _ _ _ _ _ _n __ _ _ ____ ______ __ _u_ 3/20/2000 ORDER OF COURT - DATED 3/16/00 - BY EDGAR B BAYLEY J ~~~~~~-~~~~~I?-~~~~~~~___c20__,______________________________________ TRANSCRIPT LODGED , , TRANscRIPT-FILED..-----~1---it,~---------------------------------- ----------------------.--------------------------------------------- ORDER OF COURT AND OPINION" DATED 7/I3/00 -IN RE MOTION OF PLFFS POST--TRIAL RELIEF - GRANTED - BY THE COURT EDGAR B BAYLEY J COPIES ~~~ ~~I? _: ~.l: ~ ~~.. _ JI.'-1..-_ J ]S',n _ n _ _ __ _ _ __ _ _ _ _ _ n_ _ _ n_ __ _ n_ _ _.. _ _ __ __ PRAECIPE FOR LISTING CASE FOR TRIAL BY DAVID L LUTZ ESQ L7~ --------------------------------------_.~----------------- -~-,----- NOTICE OF APPEAL TO THE SUPERIOR COURT OF PENNSYLVANIA 16r\- Jk.2 ----.-------------------------------------.-----__________ ~___J____ 8/22/2000 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 1513 MDA 2000 .. - - - - - - - .. - - - - - LAST ENTRY .. 1'8'3 - ; (jJ - - - - - - - ..... "** ~ * .... *,rr/* * ** ~.*,~.* *,* ~* *tr.. ~:*..::.~ *..... ** * *** * * ** ** * ~ ** *........,. III 'Ir Jr.. '#I' 'I'I'W'III'***** * * ***.*.. * lYJl5tel 411 ~(t.h ",lf1r i./'., Escrow Informatlon * · Fe(>s & debi ts I Il(>Q B<1] Pvmts/Adi End Bal * ********************************'********l******l*******..*..*...*.....*.....*** 5/28/I999 ]/1 0/2000 2/25/2000 3/14/2000 5/23/2000 5/30/2000 7/14/2000 7/25/2000 8/15/2000 COMPLA]NT 35,00 35,00 ,00 TAX ON CMPLT .50 .50 ,00 SE'I'TLEMEN'r 5,00 5.00 ,00 .lel' FEE 5,00 5,00 .00 APPEAL 30.00 30,00 ,00 , . ,,', .'." , ,",' ',' ," .,' . ""., '.' . ., ' '-', " > : '. (' I '.. , : .;-... " . "" , .J ( " , , ( , JJ 1- ~.. ,) .. (.) 'I ~ .. '- . STEPHEN L. BANKO, JR., ESQUIRE Pa, Supreme Court I, D. No. 41727 MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 3510 Trindle Road Camp Hill, PA 17011 Telephone, (717) 975-8114 Attorney for Defendant FAX: (717) 975-8124 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ALICE and JOHN SMITH, SR" Plaintiffs v. NO, 99-2759 CIVIL MICHAEL KAUFMAN, Defendant ,JURY TRIAL DEMANDED ~TrFrCATION OF DISCONTINUANCE TO THE PROTHONOTARY: In accordance with Pennsylvania Rule of Appellate Procedure 1973(b), the undersigned attorney for Appellant hereby certifies that all pending appeals in this action have been discontinued in accordance with the Praecipe for Discontinuance, a copy of which is attached hereto as Exhibit "'1\ 1/ No , Date: September {' , 2000 By: Jr, 41727 H~~~i3tu~~, ~~ ~7108-U932 3510 Trindle Road Camp Hill, PA 17011 (717) 975-81H (717) 975-8124 FAX Counsel for Defendant ,/ " I , t , ' , , i! , ~. . " \ , ,:, ", " ,': ': ..' " :. '" ',_ i . " , ,:, ,,:", '" ,'... , , , - Exhibit A STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I. D. No. 41727 MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 975-8114 FAX: (717) 975-8124 Attorney for Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA MIDDLE DISTRICT ALICE and JOHN SMITH, SR., Appellee No. 1513 MDA 2000 v. MICHAEL KAUFMAN, Appellant PROOF OF SERVICE The undersigned hereby certifies that I am serving a copy of the Praecipe to Discontinue Appeal upon the persons and in the manner indicated below: Service bv first class mail: David L. Lutz, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 (Attorney for Appellees/Plaintiff) Curt Long, prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 / Date: september~ ,2000 MARGOLIS EDELSTEIN Jr. 41727 P. O. Box 932 Harrisburg, PA 17108-0932 3510 Trindle Road Camp Hill, PA 17011 (717) 975-8114 (717) 975-8124 FAX Counsel for Appellant .; .<:, ':, ," :,' '1 . . '.: .'. ,.:~ ,:" ,.:" I, "',' \ ,I", ~ '" :~~t:;~~~:~':'~j:~~!~>~~:': >~~:.~:~~:~;:-~f~;~' ',<:'~ '~' :'.,,:' l~ ,.,,: .:' , :1:, '.~' '~,\ ''>.' " \.',::.,::- :', ..' ,,~ ,.:.'? ':> J . '.: ~" '::, I '" ~ ',r . i ) ! ..-.... . CERTIFICATE OF SERVICE I, Mary T. Geraets, an employee of the law finn of Angino & Rovner, P,C., do hereby certify that I am this day serving a true and con'eet copy of the PRAECIPE upon defense counsel via postage prepaid first class United States mail addressed as follows: Stephen L. Banko, Esquire 101 Pine Street P.O. Box 932 Harrisburg, PA 17011-0932 Attorney for Defendant " Dated:CS/~~ -\5J 10\91 R I'JJLl. \MTG II , 1 - 7 ,S 14 20 21 - 166 21 - 166 167 - 178 179 182 184 185 -, ., PYS510 Cumberland County Prothonotary's Office Civil Case Inqui~y 1999-02759 SMI'l'H ALICE ET AL (vs) KAUFMAN MICHAEL Page Ilcf"~ence No..: CilSl~ 'I'ypc.....: COMPLAJN'r Judgment. .....:. .00 .1I!dge Ass igned, Il I.sposed Ilesc.: ------------ Case Comments ------_______ FUed........ : 'rime. . . . . . . .. : Execution Date .Jury 'l'rial. ... Disposed Date. Higher Crt 1.: Higher Crt 2.: 5/07/1999 3:08 0/00/0000 0/00/0000 1513 MDA2000 k*******************************************************._.._._...*._._._*.._._* General Index Attorney Info SI~ITH ALICE PLAINTIFF LUTZ DAVID L 5550 SMITH DRIVE MECHANICSBUIlG PA 17055 SMITH JOHN SR 5550 SMITH DRIVE MECHANICSBURG PA 17055 KAUFMAN MICHAEL 5665 HILLSIDE LANE MECHANICSBURG PA 17055 PLAINTIFF LUTZ DAVID L DEFENDAN~' ******************************************************************************** * Da te Entr ies * *--.-.-.--....-**--.-----.-*--*----.-*-.-.-.--.-..-.-.--.*.**-*.--..--.-...-..,-. 5/07/1999 C,/I211999 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - COMPLAINT - CIVIL ACTION ------------------------------------------------------------------- SHERIFF'S RETURN FILED Litiqant.: KAUFMAN MICHAEL SERVED : 5/11/99 MECHBG PA Costs....: $34.06 Pd By: ANGINO & ROVNER 05/12/1999 -------------------------------------------------------------------- ~/28/1999 DEFENDANT'S ANSWER TO PLAINTIFFS' COHPLAINT ------------------------------------------------------------------- 1/10/2000 PRAECIPE FOR LISTING CASE FOR TRIAL BY DAVID L LUTZ ESQ --------------------------------------------.----------------------- 2/25/2000 ORDER - IN RE PRETRIAL CONFERENCE - BY THE COURT GEORGE E HOFFER PJ ------------------------------------------------------------------- 3/14/2000 VERDICT - JURY SELECTED 3/13/00 DO YOU FIND THAT DEFENDANT WAS NEGLIGENT - YES WAS DEFENDANT'S NEGLIGENCE A SUBSTANTIAL FACTOR IN BRINGING ABOUT HARM '1'0 PLAIN'l'IFF - NO ----------------------------------------------------------,--------- 3/20/2000 ORDER OF COURT - DATED 3/16/00 - BY EDGAR B BAYLEY J COPIES MAILED 3/20/00 ------------------------------------------------------------------- 5/23/2000 TRANSCRIPT LODGED -----------------------------------.-------------------------------- 5/30/2000 TRANSCRIPT FILED -------------------------------------~----------------------------- 7/14/2000 ORDER OF COURT AND OPINION - DATED 7/13/00 -IN RE MOTION OF PLFFS POST-TRIAL RELIEF - GRANTED - BY THE COURT EDGAR B BAYLEY J COPIES MAL LED 7 It 7 /00 ------------------------------------------------------------------- PHAECIPE FOR I.ISTING CASE FOH TRI/\!. BY DAVID L LUTZ ESQ -------------------------------------------------------------------- NOTle!; OF APPEAL TO TilE SUPER lOll COURT OF PENNSYLVANIA ------..----------.-------------------.------------------------------- 8/22/2000 SUI'EIlIOTl COURT OF I'A NOT1CE OF APPEAl. DOCKETING TO # 1513 MDA 2000 . - - - ~ - - - - - - - - - - LAST !;NTIlY - - - - _ _ _ _ _ _ _ _ _ _ MlSC'ellancou:; Papcm ,...,....."..".......,..,....,.,.,...,................,.,..................... ' Escrow Informat i on ... . F",,~ & DebiU; Bee) Ba1 Pvmls/Adi End l1al , -.......'..'..........-..,......,."...'.l......t............................... 7/25/2000 Il/J5/2000 COMPLAINT TAX ON CMI'J.T S~;TTLEMENT JCP FE~; APPEAl. 35.00 .50 5.00 5.00 30.00 35.00 .~O 5.00 5.00 30.00 .00 .00 .00 .00 .00 '" ., :.;Y'. \.". -, :" ',' " ..' . " '. "J:,".:.' " .', ,'. . ~ " , .". '!"" ;1 '. ; ". PYS510 cumb.e..r1and County Prothonotary' ;~......Off Ice . CivIl Case InquIry 1999-02759 SMITH ALICE ET AL (vs) KAUFMAN MIQIAEL Page 2 Heference No..: Case Type. ....: COMPLAINT Judgment......: .00 .Judge AssIgned: DIsposed Desc.: .~~------- Case Co~nenLs ------------- 75.50 75.50 FIled.. .... .. : TIme......... : ExecutIon Date Jury TrIal.... DIsposed Date. II igher Crt 1.: IHgher Crt 2.: ------------ .00 5/07/1999 3:08 0/00/0000 0/00/0000 1513 MDA2000 ***************************************************i***************.****.*.***** * End of Case Information * ******************************************************************************.* -- ~1 1"""'\ r"\ Commonwealth of Pennsylvania COllnty o~. Cumherland \ s" I. CUrtis R. Long , Prothonotary of the Court of Common Picas in and for said County. do herehy certify that the foregoing is a full. true and correct copy of the whole record of the l'asc tlll:rcin stated. wherein AlirP ~;th RM .lnhn ~ith ~r Plaintiff. aod Michae1 Kaufman 10 TESTIMONY WHEREOF. I have this 77M Defendant _. as the same remains of record hefore the said Court at No, 1999-27'i9 of ~ivil Term. A,I), 19_, hereunto set my hand and affixed the seal of said Court day of A D.. ry .I I. ' CW"<'l;cge-E--.Jjoffer President .Iudge of the Ninth .Iudieial District. composcd of thc County of Cumhel'laod. do ecrtify that Curtis R. Long . hy whom the annexed TeeOl'd. certificate and attestation were made and given. and who, in his own proper handwriting. thereunto subscribed his name and affixl'd the seal of the Court nfCommon Picas of said County. was. at the time of so doing. and now is Prothonotary in and for said County of OWf'hp,rlr:uvi in the Commonwealth of I)cnnsylvania. duly commissioned and qualified to all of whose acts as such full faith and credit an.~ and ought to he given as well in Courts ofjudica .' s cIs 'I ere. and tllat the said record. (,'crtificatc and attestation afl' in due form of law and m;1 y fieer. A Pn."lllcnl.lud!!!.: Commonwealth of Pl'IlIH.yl\'i111ia County of ('umherland I ss: 1. Q.gj;;~-.P~toog. , Prothonotar\' of the Court of Common Picas in and for thC' ,aid ("ounty, do l'l'rtity that thC' Honnrahlc _~~ E. llo(fer hy whom till' foregoing attestation was madC'. and who has thereunto suhscrihrd his namC', was, al the time of makinp. thl.'l'eof. and still is Pn:...idcnt .Iudp.l.' ofthc COlln of Common Plc"ls. Orphan' Court and Court of QU~lrtl'r Sc.....ioll... of the Pl';!l:C in ~lnd lor said County, duly Comrni......ioncd and qualified: to all whose act... ~l'" ..uch tull f~lilh and ('H.-oil arc and ought 10 he gin'n. ii' well in Courts of judicature as elsewhere. 1\IFS11\IO\Y WIIIRIOI'.II!:l\l' helcunln o,l'l 111\' hand and atfi\\.'d till' 'l';lI (II ..aid Coml till" ~~~~~_(J~JK'~I~~~_~~O / !'fOI""'h"""I.'" I I ~. c I c & ~ . o. o. 0 '6 Q V o. 0 E E 0 cc .c ~ Q u " 0 l- I- V 0': ;.l cc ~ Q ::> ~ ;.l ~ u r;: VI ::> - '0 ,.; ~ Co i.i: - "" '0 ;.l " X .. ;.l '0 u E .E E ~ ~ " 0 0 " ~ c u 0 0 Z Z u: 0 ~ U U.l '- '-' ......' ANGINO&ROVNER, p.e. . 4503 NORTH I'RONrllTREET . . i<AR,RISBUR,G, PI\I1I.'O . .' (m) 23U19' . - , " '..,' ":, ::':'..,': "', ..':' ',/ ~',." '" ",...",.."..' "" ',;".., ',.', ,::', ,,:",' :, """,' , ~ ", " ' . ' ~ ,f ALICE and JOHN SMITH, SR., Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 'N. .27.F9 ~ T~ JURY TRIAL DEMANDED vs. MICHAEL KAUFMAN, Defendant COMPLAINT 1. Plaintiffs Alice and John Smith, Sr., husband and wife, are adult individuals who reside at 5550 Smith Drive, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant Michael Kaufman is an adult individual who resides at 5665 Hillside Lane, Mechanicsburg, Cumberland County, Pennsylvania. 3. The facts and occurrences hereinafter related took place on or about April 25, 1998 at approximately 1:30 p.m. on Lamb's Gap Road, at the intersection of Lamb's Gap Road and Locust Lane, Mechanicsburg, Cumberland County, Pennsylvania. 4. At that time and place, Plaintiff Alice Smith was operating her motor vehicle, a 1995 Ford Aerostar, in a northern direction on Lamb's Gap Road. 5. At the same time, Defendant Michael Kaufman was operating a 1990 Ford Bronco in a southern directi.on on Lamb's Gap Road. 6. Defenddnt Michael Kaufman, while attempting to make a left turn onto Locust Lane, left his lane of travel, turned in front of Mrs. Smith's vehicle, causing an accident. 1 ~ ") '--~) , , :: ',',' , . , : '.,:. '1 , ", ", . ","',~ . .' . ,;.:, ' . :', .. '. _" . , . , . VERIFICATION We, Alice Smith and John Smith, Sr., Plaintiffs, have read the foregoing document and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of our knowledge, information and belief. We understand that this Verification is made subject to the penalties of J.8 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. WITNESS: ~7~ ;{ 9- 9'1 Il/~ II. ~}zdi Alice Smith IlJcuul ;{ 9 - 9 9 ojL fA} Afr-.i.6L. ~hn Smith, Sr. Dated: 2722/MLS 7 , . ~:, . ,.\., :' J. " ..' 'J"" \ I, ',' ~ . ~ ,; - , ,", ", . . ': '.' .... ~ ' . .'. " , \ >- co '1" >- ~:~~ c ~:;: LJJ~-. C': ,--J" (:; '''1' (:" .".~ '. r-'~l C~ 'f f " " .:.1 r-~') : r-. '). t.'.I , I . i~J , . ., f:. , ~,j 1.1 ."';.- . .~ -. {.5 m ~,) l,) '. 0 ~ ""I \" ~I~~ ~ ~ ~ C\~ - ~ ~ .r-t. ~ .~ 'f0 "'- rim \X:>'"\) "'') '" -i ~@)~ , ' , , ' . . " . . ' ,..;, .', ~HfRIFF'S RETURN - REGULARr~ CASE NO: 1999-02759 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SMITH ALICE ET AL VS. KAUFMAN MICHAEl, HAROLD WEARY , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE AND COMPLAINT was served upon KAUFMAN defendant, at 1999 at 5665 1:1ECHANICSBURG, MICHAEL 18: 50 HOURS, HILLSIDE LANE PA 17055 the on the 11th day of May ,CUMBERLAND , ',' ." ." ", '. . . . ~ '.. ': - ..", .... :" : - " " .", . " I ,- .' , County, Pennsylvania, by handing to MICHAEL KAUFMAN a true and attested copy of the NOTICE AND COMPLAINT and at the same time directing His attention to the conteEts thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So a:swe~~ ~~ K. ~s Kllne, ~f 18.00 3.06 .00 8.00 $..H.Ub ANGINO & ROVNER 05/12/1999 by >iv<.;.trL! .i~t~ lJepucy er _ Sworn and subscribed to before me this /:; ~ day o~ 19 11 A.D. ~J.~y~ ~ . """' ,-""" STEPHEN L. BANKO, JR., ESQUIRE PA supreme Court I.D. No. 41727 BADOWSKI, BANKO, KROLL, KRONTHAL and BAKER A Professional Corporation 101 Pine Street Post Office Box 932 Harrisburg, Pennsylvania 17108-0932 Telephone: (717) 236-3200 Facsiml1e: (717) 236-6863 Counsel for Defendant, Michael Kauffman v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-2759 CIVIL ALICE and JOHN SMITH, SR., Plaintiffs MICHAEL KAUFMAN, Defendant JURY TRIAL DEMANDED DEFENDANT'S ANSWER TO PLAINTIFFS' COMPLAI~ 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and, therefore, they are denied. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied. 7. (a) .. (fl. Denied. The allegations contained in this paragraph state a legal conclusion to which no response is necessary. By way of further answer, with respect to any allegation that Plaintiffs sustained injuries as a result of the motor vehicle which occurred at the time and place stated, after Cf ",...., r-- .1 I i i 'I I I I I I ! I I I i , , I reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of said averments and, therefore, they are denied. CLArM I Alice Smith V. Michael ~aufman 8. The answers contained in paragraphs 1 _ 7 hereof are incorporated herein by reference as if set forth in their entirety. 9. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph and, therefore, they are denied. 10. Denied. The answer contained in paragraph 9 hereof is incorporated herein by reference as if set forth in its entirety. 11. Denied. The answer contained in paragraph 9 hereof is incorporated herein by reference as if set forth in its entirety. 12. Denied. The answer contained .in paragraph 9 hereof is incorporated herein by reference as if set forth in its entirety. 13. Denied. The answer contained in paragraph 9 hereof is incorporated herein by reference as if set forth in its entirety. 14. Denied. The answer contained in paragraph 9 hereof is incorporated herein by reference as if set forth in its entirety. -2- IV 1""'1. r.-o. VERIFICATION I, Michael Kaufman, depose and say, subject to the penalties of 18 Pa.C.S.A., Section 4904, relating to unsworn falsification to authorities, that the facts set forth in the foregoing ANSWER TO PLAINTIFFS' COMPLAINT are true and correct to the best of my knowledge, information and belief. s:(.y'99 Date ~':~A:{/~A~~ , i , . i < . I I I l I 4353-1 I;) . . .' , ': ", ,: ~.. .' ," . 1 .' . '. ~ " . .: .. ,""'. . . ;' ""," '.." >- en ~ cr; c .., ~ ~- :;:>~ lJ.~~:? ..:z 1)2: ~;.2 (~; - :3<1: ~ I..l.. '~f" "- :>. ,1,):;., qg 11.--0' 0 :"ii- C~~;. - "'- L'~: . . }j~ , :::!:. [1:.1;.:." """ ;J i'" -, ~ L'", c:> :::> 0 0 <J '- . '. " :' ,'".' .I":':,~ ' <" '," ,; :'. ::);; ~:,: ',::::0i:.l;:;::~~~'!.:, ':':::;.4::':'~;~:;':r::~~',;,'! ~., "<'~"::: ;~':::".,r:"o ~::~::r~: ,,'::::;:,: '::\,,':'':,';,T<:: ': " ': '. . ~, ~ """'" r- ALICE AND JOHN SMITH, SR., PLAINTIFFS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNW, PENNSYLVANIA : CIVIL ACTION-LAW V. MICHAEL KAUFMAN, DEFENDANT : 99-2759 CIVIL TERM VERDICT QUESTION 1: Do you find that defendant was negligent? YES X NO Defendant has admitted negligence so you answer this question "Yes." QUESTION 2: Was defendant's negligence a substantial factor in bringing about harm to plaintiff? YES NO X If you answer Question 2 "No," plaintiff cannot recover and you should not answer any further questions and should return to the courtroom. QUESTION 3: If you answered Questions 1 and 2 "Yes," state the total amount of damages, if any, that you find plaintiff Alice Smith sustained as a result of defendant's 1'.811sal negligence. TOTAL $ II I I ,:">:: f :"" :, ;1', "'" "'~." ':'~ .~' ~ \" .: "" :: >;,'~: :,;,_~,:: ~;: .\;~~,;,,: ;:,:;~:'tr ,:\~'J''''~r\;'':;'~: ~,)<.:~, ':/,' ""~,",: '.,: '..: I ,:: / "~"':: ':~j' \ ",~".'~,\":: / .:" ,,::' ,,\~ ,~;q,,o :;~, ,~':".~. ':,':.:,.. .:. , '-, . ("',t: 7, f:','FrJ..r.,..,... .... .":","i,::',::CF ., '''') 0'( '" \: lMl" ti /.l':Jf) .... [ "11 ,:0 F' CI.i."'ei.', ri I: 02 "v::-i"v~f. 1" _, '"I.:i\\VS}fl)-'CUI\"', 1u\f!Ii,'I rwi'E:: )/ J~ J~Q . I' axnm<rol 8 -Z rCJ.q'(-.:rr.r:v CIVIL CASE~9 ~ qtp~-€ 1., ~!1v-m -', .12- D- 2-- ~ 1~1'-;()1 id"" ') - / f Lf ~ (;J. 'S}YOOr- ' << w m Fr!.IA)\\\ 1/0 D Ii- lAir Y 4.11 at e 5.11 7~ 0ec?^") --r ,) (/oJ 6.11 ~ Abv-Iml\) C. PJ/~) 7.11 109 Ll.d'," M ::J.p,.:J&J"'J . fu') ~ 'IIMJe Km~1~~ 8.1I~. -W ~2... . "?l" tno, d::E D-I · :~;;1:~~. ~~?\ . C]-a.. :Ed~fN 111, (J.)(J~ 12.11 ..~_~ ~) n.' /;)7 dJ. S ~il.A "., ~fl1a _<I. 1'/ A '2./1 ___ '1.11__ '4.11,__, '1."i.H _._.._~ b./1 _. I.' _______ .- (:Jt<.::h ,l)c.c..t d~. ,.J... ",~,} ", ',,,' 'J: ,. ;rt~,:~.;:...; '." ,; <, '-, ':I'~ /~ ,-:,r: ~:r,'/: +u;~v!,':,\2; ',;~ '~L ,.'.') , ;~.~"fr~~ ~~:~,.:,~~,~';\~';,::~ ~ '/I.' (;,;'"",",? " ,.': t" ".": ':':."":'1::~~.:>' ':,' , :,'/ ~:: .::. '.':'1' , ):.; !,.' > ;"" , , ,-'" ALICE and JOHN SMITH, SR.,: Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MICHAEL KAUFMAN, Defendant 99-2759 CIVIL TERM IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings were held before the HONORABLE EDGAR B. BAYLEY, JR., J., Cumberland County Courthouse, Carlisle, Pennsylvania, Courtroom Number Two, March 13, 2000. APPEARANCES: DAVID L. LUTZ, Esquire For the Plaintiffs STEPHEN L. BANKO, Esquire For the Defendant J\ 1.....' ~ I". 'i ,-, f"",\ INDEX TO EXHIBITS IDENTIFIED ADMITTED FOR THE PLAINTIFFS -- 1 _ PhotOgraph 45 2 _ PhotOgraph 45 3 _ PhotOgraph 49 4 _ PhotOgraph 49 5 _ PhotOgraph 49 6 _ PhotOgraph 49 7 _ PhotOgraph 49 8 _ PhotOgraph 49 9 _ PhotOgraph 49 10 _ Photograph 49 11 _ Photograph 49 12 _ PhotOgraph 49 13 _ RadiolOgical Report 5/11/98 83 141' _ RadiolOgical Report 11/17/98 88 14B _ RadiolOgical Report 11/17/98 88 15 _ Dr. Davis'S Deposition Transcript 13 121 121 121 121 121 121 121 121 121 121 121 121 121 121 121 121 IDENTIFIED ADMITTED FOR ~J" DEFENDAN~ 1 _ Answer to Interrogatories 68 2 _ PhotocoPY of Alice smith'S Diary 64 3 _ Deposition Tran. Of Dr. Bowerman 119 4 _ Video Deposition of Dr. Bowerman 119 5 _ Deposition Transcript of A. smith 72 6 _ Discharge summarY of Physical Th. 111 121 121 121 121 121 121 'j .- ~, 1 MR. LUTZ: Yes, Your Honor. 2 MR. BANKO: Yes, Your Honor. 3 THE COURT: For those 12 standing, you will be the 4 jurors in this case, and if you would raise your right hands 5 you will be sworn in. 6 (Whereupon, the jury was sworn.) 7 THE COURT: Okay. The l2 of you who were sworn 1n 8 have a seat. Remember who you are because you are going to 9 stay here. The rest of you who were not sworn in, you may 10 head back to the jury is assembly room. 11 (Whereupon, the remaining jurors exited the 12 courtroom at 1:42 p.m.) 13 THE COURT: Now, you folks may move down. There 14 are no seating arrangements as you come back and forth, and 15 you two may join your colleagues over here. 16 Folks, jurors are fact-finders. First and 17 foremost it's for you to determine the f~ct$, wh~t occurred in 18 this case, and in doing so weigh the credibility and weight of 19 all of the testimony, and then apply those facts to the law 20 that I will ultimately charge you as applicable to reach a 21 just and a fair verdict for both of these parties. 22 You are the judges of the credibility and weight 23 of the evidence, including the testimony of witnesses. And by 24 credibility of testimony Dr evidencp, J mean both its 25 truthtulness and its accuracy. , :J ,Jt{ " . " ',', . '. " ",; . ,.' ,', . .".','. ,.' ...-., r--. 1 In judging credibility and weight, you should use 2 your understanding of human nature and your common sense. You 3 should observe each witness as he or she testifies, and you 4 should be alert of anything in a witness's words, demeanor on 5 the witness stand or anything else in the evidence in the 6 case, which might help you judge both the truthfulness and the 7 accuracy of the testimony you are about to hear. 8 You should keep an open mind. You may not discuss 9 the case with anyone while you are working on it, and you may 10 not discuss the case even among yourselves, until you are in 11 the jury room deliberating. 12 And there is good reason for that rule. That is l3 the first time you will know everything you need to know about l4 this case to decide it. You will have heard the arguments in l5 openings and closing arguments of counsel. You will have 16 heard all of the evidence, and you would have heard the law 17 from me that is applicable, and then you can intelligently 18 rationally discuss the issues and the facts before you in 19 order to reach a verdict. 20 2l I j . i 1 ~ I I , I 1 22 23 24 25 As long as you are sitting on this case, you will operate out of the fifth floor. I have a jury room on the fifth floor. So when I give you a break in a little while, that is where you will take the break. So as you come back and forth, either to the courthouse or as you go back and forth on breaks, you will be out of the fifth floor and not 6 J-L(J -........ au..... ,-~ .~-:-.. 1 the jury assembly room. 2 This case will go into tomorrow. So if at the end 3 of the day, you I ve left anything in the jury assembly room, 4 you can catch it when you go out this evening. I will work 5 today until, ballpark, 4:30 a quarter of 5, in that time 6 range, And I will probably start up tomorrow -- I will 7 probably start up around 8:45. Okay. Opening? 8 (Whereupon, Mr. Lutz opened on behalf of the 9 Plai.ntiffs.) lO THE COURT: Mr. Banko. l1 (Whereupon, Mr. Banko opened on behalf of the 12 defendant.) 13 THE COURT: Folks, I take short breaks but I take l4 lots of them. Let's take 10 minutes. You can get upstairs 15 and get yourself oriented, then we will come down and take the l6 testimony. Recess for 10 minutes. 17 (Whereupon a recess was taken at 2:02 p.m.) 18 THE COURT: Have a seat. First witness. 19 I~R. LUTZ: Your Honor, my first witness is James 20 Sollenberger. 21 Whereupon, 22 JAMES L. SOLLENBERGER, 23 having been duly aworn, testified as follows: 24 25 7 l6 17 18 19 20 21 22 23 2~ 25 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 ,'-" ,....., Q Over the years have you investigated many accidents? A Yes, sir. Q Did you respond to an accident involving Alice Smith and Michael Kaufman, April 25th, 1998? Yes, sir. And was that a reportable accident? Yes, sir. Do you have your repoLt here in the courtroom I have a copy of it, sir. Okay. Just to give a few background information, what was the date of the accident? It was April 25th, 1998. 1998. And was it a Saturday? A Q A Q today? A Q A Q A Q A 1:30 p.m. Q 15 I believe so. Yes, sir. And what time of day? The accident occurred roughly 1330, which is And did you learn after responding to the accidenc scene what type of vehicle Mrs. Smith was driving? A Yes, I'm sorry. Mrs. Smith was driving the Arrowstar, Ford Arrowstar. Q And Mr. Kaufman? A Bronco, Ford Bronco .I]. q ,'-"" ,~ 1 uses a lot of nl1mber codes, and I am not completely 2 knowledgeable in every single code, so I always have my book 3 with me. I refer back to the book whenever I am not exactly 4 sure what to put into a block. 