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Home My WebLink About99-07247i ?y 0 y EVILEMATAFILLMvikw ? 611-PicN09 Cana 0911 0103.57.11 Phi Hewed: MINI 05.1941 Phl IDN.611 MICHELLE HOROWITZ, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NANCY BRENIZER, Defendant NO. 99-7247 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED DEFENDANT'S PROPOSED POINTS FOR CHARGE MITIGATION OF DAMAGES: 1. When determining damages for personal injuries in Pennsylvania,itisproperforajury to consider the failure of the plaintiff to undergo-re-syeFAM medical treatment that an ordinarily prudent person would have submitted to under the circumstances in an effort to better her condition. Yost v Union Railroad, 380 Pa. Super. 236, 244, 551 A.2d 317, 322 (1988) citin Bartunick v. Koch, 404 Pa. 1, 170 A.2d 563 (1961); Potts v. Guthrie, 282 Pa. 200,127 A. 605 (1925); Martin v Jobns-Manville Corporation, 322 Pa.Super. 348, 469 A.2d 655 (1983); Downs v. Scott, 201 Pa.Super.278,191 A.2d 908 (1963); Hilscherv. Ickincer,194Pa.Super.237, 237,166 A.2d678 (1960), affd, 403 Pa. 596,170 A.2d 595 (1961). 2. One injured by the tort of another is not entitled to recover damages for any harm that she could have avoided by the use of reasonable effort or expenditure after the commission of the tort. Yost v Union Railroad, 380 Pa. Super. 236, 244, 551 A.2d 317, 322 (1988) citin Restatement (Second) of Torts § 918(1) (1979). al I 3. The factors determining whether an injured person has used care to avert the consequences of a tort are in general the same as those that determine whether a person has been guilty of negligent conduct.... She is required to exercise no more than reasonable judgment or fortitude; and, if different courses of action are open to her she is not required, as a condition to obtaining full damages, to choose the course that events later show to have been the best. She is not barred from full recovery by the fact that it would have been reasonable for her to make expenditures or subject herself to pain or risk; it is only when she is unreasonable in refusing or failing to take action to prevent farther loss that her damages are curtailed. Yost v. Union Railroad, 380 Pa. Super. 236, 244, 551 A.2d 317, 322 (1988) cZ t Restatement (Second) of Torts § 918(1)(c) (1979) (emphasis added). ti: MICHELLE HOROWITZ, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA V. CIVIL ACTION - LAW NO. 99-7247 Civil NANCY BRENIZER Defendant JURY TRIAL DEMANDED PLAINTIFF'S POINTS FOR CHARGE Plaintiff respectfully requests that the Court read the following Points for Charge to the jury. Date: ?" 10' 01 233069,1\nI.1.NITG 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff PLAIN'TIFF'S POINT FOR Cl1ARGG NO. I In civil cases such as this one, the Plaintiff has the burden of proving the contentions which entitle him to relief. When a party has the burden of proof on a particular issue, their contention on that issue must be established by a fair preponderance of the evidence. The evidence establishes a contention by a fair preponderance of the evidence if you are persuaded that it is more probably accurate and true than not. To put it another way, think, if you will, of an ordinary balance scale, with a pan on each side. Onto one side of the scale, place all of the evidence favorable to the Plaintiff; onto the other, place all of the evidence favorable to the Defendant. If, after considering the comparable weight of the evidence, you feel that the scales tip, ever so slightly or to the slightest degree, in favor of the Plaintiff, your verdict must be for the Plaintiff. If the scale tips in favor of the Defendant, or are equally balanced, your verdict must be for the Defendant. In this case, Ms. Horowitz has the burden of proving that Nancy Brenizer was negligent and that her negligence was a substantial factor in bringing about the accident. If, after considering all of the evidence, you feel persuaded that these propositions are more probably true than not true, your verdict must be for the Plaintiff. Otherwise, your verdict should be for the Defendant. Pa. SSJI (Civ.) 5.50 - Burden of Proof. ?7]069.1 %DIA.161'1'G PLAINTIFF'S POINT FOR CHARGE NO. 2 The legal term negligence, otherwise known as carelessness, is the absence of ordinary care which a reasonably prudent person would exercise in the circumstances here presented. Negligent conduct may consist either of an act or an omission to act when there is a duty to do so. In other words, negligence is the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, in light of all the surrounding circumstances established by the evidence in this case. It is for you to determine how a reasonably careful person would act in those circumstances. Pa. SSJI (Civ.) 3.10; Archer v. Pennsylvania R.R. Co., 166 Pa. Super 538, 72 A.2d 609 (1950); Fisher v. Strader, 399 Pa. 222, 160 A.2d 203 (1960); Vaughn v. Philadelphia Trans p. Co., 417 Pa. 464, 209 A.2d 279 (1965). 233069. nDLLUITG PLAINTIFF'S POINT FOR CFIARGH NO. 3 Ordinary care is the care a reasonably careful person would use under the circumstances presented in this case. It is the duty of every person to use ordinary care not only for his own safety and the protection of his property, but also to avoid injury to others. What constitutes ordinary care varies according to the particular circumstances and conditions existing then and there. The amount of care required by the law must be in keeping with the degree of danger involved. Pa. SSJI (Civ.) §3.02; Matemia v. Pennsylvania R.R. Co., 358 Pa. 149, 56 A.2d 233 (1948); Potere v. Philadelphia, 380 Pa. 581, 112 A.2d 100 (1955). 233069.1 MMAN1TG PLAINTIFF'S POINT FOR CHARGE NO.4 The Motor Vehicle Code provides that an operator of a motor vehicle pulling from a stop sign onto a through street must yield the right-of-way to approaching traffic. Lind v. Thomas, 265 Pa. Super. 121, 401 A.2d 830 (1979); see also, 75 Pa. C.S.A. §3324. 233069.11 )LL1\I"1"G ?' PLAINTIFF'S POINT I'm CHARGE NO. 5 An operator of a motor vehicle that is planning to enter a through roadway from a stop sign has the duty to not only look both ways, but to see what should be visible to her in terms of approaching traffic. Frisina_ v. Dailey, 395 Pa. 280, 158 AN 348 (1959). 233069AWLIA rrc ?l e, PLAINTIFF'S POINT FOR CHARGE NO. G A provision of the Pennsylvania Motor vehicle Code relevant to this case is as follows: (b) Duties at stop sign. ... [E]very driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line or, if none, before entering a crosswalk on the near side of the intersection or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering. After having stopped, the driver shall yield the right-of-way to ... any vehicle in the intersection or approaching on another roadway so closely as to constitute a hazard during the time when the driver is moving across or within the intersection or junction of roadways. Stop signs and yield signs, 75 Pa.C.S.A> §3323(b). ) I 233069. n )LIANI TG \ \ . PLAINTIFF'S POINT FOR CHARGE NO. 7 This section of the Motor Vehicle Code dictates the duty of care required of someone in the same situation as Nancy Brenizer. If you find that there was a violation of this Act, you must find Nancy Brenizer negligent as a matter of law. However, before you answer the question of Michelle Horowitz's right to recover, you must determine whether Nancy Brenizer's negligence was a substantial factor in bringing about Michelle Horowitz's injury. Pa. SSJI (Civ.) X3.30. 233069.1n1.LU IG 7'1' 1 PLAINTIFF'S POINT FOR Cl IARGE NO. 8 In fact, failure to stop and yield the right-of-way itself constitutes negligence. Coleman v. Ouaker State Coca-Cola Bottling Co., 328 F. Stipp. 314 (1971); -cc also, Myers, Pennsylvania Vehicular Negligence, $3.21. 233069. W)LUNI rG ?f I. PLAINTIFF'S POINT FOR CHARGE NO.9 If you find that Nancy Brenizer was negligent and that her negligence was the legal cause of Michelle Horowitz's damages, you must find an amount of money damages which you believe will fairly and adequately compensate Michelle Horowitz for the damages she has sustained as a result of the accident. The amount you award her today must compensate her completely for damages she sustained in the past, as well as damages she may sustain in the future. Pa. SSJI (Civ.) 6.00 - Damages. CT' ` k Y', lS ar'? ` f•. U" y'? ?l N?• fr' • s 2)}069.1\DLDNI rG PLAINTIFF'S POINT FOR CHARGE NO. 10 The damages recoverable by Michelle Horowitz in this case and the items that go to make them up, each of which I will discuss separately, are as follows: (a) Past pain and suffering; (b) Future pain and suffering; (c) Embarrassment and humiliation; and (d) Loss of enjoyment of life; In the event that you find in favor of Michelle Horowitz, you will add these sums of damages together and return your verdict based on the questions set forth in a verdict form. Pa. SSJI (Civ.) 6.01; Schwegel v. Goldberg, 209 Pa. Super. 280, 228 A.2d 405 (1967); Mack v. Johnson, 430 F. Supp. 1139 (E.D. Pa. 1977), affd., 582 F.2d 1275 (3d Cir. 1978); Reist v. Manwiller, 231 Pa. Super. 444,332 A.2d 518 (1974). ?J i? F? rt 2330621 \7LLNrrG PLAINTIFF'S POINT FOR CHARGE NO. 11 Michelle Horowitz is entitled to be fairly and adequately compensated for such physical pain, mental anguish, discomfort, inconvenience and distress as you find she has endured, from the time of the accident until today. Pa. SSJI (Civ.) 6.01 E; Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970); Boeaavaranu V. Ponist, 518 Pa. 162, 542 A.2d 516 (1988). 233069AMLLUrrc PLAINTIFF'S POINT FOR CHARGE. NO. 12 In evaluating the amount to be awarded for pain and suffering, you should consider that the infliction of pain means taking from a person what is his/her own to possess and retain - namely health and well-being - and that the law allows for compensation of this loss to the J ®wl extent that loss may be calculated in money damages. Corcoran v. McNeal, 400 Pa. 14, 161 A .2d 367 (1960); Thompson v. Iannuzzi, 403 Pa. 329, 169 A.2d 777 (1961); DiChiacchio v. Rockcraft Stone Products Co., 424 Pa. 77, 225 A:Ld 913 (1967). 233069.1\nux%rrc, U PLAINTIFF'S POINT FOR CHARGE NO. 13 Michelle Horowitz is entitled to be fairly and adequately compensated for such physical pain, mental anguish, discomfort, inconvenience and distress as you believe she will endure in the future as a result of her injuries. Pa. SSJI (Civ.) 6.0117; Murphy v. Taylor, 440 Pa. 186, 269 A.2d 486 (1970); Cunningham v. Davis, 688 F. Supp. 1030 (E.D. Pa. 1988). 1 233069. nnLLMrrC l z}? PLAINTIFF'S POINT FOR CHARGE NO. 14 The broad term "pain and suffering" includes a wide range of not only physical, but also emotional reactions to injuries and their consequences. In calculating damage for pain and suffering, you may place a value on the following: a. Mental pain and distress b. Fear C. Emotional suffering d. Anxiety C. Frustration f. Loss of the feeling of well-being 9. Limitation on activities Niederman v. Brodsky, 436 Pa. 401, 261 A .2d 84 (1970); Walsh v. Brody, 220 Pa. Super. 293, 286 A.2d 666 (1971); Corcoran v. McNeal, 400 Pa. 14, 161 A.2d 367 (1960). 333069.11n1.1,1MI G 'i r 5 i LA PLAINTIFF'S POINT FOR CHARGE NO 15 Fear for one's future physical well-being is another clement of pain and suffering. This is U----- true of the apprehension and concern over future possibilities. Walsh v. Brody, 220 Pa. Super. 293, 286 A.2d 666 (1971). 233069. 1 kD1. XM'rTG i PLAINTIFF'S POINT FOR CHARGE NO. 16 Michelle Horowitz is entitled to be fairly and adequately compensated for such embarrassment and humiliation as you believe she has endured and will continue to endure in the future as a result of her injuries. Pa. SSJI (Civ.) 6.01G; Frankel v. United States, 321 F. Supp. 1331 (E.D. Pa. 1970), affd., 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. Super. 565,463 A.2d 1042 (1983). 233069.iun.L M rc PLAINTIFF'S POINT FOR CHARGE NO. 17 Michelle Horowitz is entitled to be fairly and adequately compensated for past, present and future loss of her ability to enjoy any of the pleasures of life as a result of her injuries. Pa. SSJI (Civ.) 6.011; Frankel V. United States, 321 F. Supp. 1331 (E.D. Pa. 1970), affd., 466 F.2d 1226 (3d Cir. 1972); Corcoran v. McNeal, 400 Pa. 14, 161 A.2d 367 (1960); Thompson v. lannuzzi, 403 Pa. 329, 169 A.2d 777 (1961); DiChiacchio v. Rockeraft Stone Products Co., 424 Pa. 77, 225 A.2d 913 (1967). 233069. M)LUMTG PLAINTIFF'S POINT FOR CHARGE NO. 18 Michelle Horowitz is entitled to be compensated for any loss or reduction of her future earning capacity that she will suffer as a result of the injuries sustained in this accident. In determining this amount, you must ascertain the difference between the yearly amounts which Michelle Horowitz probably would or could have earned during her life expectancy but for the injuries sustained. In determining this amount, you may consider the type of work that Michelle Horowitz has done, the type of work which, in view of her physical condition, education, experience, and age, she would have been doing and will be doing in the future, the extent and duration of Michelle Horowitz's injuries, together with all other matters reasonably relevant. The amount of loss of future earning capacity which you determine to have been sustained by Michelle Horowitz should be expressed by you in a dollar amount. Pa. SSJI (Civ.) 6.01 D - Future Loss of Earnings and Lost Earning Capacity. 233069.111)1.1.\WG \ J PLAINTIFF'S POINT FOR CHARGE NO 19 It' you find that Michelle Florowitz's injuries will continue beyond today, you must determine her life expectancy. According to statistics compiled by the United States Department of Health, Education and Welfare, the average life expectancy of all persons of Michelle Horowitz's age at the time of the accident, sex and race was 56.4 years. This figure is offered to you only as a guide, and you are not bound to accept it if you believe that Michelle Horowitz would have lived longer or less than the average individual in her category. In reaching this decision you are to consider Michelle Horowitz's health prior to the accident, her manner of living, her personal habits and other factors that may have affected the duration of her life. Pa. SSJI (Civ.) 6.21; Roselle v. McCov, 397 Pa. 615, 156 A.2d 307 (1959); Messer v. Beiehlev, 409 Pa. 551, 187 A.2d 168 (1963); see, Life Expectancy, Vital Statistics of the United States, (1988) Life Tables. r 233069.1\nl. MOIG \ ?. i !1 qq: O- dll'L Iuupuqj0cj g(j) log ?J?1!bW S a \? O? alinbsg 'lapeg •g 001030 33ilululd ag1103 a.nnbsg'zin•I •-I p!ASQ •lsil ag13o puaq oql lu paould pus aoualapld uaA121 oq lpt asuo snly -,fund laglia Aq palsanbol ssolun palnpagos aq lpm aauala;uoO luulald luuoilippu ou puu 1s,Z agljo IluO agl Puallu I u paau Cagl lugl paypou si lasunog •uual 1u111 IOOZ'01 lagwaldaS ag11oj osuo sigl lsilol of paloanp si uLlouogloid aqy 'uual luul IOOZ `0I lagwaldaS oq1 Iilun panuiluoa aq asua sigl lugl Qg,L3gl1lQ QNV Q31IgCrdo AgaNaH SI II 'Isll luill ay1 uo sasuo jo lagwnu aq1 01 Mp uual lul11 sigl pagouat aq louuuo asua sigl 1ug11o1u11siuiwpV >,no3 31113o u0pulal uodn `IOOZ `ZI Xlnf `MON QNV 13 Qa WHRI -IIAIO LbZL-66 'ON laziualg AouuN A VINVA'IASNNgd'A.LNIIOO QNV11I98WID 30 SV31d NOIA WOO 90 LWnOD 3HI NI ZI AAo10H aflagaIN LZ '11noO aril Ag _. J MICHELLE HOROWITZ, IN TIME COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 99-7247 Civil NANCY BRENIZER Defendant JURY TRIAL DEMANDED PLAINTIFF'S PRE-TRIAL. MIIMORANDUM 1. Brief narrative statement of the case On June 22, 1998, at approximately 5:17 p.m. Plaintiff Michelle Horowitz and Defendant Nancy Brenizer were involved in a motor vehicle accident at the intersection of G Street and Spring Road in Carlisle. Ms. Horowitz was traveling south on Spring Road, and Ms. Brenizer was traveling west on G Street. Ms. Brenizer pulled from G Street, failing to yield the right-of-way to Ms. Horowitz's vehicle. Ms. Horowitz collided into the right side of Ms. Brenizer's vehicle. Attached as Exhibit A is the Carlisle Police Department accident report. II. Lists all tunes and amounts of all damages claimed Ms. Horowitz sustained cervical, thoracolumbar, and sacroiliac strain, neck pain, chronic headaches, and nausea. Ms. Horowitz has continued treatment for chronic low back pain. III. List of names and addresses of all persons who may be called as witnesses. classifying them as liability or damage witnesses Attached as Exhibit B is Plaintiff's counsel's September 8, 2000, correspondence identifying all liability and damage witnesses. Additionally, Dr. Steven Morganstein will be called as a damage witness. 232139.1U)MA,NITTG ?_i ?a??. .? ? ys -? ?? ,- , ,? , IV. List of all exhibits which a party intends to use at trial Attached as Exhibit B is Plaintiff's counsel's September 8, 2000, correspondence identifying all liability and damage exhibits. V. Copy of the written report or answer to written interrogatories consistent with Rule 4003.5 containing opinion of expert witnesses Attached as Exhibit C. is a copy of Dr. Philip Neiderer's May 17, 2001, deposition transcript. Attached as Exhibit D is a copy of Dr. Steven Morganstein's May 18, 2001, deposition transcript. VI. Stipulation of the parties, if any None anticipated. VII. Estimated length of trial 1 % days. VIII. Anv scheduling problems Plaintiffs counsel has another case on the trial list, Runk v. McNaughton, et al. IX. Anv special evidentiarv issues None anticipated. 232139.1\DU.\ArrG 2 X. A realistic settlement offer or demand Plaintiff: Policy limits of $50,000. Defendant: $25,000. Date:Ll, % ? p_G( 232139. nDU NM I G G O R ROVNFR, P.C. a id . Lutz, Esquire LD.1#35956 4503 N. Front Street Harrisburg, PA 17011 (717) 238-6791 Counsel for Plaintiff m,l a m x C) COMMONWEAL TH OF PENNS. VA NIA ::%. REFER TO OVERLAY SHEETS ` J POLICE ACCIDENT REPORT REPORTABLE NON •REPORTABIE Q POLICE INFORMATION PENNOOT USE ONLY 1. INCIDENT ACCIDENT LOCATION NUMBER - /o7C; 20 COUNTY 2. AGENCY CODE a/ NAME 21 MUNICIPALITY 3. STATIONI " CODE PRECINCT .PATROL S. IN ESTIGATOR " ZONE a PRIN IPAL ROADWAY INFORMATION 8AOGE 22. ROUTE NO. OR NUMBER S 5ntPPgO BY STREET NAME \ .r\••?11- 4 I t ' BADGE 27 SPEED `- NUMBER 3 SPIES 24. 7Y DATE PE 2S. ACCESS t. INVESTIG N B`TIME 3S HIGHWAY / - CONTROL TIME -, p INTERSECTING ROAD: ACCIDENT INFORMATION 26. ROUTE NO. OF; ACCIDENT _ 10. DAY pF EEK STREET NAME DATE 27. SPEED ZB. TYP 1. TIME OF LIMIT ?Y ..._. .291ACCESR 14. ? INJURED I5. PRIV. PROP - . ACCIOEN7 y ? ® 3( N id. DID VEHICLE HAVE TO BE REMOV ED FROM THE SCENE? 17. VEHICLE DAMA GE 31 UNIT 1 UNIT 2 0 NONE UNIT I I . LIGHT of 33 p( ? ? Y ^ 2 • MODERATE N y N L? 3-SEVERE UNIT 2 ® 34 9. MATERIA?SS Y ? N ® 19. PENN00T PPOPERTy Y ? N UNIT N 1 IF NOT AT INTERSECTION: ET OR RKEP N $ E `, 32. DISTANCE S FROM SITE IT MI MEASURED ? ESTIMATED ? )N 35. TRAFFIC PRINCIPAL INTERSECTING CONTROL DEVICE E UNIT a 2 0 r w w AA45 (1192) * u n U UNK U AXLES ?vMATERIAIS? 77. REI0 T (J ; , .? '•. PAGE: INVESYIGA7TN pGsl+ %3 .. •` s. ??f?G i I CD OW lDIENT q: - - 78. RESPONDING EMS AGENCY ,v - gCCIDENT DATE: 79. MF.OICAL FACILITY .)PEOPLE INFORMATION F G NAME ADDRESS H I J K L M B C D E / v r f" BI. ILLUMINATION 82. WEATHER 86. DIAGRAM M -?. B8. ROAD SURFACE © y3s ? 4r O 84, PENNSYLVANIA SCHOOL DISTRICT ............................... .................. (IF APPLICABLE) ..... ....... ... ..... . i a 85. DESCRIPTION OF DAMAGED PROPERTY OWNER ................. ADDRESS 5'? f a4'O . ' O Sfif S,(-? _ e RT3 ? P ............................................ PHONE IDENTIFY PRECIPITATING EVENTS. C VE AUSATION FACTORS. SEOUENCES OF EVENTS. WITNESS STATEMENTS, AND PROVIDE ADDITIONAL - 87. NARRATI DETAILS. LIKE INSURANCE INFORMATION AND LO CATION OF TOWED VEHICLES. IF KNOWN. f- rt , zo? r INSURANCE COM ANY INSURANCE INFORMATION C MP INFORMATION UNIT .o POLI Y JO UNIT 2 POLIC 7 NO 1 (N NO AME ADDR ESS PHONE ADDRESS PHONE TC NTC SECTION ,NUMBERS (ONLY IF CHARGED) 90 INDICATED . 4/ 3 3a ? P wr a P ZZ ? El UNIT2 ABLE 9v2. TYPE 9D. RESULTS NO TEST 91 PROP Mil jtYPE ?TEST 90' RESULTS ® NO TEST 94 INVESTIGATIQN TEST Q REFUSE NIT 2 0 REPMPLE7 O O % U O O . - O - 0 UNK - O nwww_ ArCMeV ldg? PAU=:os^- uv e?uw.w.. ....".?. I AA45(1192) 18.0 4,3 1 -b 1I `W W ANGINO &. RO VNER, P. C. 4$03 NORTH FRONTSfREET HARRISBURG, PA 17110.1708 717/2366791 FAX 717/'_3&5610 lNV W.ANG INO-ROVNER.CO\i EAWL, DLUT7@ANG12NoROVNER.COAI September 8, 2000 George B. Faller, Jr., Esquire Ten East High Street Carlisle, PA 17013 Re: Horowitz v. Brenizer Dear George: RIC11AIM C. ANGINo NI'IL J. ROWER jo-'11111 AI. MELILLO ITRRY S. I IMA I DAVID L. LU17 MICIIAM IS. KOSIX RICHARD A. SADLOCK DAVID S. WISNESKI NUoLE C. OLsoN MICHAEL]. NAmsKY JosEPH M. DORA DUANE S. BARRICK JAMES DECR4rl For purposes of a pretrial memorandum, 1 wish to advise you of the witnesses and exhibits that we plan to call at trial. I plan to call tine following liability witnesses at trial: L Defendant Nancy Lynn Brenirer as if on cross examination 2. Plaintiff Michelle Horowitz 3. Carlisle Police Officer Larry Kell The liability exhibits I plan to use at trial are as follows: 1. Diagram of the accident scene 2. Photographs of the accident scene 3. Photographs depicting the property damage to each vehicle The damage witnesses I plan to call at triad areas follows: I. Dr. Philip Nicdcrcr- family physician 2. Christopher Fisher -- physical therapist at Alexander Spring Rehab 3. Dr. Jason Litton - orthopedic surgeon 4. Russell Pool - physical therapist at Keystone Spine Center 5. Plaintiff Michelle I lorowitr 6. Bruce Ilorowitr. - Plaintiff's father 219589 , 1 MI.DLES ---777, -------- Taller, Jr., Esquire September 8, 2000 Page 2 7• Chong Horowitz- Plaintiffs mother 8. Matt Paver - Plaintiff's friend 9. Christina Ye - Plaintiff's cousin and friend 10. Michael Baia-Plaintiffs boyfriend The damage exhibits I plan to use at trial are as follows: 1. Carlisle Emergency Room Records 2 Medical treatment summary 3. Work Loss Summary (work loss paid by the first party benefits carrier is not recoverable, 75 Pa.C.S.A. §1722) 4. Prescription forms from Dr. Neiderer and Dr. Litton Very truly yours, DLUIes David L. Utz 2195SUTLDLES v t m_ x r, 0 'Q po MICHELLE HOROWITZ, IN THE COURT OF COMMON PLEAS PLANNTIFF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V NO. 99-7247 NANCY BRENIZER, DEFENDANT JURY TRIAL DEMANDED VIDEOTAPED DEPOSITION OF: PHILIP A. NEIDERER, D.O. TAKEN BY: PLAINTIFF BEFORE: MARIA N. O'DONNELL, RPR NOTARY PUBLIC DATE: MAY 17, 2001, 3:56 P.M. PLACE: 220 WILSON STREET CARLISLE, PENNSYLVANIA APPEARANCES: ANGINO & ROVNER, PC BY: DAVID L. LUTZ, ESQUIRE FOR - PLAINTIFF MARTSON, DEARDORFF, WILLIAMS & OTTO BY: GEORGE B. FALLER, JR., ESQUIRE FOR - DEFENDANT "eM Tt%9gnle9:.rrU N2080 Linglestown Road • Suire 103 • Harrisburg, PA 17110 717.540.0770 • fax 717.540.02'_1 • Lancasrer 717.393.5101 .. T i? I WITNESSES 2 NAME EXAMINATION 3 PHILIP A. NEIDERER, D.O. DIRECT 4 BY: MR. LUTZ 3 5 BY: MR. FALLER -- 17 6 7 8 9 10 I12 13 14 15 16 17 18 19 Multi-Pagc°1 PHILIP A. NEIDERER, D.O. MAY 17, 2001 Page 2 I Q All right. Page 4 2 Over the years, have you come to treat people CROSS 3 that have been involved in motor vehicle accident trauma? 4 A 'Mat's a common part of what we do in the process 5 of taking care of our adult patients. Frequently they are 6 involved in accidents, traumatic events, and we take care of 7 those patients as well as doing some workmen's compensation 8 work. 9 MR. t.trri: All right. At this point 1 am going 10 to move to have the doctor admitted as an expert in internal 1 I medicine and ask if there arc any questions on 12 qualifications? 13 MR. FALLER: No questions. 14 BY MR. LUIZ: 15 Q Doctor, we're going to ask you questions 16 concerning the care and treatment that Michelle Ilorowitz 17 received after a motor vehicle accident in June of 1998. 18 In answering anyone's questions, you can 19 certainly look at the medical records. 20 When did you first -- or when did somebody in the 21 group first sec Michelle Horowitz after an accident in June 22 of 1998? 23 A The first visit was June 24, 1998. The patient 24 was seen by my partner, Dr. Rankin, and that was two days 25 after she had been in the accident. P Page 3 1 PHILIP A. NEIDERER, D.0, called as a WI[neSS, 2 being duly swom, testified as follows: 3 DIRECCEXAMINNnON 4 BY MR. LUM: 5 Q For the record, would you please state your full 6 name? 7 A Philip Andrew Neiderer. 8 Q Your profession? 9 A I am an intcmist. 10 Q Could you tell us what you do on a daily basis as I I an internist? 12 A Generally take care of adult patients, administer 13 general medical care, wide variety of illnesses. 14 Q Where are your offices located? 15 A In Carlisle on Wilson Street . 16 Q Are you with a group? 17 A Yes, with a group, Masland Associates . 19 Q flow long have you been a physician? 19 A I have been practicing here at Masland Associates 20 since 1993. Graduated medical school in 1989. And did a 21 four-year residency in internal medicine at Com i mun ty 22 General Ifospital in Ilarrisburg. 23 Q Doctor, do you have any certifications or 24 licensing in your field of study? 25 A I am board certified in infernal medicine . HUGHES, ALBRIGHT, FOLT/ & NA I-ALL 717-540-0220\717-393-5101 I Page 5 Q And before today, did you look at Dr. Rankin's 2 notes? 3 A Yes, I have. 4 Q Could you tell us the history that is recorded in 5 the records with regard to what had happened? 6 A It states that she was struck on the side of her 7 car, and the car that hit her was going approximately 30 8 miles an hour. 9 And she was able to drive away from the accident 10 and then was san in the emergency roam later that day for 1 I back pain and had x-rays that were at that time reported as 12 normal. 13 Was reported to have from the emergency room 14 records tenderness in the muscles along the spine, and also 15 in the neck and the low back region was found to have some I6 limited range of motion, difficult time moving and was given 17 some pain medicine and was sent home to follow up with us. 18 Q What was your partner's diagnosis? 19 A At that point, he thought that her symptoms were 20 related to a muscle spasm in the spine. '21 Q What was his treatment plan, doctor? 22 A Al that point he recommended that she take 23 Tylenol for pain and also give her a prescription for 24 anti-inEammatory, Naprosyn, which is much like Advil or 25 Alevc and take that, and also recommended some physical Page 2 - Page 5 PHILIP A. NEIDERER, D.O. MAY 17, 2001 Multi-Page"' 1 therapy. Page 6 2 Q All right. And, doctor, you mentioned spasm. 3 What is a spasm? What causes that? 4 A Well, basically the spine is a column of bones 5 that go from the base of the skull into the pelvis, on 6 either side of those bones is a series of muscles and 7 ligaments that sort of tether everything together, allows us 8 to maintain an upright posture. 9 In the face of an accident, a traumatic event, a 10 jarring, there is a sudden jerking or sometimes tearing i l motion of those muscles that will cause a spasm or a tight 12 knotting or twisting of the muscles that can cause limited 13 range of motion and pain. 14 Q After that visit two days after the accident, 15 when was she next seen in the office for any low back pain 16 or associated pain? 17 A The next visit was September 15th, 1998. She was 18 seen by Michelle Flale who is a nurse practitioner in our 19 office. 20 Q Could you summarize that visit for us, please? 1 A Basically at that point, she had gone through !2 eight weeks of physical therapy and had taken some Naprosyn, ' .3 apparently had felt some better, but was having seemingly a 4 recurrence of her low back pain and return of some headache 5 that she had had initially after the accident. And was seen 2 I A Yes, I felt that 1 concurred with my partner who Page 8 2 initially saw her that she had a strain of the thoracic and 3 lumbar spine and chronic headache secondary to the accident. 4 Q Now, you mentioned some medical terms. You 5 mentioned lumhar and flmracic. Can you explain those terms 6 to thejury in layman's terms? 7 A Tlm lumbar region is the tail of the spine. The 8 area just above the pelvis which is the area that is most 9 commonly involved when people have low back pain. 10 71c thoracic area is the next area up that I 1 usually encompasses sort of the midback from just below the 12 neck to just below the shoulder blades. 13 Q 1 take it when you saw Michelle Morowitz on 14 December 24, 1998, you prescribed medication? 15 A Correct. 16 Q And then did you ask her to come back and see 17 you'? 18 A At that point, we recommended that we do change 19 some medications and that she try to continue with some 20 therapy and that if she was not improved over the next few 21 months, that she come back for a follow-up. 22 Q Did site in fact do that, doctor? 23 A Yes, she came back in January 27th of 1999. 24 Q And did you see her at that time'? 25 A Yes, I did. 1 by Michelle, was found to have tenderness in the low Backe ? I Page 9 Q Can you summarize for us that 2 region i i ? . 3 And at that point, it was neommtmded that she go v s t At that l point, 3 i mproved at al was still having continued headaches. 4 back on an anti-inflammatory and go back for another course 4 The headaches were at that 5 of i h i p ys cal therapy. 6 Q All right. When was she next seen in the office po nt on a daily basis. And they 5 were so bad that sometimes she would get nausea and 7 for either headache or low back problems? 6 vomiting. And the pain would seem to be mainly in the back 8 A The next visit was December 24, 1998 Then she 7 of head upper pan of the neck. And her back that r t . 9 was seen by me for the first time after the accident. 10 8 se Point m seemed be somewhat improved with pl ysical therapy, 9 but she was not havin h Q Al that time given the amount of time that g muc success with her headaches. 10 11 transpired, did you take a more detailed history? Q And in terms of medication, what did you do? 1 I 12 A Well, I had reviewed with her the mechanisms of 13 the accident and what had h A At that point, we recommended that she maintain 12 her muscle relaxants and to try to relieve some of the appened after the accident and 14 what treatment that had been ad i i 13 muscle spasm as well as continue with the m n stered. 15 Q All right. Did you actually perform a hands-on 14 anti-inllammatorics which also helped relieve some pain, and 16 physical exam? 15 we added a medicine called Glavil or Amitriplylinc which is 17 si Yes, I did. 16 specifically to help to relieve the headaches. 18 Q Could you tell the jury what you did and what you or did you continua to see her 18 th d 19 found? 1999? ro gho t 20 A WCII, at that time, she did stem to have a Ycs, t l 19 A 21 significant amount of spasm in the muscles, particularly in o e l us dates that You 1 21 i J s l t l 22 the midback and the low back region, and a lot of tenderness pr marily what wa hi r problem and wha lid you do for her? 22 23 along thejoints where the spine meets the pelvis A We sate her back on Pcbruary 23rd, 1999. At that . 24 Q Doctor, after obtaining the history and then 23 point she had continued back pain. It seemed at that point 25 performing the physical exam, did you mach a diagnosis? 24 that the back pain had worseneda t. nd we 25 recommended [flat she co ti l a i i rage 6 - Page 9 n nue with her nt nf7 mmatories, HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 Multi-PagePHILIP A. NI;IULKL'K, U.V. MAY 17.2001 Page 10 1 continue with the Elavil for the headache, which did seem to 2 be helping somewhat, and also use some moist beat, continue 3 with exercise, and use some stronger pain medicine for 4 relief of her pain. 5 Q What type of pain medicine? 6 A We gave her Darvocet. 7 Q Okay. And after that visit, did you ask her to 8 come back? 9 A We did tell her that if she was not improved 10 within a few days, that she should come back and we would 11 consider possibly even giving her an injection into her back 12 for pain relief. 13 Q All right. Did she come back the next month, 14 doctor? 15 A Right. She came become March 15th. Saw my nurse 16 practitioner. 17 At that point, continued to have low back pain, 18 continued to have headaches, was given a different 19 medication for pain relief for her headaches. And was also 20 to continue with physical therapy and was instructed to come 21 back and see me in a month. 22 Q Did you sec her the following month, doctor? 23 A Yes, I saw her in April 14th. And at that point 24 the low back had improved somewhat with physical therapy. 25 She was getting therapy twice a week. And she was still page I I I using muscle relaxants or using the Elavil for the headaches 2 and was using the anti-inflammatory once or twice a days. 3 And the back seemed to be particularly bad. She was sitting 4 for long periods of time. 5 And the exam at that point seemed to have 6 improved a little bit that there was not as much muscular 7 spasm and -- but her sacroiliac joint which is when: the 8 spine meets the pelvis was still somewhat tender to touch. 9 Q When did you next sec her with regard to low back 10 problems or headaches? 1 I A She was then seen in June 21st of that year with 12 primarily headaches. 13 Q Okay. What did you do for her that day? 14 A At that point, the headaches seemed to be 15 somewhat worse. 16 We were concerned that maybe there was something 17 structurally wrong with the brain that could she have had 18 some sort of trauma or at worst a brain tumor, so we ordered 19 an mm of the brain which was read by the radiologist as 20 being a negative and we prescribed some different headache 21 medication for her. 22 Q Doctor, this would have been a little bit man! 23 than a year after the accident, or actually maybe exactly a 24 year after the accident, why isn't she getting better after 25 a year? Page 12 1 A Well, it's not uncommon that people who develop 2 any sort of phenomena such as headaches, neck strain, low 3 back strain after a traumatic event can continue to have 4 symptoms that can persist for years or maybe never 5 completely go away, because the accident, a violent jarring 6 like that, will distort the normal architecture of the spine 7 and all of those interconnections of the ligaments and the 8 muscles, and many times that will never go back to normal, 9 and people can have continued pain and symplomatology from 10 that. I 1 Q All right. Continuing through the summer of 12 1999, did you see her a couple times, doctor? 13 A 1 believe so. She was -- well, she was seen in 14 July 23rd by my nurse practitioner with again persistent 15 headaches and back pain. 16 Again, we tried some different medications for 17 her headaches, recommended continued physical therapy. Was 18 smm again by the nurse practice August 20th. And at that 19 point was recommended that she see an orthopedist for 20 further evaluation. 21 Q Did you know if Michelle Horowitz did in fact see 22 an orthopedic doctor? 23 A The records that I have indicated she went to the 24 orthopedic surgeon and I believe it was Dr. Litton at the 25 Orthopedic Institute of Pennsylvania. And he sent her to Page 13 1 the Keystone Spine Center for several month treatment of 2 physical therapy. 3 Q All right. And did you see Michelle Horowitz 4 after she saw Dr. Litton? 5 A I did, I saw her August 23rd. 6 Q Of 2000? 7 A Correct. 8 Q Would you tell us about that visit, please? 9 A At that point she had mentioned she had some 10 continued back pain. I1 At this point it was, you know, two years from 12 the accident. The treatment at the Keystone Spine Center 13 did seem to help somewhat. 14 She was very diligent with doing exercises at 15 home and trying to improve herself. She was a doing 16 exercises twice a day for at least ten minutes. 17 And she was on Naprosyn which seemed like it was 18 not helping, that is the anti-inflammatory pain medicine. 