5 In block J it asks for the area of apparent 6 injury. I had marked down area 5, number 5, which is arms. 7 Q Okay. Was the ambulance at the scene or don't you 8 know? 9 A I reported that there was no one taken -- there 10 was no medical facility involved. So I am assuming that no 1l one was taken from the scene, sir. 12 13 Q All right. Thank you, Officer. A Yes, sir. 14 CROSS-EXAMINATION 15 BY MR. BANKO: l6 Q Officer Sollenberger, in the area of injury, you 17 noted arms only. 18 A Yes, sir. 19 Q Is there number codes to reflect the neck or back 20 injury? 21 A Yes. There is one for neck and also one for back, 22 sir. 23 Q Okay. And have you ever investigated an accident 24 where an ambulance was summoned and the person who was ~njured 25 was transported by ambulance to the hospital? 11 31 ---:" . ".;, '. .- ....._-"~<-::~~-~~~,.......~,7-.-~7:~~~,~..._.~-.......~~-7 ~_,o-- -. ...... , 1 A Yes, sir. 2 Q And have you ever been at an accident scene where 3 a person was making complaints of neck and back, where you 4 have put number 1 or 2 in section, block J? 5 A I'm sorry? Where I put number I or 2 at the 6 \~ rong 7 Q In block J because the person was complaining 8 about neck or back pain? 9 A I put whatever area they indicate, I mark 10 accordingly, sir. 22 23 24 25 Q Have you ever been at an accident scene, sir, 11 l2 where the person was making neck or back complaints, and the 13 EMT put them on a back board, with a neck brace and bolted 14 them down, strapped them down? 15 16 17 18 19 20 A Yes, sir. Q And in this case none of that happened, did it? A She was not transported from the scene, no, td_ r. MR. BANKO: No further questions. Thank YOll. THE COURT: Any redirect? MR. LUTZ: No, Your Honor, tlnd ] ask that h(' bp 21 excused. MR. BANKO: No objection. THE COURT: You are excu:';(\d. THE toJITNESS: Them}; you, :; 1 r . THE COURT: Next. .', ,. -) -\ ') [/, ,-'., '---. 1 MR. LUTZ: Your Honor, my next witness is the 2 reading of a deposition it's Dr. Richard Davis. 3 Your Honor, Mark Seiffert of our office will read 4 the doctor's testimony. 5 THE COURT: All right. We have marked it 6 Plaintiffs' Exhibit 15? 7 8 MR. LUTZ: Yes, Your Honor. THE COURT: Just have a seat. 9 Folks, rather than have Dr. Davis come in to 10 testify, both attorneys had him placed under oath, and they 1l took his deposition or statement back on February l6, and they 12 are going to read it into evidence, and you should consider 13 this testimony just as if the doctor was here himself 14 testifying. Do you have a copy? 16 you. 17 18 19 20 21 22 23 24 15 25 MR. SEIFERT: I have a copy Your Honor. Thank THE COURT: Are there any objections in this? MR. LUTZ: No, Your Honor. MR. BANKO: No. THE COURT: Fine. (Whereupon, the deposition was read off the record. ) THE COURT: Okay. You may step down. MR. SEIFFERT: Thank you, Your Honor. THE COURT: What's next? 13 3) . " . :" ,': '. ' '. ' . , . ' , , '. ,'~" -,,' " - ' " ' , '" " .', ",.' . ,:' ~ . . . 1 2 witness, friend, short damage witness, and then Mr. And Mrs. MR. LUTZ: We have the daughter, a short damage 3 Smith. 4 5 Gerry, would you put that blind down, and take the THE COURT: Let's do the short witnesses. Okay? 6 one in the back and put it up? 7 8 9 Levwell. MR. KAUFFMAN: (COMPLIED) MR. LUTZ: Your Honor, my next witness is Sandy 10 Whereupon, 11 SANDRA LEVWELL, 12 having been duly sworn, testified as follows: 13 DIRECT EXAMINATION l4 15 16 17 BY MR. LUTZ: Q A Q A Q A Q A Q A Please state your name. Sandra Levwell. Keep your voice up so we can all hear you. Okay? 25 the summer kitchen, which my rnothc'r and father had renovated J.1 34 1 l2 to 15 years ago and I reside there. 2 Q Can you tell us, generally speaking, where is the We are between Mechanicsburg and Enola. We are on 5 a road called Smith Drive, which is named after the family, of l3 14 15 16 3 farm? 4 A Okay. And have you lived there practically all of Practically. And you live, what, next door to your mom and dad? Yes. And I understand you have a son? Yes, he is nine. His name is Justin. Are you employed outside of the home? Not currently, no. I want to take you back before this accident. I 17 want to ask you questions about your mother's activities 6 course. 7 Q your life? A Q A Q A Q A Q l8 before the accident. 19 20 21 22 ?, ~- 24 8 9 10 11 l2 A Q A Q A Q Okay. Did you live next door? Yes. How often would you see your mother? Every day. Tell us your mom's activity level, let's just say, 25 during the six months before this accident. 15 ~< . ~ ---- 10 11 12 l3 l4 15 ~', 1 Q Okay. When your mother wasn't with your son or 2 working with the farm, what other hobbies or recreational 3 activities did she like to do outside of the farm? 4 A She liked to bowl. She likes to do things such as 5 fishing, planting flowers, weeding her flowers so they look 6 pretty, anything outside. 7 Q Bowling, is that once a year or once a month? B A Oh, no. They used to try to go every week, once 9 to twice a week. Q All right. And before this accident, would your mother play with your son? A Yes. She was quite the entertainment for him. Q And what does your dad do for a living? A My father's a truck driver. Q And generally speaking, how many hours a week, on l6 an average, is he away from home? l7 A Five days a week [rom 1:00 in the morning until 6, 18 7:00 at night. 19 Q Okay. Now, before this accident, did you ever 20 hear your mother complain of neck pain? 21 A No, not that I recall. 22 Q Did you eVer hear your mother carr-plain of spasms 23 in the neck before this accident? 24 A No. 25 Q Shoulder paln'? 17 ,,;7 ,.0' i --~, 1 A She had said something about that her head hurt, 2 and she would talk to me more when she got home. 3 Q Okay. And as you heard from the police officer, 21 She would try. It would last a few moments. She would be in 4 this all happened on a Saturday? 5 A Yes. 6 Q Do you remember what your ffiother did the rest of 7 Saturday afternoon, Saturday evening? 8 A It was either -- she was on the couch for a while, 9 and then I believe she went up to bed, and that was about it lO for the rest of the day. l1 Q How about Sunday? Do you remember anything about l2 that, the next day? l3 A As far as her trying to do anything else but use 14 the rest room or walk around the house, no. 25 Q Let's speed it up. During the months following 15 16 the accident, did you notice if your mother's activities 17 changed? 18 19 20 A Considerably, yes. Q Give us some examples? A She could no longer help out at the butcher shop. 22 pain. We would all ask her to quit, which she would be more 23 than willing to do. As far as the garden, it just -- it went 24 down very quick. Q Did you, yourself, do anything to help your , ;"".., :' ,: '., , .' ,,", :.,' '<. I", .: '_.i' ",,',. "j > ". " .' ,- 19 31 1 2 3 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 mother, physically? A As much as possible. I do try to rub her back and rub the knots out that she does get in her back, but other than that, there is not much that I can do. Q Can you show us on your own body where these knots are located? A I will try. She gets knots from the bottom of her right shoulder blade all of the way up to the back -- the bottom of her neck. The whole muscle swells up from the bottom of the shoulders up to the neck. Q Now, during the -- it's been almost two years since the accident so I am going to use two years. A Okay. Q Have you noticed a change in her ability to do her housework? A Yes. Yes, I have. She no longer does things like vacuuming. She no longer does canning. As far as the laundry, she can hang up laundry outside for a matter of minutes, but then she has to quit so therefore I have taken over all of that. Q Does your mother care for anyone else off of the property, off the farm? A Yes. She cares for my grandmother, which is her 22 23 24 mom. She used to, of course, do all cf -- my grandmother' is 2~ unable to do her vacuuming, cleaning windows and laundry and 20 14 ~, 1 things like that. So what my mother cannot do, now I do for 2 my grandmother as well as my mom and myself. 3 Q Okay. How about around the farm? Does she do 4 things with the animals? 5 A Besides walking and say hello to them, she does 6 occasionally, maybe, give some corn to my chickens or whatnot, 7 but other than that, no. 8 Q Do you folks have goats? 9 A Yes. 10 Q Are these the type of goatsk that you milk? 11 A These are dairy goats. l2 Q Does your mother do that type of work? 13 A No, she can't. Q You mentioned earlier bowling. Has your mother l5 tried to go bowling in the past two years? 16 A Oh, my gosh, no. No, she won't even try that l7 because she's -- her back and stuff is so sore. l8 Q What about your mother's relationship with your 19 son, has that changed at all? 20 A Urn, as far as her being able to play baseball with 21 him or even play soccer or basketball out in the driveway, 22 yes, none of that occurs anymore. 23 And she used to take him -- he was one that went 24 bowling with her when he was on summer vacation, that's why 25 they went so often, one 01 the reasons was to entertain him, 2] 1/ ,: ' . . \' ,: .',' " '.,' ':' " ..' :~.." .' " . ,',." ,''- , ~. " . ' . ".' :. . , . " ~, ,..--. 1 as well as have fun. But they no longer do that type of stuff 2 anymore. 3 4 life. 5 6 7 disposition? 8 Q You've obviously known your mother all of your A Yes. Q Have you noticed a change in your mother's A Yes, I have. She is usually a very pleasant 9 person. There are days, recently, where she just would sooner 10 not be with anybody or not speak to anybody than to be 11 pleasant. 12 13 l4 l5 16 17 l8 19 20 21 22 23 24 25 MR. LUTZ: Thank you. THE WITNESS: Thank you. THE COURT: Cross. MR. BANKO: No questions, Your Honor. THE COURT: ~la' am, you may step down. THE WITNESS: Thank you, sir. MR. LUTZ: Next witness? THE COURT: Uh-huh. MR. LUTZ: Judge, next witness is Albert Watts. Whereupon, ALBERT A. WATTS, having been duly sworn, testified as follows: ?') ~- '- ','J \ .. "1 ", ",. , .',~' .",' '" .:: I; '. :.: '",' "'". '.:', "':"J. ,,1',1' < '\ '. . , : ' .'~;' ;''.. ,~~~.,~ .,,,~~~-,\ ': ,:'l':j;;.,'=!7~:'J~.*f ' " ,', " " ., ',," ". ". ',1,,' ,j "",..,.(I.j.l~i""..".I"""~';,~:.;j__\\, d:, ".v"~ ,,',' , -..~ N'"")J:.,).....:.~\I,.Mr'.....\~.:..-""'. ~I" ~7' ~": '.... j" . " ", '\. .,., _..' ,",-._ ~'. ,. '. . '1' , ,. ~~ ,'. :-',.} " __,' "r'~ ..~, "'~~",,'itl ---.. 1 DIRECT EXAMINATION 2 BY MR. LUTZ: 3 4 5 6 7 Q Please state your name. A Albert A. Watts. Q Mr. Watts, where do you live? A 5550-A Smith Drive, Mechanicsburg. Q Could you tell us where your home is in 8 relationship to Mr. And Mrs. Smith's home? 10 11 12 l3 14 l5 16 17 18 19 20 21 22 23 A Q property? A Q A Q A Q County? A Q Smith? A Q All right. So you pretty much live on their Yeah. Are you retired, sir? Yes. What did you do before you retired? Construction mainly. Okay. How long have you lived in Cumberland Since 1934. All right. How long have you known Mr. and Mrs. Since the mid-sixties. Okay. Mr. Watts, did you get a chance, from your 24 home, to see l~rs. Smith on occasion, let's say during the year 25 before this accident? ~., .- ~ J. ( '-) t-, 1 2 3 4 5 6 7 8 9 10 11 12 13 l4 15 16 17 18 19 20 21 22 23 24 25 I ~ ~ ,........ A Yes, certainly. Q And what would you see her doing before this accident? A Well, she was extremely busy, trimming trees, little fruit trees, mowing the lawn, anything, flower beds. She was always busy. Q Now, you said you were in construction. Before this accident, did you do any construction-type work on their home? A Yeah, quite a bit. We built a big front porch, put siding on the house. Well, we overhauled the inside of the house. Q In any of those projects that you did, did Mrs. Smith help you? A Yes. Q And give us some examples of what she would do while helping you with these projects. A Well, believe it or not she carried block for me, mixed morter. She would hand the siding up, anything she could do. Q Now, Mr. Watts, when she would do those projects, did you notice her having any pain or limitations? A No, she had no limitation whatsoever. Q Now, were you awaro, sir, that she was involved in an accident in April of 1998? 2 .~ /1 L/ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 l8 19 20 21 22 23 24 , 25 , i ! , , ! ! ! I 1 ........, /- A Yes. Q And you've continued to live within 300 feet of their house since then? A Yes. Q In the past two years, have you noticed a change in Mrs. Smith's activity level? A Yes, drastically. Q Tell us what you've seen, sir. A Well, I have watched her mowing the lawn, she didn't know I was watching her, but she would stop every few minutes and rub her neck, rub her back, and then get back on the mower and try it again. And the flowers and trimming the trees and all, she can't do that. Q Have you seen her play with her grandson lately? A Not lately. Q All right, Her daughter mentioned the butchering shop. Have you ever done that type of work with them? A Yeah, every time they butcher, practically. Q All right. How about Mrs. Smi th now, does she do that type of work? A Very little. Q Well, let me ask you this, sir, do you believe from what you could see that Mrs. Smith still has pain? A Oh, yes, definitely. Q How do you know that? 25 Iff: 'f-/ '"' 1 still live at the present address. 2 3 4 5 6 Q So you've lived on that farm for 50 years? A That's right. THE COURT: Make that 60. MR. LUTZ: I apologize. THE COURT: I know because that's very close to my 7 birthday, and I wish it was 50. 10 8 BY MR. LUTZ: 9 Q How are you employed, sir? A I drive truck for Waste Management. Plus I have a l1 farm, small farm, and a butcher shop on the side. l2 13 14 Q How long have you been a truck driver? A Thirty-seven years. Q Tell us a little more about the butcher shop. 15 What's involved? 16 A I have a small butcher shop where I do custom l7 butchering, plus for my own family. And my wife, daughter and l8 Al Watts help out a great deal. 19 20 2l 22 Q What do you folks butcher mainly? A Urn Q Or just about everything? A Just about everything. Anything you can think of. 23 Steers, hogs, the whole works. 24 25 your farm? Q Presently, sir, how many an1mals do you have on n 1-/7 , 1 2 3 4 5 6 7 8 9 10 11 12 l3 14 l5 16 17 l8 i , 19 i , , i 20 , I i 21 I j 22 23 24 2~ , i I j , ! 'N .~ complaining of aches and pains, which was normal for an auto accident. Q All right. Now, during the first week after this accident, did your wife get back on her feet and get back to what she normally does? A No way. No way. The only thing she got back to was complaining about her aches and pains, and going to the doctor. I said, You should have went to the doctor. Well, I couldn't get to the doctor until Monday. So she went Monday. From there on it's all downhill all of the time. Q Well, you are aware your wife has been to Dr. Davis and therapy and the chiropractor. Right? A Yes, sir. Yes, sir. Q Had your wife ever been to the chiropractor before this accident? A No, sir. Q When your wife eventually did get to the chiropractor, were you supportive of that, or were you a little bit questioning of that? A Yes, she had to go scmewhere -- let me back up, here. The wife and I are people that we don't run to the doctor every time we have a little ache and pain, you know. This time it just had to be, gone to the doctor somewhere. 29 tit? r' 1 A Like any kind of raising your arms up and down, 2 using the sweeper, lawn mower, even different times I have 3 seen her driving it bothers her. 4 Now, in 1988 we had planned a cruise to Alaska. 5 We had planned to save money for several years to go on this. 6 The accident happened. Everything was paid for. We could not 7 cancel. We had to go on it. 8 She enjoyed it somewhat, but not to the fullest 9 extent. I was on the cruise three days. I got sick on the 10 cruise. I did not get off the cruise ship. She enjoyed the 11 cruise somewhat, but not like it should have been. And then 12 we came home and the things just keep going on all of the 13 time. 14 Q I just want to nail you down on some dates. The 15 accident was April of 1998. 16 A Yes, sir. 17 Q Is it your testimony that after that you both went l8 on a cruise to Alaska? 19 A Yes, sir. 20 Q And this was something you had saved for for 21 a while? 22 A Quite a few years, yes. 23 Q \~as the cruise in the surrmer of 199B? 24 II Yes, sir 1988. 25 Q 199B? 32 C') _-Lx 1 10 ........." ,.-- 1 '98. 1998. A 2 So a couple months after the accident? Q 3 Yes, a couple months after the accident. But we A 4 had saved up five years to get the money to pay for this 5 cruise, and you couldn't cancel and get your money back. 6 Okay. And your wife went on the cruise with you? Q 7 A Yes. 8 Q All right. 9 A Well, it was our 30th anniversary. Q All right. Now, let me ask you this: You've 11 known your wife for many, many years, and I asked your 12 daughter this: Did you notice a change in your wife's 13 attitude or disposition? l4 I I j I I j I I I ! i I I I i , I '1 I , & ! .1 1 1 I ! j . 15 16 17 18 19 20 21 A Yes, sir. Q And tell us, first, before you answer that, what was she like before the accident in terms of her attitude? A Happy-go-lucky. Q And now? A Don't say the wrong word or you will get cursed out. Q Let me ask you this: Before this accident, how 22 would you describe your wife's energy level? 23 A 100 percent energy. Rip and tear. Go all day 24 long. 25 Q And now? 33 i;"< ,~ ~_./ 1 Q ..- How did your wife do on the trip that you took 2 after the cruise to Vegas? 3 A 4 5 6 -, 8 9 10 11 12 To where? Q You went to Vegas? A No, Alaska. Q No after Alaska, did you go to Las Vegas? A Yes. Q How did she tolerate that trip? A About the same as she does now, aches and pains. MR. BANKO: That's all I have. Thank you. THE COURT: Sir, you may step down. MR. LUTZ: Your Honor, my next witness is 13 plaintiff, Alice Smith. 14 Whereupon, l5 ALICE K. SMITH, 16 having been duly sworn, testified as follows: 17 DIRECT EXAMINATION 18 BY MR. LUTZ: 19 20 21 Q Would you please state your full name? A Alice K. Smith. Q Maybe pull the mike up so we all can hear you, 22 just to make sure we can hear you. 23 2-1 A Like that? o That's geod. Now, Mrs. Smith, you live with your 2S husband at the f3rm? 32> .' /' ~5' ~, 1 2 3 4 5 6 7 8 9 10 11 l2 13 14 l5 16 17 18 19 20 21 22 23 2~ 25 ~'_._'. A Q A Q Right? A Yes. And how long have you lived on the farm? Oh, 32 years. And presently there's just you and your husband. In the farmhouse, yes. Yeah. My daughter lives in the small house adjoining the farmhouse, is the one that she spoke about. Q And that would be your daughter, her husband and your grandson? A And the grandson, yes. Q Okay. And I take it you have one daughter? A One daughter, yes. Q One grandson? A Yes. Q What is your date of birth, ma'am? A 9/l0/48. Q I am not going to make the same mistake twice. Tell us how old you are, ma'am? A Okay. I am 51. Q All right. Where were you raised? A Cumberland County, Silver Spring Township. Q What is your educational background? A Twelfth grade, Cumberland Valley High School. Q And since high school, without going into the 36 .-...., ,"--, 1 I also -- my mom is up in years/ and I was helping 2 her. My brother had Leukemia, so I \<IClS helping with that 3 situation. And my uncle \<Ias 81 so he required to keep me 4 busy. With that, plus IllY o\<ln ~louse and my own family, I did 5 quite \<Iell at keeping at it and I enjoyed it. 6 And then the accident happened, and it's just been 7 -- it really is tough to do my household chores or anything, 8 just my back, especially, and my neck. It all flares up. And 9 at night my hands go to sleep. It seems like if I am sleeping 10 on this side, this hand goes to sleep and vice versa. II And they did the testing with the carpal tunnel, l2 with the braces, and they don't think it is the carpal tunnel, 13 it has something to do with the neck injury. 14 \1ell, let me ask you this: Your daughter Q 15 mentioned bO\<lling before this accident. 16 Yes. A 17 Q Do you like to go bowling? 18 Yes, we enjoyed that. Like I said, I was watching A 19 Justin and Sandy WClS \<Iorking. So I took him, probably, at 20 least I tried to take him t\<lO times a \<leek. And my sister and 21 my other brother \oJOuld go along, the one that has now passed 22 on with Leukemia. We \<Ieren't real good at it but we had fun, 23 and Ju~tin, you kno\<l, he rpally enjoyed it. 24 0 But !)osid"s bOI,ling with ,Justin, whClt ,,1se did you 25 like to do v.'it.h your qrand~.,()n, ~dY, before tllis ilcc.id.2nt~? 38 r<;:- _7,) 1 2 3 4 5 6 7 8 9 10 11 l2 13 l4 l5 16 17 18 19 20 21 22 23 24 25 ..... ... r'.....'. ~._, ,....."..... A Oh, we were always out -- he's in baseball. Well, that's where I was coming from the day of the accident. He had grandma out there pitching ball, you know, and batting ball, practicing. And jump rope -- I can't spin the rope anymore. I can for a couple minutes, but it really raises havoc, and just about anything outside with Justin, you know. o Before this accident, were you experiencing chronic neck pain? A No, no. o Before this accident, chronic shoulder pain? A No. o Headaches? A No. o Numbness in your arms? A No. Q New, I want to ask you a few questions about the accident. I take it you were at your grandson's baseball game before the accident? A Yes. Yes. o Then you left the game to go home? A Yes. I was on my way home. They had, like, a half an inning to go. He was a first grader. He was in the pony l(:,ague, ] think it was. So I cold Sandy, my daughter, and Justin I was going home because I had stuff at Karns', which is a small store on the Carlisle Pike. I had to pick up 39 2 1 some cereal and things like that. I said I am going home and put the groceries away. 3 And on my way home that's when the accident happened. The 4 policeman was nice enough to bring my groceries along home and 5 loaded them up. 6 Q You were driving a minivan? 7 A A minivan, yes. 8 Q Now, Mrs. Smith, the fault of the accident isn't 9 at issue here, but I want to have you tell the jury in your 10 own words what happened to you inside the vehicle at the time II of the accident. 12 A Oh, okay. I was going north, I guess, and 13 Mr. Kaufman was coming this way. (INDICATED) And he just made 14 a left and we collided. 15 I could hear the metal starting to crack. The 16 minivan is a short-nosed van. I could hear the metal start to 17 crunch, and then I had ahold of the steering wheel, and I felt l8 the impact of the air bag coming up. And about that time then 19 everything it all was so fast. And then I was stopped, and 20 my seat belt was stuck, and the air bag and this white stuff ii I I I' I , ! , ',' , : " . : ' " ,'" "" " . , " ',,' , '," , " ," , , " . '. ',,' , " 21 is choking me. I don't know what it is, but it was choking me 22 half to death. 23 And 1 am trying to get my seat belt unhooked, and 24 there is a young fellow, like 14 years old, I don't know how 25 old, he come and he said, Ma'am, I will help you get out of 40 ~O 1 2 3 lO ~ , ~"'" , A Totally? Q Yes. A I don't remember, I would guess maybe a month. 4 Maybe a couple of weeks to a month. 5 Q And after that you had no further problems with 6 that. Right? 7 8 A No, that has gone away. Now, let's go back to the scene. You said the Q 9 ambulance people came and wanted to help you? A Yes. Yes. They did go over and they checked, you 1l know, wanted to make sure that I was okay. They wanted to 12 take me to the hospital, but I felt at that point in time that 13 I was, you know, just stoved up. I wanted to go home take a 14 couple of Tylenol and relax anu I would be okay. But from l5 then, everything -- l6 Well, did you say the police officer then took you Q l7 home? 18 19 20 21 22 23 24 A Yes. They couldn't get my husband because he was at a farm sale, and my daughter was on her way, and we didn't knoloJ when she was coming through. So the police officer, he took me on home. He got the groceries out of my van, and 'the van was taken on a rollback because it was not drivable. Q Now, once you got home, what did you do? A When I got home -- well, they took the van there. 25 My daughter had stopped there. She come back when I was in 43 !t:3 1 the police car. And she corne running up and the police 2 officer said, Who is that coming running up? And I said, 3 That's my daughter and grandson. 