19 And the Elavil and the Flexeril which we had given her 20 before which is the pill for the headaches and the muscle 21 relaxants were stopped by the orthopedic surgeon because it 22 had been causing some sedation in the morning. 23 At that point she seemed to continue to have 24 headaches, seemed to be at that point tied in with her back 25 pain. She would get back pain, the headaches would occur at HUGHES, ALBRIGHT, FOCI'-L & NATALE 717-540-0220\717-393-5101 rage t u - rage 1.5 PHILIP A. NEIDERER, D.O. MAV 17 7nni Multi-Page' Page 14 1 I the same time. 2 And she was still tender to the sacroiliac joint 3 and there was still some muscle spasm particularly in that 4 low back region. 5 Q ley the way, when you physically exam her and 6 detect spasms, what exactly do you feel? 7 A Well, it's a difficult thing to explain. But 8 just by normal examination and the process of examining 9 patients and you feel the spine, you feel the muscles, you 10 get used to over the years what a normal exam is like. 11 And normally there is a certain amount of 12 flexibility or softness in the muscles. When someone 13 develops spasm, there is a certain amount of tightness or 14 tension that you can feel, much like most people would 15 recognize if they have a bad cramp in their calf. They grab 16 it and it feels hard, you know how that feels in comparison 17. to your normal calf. And that's a good example as to what 18 we feel. 19 Q All right. And, doctor, what was your diagnosis t0 and plan as of August 23, 2000? !I A At that point we felt that she still had the !2 lumbar strain the low back strain secondary to the accident. !3 We wanted her to restart on a muscle relaxant. !4 And then also add back a different anti-inflammatory and !5 continue with the exercises and using heat, which she had Page 16. I Das;Ld on the history of the motor vehicle 2 accident of June 22, 1998, your physical exams, your review 3 of the records, the diagnostic studies, do you have an 4 opinion with a reasonable degree of medical certainly 5 whether Michelle llorowihr.' chronic low back pain and low 6 back injury and the headaches are causally related to the 7 June 19, June 1998 motor vehicle accident'? 8 A Well, I have been taking care of Michelle -- 9 she's been a patient of this office since 1994 and had never 10 complained of chronic back pain or headaches of any 11 significance before that time. And I am absolutely certain 12 that the symptoms that she was experiencing, the headaches 13 and lower back pain was a direct result of the motor vehicle 14 accident that she suffered. 15 Q Okay. And the last question, doctor, you talked 16 about the chronicity. What would be your prognosis for a 17 complete hundred percent recovery? 18 A Well, in my experience, the majority of patients 19 who have this type of injury and experience persistent 20 symptoms that last upwards of two years, most of those 21 patients do not gain full recovery. They seem to be left 22 with a certain amount of chronic pain and a little bit of 23 disability that may last indefinitely, say with particular 24 activity or with cold weather, that that pain and disability 25 may recur and may persist indefinitely. Page 15 1 been doing all along and then if she wasn't better, she was Page 17 1 MR. LI13Z: Thank you, doctor. I am sure Attorney 2 to give us a call. 2 Faller has some questions. 3 Q Did she come back to see you one more time 3 CROSS rXAMINATION 4 relevant to the low back pain, doctor? 4 BY MR. FALLER: 5 A She came back in December 29th, 2000, saw the 5 Q Dr. Neiderer, 1 think that you just given an 6 nurse practitioner. And at that point had had a little bit 6 opinion that the low hack pain was related to the car 7 of a viral syndrome, but also was mentioned that she was 7 accident, is that correct? 8 still having problems with the hack. 8 A Correct. 9 And -- I am sorry. That's the wrong note. It 9 Q You have given an opinion that the headaches that 10 was actually in September 18th. She saw Dr. Rankin, my 10 you were treating her for were related to the car accident? I I partner who had initially seen her. 11 A Correct. 12 And at that point, she had continued back pain. 12 Q Is it fair and common sense to say that that 13 She had been taking the anti-inflammatory and the muscle 1 3 opinion would only he as good as based on -- only be as good 14 relaxant. She did not get much relief, complained of a lot 1 4 on the facts on which it's based? 15 of stiffness. 1 5 A Correct. 16 - And at that point, Dr. Rankin felt that the 1 6 Q And I think your opinion was what is causing the 17 Vioxx, the anti-inflammatory pain medicine, should be 1 7 low back pain is muscle strain and sprain and damage to the 18 increased in strength, and consider going to the pain clinic I S soft tissues and ligaments that occurred when she was in the 19 for further intervention. 1 9 accident? 20 Q Did your partner discuss that with you? 2 0 A Correct. 21 A Yes. I asked actually talked to him in the 2 1 Q The ligaments or soft tissue in the back are 22 hallway about what to do. And we both agreed sending her to 2 2 similar to the ligaments and soft tissue that would be in 23 the pain clinic would be a reasonable option. 2 3 your ankle, for instance? 24 Q All right. Now, doctor, I am going to ask you a 2 4 A Well, they are somewhat different because an 25 legal-type question. 2 5 ankle is a joint that moves much more freely than the back. e- .. . ..y..., rIL)W IN, ALBICIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 9I1 _ Multi-Page Page 18 1 The back is a more fixed structure and it has a different 2 mechanism of motion, a different type of joint than the 3 ankle. So it's similar in some ways, but in many ways, it's 4 very different and acts very definitely. 5 Q Okay. But as far as what we're dealing with 6 here, it was a soft tissue injury to her back, there was no 7 fractures or anything of that nature that you have seen? 8 A Correct. 9 Q You have done diagnostic studies to try to, you to know, determine what was causing it and the diagnosis of the 11 soft tissue injury is more is it fair to say a diagnosis of 12 exclusion? 13 A Well, it's a diagnosis based on physical 14 findings, and lack of objective findings on x-rays. 15 Q Okay. And you say objective findings. The 16 subjective findings, what are they? 17 A The subjective findings would be the patient's 1,18 complaints that -- the patient's complaints of pain or lack X119 of mobility. 20 Q Okay. Would that also be one of the facts upon 21 which your opinion is based, an assumption that she's 22 telling you the truth about where she's having pain and when 23 she's having pain? 24 A Correct. The most important thing in ourjob is 25 always listen to the patient. Page 19 I Q Okay. The other assumption is that you had -- I 2 think you noted and Dr. Rankin noted when he first saw her 3 that she never had back pain in the past? 4 A Correct. 5 Q She had never made complaints of headaches in the 6 past? 7 A Correct, not of any significant chronic nature. 8 Q For the headaches there? 9 A Correct. 10 Q And one of the things that you try to do is to 11 rule out other possible causes for the headaches, whatever 12 they may be, Tmu, those kind of things? 13 A Correct. 14 Q You didn't have any information from her that she 15 had any kind of history of TMj, exposure to something that 16 would cause headaches or migraines, that kind of thing? 17 A Correct. There was nothing that I could glean is from my records and our discussions with her that she had 19 had any other prior episodes or incidents that would explain 20 another cause or etiology for the headache. 21 Q Okay. Okay. 22 I listened but I didn't think 1 heard you say 23 what was causing the headaches. I think that I heard you 24 say that you did an NRI to rule some things out, you did a 25 CAT scan of the brain to rule some things out. Pt11L1Y A. NL'IUL'KL'K, U.V. MAY 17.2001 Page 201 I But did I hear correctly or did you not really 2 say what was causing her to have the headaches that you say 3 were related to the accident? 4 A Well, normally what causes these types of 5 headaches is that the paraspinal muscles which start in the 6 low back, they come up all of the way along the sides of the 7 spine. They come up in the back of the neck and they 8 actually wrap around even to the front of the head and 9 attach to the skull right above the eyebrows. 10 And it's very common that we see that the muscles 11 spasm that may even start in the low back is transmitted all 12 of the way up even into the spine and may cause classic 13 headaches that can be quite severe because of muscular 14 spasm. 15 Q Right. But -- and associated with that, wouldn't 16 that muscular spasm in the literature and in practice most 17 closely be associated with an injury to the neck as opposed 18 to the low back which you were treating her for? 19 A It can be, but it can also start in the low back 20 because there is a -- there is linkage from the musculature, 21 the paraspinal muscles are some of the longest muscles in 22 the body that go from the low back all of the way up into 23 the neck, of course, all of the way up into the front of the 24 head. 25 Q So this is something that happens traumatically Page 21 j 1 right at the time of the accident? 2 A Correct. 3 Q Have you reviewed the emergency room records? 4 A Yes. 5 Q Okay. Do you know if she complained of any head 6 pain or striking her head at the time of the accident? 7 A In the encrgency room records from Mr. Ely who is 8 a physicians assistant from the hospital, he did say in the 9 history of present illness, that she has pain in the 10 cervical spine arai and the lumbar spine area. 11 Q Okay. Well, whim you -- if the headaches were 12 caused by the accident, wouldn't you expect them to start at 13 about the time of the accident? 14 A Not necessarily. Sometimes we sec that symptoms 15 may be delayed somewhat, you know. Typically from any kind 16 of sprain or strain, the symptoms may sometimes be delayed 17 even weeks or months after the accident. 18 There is no good medical cause as to why that 19 happens, but that is fairly common in clinical practice to 20 se: that. 21 Q Wouldn't it be more common that it started closer 22 in time to the accident? 23 A That Broils to be the most common scenario, but 24 that's also not uncommon that %e sec the opposite, that 25 people may develop symptoms that may start weeks or months HUGHES, ALBRIGHT, FOLTZ & NATALE Page 18 - Page 21 717-540-0220\717-393-5101 PHILIP A. NEIDERER, D.O. Multi-PnonTM rVLA I I/, .4UU 1 I after. 2 Q Well, you have offered the opinion that the 3 headaches were related to the accident because they were 4 occurring close in time to the accident. Without checking, 5 do you know when she first complained in the medical rec 6 of headaches after the accident? 7 A I can't tell you without referring to the record. 8 Q Okay. Do you know, for instance, if when she saw 9 your partner, Dr. Rankin, two full days after the accident 10 she had any complaints about headaches or neck pain? 1 I A I believe that the problem complained at that 12 time was of low back pain prominent. 13 Q You wouldn't disagree if I said there was no 14 mention of headaches when she saw Dr. Rankin two days aft 15 the accident? 16 A I would have to refer to the record. 17 Q Okay. Why don't you do that and see if there is 18 -- I want to make sure I am not missing something as far as 19 the headache or head pain. 20 . A I don't sec any mention of headaches in his 21 notes, but there is a mention of neck pain and findings in 22 the cervical spine. 23 Q Okay. The first time that the headaches were 24 mentioned then would have been the next visit with Michelle !5 Hale on September 15, 1998? 1 A Correct. Page Z 2 Q The course of treatment, can you tell me what 3 medication that you prescribed for the headaches? 4 A The first medication that was prescribed was 5 Naprosyn, which is an anti-inflammatory and also analgesics 6 much like a Motrin or Advil-type medicine. Subsequently sh 7 was prescribed Elavil or Amitriptyline. 8 Q Okay. So Motrin is something that you would use 9 for headaches or for pain? 10 A Correct. 11 Q And that's a prescription medication? 12 A She was given Naprosyn which in the strength that 13 she was given was a prescription medication. 14 Q The thought as far as the cause of these problems 15 that she was having and how long they take to conclude, is 16 it possible that these types of symptoms don't resolve until 17 after the lawsuit may be over? 18 A Would you ask that question again, please? 19 Q Okay. When you first started treating her, you 20 obviously didn't know that she was involved or going to be 21 involved in litigation? 22 A Correct. 23 Q Okay. At some point your office did become aware 24 that she was going -- that she was filing a lawsuit and 25 making a claim and was involved in litigation? 1anc 77 - Pnnn 1)c Page 22 Page 24 ord110 5 accident and the litigation that she was involved in? I A Correct. 2 Q Okay. Was then; anything or any point in your 3 office notes, for instance, when you thought the headaches 4 or said that the headaches were not related to the car 6 A 1 don't believe I made any mention of the 7 headaches and its relationship to the litigation. 8 Q Okay. flow about as far as being related to the 9 car accident? A I am not sure what your question is. I I Q Okay. Did you ever -- were there ever notes in 12 your office's file that the headaches were not related to 13 the car accident'? o 14 A Well, 1 had a concern based on notes in April of 15 1999 when she came in for headaches, and at that point there 16 was a significant amount of stress in her family, which most 17 of that was not well documented in here, but involved an 18 uncle who was in a bad car accident and subsequently died. 19 And at that point I was thinking that maybe her 20 headaches at that point were more tension-tclated due to the 21 stress that she was under. 22 But them when we saw her in June that same 23 summer, she had been on vacation, was feeling very relaxed 24 and no stress, and the headaches were quite severe making me 25 go back to my original assumption that the headaches were Page 25 I not tension or stress-related, but were from the accident. 2 Q Okay. And that's based again on what she told 3 you that she had gone on vacation with family members and 4 wasn't feeling stress, but still had the headaches? 5 A Correct. e 6 Q Did anything else change from that time in April 7 14, 1999 where you said that you think these are tension 8 headaches now and unrelated to the accident, and saying 9 later that maybe they arc again related to the accident? 10 A Well, I think the severity of the headaches had 11 changed somewhat, that they seemed to be, you know, gelling 12 a little bit more severe, that she was getting a little bit 13 more nauseated, that sometimes, you know, the intensity of 14 the headaches seem to be a little bit grater than they had 15 been before. 16 Q I guess the question is, there was a note on 17 April 14, 1999, I think it says I think most of these are IS tension now and unrelated to the accident. She admitted to 19 stress at (tome. That note is April 14, 1999, is that 20 correct? 21 A Correct. 22 Q Then the next month she was seen in the office on 23 May 14th, 199? 24 A Correct -- on May 14th, 1999, correct. 25 Q Was there any mention of problems with headaches r.Uirnca, ALtsKILitfl', F01 Z & NATALE 717-540-0220\717-393-5101 Multi-Page' PHILIP A. NEIDERER, D.O. Page 26 1 at that point? 2 A She saw the nurse practitioner again and does not 3 appear to be any mention of headaches. 4 Q Is there any mention of low back pain? 5 A 'there was none. 6 Q Is it fair to say that during the two years that 7 you have seen her, sometimes she would say her headaches 8 were real bad and was not complaining of back pain and that 9 other limes she would say her back pain was bad and the JO headaches were okay? 11 A At sometimes one complaint may be more prominent 12 than the other, yes. 13 Q Without going through all of the notes, is there 14 times where, for instance, the one thing may be mentioned 15 and the headaches are not even mentioned? 16 A Correct. 17 Q Okay. And there were times that one was bad, the 18 other was not mentioned, is that fair? 19 A Correct. 20 Q And the only thing that changed when you said 21 that the headaches were again you thought now they must be 22 related to the car accident was the fact that she had gone !3 on a vacation, and told you that she didn't really feel 4 stress but she still had headaches? '.5 A Tlmt was a large part of it. And also the I incrchsal intensity and scvcrity of the headaches and that 2 level of intm:hy and severity is very unusual to be 3 related tojust tension and stress. 4 Q The -- is it possible that therapy that she's 5 been undergoing throughout this time is not as effective 6 until she can put the lawsuit behind her? 7 A I am not sure I can make that assumption. You 8 know, Ijust deal with the patient and her physical 9 complaints and her physical findings. 10 I don't know the interaction betwum, you know, I I the litigation and her symptoms. 12 Q Okay. Have you ever told her about studies or 13 things that have shown that there is little bcncfit from 14 therapy until the litigation is settled, 15 A I don't believe. I have ncvcr told her that 16 because I am not aware of any studies. 17 Q Okay. Do you know if anyone from your office has 18 ever talked with her or discussed the fact that -- of 19 studies that have shown little bcncfit train therapeutic 20 involvement until litigation is scttlal7 21 A 1 bcIICVc there was a mention in it note from Dr. 22 Rankin in September 18th of 2000 when: he appammly brought 23 that possibility tip to her. 24 Q Okay. And that's something that is documented in 25 the notes in September of 2000, this idea that there are HUGHES, ALBRIGhIT- FOi-T7. J, WATAIt r. rout x 1 1, LUu I Page 28 I studies that have shown then is little benefit from 2 therapeutic approaches until the litigation is settled? 3 A That's what Dr. Rankin had mentioned in his note. 4 1 atrnot aware of what studies he's referring to. 5 Q Okay. Dr. Rankin is the one that first saw her 6 and first examined her back a couple days after the 7 accident? 8 A Correct. 9 Q Just expericncc-wise, and I don't know which 10 doctor Dr. Rankin is in your practice, how long has Dr. I I Rankin been practicing medicine? 12 A Dr. Rankin started in the practice probably in 13 the mid to late 1970s. lie's currently retired. And his 14 main specialty was cardiology. lie would occasionally fill 15 in and sec patients when we were not available and he had an 16 opening, you know, would take time out of his cardiology 17 practice to see other patients. So this was not really his 18 area of expertise. 19 Q Okay. But these studies, for instance, he knew 20 about even though it wasn't his area of expertise? 21 A His wife is a physical therapist. I would assume 22 that he might have had some secondary knowledge from her. 23 Q Does Dr. Rankin still see patients in the 24 practice? 25 A No, he does not. Page 29 I Q Okay. At this time he was doing it as of 2 September of 2000? 3 A Correct. 4 Q And I think that you said initially in response 5 to questions from Mr. Lutz that you relied on his notes and 6 his examination for that first visit? 7 A Correct. 8 Q Since he had that discussion with Michelle 9 Horowitz in September of 2000 regarding therapy before and 10 after litigation, has she been back to the practice? I 1 A Yes, she has on several occasions. 12 Q Okay. On any of those occasions, is there any 13 mention or treatment for the neck -• I am sorry, for 14 headaches or low back pain? 15 A Thcre does not appear to be. 16 Q Since that September visit, there was visits 17 December 29tH of 2000, March 61h, 2001, March 21st, 2001, 18 April 18th, 2001 and May of 2001? 19 A That appears correct. 20 Q And none of those dealt with low back pain or 21 headaches? 22 A Correct. 23 MR. FALLER: That's alt I have. 24 REDIRECT EXAMINATION 25 OY MR. I.lrt7.: Page 27 1 i-?4U-U220\717-393-5101 rage 26 - Page 29 PHILIP A. NEIDERER, D.O. 1RAV 17 9nn1 Multi-Pagcr - --- Page 30 1 Q Doctor, 1 will be extremely brief. 2 Once then: was a referral to the pain clinic in 3 September, September l8th, 2000, did you consider Michelle 4 Morowitz under the treatment of a different doctor for 5 accident-related problems? 6 A She had had a referral to the pain clinic which 7 would normally means we would ask for help, but that not 8 necessarily that someone else would assume her total care. 9 Q Okay. 'Drank you, doctor. 10 A Thank you. I I (Whereupon, the deposition was concluded at 12 4:31 p.m.) 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 31 1 COUNTY OF DAUPHIN 2 : SS 3 COMMONWEALTH OF PENNSYLVANIA: 4 1, Maria N. O'Donnell, a Notary Public, authorized to 5 administer oaths within and for the Commonwealth of 6 Pennsylvania, do hereby certify that the foregoing is the 7 testimony of PHILIP A. NEIDERER, D.O. 8 1 further certify that before the taking of said 9 deposition, the witness was duly sworn; that the questions 10 and answers were taken down stenographically by the said 11 Reporter-Notary Public, and afterwards reduced to 12 typewriting under the direction of the said Reporter. 13 I further certify the said deposition was taken at 14 the time and place specified in the caption shat hereof. IS I further certify that I am not a relative or 16 employee or attorney or counsel to any of the parties, or a 17 relative or employee of such attorney or counsel, or 18 financially interested directly or indirectly in this 19 action. 20 1 further certify the said deposition constitutes 21 a true record of the testimony given by the said witness. 22 IN WITNESS WHEREOF, I have hereunto set my hand 23 this 28TH day of MAY, 2001. 24 -S YII- :, h?d'Do?uel . Rrt- a 25 Notary Public Page 30 - Page 31 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 :fit 0 t m COPY MICHELLE HOROWITZ, IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V CIVIL ACTION - LAW NO. 99-7247 NANCY BRENIZER, DEFENDANT JURY TRIAL DEMANDED VIDEO DEPOSITION OF: STEVEN E. MORGANSTEIN, D.O. TAKEN BY: PLAINTIFF BEFORE: BOBBI JO HAHN, RPR NOTARY PUBLIC DATE: MAY 18, 2001 11:50 A.M. PLACE: PRISM 450 POWERS AVENUE HARRISBURG, PENNSYLVANIA APPEARANCES: ANGINO & ROVNER, P.C. BY: DAVID L. LUTZ, ESQUIRE FOR - PLAINTIFF MARTSON, DEARDORFF, WILLIAMS & OTTO BY: GEORGE B. FALLER, JR., ESQUIRE FOR - DEFENDANT ALSO PRESENT: ARKIE SIMMERS, VIDEOGRAPHER e el c:' 2080 Linglestown Road • Suite 103 0 Harrisburg, PA 17110 717.540.0220 a fax 717.540.0221 + Lancaster 717.3935101 Multi-Page" STEVEN E. MORGANSTEIN, D.O. MAY 18, 2001 I W"ESSES Pagc I 4 2 vAME DIRECr CROSS REDIRECT RECROSS 3 srEVENF.MORGAWFE01,0.0. 2 STEVEN E. MORGANSTEIN, D.O., called as a 4 RY. WL LUIT. s - 12 - 3 witness, being duly sworn, testified as follows: 5 BY: MR. FALLER - Ia - - 6 4 5 DIRE(,T EXAMINATION 7 6 BY MR. LUTZ: 8 7 Q For the record, will you please state your 9 8 full name? 10 9 A Dr. Steven Edward Morganstein. 11 10 Q What type of doctor? 12 11 A I'm a physician in the specialty of physical 13 12 medicine and rehabilitation. 14 13 Q Could you explain to the ladies and gentlemen 15 14 of the jury what you do on a daily basis? 16 15 A My practice involves the diagnosis, treatment 17 16 and management of patients with injuries to muscles 18 , 17 bones, ligaments, musculoskeletal injuries with 19 18 emphasis on spine problems, neck and back pain. 20 19 Q Would you please summarize for the jury your 21 20 educational background and training starting with 2 21 college? 3 22 A I attended undergraduate college at Emory 14 23 University in Atlanta, Gcorgia. I completed medical 5 24 school at the Philadelphia COlIC90 of Osteopathic 25 Medicine and a one year rotating internship at Suburban 2 2 Pape I 1 STIPULATION 2 It is hereby stipulated by and between 3 counsel for the respective parties that reading, 4 signing, scaling, certification and filing arc hereby 5 waived. 6 7 THE VIDEOGRAPIIER: My name is Arkic Simmers 8 I'm a paralegal with Angino & Rovner. Our offices arc 9 located at 4503 North Front Street in Harrisburg, and 10 I'm operating the video and audio equipment for today's I l deposition. The date is May 18th, 2001; and it is 12 11:50 a.m.. We're here on behalf of the Plaintiff to 13 take the deposition of Dr. Steven Morganstein at 450 14 Powers Avenue, Harrisburg, PA. 15 Dr. Morganstein will be testifying in this 16 case, Michelle Horowitz versus Nancy Brcnizer in the 17 Court of Common Pleas of Cumberland County, 18 Pennsylvania, No. 99 dash 7247. Will the attorneys 19 please introduce themselves and who they represent? 20 MR. LUTZ: My name is David Lutz. I'm the 21 attorney for Michelle Horowitz. 22 MR. FALLER: And my name is Gcorge Faller, 23 and I represent Nancy Brenizer. 24 THE VIDEOGRAPnER: Will the court reporter 25 please swear in the witness? HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 1 General Hospital in Norristown, Pennsylvania and tPage hcn5 2 completed a three year residency in my specialty of 3 physical medicine and rehabilitation at the National 4 Rehabilitation Hospital in Washington D.C.. 5 Q Where are your offices located? 6 A Offices now are located in Harrisburg, 7 Pennsylvania and additionally in Mechanicsburg, 8 Pennsylvania. 9 Q Do you have hospital privileges? s In A Yes. 11 Q Where? 12 A I'm the medical director for the 13 rehabilitation department at Pinnacle Health Systems 14 which is the Harrisburg Hospital, Polyclinic Medical 15 Center and Community General Osteopathic Hospital. 16 Also have privileges at Mechanicsburg -- or HcalthSouth 17 Rehab in Mechanicsburg and Holy Spirit Hospital. 18 Q Doctor, over the years, have you come to 19 treat people that have been involved in motor vehicle 20 accident trauma? 21 A Yes. 22 Q Doctor, we are now going to look at your care 23 and treatment of Michelle Horowitz. In answering any 24 of my questions or Attorney Fallcr's questions, you can 25 certainly look at your records you have there in your Page 3 - Page 5 r?- . STEVEN E. MORGANSTEM, D.O. Multi-Pagen" MAY IIf,LUUI 1 lap. When did you first meet Michelle Horowitz? 2 A December 8th, 2000. 3 Q When you First met her, did you learn how it 4 was that she came to be scen by you? A Yes. Q And how was it? A She was referred to me from Dr. Walter Page 6 8 Peppelman who she had scen as a spine surgeon. 9 Q All right. And when you first met her, did 10 you take a history as to what had happmed, why she was 11 there? 12 A Yes. 13 Q And could you relate to the ladies and 14 gentlemen of the jury the -- the recorded history you 15 have in front of you? 16 A Michelle presented with a chief complaint of 17 chronic low back pain. She had reported she was 18 involved in a motor vehicle accident on June 22nd of 19 1998. She reports that she was a driver of a vehicle 20 that was involved in a collision with another car that 21 had ran through a stop sign. She reported that her car 22 struck the other vehicle in the passenger side. 23 She did not sustain any loss of consciousness 24 but reported site developed immediate onset of low back 25 nain and also indicated she had no prior history of any Page 7 I back problems. She did have some intermittent numbness 2 and tingling sensation in the right Icg, but her 3 primary complaint was of her chronic back symptoms. 4 Q Did you ascertain from her what medical 5 treatment she had received since the accident? 6 A Yes, she reported that she had treated with 7 Dr. Litton who is an orthopedic physician in the area. 8 She had undergone physical therapy several different 9 times and actually reported some improvement in her 10 pain while she was in the therapy program but overall continued to have symptoms. Q Was there any discussion of diagnostic studies? 14 A Yes. 15 Q Would you summarize that for us, please? 16 A She had undergone X-rays and an 1,181 of the 17 lumbar spine, and actually the films 1 was able to 18 review she did have a small disk herniation at L3-L4 19 level in the lumbar area but did not -- this didn't 20 stem to be significant. And she had not had any 21 additional diagnostic tests. 22 Q lust so the jury understands, what is L4-L5? 23 A 'Dte lumbar spine has five lumbar vertebrae; 24 and the -- they are named according -- the disks are 25 named according to the vertebrae above and below the Page 8 I level. So L3 and L4 would be the third and fourth 2 level down, and we would be taking the count then the 3 disk in between that level. And L4-L5 would be the 4 next level below that. 5 Q Doctor, after obtaining the history, did you 6 then perform a hands-on physical exam? 7 A Yes. 8 Q Could you plcasc summarize for the jury the 9 results of your examination? 10 A Michelle was observed ambulating without any 1I signs of an antalgic gait. She didn't have any limp or 12 anything like that when site was walking. On palpation, 13 she did have tenderness when pressing up against the 14 back in the lower lumbar region and also was noted to is have muscular spasm to a moderate degree; and that's a 16 palpable finding when you can feel tightness or 17 ropiness in the muscle. And that was found to be from 18 the L2 -- the second lumbar vertebral level -- down 19 through the entire lumbar spine into the sacrum which 20 is the lowest part of the spine. 21 I also assessed her range of motion and how 22 much movement she had in the spine, and she had 23 limitations both in flexion and extension or bending 24 forward and bending back. I performed a straight leg 25 raise test, and that's a test done where the lcg is Page 9 1 lifted straight up while the patient is lying down. 2 And that's to assess is there any pressure or tension 3 or irritation of the nerve roots in the lumbar area, 4 and that was found to be negative or normal on both 5 sides. 6 And I assessed her reflexes which were normal 7 at both of the knees and both of the ankles; and I 8 performed motor and sensory testing where -- manual 9 muscle testing to test how strong the muscles arc -- 10 and she had full strength -- and also to test her I I sensation to see if there was any numbness or loss of 12 feeling. And that was normal. 13 Q Doctor, you mentioned the spasms. First of 14 all, what exactly do you feel when you say there's a 15 spasm? 16 A I feel a tighter area or a ropier area where 17 you can feel the muscle being contracted in a certain 18 location in relation to the other muscles, and that can 19 be palpated or felt with the hands with enough pressure 20 over those muscles. X21 Q And you had mentioned the L2 level. Where is 22 that in relationship to a person's belt line? 23 A The belt line or the top of the hip bones, if 24 we draw an imaginary line across there would be 25 considered the L4 level generally. So a little bit Page 6 - Page 9 HULHILJ, AL13KI AII, 1'UL1G 66 INAIALC 717-540-0220\717-393-5101 Multi-Page" STEVEN E. MORGANSTEIN, D.O. MHI 16. LUUI Page 10 Page 12 1 above there. Each -- each vertebrae would extend a I over the areas of discomfort; and there's different 2 little bit above there. So L2 would be a little bit 2 settings that you can set -- the patient can set by 3 above that level and then extending down through that 3 themselves to try to provide pain relief. 4 level and down to the sacrum which would be closer to 4 And the way it works is by overriding some of 5 the top part of the buttock area. 5 the pain signals that are being sent into the spinal 6 Q All right. Doctor, after obtaining the 6 cord; and by blocking that or -- or overriding that, we 7 history, performing the physical exam and reviewing the 7 can -- patients can get pain relief. And the idea 8 diagnostic studies, did you formulate an initial s behind that is to allow them to be able to participate 9 diagnosis? 9 in functional, regular activities, work activities and 10 A Yes, I did. 10 also hopefully to be less reliant on use of 11 Q And what was that, Doctor? a medications. 12 A It was my feeling that Michelle was 12 Q Is a TENS Unit something you wcar on your 13 experiencing chronic low back pain, muscular back pain 13 body? 14 related to her trauma from the motor vehicle accident. 14 A Yes. 15 Q What was your treatment plan? 15 Q And how often in a given day or week do you 16 A I -- she had been taking an anti-inflammatory 16 wear a TENS Unit? 17 medication called Arthrotec; and she had been utilizing 17 A It really depends on the patient's needs. We 18 that once a day. And I instructed her to increase that is recommend typically that somebody can use it for up to 19 to twice a day to hopefully give her more pain relief 19 30 to 60 minutes several times throughout the day but 20 and relief from an anti-inflammatory standpoint. 20 really primarily when they're having more pain or when 21 And I also started her on to a medication 21 they know they're going to do an activity that is 22 called Neurontin which is a medication we use for 22 likely to cause them to have more pain. 23 chronic pain treatment. Often times helps with chronic 23 Q And Doctor, referring back to your February 24 muscular and nerve irritation problems, and we started 24 9th, 2000 note, did -- I take it you examined her that 25 her off at a low dose of that and gradually having her 25 day? Page II 1 increase that. And also had her -- she had completed 2 some therapy treatment already and was doing exercises 3 on her own at home and recommended she continue with a 4 daily stretching program at home. 5 Q Did you ask her to come back and see you? 6 A Yeah, she was scheduled back for follow-up in 7 one month. 8 Q And Doctor, when did you next see her? 9 A She returned for a follow-up on February 9th, 10 2001. 111 Q How was she doing at that time? 12 A She reported she was doing about the same. 13 She continued to have pain across her low back region. 14 She additionally at that time denied any symptoms into 15 the legs. 16 Q Okay. Was she taking the medication as 17 prescribed? 18 A Yes. 19 Q Okay. Doctor, in your note, there's a 20 reference to a TENS Unit. Could you tell us about 21 that, please? 22 A Yeah, a TENS Unit is -- is a device that we 23 use for chronic pain management; and I had prescribed 24 that to her at the time of her first visit. It's a 25 device that's utilimd where there's electrodes placed HUGHES, ALBRIGHT. FOLTZ & NATALE Page 13 1 A Yes. 2 Q Did your examination that day differ in any 3 extent to the first examination you had? 4 A No. 5 Q And how about your treatment plan at that 6 lime? 7 A She had been experiencing some stomach 8 problems, and anti-inflammatories sometimes can do 9 that. So I recommended that she stop the Arthrotec; 10 and I gave her a different medication, a newer medicine 1 I called Mobic which is less likely to cause stomach 12 irritation. So we changed her medications around. I 13 also had her increase the Neurontin where she had been 14 taking a 300 milligram pill three times a day and we 15 increased her to a 600 milligram pill at bedtime in 16 addition to the 300 during the day twice a day. So she 17 was at a higher dose. 18 Q Did you have any discussions with Michelle 19 Morowitz about her job? 20 A Yes, she had reported that she sal for most 21 of the day at work; and I discussed with her some 22 changes -- some ergonomic changes that could be made to 23 try to help her with that. Often times we recommend 24 utilizing a small stool to elevate the feet, keep the 25 feet up there. That takes a little pressure off the Page 10 - Pane.. 13 717-540-0220\717-393-5101 STEVEN E. MORGANSTEIN, D.O. Multi-Page"' MAY 18, 2001 Page 14 Page IG I back when you do that. 1 Q Doctor, let me ask you a legal type 2 Also recommended make sure site has a good 2 question. Based on the history, your evaluations, do 3 chair with a good back support and also to be able to 3 you have an opinion with a reasonable degree of medical 4 -- frequently we recommend to be able to change 4 certainty whether Michelle Horowitz's chronic low back 5 positions periodically, to be able to stand up so 5 pain is causally related to the June 22nd, 1998 motor 6 you're not in a prolonged sitting position for a long 6 vehicle accident? 