4 Well, they were hysterical crying because they saw 5 my van being loaded, you know, up on the rollback. And I told 6 them who it was, and he got out and they corne up to the car, 7 and I told her, you know, I thought I was okay. I had a 8 headache and stuff, but I will be okay. I just want to go 9 home, something to that effect. 10 So then the policeman followed Sandy horne, and 1l then she got the groceries, and then I went on into the house, 12 and Bob Bear was the fellow running the rollback. I told him 13 to just put the van in the barnyard. I was going in to lay l4 down. 15 And I tried to put more ice and stuff on my arm 16 and this side here. And I didn't do much that day. When John l7 come home and seen me he asked me if I was okay, and if I 18 wanted to go to the hospital. 19 I said, No, I think I will be okay. I just want 20 to relax, you know, and kind of unwind. And so then I believe 21 it was him that called the insurance company. 22 Q Well, let me ask you this: You didn't go to the 23 emergency room Saturday night or Sunday. Right? 24 A No. No. 25 Q Okay. But did you or somebody in your family take 4 <1 /-1/ (j,' , 12 13 .~, ,..-. 1 photographs of your van? 2 A Yes, I think it was my sister corne down. She 3 takes photographs of everything. 4 Q Okay. 5 MR. LUTZ: Mr. Banko, do you want to see these? 6 MR. BANKO: That's fine. 7 MR. LUTZ: Your Honor, may I approach? 8 THE COURT: Certainly. 9 MR. LUTZ: Mrs. Smith, I am going to show you lO what's been previously marked as 1 and 2. Could you show us II what those photographs show. THE WITNESS: Yes, this is my van. MR. LUTZ: Is that photograph -- actually the 14 photographs, do they fairly and accurately depict damage to l5 your van that was caused in this motor vehicle? 16 17 THE WITNESS: Yes. MR. LUTZ: Your Honor, I publish them to ~...- \".u,c may 18 jury? 19 20 THE COURT: Yes. Just walk them down. MR. LUTZ: (COMPLIED) 21 BY MR. LUTZ: 22 Q Mrs. Smith, let's keep moving. I take it that 23 somewhere along the line on the weekend you decided to call 24 your family physician. 25 A Yes. Well, I think that was, like, Sunday 45 ItS I, , ,,' I ; . ',."" ' ' :. ) , " . . ~ _ \), - ". ," " . " , ' . \: . ~ ". '. J'. ' 1 2 3 4 5 6 7 8 9 lO 1l 12 13 14 l5 16 17 l8 19 20 21 22 23 24 25 -, r- afternoon and evening I really started getting more than just sore and stiff. I mean, it was really getting hard to move, and hurting, and the headache had not gone away. I had a headache but I just thought it was stress and tension and whatnot. So then he said, maybe you better go to the hospital or call the doctor. A I said, I will. Monday morning. So then I called my family doctor Monday morning, and told him I was in an auto accident. I don't remember what time the appointment was, but then I went down Monday. Q And you saw Dr. Richard Davis? A Yes, Mr. Davis. Q All right. Now, let me ask you this: You saw your family doctor two days after this. Were you optimistic that eventually this whole thing would go away? A Yes. Yes. Like I stated before, I figured I was just kind of staved up. I figured it would all need a little time and stuff to go away. I figured he could maybe tell me what to do to help relieve some of the tightness and pain, you know, maybe stiff muscles, you know, or bruised or whatever. So he did at that point in time feel that that's probably what was wrong, you know, maybe just twisted it. Q Shortly after that, Dr. Davis ordered an x-ray. Right? 46 ,....... 1 A Yes, I think that might have been probably two 2 weeks after the initial office visit. 3 Q And we heard Dr. Davis testify about the 4 arthritis. Did you know, before this accident, whether you 5 had arthritis in your neck? 6 A No, I did not. l6 Medicine, down behind Holy Spirit. I think it's Erford Road, 7 Q So when you heard it from Dr. Davis, after the 8 accident, was the first time you ever knew that? 9 A Yes. I said, I have what? I am only 50 years 10 old, almost. 25 a half. J was having difficulty with some of the things that Q Dr. Davis also said that he prescribed physical 11 12 therapy? 13 14 15 A Yes, he did. Q Where did you have the physical therapy? ':". ;',:-' - _ ',.' " ,.,' ; ',' ", i"~;- " .' ,", A The physical therapy -- I went down to Sports 17 I went down there for almost three months. 18 Q And how often each week would you go to physical 19 therapy"! 20 21 A I was going three times a week. Q And how long, approximately, would each session 22 last? 23 ~ , "'" A J am going to estimate. I think it was sometimes an hour, 3omctimc~ lcnger. Scmctimc~ it would be an hour and 47 iel ----, ..-~ 1 they were -- you know, I was doing at that time. 2 Q What were they doing for you at physical therapy? 3 A Well, let me see, they had been doing the heat 4 treatments on me, they did that. And they did, like, the 5 sonogram -- the machine where they do the muscles and things 6 like that. And then I would do different things to strengthen 7 my muscles in my back, pulling up and stuff like this. 8 Q In retrospect, did the physical therapy for three 9 months help? 10 A Yes and no. II Q What do you mean? Why don't you explain that. 12 A For a while, yes, it kind of relieved some of the l3 tightness or help a lot, but then it would come back. l4 Q While you were at physical therapy, did your 15 sister, who took the photographs of the damage to the vehicle, l6 take photographs of your arm and then of you undergoing 17 physical therapy? 18 A Yes, she did that. 19 Q Okay. I want to show you what's previously been 20 marked as Plaintiffs' Exhibit 3 through 12, and ask you to 21 identify those. I am going to help you so we can go through 22 it a little faster. Can you tell us what Plaintiffs' Exhibit 23 3 is? 24 1\ ukay. That's-- Do you need your glasses? 25 Q 48 1 2 3 A Yes, please. Q (HANDED TO THE WITNESS) " ' .' ~ I . , .' '." '.: ~: , . ''',.: .' , ' " " '. ',' .;, . . ' A Oh, okay. That's the burn mark that was on my arm 4 after the accident. That was from the burn? 5 6 7 8 9 10 11 12 Q All right. Exhibit 4? A Now, this is -- Q Well, just tell us what they are doing? A Well she is doing the son -- Q Ultrasound? A Ultrasound. That's what it is, yes. Q All right. Exhibit 5 and 6? A Okay. These are exercises that I was doing 13 they were having me try to do -- to stretch the muscles in the 14 back. 15 16 Q Plaintiffs' 7 and 8? A That is like a bicycle thing that your arms go l7 around and around to strengthen your back also. 18 19 20 21 Q It's called the Cybex machine? A Yes. Q All right. Plaintiffs' Exhibit 9 and 10? A Okay. This is the electronic thing where they 22 would hook up electronic things to my back and neck and things 23 and try to shock the muscles. :<4 25 (,l Okay. plaintiffs' ExhllJlt " ~ J...J. ~ A That's the collar that Dr. Litton had prescribed 49 lill 1 for me before the -- I wore that for probably two weeks, and 2 it just made it hurt worse wearing it, you know. 3 So then that's when I went back down to Dr. Davis, 4 and I said, Isn't there something you can do? And then from 5 there I went down to Dr. Gouse, and I have been going down 6 there ever since. 7 Q And lastly, Plaintiffs' Exhibit l2? 8 A This is one of those rubber band things where you 9 have to pull it as hard as you can to do the back and 10 shoulders and things. 11 Q Now, Mrs. Smith, during the cross examination of l2 Dr. Davis, Attorney Banko asked a lot of questions about 13 spasms. Did you experience spasms in your neck and shoulders 14 after this accident? 15 A Yes. Yes. 16 Q What would a spasm feel like? What would you 17 feel? 18 A Well, at first right after the accident, they 19 weren't a constant thing, you know, it wasn't like a constant 20 thing. It would be, like, if I would -- say I would have a 21 small bag of trash I was walking out, and if I would lift my 22 arm to throw it into the dumpster, the muscle would go and 23 flare-up. 24 Li ke tlllS one here all my L.e"ht shoulder bL1dc 25 especially that one. And at that time it would get real hard, SG 70 . ' " " ',' < .' ~ ,..' .' .' H.,' " .~\ " :' ;.,'.... , .' '.: ;' '; " ;,.; .--.., ,--, 1 and it felt like bugs were on my back. The muscles were 2 contracting. And then it would burn, you know, when they do 3 that they get into a burning situation. 4 But they weren't -- they weren't happening all of 5 the time. So sometimes when I was down to see Dr. Davis, I 6 would try to tell him about them, but they weren't occurring 7 so he could not feel them or see them but he said, you know, 8 he understood what I was trying to tell him about. 9 Q Now, you saw Dr. Jason Litton, an orthopedic lO surgeon, one time. 11 A Yes, I saw him one time. 12 13 14 15 16 17 18 19 Q A Q A Q And he told you to stop the therapy. Right? Yes. And he gave you a collar? Yes. And you wore that two weeks? Yeah, about two weeks. A Q A Okay. And then it just hurt. It made it worse. And it 20 was restricting and it really hurt. 21 Q And in therapy did they give you exercises to do 22 at home? 23 A Yes. They gave -- here's the rope. That's me 24 there with the rubber bands, and I had traction where I put 25 the traction on my door. !1y husband had to do that because I 51 71 1 happened April 25th the ended of April. June the 8th was when our cruise star.ted, which was only a matter of, ~lhat, five or six weeks. At that point in time I was having the muscle spasms and soreness and pain and everyth ing, but I felt it 2 3 4 5 6 would go away. It was just bruises and things like that. So 7 we went and I had a fairly good time. I have to say that it 8 was nice, but when you are not feeling good, and you are in 9 pain, you are not enjoying what you normally should have. We 10 saved four or five years, I bet, because it cost a lot. 11 Q Your husband was asked about Las Vegas since the 12 accident. 13 14 15 16 ,.., ~, A Yes, in '99. I would say in April of '99, a year. Yeah, \~e flew out for, I think it 'was three days. Q Okay. A Yeah, we came back on the fourth day. Q Could you give us a ballpark idea how long you 18 were on an airplane? 19 A We had a jet going out -- I think going out was 20 five, five and a half hours? 21 Q Okay. Do you have problems with prolonged 22 sitting? 23 24 25 A Yes. Q \~hat happens? A I can sit for a while, and then my muscles back 53 73 .: . '. . . ,".. '''''.' ',' .'..' , , . ", __, ' ,,; c' 1 2 3 4 5 6 7 8 9 I lO I I 11 12 l3 14 l5 l6 17 l8 19 20 21 22 23 24 25 ""', r He kind of was stumped at that point so he said, yes, if I felt that it would help to go ahead and go for it. So then I started with Dr. Gouse. Q And had you ever been to a chiropractor before? A No, sir. Q Were you a little suspicious or a little hesitant? A Yeah, because I heard rumors about chiropractors being bone crushers, and I was leery of it. But I was at the point, I have had enough with the pain, I just wanted something to relieve it. I was at that point where I needed something. Q And it's fair to say that you've seen Dr. Gouse from September of . 98 until the present? A Yes. I still see Dr. Gause. Q Has his treatment helped you? A Yes. Q And tell us or tell the jury how Dr. Gouse has helped you? A It helps for a while. I Has just at Dr. Gouse on Monday, a week, I believe it was. And by the time when I go there everything is so tight and hurting, he works on trigger points of my back in through my neck and down here, and all of the way down, and cracks my back where the muscle spasms nll of the time on the right side is where he cracks the back and snaps it back into place, and it kind of relieves that spasms 55 75 1 2 3 4 5 6 7 8 9 lO 11 12 l3 14 l5 16 17 18 19 20 21 22 23 24 .......", r for awhile, anyway. And then he works on the trigger points, and then he does the electronic shock, and that kind of helps for sometimes a couple weeks. It depends on what I am doing. If I don't, you know -- when you are a housewife, there is always something to do. And I am the type of person that just cannot sit, you know. I cannot do that. So I would get up and I will try to do whatever needs done until I get to the point that the pain comes, but then if lover do it, I do a lot, then I have to call Dr. Gouse, and he does the whole nine yards, the electronic shock, pressure points, and cracking the back to put the muscle back, that's where we are at. Q Let me ask you this, Mrs. Smith: Are there days where there is no pain? A Since the accident? Q Yes. A No pain? Q No pain. A No. Q Are there days that we will call good days and bad days? l\ Yes. Yes, I tiu lldve somE dwy:; that are not as bad as others. But then again, it all depends on what I am doing, 25 you know. And I guess it depends, believe it or not I 56 r 1 didn't -- when I was home nursing the elderly and the sick, 2 some of them would tell me about, Oh, gee, you know, my arm 3 hurts. It's going to rain, you know, this is hurting. And I 4 would believe them, but I'd say, Yeah, it's okay, because 5 something hurt on them. And I thought oh, okay. 6 After the accident and busting my neck right in 7 through here and down my back that that is true, that when the 8 weather is changing, the pressure in the atmosphere lowers, 9 and they actually can detect when it is going to change lO weather. II Q Your daughter had mentioned that you no longer do 12 the canning you once did. Is that accurate? l3 l4 15 A No. Q And your ability to do the housework has changed? Oh, yes. Yes, it has. First of all, I used to do A 16 a lot of the home canning, tomatoes, green beans, peaches, 17 etcetera, for winter. Well, I can't use these arms -- I can't 18 raise these arms up a lot and hold any kind of weight because 19 it just -- it puts too much on the back. 20 Q What about the butchering shed? What is it about 21 butchering that hurts? 22 A Basically, when I use my arms for any extended 23 amount of a few minutes, I have -- it just puts pain the whole 24 way back through. And then, you know, it gets painful. 25 Q And do you still mow the grass? 57 77 ,:'./. :. ,or ", ,,: ,':' ": : .', . " I ;.., \ ': ,'I .: ":'~ t:~F ~ :. ~':I:: ;,:.~' '~~',~:~,:.I:>;t t \~2~.~,~:~~+L.' /: .~ ,,';"'. ~ ".::'.':, ' ',' "'.";:.,;.':,:,~: '/.: '"" ./ ...;<,;' ':':::~:,'.' " . :",1:','::. ::':' r- 1 I am in a lot of pain today. And he looked at me and he said, 2 Mama, I hate that man. I said, Whoa. Whoa. Whoa. Come 3 here. Sit down. What are you talking about? 4 Now this is my little eight-year-old. That man 5 that hurt you, mama. And I sat down and explained to him, I 6 said, Justin, it was an accident. The man did not do it on 7 purpose. It was just one of these things. 8 And I said, we don't, you know, we don't use that 9 word hate. I don't want to hear it again. I said, Grandma 10 will come roll it to you or something for a little bit. So 11 then I did that. But I explained to him that it was just an 12 accident, and the man did not mean to do it. 13 And then that kind of relieved him, but it was 14 kind of hard. He was so heartbroken. And he was venting his 15 frustration. 16 Q Mrs. Smith, you mentioned the spasms. 17 A Uh-huh. 18 Is that sometting you get once a month or -- Q 19 A Oh, no. 20 When do they come on? Q 21 Right now I have one. I don't know if anyone -- A 22 when I start wiggling around. 23 The right shoulder, it will swell, and it goes all 24 of the w~y -- and it's starting to -- if I sit for any ')< .;.:) particular amount of timcf no matter jf it's a soft chair or :~ 9 7{i' , , '. . ',. " .,., '. "\~' -' l' \". -' :',':.,':- ". '. I '. ...,": ',,' \ '. " . t,' . t ._". ,:,' . ,', . ~ ,:' r'" .' , . ",:",,:,", : :'; ", ,.". , f,,' ~ . '" \ (, I I.,'" \ \t','".'.....m....".I~..:.,---..~-~....7';..,.p:J' ,j'l, ; J~' 'r ' "J I' ,! ~,','I' ,.' ',' ;~,," I ':': ' , - ".' .r' ,"'" .'~.~.~,,,',.,I~,.'..',.~.:::;."".',1 \, ,;-'.,..,r........'.\...../ ':'''\'','.'," ',,',. ,I"..,I","~ '; .'...."....~.1.'.J. ..~ 1 Q All right. And I have the original diary here in 2 the courtroom; is that right? 3 A Yes. 4 MR. BANKO: May I approach, Your Honor? 5 THE COURT: Certainly. 6 BY MR. BANKO: 7 Q Let me hand you what's been marked as Defendant's 8 Exhibit Number 2, and the other booklet I have not marked so I 9 don't have to put it into evidence, which is your original 10 diary. The book that's not marked, is that the original diary 11 you maintained beginning October of 1998? 12 A This one here? 13 Q Yes. And does -- now, I had that in my possession 14 overnight. Would you just take a second or so to look through 15 that and make sure it looks like it is all there, and I didn't 16 remove any pages or anything like that? 17 It looks fine. A 18 Now, what I handed you is Defendant's Exhibit Q 19 Number 2, which I would represent to you is a photocopy of the 20 original pages of that book. Would you just take a second and 21 verify that, in fact, that's what it is. 22 A Yes. 23 Okay. Now, it looks as though you began these Q 24 notes on October 10th of 1998. Does that sound right? 25 A Yes. 64 ",;;/ j (:-) v ( I I '-', r' 1 A Correct. 2 Q And then if you will turn to the next date, that's 3 May 3, 1999. Correct? 4 A Yes. 5 Q 6 correct? 7 A 8 Q 9 A 10 11 sounds right? 12 13 14 15 16 17 And from May 3 it goes to June 4th; is that Correct. Is that right? Yes. Q And then it looks like June 15th. Does that A Yeah, 28th, June 15th. Q June 28th would be next? A Yes. Q July 2nd, July 5th? A Uh-huh. Q And then the final page is August '99, without any 18 specific date in August. Would that be fair to say? 19 20 A Very so, yes. Q And would you agree with me that thereafter you 21 made no notes in your diary that all remaining pages in that 22 book was blank, and that's how you gave it to me, blank? 23 1 , , , J , ! ; I I J 24 25 blank? A Pardon me? Q That all of the pages in 1999, after 1999, were 66 qt., "".'.(";'.r'I'.' ':'~"")'~\"'!I.'h,":'~"! ",,:,::-,~'''~;.'II'-'\'''''''' .:'..\..,""....ll,!"".-')_~.I"I. '" '1 " ',I I '. "', ~\,\ ," "j'. j,I,..,.:l,',',~:....<:..,"'.,I".I,~\,l[!.......,;n".~'u~.;~;..,.~~'0:.....",',., ',,: ,'\', \', 'J YI'~\'), ~'t'l .. (.,' I: ,,' . ... '., . . ~" 'Il, ,," "1'\ . ' "1' ... " ~ . " . \ j.', :-:. "'.~," I l ',' \ \',' ", , , 1 A 2 Q 3 A 4 Q ,~, Yes. And that's how it was given to me? Yes. Now, ma'am, in the 10 years before this motor 5 vehicle accident, had you ever had a physical -- well, let me 6 back up. 7 Dr. Davis, we heard his testimony yesterday, and 8 he said that after the accident, on at least one occasion, you 9 had a physical by him. Do you remember that? 10 11 A Yes. Q And you had a gynecological appointment by another 12 partner, Mrs. Davis? 13 14 A Yes, Mrs. Davis. Q In the past had you had any other physicals or 15 gynecological exams? 16 17 18 A Yes. Q And who would have performed those examinations? A Mrs. Davis -- now, wait, let me go back. 19 No, I guess I started with Val, and she started 20 with my physicals. 21 Well, the fact of the matter, isn't it true that Q 22 the first time you saw Dr. Davis or any doctor at Cumberland 23 Family Practice was two days after the accident? 24 25 A Yes, I guess that was the first time. Q Okay. Now, do you remember in the course of the 67 57 ,;:',/, ." " : "; J: ';, \',\" .:,':.~ :L., i :', ' .. ;. ;,::.> :~<,',,~,~,:~.t /:~;~:,:;:,~,~'~:: l: '.:..;'\~",~r.~'~;>~;t.::,~>/\< ,,'. ,.:)(' ...; ;,':'/: <';,1 :~ '~" , \ ~,I:~' ',I.';,," ,t '.." .,,' 'l ':, :- i L ~ :,\:~:," .--- 1 accident, upon which this accident is based, the approximate 2 number of visits made in the year preceding said treatment and 3 reason for such visit; is that correct? 4 5 A Yes. Q Turn to the next page, and would you tell the jury 6 how you answered that interrogatory? 7 A Doctor Davis, Valley Road, Enola, one visit for 8 check-up and mammogram. 9 Q But the fact is you never really saw Dr. Davis, 10 either one, until after the accident. Correct? 11 12 changed. 13 A Now, you are going back. Oh -- our insurance THE COURT: Well, the question is, Did you ever 14 see either of the doctors before you went to see them two days 15 after the accident? 16 17 BY MR. BANKO: 18 THE WITNESS: No, no. Q Okay. But when you gave me that answer to that 19 interrogatory, you answered by telling me that Dr. Davis had 20 been your family doctor before the accident? 21 A 22 because I had no need to see him. He was set up to be. I had never went to see him 23 Q 24 A 25 Q All right. But our insurance changed. I see. 70 () i. 11/ 1 2 3 ~. r- A And we have to go where they tell us. Q And how long before the accident did that happen? A Oh, gosh, they've been changing insurances down 4 there like every other year or something. 5 Q Well, do you remember that we had another 6 opportunity before today for you, and to get together and ask 10 11 12 13 14 15 16 17 18 19 7 questions? 8 9 20 here 21 22 23 24 A Yes. Q And we did that at Mr. Lutz' office, did we not? A Yes. Q And I took your deposition? A Uh-huh. Q Is that right? A Yes. Yes. Q Okay. And Mr. Lutz was there? A Yes. f"\ ~ And th~re was a court reporter there? A "Yes. Q And you raised your right hand like you did A Yes. Q -- to tell us the truth? A Uh-.huh. Yes. Q And do you recall whether I asked you whether you 25 had a family doctor in the 10 years before the accident? 71 fit . . '. - ~ .,' ,\ '. ", -, '.' '... .' .. . iJ '. ~ -- ,: : ": . : ~ . .~....-' . "," . ." 10 " , ,-., 11 to be a little difficult. I am at the last line, Line 25, and 1 A I don't recall that, no. 2 Q All right. Well, let me hand you what I have 15 years before the accident, did you have a family doctor? And 20 it, they changed -- Good Hope Family Physicians, and then they 3 marked as Defendant's Exhibit Number 5, and I will represent 4 to you that it's the original verbatim transcript of your 5 deposition. Do you agree with that, it's the original 6 transcript of your deposition? 7 A Yes. 8 Q And that was taken on August 11th, 1999? 9 A Yes. Q Would you turn to Page 12, please, and it's going 12 I am going to go over to Page 13. 13 14 A Okay. Q And I asked you at Line 25, Page 12, In the 10 16 your answer was? 17 18 19 A Yes. Q Who was that? A My family doctor then was -- what's the name of 21 switched over. I answered Dr. Davis, I think. I 22 misunderstood your question. I apologize for that. 23 Q You misunderstood my question. Let's go to the 24 beginning of the deposition, if that's the case, turn to Page 25 4, if you would. 72 tl--) ", ,,: H, '. ", '. . .., '~,' ',' " ' " I -<0' .~' - . . . '-. -. r. 1 other family doctors other than the doctors with Cumberland 2 Family practi.ce. Do you see tha t question? 3 4 5 6 A What question, sir? Q Page 13, Line 17. A Yes, that's correct. Q Okay. And your answer was, Not that I remember. 7 And then I asked you on Line 23, Did you see any other doctor 8 for any other reason in the 10 years before the accident? And 9 your answer was? 10 11 12 13 A No. Q But actually was, Not that I recall. A Not that I recall. That's correct. Q Okay. Now, go back to the interrogatories, 14 Exhibit Number 1, there for a second. And the first page is a l5 signature page by your lawyer. 16 Turn to the second page, please, and you will see 17 that it says interrogatories of defendant addressed to 18 plaintiff, first set. Do you see that there the title in the 19 middle of the page? 20 A Yes. Yes. 2l Q And now, the second paragraph of the text, did I 22 read this correctly, These interrogatories shall be deemed to 23 be continuing interrogatories. If between the time of your 24 answers to said interrogatories and tillle of trial in this 25 case, you or anyone acting on your behalf learns the identity IS /.--\ ",.-- ,I #,r ;) 17 18 19 20 21 22 23 24 25 """', ,~"' ., " ' ' , , .,,! -, ,',,~', . '. '" .' l . . '.; '. ',', , ' . ':,",' " .'.~. " -: . : .' ; \' . 1 and whereabouts of any other witnesses not identified in your 2 answers or if you obtain or become aware of additional 3 requested information not supplied in your answers, you shall 4 promptly furnish the same to the undersigned by supplemental 5 answers. Correct? 6 A Correct. 7 Q To your knowledge, have you ever given me 8 supplemental answers that identified Good Hope Family 9 Practice? 10 A Excuse me? Is this -- 11 Q Did you ever give me supplemental answers that 12 identified Family Hope -- Good Hope Family Practice before 13 today? Before right now? 14 A No, sir. 15 Q All right. MR. BANKO: No further questions. THE COURT: Any redirect? MR. LUTZ: No, Your Honor. THE COURT: Ma 'am, you may step down. MR. LUTZ: Your Honor, my next witness is Dr. Christopher Gouse. THE COURT: Uh-huh. 16 Whereupon, CHRISTOPHER C. GOUSE, havinq been duly sworn, testified as follows: 76 t;t 17 18 "-, /--" 1 Q Let me interrupt you for a second. The 2 chiropractic college you received your doctorate degree from, 3 how long of a program was that? 4 A It's about a five-year program. 