7 time. 7 A Yes, I believe her ongoing symptoms are 8 Q After the February 9th, 2001 visit, did you 8 related to the accident. 9 see her again, Doctor? 9 Q And Doctor, last question. What's your 10 A Yes. 10 prognosis as of March, 2001? 11 Q What date did you sec her? 1 I A I think the fact that she's had her symptoms 12 A That visit was March 23rd, 2001. 12 for an extended period of time and would be considered 13 Q And would you please tell us about that visit 13 a chronic pain problem those individuals often continue 14 and how she was doing and what you did for her? 14 to experience some degree of pain and at times are 15 A She again continued to complain of similar 15 subject to having flare-ups or aggravations of their 16 type complaints, pain across the low back. The Mobic 16 symptoms that then would need other, more treatment or 17 was not helping her, and she had gone back to Arthrotcc 17 attention from a medical standpoint. 18 that she had been utilizing previously but again was 18 MR. Lu z: Thank you, Doctor. 19 still reporting some stomach problems. She was taking I9 CROSS EXAMINATION 20 the Neurontin which she felt was helping her somewhat. 20 BY MR. FALLER: 21 Again, most of her pain was across the low 21 Q Hi, Doctor. Couple questions from me. The 22 back. At that time, she complained of symptoms greater 22 last thing you did was give an opinion that this was 23 on the right side. She did have some pain into the 23 related to the car accident; is that correct? 24 buttock area but nothing down the leg. And she did 24 A Yes. 25 report she was continuing with her home exercise 25 Q Is it fair to say that that opinion would Page 15 Page 17 1 program. 1 only be as good as the facts upon which it's based? 2 Her examination basically was the same. She 2 A Yes. 3 still had localized tenderness across the low back 3 Q One of the facts or one of the chief facts 4 area, and there's no signs of any nerve problems. And 4 perhaps that upon which the -- the opinion is based is 5 she still had some restricted range of motion; and at 5 that one of the things she told you was she didn't have 6 that time, I did talk to her about undergoing some 6 any existing back problems at the time of this car 7 injections -- trigger point injections. And these arc 7 accident? 8 local muscular injections done into the area of back 8 A That's correct. 9 pain. However, she was a little hesitant about having 9 Q And that as far as anything that happened in 10 any shots done at that time. And we would give 10 between the time of the accident and when you first saw I I consideration in the future if that was something she I 1 her over two years later you had to rely on what she 12 would still need. 12 told you happened in between that time period? 13 Q What is -- what type of medication is in the 13 A Correct. 14 shots? 14 Q Did she tell you there were periods of time 15 A The injection for trigger point shots I 15 where she did get better and didn't have treatment 16 utilize an anesthetic medication, Lidocaine or 16 after the accident? 17 Xylocainc, which is done to try to get locally into the 17 A She had reported again during some of her 18 area where the trigger point is located; and by putting 18 therapy times her symptoms were improved; and I -- I 19 the anesthetic in there as well as just the stimulation 1 9 imagine that she didn't have any other treatment beyond 20 from the needle, if we can relieve some of the trigger 2 0 that until she had other problems when she had more 21 points, a lot of times some of the muscle spasm will 2 1 pain. 22 improve and the pain will improve. 2 2 Q The diagnosis that you made of the myofascial 23 Q And Doctor, as of March 23rd, 2001, had you 2 3 pain, you mentioned some studies and you said they 24 released her from your care? 2 4 were -- I think you used the word not significant. Do 25 A No. 2 5 you mean that what you found on any objective studies Page 14 - rage 17 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 Multi-Page'm STEVEN E. MORGANSTEIN, D.O. MAY 18, 2001 Page 18 1 wasn't what was causing the pain? Ain I correct your 2 opinion is that the pain is being caused by a 3 myofascial pain syndrome? 4 A That's correct. You can have findings that 5 can be not considered where the radiologist would 6 report, quote, normal as far as an MRI study; but those 7 findings don't necessarily indicate why someone could 8 have problems. And I think that's just part of what 9 has to be considered part of the big picture when to looking at the clinical examination as well as the 11 patient's complaints, and there didn't seem to be 12 ongoing signs of any nerve problems. 13 Q The first time you saw her -- I think in the 14 last paragraph of your February 8th, 2000 note -- the 15 first four paragraphs are essentially things before the 16 exam. 17 A It's December 8th, 2000? 18 Q Yes. Is the fifth paragraph -- am I correct 19 in saying that's where you really start the exam, the 20 physical examination? 21 A That's the report of the examination, yes. 22 Q What's the first thing you say about Ms. 23 Horowitz in that physical examination? 24 A The first -- first sentence there? 25 Q Yeah. Page 19 1 A Ms. Horowitz is a 4 foot 10 inch, 130 pound 2 female who does not appear to be in any acute 3 discomfort. 4 Q And what does it mean by does not appear to 5 be in any acute discomfort? 6 A That indicates if someone would be coming in 7 crying in pain, grimacing in pain, bent over holding 8 onto their back; and it's -- part of that is an 9 observation from myself as the examiner as to how 10 comfortable or not the -- the patient appears. 11 Q Okay. The opinion that you've given that she 12 may continue to have problems in the future, that again 13 is an opinion? 14 A Yes. 15 Q And one of the things that you've recommended 16 to try to help her or stop her from having those 17 problems is the trigger point injections? 18 A That's something recommended in individuals 19 with chronic muscular problems who have been through 20 therapy and different medications and some of the 21 treatments. That's one of the other treatments 22 that's -- that's a possibility or reasonable thing to 23 try. 24 Q You did discuss with her now on more than one 25 occasion that these shots may help? Page 201 I A Yes. 2 Q And at this point after a long time, the 3 reason it's kind of a more aggressive thing that is 4 done in a series of shots? 5 A Often times more than one shot is needed, 6 yes. 7 Q And in your experience, more than one shot 8 sometimes can, you know, put the person back to where 9 they were before the accident and clear up the problems l o because it's a more aggressive type of therapy that I i hasn't been tried? 12 A 1 think like any treatment we hope for a 13 cure. Often times the -- the fact is with individuals 14 who've had chronic problems you don't always get a 15 cure. We can hopefully give them some pain relief, and 16 again, the -- the real goal in chronic pain treatment 17 is functional improvement. That's what we really go is for. 19 Q But the point is even with the injections you 20 hope to be able to get rid of it 100 percent and you 21 don't know until you try? 22 A That's the goal, correct. 23 Q Were you aware that that was something that 24 was discussed with her even before she came to you? 25 A No. Page 21 1 Q Okay. And you discussed with -- with her now 2 more than once? 3 A 1 believe so, yes. 4 Q And that was something that even as of now 5 and as of today's date she said no, not really, I don't 6 think that's for me? 7 A She was -- as of the last visit was hesitant 8 to proceed with the shot. 9 Q Okay. And -- and would it be safe to say 10 that it would be more accurate and you'd be better able I t to give a long-term prognosis after you gave those 12 injections a try? 13 A I think that would be another treatment that 14 then could be assessed as to how well she would do with 15 that. Again, through experience with individuals with 16 chronic pain, even those that we are able to do 17 injections for, you know, they're still often times not 18 cured of the problem. 19 Q Right. But -- but sometimes they are and you 20 don't know until you try? 21 A That's again the goal or why we try to do it, 22 so yes. 23 Q And in the three visits that she's had 24 between the end of 2000 and March, 2001, were there any 25 complaints other than complaints of low back pain? HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 Page 18 - Page 21 . ssaveslsg STEVEN E. MORGANSTEIN, D.O. Multi-panne" MAY 18, LUUI Page 22 1 A I think on one occasion she talked about 2 initially some occasional tingling and numbness in the 3 right leg; but aside from that, her symptoms have been 4 primarily related to her back. 5 Q How about headaches? 6 A No. 7 Q No mention of headaches in your notes? 8 A No. 9 Q Do you know of anyone having discussed with to Michelle studies that talked about the fact that with 11 her case being in litigation sometimes therapy is not 12 successful or not as successful until you get the 13 litigation completed or done? 14 A Do I know anyone who discussed that with 15 her? 16 Q Yes. 17 A No. 18 Q Any medical providers that did? 19 A Not that I'm aware of. 20 MR. FALLER: That's all I have. 21 REDIRECT EXAMINATION 22 BY MR. LUTL: 23 Q Doctor, just a follow-up question, in answer 24 to one of Attorney Faller's questions, you used the 25 term myofascial pain syndrome. And could you explain Page 23 I that to the jury? What does that mean in laymen 's 2 tens? 3 A Myofascial pain syndrome -- myofascial means 4 muscle and the fascia which is the surrounding tissue 5 around the muscle when: the injury can stem from. Whtm 6 we talk about a syndrome, we talk about a group of 7 symptoms that are then collected together to form a 8 syndrome; and often times individuals with chronic 9 problems --particularly muscular problems -- along 10 with just the pain have other symptoms including I I depression and fatigue and sleep difficulties and 12 things like that that we often see that are related to 13 an individual with chronic pain problems. And again, 14 chronic meaning long time. 15 MR. LLUZ: Thank you, Doctor. 16 THE VIDEOGRAPHER: This concludes the 17 deposition. The time is 12:11 p.m.. 18 (Whereupon, the deposition concluded at 12:11 19 p.m..) 20 2 3 COt . OF NNIATA . SS a cwatokWEnuv or raha'sn.vANln: 5 6 1, Wbbi nahn, a Notary Public, authorimd to admininer the within and for the Commonwealth of 7 Pcrussylvania, do height, certify that the foregoing is g the kstinnnry of STEVEN R. MOROMSMRI, D O. 1 further certify our Won, the taking of 9 said drpomion, the wancsf was duly sworn; that it. question and mowen were taken down stercguphically 10 by the uid WpomrNotary Public, and afun,wmts reduced to typewriting under the direction of the mid 11 Reporter. I2 I further certify that the mid deppoosition was taken u U. lime and plxe specibed in the 13 caption short hermf. 14 1 further certify that I am not a relative or erupt-y. a ct urrcor counsel to any of the pubes, 15 or a tdaft, c or employee of such attorney or couruel, or frurcially interested directly or indirectly in 16 this xlion 17 1 further certify that the mid depnsition comtituln a Our record of the testimony given by the Ie mid wire.. 19 n Warli 5 WHEREOF, I love hereunto set my 20 hud this 3la day of May, 2001. 21 2 Hobbi J. IU. uk Notay Public page 24 .s„ -A use 11L)UHLS, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 CERTIFICA,rE OF SERVICE 1, Mary T. Geracts, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that 1 am this day serving a true and correct copy of the PLAINTIFF'S PRE-TRIAL MEMORANDUM upon counsel for Defendants, postage prepaid first class United States mail addressed as follows: George B. Faller, Jr., Esquire Ten East High Street Carlisle, PA 17013 Attorney for Defendant Dated: VI 0 - ( 232139.nDLLNITG I-IPILI: DATAI I LI]Ra, 6,a ambt 1 q0m I%d"'M Oened Ilp I IIDI O) 59 A A]I ,,,"N mwN 0102 JU 11 PM 3&4 01 MICHELLE HOROWITZ, Plaintiff V. NANCY BRENIZER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7247 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED DEFENDANT'S PRE-TRIAL MEMORANDUM 1. STATEMENT OF FACTS AS TO LIABILITY: Defendant Nancy Brenizer and Plaintiff Michelle Horowitz were parties to a traffic accident at the intersection of G Street and Spring Road, Cumberland County, Pennsylvania, on June 22, 1998. Plaintiffwas traveling south on Spring Road while Defendant was traveling west on G Street. Defendant was edging her way through the intersection when the Plaintiff hit her broadside. II. STATEMENT OF FACTS AS TO DAMAGES: See Plaintiff's Pre-Trial Memorandum as to damages claimed. III. PRINCIPAL ISSUES OF LIABILITY AND DAMAGES: A. LIABILITY: 1. Is there any evidence of a breach of a duty of reasonable care on the part of Defendant? 2. Was Plaintiff comparatively negligent? 3. If this Court finds that Defendant breached her duty of reasonable care, is there any evidence that Plaintiffs injuries were caused by that breach. B. DAMAGES: See Plaintiffs Memorandum. IV. SUMMARY OF LEGAL ISSUES: This is a standard motor vehicle case and no unusual issues are anticipated. ,.I I I r: 'J V. IDENTITY OF NrrNESSES: a. Defendant, Nancy Brenizer; b. Officer Larry Kell, Carlisle Police Department; C. Defendant reserves the right to call any witness identified in Plaintiffs Prc-Trial Memorandum, as on cross-examination; and d. Defendant reserves the right to add additional witnesses upon reasonable notice to opposing counsel. VI. LIST OF EXHIBITS: a. Plaintiffs medical records; b. Police report; C. Diagram of intersection; d. All documents produced by Plaintiffs counsel; and e. Defendant reserves the right to add additional exhibits upon reasonable notice to opposing counsel. VII. SETTLEMENT NEGOTIATIONS: Defendant has offered $25,000.00; Plaintiff has demanded 550,000.00. MARTSONyDEARDORF,F WILLIAMS & OTTO By P ! [?? George B. Faller, Jr., I.D. No. 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Datcd: June 8, 2001 7 CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent ofMARTSON DEARDORFF, W I LLIAMS & OTTO, hereby certify that a copy of the foregoing Pre-Trial Memorandum was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: David L. Lutz, Esquire ANGINO R. ROVNER 4503 N. Front Street Harrisburg, PA 17110 MAR DEARDORFF WILLIAMS & OTTO By Dated: June S, 2001 Carlisle, PA 17013 (717) 243-3341 . MARTSON UEARDORFF. W ILLIANIS N VITV . . / / ATf00.NF.1'S SC COUNSfLLOIU ATt?1V MON WILLIAM FMARTON LI W \\\??_??? ???AAA///??? n t WEER In JOF III • INFORMATION•AD'ICE•ADVOCACY , FDUS(RD L. SCNORPI' - DANIEL K. DrunDORFF - '1'1 oMuS J. WILLIAMS . ... . TEN EAST HIcFI STREET NO V. 019'O ?t CARLISLE, PrNNSYW.{NIA 17013 - - GrmcL B. FALLER JR.` .. TELEFI(ONE. (717) 2433341 CARE. C. RimI MAIIX A. UCNLINCF R ' FACSIMILE (717) 243.1850 . INTERNET w v.rndwo.CODI - HOARD CERTIFIED G)ILTRIAL SPECGUST' June 14, 2001 VIA -HAND-DELIVERY Judge J. Wesley Oler, Jr. CUMBERLAND COUNTY COURTHOUSE One Courthouse Square Carlisle, PA 17013-3387 RE: Michelle Horowitz v. Nancy Brenizer No. 99-7247 - Cumberland County C. C. P. Our File No. 3090.671 _ Dear Judge Oleri Due to a conflict in my schedule, I will be in trial in Dauphin Count y on WednesdayJune 20, 2001. lain asking for permission to have Edward L. Schorpp, Esqu ire attend the pre-trial . conference in the above referenced matter in my absence. Please have your. secretary call my office with your response. . Thank you for your consideration. Very truly yours, GBF/ajt P FILMY. DATA FILL'.bm W,.M]Lj. I MARTS.ON DEARDORFF WILLIAMS & OTTO George B. Faller, Jr. U . 74 2001, INFORMATION • ADVICE • ADVOCACY"'- .. < . , ##27 OLER MICHELLE HOROWITZ, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NANCY BRENIZER, Defendant No. 99-7247 CIVIL TERM IN RE: PRETRIAL CONFERENCE A pretrial conference was held in the above-captioned case in the chambers of Judge Oler on Wednesday, June 20, 2001. Present on behalf of the Plaintiff was David L. Lutz, Esquire (by telephone) Present on behalf of the Defendant was Edward Schorpp, Esquire, standing in for George B. Faller, Jr., Esquire, who will be trying the case. This is a negligence action for personal injuries arising out of an automobile accident on June 22, 1998, in the Borough of Carlisle. The accident allegedly happened at an intersection when Defendant failed to yield the right-of-way to Plaintiff. Issues include negligence, contributory negligence, causation, and damages. This will be a jury trial in which each side will have four peremptory challenges, for a total of eight. The estimated duration of trial is one and a half days. With respect to settlement negotiations, Plaintiff has demanded $50,000.00, and Defendant has offered $25,000.00. It appears to the Court that there is , a reasonable possibility that this case will be settled prior to trial. By the Court, J7 Wesley q ? Jr., David B. Lutz, Esquire 4503 North Front Street Harrisburg, PA 17110 For the Plaintiff George B. Faller, Jr., Esquire Ten East High Street Carlisle, PA 17013 For the Defendant way Court Administrator wcy I'. ?> ?? _ ?, ,: ?: :>; - ` __ , _? : ; y ! _ ij'i 7:? 