5 Q What do you study? Without getting into too much 6 detail, what do you study in those five years? 7 A Initially we study pretty much the same thing that 8 would be studied in medical school. We study the basic 9 sciences, anatomy, physiology, diagnosis, x-rays, MRI's. 10 Where we differ from medical school is in our 11 treatment procedures. They would study medicines and surgery, 12 and we would study everything but medicine and surgery. 14 Q drugs'1 A Q A Q How about chiropractic manipulation? Can you 15 No. By definition we don't prescribe drugs. 16 And do you by definition perform any surgery? No, we don't do surgery. 19 explain that to us, please? 20 A Chiropractic manipulation actually encompasses a 21 broad variety of techniques, there are over 100 different 22 techniques that are in our profession, but basically they are 23 designed to reduce what's called subluxations of the spine. 24 Q Now, Dr. Gouse, are you licensed to practice in 25 Pennsylvania? 78 '1 ' tjti; . - .-.........., 1 Yes, I am. A 2 What year did you receive your license? Q 3 1986. A 4 What are the requirements to become licensed in Q 5 Pennsylvania? 6 There's a National Board of Chiropractic that has A 7 a battery of tests that you must pass, and then you must pass 8 a written test by the Board of Chiropractic, and then an oral 9 presentation or a practicum examination. 10 And if my math is right, which has been wrong so Q 11 far this trial, you've been practicing 18 years? 12 Right. Eighteen years. A 13 During those 18 years, have you come to treat Q 14 people that have been involved in motor vehicle accident 15 trauma? 16 Yes, I have. A 17 And does that happen on a rare basis or is that Q 18 frequent or what's the occasion? 19 On a regular basis. A 20 All right. Now, do you sometimes refer those Q 21 people out to other physicians, whether it be medical doctors 22 or any other healthcare providers? 23 A Yes. 24 Q For e)cample, do you sometimes refer your patients 25 to radiologl~Lb [or diagnostic tests} 79 i.f!) Ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 I 17 18 I I 19 I 20 i " i Ii 21 '! ,~ '! 22 , 23 24 25 /-', -- A Yes. Q Sometimes do you refer your patients to orthopedic surgeons for second opinions? A Sure. Q Doctor, have you testified before on behalf of a patient? A Yes. MR. LUTZ: At this point I am going to move to have Dr. Gouse admitted as an expert in chiropractic care, and ask if there are any questions on qualifications. MR. BANKO: I don't have any questions, Your Honor. THE COURT: He may testify. DIRECT EXAMINATION BY MR. LUTZ: Q Dr. Gouse, this is not a memory test, so in answering my questions or Attorney Banko's questions, if you need to look at your records, please feel to do so. A Okay. Q When did you first meet Alice Smith? A It was on September 22nd, 1998. Q When you first met her, did you record a history as to what had happened? A Yes. \.1 I<nd could you summarize the history reported, 80 /00 ~~. r 14 doctor, physical therapy, orthopedic surgeon, and then to you; 1 please? 2 A She explained that she was in the motor vehicular 3 accident on April 25th, 1998. She had been seen by her family 4 physician and orthopedic surgeon. She had some physical 5 therapy. 6 She had some complaints of neck pain, pain in her 7 mid/low back and shoulder, primarily on the right side. They 8 were made worse by prolonged sitting, lifting, housework. 9 They were alleviated by medication and heat. 10 Basically she had kind of been through the medical 11 procedures, and was still having symptoms, so she sought 12 consultation at my office. 13 Q Now, that scenario you just described, family 17 that's pretty much common. They will go through those things. 15 is that unusual? A No, unfortunately, at least from my perspective, 16 18 I think we kind of specialize -- and would like to 19 believe that we should be seen first or maybe second in that, 20 but traditionally we are the end of the line. 21 Q All right. Now, did you perform a hands-on, 22 physical examination of Mrs. Smith that day? .' " ".,", " , . '., : '.' ,:' .' , '. : \,. '. ',', . : ;-.:'- '," ':,,' , 23 24 A Yes. Q And without getting into the minute detail. can 25 you give us the highlights of your examination? 81 /0/ 1""\ (""'\ 1 A Basically she had palpable muscle spasms and 2 trigger points in her upper and mid-back area, lower neck. 3 She had some restrictions in range of motion, particularly 4 when bending her head to the right. She couldn't go as far as 5 the left. 6 Pain was produced in her neck when we took her 7 head to the right and extended it and pushed down on her head, 8 that increased pain on the right side of her neck, which i.s a 9 sign of some type of inflammation in the neck. 10 She had tenderness to percussion from a percussion 11 hammer to a couple of the spinous processes, which are the 12 little bones you feel in your back, particularly at C-5 and 13 T-4, which normally is easily tolerated by healthy tissue. 14 Q Doctor, what else did you do that day after 15 examination? 16 A I believe we got a current x-ray series done on 17 her. 18 Q Did you look at films or did you do films 19 yourself? 20 A Well, both. She had some previous x-rays done, 21 and we would perform current x-rays. In particular, motion 22 x-rays to see what's happening when she bends her neck. 23 Q The film that you looked at that had been done 24 previously, was that an x-ray that was requested by Dr. Davis, 25 to your knowledge? 82 /Cb2- . . " -.,' . ,'<";",' '... '," . : . \, . I': . I '" ~ . ". " ' . ".I \ . . 12 13 ,-.. ~ 1 A Yes. 2 Q All right. You don't happen to have that film 3 with you, do you? 4 A No. 5 Q Doctor, did you look at a radiological report 6 before coming in today? 7 A Yes. 8 Q And is that report dated May 11th, 1998? 9 A Yes. 10 Q Doctor, I am going to show you what's been 11 previously marked as Plaintiffs' Exhibit 13. MR. LUTZ: May I approach, Your Honor? THE COURT: Certainly. 14 BY MR. LUTZ: 15 Q Doctor, is that an enlargement of that 16 radiological report? 17 18 A Yes. Q And could you please, for the jury, read the 19 radiological impression? 20 A There's three impressions. Number one is there is 21 no fracture or tramatic vertrebral missalignment evidence. 22 Number two is moderate advanced C-6 and 7 degenerative disk 23 disease and mild, mid- to lower-cervical osteoarthritis. 24 Number three, partial straightening of the mid- to .25 lO\o..'er-ce.rviLdl lordosi:::;, and restrictive mobility SIHJCJPstive 83 /03 - . " ,.... -- -'- -,' ~ ' w~ 0' ,',' ,". , ' ." . .' !.-~' . ';" " j "~. ,.'" .',', ,_, " ,-, 1 The vertebrae are numbered from the top being one A 2 on down through seven. There are seven little bones in the 3 neck. So C-6 would be the sixth bone, which is in the lower 4 part of the neck, right about here. ( INDICATED) 5 And what are between each vertebrae? Q 6 In between each veterbrae is a disk, which you see A 7 in the front part, here. The disk acts as a shock absorber to 8 the spine to just the basic daily activities. With the weight 9 of the head, that weighs about 12 to 15 pounds, that will 10 cause compression to the joints. 11 The other thing that this does is that it allows, 12 when it's the proper height, it allows for openings for the 13 nerves that exit in between the vertebra. So if you have a 14 problem with the disk, whether it be degenerative or some type 15 of herniation, that can interfere with the neurological 16 tissues in the spine. 17 Q And Doctor, when you read that impression, it said 18 something about C-6, C-7, is that the arthritis that you are 19 talking about? 20 21 A Yes. Q And could that have existed well before this 22 accident? 23 24 A Yes. Q All right. Now, Doctor, I interrupted you. After 25 you took the history, you performed the physical exam, and I 85 )tJ5 - ..~ .... , . ""'.' ~)"" .' \', . 18 19 1 Q All right. And without going through each and 2 every office visit, I have in my notes here that there was 3 another radiological report, another diagnostic test done. 4 A Yes, we had -- I sent her for an MRI evaluation. 5 Q Now, why did you feel it necessary for Mrs. Smith 6 to undergo an MRI exam? 7 A The MRI shows more of the soft tissues of the disk 8 muscles. We had seen x-rays and saw arthritis on the x-ray, 9 but the MRI gives a better picture image of soft tissue 10 structures, in particular the disk. And the fact that I had 11 seen her for a period of time, and her condition was not 12 resolving when we got further information from MRI evaluation. 13 Q And was the MRI performed November 17th, 1998? 14 Do you have that in your notes, Doctor? A Yes. Q And does the radiologist report back to you, since you are the one that asked for the MRI? A Yes, that was November 17th. Q And was it Dr. Nancy Keaton that was the 15 16 17 20 radiologist? 21 22 1\ Yes. Q And Doctor, I am going to show you what's been 23 previously marked as Plaintiffs' Exhibit 14-1\ and 14-B, a 24 two-page report. Again, as we did with the other x-ray, 25 Doctor, could you read the impression of Dr. Keaton? 88 //}~ /I/c' '" :,'" .': ,," ..:: .',~, ,"e: ,\ ': . ,::;:.... :'::,;,r-":,:,,~~','.,:,,::,~~i,,,;~~::.....~ :~':.:;' ','<I ,:;: ',:,,: ;'~ ',:<', ',', ',:,.(. '>, ,,:',,:"::';,: :\." .';':':':.; :"; ":"'" -- - -~- - . . ~, .,..... 1 A Yes. The first impression was a C-5/6 broad 2 based, shallow posterior protrusion, likely disk and 3 osteophyte, myocentral canal stenosis, anterior disk 4 protrusion with flanking osteophyte. And two was mild C-5/6 5 right and C7/T1 left peramital stenosis. 6 Q And again, Doctor, could you put that in layman's 7 terms for us, please? 8 A Basically it shows that there is some damage to 9 the disk at the C5/C6 level that is causing narrowing of the 10 spinal canal with the spinal cord of those, as well as 11 narrowing of the opening where the nerves exit from the spine. 12 Q Could you show us, please, on the model? 13 A Okay. The yellow thing here is the spinal cord, 14 it goes down through the vertebrae. And what it is showing at 15 the -- and you can see it on the films also. It might be a 16 little better to see the films themselves rather than on this 17 model. 18 Q Do you actually have the films with you? 19 A Yes. 20 MR. LUTZ: Your Honor, may I place the viewbox 21 right there? 22 THE COURT: Certainly. 23 HR. LUTZ: (cot~PLIED) 2~ THE WITNESS: The be~t one to demonstrate is 25 th15-- 89 ',",.'" '- ',:'. .;,,;', ,:' I" "" :::;":~::,: t'~ ,',.: ,;:~' ,,('..,,;, i')f"',.~ :,/..' ~.'. \ ,\;~ '".~,,: \ "~"'~..' \,~,/ '; :;...~, .~~' ~:',', ",;',:r, '. ", '." <. .':,,<. .,: "., .;. ,',' "', ,', ' , " '.,' ",,\ ',. 'I.' " ': " ':': " , ' .- I , 1 THE COURT: Sir, I will tell you what, so the 2 stenographer can hear you better, I am just going to put you 3 on the other side. 4 THE WITNESS: Okay. 5 THE COURT: Thanks. 6 THE WITNESS: What you have to realize about an 7 MRI is it's kind of a slice, and they are identified by these 8 lines here. You take a slice through a particular structure. 9 So what we are looking at on these is kind of a slice through 10 her neck in this plane, or straight through, from front to 11 back. The structures in the right here, this would be her 12 brain, and this is her spinal cord coming down through the 13 cervical spine. 14 And an area that is white indicates there is more 15 water in it, versus darker, which is lack of water. And in 16 the front part, these are the vertebra or bones in her neck, 17 and white spaces in between are the disk. 18 And what you normally should see is a smooth, 19 un shadowed structure, being the spinal cord. And we can see 20 at this level here, C5 and C6, that that is indenting on the 21 spinal cord. 22 And what you have to realize is that nerve tissue 23 is very sensitive tissue. It only takes a few centimeters 24 further, you would have a situation where you would have a 25 broken neck or they would be paralyzed from the neck down. 90 .lIt; ,- 1 So it does show some indentation there, and that 2 is what is meant by stenosis or narrowing of the spinal canal. 3 And you can see the effects on the spinal cord, here. 4 And where the problem is that this is taking in a 5 neutral, non-moving position when she is laying down. When 6 you start bending the neck around and doing activities, this 7 area that is impinged will become :;;wol1en, put further 8 pressure on the spinal cord and cause some numbness around the 9 hands, down the leg, the neck, there are nerves that go to all 10 parts of the body. 11 This is in a neutral position, but when you add 12 the functional aspect to it, it would look different. In 13 other words, you would see further inflammation occurring at 14 this level that would come and go based on her activity 15 levels. 16 BY MR. LUTZ: 17 o Did the MRI results shew you anythiIlg 18 significantly different than the x-ray results? 19 A Oh, yes. You couldn't visualize this on an x-ray. 20 All you would see -- you wouldn't see the spinal cord. You 21 wouldn't be able to see if it was being impinged upon. You 22 would just see that there is thin disk variances. 23 But with this you get to see the spinal cord and 24 the disks themselves, and that is what we are looking at here, 25 is the back part of the disk is an impingement on the spinal 91 II! 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ,~ canal or stenosis. Q Given the MRI results, did your treatment plan change? A Um, I am not so sure that my treatment plan changed. I think my outlook for what I would expect this patient to experience changed. Q In what way, sir? A W-:!ll, I realized that -- first of all that her symptoms were consistent with the injury, why she was having pain in her mid-back. You talk about referred pain, which is in this area, referred pain in mid-back, down the hands. But basically when you see this type of injury, unless there is a surgical solution for it, and you can maintain it, you can't cure it. It's not a curable situation. It's manageable. So I realize that she was -- that we weren't going to completely fix it. Q All right. Doctor, anything else with the MRI scan? A No. Q All right. A (RETURNED TO WITNESS STAND) Q Doctor, we talked about the MRI. Did you have 24 Mrs. Smith undergo any other diagnostic tests by any other 25 doctors. 92 1 2 3 4 5 6 7 8 9 10 11 12 13 l4 15 16 17 18 19 20 21 22 23 24 .~.. . .,' ..... .." "'il,::,.:,,:,i: ~, to see her the minimum amount necessary to manage her symptoms. Q Okay. Did you also send her to an orthopedic surgeon? A Yes, I did. Q And who did you send her to, Doctor? A I sent her to a fellow that specializes just in spinal surgery, to see if he would have any ideas of what could be done further for her or if she would be a surgical candidate. Q And the identity of the orthopedic surgeon, please? A His name was Dr. Peppelman, P-E-P-P-E-L-M-A-N. Q Where is Dr. Peppelman located? A He is located at Sir Thomas Court in Harrisburg. Q Okay. To your knowledge, did Dr. Peppe1man examine Mrs. Smith? A Yes, he did. Q And did Dr. Peppelman correspond and write to you and indicate his findings to you? A Yes, he did. Q And that was the whole purpose of sending her to Dr. Peppelman. Correct? A Sure. 25 Q So that he could tell you, give you more or less a 94 , ::';::, ' :\' " ",' ',,' "', \ . '-' f :;.:, ",,' \",1 :>_, .. ::.( :"(" ';"'~ ~,.>~I;,"(",:"'..;~'~~\~,'.::'~:~:~r:: :-.\':~' ".: > .1 '\": ,,~' ,: t " : ~I, .. ;:.< -'./\:; ~ ",~< "f:", ,:, .:~'.. -. , ~'''iL:",_,j,::\ f i, I I ! i I ! i I ! i , ._ w'-'.., .,"-, 1 to see her the minimum amount necessary to manage her 2 symptoms. 3 4 surgeon? 5 6 7 Q Okay. Did you also send her to an orthopedic A Yes, I did. Q And who did you send her to, Doctor? A I sent her to a fellow that specializes just in 8 spinal surgery, to see if he would have any ideas of what 9 could be done further for her or if she would be a surgical 10 candidate. 12 Q please? A Q A Q 13 14 15 16 His name was Dr. Peppelman, P-E-P-P-E-L-M-A-N. Where is Dr. Peppelman located? He is located at Sir Thomas Court in Harrisburg. Okay. To your knowledge, did Dr. Peppe1man 17 examine Mrs. Smith? 18 19 A Yes, he did. Q And did Dr. Peppelman correspond and write to you 20 and indicate his findings to you? 21 22 A Yes, he did. Q And that was the whole purpose of sending her to 23 Dr. Peppelman. Correct? 24 25 A Sure. Q So that he could tell you, give you more or less a <)4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 '-. /" r second opinion. A Yes. Q All right. Without reading his entire letter, could you summarize what Dr. Peppelman had to say? A He had an impression of cervical spondylosis, which is the cervical spine disease, cervical radiculopathy. And I will read his impression paragraph. "I feel your treatment for her has been appropriate. I am going to start her on some Ce1ebrex", which is an anti-inflammatory medication, "200 mi.lligrams with breakfast and U1tram to take during the course of the day should she have any flare-ups of pain. "If these fail to resolve the patient's overall syptomato10gy, consideration could be made for changing her anti-inflammatory or consideration for an epidural steroid" excuse me, which is an injection of steroid medication into the spine, "only if these measures of conservative care fail, ~lOuld surgery be recommended. However, I do feel that the treatment you have given the patient is appropriate and should continue." Q All right. So Dr. Peppelman at that point, 22 October of '99, was saying surgery is not indicated at this 23 time; is that fair? 24 25 A Yeah, at this time. He is saying that if conservative measures do fail, the next step would be the g ~, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - r' 1 2 3 epidural steroid, and then consideration would be given to surgery if the situation would worsen or couldn't be managed by conservative care. Q Dr. Peppelman also indicated, as I heard you read that paragraph, that he wrote to you and said your care was appropriate. A He did, yes. Q All right. Now, as a result of Dr. Peppelman's evaluation, did you continue to see Mrs. Smith on an as-needed basis? 4 A Yes. Q And Doctor, without going through each and every visit, can you tell us when the last time you saw her was? A The last time was February 28th. Q Okay. Just a couple weeks ago? A Yes. Q Not even. How was she doing? A Basically the same as she has been for the last several months. We are basically just managing her symptoms when they flare-up due to her activity or accumulative activity. She had palpable tenderness in trigger points in base of neck and upper-, mid-back area. And, you know, we just gave her trigger point therapy, and what's called inter-sygmental traction to just kind of stretch and allevjal,' 96 :,' ',;"':",'.,:,;L".'.:" . >''.'~'''''~':\; ',','./,. "',,'::'".' " L..)I;.....,:~:.:.\ ,,~., "~,I' :":'I',,\:i.'. '!~,)1::'1:' ::"",: t~",:..;>,\,.,:" ;'~~t. ":",'~.'::"'I , '",' .r'. , . ,I . . '_!, ...~~{l').'I" \\'(l'."IJ. '~-r.~'.':'II',..t-HI~'" ','" ."" ,.' '" \.,.. , " "~. '\ \-. .' ...', ," , . ",.', "". "", . '1.. "'"' ~ '~. _......,. lo, .', ',,',. .'..... '. . I. " .! ..'.' . ',',. tu..'. . 1 .,", I "".,'..,.} --- r, 1 the symptoms. ? Q Now, Doctor, a couple times you mentioned the term 3 referred pain. What does that mean? 4 A Referred pain -- and if I could use the chart that 5 I brought to help visualize that, I think it would be helpful. 6 MR. BANKO: Your Honor, may he come off the 7 witness stand? 8 THE COURT: Yes. I am going to move you around 9 again. 10 THE WITNESS: This just shows the sources of 11 referred pain within the joint complex. Obviously a fracture 12 could do it. More appropriate for this situation is ligament 13 tears in the front and back part of the vertebra, and as we 14 saw on the MRI when we saw the extension of the disk, what you 15 have to realize is when it happened to the ligament that is 16 supposed to contain that, it's obviously stretched and torn or 17 that wouldn't be happening. 18 So we know there is torn ligaments, also disk 19 disruption. In fact, most common cause of mid-back pain in 20 someone that's been involved in trauma is C5 disk disruption, 21 and there was evidence of that on the MRI showing that there 22 is some disk protrusion. 23 And what that does, it shows these particular 24 levels, and it shows the area that can have referred pain, 25 meaning that the problem is in one area, but it causes pain to 97 ,'", .. 'I..' >.,.:",.r';".',M:-~ ',',.,' ,\'l.',~ \ :1, :1,,\'" ,.,'.,"',_,:. "I. 'j,"t,"t'.:'-" ,~. ';.';' : .' .' lA " ',I ".,' .' t" -.'<; ,1'~,,1, "...,..........tl~:.:.:>::"~.'.',..,,<r'~""\"-"', "'\ \ \1', ,\,., .," "'1 ""d'" " .:,11 '~" p " ".' '''~'''''' ., "..~d,',\. ,', ,l,., " ", '" j '~~~., I " ...' "'.. ", . ,'\ ',.. " "_ \_~ . 1 be felt in another area, and these are the patterns or __ 2 she's got C5, C6, C7, C8 nerve root problems or vertebral 3 problems, meaning those bony segments or joints have problems 4 that are demonstrated both by the MRI and the x-ray. 5 So you can get pain in any of these areas, down in 6 the hand, mid-back or in the shoulder blades, the shoulder, 7 even in the front and chest from problems up in the mid- and 8 lower-neck. So they actually can graph these things, and the 9 pain patterns are fairly predictable as far as where you can 10 feel pain on a particular referral area. 11 BY MR. LUTZ: 12 Q Doctor, how does the pre-existing arthritis, 13 meaning pre-eXisting before the accident, how does that fit 14 into this picture? 15 A Basically, it shows that she had a weakened area 16 in her spine. If it's arthritic. it means there is calcium, 17 there is usually disk pain, meaning that the segment is not as 18 strong as a 21-year-old or a person that would be -- could 19 handle the same amount of force as a healthier spine could. 20 Q Doctor, I am going to again ask you one of those 21 leading questions -- are you done with this chart? 22 A Yes. 23 Q You may take your seat. Doctor, based on the 24 history of tha accident, the physi~~) exams, your care and 25 treatment, your review of the diagnostlc studies, dO you have "[1 lit.! I! L' ,,' '" :~',' . '.;,....,1.'::,'.'" :,.,/:\"\'r::~~"'u~::"':.:;;;\":':"'>I\;~I~:l:<;"';;'>,:;~,~,~~"'''i+-'''''~''Ir.''',~, ,;.;,,:; "', '...,. ....' -'''- .." -, 1 an opinion based on a degree of chiropractic certainty, 2 whether Mrs. Smith's pre-existing arthritis was aggravated by 3 this motor vehicle accident? 4 A Yes. 5 Q And would you explain the basis of your opinion, 6 sir? 7 A The fact that she had the pre-existing changes are 8 both, in my experience and in the research and literature on 9 these matters, indicate that her spine was less able to 10 tolerate a force that a healthy spine would be able to take. 11 She may have had -- she may have gone another 50 12 years without neck pain, sort of compared to the story about 13 the thousand-year-old vase that has been around for a thousand 14 years, and it's almost like a pile of sand, but it's still 15 standing and it could last another thousand years. 16 You can take a brand new vase, and you can, you 17 know, knock it over, and it's going to bounce around and stay 18 in tact. But you take the thousand-year-old vase, and you 19 knock that over, and it's going to turn into a pile of dust. 20 And so what that shows, and the same with her 21 spine, is that her spine was not able to tolerate a trauma as 22 much as a healthy spine would be. And it's consistent with 23 her symptoms. It's consistent with all of the studies that 24 were done to her neck that that is what occurred. 25 Q Doctor, my last question, you saw her just a 99 11 12 13 14 15 16 17 18 19 20 21 22 23 10 ,.-.,.. 1 2 3 4 5 6 7 8 9 Q Okay. And I note that among your academic honors, you are a diplomat of the National Board of Chiropractic Examiners. What is that? A That's a battery of tests that you take on a variety of subjects including diagnostic procedures, treatment procedures that are appropriate to chiropractic and that you successfully passed them. Q And does that give you the ability to do peer reviews of other chiropractic treatment? A No, I had done that for several different companies, in fact, for the Department of Welfare was one of two of their peer reviewers for all of the chiropractors in the state regarding diagnosis, appropriate treatment and so forth. And that's based on experience that I got that position so it wasn't based on that test. Q All right. But in any event, when we talk about peer review, we are talking about, in your case, one chiropractor looking at the treatment provided by another chiropractor to determine whether it's reasonable and necessary treatment. A Yes, that's the ideal set-up, is that it would be like that. Q Okay. And in this case, you told us that 24 Dr. Peppelman, who i.s an osteopathic -- well, first of dll, 25 would you agree th2t he is an osteopathic physician, who is 101 1 2 3 4 5 6 7 8 9 10 11. 12 13 14 15 16 17 18 19 20 21 ., 22 I ! 23 24 25 .~ board certified in orthopedic surgery? A Yes. Q So that therefore he is not a chiropractor, is he? A No, he then wouldn't be a chiropractor. Right. Q So strictly speaking he wouldn't be your peer with respect to whether or not your treatment plan was necessary, reasonable or related to the accident? A No, he is not my peer, but certainly he deals with similar-type injuries, and would have valuable input as far as what is appropriate care and what is not. Q Well, in the peer reviews that you provide, you provided peer reviews of treatment by other chiropractors under Act 6 of the Motor Vehicle Financial Responsibility Law? A Yes, I have. Q Okay. Are you aware of the appeal procedures under that Act when a decision is -- an initial determination is made by a peer reviewer? A Yes. Q So that the -- so the question is that -- if a chiropractor's treatment is rendered -- is reviewed by another chiropractor, and that reviewing chiropractor determines that the treatment is either not reasonable or necessary or not related to the accident, the person whose treatment is said to not be reasonable or necessary has the right to appeal, essentially. Correct? 102 J)L~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 "-"c A Yes, they have that option. Q And ask for reconsideration. A Yes. Q And then it would be referenced to another chiropractor to look over the first one's shoulder? A Yes. Q Now, in this case, sir, you in fact did have your treatment reviewed by Dr. Daniel Bowerman, a chiropractor in Philadelphia, did you not? A Yes. Q And would you agree that his opinion, after reviewing your records, was that your treatment was not reasonable or necessary as that relates to the automobile accident of April of 1998? A Yes. I don't think he was taking into the effect the complicating factors as to why her condition was still existing. He was using a cookbook approach where you take a diagnosis, should be healed in so many weeks. It was beyond those Keeks, therefore the care wouldn't be necessary. Q So the answer is, he did render an opinion that your care was not reasonable or necessary as it r.e1ates to the motor vehicle accident? A Yes, he had a different opinion than I did 25 regarding her treatment, yes. 103 ):/3 ""...., ."""' 1 Q All right. Then you as a reviewing doctor, in 2 your own right, you know you had the right to appeal that 3 decision and ask for reconsideration, do you not? 4 A I have that option, yes. S Q And tell the jury whether in this case you asked 6 for reconsideration or in effect asked for an appeal of 7 Dr. Bowerman's decision. 8 A I didn't feel it was necessary. No one bought 9 into his opinion. No one believed his opinion, when I 10 explained the circumstances, as to why she was still 11 exhibiting symptoms. It was answered. So I had no reason to 12 appeal it because no one believed his opinion. 13 Q So the answer is you never asked for 14 reconsideration of Dr. Bowerman's opinion; is that your lS answer? 16 17 18 19 A Right. There was no need to do that. Q Okay. Except for payment of your bill. A It was never stopped. Q Now, you were talking about when you first saw 20 her, I think you said she had a positive cervical compression 21 test? 22 23 A Yes. Q Ana that is you pushing down en the top of the 24 head? "" ~oJ 1\ In her situation we rotated the head, extended it J04 /)(/ ~ ~ 1 and then compressed. 2 Q All right. Well, what is a foramina 1 compression? 3 A Yes, that would be the foraminal compression test. 4 Q Pushing down on the top of her head? 5 A Well, when you have to qualify as to what you are 6 doing, it was called a right foramina1, meaning that we were 7 isolating the right foraminal so there was rotation and 8 extension of the cervical spine. 9 Q Well, a compression test is a test designed to 10 determine whether there is a pinched nerve; isn't that 11 correct? 12 A Well, I don't think it's quite that simplistic. 13 You are compressing tissues. If there is an inflammatory 14 response in there, certainly a pinched nerve is one. You can 15 have damage to the disk, ligament damage, any number of things 16 that can be aggravated by compression. So I think there is 17 more to it than just a pinched nerve. 18 Q All right. But in any event, when the patient 19 then says, Oh, that hurts, then in your opinion the -- not in 20 your opinion, but rather, you are writing in your report that 21 the test was positive. 22 A Yes. Again, it's not just that they would say it 23 hurts. You get a response. When you have a positive, their 24 body jumps, they tighten up. It's not that I then ask them 25 casually afterwards, Well, gee, did that hurt? You see that 105 p~ - " "- .'. . , . ,~'" : ", -'.:' " I. . _', .'., '. I, i .~ ' ",'" ' : . . _ ,.\, \. "" ~, ,- . '. . _': '. y' .' . , ' ~., . , : '_.', .' . ", ': ',' I. ' .' \ I . ,.." 1 it hurts, and then I would consider that a positive. 2 Q But in any event you agree that in February of 3 1999, you sent her to Dr. Aquino for nerve conduction study 4 and EMG, and that test was completely normal. 5 6 A Q Yes. Now, you saw her for the very first time on 7 September 22, 1998. Correct? 8 9 A Yes. Q And that would be a couple days shy of five months 10 after the accident? 11 12 A Yes. Had you ever seen her before at 'any time before Q 13 the accident? 14 A No. 15 Q So your opinion, doctor, on the issue of 16 causation, not the condition that she has, but the fact that 17 her condition is rela~ed to the motor vehicle accident is 18 based upon her subjective history; is it not? 19 No, I think it was based upon a larger picture. A 20 Certainly her history is a factor. The physical examination, 21 the MRI examination, the consistency of her symptoms with the 22 history gives you the picture. So it's not based on just any 23 one component of that. 24 Dr. Gouse, you misunderstood me, perhaps. I am Q 25 not talking about the condition she has or your diagnosis or 106 I,) (i! 1': ';:::: '..:' ,; : ,:' '" :', i- ! .;::\ ;.,,' " :,', ::'~,' ':':..' :;'i~:,~'':Ji;'.':':;',;.. :~};~',~, ~1~ '~'i~~:~;: !"'~'~:'~: ':"';i"\~" ",t~: 'JI .'. ,,.,,, :";: ,1~:1 \' I" ",;<: ' ',t ': \ :: :~:. \: 'I:: _ ':. '.\. :~ r :',: '," ':'.\. '<.t, '''' !"'"'"'I ('-. 1 findings existed before the accident? 2 I think she had some microtrauma, meaning A 3 representative type of trauma as to the area posture. She had 4 some reason why that particular area of her spine was weakend. 5 Well, you don't know what that was because she Q 6 didn't tell you that. 7 A Well, there was no history of her one particular 8 trauma. So we can assume it was accumu1ati.ve microtrauma. 9 Q So you have to make an assumption because all you 10 know is what she told you? 11 It is an educated assumption. It is not like I am A 12 complp.tely guessing. I do go by what she told me, and it has 13 to be consistent with the other findings which it was. 14 And you were educated by the plaintiff, were you Q 15 not, as to what the history is? 16 Certainly. The patient and her comments is part A 17 of it, and I am educated by my experience of working with 18 these cases. It's all encompassed in this, and not just 19 strictly by what a patient may tell me. 20 Q Well, would it be true that not only what you know 21 happened to this lady before the accident, but you don't have 22 any idea what happened to her between the accident and the day 23 you saw her five months later, do you? 24 A vlell, sure, I 'Jot some medical records, reports, 25 as far as what her treatment was. So I had some medical 109 j "[/' -./ ,..-- f 1 2 3 4 5 6 7 8 9 10 11 ~-. the therapist just to verify my number? A Sure. Q Okay. Well, I will let you tell the jury. Look at the patient status -- first of all, I will mark that as Defendant's Exhibit 6. Can you identify that document, sir? A It's a discharge summary from Central Penn Physical Therapy Sports Medicine. Q And under patient status -- and the date of it is I'm sorry. What is it again? A The date of discharge was August 24th, 1998. Q Yeah. And that would have been about a month 12 before she saw you? 13 14 15 16 17 A Q Yes. And it -- am I correct about that, that she was able to make 32 out of 33 scheduled visits? A Yes. Q Okay. And when you saw her then a month later, 18 you could actually feel -- I thought you said that there were 19 palpable muscle spasms? 20 21 A Q Yes. Does palpable muscle spasms mean that you could 22 lay your hands on her neck and back and feel the muscle 23 tightness and quivering? 24 25 A Q Yes. And then trigger points, we have talked about 111 /3/ '. '. '. '. .' " . ." -: . :-',',," <.' , .\ ' " I I I I 1 J 'j 2 ! 3 4 S 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 -, ~- referred pain and trigger points. Are they exactly the same thing, the one is a term for the other phenomenon? A No. As I showed on the chart there are several different mechanisms for referred pain. One of them being trigger points, but you can have disk disruption, which she has. You can have ligament tears that can also refer pain. So there are several mechanisms for referred pain. Q So in any event, the very first time you saw her, you could put your hands on her neck and back and feel muscle spasm and trigger points and referred pain? A Well, you can't feel referred pain. Q I understand. You did a test where you push one part of the body, and she is complaining about pain in another part, and that's referred pain in layman's terms? A Right. Q Okay. But she had those whether you label them as trigger points or referred pain, you had those in addition to the palpable spasm that she felt? A In addition -- muscle spasms and trigger points you are saying separate entities? Q Well, I don't know. Why don't you tell us exactly what you found on your very first visit on September 22, 1998, five months after the accident. A We had started with the range of motion. Again, she had some restrictions bending her head to the right versus 112 /37 15 16 17 18 19 20 "-... - I, 1 bending her head to the left. We found the cervical 2 compression test, which is the head in the neutral position, 3 produced pain in right side of her neck. 4 The foramina1 compression test, with the head 5 tilted to the right and extended, also produced pain, the left 6 side did not. 7 We did pinwheel testing, which was essentially 8 normal. Reflexes were essentially normal. She had palpable 9 muscle spasms in the right side of her neck, basically from 10 the top to the bottom of the neck, C1 to T2, and percussion of 11 the C5 and T4 spinous processes, which are in the back part of 12 the back, were sensitive to a percussion hammer. 13 Q So did she have trigger points on November 1st on 14 her first visit? A Yes. Q And she had palpable muscle spasms? A Yes. Q And that's been consistent, apparently, from that time until the last time you saw her? A Well, I mean, it would vary as to the areas she 21 would have the spasm. There were times we felt them on the 22 left side. There were times where it's shifted around and 23 that's normal for these types of injuries to see that pattern. 24 Q Well, didn't you tell us before about the 25 mechanism of injury, of hitting the right shoulder, and how 113 /33 '- , '. , ',' - . - , , " . ,> ' ..' I "".", ~ ..," ',;: ' . . " j .,',' .', , /, r 1 the pain jumps from right to left __ 2 l\ Well, they are different components. What we were 3 talking about there was the compression of the jOints. What 4 we are talking about now is the myofascitis component of it. 5 I have a chart here that will kind of help explain the 6 myofacial pain syndrom, if I may, to show why it moves around 7 and how it affects the joints and so forth, if you would like 8 for me to go into more detail with that. 9 Q If Mr. Lutz wants you to, he is free to do so, 10 sir. 11 A Okay. 12 Q Again, in your 18 years of practice, certainly you 13 have treated people who have findings like plaintiff did on 14 x-ray in May of '98 in the absence of one big traumatic event. 15 A Yes. 16 Q And you agree with me, Doctor, therefore, that 17 when the person has the findings that plaintiff had on x-ray 18 in May of 1998, that those findings are consistent with the 19 types of complaints she was making even though there may have 20 not been anyone big traumatic event? 21 22 23 24 25 A Yes, I would say that's possible. I~R. BANKO: No further questions. Thank you. THE COURT: Any redirect? 11R. LUTZ: Very brief. 114 /-'5,/ '. " :. , '. ": ~ " ,', ' . ... .. .. '.' ,: ;. . . .' :~>', . i, . T, Or \ :- ' ,'. ", ::. ',' ..: . .' , . . ......... .,-, 1 microtraumas, but there has to be some type of trauma to tear 2 tissue, whether it be a cumulative stress or trauma or one big 3 trauma. 4 Q And then what you have is a cycle, depending on 5 which side is being used more effects the other side. 9 muscle groups more than different types of activities would. 7 complex issue the way muscles work, but certainly the types of A Well, I don't know if it's that simple. It's a 6 8 activities you are going to do is going to effect certain lO Q Well, I think you said before in response to 11 Mr. Lutz' question that this is what starts the whole cycle. 12 13 14 A Activity. Q And -- I don't have anything else. Thank you. 17 plaintiffs' case-in-chief, but for the admission of exhibits. THS COURT: Sir, you may step down. You are 15 excused. Be sure he doesn't take marked exhibits. MR. LUTZ: Your Honor, with that, that is THE COURT: Okay. I will defer on exhibits while 19 the jury isn't here. You rest? 20 MR. LUTZ: Yes, Your Honor. 21 THE COURT: Defense. MR. BANKO: Your Honor, I have the videotape of 23 Dr. Bowerman. THE COURT: Okay. How long is it? MR. BANKO: Fifty minutes. 1'11 tell you what, I 117 /37 . '. ~', ", ' . . .' :. ': . /:- '" ". , .' ." , ,~' .,' " -''',' , . '. " ',' . 16 18 22 24 25 ~ i~',. 1 am going to give you a 10-minute break, that will let me take 2 care of exhibits. As long as we are going to be here for 50 3 minutes, we have been here a half hour. I don't like to go 4 that long. So take a quick 10-minute break, and I will work S with counsel on the exhibits. 6 (Whereupon, the jurors exited the courtroom at 7 10:32 a.m.) 8 THE COURT: I will go down these exhibits as they 9 came in chronologically, and just tell me if you are moving 10 for admission, and if you are whether there is an objection. 11 Plaintiffs' Exhibit 15, Dr. Davis's deposition. Well, that 12 was read into evidence so that is admitted. It will not go 13 out with the jury. 14 Exhibits 1 and 2 are pictures of wrecked van, lS admitted. Exhibit 3 is a photo, 3 through 12 is a series of 16 photos taken during the course of physical therapy. They are 17 all admitted. 18 Exhibit Number 13 is the radiological report of 19 May 11, 1998. It's admitted. Exhibit 14-T-I and B is the MRI 20 of November 17, 1998. That's admitted. That's what I have. 21 MR. LUTZ: That's what I have, Your Honor. 22 THE COURT: Okay. Good. We will take a short 23 break. Get the TV and everything set up front there and we 24 are ready to roll. 25 118 1?5' , .. . ' " . . -". .:. ""'" . '., . "'. ': ,: ' ~ . ' '. '.. '. .' ~'. '. ~, , . 10 ,-" ,-' .~.. . 1 (Whereupon, the jurors entered the courtroom at 2 10:50 a.m.) 3 THE COURT: Now, this is the video deposition of 4 whom? 5 MR. BANKO: Daniel Bowerman, D.C. 6 THE COURT: And have you marked that? 7 MR. BANKO: Yes, Your Honor. The transcript 8 itself is marked as Defendant's Exhibit Number 3, and the 9 videotape is 4. THE COURT: Okay. And are there any objections 11 that I have to rule on? 12 13 14 15 16 MR. BANKO: There are no objections. THE COURT: Excellent. You may proceed. (Whereupon, the video was viewed off the record and concluded at 11:37 a.m.) MR. BANKO: Your Honor, except for the moving of 17 defense exhibits, the defense rests. 18 19 20 THE COURT: All right. Any rebuttal? MR. LUTZ: No, Your Honor. THE COURT: Okay. I will deal with the exhibits 21 after the jury has gone. 22 That completes the evidence in the case. Both 23 parties have rested. I am going to take an early lunch break 24 because it will work out really well. 25 When we come back, the attorneys, both of them, J J" ,... /J'l , . '.' ",,; ." . \ , '. '-, , . ".' . ' . " -. ' ~ ., (. - ' -.:- " . ~, 10 ,~ THE COURT: For none of them to go out. Okay. 2 And based on that, do you object to the admission of any of 1 3 the defense exhibits? 4 MR. LUTZ: No, Your Honor. 5 THE COURT: They are all admitted. 6 (Whereupon, 7 Defendant's Exhibit Nos. 1 through 6 8 were admitted.) 9 THE COURT: None of them will go out. And as far as Plaintiffs' Exhibit 15, which is the 11 Davis deposition, that will not go out. 1, 2, 3 through 12 12 will go out, and 13, which is the psychological report, that 13 will not go out, although all of these can be utilized in 14 I closing arguments. 14-A and B, MRI, will not go out. That's 15 it for the plaintiff. 16 J 1 , I , i 1 j 17 18 19 20 Okay. Points for charge, plaintiff? MR. LUTZ: Okay. THE COURT: One is expert, will be covered in general charge. Same as two, which is about experts. Three, damages, generally will be covered in general charge. Point 21 Number 4, four areas that will be covered for plaintiffs' 22 claim for recoverable injuries in this case will be set forth 23 in that. Point Number 5 will be covered in general charge as 24 will 6. Seven, the wording of point Number 7 is denied as 25 stated, but subject will be covered in general charge. Point J 2J pll .-...... (' 1 Number 8, the concept will be covered in general charge as 2 will point number 9 and 10. Life expectancy is 11. Do we 3 have anything there that we are going to do here? 4 MR. LUTZ: As I recall, Your Honor, Dr. Gouse said 5 she sustained a permanent injury. 6 THE COURT: Yeah. Do we agree or stipulate that 7 life expectancy is 32.5 years? 8 MR. BANKO: That's fine, Your Honor. 9 THE COURT: So that life expectancy -- are we 10 talking from today? 11 MR. LUTZ: Yes, Your Honor. Oh, wait. . I'm sorry, 12 Your Honor. I believe the actual point for charge reads from 13 the date of the accident. 14 THE COURT: Her age -- her life expectancy of all 15 persons of Mrs. Smith's age at the time of the accident was 16 32.5, so they can extrapolate from that. I will put in that 17 her life expectancy is 32.5 years from the time of the 18 accident. 19 And 12 is the aggravation creates the existing 20 condition. I will charge on that same concept on 13 for the 21 charge. And l4 consortium, I will charge. 22 Defense points for charge. One is denied. Two, 23 which is causation, will be covered. As same with 3. Number 24 4, credibility, will be covered generally in the charge, and 5 25 also is credibility point, as is 6, all covered in general 122 .~~.. r-" 1 THE COURT: Simple. 2 t-iR. LUTZ: Judge, you were kind enough to hand us 3 a proposed verdict slip. 4 THE COURT: Does that look okay to you? S MR. LUTZ: Well, I have a concern. Let me voice 6 my concern. Will you hand that to the Judge, please? 7 (Whereupon, the court reporter complied.) 8 MR. LUTZ: Judge, my concern is that in this case 9 we have two doctors saying that she was hurt, the two doctors 10 from the plaintiff. And then the defense expert just conceded 11 that she was hurt in this accident. And I can cite for you 12 specific references to his deposition. 13 THE COURT: He definitely said that she suffered 14 injuries as a result of the accident. He agreed, at least at lS a minimum, with the initial prognosis of Dr. Davis. 16 MR. LUTZ: So my concern is if they answer 17 Question 2, No, was the Defendant's negligence a substantial 18 factor in bringing about the plaintiff's harm, we have an 19 inconsistent verdict given the evidence. 20 In the case I just handed you is Mano versus 21 Madden, 738 Atlantic Second 493, and that case, what happened 22 was, it's almost identical here, except for the verdict, of 23 course. There was a defense verdict on substantial factor and 24 the trial judge had to reverse and Superior Court affirmed. 25 l~y concern is by including Question 2 in the ", :" ,,(. ':".'.:'.' ",.,' "<~.'~,.I,::\,: ~:' ,~. .-.;:,,'\,,::.':",::~::'~;'h,\~~IL':,~:,r.:i-';~'~::"~~::1,~,;,,:\:,:t:''..l,':'. ".: ,_~:_. ',~ .~..:' ~\: ':::,~ ;::':~'::-:"': ;',~" :::. '\'",", , .~, "-'. 1 verdict, are we inviting an inconsistent verdict? 2 THE COURT: Maybe the better way to word that is, 3 Was defendant's negligence a substantial factor in bringing 4 about harm to plaintiff? Because what is at issue here, 5 rather than plaintiff's harm, what is at issue is really the 6 extent of that harm. 7 MR, BANKO: I don't agree, Your Honor. 8 THE COURT: You don't? 9 MR. BANKO: No. And the reason I don't agree is 10 all of the doctors in one fashion or another relate this 11 automobile accident to her symptoms by -- as a result of her 12 subjective statements, subjective history, which I think that 13 I have made a big dent in in cross-examination of her. 14 And certainly the jury could find that the lS plaintiff is not credible, If the plaintiff is not credible, 16 then the history she gave was not credible, and the doctor's 17 opinion is not worth anything with respect to the neck and 18 back. 19 That leaves us with the forearm, and there are 20 certainly cases out there, Pennsylvania Supreme Court case 21 I can't cite to Your Honor right now. I don't have it -_ 22 where not every injury is compensable. If it's a normal, 23 every-day, run-of-life injury, you are not necessarily 24 entitled to compensation for it. 25 THE COURT: I essentially agree. J am going to ] 2~) ,.-.. ,.-', 1 reword it. I am going to leave the causation question in. 2 r'lR. BANKO: Okay. 3 THE COURT: I am going to word it, though, was 4 Defendant's negligence a substantial factor in bringing about 5 harm to plaintiff. 6 MR. BANKO: That's fine. 7 THE COURT: I think that's clearer because -- 8 well, I think the causation has to be answered by the jury. 9 Certainly the extent of the harm is a challenge at issue here. 10 So I think they have to answer that. 11 All right. Now, let me see. Well, you still are 12 opposed to me doing it? 13 MR. LUTZ: Yes, Your Honor, for the record. 14 THE COURT: I am going to do it, and I am going to lS change the words harm to plaintiff. I will give you a new 16 copy of the verdict slip. I think the rest of it's accurate. 17 MR. BANKO: Just for clarification, Judge I 18 know you will go over the verdict slip with them, but if you 19 just put in Question 3, plaintiff, Alice Smith, so they know 20 specifically you are dealing with her. 21 THE COURT: Yeah, that's a good point. Find 22 plaintiff, Alice Smith -- all right. I will do that. And 23 Question 4, I have John Smith in there. Okay. Great. 24 MR. LUTZ: Thank you, Judge. 25 THE COURT: Good. 126 ..'" 1 given to the testimony in this case. 2 Credibility does not merely mean truthfulness or 3 the lack of it, although that's an important element. 4 Credibility involves accuracy of recollection, accuracy of 5 observation. It's possible that a witness intends and desires 6 to tell the truth, yet through faulty memory and faulty 7 recollection may be mistaken in his or her testimony. 8 So you must determine how much of the testimony in 9 this case is both truthful and accurate, for those are the 10 hallmarks of credibility. 11 In passing upon the credibility of any witness, 12 you should consider their accuracy or inaccuracy of memory and 13 observation, their appearance on the witness stand, their 14 manner of testifying, their apparent candor and fairness or 15 the lack of it, their apparent intelligence or the lack of it, 16 the probabilities or improbabilities of their testimony, their 17 ability and opportunity to acquire knowledge of or to observe 18 matters concerning their testimony, whether they have given 19 any prior inconsistent statements or testimony. 20 In other words, you should consider all of the 21 surrounding circumstances in order to determine which of the 22 witnesses are more worthy of credit and belief, and you are 23 not bound in accepting even uncontradicted evidence or the 24 uncontradicted testimony of any witness. 