4 . _ ' U ##27 OLER ( MICHELLE HOROWITZ, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NANCY BRENIZER, Defendant No. 99-7247 CIVIL TERM IN RE: PRETRIAL CONFERENCE A pretrial conference was held in the above-captioned case in the chambers of Judge Oler on Wednesday, June 20, 2001- Present on behalf of the Plaintiff was David L. Lutz, Esquire (by telephone). Present on behalf of the Defendant was Edward Schorpp, Esquire, standing in for George B. Faller, Jr., Esquire, who will be trying the case. This is a negligence action for personal injuries arising out of an automobile accident on June 22, 1998, in the Borough of Carlisle. The accident allegedly happened at an intersection when Defendant failed to yield the right-of-way to Plaintiff. Issues include negligence, contributory negligence, causation, and damages. This will be a jury trial in which each side will have four peremptory challenges, for a total of eight. The estimated duration of trial is one and a half days. With respect to settlement negotiations, Plaintiff has demanded $50,000.00, and Defendant has f I' i? I offered $25,000.00. It appears to the Court that there is a reasonable possibility that this case will be settled prior to trial. David B. Lutz, Esquire 4503 North Front Street Harrisburg, PA 17110 For the Plaintiff George B. Faller, Jr., Esquire Ten East High Street Carlisle, PA 17013 For the Defendant Court Administrator wcy By the court, FIFILLUDATAFILMTrnd ,.eb7t.adl(0v G,no1 0,031010131 33 PM Roiled MOM 0130 14 PSI IM 671 MICHELLE HOROWITZ, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NANCY BRENIZER, Defendant NO. 99-7247 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED ORDER AND NOW, this day of September, 2001, it appearing from the attached Order of Emanuel Cassimatis, Senior Judge Specially Presiding, that Defendant's counsel, George B. Faller, Jr., is attached in Adams County on September 10, 2001, this case is continued. It shall be re-listed for the November Trial Term. BY THE COURT, George E. Hoffer, P.J. a c E 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA Civil Margaret Ruth Ward, now 98-S-162 Margaret Ruth Keeney, Individually and Krista Walter, Individually VS. Jones Motor Group, Inc., Jones Motor Co., Inc. Rodney Weidner, t/a Rodney Weidner Trucking and Randall Rickrode ORDER OF COURT AND NOW this 28th day of August, 2001, after a second pretrial conference held this date, trial in this matter shall proceed as follows: 1. Trial week. This case is marked for trial during the two weeks of November 5 and November 12, 2001. It is estimated that the trial may take seven to ten trial days. It is noted that November 12 is a legal holiday. All the parties agree that the case will proceed in trial during this holiday. 2. Jury selection. A. Jury selection will commence at 9:00 a.m. on September 10, 2001 in a courtroom to be designated on that date. Judge Robert G. Bigham will preside during the jury selection because of the unavailability of the undersigned Judge. B. Voir dire shall be conducted by the Court. 1 Alicia K. Wooters, RPR Official Court Reporter ( ¦ 1 Any special voir dire questions shall be forwarded and 2 received by the Court no later than the close of business on 3 Thursday, September 6, 2001. On the date of jury selection each party shall provide the Court with a typed list of i witnesses, (together with addresses) that party intends to 3 call at trial. C. Preemptory challenges. By agreement of U 17 13 14 15 16 17 18 19 20 21 22 23 24 25 counsel, the Plaintiffs and Additional Defendant shall be entitled to six peremptory challenges to be divided among them as they may agree. The Defendants shall be entitled to a total of six peremptory challenges to be divided as follows: The two Jones Defendants shall have two, the Defendant Rickrode shall have two and Defendant Weidner shall have two. 3. Matters to be resolved. The following matters shall be decided and ruled upon by the undersigned: A. Plaintiffs' motion to compel discovery in pursuit of punitive damages filed July 18, 2001. B. Plaintiffs' motion to compel answers to IPlaintiffs, first request for admissions to Jones and Plaintiffs' motion to compel responses for Plaintiffs' third request for production of documents filed July 18, 2001. C. Plaintiffs' motion to consolidate phase one and phase two for trial filed July 25, 2001. D. The seven parts of Plaintiffs' motion in 2 Alicia K. Wooters, RPR Official Court Reporter F- -- . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 15 2( 27 2: Z 2? 2' limine filed August 1, 2001. E. The six parts of Defendant Jones issues raised in the pretrial memorandum filed August 1, 2001. 4. Note taking by jury. The parties have agreed with the Court that note taking by the jury shall not be implemented or permitted in this case. 5. Plaintiffs add to their witness list Dr. Suzette Song, MD. Plaintiffs have provided her written report to Defendants. 6. The order of Court entered March 7, 2001 as modified in this order is ratified and confirmed as the pretrial order in this case. BY THE COURT, /duel Cassimatis Senior Judge Specially Presiding Campbell & White George B. Faller, Jr., Esq. James G. Nealon, III, Esq. Douglas Marcello, Esq. William A. Addams, Esq. 3 / 20 / . This being a trae and ttested copy taken from and compared b the original Attest: `???:.?. /• Prothonotary 3 r Alicia K. Wooters, RPR official Court Reporter F.IFIL DATAFILMTrovdacr. 71-.d 11, h G d NQ=101:27:23 PAI Rowd NWM101:20.I4PM 3M en MICHELLE HOROWITZ, Plaintiff V. NANCY BRENIZER, Defendant :?tP D 5 ZG1i).?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7247 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED ORDER AND NOW, this day of September, 2001, it appearing from the attached Order of Emanuel Cassimatis, Senior Judge Specially Presiding, that Defendant's counsel, George B. Faller, Jr., is attached in Adams County on September 10, 2001, this case is continued. It shall be re-listed for the November Trial Term. BY THE COURT, George E. Hoffer, P.J. F1 ?l 1 IN TH 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Margaret Ruth Ward, now 98-S-162 Margaret Ruth Keeney, Individually and Krista Walter, Individually VS. Jones Motor Group, Inc., Jones Motor Co., Inc. Rodney Weidner, t/a Rodney Weidner Trucking and Randall Rickrode 1 Alicia K. Wooters, RPR Official Court Reportel ORDER OF COURT AND NOW this 28th day of August, 2001, after a second pretrial conference held this date, trial in this matter shall proceed as follows: 1. Trial week. This case is marked for trial during the two weeks of November 5 and November 12, 2001. It is estimated that the trial may take seven to ten trial days. It is noted that November 12 is a legal holiday. All the parties agree that the case will proceed in trial during this holiday. 2. Jury selection. A. Jury selection will commence at 9:00 a.m. on September 10, 2001 in a courtroom to be designated on that date. Judge Robert G. Bigham will preside during the jury selection because of the unavailability of the undersigned Judge. B. Voir dire shall be conducted by the Court. 1 E i 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Any special voir dire questions shall be forwarded and received by the Court no later than the close of business on Thursday, September 6, 2001. On the date of jury selection each party shall provide the Court with a typed list of witnesses, (together with addresses) that party intends to call at trial. C. Preemptory challenges. By agreement of counsel, the Plaintiffs and Additional Defendant shall be entitled to six peremptory challenges to be divided among them as they may agree. The Defendants shall be entitled to a total of six peremptory challenges to be divided as follows: The two Jones Defendants shall have two, the Defendant Rickrode shall have two and Defendant Weidner shall have two. 3. Matters to be resolved. The following matters shall be decided and ruled upon by the undersigned: A. Plaintiffs' motion to compel discovery in pursuit of punitive damages filed July 18, 2001. B. Plaintiffs' motion to compel answers to Plaintiffs' first request for admissions to Jones and Plaintiffs' motion to compel responses for Plaintiffs' third request for production of documents filed July 18, 2001. C. Plaintiffs' motion to consolidate phase D. The seven parts of Plaintiffs' motion in 2 Alicia K. Wooters, RPR Official Court Reporter 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 E. The six parts of Defendant Jones issues 4. Note taking by jury. The parties have agreed with the Court that note taking by the jury shall not be implemented or permitted in this case. 5. Plaintiffs add to their witness list Dr. Suzette Song, MD. Plaintiffs have provided her written 6. The Order of Court entered March 7, 2001 as lpretrial order in this case. BY THE COURT, aEnuel Cassimatis Senior Judge Specially Presiding Campbell & White George B. Faller, Jr., Esq. James G. Nealon, III, Esq. Douglas Marcello, Esq. William A. Addams, Esq. 31 20 B1. This being a ft= and [tested copy taken from and compared b the original Attest: 3 Alicia K. Wooters, RPR Official Court Reportez 1.nxCj' 1• 1 1 - Il i I l j O r- 0 06 _ C Q ? J J w O . O N ch Q N E3. C) LLI -C ^ 00) m z = d N = O W N Q C O 5 m n o V - h m - N r 2 z? F a 1 u7 o 6 F0 7 I F-71 ?ATARLSTmWM cw%71-ad .1/md+ V,Wd 00NSA1101:27.35 PM Reri,N 00I05N101:30,14 PM [[-- 4 3M 671 SCP 0 5 %ii L111 MICHELLE HOROWITZ, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 99-7247 : CIVIL ACTION-LAW NANCY BRENIZER, Defendant JURY TRIAL OF TWELVE DEMANDED ORDER AND NOW, this _ day of September, 2001, it appearing from the attached Order of Emanuel Cassimatis, SeniorJudge Specially Presiding, thatDefendant's counsel, George B. Faller, Jr., is attached in Adams County on September 10, 2001, this case is continued. It shall be re-listed for the November Trial Term. BY THE COURT, George E. Hoffer, P.J. O V A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . , V. IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA Civil - Margaret Ruth ward, now 98-S-162 Margaret Ruth Keeney, Individually and Krista Walter, Individually VS. Jones Motor Group, Inc., Jones Motor Co., Inc. Rodney Weidner, t/a Rodney Weidner Trucking and Randall Rickrode ORDER OF_COMT AND NOW this 28th day of August, 2001, after a second pretrial conference held this date, trial in this matter shall proceed as follows: 1. Trial week. This case is marked for trial during the two weeks of November 5 and November 12, 2001. It is estimated that the trial may take seven to ten trial days. It is noted that November 12 is a legal holiday. All the parties agree that the case will proceed in trial during this holiday. 2. Jury selection. A. Jury selection will commence at 9:00 a.m. on September 10, 2001 in a courtroom to be designated on that date. Judge Robert G. Bigham will preside during the jury selection because of the unavailability of the undersigned Judge. B. voir dire shall be conducted by the Court. 1 Alicia K. Wooters, RPR Official Court Reporter 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Thursday, September 6, 2001. On the date of jury selection each party shall provide the Court with a typed list of witnesses, (together with addresses) that party intends to C. Preemptory challenges. By agreement of counsel, the Plaintiffs and Additional Defendant shall he entitled to six peremptory challenges to be divided among them as they may agree. The Defendants shall be entitled to a total of six peremptory challenges to be divided as follows: The two Jones Defendants shall have two, the Defendant Rickrode shall have two and Defendant Weidner shall have two. 3. Matters to be resolved. The following matters shall be decided and ruled upon by the undersigned: A. Plaintiffs' motion to compel discovery in pursuit of punitive damages filed July 18, 2001. B. Plaintiffs' motion to compel answers to Plaintiffs' first request for admissions to Jones and Plaintiffs' motion to compel responses for Plaintiffs' third request for production of documents filed July 18, 2001. C. Plaintiffs' motion to consolidate phase one and phase two for trial filed July 25, 2001. 2 Alicia K. Wooters, RPR Official Court Reportel D. The seven parts of Plaintiffs' motion in W, .. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 limine filed August 1, 2001. E. The six parts of Defendant Jones issues raised in the pretrial memorandum filed August 1, 2001. 4. Note taking by jury. The parties have agreed with the Court that note taking by the jury shall not be implemented or permitted in this case. 5. Plaintiffs add to their witness list Dr. Suzette Song, MD. Plaintiffs have provided her written report to Defendants. 6. The order of Court entered March 7, 2001 as modified in this order is ratified and confirmed as the pretrial order in this case. BY THE COURT, 'Emanuel Cassimat:is Senior Judge Specially Presiding Campbell & White George B. Faller, Jr., Esq. James G. Nealon, III, Esq. Douglas Marcello, Esq. William A. Addams, Esq. 3 / 20&1/. This being a tray and ttested copy taken from and compared h the original Attest: / 3 t Alicia K. Wooters, RPR Official Court Reporter I I 1 PO 0 x N L Q J_ 5?5 m LL O Q ? y N J z 0 c 2 - .[ LL Z 5Y u U fL •?W bo- cr e- = W O o O a 11? a 4 ! nq MICHELLE HOROWITZ, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NANCY BRENIZER NO q q _ 7dg7 Defendants JURY TRIAL DEMANDED NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 ORIGINAL 200747.1\DLL\MAR MICHELLE HOROWITZ, Plaintiff V. NANCY BRENIZER Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. JURY TRIAL DEMANDED NOTICIA Le ban demandado a usted en la cone. Si usted quiere defenderse de estas demandas expuestas en ]as paginas sugnuientes, usted tiene viente (20) digs de plazo al partir de la fecha de la demands y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la cone en forma escrita sus defensas o sus objeciones a ]as demandas en contra de su persona. Sea avisado clue si usted no se defiende, la cone tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 200747.1\DLL\MAR MICHELLE HOROWITZ, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO- NANCY BRENIZER Defendants JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff Michelle Horowitz is an adult individual residing at 75 Chester St., Carlisle, Cumberland County, Pennsylvania. 2. Defendant Nancy Brenizer is an adult individual and who resides at 822 Factory St., Carlisle, Cumberland County, Pennsylvania. 3. The facts and occurrences hereinafter related took place on or about June 22, 1998 at approximately 5:17 p.m. at the intersection of G Street and Spring Road, Cumberland County, Pennsylvania. 4. At that time and place, Michelle Horowitz was operating a Mazda 626 traveling south on Spring Road. I' 5. At the same time, Defendant Nancy Brenizer was operating a Toyota Celica and traveling west on G Street. 6. Defendant Nancy Brenizer pulled from G Street onto Spring Road. 7. In entering the intersection, Defendant Nancy Brenizer failed to yield the right of way to Ms. Horowitz's motor vehicle therefore causing the front of Ms. Horowitz's vehicle to collide with the right side of the Defendant's vehicle. 4 i 200747.1\DLL\MAR ' 8. The foregoing accident and all of the injuries and damages set forth hereinafter sustained by Ms. Horowitz are the direct and proximate result of the negligent, careless, wanton and reckless manner in which Defendant Nancy Brenizer operated her motor vehicle as follows: a. failure to yield the right of way; b. failure to keep alert and maintain a proper watch for the presence of other motor vehicles on the highway; C. failure to keep proper control of his vehicle; d. failure to keep proper and adequate control over his vehicle; and C. driving his vehicle upon the highway in a manner endangering persons and property and in a reckless manner with careless disregard to the rights and safety of others and in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania. 9. Plaintiff Michelle Horowitz sustained painful and severe injuries, which include but are not limited to acervical, thoracolumbar, and sacroiliac strain, neck pain, chronic headaches and nausea. 10. By reason of the aforesaid injuries sustained by Ms. Horowitz, she was forced to incur liability for medical treatment, medications, physical therapy and similar miscellaneous expenses in an effort to restore herself to health, and claim is made therefor. 11. Because of the nature of her injuries, Ms. Horowitz has been advised and, therefore, avers that she may be forced to incur similar expenses in the future, and claim is made therefor. 200737.1\DLL\MAR IF--. 12. As a result of the aforementioned injuries, Ms. Horowitz has undergone and in the future will undergo physical and mental suffering, inconvenience in carrying out her daily activities, loss of life's pleasures and enjoyment, and claim is made therefor. 13. As a result of the aforesaid injuries, Ms. Horowitz has been and in the future will be subject to humiliation and embarrassment, and claim is made therefor. 14. As a result of the aforementioned injuries, Ms. Horowitz has sustained work loss and loss of opportunity, and claim is made therefor. 15. As a result of the aforesaid injuries, Ms. Horowitz has sustained uncompensated work loss, and claim is made therefor. 17. Ms. Horowitz continues to be plagued by persistent pain and limitation and, therefore, avers that her injuries may be of a permanent nature, causing residual problems for the remainder of her lifetime, and claim is made therefor. WHEREFORE, Plaintiff Michelle Horowitz demands judgment against Defendant Nancy Brenizer in an amount in excess of Twenty-five Thousand ($25,000.00) Dollars exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. ANGINO & ROVNER, P.C. Date: //- dq-q? David L. Lutz, Esquire I.D.