25 In judging credibility and weight to be given to 128 -', r- 1 the testimony of any witness, you should use your own 2 understanding of human nature and your common sense. You may 3 consider the interests which any witness may have in the 4 outcome of the case or whether a witness has a friendship or 5 an animosity toward any person concerned in the case. 6 The number of witnesses offered by one side or the 7 other does not determine the weight of the evidence. The 8 important thing is the quality of the testimony of each 9 witness. In other words, that that testimony which you 10 consider worthy of belief. 11 Now, you may find inconsistencies in testimony. 12 And even actual contradictions in the testimony of a witness 13 does not always mean that a witness has been willfully false. 14 Sometimes a witness forgets or remembers incorrectly or 15 sometimes two or more persons testifying as to the same 16 incident may see or hear it differently. A witness, in other 17 words, may be innocently mistaken in recollection as to how 18 something happened. 19 If differing parts of the testimony of any witness 20 or witnesses appear to you to be inconsistent, you should try 21 to reconcile conflicting statements, whether of the same or 22 differing witnesses, if it can be done fairly and 23 satisfactorily. 24 In making this decision, you should consider 25 whether any conflict involves a matter of importance or merely 129 ~ r'. 1 some detail or whether conflict is brought about by an 2 innocent mistake or an intentional falsehood. 3 If, however, you decide that there are general and 4 irreconcilable conflicts in the testimony in this case, it's 5 your function, it's your duty to determine which, if any, of 6 the contradicting statements you will believe. 7 You should consider all of the facts which might 8 in any way affect the weight to be given to the testimony of 9 any witness, and you are permitted to draw from facts found by 10 you to have been proved, such reasonable inferences as you 11 deem justified. 12 Inferences are conclusions which reason and common 13 sense lead a jury to draw from facts which have been 14 established by the evidence. So unlike a guess or conjecture 15 or speculation, reasonable inference is derived from the 16 process of reasoning whereby from facts established by the 17 evidence both a reasonable and a logical conclusion can be 18 drawn therefrom. 19 Again, you should consider all of the testimony in 20 order to determine the truth to try to reach what is a just, 21 true and correct solution of this controversy. And you should 22 not be influenced by favor, by prejudice or by sympathy. 23 Given the type of case that this was, several 24 witnesses who were called to testify, both for the plaintiff 25 and defendant, had some special knowledge or skill or 130 '. i:', <' """'::~';"i"';"'" ~,:,:'" ,l:~:\ ~,,"':'~.'::,:.,', >" :<!,':L~::~.;, :<~l\.,~ ,'~i.,~'\,~\:~J"t':':':I'\':;-:' '\: ,~'/"':,:,'~"(~':"~ <:: ,(," :''''",:1. :.:< ;.'.:';',j'.' . 'I'>>:, ,,": : ,-", r 1 experience or training or education in a particular science, 2 profession or occupation; and therefore those witnesses, 3 unlike ordinary fact witnesses, were allowed to offer you an 4 opinion as an expert as to any manner in which that person was 5 skilled. 6 In general, the opinion of an expert has value 7 only when you accept the facts upon which it is based. This 8 is true whether the facts are assumed hypothetically, come 9 from the witness's personal knowledge, from some other proper 10 source or from a combination of these. 11 In determining the weight to be given to any 12 opinion, you should consider the qualifications and 13 reliability of the witness, and the reasons given for the 14 opinion. You are not bound by an opinion merely because the 15 witness was qualified to offer it to you. You may accept it. 16 You may reject it as in the case of any other witness. 17 You give such testimony the weight to which you 18 deem it is entitled, and you judge the credibility and weight 19 of any such witness in the same manner and under the same 20 standards of credibility that I charge you with respect to all 21 witnesses. 22 Now, as indicated, defendant, Michael Kaufman, has 23 admitted negligence, that he caused the automobile accident, 24 but he denies that his negligence caused harm to plaintiff , 25 Alice Smith. l31 ,/.......~ ,,- 1 must be reasonable, and they must compensate plaintiffs 2 completely for damages you find were sustained in the past as 3 well as any damages you may find plaintiff will sustain in the 4 future. 5 The burden of proving any damages, as I said 6 before, is on plaintiff by a preponderance of the evidence. 7 Damages may not be awarded on speculation or conjecture. 8 Compensatory damages may not be assessed to punish a 9 defendant. In this case those compensatory damages that you 10 find were caused by the accident, would be recoverable in the 11 following categories: 12 Pain and suffering. Plaintiff would be entitled 13 to be fairly and adequately compensated for such physical 14 pain, mental anguish, discomfort, inconvenience and distress 15 that you find she has endured from the time of the accident 16 until today, and that you find will be endured in the future 17 as a result of this accident. 18 Two, embarassment and humiliation. Plaintiff 19 would be entitled to be fairly and adequately compensated for 20 such embarassment and humiliation that you would find that she 21 has endured to date, and that you would find that she will be 22 enduring in the future as a result of this accident. 23 And third, loss of life's pleasures. Plaintiff 24 would be entitled to be fairly and adequately compensated for 25 any past or future loss of the ability to enjoy any of the 13;1 '" r-- 1 pleasures of life or inconvenience that you find has occurred 2 or will occur as a result of the accident. 3 In this regard, notice that I have put the 4 framework of the three types of damages, pain and suffering, 5 embarassment and humiliation and loss of life's pleasures into 6 both past, meaning from the date of the accident, which in 7 this case, I believe was April 25, 1998, to date, and in the 8 future. 9 It is of course for you to determine if you find 10 liability in this case. In other words, causation as I have 11 described it. Whether or not plaintiff has suffered such 12 damages in the past and/or whether she will suffer such 13 damages in the future. And based upon your findings, then you 14 will award a fair and just verdict based on the general 15 standards of the award of compensatory damages that I have 16 indicated to you. 17 As to such future damages it is our claim here, 18 counsel have agreed, and we agreed when we prepared before my 19 giving this charge, that if you will recall, plaintiff 20 testified, and I believe I am accurate, that she was born on 21 September 10, 1948. And counsel have agreed that at that 22 point of the accident, April 25, 1998, under the United States 23 Mortality Tables she had a life expectancy of 32.5 years. 24 Mortality tables are admissible in Pennsylvania 25 for the purpose of assisting a jury in determining a 135 1~5 , .' , ..' '.', . . . .' ','. ~ .' . . " . :: . " ';"""'. _ _ .' .' " ., " . , . ..... " . M : . "' r' 1 plaintiff's future damaqes. However, in using such tables, 2 certain variables must be taken into consideration in 3 determining the possible duration of life. 4 Gender, prior state of health, nature of daily 5 employment or life and it's perils in any manner of living, 6 personal habits, individual characteristics and other factors 7 concerning an injured party, may affect the duration of life. 8 Accordingly, mortality tables have been introduced 9 to aid you in determining plaintiff's claim to future damages. 10 They are not, however, to be applied rigidly. Rather, you 1l should consider those tables along with all such other 12 variables as the evidence shows in this case are relevant in 13 determining the possible duration of plaintiff's life. 14 So to recapitulate, if you reached the issue of 15 damages, those issues of damages that I indicated to you are 16 past and future pain and suffering as I have described it. 17 Past and future embarassment and hurni1iation as I have 18 described it. Past and future loss of life's pleasures, as I 19 have described it. 20 The determination of whether any of such damages 21 has been proven by a preponderance of the evidence is for you, 22 and you must award compensatory damages if you find that 23 defendant's causal negligence was a substantial factor in 24 causing harm to plaintiff. 25 You must award such compensatory damages either 136 ,',", r 1 for past and/or future losses, as you find plaintiff has been 2 proven by a preponderance of the evidence in this case, and as 3 you find is fair and just under the standards that I have 4 given to you. 5 Now, one other item in this case. In addition to 6 plaintiff Alice Smith's claim, her husband, under Pennsylvania 7 law, has a claim for consortium. Under Pennsylvania law, when 8 a spouse is injured and entitled to recover from a defendant, 9 his or her spouse -- in this case Mr. Smith -- would be 10 entitled to recover for the loss of his consortium as a result 11 of injuries to wife legally caused by defendant's conduct. 12 Recovery for such loss in this case means that 13 John Smith would be entitled to recover compensation, money 14 damages, for the loss of his wife's companionship, services, lS aid, comfort, society, both past and future, as you would find 16 from the evidence he has sustained. 17 You measure such a loss and award such damages on 18 a reasonable basis in the same manner as you award other types 19 of damages that I have just discussed with you. So the claim 20 for loss of consortium in this case would be for the loss of 21 his wife's services, aid, comfort and society, both past and 22 future, as you would find from the evidence he has sustained 23 as a result of his wife's injuries that you would have had to 24 find were sustained as a result of the causal negligence of 25 defendant. 137 1_':; 7 "" r-" 1 negligence. 2 Again, note that I broke those damages down into 3 past and future pain and suffering, past and future 4 embarassment and humiliation, past and future loss of life's 5 pleasures. 6 You would not, yourse1 f, break them out. You 7 would determine what amount should be properly awarded in 8 three categories as you find the evidence would support, and 9 then you would total that amount, and only the total, you 10 would place at the bottom of the slip. 11 You do not break out individual damages. You 12 consider everything, and if you award damages, you state the 13 total, and place that in there is a dollar sign down at the 14 bottom of the form and that's where you place it. 15 And the fourth question, if you answer Questions 1 16 and 2, Yes, and award damages in Question 3 to Alice Smith, 17 then you state the total amount of loss of consortium, if any, 18 that you find John Smith, Sr., sustained as a result of 19 defendant's causal negligence. 20 A] 1 of the photographs are going out. with you. 21 The rest are documentary stuff, and you've heard evidence and 22 testimony on that. They won't go out. But the photographs, 23 Plaintiffs' Exhibit 1 through 12, will go out with you. 24 I think the first thing you should do when you 25 retire to deliberat.(> is tn ~~()}j.?cf..:. '.:'ne cf your- :r-,crr.bcrs oS a J:<" I,~~/i /~ I'"' , , ." . J . " '." . ,',' " . ",- , :' t' ,'. '-, ,,' '. .' .' 1. Foreman. The job of the Foreman is to conduct the 2 deliberations of the jury in an orderly and civil manner, and 3 take the votes necessary to resolve the issues before you. 4 As I told you the other day when you were with the 5 larger group on Monday morning, unlike a criminal case where a 6 jury must be unanimous, in Pennsylvania -- the law is 7 different everywhere, by the way. In Pennsylvania a civil 8 jury may return a verdict if either 10, 11 or 1.2 jurors agree 9 with the entire verdict, and that's the basis upon which this 10 case is being submitted to you. 11 So, what that means is this: No matter how many 12 questions are answered on the verdict slip, either the same 13 10, the same 11 or same 12 must agree with every question 14 answered on the verdict slip. There can't be a mix-and-match. lS And the first question I am going to ask the 16 foreman when you return is no matter how many questions are 17 answered here, 1 am going to ask, Did the same 10, same 11 or 18 same 12 of you agree with every question answered on the 19 verdicts slip? 20 And if I hear the answer, Yes, I will ask how 21 many. And if the answer is either 10, 11 or 12, I will take 22 your verdict. And if the answer is less than 10, I will shoo 23 you upstairs to continue to deliberate, because you won't have ~4 a legal verdict tor a c1vil case under pennsylvania law. 25 Also as I mentioned on Monday, I have given you a 140 lit I ~ r 1 lot of law fast, a lot of procedure fast. We deal with this 2 all of the time. If you need any review or further 3 instructions regarding the law or the procedure that I have 4 outlined to you, the Foreman should write the question or 5 questions out on a piece of paper, do it as many times as 6 necessary. We will bring you down, and I will endeavor to 7 answer your questions and review anything you need. 8 Note, I have not mentioned boo about the evidence, 9 and there is a reason. I don't have anything to do with the 10 evidence. You are the fact-finders. And when it comes to 11 questions, it is not for you to ask us questions about what 12 the evidence is, because that's why there is 12 of you to 13 collectively review and determine what the evidence is, and 14 make the findings of fact and reasonable inferences to be lS drawn from that evidence. 16 But if you have questions and you need reviewed 17 again on these legal standards that I have given you and the 18 procedure that I have given you, we will do it as often as is 19 necessary, and be happy to do it under those circumstances. 20 Counsel have any additions or objections to add to 21 the charge? 22 t1R. LUTZ: No, Your Honor. ~1R. BANKO: No, Your Honor. THE COURT: We dre gett ing you out at a nice time. You take whatever time is nec~ssary to resolve this case. 23 24 25 141 I (Pd. , . , , .', , ' ',' ',' ~. '. "': ", ':... : ',', . j... ',' . , . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 lS 16 17 18 19 20 21 22 .,.-.." r This dispute obviously between these parties is for them a serious matter. They rely upon you to give full and consciencious deliberations and considerations to the issues in evidence before you. You should not be influenced by anything other than the law and the evidence of the case. You should not allow sympathy or prejudice to influence influence your deliberations. All parties stand equally before you. Each is entitled to the same partial and fair treatment at your hands. You may now retire and deliberate. (Whereupon, the jurors exited the courtroom to deliberate at 2:04 p.m.) (Whereupon, the jurors entered Courtroom No. 3 at 3:20 p.m.) THE COURT: Now, who is the jury foreman? FOREMAN: I am, Your Honor. THE COURT: Do you have the verdict slip? FOREMAN: (POSITIVE INDICATION) THE COURT: Gerry, will you fetch me the verdict slip. MR. KAUFFMAN: (C01~PLIED) 23 THE COURT: I have you over here because I have a 24 courtroom full of other jurors to select another case, so 25 rather than move them out, we did it this way. 142 t~" t"" 1 Sir, would you remain standing and tell us your 2 juror number please. 3 FOREMAN: My number is 119. 4 THE COURT: Have either 10, 11 or 12 jurors agreed 5 to every question answered on the verdict slip? 6 FOREMAN: Yes, Your Honor. 7 THE COURT: How many? 8 FOREMAN: Ten. 9 THE COURT: Of the 10 jurors who have answered 10 every yes on the verdict slip, question number 1, do you find 11 defendant was negligent, what is the answer? 12 FOREMAN: Yes. 13 THE COURT: Question Number 2, was Defendant's 14 negligence a substantial factor in bringing about harm to 15 plaintiff? What is the jury's answer? 16 FOREMAN: No. 17 THE COURT: And having answered that, no, you did 18 not award damages; is that corr.ect? 19 FOREt1AN: That's correct. 20 THE COURT: You may be seated. Let the verdict be 21 recorded. That's going to be your last case. I will keep you 22 here for a moment. 23 MR. LUTZ: I nC'.(~d 1-0 'lprroach, Your Boner, .)nd put 24 something on the record. 25 THE COURT: Okay. 143 /""'l" r 1 (Discussion at sidebar on the record.) 2 MR. LUTZ: Your Honor, there is some Superior 3 Court cases that by reading that leads me to believe that if I 4 don't object now that I waive my objection. S THE COURT: Then you should object now. 6 MR. LUTZ: I am objecting the verdict isn't 7 consistent, given the fact that the defendant's expert 8 testified that the plaintiff was hurt in the accident. The 9 plaintiff's experts testified that she was hurt in the 10 accident, and yet the jury found that there was no harm at 11 all, no injury whatsoever in this accident. 12 The evidence clearly proved that she had some 13 injury, and therefore a verdict like this cannot stand, and I 14 must place on the record my objection. lS THE COURT: Okay. Your objection is well-noted. 16 Good. We are adjourned. Parties can leave. 17 (Whereupon, court adjourned.) 18 19 20 21 22 23 24 2:' 144 A ,... ALICE AND JOHN SMITH, SR, PLAINTIFFS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. MICHAEL KAUFMAN, DEFENDANT : 99-2759 CIVIL TERM !N RE: MOTION OF PLAINTIFFS FOR POST.TRIAL RELIEF ORDER OF COURT AND NOW, this I ~ day of July, 2000, the motion of plaintiffs for a new trial, IS GRANTED. 7/ /~ By the Court, / . ,. , i\ David Lutz, Esquire For Plaintiff ~1f)aJJ ry-/7-bO '"R K.5 Stephen L. Banko, Jr., Esquire For Defendant :saa IL?l , " , , ~" . . .' ~ ' ') , . . t' .,' ! , ' '. " " ' , " :, / ,. t.: "'~Ij . I~:.~;\: , ;: (~. .1/.: '<<~ iT::, " ~, " " i ,"", "'\:Y ',' ",.", "': i ,- " ".,' -, ,-:. ,I' . " " "." . I "-" \.... ,,' /-, ,....., 99-2759 CIVIL TERM testified that she was going approximately 28 miles per hour at the time of the collision. Her seatbelt was fastened and the airbag in her vehicle inflated. The chemicals in the airbag burned her on the right arm and right side of the head. Those minor injuries, including a bruise on her arm, subsided in a period of weeks. Plaintiff testified that while she was at the accident scene, the right side of her back and neck hurt. She felt shaken up and chose not to go to a hospital in the ambulance that came to the scene. She told a police officer what her condition was and the officer drove her home. The police officer testified that plaintiff was injured. Plaintiff testified that during the remainder of April 25th and 26th, which was a Sunday, she became very sore with pain and headaches. On Monday, April 27th, she saw a family physician, Richard Davis, M.D. Dr. Davis testified that when he examined plaintiff on April 27th: She had some bruising present on the underneath portion of the forearm and some mild swelling there. The range of motion at that point of the neck and shoulders, elbows and wrists were within normal limits. She was tender to palpation of the muscles along the neck and along the upper thoracic spine, which would be, like, between the shoulder blades. And !. f91t mainly she had a ceNical thoracic strain and right forearm contusion. (Emphasis added.) Dr. Davis advised defendant to rest. She returned to see him on May 11th. He testified: [Alt that point, she stated that she was still having the tightness and achiness across the bacK of the shoulders and the back of the neck. The right leg and right forearm were feeling fine, and the contusions and swelling had gone down and healed up. My examination at that point showed full range of motion of the shoulder and neck _ shoulders and neck; although, there was some mild discomfort on the range of motions. An examination of the motor neural -2- \{ylJ ~ F\ 99-2759 CIVIL TERM exam of the upper extremities was within normal limits at that point; in other words, I didn't see any signs at that point of a disc problem or a pinched nerve. And l felt we're still dealing with just a strain of the muscles of the neck and upper back. (Emphasis added.) Dr. Davis had plaintiff obtain X-rays. The impression of the radiologist: [w]as that it showed no fracture or traumatic vertebral misalignment evident. It did show moderately advanced eG-7 degenerative disc disease and mild mid to lower cervical osteoarthritis and also shoVled partial straightening of mid to lower cervical lordosis and restricted mobility suggestive of muscle spasm. (Emphasis added.) Dr. Davis was of the opinion that the degenerative disk disease existed before the automobile accident. He saw plaintiff on May 26, 1998 and she complained of having discomfort in the back of the neck and under the right shoulder blade. He recommended physical therapy, which plaintiff undertook. Dr. Davis saw plaintiff on June 25th and again on July 23'd. On July 23rd, his examination showed some decrease in extension and turning of the neck. He then had plaintiff undertake an evaluation by an orthopedic surgeon Jason Litton, M.D. Dr. Litton examined plaintiff on August 27, 1998. Dr. Davis testified that Dr. Litton believed that: [F]urther physical therapy would not be of any benefit and that she should just give it some time and take Tylenol since anti-inflammatories bothered her stomach. He was hoping just with time that it would get better. He felt that she had a strain, again, of the neck due to the car accident and also arthritis in the neck. (Emphasis added.) Dr. Davis saw plaintiff on September 21, 1998. During the examination she complained of headaches. Plaintiff asked Dr. Davis if she might be able to obtain some relief from a chiropractor and Dr. Davis told her that it might be helpful. Plaintiff saw a -3- liD ;*; ~ 99-2759 CIVIL TERM preexisting "moderate-advanced degenerative disk disease." The preexisting condition was at C6 - C7 of the cervical spine at the base of the neck. On cross-examination, Dr. Bowerman testified: a. Were you given any medical records to show that she had chronic neck pain before this accident? A. I was not. a. In fact, in reading some of the records, did you get the impression that she was asymptomatic before this accident? A. Yes. Dr. Bowerman testified on direct examination: a. When you talk about injuries in the motor vehicle accident, was there any - did you find any objective evidence of an injury sustained in that motor vehicle accident to her neck and her back? A. Yes. There was documentation of objective findings. a. Okay. Do you recall what they were? A. Certainly. When she consulted Dr. Davis, she had presented with a cervical thoracic strain and a contusion or a bruise of the right forearm. a. Setting aside the forearm, because I know you can see the bruise, I'm going to focus on the neck and the back. Was there any objective that he found in his notes, as opposed to her subjective complaints. A. I don't see anything here. (Emphasis added.) On cross-examination, Dr. Bowerman testified: a. Okay. And Dr. Davis' diagnosis was cervical thoracic strain? A. Yes. a. Okay. Tell the jury what that means? A. A cervical, which is the neck, and the thoracic, which is the upper back, a strain of that is an overexertion of the muscle in that region. a. And what is the mechanism of injury in a motor vehicle accident of a cervical thoracic strain? A. It would be - depending on the vector. I mean, that's a fairly broad question. So to bring it down, a cervical or thoracic strain would be any type -5- [/d f""'l\ f"""\ 99-2759 CIVIL TERM of violent movement which would cause the muscles to exceed their normal tensile strength. a. Let me ask you this, Doctor: You've looked at Dr. Davis' records. Would you agree with Dr. Davis' diagnosis that she sustained cervical and thoracic strain in this motor vehicle accident? A. That's consistent with the mechanism. a. So you agree with Dr. Davis? A. Yes. (Emphasis added.) Dr. Bowerman testified that he concurred with Dr. Litton, the orthopedic consult, that plaintiff would not benefit further from physical therapy. He was of the opinion that the initial chiropractic evaluation and initial treatment of plaintiff conducted by Dr. Gouse was appropriate. However, he concluded that the subsequent treatment by Dr. Gouse was not appropriate or reasonable for the injuries sustained in the automobile accident because plaintiff was not showing substantial improvement. On cross-examination, he testified: Q. Okay. Doctor, let me ask you this: If Mrs. Smith came to you September 22, 1998, with symptoms of neck pain and thoracic pain, with a history of an accident in April that same year, would you provide her with chiropractic care? A. I would first provide her with an assessment. I would evaluate her to determine whether or not, first of all, that there were any contraindications to manipulation; prior to treatment, I would formulate a treatment plan, and I would do that in a time-limited basis. That would mean that I would attempt to do treatments that were not done before, attempted, and did not prove to be efficacious. And at the end of that trial of care, if I could substantiate that she made significant clinical progress, such as more then 50% in that four-week basis, I would reduce her treatment frequency and expect a resolution, at least as far as my treatment, in an 8 to 12 week period of time. Q. Doctor, I wrote this down. because I think this is a direct quote, you said ongoing residuals for these types of injuries. Does that sound like something you said? A. I may have. You're taking it out of context, so I don't remember in -6- J73 !"""\ ~ 99-2759 CIVIL TERM plaintiff a thoracic strain that aggravated her a-symptomatic degenerative disk disease. (5) Plaintiff was followed by Dr. Davis through September 21, 1998, during which time she undertook physical therapy at his direction. (6) An orthopedic consult, Dr. Litton, felt that plaintiff had a strain in her neck due to the accident. (7) Dr. Bowerman, the chiropractor who testified for defendant, also was of the opinion that the accident caused plaintiff a cervical thoracic strain that aggravated her a-symptomatic degenerative disk disease. He concluded that the initial evaluation of plaintiff by Dr. Gouse on September 22, 1998, almost four months after she had been receiving treatment and physical therapy for her injuries, was warranted, and that some of the treatment provided by Dr. Gouse was warranted. Defendant argues that the jury's finding that his negligence was not a substantial factor in causing plaintiff harm can be supported as the "transit rub of life." See Boggavarapu v. Tonisit, 518 Pa. 162 (1988). While that may be true as far as the minor chemical burns and bruise of the arm that subsided in a period of weeks after the accident, it defies common sense as to the cervical thoracic strain that aggravated plaintiffs preexisting a-symptomatic degenerative disk disease, which the medical and chiropractic experts for both the plaintiff and the defendant agreed was caused by the accident on April 25, 1998. The verdict of the jury shocks our conscience. It was clearly against the weight of the evidence. We will grant plaintiff a new trial. -10- 117 .'. ''',,' :',,::.',', . .... :.::. :.:::,'.:....:.y' :: :.:. .::,:, \:"'~.,.:/.;:;' '~.(~....,:.,<,;::;~:,.f,:i:;. ,;, :.,,/<>><;,,/,<:.:,1".': ':;',,::':: :.'. :,:',:,:;\\:,:. ,:: .. :.':,'.' ".. '.', ,.\ ., ." .. ,......., (" PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) (X) for JURY trial at the next teml of civil court ( ) for trial without a jury CAPTION OF CASE (entire caption must be stated in full) (check one) () () (X) () Assumpsit Trespass Trespass (Motor Vehicle) Other ALICE and JOHN SMITH, SR., Plaintiffs The trial list will be called on October 10, 2000. v. Trials commence on October 30, 2000. MICHAEL KAUFMAN, Defendant Pre-trials will beheld on October 18, 2000. (Briefs are due 5 days before pre-trials.) (The party listing this case for trial shall provide forthwith a copy Oflh~ praecipe to all counsel, pursuant to local Rule 314-1.) No. 99-2759 Civil Indicate the attorney who will try case for the party who files this praecipe: David L. Lutz, Esquire Indicate trial counsel for other parties if known: Stephen L. Banko, Esquire This case is feady for trial. Dale: 7-24-00 Signed: Print Nam Da id L. LUlz. Esquire Altomey for Plainti (s) lJ{j ..." r- Q;;RTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served upon counsel of record on the /I day of August, 2000, by United States First Class Mail, postage prepaid, addressed as follows: Honorable Edgar B. Bayley Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Richard J. Pierce, Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Lorraine Troutman, Court Reporter Cumberland County Courthouse One Courthouse Square Carlisle, PA17013 David L. Lutz, Esquire Angina & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110 (Attorneys for Plaintiff) /5tL--I~ Barbara J. ---- ~ .( \1 .:. Smi th, Secretary 1// I ZJ I J;>YS51 0 1999-02759 CumbRrland County Prothonotary'S&Office r~ Civil Case Inquiry" SMITH ALICE ET AL (vs) KAUFMAN MICHAEL AUd'a~4 .1 fleference No.. : Case 'l'ype.....: COMPI,AINT Judgment......: .00 Judge Assigned: Disposed Desc.: ------------ Case Comments ------------- Filed........ : Time......... : Execution Date Jury Trial... . Dtsposed Date. H1gher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info SMITH ALICE PLAINTIFF LUTZ DAVID L 5550 SMITH DRIVE MECHANICSBURG PA 17055 SMITH JOHN SR PLAINTIFF LU'rZ DAVID L 5550 SMITH DRIVE MECHANICSBURG PA 17055 I(AUFMAN MICHAEL DEFENDANT 5665 HILLSIDE LANE MECHANICSBURG PA 17055 5/07/1999 3:08 0/00/0000 0/00/0000 ******************************************************************************** * Date Entries * ******************************************************************************** 5/07/1999 5/12/1999 5/28/1999 1 /l 0/2000 3/] 4 /2000 3/20/2000 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - _ _ COMPLAINT - CIVIL ACTION ---------------------------------.---------------------------------- SHERIFF'S RETURN FILED Litiqant.: KAUFMAN MICHAEL SERVED : 5/11/99 MECHBG PA Costs. ...: $34.06 Pd By: ANGINO & ROVNER 05/12/1999 ----------------------------------------------------------,--------- DEFENDANT'S ANSWER TO PLAINTIFFS' COMPLAINT ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR TRIAL BY DAVID L LUTZ ESQ -------------------------------------------------------------------- VERDICT - JURY SELECTED 3/13/00 DO YOU FIND THAT DEFENDANT WAS NEGLIGENT - YES WAS DEFENDANT'S NEGLIGENCE A SUBSTANTIAL FACTOR IN BRINGING ABOUT HARM TO PLAINTIFF - NO ------------------------------------------------------------------- ORDER OF COURT - DATED 3/16/00 - BY EDGAR B BAYLEY J COPIES MAILED 3/20/00 -------------.------------------------------------------------------ 5/23/2000 TRANSCRIPT LODGED ------------------------------------------------------------------- 5/30/2000 TRANSCRIPT FILED ------------------.------------.------------------------------------- 7/14/2000 ORDER OF COURT - DATED 7/13/00 - IN RE MOTION OF PLAINTIFFS FOR POST-TRIAL RELIEF - GRANTED - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 7/17/00 .------------------------------------------------------------------- 7/25/2000 PRAECIPE FOR LISTING CASE FOR TRIAL BY DAVID L LUTZ ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ****~*************************************************************************** * Escrow Information * * Fees.. DebJts Beo Bal Pvmts/Adi End BaI * ***********~******************************************************************** COMPLAINT TAX ON CMPLT SETTI.EMENT .lel' FEE 35.00 .50 5.00 5.00 35.00 .50 5.00 5.0n .00 .00 .00 .00 ------------- .00 45.50 45. so ..~.*******..*******.**..****.********.***************************************** · End of Cas(~ Inform'll ion * j.....************************.************************************************* I~d 1 -- ! v '...."'" ~ii\: . . G I , . i I I I I I , I , li: i.~.~ I": : en c '" r,: .' --.).,1" '-) ::.:.j. ~~~ ....1;= i,) ."j2 t:;~ ,\111J ~:1~~ ::5 u ~ d!.~ ............ ~ 0l ~ 2 r:t 8: ~811 ,..-., - ' <;~ ":. ( ~., ~ O' , "':::1 D c..' :--- ?:: ~ c,,:' I::::: ~.,. " 1,{J G i~3~ (l;:" , " :.. ,':::: ... ~} (~'; , " , c" .I .- '.0. N ", :f~ i.L c. j': '- :J .... ";.1 U.. C\ C~ ::i f.:~l (;) , ....-........ ',-, (~ t": 2: , > , r.:~: ) ..- '..) ~:; , .'~ . " - .. ?~j ,'., I , n c.... -~ c...': , -,~ ~ ;J - C;:.. .,,::, , (:'") Cj C. ,.::.; C> . . "- '-'.I .~. n. r. " "', . :. . ", :. ~ ' . . . . . . . " I ,,', " .: - ." : ' " . ~ " (D) Edwin Aquino, M.D. (E) Central Penn Physical Therapy; (F) Physician Imaging Centers; and (G) Smith Radiology, Inc. 3. Report of Daniel S. Bowerman, D.C. dated November 1, 1999; and 4. Diary of Plaintiff-Wife provided in discovery. In addition to these exhibits, Defendant reserves the right to utilize any exhibit identified in Plaintiffs' Pre-Trial Memorandum or as necessary for the purpose of rebuttal. VII. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS ~. Pla~iffs have demanded $30,000 and Defendant --:--"-"~~ { 0 ( on has offered VIII. ESTIMATED TIME NEEDED FOR TRIAL Two days. Respectfully submitted, Date: 1-/1/VV By: Steph n . Banko, Jr. Attorney I.D. No. 41727 P. O. Box 932 Harrisburg, PA 17108-0932 3510 Trindle Road Camp Hill, PA 17011 (717) 975-8114 Counsel for Defendant 3 li7 1"1 STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court r. D. No. 41727 V~GOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 3510 Trindle Road Camp Hill, PA 17011 Telephone: (717) 975-8114 FAX: (717) 975-8124 Attorney for Defendant ALICE and JOHN SMITH, SR., Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 99-2759 CIVIL MICHAEL KAUFMAN, Defendant JURY TRIAL DEMANDED PROPOSED POINTS FOR CHARGE OF DEFENDANT. MICHAEL KAUFMAN Date: March {, , 2000 EDELSTEIN By: Step n . Banko, Jr. Attorney I.D. No. 41727 P. O. Box 932 Harrisburg, PA 17108-0932 3510 Trindle Road Camp Hill, PA 17011 (717) 975-8114 Counsel for Defendant, Michael Kaufman I~q . ' ,"'" r\ DEFENDANT'S PROPOSED POINT FOR CHARGE NUMBER 1 I, I A. Under all the evidence presented, I direct that you return a verdict in fav01- of DeftmOdIlL dno against Plaintiffs. B. Under all the evidence presented, I direct that you return a verdict awarding Plaintiffs no money damages. ap'P- f ~ , , I i I q () I " . '. .. .' '.', \..., ^ . . .,' j'." ',:., ' ,', . ,.' , '. . '. . f"\'\ ,......, m;;,EllliDANT'S PROPOSED POINT FOR CHARGE NUMBER 3 Even though Mr. Kaufman admits that he was negligent, in order for Plaintiffs to recover in this case, the Defendant's negligence must have been a substantial factor in bringing about c '- - ~Ml the accident. That is what the law recognizes as legal cause. A substantial factor is an actual, real factor, although the result may be unusual or unexpected, but it is not an imaginary or fanciful factor, or a factor having no connection or only an insignificant connection with the accident. Pa. SSJI (Civ) 3.25 /'~ ; \... --"'.' /q;+ '. ' ., ", . . r ".: " " iT'.' . " ,1''- '.', ' '. I, . . ';: ~. . ::,' ..: '.. . . . " \ . ~')' . f""'I ('\ DEFENDANT'S E1iQl2.QS.ED POINT FOR CP.ARGE NUMBER 4 The number of: wi t1lt!I.>U":J of:t:ct"ed by one side or the other does not, ill ltf3elJ., determine the weight of the evidence. It is a factor, but mIll" one of many factors which you should consider. Whether tlw wi tnenGes appear to be biased or unbiased; whether l:hey <lice i nterente,d or disinterested persons, are among the impondlll. [actorn which go to the reliability of their testimony. TIlt! illlpOl"tilnt thing is the quality of the testimony of each wi I l1l'nll. J n ohort, the test is not which side brings the greater 11I1111I,<.", oJ. wi tIH::Joes Ol" presents the greater quantity of evidence; but wh i eh wi t IleHO or witnesses, and which evidence, YOll consider mOllt wcnthy of belief. Even the testimony of one witness may OUI.WI'lqh that of many, if YOll have reason to believe his u".1. il110ny in preference to theirs. Obviously, however, where the tellt imony of the witnesses appears to you to be of the same quality, the weight of numbers assumes particular significance. (/t2.JA I.,! ), '--- Pa. SSJI (Civ) 5.03 0G- /93 .' , .,,' . ' , ,,, ~ , '" " ",' " - ' '.' "', .: '. ,~' .,:' . , ",: '.' . ' , ' " , , ,,,,", r"""I DEFENDANT'S PROP~ POINT FORJ:HARGE NUMBER--2 In general, the opinion of an expert has value only when you t -- -''''''''.' '" accept the facts upon which it is based. This is true whether the facts are assumed hypothetically by the expert, come from his or her personal knowledge, from some other proper source or from some combination of these. Pa. SSJI (Civ) 5.31 IIlil} :. !' t") (', DEFENDANT'S PROPOSED POINT FOR CHARGE NUMBER 12 I am now going to instruct you on the various elements of .~ damage to which Plaintiff may be entitled. The mere fact that I " or'....' cnarge you on the measure of damages does not indicate and should not be considered by you as any indication that I think damages should be awarded. I am giving you these instructions on damages only because I am required to charge you on all of the possibilities and all phases of the case which you may have to consider. " I I \ ., .' . " ',',; ...,....... .........,~."...,. ."----.. }{'i/ ,-~L", I,;'.,:'" I, ': :, ~:' :,;.',',:, ,.~'f.,' '.' ',,:;'" <:/ ,~:,'..','; ",~,/':'~>:'~'~;;';,:~, :-<.~. ':'.<,':.,',"....,:". "l'." ~ ..:::: :',;, ::-:.~. '~';: J'>~;' ',:- r:',.-:. ,~. ,:',,;~. :', ." \: "~\': ,-.. , , r' DEFENDANT'S PROPOSED POINT FOR CHARGE NUMBER 13 If the evidence on any particular claim for damages is such that some crucial fact is not established, or if the evidence is so uncertain, or if J:he' evidence is so contradictory that you are forced to guess or speculate, then, as to that fact, you must '-.-- .----..- find in favor or the Defendant. Kaczkowski v. Bolubasz, 413 A.2d 1112 (Pa. Super. 1979), 412 A.2d 1027 (pa. 1980). ...."'.~...._....'... {....''" ( \~-~"""" ~...~-"" 1(;). '..,,~ - 1"""\ r-. DEFENDANT'S PROPOSED POINT FOR CHARGE NUMBER 15 There has been evidence in this case that medical services were performed for the Plaintiff. ....,....... However .... you., have received no , ~.".. . amount of the medicar-e'xpense~"of Plaintiff. not recoverable":"'1:n--ehi-s"4a'se:"While you may consider the types of medical services performed in reaching a evidence of the Such losses are verdict on the other types of non-economic damages, such as pain and suffering, your verdict should not include any award for actual medical expenses. Pa. SSJI (CIV) 6.08 a -r" } (il y c ~i)l\ Vi' ) ~. , I "V' lot {/\::::.... 'f~' ,"\ (" .~ "'.... ..' " ./:'~:. . :'~ ': It I ",," ~ " /: } , , L' . \)' ::~ :\",' '. ',:',:, ,i).;,:.':",(<~:;',(::, ::~I~.~\.~;~'r1":~, :,; ~~.~ ,~.:). \: (J\/ ::, j', <"':>.' I~ ..:;: ,:\ '.. ,~,':: :~~, :,' >:: \ ,,;".: 'I' ',~:'. ~:::'\,.'('" ~'!:, ...~',~ I """'I ALICE and JOHN SMITH, SR.. Plaintiffs YS. MICHAEL KAUFMAN, Dcfcndant ,'-" IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 99-2759 Civil JURY TRIAL DEMANDED PLAINTIFFS' POINTS FOR CHARGE PlaintitTs rcspeclfully requesllhe Court read the following Points for Charge 10 lhe jury. Dale: 3...1) - 00 ~(N11-11 J)IL\1I(i ANGINO & ROVNER, P.C. ~lZ !.D. No. 35956 4503 N. Front Slreet Harrisburg, P A 17110 (717) 238-6791 Allorney for Plaintiffs ",/,/" clUJ l , , , I I 1 I 1 ~ r, PLAINTIFFS' POINT FOR CHARGE NO.2 In general, the opinion of a~s value only whcn you accept lh~ facts upon which it is based. This is true whcther the facts are assumed hypothctically by lhe expert, comc from his personal knowledg~, from some olher proper source or from some combination of these. Pa. SSJI (Civ,) 5.31. ,...'..... (_.....~.. ......,...~.....' . :!U911-' rOil \\11(; cJ[') ~ ,~ '. -" ,'"" ?~._- , PLAINTIFFS' POINT FOR C1IARGE NO. (, Mrs. Smilh is entitled to be fairly and adequately compensated for such physical pain, mental anguish, discomfort, inconvenienc~ and distress as you b~lieve sh~ will endure in the future as a result of her injuries. Pa. SSJI (Civ) 6.0IF; MUlphv v. Tavlor, 440 Pa. 186,269 A.2d 486 (1970); Cunninl!ham v. Davis, 688 F. Supp. 1030 (E.D. Pa. 1988). v :(\1.)114 LOll'Mltj ;J!I " . .,' .' \' ,":' .~ ' , ,',.'. I' , " '\; :,~ ,~ , " ," "~, " / : :"; :,,~ I'., \ ;,',:: ;:~i,.;j.".':~'..~,,~; ~~:. .~;'"". :::'::(:'"~'~" ~, l\.:';: '::' ':,"';:-'.";<'<1 '::' " " ,; > ,::.:.~..~, ',1:'; ::"; :',',." r'. " .' "., " "',," ~. ". 1""', ('\ PLAINTIFFS' POINT FOR CHARGE NO.9 Mrs. Smith is entitlcd to be fairly and adcquately compensated for such cmbarrassment and humiliation as you believe she has endured and will continue 10 cndure in lhc fulure as a result of her injuries. Pa. SSJI (Civ) 6.010; Frankel v. Uniled Slatcs, 321 F. Supp. 1331 (ED. Pu. 1970), afrd, 466 F.2d 1226 (3d Cir. 1972); Marinelli v. Montour R.R. Co., 278 Pa. Super. 403, 420 A.2d 603 (1980); Fish v. Gosnell, 316 Pa. Supcr. 565,463 A.2d 1042 (1983). V'" C :(,..114 I nt.l \MHi ~ ) j/ J l.::/ 1 "1 .-. -- .~. ..-....... ,,....., ~ .' PLAINTIFFS' POINT FOR CHARGE NO.1 0 Mrs. Smith is entitled to bc fairly and adequately compensated for past, prcsent and fulure loss of her ability to enjoy any of the pleasures offife as a result ofhcr injuries. Pa. SS.l1 (Civ) 6.011; Frankel v. United Slat~s, 321 F. Supp. 1331 (E.D. Pa. 1970), !If!'!!, 466 F.2d 1226 (3d Cir. 1972); Corcoran v. McNeal, 400 Pa. 14, 161 A,2d 367 (1960); Thoml1son v. Iannuzzi, 403 Pa. 329, 169 A.2d 777 (1961); DiChiacchio v. Rockcraft Stone Producls Co., 424 Pa. 77, 225 A.2d 913 (1967). c- ( "'u41 14 1\!)1I\\fHi ~ ., ,'(-- J) .: ."; ,:. /'.:';: ,>,:;:<. ,:' ,<,,:-\:':<:, ":-;;:;':"::';'\':~Jf-:'>'''':I;~:':I;'~'::';~':'': :,~,:<:"':'::'~':':''':_;;:<::}",,:' ,;::~:",,:,,"',: ',:' ::':,:::: ;:' :::"', <,: ~ (-. PLAINTIFFS' POINT FOR CHARGE NO. I I If you find that Mrs. Smith's injuries will continue beyond today, you must d~tcrmine hcr life expcctancy. According 10 slatistics compiled by the United Statcs Department of Health, Education and Welfare, the average lifc expectancy of all persons of Mrs. Smith's age at lhe time of accident, sex and rac as 32.5 years. fhis figure is offered 10 you only as a guide, and you are not -~... bound to aeccpt il if you believe that Mrs. Smith would have Iivcd longcr or less than the average individual in his category. In reaching lhis d~cision you are to consider Mrs. Smilh's health prior to the accident, her manner of living, her personal habils and oth~r faclors lhalmay have affected the duration of her life. Pa. SSJI (Civ) 6.21; Rosche v. McCov, 397 Pa. 615,156 A2d 307 (1959); M~sser v. BciL!hlgy, 409 Pa. 551. 187 A2d ] 68 (1963); see, Life Expectancy, Vital Slatistics of thc Unitcd Stal~s, (1988) Life Tables. IICQ- , ,\y/~"\ /) /.1, ....v....., i .- .... , ", ! 77- ) (.'-. -.l, )~/ \~C/ ' C1 (;tl'r(/1 ?<- 10YJ 141\1)1 ,1.\\1H. ,) III ,.,' "',' ,".: '., '.\, ~'/' \;", .','" "~' ""'!'~'" "::'\~O" ;~'.f",,'.:.':: :"~'> :','~':'I.; ""\ "\,.-",,.. " J:,:,. I":"~' " ""f I.... ~ , <" '; . <':' ' , .:.,..,., . ,l"(.~ 1"t'~'~'lI'.'I'" \\", .: ' ,....001 '.,"'" \!,'. , : ,.' r. '''1\ . , " '. ' ",.~' """" , '. " " l' ~ I. .' ".~.: 1 . ,,"" \, " ,',.. I .. L . r , .) , , . , '"~ PLAINTIFFS' POINT FOR CHARGE NO. 12 The law Jlrovid~s thaI if a p~rson goes through Iif~ with a reasonable degree llfhappiness and without pain and is involved in a Illotor vehicle aecid~nt where her pre-existing arthritic 4:"-- condition is aggravaled, activated, or exacerbated, the accident victim may bring a claim for the l/f1.......___......... aggravation, activation, or exacerbation of the pre-~xisting condiliol!. Meyer, Law of Vehicle Negligence in Pennsvlvania, ~28.16, pp. 9-11 (1970); Freer v. Parker, 411 Pa, 346, 192 A.2d 348 (1963); Frells v. I'avelli. 282 Pa. Super. 166. 422 A.2d 881 (1980); Gever v. Steinbronn, 351 Pa. Super. 536, 506 A.2d 90 I (1986). c C_ :O'H 14 l'.l>II..\1Iti - J'-) ") ! L.-~' , ......, ~- , Pl.AINTlFFS' POINT FOR CIIARGE NO. 13 As you heard. doctors have lestilied that Mrs. Smith had a pre-existing degenerative condition of her cervical spine before the subject motor vehicle accidcnt. Although Mrs. Smith had lhis pre-existing condilion. lhis docs not mean thaI she is not entitled to recover for those additional injuries which have activated a dormant condition. If you ..-.,.---'"'' ~ ...,. find lhat Mrs. Smilh's condition was aggravaled, activatec,lor cxacerbalcd by this accid~nt, you ~ ( must award Mrs. Smith such monetary damagcs as you feel she is enlitled 10 be compensaled. The law has detclluined lhal a Def~ndantl11usl take his victim as he finds her. Lehesco v. Southeastern Pennsvlvania Transll. Authoritv, 251 Pa. Super. 415, 380 A.2d 848 (1977); Freer v. Parker, 41 I I'a. 346.192 A.2d 348 (1963); Frells v. Pavctli, 282 Pa. Sup~r. 166, 422 A.2d 881 (1980); Geverv. Steinhronn, 351 Pa. Super. 536. 506A.2d 90! (1986). r-". /'. L-.... .:'iNI141'DILMHi /, ., /'/ ./ :, i i .. .. . ' . "_ '\ ' '1' ' ", , , .'. .'. - '. , " .. .', " ' . '. ' ..',' " ":.'~: . " . .. ' , ~ j I I I' ~i .. .. ANGINO&ROVNER,P.C. .' j ..~"..", 4503 NORTH FRONT STREET , HARRISBURG.,PA 17110 .. (717) 231Hl791 , . . . ". . : '.' ,-,' , ) ':. .' . .' ",'" ".. ',~' ,. , . . ' . " , . . . -, . . ALICE and JOlIN SMITH, SR., Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA vs. CIVIL ACTION - LAW NO. 99-2759 Civil MICHAEL KAUFMAN, Defendant JURY TRIAL DEMANDED PLAINTIFFS' PRE-TRIAL MEMORANDUM I. Brief narrative statement of thc ca~e On April 25, 1998, Plaintiff Alice Smith was operating her motor vchicle, traveling north on Lambs Gap Road, Hampden Township, Cumberland County. The Plaintiff alleges that Defendant Michael Kaufman made a lell turn directly in front of her, causing an accident. II. List~ all tvpes and amounts of all damages c1aimcd A. Plaintiff Alice Smith: 1. Non-economic danlages. Mrs. Smith had pre-existing (bcforc lhe accident) stenosis and osteophyles of her spinc, hut she was asymptomatic before the subjcct motor vehicle accident. Mrs. Smith sustained a hyperextension/flexion injury to her cervical spine, as well as an aggravation of her prc-exisling asymptomatic degencrative joint disease. B. Plaintiff John Smith: I. Loss of consortium. 2077BO.1 lULl IMTG :) ,:J c: . - " "," : ,- ,,--;--,'. ,", :! :',' '", : .,<.: ,.' .-,'.'.'. .". ," " "'" . @ ~ E ) ,,-'e' -.1,-/ r:> v ~ .. 10SEPH 101, MELIl.I.O TERRY S. HYMAN DAVID L. Wl'Z MICHAEL E, KOSIK PAMELA Q, SHUMAN RICHARD A, SADlOCK ... . Anglno D Rovner DAVID S, WISNESKI NUOLE C. OLSON MICHAEL J. NAVITSKY 10SEPH M. DORIA OUA."ffi S. BARRICK JAMES OfiCINTI LISTED IN THE BEST LAWYERS -IN- AMERICA RICHARD C, ANOINO NElL J. ROVNER August 19, 1999 Stephen L. Banko. Esquire 101 pine Street P.O. Box 932 Harrisburg, PA 17011-0932 Re: Smith v. Kaufman Dear Steve: The liability witnesses that we plan to call at trial are as follows: 1. Plaintiff Alice Smith 2. Defendant Michael Kaufman, as if on cross-examination 3. Hampden Police Officer J. Shollenberger The damage witnesses that we plan to call at trial are as follows: 1. Tony Matincheck 2. lviike Stoner 3. Dr. Richard Davis 4. Dr. Christopher Gouse 5. Amy Minnich - physical therapist at Central Penn Physical Therapy 6. Plaintiff Alice Smith 7. Plaintiff John Smith 8. Jean Sunday - Alice Smith's sister 9. Sandy Smith - Plaintiffs' daughter 10. Dainette Ward Plaintiffs' friend 11. Kate Diehl - Alice Smith's mother 12. Albert Watts - Plaintiffs' friend The liability exhibits we plan to use at trial are as follows: 1. Photographs of the property damage to the Plaintiffs' and Defendant's vehicles 2. Photographs of the subject accident scene 3. Diagram of the subject accident scene dJI/, 4503 NORTH FRONT STREET. HARRISBURG. PA 17'10.1708 t'l-h,v,+ A- (717) 238-679' tAX (hi, ~~D.SDiu ,.:.,:, ':.: "j:,,' '.'.\, , ','~ .,. "\:." ',,,:", '" ,,~,~;, ',: ' ',1,,;" _,,'; :" ~/'',':,~ ';' .....;~;':-~:: ,,: ~ ~;' l,:~'~, ,Jl'::-.':~;' :"':~"" >' '." 'f,:",..", I:,'. '1 i, I 'I~' '},. ',:: f,,; '. :" ,,,,:,'.'. I,', 'j ~ ") -:2/ CJ'. 0...-)' \'\..I't '. r~l ~Vz- I~P: \Y8!7D ('r'IV A \ -- 'f.. \ L-Ql . +Dl! O(.U- Gp- kvy,. lw}/ .fk.s /' ct._ ~r~ g JI<01 11~ 6~ I M<{ I <<u._ f~"" , I~ ~ ~~~ ~ I -tLy r , b 0.. cut d;sc.. (: (-5) ~~ t ...ctw--P' ,. J, C"f/~ (_ )'fl~ ) \ t...rl~ ~ ^ !.,A y ~.N"'{./ k f~.o<' / ,_. . ~""<l?~ I.~ /~ /"<~~ k,... .:: ;I ~e.;...~ w. "'~"..~ '<<'"",- I""', - L.t.~ L /' .I1<:~ '. ..<., ~ 9""""'~ t:.h.1t..- -....".. / . "'7'7)( to' ~ . '., ~ . l...u ~ ;:.......'~ ~ .p. Name ..A..tUJ DATE I Smith, Alice 06/28/1999 SrY\1 ~\.. Birthdate PROGRESS NOTES Chart No tc S: She is here to follow-up for her neck and back pain from a car accident I believe a year ago. She sees the chiropractor every three weeks. Her complaints center around the base of her neck and across the back of the shoulders and also in the right medial scapular area. If she uses her arms in front of her, such as with picking berries or with vacuuming or holding a baby for 10 minutes, this will cause pain in these areas. She also complains of that for the past several weeks both hands have gone asleep at night. Her chiropractor has her wearing a brace on the right hand for the past week, so he is evaluating her for possible carpal tunnel syndrome. 