#35956 4503 N. Front Street Harrisburg, PA 17110 (717) 235-6791 Counsel for Plaintiff 200747.1\DLL\MAR VERIPICA'r1ON 1, Michelle Horowitz, Plaintiff, have read the foregoing COMPLAINT and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. WITNESS: r Dated: I I l 91, 200147.1\DLL\MAR ? ? T ?l ..J t- ? I V rif LLJ U •. ZJ SHERIFF'S RETURN - REGULAR CASE NO: 1999-07247 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HOROWITZ MICHELLE VS. BRENIZER NANCY BRIAN BARRICK , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE & COMPLAINT was served upon BRENIZER NANCY the defendant, at 14:31 HOURS, on the 7th day of December 1999 at 822 FACTORY STREET CARLISLE, PA 17013 CUMBERLAND County, Pennsylvania, by handing to RAYMOND BRENIZER (FATHER) a true and attested copy of the NOTICE & COMPLAINT and at the same time directing His attention to the contents thereof. Sheriff's Costs: So answers: Docketing 18.00 Service 3.10 Affidavit .00 Surcharge 8.00 omas ine, eri =1NGINO 999OVNER by QD /°(r / ep `5 eri Sworn and subscribed to before me this /(/0' day of I21? -?o'ffO A.D. -/1w2 C- 7h ,aO _ n 0 T rotnonotar CleXed AI'dFIL1?i,a J,c ruron.lr, I'nlm OwN muBw U: wytl 1'31 Nrvi,N Ol n),w,'; r 32IPI )VX,>]I MICHELLE HOROWITZ, Plaintiff V. NANCY BRENIZER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7247 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Enter the appearance of MARTSON DEARDORFF WILLIAMS & OTTO on behalf of Defendant in the above matter. Defendant hereby demands a twelve juror jury trial in the above captioned action. MARTSON DEARDORFFF) WILLIAMS & OTTO By - " ? cccCCC... George B. Faller, Jr., Es ' •e I.D. No. 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Dated: April 7, 2000 CERTIFICATE OF SERVICE 1, Nichole L. Myers, an authorized agent of Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: David L. Lutz, Esquire ANGINO & ROVNER 4503 N. Front Street Harrisburg, PA 17110 MARTSON DEARDORFF WILLIAMS & OTTO sy J IC { l ?l h I (k?r U?? Nichole L. Myers Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: April 7, 2000 _... __ ?..t .a-4 F'.IFILM)ATAFILL1%,da1 M71-ASS 11e1m Owed UllO 007JO f'6AM i m6]1 MICHELLE HOROWITZ, Plaintiff V. NANCY BRENIZER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-7247 CIVIL ACTION-LAW : JURY TRIAL OF TWELVE DEMANDED DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT TO: MICHELLE HOROWITZ, Plaintiff, and her attorney, DAVID L. LUTZ, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. 1. Admitted based on information received. 2-5. Admitted. 6. Admitted that Defendant was edging her way through the intersection. 7-17. Denied pursuant to Pa. R.C.P. 1029(e). WHEREFORE, Defendant Nancy Brenizer demands judgment in her favorand dismissal of Plaintiffs Complaint with prejudice. NEW MATTER 18. The averments of paragraphs I through 17 of this Answer are incorporated herein by reference. 19. The Plaintiff's claims are barred by the applicable Statute of Limitations. 20. The Plaintiff's recovery is barred or reduced by the Pennsylvania Motor Vehicle Financial Responsibility Law as amended. 21. Plaintiff or her representatives chose the limited tort option by signing a valid selection form. 22. Plaintiff's injuries do not involve death, serious impairment of bodily function or permanent disfigurement. WHEREFORE, Defendant Nancy Brenizer demands judgment in her favor and dismissal of Plaintiffs Complaint with prejudice. MARTSON DEARDORFF WILLIAMS & OTTO BY A 21-- ell George B: Faller, Jr., Esquire I.D. Number 49813 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Defendant Date: 25 I Cl VERIFICATION The foregoing Defendant's Answer with New Matter to Plaintiff's Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. .- Nancy likenizer FAFILMOATAFILLIT.Vd WWIANS.i CERTIFICATE OF SERVICE I, Nichole L. Myers, an authorized agent of Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Defendant's Answer with New Matter to Plaintiff's Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: David L. Lutz, Esquire ANGINO & ROVNER, P.C. 4503 North Front Street Harrisburg, PA 17110 MARTSON DEARDORFF WILLIAMS & OTTO By L Nichole L. Myers Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: 5 lZJ ) CU y` A ui u_- U,7' MIC14ELLE HOROWITZ, Plaintiff' V. NANCY BRENIZER Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-7247 Civil JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER 19. through 22. The Defendant's New Matter, paragraphs 19 through 22, fails to set forth factual allegations that require the Plaintiff to admit and/or deny said allegations. The factual allegations contained in the Plaintiffs Complaint are incorporated herein by reference. WHEREFORE, the Plaintiff respectfully requests that the Defendant's New Matter be dismissed. ANGINO & ROVNER, P.C. Date: CQ ? - L? 214548.1\DLL\MTG t David L :Lutz I.D. No. 35956 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff CERTIFICATE OF SERVICE 1, Mary T. Geracts, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of the PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER upon counsel for Defendants, postage prepaid first class United States mail addressed as follows: George B. Faller, Jr., Esquire Ten East High Street Carlisle, PA 17013 Attorney for Defendant Dated: L(" I> 214548.1\ULL\MTG ti; '.L 1 J ?Y? = ' ti:J '• iA .U J LtJ i? `5 o v 'IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY HOROWITZ Vs. NO. 997247 BRENIZER CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena(s) for documents and things pursuant to Rule 4009.22 GEORGE B FALLER JR, ESQUIRE certifies that: 1. A Notice of Intent to Serve the Subpoena (s) with a copy of the subpoena(s) attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena(s) is sought to be served, 2. A copy of the Notice of Intent, including the proposed subpoena(s) is attached to this certificate, 3. No objection to the subpoena(s) has been received, and 4. The subpoena(s) which will be served is identical to the subpoena(s) which is attached to the Notice of Intent to Serve the Subpoena(s). Date: 6/22/00 GEORGE B FALLER JR, ESQUIRE TEN E HIGH ST CARLISLE, PA 17013 717-243-3341 ATTORNEY FOR DEFENDANT INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA PA 19135 (215) 335-3590 By: Angelique Cianci File #: M264336 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY HOROWITZ Vs. BRENIZER TO: DAVID LUTZ, ESQ No. 997247 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 DEFENDANT intends to serve a subpoena (s) identical to the one(s) attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made the subpoena may be served. Date: 6/1/00 GEORGE B FALLER JR, ESQUIRE TEN E HIGH ST CARLISLE, PA 17013 ATTORNEY FOR DEFENDANT INQUIRIES SHOULD BE ADDRESSED TO: MEDICAL LEGAL REPRODUCTIONS, INC. 4940 DISSTON STREET PHILADELPHIA, PA 19135 (215) 335-3590 By: Angelique Cianci Enc(s): Copy of subpoena (s) Counsel return card File #: M264336 -,HWz6W2TZ Vs. BRENIZER 0244 EALTH.OF Pff2tIIMSyLVANIA OO(Wry OF CUMBMUAM 997247 ' File Flo: SUBPOENA TO PRODUCE DOad•ENTS OR THINGS FOR DISOOVERY PURare TO F E 4009-99 TO: MASLAND ASSOCS INC, 220 WILSON ST STE 109, CARLISLE PA 17013 M_ (Nane of Person or Entity) - ? Within twenty (20) days after service of this subpoena produce the following docur?ent 'you are or ed by the court to at (Address) You may deliver or mail legible copies of the this subpoena, together with the certificate ,ents Produce things re ti request at the address listed °omliance, to the t quested ? cost of above. You have the right to seek into preparing the copies or producing the things sought. themakin able If you fail to Produce the docunents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court orde+• cmpelling you to omply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLCWINO PERSON: NAME: _ A'I. ?t ADDRESS: t TELEPHONE: SUPREME OOURT ID it - ATTORNEY FOR: DATE: ,S of the (Eff. 7/97) L BY THE 0OURT: ADDENDUM TO SUBPOENA HOROWITZ Vs. No. 997247 BRENIZER CUSTODIAN OF RECORDS FOR: MASLAND ASSOCSINC ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: MICHELLE HOROWITZ ADDRESS: 75 CHESTER ST CARLISLE PA DATE OF BIRTH: 11/26/74 SSAN: 600109945 CERTIFIED PHOTOCOPIES OF THE RECORDS WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. County of: CUMBERLAND MLR File #: M264336-01 COM p MEALTH OF PENNS'LVANIA COUNPY OF C UMBEIUANT HOROWITZ Vs. File No. BRENIZER 997247 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4D09.22 RWC EMERGENCY PHYS, 13 BROOKWOOD AVE STE 3, CARLISLE PA 17013 TO: (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce.,the following docunentSBEtIAWFi1JC IIKD ADDENDUM at PA (Address) You may•%deliver or mail legible copies of the documents or produce things. requested `b` this subpoena;. together with the., certificate of ompliance, to the party making•thi< request. at the address listed above. You have the right to seek in advance the reasonablE cost of preparing the copies or producing the things sought. A If you fail to produce the documents or tiTings required by this subpoena within twenty (201 days after,,:its. service, the party serving this subpoena may seek a court order paipelling you to camly with it. THIS SUBPOENA WAS I FORGE TB FREOl1E5T TI (50LLOW I NO PERSON: NAME: ADDRESS: _ TEN E HIGH ST CARLISLE, PA 17013 TELEPHONE: 23:5 325-3919, SUPREME 00URT ID # ATTORNEY FOR, DEFENDANT M264336-02 00/00/00 DATE: S of the Carat (Eff. 7/97) ADDENDUM TO SUBPOENA HOROWITZ Vs. BRENIZER No. 997247 CUSTODIAN OF RECORDS FOR: RWC EMERGENCY PHYS ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, TO SANY IEXAMINATION OR INDEX RENDEREDOTO: NAME: MICHELLE HOROWITZ ADDRESS: 75 CHESTER ST CARLISLE PA DATE OF BIRTH: 11/26/74 SSAN: 600109945 CERTIFIED PHOTOCOPIES OF THE RECORDS WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. County of: CUMBERLAND MLR File #: M264336-02 Q COM•DNWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND HOROWITZ, Vs. BRENIZER File No. 997247 SUBPOENA TO PRODUCE DOCIPENTS OR THINGS FOR DISOOVERY PURSUANT TO RULE 4009.22 CARLISLE HOSP, 246 PARKER ST, CARLISLE PA 17013 TO: ATTN: MEDICAL RECORDS DEPT (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following docunentSMt1AW-ACHED Ann .NP1M at -- MEDICA ING,-AGAA DISSTON qT PHILA PA (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making thi- request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party. serving this. subpoena may seek a court orde;- cpnpelling you to conply with it. THIS SUBPOENA WAS ISSIIEDRGEBFALLERTJR, %5OLL0WINO PERSON: NAME: GEO ADDRESS: TEN E HIGH ST --CARLISLEPA 17013 TELEPHONE:. :2.??? 3212 SUPREME OOURT I D 0 _ ATTORNEY FOR: -?- DEFENDANT M264336-03 DATE:_ S of 'the Court •y PI (Eff. 7/97) BY THE OOURT: ADDENDUM TO SUBPOENA HOROWITZ Vs. BRENIZER CUSTODIAN OF RECORDS FOR: CARLISLE HOSP No. 997247 Any and all hospital records, including microfilm, microfiche emergency room reports, x-ray reports, out-patient records physical therapy records, and any other information pertaining to: NAME: MICHELLE HOROWITZ ADDRESS: 75 CHESTER ST CARLISLE PA DATE OF BIRTH: 11/26/74 SSAN: 600109945 CERTIFIED PHOTOCOPIES OF THE RECORDS WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. ALL FEES MUST BE APPROVED PRIOR TO RECORDS BEING FORWARDED. County of: CUMBERLAND MLR File #: M264336-03 COM,DNWFALTH OF PFIabMANIA COUNTY OF CUMBERLAND e n HOROWITZ ?t Vs. 997247 File No. BRENIZER - i SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISOOVERY PURSUANT TO RULE 4009.22 TO ALEXANDER SPRING REHAB, 27 BROOKWOOD AVE, CARLISLE PA 17013 • (Name of Person or Entity) Within twenty (20) days after service of this subpoena t You are ordered by the court to produce the following doaments8mth&mF9rArmED Ann1XMTTM at ONS;-IYiC 49#9-BiISS MEDICAL (Address) You mayy deliver or mail legible copies of the documents or produce things requested b) this subena, together with the certificate of request at the address listed above. You have the right to seek inoadthe Party akig thil vance "hemreasonable cost of preparing the copies or producing the things sought. If you fail to produce the docunents or things required by this subpoena within twenty (20) days after its service,. ;.the ,party:, serv.ing.,,thir.; subpoena may seek a court orde+' txxmelIing you to coup ly with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING„ PERSON: NAME: GEORGE B FALLER JR, ESQ ADDRESS: _ TEN E HIGH ST 5QARLIS E?-P& 17013 TELEPHONE: :r SUPREME COURT ID t ATTORNEY FOR: 4 9813 DEFENDANT M264336-04 00/00/00 DATE:- Se of a urG'o t L (Eff. 7/97) ADDENDUM TO SUBPOENA HOROWITZ Vs. BRENIZER No. 997247 CUSTODIAN OF RECORDS FOR: ALEXANDER SPRING REHAB ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: ADDRESS: DATE OF BIRTH: SSAN: MICHELLE HOROWITZ 75 CHESTER ST CARLISLE 11/26/74 600109945 CERTIFIED PHOTOCOPIES OF THE RECORDS WILL ACCEPTED IN LIEU OF YOUR PERSONAL APPEARA County of: MLR File #: M264336-04 PA OOKDNWEALTH OF PENNSYLVANIA COUNTY OF C[zmauANID HOROWITZ Vs. BRENIZER File No. 997247 SUBPOENA TO PRODUCE -DOCUMENTS OR THINOS FOR DISOOVERY PURSUANT TO RULE 4009.22 CARLISLE IMAG ASSOCS, PO BOX 100, CARLISLE PA 17013 TO: (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following docunantsw,gh;ml (- F.1? AnD$NDUM at -- MBDICA , 4 - nT00TQW CT PHILA PA (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of conPliance, to the party making thi_ request at the address listed above. You have the right to seek in advance the rearonable cost of preparing the copies or producing the things sought. If you fail to Produce the docunents or things required by this subpoena within twenty (20) days after its service, the party. serving. this subpoena may seek a court orde L=pelling you to Imply with ;it. THIS SUBPOENA WAS ISSUED AT THE RE?T OF 11f_10LLCWING PERSON: NAME: GEORGE B FALL R SR ADDRESS: TEN E HIGH ST: caer IS E PA.17013 TELEPHONE: r..• 1? ?r .poro , SUPREME OOURT ID $IATTORNEY FOR: DEFENDANT M264336-05 001/00/.00' . oniE • ?,69 ??7•?`??? S f thert i BY THE COURT: (Eff. 7/97) ADDENDUM TO SUBPOENA HOROWITZ Vs. BRENIZER No. 997247 CUSTODIAN OF RECORDS FOR: CARLISLE IMAG ASSOCS ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY TREATMENT RENDERED OTHER ELLATING TO REPORTS, YIS EXAMINATION OR INDEX INFORMATION R TO: NAME: MICHELLE HOROWITZ ADDRESS: 75 CHESTER ST CARLISLE PA DATE OF BIRTH: 11/26/74 SSAN: 600109945 CERTIFIED PHOTOCOPIES OF THE RECORDS WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. County of: CUMBERLAND MLR File #: M264336-05 T aX4CNWEALTH OF PENNSYLVANIA 0Cum OF cumB BLAND HOROWITZ Vs. File No. BRENIZER 1 ? 997247 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISODVERY PURSUANT TO RULE 4009.22 DR,ALLAN•MIRA, 220 WILSON ST, CARLISLE PA 17013 T0: _ (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following doamentF89&ArFTAGKEU-A 111F.MMM at -?4o-•BISSTON Sm _ pHIL•A.. PA MEDICAL LEGAL (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of ccap'liance, to the party making thi: request at the address listed above. You have the right to seek in advance the rea-.onable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service,,, the party serving this sub pena may. seek a court orde;* ccnpel l ing you to conply with At. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME:' GEORGE B FALLER JR, ESQ ADDRESS: TEN E HIGH ST' FAFLISLEw pA 17013 TELEPHONE: SUPREME COURT ID ATTORNEY FOR: 49813 DEFENDANT M264336-06 00/00/0 DATE: S of the Courf .•.,. ;. (Eff. 7/97) ADDENDUM TO SUBPOENA HOROWITZ Vs. BRENIZER No. 997247 CUSTODIAN OF RECORDS FOR: DR ALLAN MIRA ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: MICHELLE HOROWITZ ADDRESS: 75 CHESTER ST CARLISLE PA DATE OF BIRTH: 11/26/74 SSAN: 600109945 CERTIFIED PHOTOCOPIES OF THE RECORDS WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. County of: CUMBERLAND MLR File #: M264336-06 Ca4DNWEALTH OF PENNSYLVANIA COUNTY OF 0-M RIAND HOROWITZ Vs. 997247 BRENIZER File No. SUBPOENA TO PRODUCE DOCLW SI? FOR DISOOVERY PURSUANT TO RULE 40pg,?2 DR JASON LITTON, 875 POPLAR CHURCH RD, CAMP HILL PA 17011 TO: Person or Ent Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following document.wm.M.?,,I•,,m at (Address) You may deliver or mail legible copies of the this subpoena, together with the certificate ofdoounents or produce things requested b? request at the address listed above. You have the rich Mli seee, ito the ce "hemreasonable cost of preparing the copies or producing the things sought. If you fail to produce the (20) days after its service documents or things required by this subpoena within twenty impelling you to comply with it, the party. serving. this.. subpoena may seek a court orde; THIS SUBPOENA WAS ISSUED AT THE REQUEST OF FOLLOWING PERSON: NAME: GEORGE B FALLER JR, ESS2 ADDRESS: TEN E HIGH ' - CARLISLE, PA 17013 TELEPFpNE:. . SUPREME COURT ID li ATTORNEY FOR: 4981 DEFENDANT M264336-07 100/.00/0 DATE: Se of a urt BY, THE COURT: (Eff. 7, ADDENDUM TO SUBPOENA HOROWITZ Vs. BRENIZER No. 997247 CUSTODIAN OF RECORDS FOR: DR JASON LITTON ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: MICHELLE HOROWITZ ADDRESS: 75 CHESTER ST CARLISLE PA DATE OF BIRTH: 11/26/74 SSAN: 600109945 CERTIFIED PHOTOCOPIES OF THE RECORDS WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. County of: CUMBERLAND MLR File #: M264336-07 i i I HOROWITZ Vs. BRENIZER KEYSTONE SPINE CTR, OOM•IDNWEALTH OF PENNSYLVANIA COUNTY OF CIIMBERIAND 997247 File No. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISOOWERY PURSUANT TO RULE 4009.22 1521 CEDAR CLIFF DR, CAMP HILL PA 17011 TO: (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following docunentSEE t?WWACHED ADDENDUM at nu AT, . PSILA. PA -- MEDICAL LEGAL CTS0N3T-3-Ne;, 994 0 DISST (Address) You may deliver or mail legible copies of the documents or produce things requested b" this subpoena, together with the certificate of crnpliance, to the party making thi: request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the docunents or things required by this subpoena within twenty (20) days after its service,. the party serving this; subpoena may seek a court orde impelling you to caTply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF T? FOLLOWING PERSON: NAME: GEORGE B FALLER JR, Q ADDRESS: TEN E HIGH ST- ... . ' •. i-hRT T4T.F PA 17013 TELEPHONE- . SUPREME COURT ID p ATTORNEY FOR: 49813 DEFENDANT M264336-OB 0/00/?0?0 DATE: ?