0: Negative Tinel's and Phalen's signs bilaterally. Motor and neuro exams of the upper extremities within normal limits. She has decreased extension of the neck to about 5'. Lateral rotation bilaterally was 30'. Lateral flexion was within normal limits. Anterior flexion was also normal in that she could touch her chin to chest. P: We also did routine blood work today to check her lipids and an FSH and TSH. She is a smoker and she is starting to have some symptoms that sound like hot flashes. So once her labs come back we will have to decide whether or not to put her on ERT. As far as her neck _ the case has not been settled yet and she will continue with the chiropractor concerning care. . PUI. RLD:rs 06/29/1999 ~----------"._----- .----.-.-------- E 'fh,b,l 13 ... 'Hd 3). u " ",,; " ::' ;,:. ,,'., :1'\. ,~, - ,\.',( :,'1 ,', :",;,'" :. ,<' "f!'I~ "" '" \.~>":"'i'~'l' '.,:':, "'~~~I~~~~M~'+:' !;'i"; :i:,~ ':'l'~'>,t<, ','.:-' ':~_:. :,,::' '.::'} ~ '</, '.; I,): /:' ,I. '/ J.;, ". '.. :\.:.,~:, ' -.'. ' . , . ' , fe:...- I \'-J '- -? ~ \\'l~_q'l' I"A I 3 ~ + I ~..-\ ""' ,.!. I '" .:,." ~ ,\ t..... GP LI-..,u\ , ~ p . "'"' ~f' \31.., h ~ ~. _ ~~~,,_\.... """~, \.........~ .t\,,-\-k.' -/>""/~~~ ,('''7 j-ll. (..) 3 [of lfif;rt~ ""'.... ~1?f1,w"'.f . ~ -Pft,J }...dt ""t-~- ~(.r r- En- - J4. ~ / ~ I ~0 ~ ..... /'<"" /.c. ~ ~/ .'>0'1_ f.ftfk-n,/ _ 1>'14(,,,,,, - "" a, fA,~ ...,....1< r ~, ~~;;.. ~ e ""'1"7 '1.h.... "'7.....d."..,,~. }lw:c.&:. 4.- (, /'Ivrr ' .~ --::z: '..- ... tt/'il c.IIs:~ ~.p "'--'- ir; 'Jcf.t..e"I.tLt - --;;n~ I LI 7...f?/J 11"".{>" _.-. p. ~....,J., L<V - ,/."'4 nc.J.. 1u.A - n.hl 7.tfG it",. _ ~"'."?'" _? ~ -" , /" ;.. 1",,1 /~ C1 In today for a physical. She refused to stay in the hospital the last time I sent her to th emergency room for chest pain. She hasn't had any chest pain since I last saw her, but sh will have substernal tightness that may last minutes at a time. It is not exertional. It is nc nocturnal. It does not seem to be related to food, although caffeine seems to cause sometimes, so she has cut down on caffeine use. If she yawns or burps that will seem t make it go away. There is no radiation into the neck or shoulder or arm. She has bee taking one extended-relief aspirin a day since she was last seen and this seems to make he heart have palpitations with one skipped beat at a time. Nothing in a run throughout th whole day. She is 50 years old now. She smokes two packs of cigarettes a day. She i a housewife. Her husband drives trucl{, The chiropractor is seeing her for her neck an shoulder during the motor vehicle accident and he may do an MRI. The neck and should! are doing better, however. Otherwise review of systems unremarkable. HEENT normal. Discs sharp and flat. No adenopathy. Thyroid normal. Lungs we! clear. Carotids 2+ and equal without bruits. Heart normal sinus rhythm without murml: (EKG last time showed no acute changes.) Abdomen was obese, soft and benign. l\ organomegaly. Extremities were warm, no edema, good pulses. 1. I told her that although I did not think it was due to the aspirin, just to cut down to or baby aspirin a day. We will set her up for a thallium stress test to rule out coronary artery disease. We also talked about smoking cessation and I gave her information to read abo Zyban. She had her last mammogram in 1996, so we set her up for a routine mammogram. Ilold her she should have a pelvic exam about every two years since she has her It ovary remaining. 6. I went ahead and did some routine blood work today. 7. Await the above results, I told her to call again if she had any severe chest discomfc . PUI. RLD:rs (M p Smith, Alice c..~'-- 11/13/1998 -h,.\."" I S: ~iliu~ S1~ ~-\- \\\~, qiS ~~ .~--:-\' ~~\Q'~ 0: P: 2. 3, 4. 5, 11/16/1998 a3? >; '.. " \ ", ;'" ,'~ "."', ':\' '(t,. \' '''., , '., :;':<' :,' '~:'; :.,,:<:~,~:~, ;,;:,.;: -::::::~-'~~:::,~>:~^<,~~;'; 1:::" '\" ,:': '. ,".,':, ,,'~' :~'~: '::'<.: . : '/.< .'.. '.''--'.' -',1 ~ ::,1." ,~I. . ",' ,,":, '.::, ~ '. " , ," Name t2tv;, 5r~ I Birthdate DATE _ PROGRESS NOTES /Cl;J..Lq~iJ__'H~~.__btC;0:.t-.j,...Q$fJ.Q._ ._ -Lo' VFf-.7i;(x-------------.-..--.----fX1.f.Al -.)!! t!~!(J~ r!.C!!) V_ ~!--i:_,--L IC~ r ifIITi;}?;?;,: .............. ..:](;6 P t/ ~ (lJ!lU ~ r-~'&& -..-___~___ . __ ._ _____...__ _ e . jJ] l!. ._ . o CIUt;2l:b Eil,.s.--...-.---- NO} II/. , I .... . _.;..._..,....._~_._...,.. .... ..... _. ,... .... .1#- ,...Wt.,,€_~-t...... fX!-!:;2L.. ..... ?,JI":.._ ,.... .__ ...-PQLJ) t?B~/!-de; ~.... HQ/vr;k,ltjrflwM f..a...:- JI...JIN.. ''1 !.klf<-/! ,&~-~.... ...~._.:_...~.. .+_1 "~ -/w-../.c.l.v:. ./-. . "'''''7' . ... f'-W.~~ -.~~-_..~/:<!'~ - N. ;-zPw","" "'I '*=....~ / ..07.... ~ ____....___._____..__,_;~.~~..i.~_)--.~--. ... .... ...m.... ~ Chart No. f/ , . ~H______ . G.t~#-_tB:J:1S~ Smith, Alice . 10/21/1998 S: This started this morning around 5:00 AM when she woke up with some left chest pressure . underneath the breast and left shoulder pain and left forearm numbness and left facial tingling. This lasted about 10 minutes. She went to the store to get something to eat and went to the chiropractor and while there the left shoulder pain and left chest pressure started again, so she then came here. _ 0: I brought her immediately back in the room and did an EKG which showed no acute changes. I gave him one aspirin immediately and a nitroglycerin which did relieve the discomfort in the . shoulder and the forearm and the chest in about two minutes, S: She has never had this before. P: I recommended that we call the ambulance to have them take her to the hospital, she refused that and said that wanted to drive herself because it was a straight shot and she could be there in a few minutes. The chest pain had gone away at this time. _ 0: She was stable and her blood pressure was stable. Lungs were clear. Heart normal sinus rhythm. P: I went ahead and OKd the ER visit. Again, she left in good condition without chest pain and it was her wish to leave not mine and I told her why my recommendation was that she go by ambulance. . PUI. RLD:rs 10/21/1998 "OUO-~A,""""" 1.aoo)J'117' 1-) / .:::-', .,L, , , ' q -,:),\ - Cl'S. oJ ru.. C-.'{:.., _ 'I...(. ./ (/ l.Y~- Bp O.Arn..ce- -tk ~ ilIA a~ C:-> ~ M ~ pL'i _;;;;., M ~~ / I (;y. '// J,.. ~ 'fllU/ JJrtd~ d {T ~ ../-V {.~ &."1 ~ ~ I /I.'//~ ~/~N/~ I ~ ~ I,),O/0~ , .J, J~ 1,).1 ~"" ). Smith, Alice 09/21/1998 S: In today to recheck her neck. Headaches are not quite as bad in the morning, but she still gets them and has them off and on throughout the day. She has been doing exercises, heat, liniments, the cervical roll. She saw the orthopedist who felt nothing else needed to be done. She inquired if the chiropractor would be helpful. P: I told her that although her symptoms have been six months since the car accident that KHP would not cover it, but her car insurance wouid silll cover it, and if she wanted to try that she could for a few weeks. 0: Her exam today was unremarkable in that it was the same as last time. A: At this point I agree that we are dealing with a cervical strain with an exacerbation of the cervical arthritis. P: Continue the same and recheck in about three months. . PUI. RLD:rs 09/22/1998 ''''""'25 cI.J Ij2:?lq~ 12c./IJ1LI.~ ~\(l (\-e.t~ ~..s~{J}~,(cU-':'PCL..u , ~"f- ''-10. S- c:t r---" (tr f<V /w ,.d I ~()"~ rf! 2Plt6~ W c u,~ ~ I 1-).11 /;.tI~.>' 4. I~ If J p,b / ./(..17- r~ t>... . ;r-'- r'" 7 "'"...,~ k-t ~ 1.....4.... ......e.c, (w,) b,,) ~~ /tt/;~ f O~ ute~ fo /r:> ~I'" -)'I' ". !I-r {/ - N U fA~-P' vY? U:u../ t. I/""" ~ h fir /"M'~ Smith, Alice 07/23/1998 S: She states she is not noticing any improvement over the past month. She has been going to physical therapy. She still has pain in the right posterior lateral neck, right medial scapular area and a burning sensation down the right paralumbar musculature. Advil bothers her stomach, so mainly she has to take Tylenol. She does not work, She takes care of some family members. Evidently there is a lawyer involved with the MVA. 0: Extension to about 15'. Flexion to about 50'. Right lateral flexion to about 50'; left lateral flexion to about 80'. She was tender in the posterior lateral musculature of the neck. Motor and neuro exam of the upper extremities within normal limits. Range of motion of the shoulders was normal. Nontender spinous processes. Nonlender occipital nerve outlets. A: Cervical strain. P: Since she has not really improved and it has been three months now, I am going to go ahead and have her see the orthopedist for a second opinion, to see if they can think of anything else to perhaps try for her. . PUI. RLD:rs 07/27/1998 , /'7 <.'J.J Name _ (.\ l tQ., S(Y\.i.fL--., DATE l 5" \.).tol <i2j t,)\- i1<PI~ Bf' \\l. \ 1 u Chart NO.';< Birthdate PROGRESS NOTES &/f'flVA ')~: \\ ~,<>) .~~',,, \:lf1.\-...,,1 "-'--'-"- ~:')~ ~ C-./...:,..... tk -\ . ..,'\ <4.. IJ"? V) ,,--"-- -,..{ ,,'-^ J ~\..".; l.G blo ,L.. . Smith, Alice OS/26/1998 S: Some of the same discomfort in the back of the neck and under the right shoulder bl~de. It is slightly better, but still present. X-rays showed no fracture, just muscle spasms. She is leaving for Alaska in two weeks for a one-week vacation. 0: Range of motion of the neck was fairly good; just mildly limited on lateral rotation bilaterally. Flexion and extension were good. P: 1. We will set her up for some physical therapy and recheck in one month and see if that helps. 2. I told her to try some Advil rather than Tylenol to see if that helps any better. . PUI. RLD:rs OS/27/1998 C9~lq2> . 'LCD L~ . -c fR (L~It..D J N\) t\- I,/~~d I" ~ . ) fill ,r.cw.'- &ft",- A c- I.lL /1 . . ) fl Crnlc.-t,'7 Smith, Alice 06/25/1998 S: Is noticing improvement. She still has some discomfort. She has been using a cervical pillow and when she gets up in the moming her neck is not quite as bad. It still bothers her somewhat. She still has some crunching when she rotates the neck. She is still getting physical therapy. And again, overall is better, but still has symptoms which are mainly in the neck and thoracic region of the back. 0: Range of motion of the neck was full with some slight tenderness upon rotation and range of motion. Motor and neuro exam of the upper extremities within normal limits. Range of motion of the shoulders was normal. A: Cervicothoracic strain - improving, P: 1. Continue PT. 2. Recheck in about a month. . PUI. RLD:rs 06/29/1998 'IO~%_IMOI(,.'A","'"1 \.flW3.'e~118 ,J357 Name~\ir.... "',......: - DATE J L\.2,.'18 *" Birthdale Chart No, w~ l'iv I:>~ '. .,~(C !1tt PROGRESS NOTES Mv r\ cS1h'-<<la.':i). . ct. '.. .-..... "n prell? J?9-1..n ',t1I'1fdC, U;J-~ IshoU.-0.i:JS 11,-1..,,15. /!:f1i~r \lr;,hi(.JJ_ 0..( CiCJ..u) 1-. r - ()V.;:J ~.u) Cf ;W-J Ill.!v ~-' flllA ~<>-'. "" d/lVl'i' / (M",,-,? ~4.VI e;,'- k, d/,..,...., ~ , C----C /lL........ tn.. It.~,.. ~ I~(/ "hy (JI.....~ q. /z'-4~,,," .,....z:,/....J<...,.t.C€ at'!! ~ ",.,-~, _ Smith, Alice 04/27/1998 s: She was involved in a motor vehicle accident on 4/25/98. She was driving, wearing a seatbelt, the airbag deployed. She did not go to the hospital because she felt OK at that point. She got stiffer over the next day or two. She mainly complains of aches in the back of her neck, top of her shoulders and top of the thoracic area of the spine and the volar surface of the right forearm and this was causative of the airbag deploying. She used ice on it and the swelling has gone down. 0: There is some bruising present on the volar surface as well as mild swelling, Full range of motion of the neck, shoulders, elbows, wrists. No bruising of the face. Mildly tender of the paraspinal muscles of the neck and the upper paraspinal muscles of the thoracic spine. Lungs were clear. Heart normal sinus rhythm. A 1: Cervicothoracic strain. A2: Right forearm contusion. P: 1. Rest. 2. Tylenol. 3. Heat. 4. Recheck in one month to see how she's doing; certainly call if worsening. . PUI. RLD:rs 04/28/1998 .'~!oO-~Ul"'ItJI'1f.. ',fQj4't,,'1' l/I I) i':"'" --I l/ ~ITH RADIOLOGY, INC. D1a~nostlc RadloIO~l' ~Inmmol:raph)' Lltrasound C. T. S""ns M.R.I. ENI566 May 11,1998 Richard Davis, M.D, 4470 Valley Road Enola, PA 17025 RE: Alice Smilh DATE OF EXAM: 5/11/98 SS # 184-38-1566 l~lS Brid~e St. \l'W Cumhcrlulld. P.\ 171li1l :ilil i74.7~51 Dear Dr. Davis: CERVICAL SPINE (7V): Reason for the study is pain behind the neck and extending behind the upper back - patient was in MV A 2 weeks ago, : 7/.11I Old Tr.ait ltd. Lllers. P.\ li.3)1) 17171 ~IJ2.2h 77 In the study there is no definite evidence of fracture seen. Vertical heights of the cervical vertebral bodies are mainlained. There is evidence of moderate advanced C6-7 degenerative disc disease with bony lipping most pronounced extending anteriorly, with no significant bony spurring or encroachment to the intervertebral foramina bilaterally is noted. There is mild mid to lower cervical osteoarthritis involving the posterior apophyseal joints. In the neutral film there is slight straightening of the mid to lower cervical anterior lordosis; restricted mobilily is seen most pronounced in forward bending. -II:' \\'UJllut St. .\lilkr...hur~1 I' \ PU(,l ,71716')~.,1I97 IMPRESSION: I. No fracture or traumatic vertebral misalignment evident. 2, Moderate advanced C6-7 degenerative disc disease and mild mid to lower cervical osteoarthritis, 3, Partial straighteninR of the mid to lower cervical lordosis and restricted mobility suggestiv~ of muscle spasm, 3rt StHllh Ri\'fr Rd. llaHra,. P'\ 1711,~ 1717\ S96.,352 - Sincerely, ;"..aOH Chambers Hill Rd. Ilarrisburc. PA 17111 17171 56t.S022 iliS ~/lA ~ Ueru,Y K-:-Smith, 0.0, It (/~ I /11./J~ 5/<<f'''' . HKS:bew ....0. - MEOPATIENT \':lli'lfOR "SS NOTE .- \" "'EE pI\OGRi:. T ,- ~ SEN - I. "',llETTER ....., .,r.,.s . ... .. . , ~.. -/U APPT -', 1'1 r . . ,.:'PH'ISICIAN ...' . ~J .....:c'd..I;:..i~\I~"" 1~ 1,q1 6'\ .'11 E. Slwd)' Lane ElIola. P,\ 17f1lS l717j 732.~5$~ /l ,; -f~ ( f>.< ,:; [j ! - .. r-..., 'iL, DAVID~, JOr:"lW. ~1.0,. r.A.C,S. R1CllAKO J. UDAL. M.D. RO~tRT R. DAHMU5. M,D. WILLlMlli", DeMUlN, M,O.. 1'.r\.C.5. JOUr; I\.1'RANKfr1Y II, M.O" I',A.C,S. MtlARD tl. tlALl.OCK. M.D. JAMr:.5 R. llAMSlltR. M,O" I'.A,C,5. , ~ fjRtOORY ^. tlA~l\~, ~l.D. ALtX,^I'IDtK MH.MI\. M.O RaM.RT R. M:"ItM. 00, ROMLO W. lIrre. M,O" '.A.C.S. JMlOr1 J. LITTON. M.D. 5TtVr.:'1~. \0\'01.1'. M.D. TIl0MA5 J. wenA, M.D. ORTHOPEDIC INSTITUTE OF PENNSYLVANIA TELEPl10Nt, (7171761.5530 . (600) 634.4020 . FAX: (717) 737.7197 , Septe~~er 1, 1998 Richard L. Davis, M.D. 4470 Valley Road Enola, PA 17025 RE, Alice K. Smith 184 38 1566 Dear. Dr. Davie; Thank you for consulting me on ALICE K. SMITH, whom I saw in the Poplar Church Road office initially on August 27, 1998 for orthopedic evaluation of her shoulders, back and neck. Thank you for sending a l.etter giving her history of this injury. HISTORY OF COMPLAINT, Alice is a 50-year old woman who works at home in that she takes care of older members of her family and one very sick member of her family 00 she is a very busy woman. She was also a bowler. She had no history of neck or interscapular back pain until she was involved in an automobile accident on 4/24/98. At that time, she wao driving a vehicle wearing a seatbelt and was hit by another driver who didn't see her coming. He apologized for causing the accident. She did not go to the Emergency Room but began experiencing neck pain and bilateral shoulder pain and interscapular back pain. You tre.:ltcc. thcGC si",ptoms with Auvil but that caused some GI problems including bleeding. She now takes Tyler.ol. She has gone to physical therapy for three months and it feels good while she is getting it but hasn't caused any significant improvement. She has no upper or lower extremity s~ptoms. She has no bowel or urinary complaints. She is not diabetic and has no slgnificant medical illnesses. REVIEW OF SYSTEMS: Review of systems, past medical history, family history and social history have been n~.ccrded ar..d revie\o.'ed. PHYSICAL EXAM: When I examined Alice Smith today she was most pleasant and comfortable and told me that her sister was back to work on the highways. She has full range of motion in her neck though she has some neck tenderness and trape:::iuG tenderness. Ho muscle cpasm \\'aG felt. The skin of her neck and upper extremities i.s ~ntact. Inspection reveals normal gait, no a.bnormal poaturing of neck, and level nhoulderG. Range of motion reveals normal flexion, extension, rotat:ion, and later'al bending. There is normal bilateral upper extremity otrength, /Iv "",~,-,.. ,"'.,..,,,,, ,,", CAMP /liLt Orr/CC ~916 TKII'lOI r 1m ADDRU,S All. COf\RE~r'OMJLNct TO, 8,5 rOPI..~R CI1CHell ROAD, CAMI' 1111.1.. PA 17011 ~~R.IS!HJFtG orner: _ "Afl.RI~Ct:R_q...QrrJ(L* ___ t1tfl~M~9rrJC~_.".__ ('.AMP"1t t orner. 4~f) rou.!:,,:~ .yf ~I~~~ ~, !!~!~.~ ::::'.. :;~ ~:.:;.:... ::.; ~'. t;ivC0i.ATC A\-'L Sit ju';; oi5 fOH."M. Cm:jl.Cn t\O. JUL-2~-ge loi31 AM CPS~ ,,11 .:11111: "; \1 'I \ I " t \1\' .'.", , "'. ~..." ....... CENTRAL Ph'(iie,( ThDflPY ... PENN Sportl MldlelnD B:'~ POCI.v Crour:!'l ~e~a. SIt',I' 100, C~m~ H.l, PA 1'011' (717) 1:30.0.137. Fu: '7171 13C.04S0 , - '1'KIIIlAPY AS'SUIClIn' NIll Pt.AN OF CAII.IIl ?;2.J.9~ :rNI'l'IAl'" WAL, t..1.9~ ';Z.,u,qy Ie; ~A'1'ION,,: ~ 1. Further eherapy 1a nIQ~Q~ ~o achieve staCGd g0418. Please r9nGW ~~. ----- 2. Goal. have been reached. Pa~ient i. independont in Home ~xereiGe ~rograrn. Reeommond DIC from PT. Paeient is not meeting goa18. Reco~~end renewlnq Rx and modifying current regimen. Diseontinue therapy, refer to patient etatu.. ~ k .- 'A'1'IIUMI NlIXII. OIAGIIOU S I v!1I.I A. PIIY.uCAL -.In. . ~ - .iln:CIAN, J.411fA ~~.J )r::l~.A ~ l\SJw, ~ _ , ~ ' ~~..,-- PIl.IQUlINcr A!lD tlU1\l\T:rON I I< '1-f ~ @) .;:/J/. I.. \K- . Nnr PT lUll'SI\J\AL IUIQt1IIUIO. 'illS - 3. 4. - tllJ!ATlmN'l' Il~: - lIok;i,llo.t 0 .z.rcL'.'':..t.hg ~ Prcp~l~.Ptloa Tr&in1n~ ~ 01tra.0UA4 _ Pboacpbor..h ~...". Z:ODtOp:bcr..1. witb ~ Kohe. 1I."t '..ck. ~.et e'*PZ'...loD. ~~rorr...lv. ...l.t&n~. .~.rQi", ~Q.turAl A.lz.no.., ~V K.ch~L r - ~ill' .tabil,hatiaA la:eraL... .-.. .........._-,,- ~;r~i~~i;:r~1... ,...lv. .&Del' of WOttDn _ Otber .... . ", ~ I 7177 t'l4!:50 P..~l - MART~A :J~""-.lOEl.ll. L. P T P~"M:,.I Trf/~Id' ~Ic"'",el. r.1'l~IS rl.........., p l' A, "~yIIt'JI Tr:rMp"'...".n....' AMv IvlIN~IC'" D T "T C P"'Y./ClI,' Tt.t'./iI",' 11~-/&40 DATal !Illlt'r lID 1.1'1''1' I . OF VISITS '1'0 CA'1'E. :rNSlIRAHclI TrPB r rh.rap.utic .zerol... Joint Kobi11Jat1oc ____Iheer!"... et1mula:1oa. ~ 'r'I:Wil 'arAtt1n c~ld Pa.ek. Bome az,rC1.. PrQgr~ Pl..Lbl1Lty .x.~c1... at,h, ftt,h11)g' ':'Ip1t1.G/8rlc;:lnq ~.t1'~t .d~c.t1o~ _____~.OQ.trio Izercl... '&t.11a Mobl1i%.~ioa TTact10a C,rvical or P.lvic """" 'b=.,. _ :;::;.~ :t ~~.:~~ ~'::':~7~~~ ~:::.~../.~ ~"" ,;.. ~'~~)~:~~.. . ~ '/^ 'rf"~."'" l!M..,,"'tj . ~ c.~,.v , OSJImvK nOT QATAr ~~ ~_\ . :::::~ ~ ~:: :~.~~~: -'. ~.~ ~" 1~, -. _'. f"'( :-: - r ' ~U=~"""L.': ::::::::-;;:.~~:1t;::;, .~~"::"J"~ >= .::;~ . /0. ~'1t/Y}'--' -- ~tXL .Joe:- ~ ., /7^'-- k ~'- TA !~,2 ,- , .J,^ , . ...." (, k:. '/ , ,J 1/<, -- 7___' , L.P..T. I. I i , i, I, . . t I . T-' ~ ..,iJ // ~~ I/Il'~ .'" ''i , i l 'Of July 23, 1998 RE: Alice Smith To Whom It May Concern: The above-named patient was involved in an motor vehicle accident on 4/24/98. She was driving and wearing a seatbelt. The air bag deployed. She did nol go to the hospital at that time. She hit the car head-on. When I saw her two days latcr, she was mainly complaining of achcs in the back of her neck and the top of hcr shoulders. The aching in the right forearm has since gone away. When she did not improve, I oblained an x-ray about one month later, which showed some partial straightening of the mid-to-Iower celVicallordosis and restriction of mobility suggestivc of muscle spasm, It also showed modcralelyadvanced C6-7 dcgcnerativc joint disease and mild mid-to-lower cclVica! osteoarthritis. She has been receiving physical therapy for the past month and still has not noticed any improvcment over the past six weeks, She is tayjng Tylenol daily for the pain. I would appreciate your evaluation and treatmcnl of this patient and any recommendations you may have as far as any olher sort of physical therapy or modalities that we can use to get her f~eling better. Thank you in advance for seeing her. Sincerely, Richard L. Davis, MD RLD:rs Enclosure ::JLj u' , . ' - " . '. .. ' .' ~ ,. + ' l' , .' . . \'..: ~ ", . " . , "'. '. . , .', . , "',. ' . ''', ' , :" ~,:,,,' :'.'I"l:" '~",,' ~:...,.",.., "" ',I,i, ':""::".':::""1,,: ,L .::.,~.,:,."l':'j ;'-' '."';/';: '",: ""',,"','.,,'.' .:.',::",/,,': ,1_::' :,,..,',....','.',,. ':',' "L, iI", \ ,.'" '~",\ ." ,,'II I 1'.'~\.,- ',...........~\w~".,.~'r ' .j''''''' 'I"" ". "'1,' . '. "\ . , . :, ( ".: I ,\.~. " .', .' , " ,',,",' _. , l, . _'.. , ", '''' ,oj l' ,','.' "'e, . ';". " ,.:; V" ~" . ,', '. l~'.-' " . " , . 7' ,. ", ., ,',; . , @ ~ ::t iD =4 o ;:JU7 - . Dr. Christopher A. Gause '1' Chiropractic Physician Summerdale Plaza Enola, PA 17025 433 North Enola Road (717) 732-1800 March 3, 1999 David L. Lutz, Esq. 4503 North Front Street Harrisburg, Pa. 17110-1708 RE: Alice Smith Date of Injury: 04-25-98 Dear Mr. Lutz: This is a final report regarding the status of Alice Smith and her treatment in our office. I have enclosed a copy of her recent EMG test as well as her previous MRI and x-ray examinations. Mrs. Smith has reached maximum medical/chiropractic improvement although she is still having symptoms in her neck. upper back and ann. Restrictions to her activities include working with her hands over her head, repetitive motions with the anns, tilting her head forward or bach..ward either repetitively or in prolonged position or sleeping on her stomach. She will be predisposed to acceleration of degenerative processes in her cervical spine as well as to re aggravation of this injury due to various activities. I would expect that she would have intennittent periods of pain that well require occasional chiropractic treatment. These opinions are reached upon a reasonable degree of chiropractic certainty. If you need any further assistance regarding Mrs. Smith, please do not hesitate to contact our office, ~ UQ~OG Christophcr A. Gouse, D.C. Enclosures t-jJ1/011- t d~S , ."', .';..',"', "~. ~. . . . ~ ',' ."..', ',' , . . '. r' . "," ,..' ,w r;,", ~t:,t,.~ '. i lD ~ o ,;) 1./11' " "". , , ", . , " ' , .' , , "'.' ,. . f" .', .' , I " . . '., .' ,) '". ,." " JOS!.<.~H M. MELILL.O lCRRY S, HYMA." DA VlD L, LI!I'Z MtCHAEL E, KOSIK PAMELA 0, SHUMAN RICHARD A, SADLOCK Angino DRovner DAVID S, WISNESKI NUOLE C. OLSON MlCHAEL I, NAV1TSKY JOSEPH M, DC~JA DUANE S, BARRICK IA/olES DECINTI LISTED IN TIlE BEST LAWYERS -!N- AMERICA RICHARD C, ANG!NO NElLI, ROVNER July 14, 1999 Ms. Jackie Ravenel State Farm Insurance Company 115 Limekiln Road P.O. Box 257 New Cumberland, PA 17070-0257 Re: Claimant: Alice Smith Insured: Michael J. Kaufman Claim No.: 38-1690-569 Date of Loss: 4-25-98 Dear Ms. Ravenel: Receipt of your June 1, 1999, correspondence is acknowledged. Frankly, upon receipt of your correspondence, I sent it to my client. Thereafter we discussed your letter and decided to proceed with the litigation. However, you recently telephoned my office and asked whether settlement discussions will continue. I note that in your evaluation report dated April 6, 1999, you requested authority to $18,000 to settle this case. I do not know the authority that Karen Bury provided, but I am of the opinion that the exp03ure in the case exceeds $25,000. Accordingly, if State Farm extends a settlement offer of $25,000, the case could be settled. Very truly yours, ~utz DLL/sc cc: Stephen L. Banko, Jr., Esquire 153002/SC bJ1i'b,;.b d~7J '503 NORTH FRONT STREET. HARRISBURG, PA ,7l,O.1708 FAA (717) 2385610 (717) 238.6791 " . '. . ;..., .....j ". '.:. '~~~:. ~-';~' ~I',' """" ','". , .' CERTIFICATE OF SERVICE I, Mary T. Geracts, an employee of the law fiml of Angina & Rovner, P.C., do hereby ccrtify that I am this day scrving a true and corrcct copy of thc PLAINTIFFS' PRE-TRIAL MEMORANDUM upon dcfensc counsel via postage prepaid first class United States mail addrcssed as follows: Stcphen L. Banko, Esquire P.O. Box 932 Harrisburg, PA 17108-0932 Attorncy for Dcfcndant Daled: J - \\- 'OJ ~(J77r\(II\J)1.L\.\1lG c)5! , . , :.'- : ' '. . . " :', '. , . '..':. - ,~. " '! ,'. " . ~. , .' . . '. . ',:' . ' , .' ,.': ,'" " i;," - i.- '/, .- ", /pfts&;f{1141 COl? <; Pccp~s "''', ,'.. qq- 0( 76-q ~; vi ( -r~ " i~} f ~ ,~,\~~ .c.t \'~ , ,":ll ~rl: , . ~ " .it ' ~ ~ ,..', .r "1'.. ~ " , , 'l~ f " ~, .-'.'. ',v~, \-,;i" '''~/,J ~i' , " ';it. __.1' 1j,. ~~t .".