_ S a of th Cour by T i Y'. ADDENDUM TO SUBPOENA HOROWITZ Vs. BRENIZER No. 997247 CUSTODIAN OF RECORDS FOR: KEYSTONE SPINE CTR ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: MICHELLE HOROWITZ ADDRESS: 75 CHESTER ST CARLISLE PA DATE OF BIRTH: 11/26/74 SSAN: 600109945 CERTIFIED PHOTOCOPIES OF THE RECORDS WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. County of: CUMBERLAND MLR File #: M264336-08 tw a"UNWEALTH OF PENNSYLVANIA OWNPY OF CUMBaUAND HOROWITZ Vs. 997247 File No. BRENIZER ?- TO: SUBPOENA TO PROWCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 DR DAVID BERTSCH, C/O BELVEDERE MED CTR, WALNUT BOTTOM RD CARLISLE PA 17013 (Name of Person or Entitv) Within twenty (20) days after service of this'su bPOena, you are ordered by the court to produce the fol lowing doartentsngth XWsGFX sT>tilR mrrnR at MEDICAL LE , 49+G- DUG- (Address) You may deliver or mail legible copies of the documents or produce things requested b) this subpoena, together with the certificate of compliance, to the Party making thi: request at the address listed above. You have the right to seek in advan cost of preparing the copies or Producing the things sought. ce the reasonable if you fail to produce the documents or things required by this sub (20) days after its service, y subpoena within twenty L=melIi the Ps?+ty;,seryin this s n9 You to oorrply with it. ?. ?.• ? ,'•!bP,ogna may seek a court orde,• THIS-SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLONING PERSON: NAME: . ' GEORGE B FALLER JR, ESQ ADDRESS: TEN E HIGH ST -D`ART T4T F PA 17013 TELEPHONE:. SUPREME COURT ID 4ri =122,2 ii ATTORNEY FOR: 4981- DEFENDANT M264336-09 00/00/00: DATE : ,"Q Sof the.Court i THE COURT: ,ision (Eff. 7/97) HOROWITZ Vs. BRENIZER ADDENDUM TO SUBPOENA No. 997247 CUSTODIAN OF RECORDS FOR: DR DAVID BERTSCH ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: MICHELLE HOROWITZ ADDRESS: 75 CHESTER ST CARLISLE PA DATE OF BIRTH: 11/26/74 SSAN: 600109945 CERTIFIED PHOTOCOPIES OF THE RECORDS WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. County of: CUMBERLAND MLR File #: M264336-09 COK4XMEALTH OF P402SnVANIA OOUNTY OF CLNBFRLAND HOROWITL Vs. BAENIZER File No. 997247 SUBPOENA TO PRODUCE DOCUWNTS OR THINGS F DISOOVE'RY PURSUANT TO DRS BAILEY POTTER AND, T0: CARLISLE PA 17013 KRETZING C/O BELVEDERE WALNUT BOTTOM RD tname of Person Or Entity) ?_ Within twenty (20) days after service of this subpoena, You are ordered by the court to produce the following docent SEEtWWACHF.i1 annF>\mrrnT at (Address) YOU may deliver or mail 1 this subpoena egible copies of the request at together with the the certificate ots or Produce things requested address Y making thi: cost of preparing the p listed above. You have the ri9htpto seeek'itoathe Pa the reasonable copies Or producing the things sought. If You fail to produce the (201 dins after dOcu?nts impe l l ing you to its serv;cer -th part Or things rqui red by cgmly with serving this subpoena within twenty Y it. ubPOena may seek a court orde NA ETHIS: GEORGE SUBPOENA WAS S9-ED THE REQUEST B FALLER JR OF 7}E FOLLOWING PERSON: ESS2 ADDRESS: mnn, •,Tl..-..'-? ARr_ T?ipA 17013 TELEPHONE: . . C SUPREhE OpURT ID g - ATTORNEY FOR: 4 9 B 1--- *DEFENDANT M264336-10 00/00/00 DATE: SB f t e urt. (Eff. 7/97) ADDENDUM TO SUBPOENA HOROWITZ Vs. No. 997247 BRENIZER CUSTODIAN OF RECORDS FOR: DRS BAILEY POTTER AND ANY AND ALL OFFICE RECORDS, INCLUDING NOTES, CORRESPONDENCE, MEMORANDA, X-RAY REPORTS, HISTORY NOTES, INDEX CARDS AND ANY OTHER INFORMATION RELATING TO ANY EXAMINATION OR TREATMENT RENDERED TO: NAME: MICHELLE HOROWITZ ADDRESS: 75 CHESTER ST CARLISLE PA DATE OF BIRTH: 11/26/74 SSAN: 600109945 CERTIFIED PHOTOCOPIES OF THE RECORDS WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. f I f County of: CUMBERLAND MLR File #: M264336-10 N pOM pNWEAI.TH OF PENNSYLVANIA COUNTY OF CUMBERIAND HOROWITZ' 997247 Vs. File No. BRENIZER SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 STATE FARM INS CO, ONE STATE FARM DR, CONCORDVILLE PA 19339 TO: **SUBPOENA ENCLOSED** (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following doamentsST&Xi"h(`HjgpAirmF-VMIM at a ;I You may deliver or mail legible copies of the documents or produce things requested b? this subpoena, together with the certificate of ccrtpliance; to the party-making thi: request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving ..this. subpoena nay seek a court orde;- ampelling you to oenply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: GEORGE B FALLER JR, ESQ ADDRESS: TEN E HIGH ST „. • 1 • ? ,_ 4-APT,TgT1F.. .PA 17013 TELEPHONE:... . ' i 323:2 SUPREME ODURT ID ATTORNEY FOR: 49813 M264336-11 00/00/00 DATE: S of the i DEFENDANT ADDENDUM TO SUBPOENA HOROWITZ Vs. No. 997247 BRENIZER CUSTODIAN OF RECORDS FOR: STATE FARM INS CO ANY AND ALL FIRST PARTY BENEFITS FILES, ANY PROPERTY DAMAGE FILES, AND CERTIFICATION OF THE TORT OPTION WHICH WAS IN PLACE AS OF 6/22/98 REGARDING POL #675 2745E1838G. PERTAINING TO: NAME: MICHELLE HOROWITZ ADDRESS: 75 CHESTER ST CARLISLE PA DATE OF BIRTH: 11/26/74 SSAN: 600109945 CERTIFIEI) PHOTOCOPIES OF THE RECORDS WILL BE ACCEPTED IN LIEU OF YOUR PERSONAL APPEARANCE. County of: CUMBERLAND MLR File 11: M264336-11 } r L ?(: ` ?,1 ' ?? ? 'i ll _-- . ii ( tJ . am... _.? ? L ... 1 ?? ?- '., C.,, a ? . : 1 J L'? '? _. PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COI INTY Please list the following case: (Check one) (X) for JURY trial at the next term of civil court Q for trial without a jury CAPTION OF CASE (entire caption must be stated in full) MICHELLE HOROWITZ Plaintiff V. NANCY BRENIZER, Defendant (check one) O Assumpsit () Trespass (X) Trespass (Motor Vehicle) O Other The trial list will be called on 6-12-01 and. Trials commence on July 9, 2001. Pre-trials will beheld on 6-20-01 (Briefs are due 5 days before pre-trials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 314-1.) No. 99-7247 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: George Faller, Jr., Esquire This case is ready for trial. Date: 5-18-01 Signed: 1 & Print Name: David L. Lutz, Esquire Attorney for Plaintiff 3: ri :; ?+i ?i r? x i F ?. f? f; ?. ?? ? I•` ? ?. I ?! N -. 1 ?. ?! CJ _ -?_S ..i -9 ? it. ?:'?C - _ • . .' ri } ': ai .. ?S4 . L,, _ , ? ? c:. ?-? o U 3? r F HILI:S DA FA1'ILLdIn J,w 1., 1-71 If' 3 10111 OamJ 011W01W]14)A.N Noi¢J 07100110(.A AM UM 01 MICHELLE HOROWITZ, Plaintiff V. NANCY BRENIZER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.99-72 37 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED DEFENDANT'S PROPOSED POIN'PS FOR CHARGE 1. The number of witnesses offered by one side or the other does not, in itself, detennine the weight of the evidence. It is a factor, but only one of many factors which you should consider. Whether the witnesses appear to be biased or unbiased; whether they are interested or disinterested persons, are among the important factors which go to the reliability of theirtestimony. The important thing is the quality of the testimony of each witness. In short, the lest is not which side brings the greater number of witnesses or presents the greater quantity of evidence; but which witness or witnesses, and which evidence, you consider most worthy of belief. Even the testimony of one witness may outweigh that of many, if you have reason to believe his or her testimony in preference to theirs. Obviously, however, where the testimony of the witnesses appears to you to be of the same quality, the Weight of numbers assumes particular significance. C. 2. You may find inconsistencies in the evidence. Even actual contradictions in the testimony of witnesses do not necessarily mean that any witness has been wilrully rase. Poor memory is not uncommon. Sometimes a witness forgets; sometimes the witness remembers incorrectly. It is also true that two persons witnessing an incident may see or hear it differently. If different parts of the testimony of any witness or witnesses appear to be inconsistent, you the juryshould try to reconcile the conflicting statements, whether o f the same or di ffcrent witnesses, and you should do so if it can be done fairly and satisfactorily. If, however, you decide that there is a genuine and irreconcilable conflict of testimony, it is your function and duty to detem-line which, if any, of the contradictory statements you will believe. L. 3. If you decide that a witness has deliberately falsified his or her testimony on a significant point, you should take this into consideration in deciding whether or not to believe the rest of the witness's testimony; and you may refuse to believe the rest of his or her testimony, but you arc not required to do so. 4. You will recall that Dr. Nciderer and Morganstein gave testimony of their qualifications as an expert. A witness who hasspecial knowledge, skill, experience, training, or education in a particular science, profession, or occupation may give his or her opinion as an expert as to any matter in which he or she is skilled. In determining the weight to be given to the expert's opinion, you should consider the qualifications and reliability of the expert and the reasons given for his or her opinion. You are not bound by an expert's opinion merely because lie or site is an expert; you may accept or reject it, as in the case of other witnesses. Give it the weight, if any, to which you deem it entitled. U it expert has Value only when you accept the lads upon which it icts are assumed hypothetically by the expert, or they come f nom n some other proper source, or from some combination of these. G. In civil cases such as this one, the plaintiffhas the burden of proving those contentions which entitle him or her to relict. When a party has the burden ofproofon if particular issue, his or her contention on that issue must be established by a fair preponderance of the evidence. The evidence establishes a contention by a fair preponderance of the evidence if you are persuaded that it is more probably accurate and true than not. To put it another way, think, if you will, ofan ordinary balance scale, with a pan on each side. Onto one side of the scale, place all of the evidence favorable to the plaintiff; onto the other, place all of the evidence favorable to the defendant. If, after considering the comparable weight of the evidence, you feel that the scales tip, ever so slightly or to the slightest degree, in favor of the plaintiff, your verdict must be for the plaintiff. If the scales tip in favor of the defendant, or are equally balanced, your verdict must be for the defendant. In this case, the plaintiff has the burden of proving the following propositions: that the defendant was negligent, and that that negligence was a substantial factor in bringing about the accident. If, after considering all of the evidence, you feel persuaded that these propositions are more probably true than not true, your verdict must be for the plaintiff. Otherwise, your verdict should be for the defendant. i C_ 7. 1. [To 1 e used in cases where pqt meats for uuvlical eghenses (Inrl income to • do not exceed the minimam required limits set forth in § 1711:] There has been evidence in this case that nudical services were per •nud for the plaintiff )and that time was missed from work. Flowevcr, you It, c received no evidence of\tthe amount of the medical expenses nor the amount wages lost by the plaintiff. Stld t losses are not recoverable in this case. While it may consider the types of medal services perfomud in reaching a verdi on the other types of non-economic damages, such as pain and suffering, your erdict should not include any award for ac?t al medical expenses or lost wages. [For use in cases irh re paynhents for medical e penes exceed S5,000, but are less than S100,000:] In this case you have hea testimony conce ng various medical services provided to the plaintiff in an effort bring (him) er) back to health. Under Pennsylvania law, a certain portion of if I intiffs udical bills were paid [by the plaintiffs insurance company] and are h t rec erablc in this action. The medical bills that have been received into evidenc c esent those bills which have not been paid from this other source. If you award da ages to the plaintiff and you find that the medical bills received into evidence we th roximate result of the inj cries sustained by the plaintiff and were reasonabl and ne ssary, you should award the amount of those bills to the plaintiff. Ho ever, you lay consider all of tile. medical services performed in detennini the extent of a plaintiffs pain and suffering and other non-economic damag , whether or not if bills for those particular services have been placed in evid ce. 3. [For use h cases where, at the time o trial, medical expenses have not erceeded $5,000, but ntal, exceed 5,000 in the fitthu•e:] You have hea testimony concerning medical se Jces performed for the plaintiff as a result injuries received in the accident. der Pennsylvania law, those expenses l ve been paid from another source [by the p intifPs insurance company] and ther ore the cost incurred by the plaintiff is not rec erable in this proceeding. Howe er, you have heard testimony from the plaintiffs p sician that the plaintiff will equire medical services in the future, the cost of whi i will exceed the other so ces available under Pennsylvania law. Therefore, if yoL find that the plaintiff 11, with reasonable probability, incur medical expenses in th future, and you find hat those medical expenses would be the direct result of the injt ries claimed in this action, then you may make an award to the plaintiff for the a future medical expenses. S. A negligent party is subject to liability for harm to another, although a physical condition ofthat person not knoxen to the actor makes the injurygreater than that which the actor, as a reasonable person, should have foreseen as a probable result of his or her conduct. If you find that the plaintiff had a preexisting injury that was aggravated by the defendant's negligence, you must find the defendant responsible for the enhancement of the plaintiffs injury. ?v 9. An injured party must make a reasonable effort to minimize his d:unages. Therefore, it was incumbent on the Plaintiff in this case to do everything he could reasonably do to lessen or reduce his injury. P.L.E. Damages Section 36. . ) 10, The burden is on the Plaintiff to show that his alleged damages and each element thercofwere a result ofthe Defendant's actions. Ifyou do not find proofof damages to be credible, then you must reject those claims which have not been sufficiently proven. ace P.L.B. Damages Section 15 1. Jr 1 1. Damages for pain :urd suffering are compensatory in nature. That is, they are designed to compensate the plaintiff for pain and suffering associated with his injuries, even though he has not suffered a financial loss as a result thereof. Pain and suffering is not intended to punish or penalize anyone, including the Defendant. 12. An operatoron a through highway as he approaches an intersection protected by a stop sign must also be highly vigilant, keep a sharp lookout ahead, and have his vehicle under such control that he can stop in time to avoid any damages reasonably likely to arise. MARTSON DEARDORFF WILLIAMS & OTTO 1 By ;, George B. Faller, Jr., Esqui I.D. Nuntber49813 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Defendant Nancy Brenizer Date: July 10, 2001 l IN THE COURT OF ....... ommon Pleas ............................................. OF THE COUNTY OF. Cumberland ........................................................... of ............. ................................ Term, 19........ No.... 99-724.7............ VERDICT 020 0 1 And now, to wit: ............................................ . ...... we, the Jurors empaneled in the above entitled case, find ... n....... ..... tnf..x*!'..... !&;........ /....7 .,5.- ?. ......................... ................ ?7 Fore ......................... ... r ........................... /? i No ..................................................Term, 19........ r VERDICT ................................. y'. i ?t COMMONWEALTH OF PENNSYLVANIA ` COURTHOUSE I COURTHOUSE SOI CARLISLE. PA 1701] KEVIN A. HESS (7171240-629 JUDGE • Judq. ClerklProth TlpataH_ h NO.. COURTROOM CASE NO.: , -/ e Ile °? AL- A-) VS llkllele 61-efl , a 9rl. ].? y7 DATE: DOCKET NO.: Random No. Juror# ...,... _ _ Name m _ ? _r,. __........ ,...,.......w.__..,..„.,. . ?....? p? 1 ono ' _1814111505 I 127 Wiest, Audry B -1354896093 141 Killian, Leroy L 1094760159 27 Bauman, James R -982310052 138 Ensign, Natalie J _963411762 30 Rose, Timothy David _904934484 n 36 Ulrich, April L 799668280 CUI1?COdl? 5---FOi`c;-Debra'M -627044373 133 Bishop, Raymond C .533729712 134 Shreiner, Karen 199422423 6 Haldeman, Elizabeth M _62746189 i., 119 Rotz, Joel B 71986343 137 Barklow, Shelia A x____302568098--" 22 n 390U3131- py 1- Garrett, 1? ac?22359r.. ^^ Y? 35 BovrmanrLyn 588687594 P? „• auv ump, re o 669243750 ,p D 3 - pv Mclin a Q? 852829311 Cecelia G 142 Hathaway, MargaretI 1317279413 130 Rodgers, Linda Sue 1392608340 17 Graham, Ronald G 1415212664 120 Gehrett, Demme J 1495612185 q 121 Dravk, Nancy L 1574869970 132 Wagner, Christianna H 1697102533 21 Genther, Edward J 111 1932183994 42 Brubaker, Ethel S 2089337873 135 Souders, BettY J pe0g 1 of 1 Mottday;'Sel!tenther10,2001y __, f+ I rf, MICHELLE I IOROWITZ, IN THE COURT OF COMMON PLEAS Plaintiff' CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 99-7247 Civil NANCY BRENI7_ER Defendant JURY TRIAL DEMANDED PRAECIPE To the Prothonotary of Cumberland County: Please mark the above-captioned action settled, satisfied, and discontinued. Date: C- 11_ u` cc George Faller, Esquire ANGINO & ROVNER, P.C. Da'vM C'. "Outz I.D. No. 35956 4503 N. Front Street Harrisburg, PA 171 10 (717)238-6791 Attorney for Plaintiff 204449.11131.1.Urrc i:wr Gf LG ' i . =1 G-- U• :, l